O'Sullivan v Noarlunga Meat Ltd

If I am right as to the intention of reg. 103, it is an important provision for the co-operation of Commonwealth and State in securing and maintaining the standard of meat for export. After all, the States are at least as much concerned as is the Commonwealth in securing and maintaining those standards. The Commonwealth has no greater interest than the States in that matter. Indeed, where a State is very largely dependent upon its export trade in a certain commodity, as South Australia is in the lamb export trade and Tasmania in the fruit export trade, the State may have the greater interest. However, there seems to be no doubt that the Commonwealth has the power in all cases to exclude the State law. But I think the correct view of these regulations is that the State is permitted to remain in the field so that advantage of its services may be taken from time to time if that appears desirable to the authorities administering the regulations, who, of course, have no power to bind their successors as regards future exports. I can see no regulation, not even regs. 5 and 10, that points as clearly to the exclusion of the State law as reg. 103 points to its continuance.

This case comes before the Court on a special case stated for the Supreme Court of South Australia by a special magistrate. It was removed into this Court by order under s. 40 of the Judiciary Act 1903-1950.

The case arises under the Metropolitan and Export Abattoirs Act 1936-1952 of the State of South Australia. This Act provides for the establishment of a board to be called the Metropolitan and Export Abattoirs Board, which is made a body corporate. It is necessary to refer only to two sections of the Act. Section 50 relates to the slaughter of stock for export within the Metropolitan Abattoirs Area, which is defined by s. 3. It provides: "(1) Except as provided by section 50a the board shall have the sole right within the Metropolitan Abattoirs Area to slaughter stock for export as fresh meat in a chilled or frozen condition. (2) Nothing in this Act shall operate so as to allow any person other than the board to slaughter stock within the metropolitan abattoirs area for export as fresh meat in a chilled or frozen condition, or any place within the said area other than premises of the board to be used for that purpose. (3) The board shall not slaughter any stock for export except for and on account of and in the manner directed by the manager of the Government Produce Department. (4) The manager of the Government Produce Department shall not procure the slaughter of any stock for export except upon condition that he is appointed by the owner of the stock as agent to arrange for the slaughter, freezing, and shipment thereof, and, where required, to market the meat and by-products, and, that he is to be paid an inclusive fee for all these services". The exception provided by s. 50a is immaterial for the purposes of the present case. The other relevant section is s. 52a, which relates to the slaughter of stock for export outside the Metropolitan Abattoirs Area. It provides: "(1) No person shall in any part of the State outside the Metropolitan Abattoirs Area use any premises for the purpose of slaughtering stock for export as fresh meat in a chilled or frozen condition unless he is the holder of a licence from the Minister of Agriculture authorising him to use those premises for that purpose (2) The Minister of Agriculture shall have a discretion to grant or refuse any application for a licence under this section after due consideration of the following matters: - (a) whether the applicant is a fit and proper person to hold a licence under this section; and (b) whether the place where it is proposed to establish the premises to be used under the licence is a suitable place for the establishment of such premises; and (c) whether the premises are necessary to meet the requirements of the public: "

The defendant company was charged with a breach of s. 52a (1) in that it did on 27th November 1953 in a part of the State outside the Metropolitan Abattoirs Area use certain premises owned and occupied by it for the purpose of slaughtering certain stock, viz. lambs, for export as fresh meat in a chilled or frozen condition. Such a breach is made an offence against the Act by s. 115. The case states that the allegations of fact contained in the charge are true. The company's premises, however, are registered under the Commerce (Meat Export) Regulations of the Commonwealth, and the defence raised by the company is that s. 52a of the South Australian Act is inconsistent with those Commonwealth regulations and is therefore invalid by virtue of s. 109 of the Constitution of the Commonwealth. The prosecution denies that any such inconsistency exists, and says, further, that, if the inconsistency does exist, the Commonwealth regulations are not authorized by the statutes under which they purport to be made and could not lawfully be so authorized, because the making of them involves an excess of the constitutional powers of the Commonwealth. Two questions are thus raised. The first is whether there is an inconsistency within the meaning of s. 109. The second (which need not be considered unless the first question is answered in the affirmative) is whether the Commonwealth regulations are valid. The latter question is, on the view which I take, a question of "limits inter se ". The former is not such a question.

The regulations, so far as they refer to registration of premises for the slaughter of stock for export, are badly drawn and are not co-ordinated into a consistent whole. Some are expressed as conditions of registration; some are not so expressed but must probably be taken to be so intended; some are neither so expressed nor so intended but prescribe conditions which are to be observed in and about the actual slaughter of stock and subsequent operations.

