O'Sullivan v Noarlunga Meat Ltd

High Court of Australia|1956-07-01|Before: Taylor JJ, Fullagar JJ

The application for a certificate was based to no small extent on this ground. As the Judicial Committee had decided that special leave to appeal should be granted, it was said that we ought to certify under s. 74 so that the matter might be before their Lordships as a whole; that to compel a decision on one question without taking the other into account would be to treat that under consideration in artificial isolation. The argument holds implications as to the policy or object of s. 74 which are hardly consistent with the conception by which this Court has hitherto been guided in performing its duty under the provision; but that is a matter concerning our discretion and may be deferred for the moment. What matters at this point is to see to what extent the operation of s. 74 affects this case and what kind of certificate the complainant would or might require. The view which he presents is that the question whether the State enactment conflicts with the federal statutory provisions is quite independent of the question whether the federal provisions are valid and does not involve or touch any question within s. 74. Treating them as independent questions the complainant begins with the assumption that an appeal against the order of this Court is competent so long as the grounds are limited to the question arising under s. 109. He regards the case as falling in principle if not in form under a class mentioned in a passage in the judgment of the Privy Council in The Commonwealth v. Bank of New South Wales [1] . The passage is this: "Finally, mention should be made of one class of case which requires special treatment. If, for example, a party to a suit contends (1) that the facts of his case do not bring him within the operation of a statute, and (2) that, even if they do, the statute is invalid upon some inter se ground, and both pleas are decided against him, there appears to be no reason why he should not accept the decision of the High Court upon the inter se question but present a petition to His Majesty in Council for special leave to appeal on the other question. In such a case, if leave were granted, the Board would, upon the hearing of the appeal, have no concern with any inter se question and, in harmony with the formula already stated, the appellant could obtain the relief he claimed without the determination by the Board of any such question. The example given is not exhaustive of this class of case. The plea other than the inter se plea might be founded not on fact but upon some other ground of invalidity, in which case the same principle would apply" [2] . In Perpetual Executors Trustees & Agency Co. (W.A.) Ltd. v. Maslen [3] a respondent to an appeal from a decision of this Court based upon Commonwealth statute sought to put in question before their Lordships the validity of one of the provisions of the statute. The attack upon its validity seems to have been quite untenable and it had not been made in Australia, but nevertheless, unless put aside as frivolous, it involved a question under s. 74. The appellants placed no reliance before the Privy Council upon the impugned provision and the objection on the part of the respondent that the case fell under s. 74 was disposed of by their Lordships in these words: "the Board are not prepared to carry their decision in the Nelungaloo Case [4] further and to say that if a point which may involve an inter se question has been raised at any time in the case, or even if it appears in the case presented by the appellants, they are precluded from considering the matter. As was said in the Nelungaloo Case [5] : "The appellant may accept the determination of the High Court on the inter se question" " [6] . It is of course for the Privy Council and not for this Court to say how far it was intended that the reservation which was made in the passage quoted from the Banking Case [1] and thus acted upon in Maslen's Case [3] should go. But there may well be a difference between, on the one hand, a case where the two issues are quite unconnected and, on the other hand, a case where the legal conclusion is in truth single but in reaching it steps in reasoning are employed which, when they are dissected out, are seen to contain an element or elements that may be notionally distinguished from the inter se question. As will appear later the Commonwealth maintains that a question as to the meaning and operation of s. 109 falls within s. 74. Let it be supposed that it is so: on that footing a conclusion that two laws are inconsistent within the meaning of s. 109 may perhaps provide an example of a single legal conclusion which when dissected is seen to comprise notionally distinguishable steps in legal reasoning only some or one of which would, considered alone, involve a question within s. 74. For it is a possible view that an attempt to distinguish between the meaning to be assigned to s. 109 and the application of that meaning to a given case of supposed conflict between State and federal laws cannot succeed in dividing the question of the operation of s. 109 upon the case into two completely independent questions.

