Uebergang v Australian Wheat Board

Uebergang v Australian Wheat Board - [1980] HCA 40 - HCA 1980 case summary — Zoe

[19]

Before proceeding further, it is convenient to indicate the facts as revealed in the pleadings out of which the present proceedings have arisen. The first plaintiffs carry on, under the name of C. and J. Uebergang, the business of wheatgrowers at "Copperfield", Crooble, in the State of New South Wales. The second plaintiff carries on business as a manufacturer of poultry feed containing wheat at Mount Cotton in the State of Queensland. By a contract in writing dated 6th December 1978, the second plaintiff purchased from the first plaintiffs for use in manufacturing such poultry feed at Mount Cotton certain wheat then growing at "Copperfield". Since the contract was entered into, the first plaintiffs have harvested the wheat the subject of the contract. It is separately stored by the first plaintiffs at "Copperfield" pending delivery to the second plaintiff to fulfil the contract between the parties. Whilst the plaintiffs desire to complete performance of the contract and the second plaintiff desires to receive and use the wheat in the manufacture of poultry feed at Mount Cotton, the wheat is none the less subject to certain notices which were published by the defendant in the Commonwealth of Australia Gazette on 21st November 1978. These notices apparently were published in reliance upon the statutes under attack in the case and presumably also upon comparable legislation of the Commonwealth. Those statutes purport, inter alia, to permit the defendant to require the delivery to it of all wheat in, amongst other States, New South Wales and Queensland, with minor presently irrelevant exceptions, including wheat destined to move interstate. No doubt this power of direction and acquisition is given to the Board to enable it alone to market wheat in Australia and overseas. The notices accordingly were published as a means of enabling the defendant alone to have dealings in the subject wheat. Their form and purpose, as indeed of the statutes in question, were in accordance with Sir Hayden Starke's language in Peanut Board v. Rockhampton Harbour Board [2] :

[31]

I have pointed out elsewhere, but I would like here to repeat, that to accept the validity of laws truly regulatory in nature is not to qualify the freedom of interstate trade, commerce and intercourse. Indeed, as I remarked in what I wrote in Clark King [8] , a regulatory law properly accepted as such is an assertion or demonstration of that freedom rather than a denial or a qualification of it. As has often been said, the idea of free speech offers a very good analogue of what is meant by freedom in relation to interstate trade, commerce and intercourse. A person enjoys freedom of speech though he may not defame his neighbour. He may not defame not because his freedom of speech is qualified but because in the very nature of freedom of speech there resides the limitation against defamation. Defamatory statement is not an exercise of freedom of speech, but rather it is an assertion of or claim to unbridled licence. Another analogy is freedom of passage on a highway. A person has freedom of passage on the highway though some traffic laws which do no more than secure the protection of one traveller, including pedestrians, from damage by another traveller on the road must be observed. Mutual adjustments so that each may safely use the road are not qualifications of freedom of travel or of passage: rather, they are indicative of it. So it is in the case of trade, commerce and intercourse: it is no qualification of or limitation upon the freedom of interstate trade, commerce and intercourse that a trader may not bring a diseased cow into the marketplace from another State: nor is it a qualification of or limitation or impairment of the freedom of interstate intercourse that a person may not come amongst his fellows in another State suffering from a communicable disease. These inhibitions reside in the concept of freedom as opposed to licence. They do not represent qualifications of the relevant freedoms. Thus, laws dealing with diseased items of trade and commerce or diseased persons may not impair freedom of trade or of intercourse. They may not do so if in operation they leave trade, commerce and intercourse free, as such freedom is properly understood in a civilized society.

[70]

Having regard to something which is said in my brother's reasons in Clark King I should add that the views which heretofore have been accepted as to the meaning and operation of s. 92 have not depended upon the acceptance of some particular theory of political economy, just as I would expect that any attempt to qualify the constitutional guarantee would not be made in an attempt to follow some other and perhaps more recent, and, because of its recency, thought to be a more acceptable, theory of political economy. Of course, the Constitution needs to be applied in a changing world. But, in my opinion, whilst the denotation of its language may enlarge and come to embrace new manifestations, the connotation of its language remains constant. What falls for construction are the words of the Constitution: to them, meaning must be attributed and, being attributed, it remains constant. Thereafter, those words, as construed, must be applied. And, of course, they are to be applied in the situation of current times. Doubtless, on occasions, the width of their applicability will increase. The undoubted fact is that the application of the Constitution to new events and in new times can see a widening of the area which the language of the Constitution properly construed can cover or effect. But that undoubted circumstance affords no justification for the Court to alter the Constitution or to alter the connotation of the language in which it is expressed. The Court has no function to attempt to "modernise" the Constitution or its operation, if that is what some may think ought to be done. If there is to be a change, it is to be done, as I have earlier remarked, by the Parliament and the electors through s. 128 and not by decisions of this Court. Further, in ascertaining the meaning of the language of the Constitution, the reasons for its choice can only have relevance if ambiguity exists in the language employed and must be resolved. For my part, there is no ambiguity in the meaning of the words of s. 92, though the application of the accepted meaning may involve difficulty. It is only in this application that the Constitution is to be applied in a changing world.