It is not necessary to set out the material regulations in full, but it is necessary to examine closely their nature and content. By reg. 4B, which was introduced into Pt. I of the regulations on 7th May 1953, it is provided that the exportation of all meat, meat products or edible offal, is prohibited unless (a) the treatment and storage of the meat etc. has been carried out in an establishment registered in accordance with the regulations; (b) the provisions of the regulations have been complied with; and (c) the exporter has received an export permit in respect of the goods in accordance with the regulations. Regulation 5 provides that all establishments used for the slaughter, treatment and storage of meat, meat products or edible offal, for export shall be registered. This regulation is cast in a form which is generally considered objectionable, since it is impersonal and does not in terms cast any direct duty on any person. Such cases, however, are familiar enough, and I would think it clear that reg. 5 must be construed as forbidding any person to use any establishment for any of the purposes mentioned unless the establishment is registered. The use of premises for that purpose without registration will therefore be a breach of the regulations, for which s. 99 provides a penalty not exceeding twenty pounds.

Regulation 6 provides that applications for registration shall be in accordance with Form A. The form requires the nature of the proposed operations to be stated, and it is to be accompanied by plans and specifications of the premises. Regulation 6 also provides that there shall be issued to an "approved applicant" a certificate of registration in accordance with Form B, which shall specify, inter alia, all operations which may be conducted in the establishment to which it refers. In the present case the certificate of registration issued to the defendant company states that its premises are registered as "an establishment in which the following operations may be conducted: - slaughtering and freezing of mutton and/or lamb for export". Certain conditions are stated which are not material for present purposes. By reg. 7 an application for registration must be accompanied by, inter alia, complete plans and specifications of the establishment and a clear photograph of the site, showing its relation to the land or other property adjoining the establishment. Regulation 9 provides that, where after the commencement of the regulations (they commenced on 30th March 1923) it is intended to erect premises to be registered, registration shall not be granted unless the secretary approves of the site prior to the erection of the premises.

Regulation 12 provides that no premises or buildings shall be registered unless they conform to such prescribed requirements as are applicable. Regulation 13 prescribes requirements with respect to places appointed by the secretary for the inspection of meat for export. Regulation 14 provides that no establishment shall be registered unless the site is such as to admit of ready and efficient drainage. It also prescribes distances which must separate buildings, yards and pens from any human habitation or any noxious trade establishment, and that the site is to be such as to allow an interval of at least twenty yards between the main building and the nearest public road. Regulation 15 deals with the floor area of killing, dressing and hanging rooms. It prescribes certain areas for floors and heights for walls, and it provides that the hanging room shall have not less than nine square feet for each carcase hung. The hanging rails are to be not less than three feet apart. Regulation 16 provides that, if meat is slaughtered for export, the establishment shall contain chilling, freezing or cold storage accommodation commensurate with its killing capacity. Regulations 17 to 21 inclusive contain other provisions which must be complied with if the operations to be carried on include chilling or freezing. Regulation 23 provides that the height of killing and dressing rooms shall be sixteen feet in the case of cattle, and ten feet in the case of sheep. The walls are to be of a height of not less than four feet, and solidly constructed of brick, masonry or concrete. Other matters of detail are provided for. Regulation 24 provides that the height of hanging rooms for cattle shall be not less than sixteen feet and for sheep not less than ten feet. Regulation 25 provides that chilling, freezing and cold storage rooms shall be constructed of concrete, brick or wood, and that the hanging rails in chilling rooms for cattle shall be not less than three feet apart and in the case of sheep not less than fourteen inches apart. By reg. 26 the rooms in which edible offal and edible fats are prepared are to be constructed of material similar to that prescribed for killing and dressing rooms. Regulation 27 requires ramps over which offal is conveyed to be constructed with a hard impervious surface of concrete or other suitable material. Regulation 28 contains detailed provisions with regard to sorting houses for offal and reg. 29 with regard to casing houses. Regulation 30 contains provisions with relation to the accommodation of employees engaged at the establishment. Regulation 31 provides that plant for the treatment of inedible offal shall be at least ninety feet distant from any building in which edible offal is prepared or stored for export. The buildings are to be constructed of materials similar to those prescribed for killing and dressing rooms. By reg. 32 the wall and floors of the killing and dressing rooms are to be rendered impervious and washable by means of cement rendering. Regulation 33 contains detailed requirements with regard to ventilation. Regulation 34 provides that wire fly-netting shall, if the secretary so directs, be provided over all openings and walls. By reg. 35 benches, tables and similar articles are to be so constructed as to be easily drained, removed and cleansed. Regulation 36 contains detailed provisions with regard to lighting. Regulation 37 provides that there must be to the satisfaction of the secretary air disconnection between compartments used for slaughter and preparation and storage of meat and those used for purposes of dressing rooms etc. Regulation 38 provides certain special sanitary and other requirements relating to premises where meat is preserved for export. These requirements are set out in great detail. Regulations 40 and 41 contain detailed provisions with regard to drainage and the handling and disposal of blood etc. Regulation 42 contains certain requirements with regard to water supply and fittings. Regulation 44 provides that yards, lairs and pens shall be provided, and the manner and materials of their construction are prescribed. Regulation 45 provides that ramps shall be constructed with a hard impervious surface of concrete or other suitable material and provided with raised kerbing. Regulation 46 provides that a suitable race or yard shall be provided for the inspection of stock before killing. Regulation 47 provides that the area of yards and holding pens shall be such as to allow of at least twenty square feet of floor space per head for cattle and six square feet per head for sheep. The floor area of pens is to be constructed of materials similar to those prescribed for the floors of killing and dressing rooms. There are also certain requirements with regard to drainage. Regulation 48 contains certain requirements with regard to the construction of partitions separating pens and ramps and the gates or doors leading from pens.