(1950) A.C. 235; (1949) 79 C.L.R. 497. 2. (1950) A.C., at pp. 298, 299; (1949) 79 C.L.R., at pp. 628, 629. 3. (1952) A.C. 215; (1951) 88 C.L.R. 401. 4. (1951) A.C. 34; (1950) 81 C.L.R. 144. 5. (1951) A.C., at p. 53; (1950) 81 C.L.R., at p. 160. 6. (1952) A.C., at p. 227; (1951) 88 C.L.R., at p. 409. 7. (1950) A.C. 235; (1949) 79 C.L.R. 497. 8. (1952) A.C. 215; (1951) 88 C.L.R. 401.

It is of course evident that in so far as any element in the decision of this case is affected by the interpretation of s. 51 (i.) it falls within s. 74. Needless to say, our decision that it was competent for a law of the Commonwealth to prescribe completely or exhaustively the requirements that are to be imposed for the use of premises for the purpose of slaughtering stock for export was based upon an interpretation of s. 51 (i.). It may be observed that in support of the application for a certificate an exaggerated view of the application of the decision was presented to us. Indeed it was even suggested that as a necessary consequence the commerce power would extend over all production, whenever the goods were intended to go into the flow of inter-State or overseas commerce. As to this it is enough to refer to the express limitation which Fullagar J. made in the concluding paragraph of his judgment [1] . In the same way an attempt was made to give to the application made in this case of the principles of federal supremacy a wider significance than in fact it possesses. This is in truth a very ordinary case relating to a particular application of the long settled doctrine of this Court with reference to the operation of State and federal laws on the same subject. The difference of opinion among the judges was probably traceable rather to the necessity of what may be called "characterizing" the regulations than to any want of unanimity as to the scope and operation of the principle or rule. But of course, when minds experience a difficulty in agreeing about subsuming an objective thing under a category, it is never certain how far the difficulty is occasioned by varying appreciations of the category and how far by varying apprehensions of the characteristics possessed by the thing. There was, however, no question about the principle established finally in this Court in Clyde Engineering Co. Ltd. v. Cowburn [1] , and explained, particularly in its relation to industrial awards, in Ex parte McLean [2] , and repeatedly applied since. Given that principle, the present case relates to a narrow problem. It is narrow because the South Australian provision went specifically to the very field (use of premises for slaughtering for export) which formed the basis of the exercise of federal power constituted by the regulations. The question remained whether, in the jargon the use of which upon this subject has been found convenient both here and in the United States, the regulations "occupied the field".

(1954) 92 C.L.R., at p. 598. 2. (1926) 37 C.L.R. 466. 3. (1930) 43 C.L.R. 472.

Once the constitutional principle is accepted, we have never regarded the application of it in deciding whether a given State law gave way to a given federal law as amounting in itself to a question as to the limits inter se. In this Court it has always been regarded as a question, not between powers, but between laws made under powers. But if the question is to be raised whether that general principle forms part of Australian federalism, that is quite another matter. In American federalism it has been worked out under the sixth Article of the Constitution which is the source of the material part of s. 5 of the covering clauses of our own Constitution. There is not in the United States Constitution an express provision like s. 109. Surprising as it would have been if s. 109 had been interpreted so that the principle of federal supremacy had less strength here than under the United States Constitution, it must be remembered that not always did sound doctrine obtain in this Court. If this case means that there is to be a challenge to what at length became the accepted principle, then of course this case assumes an entirely different significance. Indeed it would be impossible to underrate its importance. No doubt, because the Commonwealth has realized that, in measuring the actual effectiveness of its legislative powers, so much depends upon the maintenance of the principle which this Court has so long applied in administering s. 109, the Commonwealth as an intervener has put forward a contention that the principle in question defines the limits of all the legislative powers of the Commonwealth and the legislative powers of the States. It is the first time, so far as is known, that this argument has been advanced. What is said is that the meaning and general operation assigned to s. 109 determines the extent to which all legislative powers exercisable by the Commonwealth are paramount over the legislative powers of the States. Correspondingly it determines the extent to which a concurrent legislative power of the States is subordinate and liable to be defeated by an exercise of Commonwealth power. This means that the doctrine explained in Ex parte Nelson [No. 2] [1] , and in Nelungaloo Pty. Ltd. v. The Commonwealth [2] is given a new application, a general application to all paramount concurrent powers of the Commonwealth alike. It means that a question as to the meaning and operation of s. 109 is a question within s. 74.

