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LTD. v. DAIRY INDUSTRY AUTHORITY OF N.S.W. ; CARROLL'S FOOD MART PTY. LTD. v. DAIRY INDUSTRY AUTHORITY OF N.S.W. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1975/45.html" title="View Case" class="autolink_findcases_inserted">[1975] HCA 45</a>; (1975) 134 CLR 559 Constitutional Law (Cth) High Court of Australia Barwick C.J.(1), McTiernan(2), Menzies, Gibbs(3), Stephen(4), Mason(5) and Jacobs(6) JJ. (THE RIGHT HONOURABLE MR. JUSTICE MENZIES died before judgment was delivered in this case.) </center>CATCHWORDS Constitutional Law (Cth) - Freedom of interstate trade and commerce - First sale by importer - Sale by agent - Whether part of interstate trade - Statutory control of milk industry in New South Wales - Vesting of milk in Dairy Authority - Licensing of dairymen and vendors - Prohibition of sale or supply of milk not pasteurized in New South Wales - Sales in New South Wales by Victorian dairy company and New South Wales agent of milk pasteurized in Victoria - Direct burden on sale - Direct burden in importation for purpose of sale - Prohibition or regulation - Whether scheme reasonably necessary to secure public health - The <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> (63 & 64 Vict. c. 12), <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> - Dairy Industry Authority Act, 1970 (N.S.W.), ss. 23, 33; Pure Food Act, 1908 (N.S.W.), s. 54 - Pure Food Regulations, reg. 79(10)(c). HEARINGSydney, 1974, August 27-28; Melbourne, 1975, October 17. 17:10:1975 CASES STATED pursuant to s. 18 of the Judiciary Act 1903-1975 (Cth). DECISION1975, October 17. The following written judgments were delivered: - BARWICK C.J. The Supreme Court of New South Wales (Wootten J.), pursuant to these matters for the opinion of this Court in actions commenced in the Supreme Court of New South Wales in its invested jurisdiction. The questions asked in each case are substantially the same and raise the validity and applicability of regulations made under the Pure Food Act, 1908 (N.S.W.) and of sections of the Dairy Industry Authority Act, 1970 (N.S.W.), in each instance having regard to the provisions of s. 92 of the Australian <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. (at p570) 2. The facts stated in each case stem from the same basic situation. The cases were heard together by the whole Court before the death of our late brother Menzies. The arguments for the parties raised some fundamental issues. It will be necessary in expressing my reasons for the answers I propose, to range somewhat generally over the construction and application of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92.</a> My reasons will be expressed to cover both cases. (at p571) 3. I shall first relate the basic facts which appear in the stated cases. North Eastern Dairy Co. Ltd. ("the first plaintiff") is a company incorporated in the State of Victoria which carries on the business of pasteurizing, homogenizing and otherwise processing milk and of selling and distributing such milk for human consumption, and also of selling and distributing milk products. It has its principal processing plant at Kiewa in the State of Victoria, a place approximately seventeen miles south of the southern bank of the River Murray, which is the border between the States of New South Wales and Victoria. It maintains depots at various locations from which its treated milk and its milk products are distributed. It has one such depot in Wodonga in the State of Victoria and another in Wagga Wagga, a city in the southern part of the State of New South Wales. For many years past it has supplied such treated milk and milk products to persons in the city of Albury in the State of New South Wales, and to persons in the environs of that city. It makes door to door sales of such treated milk and of milk products daily through each week, Monday to Saturday, to householders in Albury, using its own employees and vehicles for that purpose. Those vehicles bring the milk and milk products from its depot in Wodonga to Albury for the purpose of effecting those sales. (at p571) 4. The first plaintiff also delivers treated milk and milk products from its Victorian depot in its own vehicles to several shopkeepers in Albury who act as its agent for the disposal of such milk under written agreements, of which a specimen is annexed to the first of the stated cases. Carrolls Food Mart Pty. Ltd. ("the second plaintiff"), a company incorporated in the State of Victoria, conducts two supermarkets in Albury through which, under the agency arrangements, the first plaintiff's treated milk and its milk products are sold. The terms