Tasmania v Victoria [1935] HCA 4

Tasmania v Victoria [1935] HCA 4 - HCA 1935 case summary — Zoe

[106]

in the latter is, on the face of the Act and the proclamation, far too H.C. or A. remote and attenuated to warrant the absolute prohibition imposed, prea es Chief reliance is placed by the defendants upon three matters; Tasmanra first, the reasoning of the Privy Council in James v. Cowan (1); Weeoauar second, the decision of this Court in Hx parte Nelson [No. 1] (2)3 Gavan Duty and, third, the recognition in sec. 112 of the Constitution of the Byatt'), validity of " the inspection laws of the State." vaca (1) Lord Atkin's observations in James v. Cowan (3) are expressed as dealing with "the power of acquisition " of goods within a State rather than the power of prohibiting their entry into the State. In the case of goods within a State, including, no doubt, goods which have been introduced, the power of acquisition may be used by the State as a protective measure " against famine or disease and the like" or it may be used in order " to place restrictions on inter-State i. commerce." In the latter case sec. 92 will be infringed, in the former case, it will not. It is clear that these observations do not warrant

the inference that the Privy Council intended to declare that a State Parliament was empowered to prohibit the importation of all goods from other States of the Commonwealth merely upon the ground that the Executive Government of the former State suspected that such goods or some of them might spread disease. (2) We consider that the decision in Ex parte Nelson [No. 1] (2) is distinguishable from the present case. Although the terms of the Stock Act of New South Wales might have warranted more drastic action, the actual proclamation which was there held to be offended against, operated to forbid the introduction into New South _ Wales of cattle from a part of Queensland " unless compliance were made with certain stated conditions as to dipping the cattle, obtaining 'Permits to travel and certificates showing full descriptions and brands from Queensland inspectors of stock, sealing of trucks, &c." (4). In other words, the State merely prescribed a method by which the 'particular trade between Queensland and New South Wales should be carried on. It refrained from imposing an absolute prohibition. 1 the Executive Government's discretion was more limited
than in the case of the present Victorian Act because, under the New

[119]

alleging the bare facts I have stated, contains allegations, supported ici, J. by particulars which include subordinate allegations of fact, that the proclamation is not in respect of an actual menace of the intro- duction of disease into Victoria and is not limited to the protection of the State of Victoria from disease but extends to all potatoes from Tasmania whether diseased or not. The first ground logically of demurrer is that the plaintiffs, the State of Tasmania and the Attorney-General, have no locus standi to sue for a declaration of right or other relief against the operation of the proclamation. In my opinion this contention is ill-founded. Sec. 92 of the Constitution _ operates to forbid a State to exercise the powers of government so as to prevent or restrain trade with another or other States. Inter- State trade is the consequence of the exercise of commercial freedom by the people of one State with the people of another. The right to eonduct such a trade is a concern of the public. The public of 'Tasmania enjoy as of a common right the protection secured by sec. 92 of the Constitution against impediments in trading with Victoria. In the assertion of that common right the Crown in right of Tasmania proceeding through its Attorney-General properly represents them. In a matter of public right the Attorney-General sues on behalf of the public. There is no reason why his right to do so should be confined to matters of exclusively domestic concern. On the contrary there is every reason in a Federal system that this inciple should be applied to allow him to maintain proceedings vindicate the rights conferred upon his public by a provision of Constitution. Other considerations may well apply where no tutional question is involved and the disability or disadvantage its citizens of which a State complains is said to involve an excess power conferred only by State law. The second argument relied 'upon by the plaintiff is of this character. The question need not be pursued, because, in my opinion, the proclamation does constitute

[164]

reasoning of the judgment which prevailed. Their Honors say (1): - "Tn a measure it must be conceded that the Stock Act of New South 'Wales does regulate the free flow of inter-State trade and commerce in stock. If there is reason to believe that any infectious or contagious disease in stock exists, the stock may be stopped at the borders of New South Wales, and if it enters it may in some cases be destroyed. The seeming conflict may be resolved, in our opinion, by considering the true nature and character of the legislation in the particular instance under discussion. The grounds and design of the legislation, and the primary matter dealt with, its object and scope, must always be determined in order to ascertain the class of subject to which it really belongs ; and any merely incidental effect it may have over other matters does not alter the character of the law (see Lefroy, Canada's Federal System, pp. 210 et seq., summarizing the effect of Russell v. The Queen (2) and Attorney-General for Ontario v. Reciprocal Insurers (3) ). The Stock Act of New So Wales is not in itself a regulation of inter-State commerce, thougl controls in some degree the conduct and liability of those engag in the commerce (cf. Judson on Inter-State Commerce, 2nd ed., se 33, p. 50). In truth, the object and scope of the provisions are protect the large flocks and herds of New South Wales aga contagious and infectious diseases, such as tick and Texas fever looked at in their true light, they are aids to and not restricti upon the freedom of inter-State commerce. They are a lawfu exercise of the constitutional power of the State." I find myself unable to regard this mode of reasoning as relevant to sec. 92. It assumes that, because the legislation relates to disease in cattle, it cannot relate to trade in cattle. It appears to me quil plain that the statute stopped inter-State trade in cattle as a mea of precaution against the spread of disease. When a State by legi lation forbids importation from another State of an or c commodity, it is difficult to understand what are the furth considerations which must be inquired into under the description "grounds and design of the legislation, the primary matter dealt with, its object and scope " (4). If these words mean no more than

[200]

community, with or without a relator, according to circumstances, to protect the public interests, although there may be no evidence _ of actual injury to the public" (per O'Connor J., Attorney-General _ for New South Wales v. Brewery Employees Union of New South Wales (Union Label Case) (1) ). In the same way, when an injury _ threatened by acts done in this country to the public of a foreign country is of a kind which may be restrained by a Court of equity, the Sovereign of that country may sue in our Court to protect the interests of his subjects. "I take it to be now well settled that a foreign Sovereign may sue in the Courts of this country and that he may sue in this Court on behalf of his subjects " (per Turner LJ., Emperor of Austria v. Day & Kossuth (2)). The question which arose in Attorney-General for New South Wales v. Brewery Employees Union of New South Wales (Union Label Case) (3) was whether the Attorney-General of a State could sue the Common- wealth to protect the public of the State from the execution of an invalid Act of the Commonwealth Parliament, an enactment which fell within the exclusive power of the States. In reference to this question, O'Connor J. said : - "Ina unitary form of government, as there is only one community and one public which the Attorney- General represents, the question which has now been raised cannot arise. It is impossible, therefore, that there can be any decision either in England or in any of the Australian Colonies before Federa- tion exactly in point. But it seems to me that in the working out of the Federal system established by the Australian Constitution an extension of the principle is essential. The Constitution recog- nizes that in respect of the exercise of State powers each State is er the Crown an independent and autonomous community. arly the States must recognize that in respect of the exercise ommonwealth powers all State boundaries disappear and there is but one community, the people of the Commonwealth. The oper representative in Court of each of these communities is its Attorney-General. That principle is, in substance, recognized by 'Sees. 61 and 62 of the Judiciary Act 1903, enacted by virtue of sec. 78 of the Constitution, which provides that suits on behalf of the (1) (1908) 6 C.LR., at pp. 550, 551. 2

At a glance

Court

Decision date

Before

Source

Judgment (208 paragraphs)

Cited By (2)