(1929) 42 C.L.R. 258, at pp. 270-272. 2. (1952) 85 C.L.R. 545, at pp 562-564.

In disposing of the present application it is not necessary to decide the question. It is enough to note it and understand that, if we were to give a certificate the contention would make it incumbent upon us, from a practical point of view, to attempt to find some means, if there be any, of excluding the interpretation of s. 109 from the operation of the certificate or else, if we thought it was a proper course, of including it within the certificate. But the case is clearly not one in which we ought to give a certificate. At bottom the policy of s. 74 is to confine the decision of essentially federal questions to this Court, but at the same time to confide to the Court a discretion which will make it possible to obtain the decision of the Privy Council in a case the features of which make it desirable to do so for some special reason. The provision may be regarded as recognizing that federalism is a form of government the nature of which is seldom adequately understood in all its bearings by those whose fortune it is to live under a unitary system. The problems of federalism and the considerations governing their solution assume a different aspect to those whose lives are spent under the operation of a federal Constitution, particularly if by education, practice and study they have been brought to think about the constitutional conceptions and modes of reasoning which belong to federalism as commonplace and familiar ideas. A unitary system presents no analogies and indeed, on the contrary, it forms a background against which many of the conceptions and distinctions inherent in federalism must strike the mind as strange and exotic refinements. It is also doubtless true that those responsible for the provision which took the shape of s. 74 hoped that an Australian court might find it possible to work out by judicial decision in the course of interpreting the Constitution a body of constitutional law which would give strength and stability to the system.

It seems almost evident that the present case falls completely within the principle which this Court has consistently regarded s. 74 as embodying.

The foregoing discussion of the nature of the case and of the constitutional elements which must and those which conceivably may enter into its determination show clearly enough that it is a typical product of federalism. It presents no feature which could afford a special reason to be set against the strong presumption in favour of confining the decision of such a case to Australia.

The motion relates to the order of the High Court determining a special case to which the applicant and the respondent were parties: O'Sullivan v. Noarlunga Meat Ltd. [1] . In order to determine the special case it was necessary for the Court to answer two questions therein stated. The first question was whether s. 52a of the Metropolitan and Export Abattoirs Act 1936-1952 S.A. is invalid. The second question is not directly material to this application. The order of the Court answered "No" to both questions and contained consequential orders.

The applicant in the present motion was by Order in Council given leave to appeal to the Privy Council against the order "save as to any question as to the limits inter se of the constitutional powers of the Commonwealth and the State" (of South Australia). The principal matter upon which the applicant desires to appeal to the Privy Council is the decision of this Court that s. 52a of the Act of South Australia in question is invalid. The ultimate question raised by the attack upon this provision was whether it is inconsistent, within the meaning of s. 109 of the Constitution, with the Commerce (Meat Export) Regulations of the Commonwealth. The test of inconsistency applied was that laid down in Clyde Engineering Co. Ltd. v. Cowburn [2] , as explained in Ex parte McLean [3] . The "majority" of the Court held that, according to that test, s. 52a is inconsistent with the regulations because it enters a field which the regulations evince an intention completely and exhaustively to cover, the field being the requirements of the law with respect to the use of premises for the slaughter of stock for export. But the regulations by force of s. 109 could not prevail in that field, nor could s. 52a be rendered invalid unless the regulations were a valid law of the Commonwealth. Consequently, the applicant, then the complainant, attacked their validity before this Court. The question whether s. 52a, a validly enacted State provision, is invalid for inconsistency with a law of the Commonwealth could not therefore be determined by this Court without deciding whether the regulations were valid. The complainant said that the regulations exceeded the statutory powers pursuant to which they were made. That point was not upheld. It is not now directly material. The complainant then said that the regulations were not wholly within the legislative powers vested in the Parliament by s. 51 (i.) of the Constitution, which is their only constitutional foundation. This contention raised a question as to the limits inter se of the constitutional powers of the Commonwealth and the State of South Australia. The Court decided it adversely to the complainant. Its decision was a necessary step leading to the answer "No" given by the order of the Court to the first question.