of the agreement make it clear that the sales thus made are sales by the first plaintiff through the agency of the second plaintiff. (at p571) 5. The first plaintiff also sells its treated milk and its milk products through shopkeepers in Junee, a town in New South Wales further north than Wagga Wagga. These shopkeepers act for the first plaintiff under agency agreements of which a specimen is annexed to the first case stated. This milk and these milk products are brought in the first plaintiff's vehicles from Victoria to its depot in Wagga Wagga and there transhipped into other of the first plaintiff's vehicles for transport to the shopkeepers in Junee. Again, the sales by the shopkeepers, having regard to the terms of the relevant agreements, are sales by the first plaintiff through the agency of the particular shopkeeper. The treated milk and milk products are in every case supplied and sold for human consumption. The first plaintiff's business in thus selling its treated milk and its milk products is conducted in competition with milk vendors registered under the provisions of the Dairy Industry Authority Act. These vendors sell milk which has been pasteurized in New South Wales in pursuance of certificates issued under that Act and in accordance with the regulations under the Pure Food Act. (at p572) 6. It will now be convenient to describe the operation of the Dairy Industry Authority Act, 1970 ("the Act") and of the regulations made under the Pure Food Act. (at p572) 7. Part II of the Act establishes a statutory corporation called the Dairy Industry Authority of New South Wales ("the Authority"). Its role is generally described in s. 17 as "the regulation and control of the quality, supply and distribution of milk for the purposes of ensuring the wholesomeness and purity of milk and dairy products in the interests of public health". Detailed powers given to the Authority include powers of inspecting and sampling milk (s. 18), of directing the actions of dairymen or milk vendors (s. 18), of engaging directly in the trade and manufacture of milk and milk products (s. 19), to carry out research on improving the dairy industry (s. 20), to delegate the exercise of its powers (s. 21) and to acquire land and undertakings (Pt VI). The Authority is given control over milk, which becomes vested absolutely in the Authority upon being supplied (s. 23). No definition is given of the words "supply" and "supplied", as to "milk supplied to the Authority": see discussion in Andaloro v. Wyong Co-operative Dairy Society Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/61.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 61</a>; (1966) 119 CLR 278 . However, I am of opinion that, in relation to the facts of the present cases, the treated milk and milk products from Victoria were supplied in New South Wales for human consumption there when they entered New South Wales from Victoria in the first plaintiff's vehicles, whether destined for sale in Albury or Junee. At that point of time, assuming validity of the Act, the milk would become vested in the Authority. The Authority may choose to accept delivery of the milk on terms fixed by it (s. 24), and make payments to the dairymen (s. 25), or the Authority may refuse to accept delivery of the milk. Where milk supplied in New South Wales is not accepted by the Authority, it remains vested in the Authority and the supplier of the milk may not sell or dispose of it for human consumption or for use by man. The Authority is given sweeping protection from civil action (see s. 26(5), s. 29, s. 32, s. 81), and may even conclusively certify fictitious facts about any delivery to it (s. 26). Registration of dairymen and milk vendors is made compulsory (s. 33) and the Authority has a wide discretion as to whom it issues certificates or registration (s. 34) and as to the conditions to be attached to such certificates (s. 33(6)). It should be observed that the Authority itself does not retail in milk. Section 35, which came into effect on 1st January 1972, makes it an offence to sell other than to a milk vendor, or to a dairy produce factory within the meaning of the Dairy Industry Act, 1915, milk which has not been pasteurized within the meaning of the Pure Food Act and regulations made thereunder, or treated in the prescribed manner. By reason of s. 14A of the Interpretation Act, 1897-1972, s. 35 relates to the selling of milk in New South Wales. Part IV of the Act provides for the continuation and extension of the existing marketing quota system. Part V establishes a Dairy Industry Price Tribunal to investigate and recommend prices in the industry, which prices are then fixed by order