Part III of the regulations deals with "Supervision, Inspection, Preparation, Transportation, Marketing and Trade Description of Meat intended for Export", and contains reg. 91, which provides that an export permit in accordance with form E shall be issued by the inspector to the exporter in all cases in which the provisions of the regulations have been complied with and a note to that effect signed by an inspector has been made upon the face of the notice of intention to export which is required to be given.

The above summary, which gives only in bare outline the effect of a large number of regulations, is sufficient to show that they constitute an extremely elaborate and detailed set of requirements which must be complied with before registration can be obtained of premises to be used for the slaughter of stock for export. They relate to site, materials of construction, arrangement, dimensions and many other matters. It is an offence to use premises for the slaughter of meat for export unless the premises are registered. Registration cannot be obtained except upon compliance with all these detailed provisions, and in addition the applicant must be "approved". But, if all those provisions are complied with, an approved applicant is entitled to a certificate specifying the operations which may be conducted on the premises. In my opinion a State statute which has the effect of prohibiting the use of premises registered under the Commonwealth regulations for the very purpose for which they have been registered under those regulations is plainly inconsistent with those regulations.

It is, of course, possible to obey both laws. It is possible to refrain altogether from using premises outside the Metropolitan Abattoirs Area in South Australia for slaughtering stock for export as chilled or frozen meat. It is equally possible to comply with all the detailed requirements of the regulations and obtain registration thereunder, and then, after failing to obtain a licence under s. 52a of the South Australian Act, to use the premises for storing apples or not to use the premises at all. But it is now well settled that there may be inconsistency within the meaning of s. 109 between two laws, although it is quite possible to obey both. The test of inconsistency which is now generally applied was laid down in Clyde Engineering Co. Ltd. v. Cowburn [1] . It has been applied in a number of later cases: see especially H. V. McKay Pty. Ltd. v. Hunt [2] ; Hume v. Palmer [3] ; Ex parte McLean [4] ; Colvin v. Bradley Bros. Pty. Ltd. [5] and Wenn v. Attorney-General (Vict.) [6] . In Clyde Engineering Co. Ltd. v. Cowburn [1] , Isaacs J. said: "If a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field" [1] . The test was analyzed and fully stated by Dixon J. in Ex parte McLean [2] , in a passage which is often cited. His Honour said: "When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and s. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v. Palmer [3] ). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter" [4] .

1. (1926) 37 C.L.R. 466. 2. (1926) 38 C.L.R. 308. 3. (1926) 38 C.L.R. 441. 4. (1930) 43 C.L.R. 472. 5. (1943) 68 C.L.R. 151. 6. (1948) 77 C.L.R. 84. 7. (1926) 37 C.L.R. 466. 8. (1926) 37 C.L.R., at p. 489. 9. (1930) 43 C.L.R. 472. 10. (1926) 38 C.L.R. 441. 11. (1930) 43 C.L.R., at p. 483.

