Grannall v Marrickville Margarine Proprietary Limited
[1955] HCA 6(Decision by: Fullagar J)
Grannall
vMarrickville Margarine Proprietary Limited
Judges:
Dixon CJ
McTieran J
Webb J
Kitto J
Fullagar J
Legislative References:
Dairy Industry Act 1915-1951 of New South Wales - s 22A(1)(b)
Judiciary Act 1903-1950 - s 40
Bank Notes Tax Act 1910 - s 46
Banking Act 1947 - The Act
Fauna Protection Act 1948 (NSW) - The Act
Judgment date: 3 March 1955
Melbourne
Decision by:
Fullagar J
The terms of the relevant legislation are set out in the judgment of the other members of the Court, and it is unnecessary for me to state them again.
I agree that s. 22A of the Dairy Industry Act 1915-1951 (N.S.W.) is a wholly valid enactment, to which full effect must be given according to its tenor. It is not, in my opinion, touched or affected in any way by s. 92 of the Constitution.
I do not think that the real question in this case is correctly stated (as it was stated in the interesting argument of the Solicitor-General for Victoria, intervening by leave) by asking whether s. 22A has a "direct", as distinct from a merely "remote" or "consequential" effect upon inter-State trade or commerce. The word "free" in s. 92 requires, of course, analysis and exposition, but in all the most recent cases the tendency has been to make a direct (and, to my mind, the correct) approach to the particular problem by reference to the very terms of s. 92 itself. I was attempting to state this approach when I said in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1](1):-"The two questions which always arise when s. 92 is invoked are (1) whether the acts for which immunity is claimed possess the character of inter-State trade, commerce, or intercourse, and (2) whether the law from which, immunity is claimed possesses, so far as it affects those acts, the character of an interference with freedom"(2). If, of course, the first question is answered in the negative, the second does not require an answer. This approach is very well-illustrated in The Commonwealth v. Bank of New South Wales(3). In that case both questions were very seriously in controversy, though the first might well have been thought to be much the more difficult question of the two. The first question was ultimately answered by saying that the carrying on of banking business in Australia did possess the character of inter-State commerce. The second question then arose. Since *81 what was authorized by s. 46 of the Banking Act 1947 was a prohibition of the carrying on of a banking business, the second question also called for, and received, an affirmative answer, which led inevitably to the overruling of R. v. Vizzard; Ex parte Hill(1) and the cases which followed and applied it. With the Banking Case(2) may be contrasted the later case of Hospital Provident Fund Pty. Ltd. v. State of Victoria(3). There the activity for which the plaintiff company claimed protection was the carrying on of what was in substance an insurance business. This business was held not to possess the character of inter-State commerce, and the second question therefore did not arise. If it had arisen, it would seem that it must have been answered in favour of the company. But, as it was, it did not arise, and it was quite immaterial that, as an incident of its business, the company's officers engaged in communications and journeyings between one State and another. The activity for which the protection of s. 92 was claimed did not consist of these journeyings and communications as such, but of the carrying on of a business, and the carrying on of that business was not inter-State commerce. One other example may be taken as illustrative of the class of case where the real controversy revolves round the second question. In Fergusson v. Stevenson(4) a company named Booth & Co. (England) Ltd. transported kangaroo skins purchased on its behalf in Brisbane to Sydney, where they were sorted and exported overseas. Clearly the company was engaged in inter-State trade or commerce. But did the Fauna Protection Act 1948 (N.S.W.) interfere with the freedom of that trade? The relevant provision of the Act forbade any person to have in his possession in New South Wales, inter alia, any kangaroo skin. It did not in terms forbid the importation of kangaroo skins from Queensland into New South Wales, which would, of course, have been an obvious interference with freedom of trade. But the company's inter-State trade could not practically or effectively be carried on without some person in New South Wales having possession of skins, if only for a brief period. It was accordingly held that the law from which immunity was claimed did possess the character of an interference with freedom of trade, and that s. 92 gave immunity.
If the present case is approached in the same way, it seems to me clear enough. The activity for which immunity is claimed is the manufacture of margarine. It is impossible to say that this activity *82 possesses the character of inter-State trade or commerce, and that is the end of the case, just as the same consideration was the end of the case in Graham v. Paterson(1).
In order to bring the present case within the protection of s. 92, it was necessary for the defendant to put forward a conception of inter-State trade and commerce which, as my brethren have observed, has been put forward in several recent cases but has never been accepted. The substance of that view seems to be that operations such as production or manufacture are immune from legislative interference so long as it is possible that the producer or manufacturer may dispose of his product in inter-State trade, or at least if he intends to dispose of it in inter-State trade. I agree with what the Chief Justice and McTiernan, Webb and Kitto JJ. have said on this subject. There is no decision which gives any countenance to such a view. Section 92 protects only activities which themselves possess the character of inter-State trade, commerce, or intercourse.
I have not attempted to form any opinion as to the validity or effect of s. 22C of the Act. If the common law doctrine of severability had been applicable to the case, it might have been necessary to do so. But s. 2 (2), which was introduced by the same Act which introduced ss. 22A, 22B, 22C and 22D, makes it plain, in my opinion, that the validity and operation of s. 22A cannot be affected by any vice which may possibly be some day in a concrete case discovered in s. 22C.
The questions in the case stated should, in my opinion, be answered-(1) No: (2) No.