(1926) 37 C.L.R. 466, at p. 489. 2. (1930) 43 C.L.R. 472, at p. 483.

In this motion, the applicant asks the Court to certify pursuant to s. 74 of the Constitution that a question that ought to be determined by Her Majesty in Council is "whether the power of the Parliament of the Commonwealth to make laws with respect to trade and commerce with other countries extends to authorizing legislation which expressed completely and exhaustively the requirements of the law with respect to premises for the slaughtering of stock for export and their use and, more particularly, whether s. 270 of the Customs Act is, to the extent to which it authorizes the making of the Commerce (Meat Export) Regulations, a law which the Parliament of the Commonwealth has power to make". The argument in support of the motion is based upon the relationship of such a question to the decision of this Court that s. 52a is not a valid and operative enactment, from which relationship it follows, so the argument runs, the applicant will not be able to uphold the validity of s. 52a, upon all the grounds needed to support it, unless he is permitted to argue that, with the scope attributed to the regulations by the decision of the majority of this Court, those regulations are ultra vires of s. 51 (i.) of the Constitution. The question which the Court has to decide is whether these considerations constitute a "special reason" within the contemplation of s. 74 of the Constitution for this Court to certify that the question defined in the notice of motion ought to be determined by Her Majesty in Council. Guided by the high policy which s. 74 embodies and by the decisions given by this Court on applications made under the section I cannot agree that "any special reason" is made out by the applicant. I think that he is in no stronger position to apply for a certificate than if the Order in Council giving him leave to appeal had not been made. The applicant would carry a very heavy onus if the only matter about which the Court had to be satisfied were that the ends of the Constitution would be served by foregoing its constitutional authority to interpret the nature and extent of s. 51 (i.) of the Constitution. But when the applicant asks, as he does, that the Court should grant a certificate in respect of a question as to the nature and extent of that power in order to enable him to advance all the arguments before the Privy Council which might possibly contribute to the success of his appeal on another and different question, I think that the application must necessarily fail.

In the view which I take of this application I find it unnecessary to give any decision or make any observations on the point whether a question arising under s. 109 is essentially a question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States.

The central theme of the argument presented in support of this application was that if we should decide to grant a certificate under s. 74 of the Constitution with respect to the question whether a law in the terms of the Commerce (Meat Export) Regulations is within the powers of the Commonwealth Parliament under s. 51 (i.) of the Constitution the result would be that the Privy Council would be thereby enabled to consider the case as a whole, having already granted special leave to appeal save as to any question as to the limits inter se of the constitutional powers of the Commonwealth and the States.

We were invited to accept the hypothesis that no question in the case was an inter se question except that which related to the scope of the legislative power conferred by s. 51 (i.). The hypothesis was challenged by counsel for the Commonwealth to whom leave to intervene was granted. The argument they submitted was that the applicant's avowed intention was to contest in the Privy Council the meaning which has long been given in this Court to s. 109 of the Constitution, and that a question as to the meaning of that section is itself an inter se question. It was said, in effect, that to grant a certificate would mean either that, because or in spite of the terms of the certificate, that inter se question as well as the other would go before the Privy Council for determination - and it was submitted that we should not be in favour of its doing so - or that the entire case would not after all be before the Privy Council, the words of exception in the grant of special leave having the effect of excluding from the appeal the point mainly relied upon in the application for special leave.