Applying this test, it appears to me impossible to deny that the regulations evince an intention to express completely and exhaustively the requirements of the law with respect to the use of premises for the slaughter of stock for export. The extremely elaborate and detailed character of the regulations seems to me to be itself sufficient to compel this conclusion. Almost every requirement which occurs to one as a relevant requirement is prescribed. But this is not the only feature of the regulations which appears to me to compel the conclusion that there is inconsistency in s. 52a of the South Australian Act. It is true that the regulations do not in express terms provide that it shall be lawful for any person who has obtained the registration of premises to slaughter stock for export on those premises. But reg. 6 (2) requires the secretary to issue to an approved applicant a certificate of registration, and that certificate must specify the operations which may be conducted in the establishment to which it refers. According to the certificate held by the defendant company the operations which it may conduct on the premises are, as has been said, the slaughtering and freezing of mutton and/or lamb for export. It is clearly contemplated that, when registration has been obtained, the operations referred to in the certificate may be lawfully conducted on the registered premises. Section 52a of the South Australian Act is a clear denial of any such permission. The case, indeed, is seen, I think, closely to resemble the case of Colvin v. Bradley Bros. Pty. Ltd. [1] . In that case an order which had been made under s. 41 of the Factories and Shops Act 1912-1936 N.S.W. prohibited the employment of females on a milling machine. By an award of the Commonwealth Court of Conciliation and Arbitration the employment of females on certain classes of work, which included work on a milling machine, was permitted unless such work had been declared by a Board of Reference to be unsuitable. There had been no such declaration by any Board of Reference. It was held by this Court that the order in its application to persons covered by the award was inconsistent with that award and therefore, by virtue of s. 109, invalid.

It was said that the purpose and object of s. 52a was different from the purpose and object of the Commonwealth regulations. It was said that s. 52a was not concerned with the purity and quality of meat intended for export but was concerned with such matters as the suitability of the proprietor of the premises, the suitability of the site and similar matters of local concern. As to this there are two things to be said. In the first place the suitability of the applicant and the suitability of the site are plainly matters with which the regulations are concerned. In the second place, the discretion given to the Minister by s. 52a is absolute. It is true that he is required to consider the matters specified in sub-s. (2) of s. 52a, but subject to the proviso to sub-s. (2) - and, of course, to the requirement of good faith - the Minister of Agriculture may refuse a licence for any reason whatever which seems good to him. In particular, he could refuse a licence because he thought that a Commonwealth requirement, which had been complied with, was not sufficiently drastic. It should perhaps be added that the subject matter of the Act here is the same as the subject matter of the regulations - the use of premises for slaughtering stock for export. It is therefore unnecessary to consider whether the statement of Latham C.J. in Colvin v. Bradley Bros. Pty. Ltd. [2] , that the "classification of statutes according to their true nature is a matter that is irrelevant to any application of s. 109" is not expressed somewhat too widely.

It was argued that reg. 103 indicated an intention on the part of the Commonwealth that State legislation on the subject matter of the regulations could exist alongside the Commonwealth law. Regulation 103 provides that "where by the law of any State any goods are required to be inspected and approved by a State authority before export, and the Minister is satisfied that such inspection and approval are as efficient as inspection and marking under these regulations, the Minister may direct that such inspection and approval shall be accepted, wholly or partly, in lieu of examination and marking under these regulations". No such conclusion as is suggested can, in my opinion, be drawn from reg. 103. In the first place, it is very limited in its scope and relates only to inspection and marking. In the second place, it is incapable to my mind of carrying the implication suggested. Indeed, I am not at all sure that it does not indicate a contrary intention, because it applies only where the Minister is satisfied with regard to State inspection and approval, and the intention seems to be that, in the absence of satisfaction and direction on the part of the Minister, the Commonwealth system is to supersede any State system. But all that reg. 103 really means is that, if satisfactory machinery happens to exist at any port, the Minister, in the interests of economy, may use it. It is impossible to imply an intention that the export of goods which have received a Commonwealth export permit may be prohibited by a State.

The conclusion that there is inconsistency, within the meaning of s. 109, between s. 52a of the South Australian Act and the Commonwealth regulations makes it necessary to consider the second question, which relates to the validity of the regulations. The regulations purport to be made under the Customs Act 1901-1953 and the Commerce (Trade Descriptions) Act 1905-1950. Only Pt. II of the regulations is directly relevant in the present case, and Pt. II is, in my opinion, within the power conferred in terms by s. 270 (1) (c) of the Customs Act. That provision, so far as material, authorizes the Governor-General to make regulations not inconsistent with the Act for prescribing "the conditions of preparation or manufacture for export of any articles used for food or drink by man". The power given by s. 270, however, must be regarded as limited by the Constitution. The question therefore resolves itself into whether the regulations are within the constitutional power of the Commonwealth. If Parliament had enacted them directly, would they be valid? The only power invoked, and, so far as I can see, the only relevant power, is that given by s. 51 (i.) of the Constitution to make laws with respect to trade and commerce with other countries.