of the Governor. A Dairy Industry Artificial Breeding Advisory Board is established in Pt VII. The remaining provisions of the Act complete the machinery of the scheme. Finally, the Minister is given power in s. 7 to exempt people, premises, milk, or parts of the State from any provisions of the Act (except s. 35), but may not exempt a person except as to milk obtained from a dairy herd certified by the Chief of the Animal Husbandry Division of the Department of Agriculture to be free of tuberculosis and other disease, to which herd no animal has been admitted subsequent to such certification: see s. 35(2). This conspectus of the Act indicates the scope and design of the scheme it establishes controlling all aspects of the dairy industry in New South Wales. (at p573) 8. Regulations were made under s. 54(1) of the Pure Food Act. Regulation 79(10) (c), published on 1st June 1973, prohibits as and from 1st July 1973 the supply or sale of pasteurized milk for human consumption other than that processed by a holder of a certificate of registration under the Act that authorizes the holder to carry on the activity of pasteurizing milk. By definition, "sell" includes "have in possession for sale, forward or deliver for sale", and "selling", "sale" and "sold" have corresponding meanings (s. 4(1)). It was contended that this regulation was not authorized by s. 54(1) of the Pure Food Act. However, I am of opinion that it was so authorized being fairly regarded as a regulation to secure wholesomeness, cleanliness and freedom from contamination and adulteration of food. (at p574) 9. Regulation 24 provides the method by which milk is to be pasteurized. I may note in passing that the <a href="/cgi-bin/viewdoc/au/legis/vic/hist_act/mpa1958242/" class="autolink_findacts">Milk Pasteurization Act 1958</a> (Vict.) provides for the licensing of premises for the pasteurization of milk and defines the method by which it shall be pasteurized. It is not suggested that such minor differences between the method prescribed by the regulations and that prescribed by the Victorian Act have any consequence so far as concerns the effectiveness of the pasteurization or as concerns the quality and wholesomeness of the treated milk. The first plaintiff holds the required licences under the Victorian Act and pasteurizes its milk in accordance with the requirements of that Act. (at p574) 10. The first plaintiff at material times also held current certificates under the Act as a milk vendor in relation to the areas in which it sold milk in New South Wales but those certificates were each subject to the condition that the milk to be sold be obtained from named registered pasteurizers in New South Wales. The second-named plaintiff at material times held certificates of registration as a milk vendor in relation to each of its supermarkets but, as from February 1974 when the conditions of such certificates were varied, those certificates were limited to the sale of milk which had been pasteurized by a registered pasteurizer, i.e. pasteurized in New South Wales. (at p574) 11. In March 1974 the Authority threatened the cancellation of certificates of registration as a milk vendor of both the first and second plaintiffs unless, in the case of the first plaintiff, it confined its sales of milk to milk pasteurized by registered pasteurizers, i.e. in New South Wales; and, in the case of the second plaintiff, unless it ceased to sell milk obtained from the first plaintiff. These threats by the Authority resulted in the commencement of actions in the Supreme Court to test the validity of the Authority's actions and threatened actions. Hence the two stated cases. (at p574) 12. The questions asked in each case can with one exception be conveniently summarized in the following manner: 1. Is reg. 79(10) (c) of the Pure Food Regulations made under the Pure Food Act, 1908 (N.S.W.) void for either and, if so, for which of the following reasons: (a) that it is contrary to the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>; (b) that it is ultra vires the regulation making power given by s. 54 of the Pure Food Act? 2. Are the provisions of reg. 79(10) (c) of the regulations made under the Pure Food Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to the sales of the first plaintiff referred to in pars 6, 7 and/or 8 of the first stated case, or to the sales of the second plaintiff referred to in par. 4 of the second stated case? 3. Are the provisions of s. 23 of the Dairy Industry Authority Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to milk supplied and sold in the manner described in pars 6, 7 and/or 8 of the first stated case, or to the sales of the second