[92]

The opposing contentions on the question of the "public" as opposed to the "private" character of s. 92 are sufficiently expressed in the reasons of Mason and Jacobs JJ. on the one hand, and of Barwick C.J. on the other hand, in Clark King [17] . The joint reasons of Mason and Jacobs JJ. are an application of the reasoning employed separately by each of those Justices in earlier cases: Pilkington v. Frank Hammond Pty. Ltd. [18] per Mason J. and per Jacobs J. [19] ; and North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [20] per Mason J. However, both the competing views are in our respectful opinion attended with logical difficulties. On the one hand, if the public character of s. 92 is pressed to its logical conclusion, leaving individual rights to arise only as a matter of consequence, and in subordination to "the interests of the community" (Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [21] per Mason J.), by reference to what criteria will a citizen ever be able to discern a right to protect his trade against the enactment of a democratically elected legislature? On that approach it would seem that every statute would be entitled, at least at the time of its enactment, to a presumption that it is an Act for the peace, order and good government of the community, and would therefore be subject to a conclusion prima facie that it would not be affected by s. 92. On the other hand, the Chief Justice, when espousing the individual rights doctrine, readily acknowledges that there are fields of regulation open to the legislature as being inherent in the nature of freedom because they are directed to the mutual accommodation of the rights and obligations of individual traders (Samuels v. Readers' Digest Association Pty. Ltd. [22] . But in many cases, with all respect, these examples of proper legislative activity may be characterized as giving expression to the public character of s. 92. More recently, his Honour has made the point in words which admit of such a characterization (Permewan Wright [23] ):

[151]

The plaintiffs in their amended statement of claim alleged that the first plaintiffs carried on the business of wheat growers in New South Wales and that they had entered into a contract in writing with the second plaintiff, Darwalla Milling Co. Pty. Ltd., a company which carried on business at Mt. Cotton in the State of Queensland as a manufacturer of poultry feed containing wheat, to sell certain wheat then growing in a specified area for use in manufacturing poultry feed. The contract which was annexed to the statement of claim contained a clause which was expressed to provide that the property in the wheat passed to the purchaser at the time of the contract, but nothing turns upon that provision since the statement of claim further alleged that the wheat was duly harvested and stored separately by the first plaintiffs pending delivery in accordance with the contract. It was thereby appropriated to the contract from the moment of its coming into existence as separate property. The contract provided that the vendors should harvest and store the wheat and deliver it to the purchaser at its factory at Mt. Cotton at such times and in such quantities as the purchaser shall determine. The statement of claim also alleged that on 21st November 1978 the defendant published in the Gazette certain notices pursuant to the Wheat Industry Stabilization Acts 1974 of each of the States and the Commonwealth which purported to authorize the defendant to require the delivery to it of substantially all the wheat in Australia and to enable it and no one else to market wheat in Australia and overseas. The notice with respect to the State of New South Wales was given pursuant to the Wheat Industry Stabilization Act, 1974 N.S.W. and required all wheat in or coming into the possession of any person in New South Wales between 1st November 1978 and 30th September 1979 to be delivered to the Board or a receiver licensed by it. The defence did not admit the nature and location of the second plaintiff's business nor the making of the contract, the harvesting or storage of the wheat or the passing of the property therein to the second plaintiff.

[202]

From these quotations from the Banks Case [3] there emerge two problems in the application of those principles quite apart from what is meant by the reservation. There is first the distinctions between direct and remote and between regulation and prohibition. These do not appear to me to be mutually exclusive but to involve a least some degree of overlap. A prohibition of some particular kind of trade, commerce or intercourse can scarcely be other than "direct" but regulation is not necessarily remote and may be "direct". Amongst earlier phrases and synonyms it may still often be necessary and useful to ask whether the relevant law imposes a "burden" or a "significant burden" on interstate trade. To do so it must no doubt be "direct" but that which may in some contexts be described as "regulatory", as distinct from "prohibitive", may nonetheless constitute a very real burden. Moreover there are other tests which appear to be concurrent with those which have been formulated in the Banks Case and to operate independently and in addition to those tests. Thus it remains undoubted that a law which discriminates against, in the sense of treating differently, intrastate trade and interstate trade, whether it be a federal or a State law, contravenes s. 92 and is invalid. If it does thus discriminate it matters not that it is regulatory and not prohibitive and it remains elementary that the imposition of a tax or monetary impost at the border, whether it be capable of being classified as prohibition or regulation, does offend against s. 92. Their Lordships in the Banks Case were not, as it seems to me, intending what they said to be exclusive, nor did they intend to convey that the meaning of "regulation", in the context in which they use that expression, is equivalent to a law "with respect to interstate trade". Many laws which would fall within the scope of the expression in s. 51 (i) of the Constitution, i.e. laws with respect to trade and commerce among the States, will nonetheless be contrary to s. 92 and invalid. That this is so is demonstrated by the judgments of Fullagar J. and Kitto J. in Hughes and Vale Pty. Ltd. v. New South Wales [4] . Kitto J.'s observation was repeated in Breen v. Sneddon [5] and was subsequently adopted by the Privy Council in Freightlines and Construction Holding Ltd. v. New South Wales [6] , which is referred to, along with other cases to the same effect, in the judgment of Stephen J. in Clark King [7] in the passages with which I have already expressed my agreement.

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