Before considering the constitutional question it will be well to look again for a moment at the regulations and to see what is their general scheme and what they really do. In this connection it becomes necessary to look also at certain other regulations, viz. the Meat Export Control (Licences) Regulations made under s. 28 of the Meat Export Control Act 1935-1953.

What may be called the keystone of the Commerce (Meat Export) Regulations seems to be found in reg. 4B, which prohibits the export of meat, etc. unless (a) treatment and storage has been carried out in a registered establishment; (b) the provisions of those regulations have been complied with; and (c) the exporter has received an export permit. "Treatment and storage" do not include slaughter, but, since reg. 5 in effect prohibits slaughter for export in an unregistered establishment, the regulations will not have been complied with if slaughter has taken place in an unregistered establishment. It is to be noted, in addition, that reg. 4 of the Meat Export Control (Licences) Regulations prohibits the export of meat except by persons who hold licences, and reg. 7 of those regulations requires a licensee to comply with the Commerce (Meat Export) Regulations. The licence under the Meat Export Control (Licences) Regulations is in general terms, but an "export permit" is also required before any particular consignment may be lawfully exported. The issue of an export permit is provided for by reg. 91 of the Commerce (Meat Export) Regulations which, as has been noted, says that a permit shall issue if the regulations have been complied with.

So far the general structure, though somewhat complex and very elaborate in detail, seems clear enough. The export of meat is prohibited unless it was slaughtered in a registered establishment, and an establishment cannot be registered unless it complies with the prescribed conditions. The export of meat is also prohibited unless certain other prescribed conditions as to treatment, storage and so on, are complied with. And so far no ground for attack on the validity of the Commerce (Meat Export) Regulations appears. There is no suggestion of any ulterior objective behind the regulations: no such question as that which arose in R. v. Barger [1] , or that which arose in Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. [2] , arises here. The Commonwealth is legislating to ensure that only meat of a certain grade and quality shall be exported, and the law is clearly a law with respect to trade and commerce with other countries. The power given by s. 51 (i.) extends to authorizing the total prohibition of the export of any commodity, and a fortiori it includes a power to prohibit the export of any commodity except upon compliance with prescribed conditions.

1. (1908) 6 C.L.R. 41. 2. (1939) 61 C.L.R. 735.

But the regulations go further than this, and, indeed, if they did not go further, it might be less clear that they were inconsistent with s. 52a of the South Australian Act. Regulation 5 prohibits the use of any premises for the slaughter of meat for export unless those premises are registered, and a penalty is imposed by reg. 99 on any use of premises which is in breach of reg. 5. In fact, although the regulations were originally enacted in 1923, it was not until 1953 that reg. 4B was introduced, which expressly prohibits the export of meat etc. unless, inter alia, it was slaughtered in a registered establishment. It is true that reg. 91 (which provides for export permits) has been in force from the beginning, and reg. 4 of the Meat Export Control (Licences) Regulations has been in force since 1936. But the position originally was, and still is, that reg. 5 prohibits the use of premises for slaughter for export unless the premises are registered, and they cannot be registered unless they comply with a large number of prescribed conditions which descend to meticulous detail. The question which emerges is whether the Commonwealth power with respect to trade and commerce with other countries extends to authorizing legislation regulating and controlling the slaughter of meat for export. In my opinion it does so extend.

The question obviously tends to open up a wide field of speculation as to the extent of the power in question. But it will be wise, I think, to avoid that field, and to concentrate attention on the particular case before us and the particular commodity with which that case is concerned. It will be wise also, I think, to begin by obtaining as clear a conception as possible of what is meant by the expression "slaughter for export". It would perhaps have been better if we had had some evidence before us as to Australia's export trade in meat, and as to the processes involved in the killing and preparation of meat for export and for home consumption respectively. But it seems to me safe to say that Sir Garfield Barwick was entirely right when he said that the expression "slaughter for export" is used in the relevant legislation as a composite expression which would be understood objectively in the trade. Whether "slaughter for export" is taking place is not, from the point of view of the legislator, a question which depends entirely on some intention in the mind of the owner or slaughterer of a beast - an intention which may change from time to time as operations proceed. The whole process from killing to packing will be conditioned in certain respects by the predetermined destination of the meat, and "slaughter for export" is, in the mind of the legislator, a definite objective conception distinct from slaughter for home consumption. It does not, of course, follow that any corresponding position exists with regard to any commodity other than meat. It may very well be, for example, that such an expression as "mining metals for export" or "sowing wheat for export" is meaningless except by reference to some subjective element.