It is conceded that the applicant does desire to argue before their Lordships the interpretation of the word "inconsistent" in s. 109. That means that the appeal which is contemplated is an "appeal from a decision of the High Court upon a question" as to the meaning of s. 109, in the sense which the words quoted have been authoritatively held to bear in s. 74, and none the less so because in this Court the question was treated as covered by long-standing authority and was therefore neither debated nor pronounced upon. This is so because the effect of the line of decisions comprising The Commonwealth v. Bank of New South Wales [1] ; Nelungaloo Pty. Ltd. v. The Commonwealth [2] ; Grace Bros. Pty. Ltd. v. The Commonwealth [3] and Perpetual Executors Trustees & Agency Co. (W.A.) Ltd. v. Maslen [4] is that, in s. 74, "upon any question" means involving any question, and, prima facie preferable though it may be to attach the phrase "upon any question as to the limits inter se " etc., to the word "question", the effect of the section is that which may be obtained by reading the phrase as qualifying the word "appeal". "If then an argument involving an inter se point is persisted in before their Lordships' Board even as an alternative to an argument which does not raise an inter se question the appeal is beyond their Lordships' jurisdiction" [5] .

(1950) A.C. 235; (1949) 79 C.L.R. 497. 2. (1951) A.C. 34; (1950) 81 C.L.R. 144. 3. (1951) A.C. 53; (1950) 82 C.L.R. 357. 4. (1952) A.C. 215; (1951) 88 C.L.R. 401. 5. (1952) A.C., at p. 226; (1951) 88 C.L.R., at p. 408.

The Commonwealth's contention that a question as to the meaning of s. 109 is an inter se question appears to me to be wellfounded.

The point of commencement for any examination of the question must be the established view of s. 74, namely that a question as to the limits inter se etc., so far as legislative powers are concerned, is a question concerning the lines of demarcation between, on the one hand, the powers of the Commonwealth to make laws which by reason of s. 109 will override State laws inconsistent with them and, on the other hand, the powers of the States to make laws which cannot be overridden by Commonwealth laws. In a case, such as in Ex parte McLean [6] where it is taken for granted, as it was in the earlier proceedings in this Court in the present case, that the meaning of inconsistent in s. 109 is so firmly settled as to admit of no dispute, it is clear that a question whether a State law is to any extent invalid for inconsistency with an admittedly valid Commonwealth law is not an inter se question. Indeed it is not a constitutional question at all, for in order to answer it the Court has only to construe the two laws and apply the accepted test of inconsistency, whatever that test may be.

It is equally clear, however, that the antecedent question, whether the Commonwealth law is within power, is an inter se question. A decision that the Commonwealth law is ultra vires means that the power of the Commonwealth to override State legislation does not extend to doing so by enacting a law in the terms of that which is the subject of the decision. On the other hand, a decision that the Commonwealth law is valid establishes as a consequence that by reason of s. 109 the powers of the States are subject to the qualification that any law they may make which is inconsistent (whatever that may mean) with a Commonwealth law in the terms of that which is upheld is invalid to the extent of the inconsistency.