Probably fifty years ago in the United States such legislation as that contained in the Commerce (Meat Export) Regulations would have been held to lie outside the federal commerce power. A sharp distinction seems to have been drawn between manufacture or production on the one hand and commerce, conceived essentially as the movement of goods, on the other hand: see, e.g. Kidd v. Pearson [1] . Today, however, it seems most probable that such legislation would be held within the power to regulate commerce with foreign nations. It is possible indeed that the killing and treatment of stock for export might be regarded as themselves part of the course of commerce with foreign nations, but in any case I think they would be held to be matters within the commerce power: see, e.g., Stafford v. Wallace [2] ; National Labor Relations Board v. Laughlin Steel Corporation [3] and United States v. Darby [4] . It was argued that the regulations in question here are a direct regulation of the very subject matter of the power, that they control steps taken in the actual course of trade and commerce with other countries. But, even if counsel for the State of South Australia be right in saying that the course of commerce with other countries does not begin until a later stage, I am of opinion that the regulations must be held valid on the broad general principle of constitutional interpretation adopted in the earliest days of this Court. In D'Emden v. Pedder [5] , the Court accepted the famous enunciation of the principle by Marshall C.J. in M'Culloch v. Maryland [6] , as "a most welcome aid and assistance" and said: "Where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor and without special mention, every power and every control the denial of which would render the grant itself ineffective" [1] .

1. (1888) 128 U.S. 1, at pp. 20, 21 [32 Law. Ed. 346]. 2. (1922) 258 U.S. 495 [66 Law. Ed. 735]. 3. (1936) 301 U.S. 1 [81 Law. Ed. 893]. 4. (1941) 312 U.S. 100 [85 Law. Ed. 609]. 5. (1904) 1 C.L.R. 91. 6. (1819) 4 Wheat. 316, at pp. 321-323 [4 Law. Ed. 579, at pp. 580, 581]. 7. (1904) 1 C.L.R., at p. 110.

It is true that the Commonwealth possesses no specific power with respect to slaughter-houses. But it is undeniable that the power with respect to trade and commerce with other countries includes a power to make provision for the condition and quality of meat or of any other commodity to be exported. Nor can the power, in my opinion, be held to stop there. By virtue of that power all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth. Such matters include not only grade and quality of goods but packing, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an export market by developing it or impairing it. It seems clear enough that the objectives for which the power is conferred may be impossible of achievement by means of a mere prescription of standards for export and the institution of a system of inspection at the point of export. It may very reasonably be thought necessary to go further back, and even to enter the factory or the field or the mine. How far back the Commonwealth may constitutionally go is a question which need not now be considered, and which must in any case depend on the particular circumstances attending the production or manufacture of particular commodities. But I would think it safe to say that the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export. The "slaughter for export" of stock is such an act or process, and, in my opinion, the Commerce (Meat Export) Regulations are within the legislative power conferred upon the Commonwealth by s. 51 (i.).

The questions submitted to this Court should, in my opinion, be answered -

I entirely agree in the judgment of my brother Fullagar and have nothing to add.

The questions for decision in this case are whether s. 52a of the Metropolitan and Export Abattoirs Act 1936-1952 of the State of South Australia is inconsistent with any of the provisions of the Commerce (Meat Export) Regulations made pursuant to the Customs Act 1901-1952 and the Commerce (Trade Descriptions) Act 1905-1950 and, if so, whether the conflicting Commonwealth provisions are within statutory and constitutional power.

The defendant company, which owns and operates an abattoirs in South Australia outside the Metropolitan Abattoirs Area as defined by the first-mentioned Act, is the holder of a licence issued by a local governing authority pursuant to Pt. XXVII of the Local Government Act 1934-1952. This is the general condition upon which it is lawful to slaughter cattle, sheep, or swine within the local government area in which the defendant company's establishment is situated. Such licences may be issued in respect of premises which the authority is of the opinion "are suitable for the purpose, are situated in a convenient situation and conform to any by-laws in force in the area and to the provisions of the Health Act 1935". Licences so issued remain in force until 30th June next after the grant thereof. There is nothing in the Local Government Act to restrict the purposes for which slaughtering operations may be carried on pursuant to such a licence and if it were not for the provisions of s. 52a of the Metropolitan and Export Abattoirs Act the defendant company at its establishment might, apart from the effect of the relevant Commonwealth legislation, have lawfully slaughtered and prepared meat for export. It was, however, the holder also of a certificate issued pursuant to the Commerce (Meat Export) Regulations which certified that the company's premises "have been registered in the name of Noarlunga Meat Limited of Noarlunga as an establishment in which the following operations may be conducted: "Slaughtering and freezing of Mutton and/or Lamb for export" ". It is unnecessary to specify the several conditions subject to which the certificate was granted.

Before considering the operation and effect of the last-mentioned regulations and the certificate issued thereunder it is necessary to make reference to some of the provisions of the Metropolitan and Export Abattoirs Act. By Pt. IV of the Act the Metropolitan and Export Abattoirs Board is empowered to erect and establish abattoirs and to execute certain incidental works and there is conferred upon the Board the exclusive right of conducting slaughtering operations in the metropolitan area (ss. 82 and 70). But in spite of the provisions of s. 6, which stipulate that the provisions of the Act shall apply within the Metropolitan Abattoirs Area, the Act makes express provision for the control of some slaughtering activities outside that area. Section 50 provides that "except as provided by s. 50a" the Board shall have the sole right within the Metropolitan Abattoirs Area to slaughter stock for export as fresh meat in a chilled or frozen condition, whilst s. 52a provides that no person shall in any part of the State outside that area use any premises for the purposes of slaughtering stock for export as fresh meat in a chilled or frozen condition unless he is the holder of a licence from the Minister of Agriculture authorizing him to use those premises for that purpose. The Minister is given a discretion to grant or refuse any application for a licence under this section after due consideration of a number of matters which are specified in sub-s. (2). It is the prohibition in the latter section which, it is said, the company failed to observe and which is said to be in conflict with the relevant Commonwealth legislation.

From the brief references to the State legislation which I have made it is apparent that, with some immaterial exceptions, slaughtering operations in South Australia may not be carried on within the Metropolitan Abattoirs Area by any person other than the Board and that, outside that area, they may not be carried on by any person unless he is the holder of a licence under the Local Government Act (or certain other legislation to which it is unnecessary to refer) or, in the case of slaughtering for export, he is the holder of a licence under s. 52a of the Metropolitan and Export Abattoirs Act. Since the defendant company's operations were carried on outside the last-mentioned area and it was the holder of an appropriate licence under the Local Government Act, it was entitled lawfully to engage in slaughtering operations but, as it did not hold a licence under s. 52a of the Metropolitan and Export Abattoirs Act, it was subject to the prohibition erected by that section. This at least was the submission of the complainant. But the defendant contended that being the holder of a certificate issued under the Commonwealth regulations it needed no further lawful authority to engage in the operation of slaughtering and treating meat for export. The effect of the issue of that certificate was, it was contended, to confer upon the defendant company lawful authority to conduct the operations therein specified one of which is, of course, the operation the subject of the present charge. If this contention is sound and the relevant regulations are within power then the charge against the defendant company is not well founded and must be dismissed.

It may be contended that, in terms at least, the certificate purports to confer a licence to conduct the operation of slaughtering and freezing mutton and lamb for export. This, however, by no means disposes of the difficulty in the case, for the extent to which the certificate can operate as a licence to perform this operation can be ascertained only by a consideration of the provisions upon which its efficacy as a licence depends. Regulation 5 provides that all establishments used for the slaughter, treatment and storage of meat, meat products or edible offal for export shall be registered. Provision is made by reg. 6 for the making of applications for registration and for the issue of certificates of registration. The form in which such certificates should issue is prescribed and the certificate issued to the defendant company is in that form. Divisions 2, 3 and 4 of Pt. II prescribe in considerable detail standard specifications with respect to the construction, ventilation, sanitation and methods of operation of registered establishments, whilst Pt. III contains extensive provision with respect to supervision, inspection, preparation, transportation and the marking of meat intended for export. It is unnecessary to refer to these provisions in detail and it is sufficient to say that the conditions prescribed and the provision made for supervision and inspection are of a most comprehensive and exhaustive character. Regulation 91 makes provision for the issue of export permits to exporters in all cases "in which the provision of these regulations have been complied with", though until May 1953 the regulations themselves do not appear expressly to have placed any direct embargo or prohibition on the export of meat. In that month, however, reg. 4B (1) was promulgated. That regulation is in the following terms: - "The exportation of all meat, meat products or edible offal is prohibited unless - (a) the treatment and storage of the meat, meat products or edible offal has been carried out in an establishment registered in accordance with these regulations; (b) the provisions of these regulations have been complied with; (c) the exporter has received an export permit in respect of the goods in accordance with these regulations, and the export permit is in force at the time of exportation of the goods."

But prior to the promulgation of this regulation the Meat Export Control (Licences) Regulations were in operation and reg. 4 of those regulations prohibited the export of meat except by persons who held licences. These regulations came into force in June 1936 and, apparently, are still in force. We have not been told, nor have I been able to discover, whether prior to that date the exportation of meat without a licence was forbidden by proclamation pursuant to s. 112 of the Customs Act before its amendment in 1934, but upon the view which I have formed of the operation and effect of the Commerce (Meat Export) Regulations this is of little consequence.