Inter se questions comprise all questions as to the constitutional limits inter se of the constitutional powers of the Commonwealth and those of any State or States. Usually an inter se question is such for the reason I have indicated in relation to questions of the validity of Commonwealth laws, namely that the answer will determine whether a State law inconsistent with a particular existing Commonwealth law is (or if it existed would be) on one side or the other of the dividing line between the State's absolute power and the Commonwealth's power to override State legislation. That is a question to be answered by applying whatever is considered to be the correct test of inconsistency. But when a court is called upon to decide what is the correct test of inconsistency, the answer given must have a direct bearing upon every case relating to the location of the boundary between State absolute power and Commonwealth overriding power. Why is not the question in such a case, equally with the question in the more common type of case, a question "as to" the limits inter se of Commonwealth and State powers? Consider the two main tests which formerly used to compete for acceptance. One was that which prevailed in Clyde Engineering Co. Ltd. v. Cowburn [1] - does the Commonwealth law intend to occupy exclusively a field which the State law affects to enter - and the other was that which Higgins J. described by confining inconsistency to cases of "actual collision, as when one Legislature says "do" and the other says "don't" " [1] . A decision that the first is the true test means that the qualification which s. 109 imposes upon State legislative power is more extensive than it would be if the second were held to be the true test. Indeed the present case provides an illustration in point. Acceptance of the first test of inconsistency led a majority of the Court to deny that the legislative power of the State of South Australia extends to making a law in the terms of s. 52a of the Metropolitan and Export Abattoirs Act 1936-1952 S.A. which will have any validity while a Commonwealth law in the terms of the Commerce (Meat Export) Regulations is in force; but if the second test had been accepted instead of the first the admitted possibility of obeying both laws simultaneously must necessarily have led to the conclusion that the legislative power of South Australia was not so restricted.

(1926) 37 C.L.R. 466. 2. (1926) 37 C.L.R., at p. 503.

Being of opinion for these reasons that if the entire case were to be placed within their Lordships' jurisdiction it would involve two inter se questions and not only one, I have felt obliged to consider, with respect to each of those questions, whether it is, in the language of s. 74, "one which ought to be determined by Her Majesty in Council". In my opinion we should not hold that either ought to be so determined. As regards the question concerning the extent of Commonwealth legislative power under s. 51 (i.), I have nothing to add to what the Chief Justice and Williams, Webb and Fullagar JJ. have already said. As regards the question concerning s. 109, I would only say that that is a question which, so far as this Court is concerned, was set at rest a generation ago, and that I can see no possible justification for our treating it now as a question which it would be right for us to resuscitate.

In my opinion there is no feature of the case which provides any reason for granting a certificate.

The applicant has not, in my opinion, advanced any ground of substance for the grant of a certificate under s. 74 of the Constitution and I agree that this application should be dismissed.

The main ground advanced in support of the application was that the Judicial Committee of the Privy Council has granted limited leave to appeal and that the applicant will be hampered in the presentation of its arguments upon that appeal unless it should be at liberty to make submissions upon all of the matters which were argued before this Court, including the inter se question which arose upon the submission that the power of the Commonwealth Parliament to make laws with respect to trade and commerce with other countries does not extend to authorize the making of the Commerce (Meat Export) Regulations. Additionally, it was said, the decision of this Court upon that question was of such far-reaching significance that a certificate should be granted under s. 74.

I am unable to see that the applicant will suffer any substantial prejudice in presenting its arguments on a limited appeal as the result of inability on its part to contest the decision of this Court on the inter se question referred to and, equally, I fail to recognize that the decision on this question carries with it the implications suggested in argument. But even if the grounds of the application, as stated, were soundly based they would not justify the grant of a certificate. It is by no means unusual to find an inter se question closely linked in the course of argument with a question of construction concerning some legislative exercise of power or with a question under s. 109 of the Constitution. Essentially, however, they are separate questions and although an appellant may suffer some tactical disadvantage in not being permitted to present an appeal as a whole this is no reason for the exercise of this Court's discretion under s. 74. To accede to the applicant's submission on this point would, in effect, destroy the operation of that section. I should perhaps add that the applicant does not, in the ultimate analysis of the arguments presented on its behalf, suggest anything more than the possibility of a tactical disadvantage if a certificate be not granted.

I feel that I should add that I am not able to see in the reasons of their Lordships in The Commonwealth v. Bank of New South Wales [1] any grounds for thinking that an appeal limited to the issue which arises under s. 109 of the Constitution may not be decided without pronouncing upon the inter se question decided by this Court. But there may be some force in the contention that the question of the meaning of that section itself raises an inter se question. On this latter point, however, I desire to reserve my views until such time as it arises directly for decision in this Court and the matter has been fully argued.

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. O'Sullivan v Noarlunga Meat Ltd [No 2] [1956] HCA 9

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