The contention that the issue of a certificate of registration issued pursuant to the regulations operated to confer upon the defendant company lawful authority to conduct the operations therein specified asserts, in effect, that the regulations evidence an intention on the part of the Commonwealth to assume the supervision and control of all establishments for the slaughtering of stock and the preparation of meat for export. To this end, it is said, the regulations exhaustively define the standard requirements for such establishments and have provided for the issue of licences to approved applicants. In one sense much of this may be conceded without damage to the complainant's case, for a great deal depends upon what is meant by the assumption of "supervision and control" of such establishments. If this means that the Commonwealth intended to constitute itself the sole licensing authority for such establishments, and if the effect of the regulations is to carry this intention into operation, then it may be assumed that the issue of a licence would have the effect contended for on behalf of the defendant. In those circumstances there would be a clear conflict between the relevant regulations and s. 52a of the Metropolitan and Export Abattoirs Act. But it does not necessarily follow that if this view be rejected there is no such conflict. It is sufficient for the defendant to establish either that the issue of a certificate has such an effect or, alternatively, that the effect of the regulations is to prohibit the use of establishments which are not registered thereunder for the purpose of slaughtering stock and the preparation of meat for export. In the latter case they would also clearly conflict with the provisions of s. 52a which purport to empower the Minister to issue licences authorizing the use of premises for that purpose.

In considering the problem it is not without significance to observe that the regulations do not contain any provision which purports expressly either to confer upon the holder of a certificate authority to slaughter or treat meat for export or to prohibit the use of establishments for those activities. Regulation 5 merely provides that all establishments used for the slaughtering, treatment and storage of meat, meat products or edible offal for export shall be registered, whilst reg. 6 provides machinery for the issue of certificates of registration. A perusal of the regulations discloses that almost invariably they are not couched in the language of command but rather in the form of specifications, some of which appear to be designed as conditions precedent to the registration of an establishment and others as conditions precedent to the right to obtain an export permit under reg. 91 in respect of meat processed in a registered establishment. In other words, the regulations, in the main, present themselves not as rules of conduct with which the regulations imperatively require compliance, but as the antecedent specification of conditions the fulfilment of which will entitle an applicant to the issue of an export permit at the appropriate time. A few individual regulations, and notably reg. 10, are not couched in language which is appropriate to such an understanding of them, but they are not in question in this case and they are insufficient, I think, to require modification of the general view which I have expressed. The object which the regulations appear to be designed to achieve might have been achieved in other ways. It might have been brought about by a simple prohibition of export except in cases where the commodity had been processed under specified conditions designed to ensure appropriate export standards and this, of course, might have been done without any provision for the registration of slaughtering establishments. But I see very little, if any, difference between such a plan and that which is carried into effect by the regulations. In the main the regulations merely prescribe conditions designed to secure standards of purity, quality and condition at the point of export and these are the conditions which, if observed, will entitle an applicant to an export permit. Again, in the main, the only sanction for the observance of these conditions, including that of registration, is that failure to observe them will or may result in the refusal of such a permit. If this be the correct view of the effect of the regulations then it is quite clear that their provisions were not intended to supersede, pro tanto, all other existing requirements for the establishment of slaughter-houses. Indeed, it clearly appears that when the regulations came into operation there was in existence in South Australia, and no doubt in the other States, legislation providing for the licensing and supervision of abattoirs generally and it should not, in the absence of a clear indication, be inferred that it was the intention of the Commonwealth to over-ride this legislation so far as the slaughtering of stock for export was concerned. If such a result was intended I should have expected the regulations expressly to provide that the holder of a certificate of registration might lawfully engage in that operation. The meaning of reg. 5 is, of course, a critical matter in the case and I am unwilling to recognize it as the cornerstone of a licensing scheme intended to supersede the legislation of the State.

In these circumstances the form of the certificate of registration adds nothing to the defendant's arguments. It is merely a certificate which evidences the fact that for the purposes of the regulations the defendant company's establishment is a registered establishment.

On the view which I have formed it is, I think, quite immaterial that s. 52a deals exclusively with the slaughtering of meat for export or that the grant of a licence thereunder is in the discretion of the Minister.

For the reasons which I have given I am of opinion that there is no conflict between the relevant State and Commonwealth legislation and it becomes unnecessary to consider whether the provisions of the Commerce (Meat Export) Regulations or any of them are invalid. Accordingly I am of opinion that the first question raised by the special case should be answered in the affirmative, and, since there is no dispute on the facts of the case, the second question should also be answered in the affirmative.