plaintiff referred to in par. 4 of the second stated case? 4A. Is the condition numbered 3 to which the first plaintiff's Certificate of Registration No. V1689 under the Dairy Industry Authority Act, 1970 was purportedly made subject by virtue of the variation dated 20th June 1973 by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: (a) invalid, or (b) inapplicable to the sales of the first named plaintiff referred to in pars 6, 7 and/or 8 of the first stated case? 4B. Is the condition to which the second plaintiff's Certificates of Registration S38794 and S38795 under the Dairy Industry Authority Act, 1970, were purportedly made subject by virtue of the variations dated 22nd February 1974, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: (a) invalid, or (b) inapplicable to the sales of the second plaintiff referred to in par. 4 of the second stated case? 5. Is either the first or second plaintiff, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> entitled to sell milk in New South Wales in the manner described in pars 6, 7 and/or 8 of the first stated case, or in par. 4 of the second stated case, without being the holder of a certificate of registration as a milk vendor that authorizes it to do so pursuant to s. 33 of the Dairy Industry Authority Act, 1970? An additional question is asked in the first stated case, namely: 6. Is the restriction of the plaintiff's Certificate of Registration No. V7712 under the Dairy Industry Authority Act, 1970, which purports to restrict the milk which the plaintiff is authorized to sell, to milk that has been pasteurized by Haberfields Milk Pty. Ltd., Albury, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: (a) invalid, or (b) inapplicable to: <blockquote> (i) milk supplied and sold in the manner described in par. 6 of the stated case; (ii) milk supplied and sold in the manner described in par. 7 of the stated case; (iii) milk supplied and sold in the manner described in par. 8 of the stated case. (at p576) </blockquote> 13. It is quite apparent from the review of the Act and regulations that if s. 23 is valid, the treated milk, so soon as the first plaintiff brings it across the border between New South Wales and Victoria in the course of its business for the purpose of selling it in New South Wales for human consumption or use there, becomes vested in the Authority. If the Authority chooses to accept it, which on the facts it would appear to be unwilling to do, the first plaintiff loses all control of it and may only receive from the Authority the price the Authority fixes for the quantity the Authority certifies that it has accepted. If, on the other hand, the Authority declines to accept the milk and milk products, the first plaintiff, though deprived of the property in the milk and milk products, would be able to dispose of the milk or milk products subject to the written direction of the Authority in some manner otherwise than for human consumption or use as milk or for use in the production or manufacture in New South Wales of dairy products, which are defined as any substance ordinarily used as a food for humans, not being milk, in the production or manufacture of which milk is used, or any substance produced or manufactured from milk is used. In other words, the milk could not be in any way disposed of as milk for human consumption or use. (at p576) 14. Further, if s. 23 does not operate to expropriate the first plaintiff's milk and milk products on their entry into New South Wales, s. 35 would prevent the sale of that milk and those milk products by the first-named plaintiff to its customers either by itself or through its agents. (at p576) 15. In any case, reg. 79(10) (c) would prevent any sale of the first plaintiff's milk and milk products for human consumption or use in New South Wales, even to a milk vendor or dairy product factory referred to in s. 35(1), because they are not pasteurized as required by regs 24 and 79(10) (c). The pasteurized milk could not be again pasteurized without damage to it: that seems to have been conceded in argument. (at p577) 16. The fundamental facts which emerge from my summary of the stated cases and from this conspectus of the relevant statutory provisions may briefly be stated thus. The first plaintiff, by a transport operation, undertaken in the course of its interstate trade in treated milk and in milk products, brings such milk and milk products from Victoria into New South Wales for sale in New South Wales by one or other of the three methods of disposal which I have described. There can be no doubt whatever, in my opinion, that the transport of the milk and milk products from Victoria to New South Wales for sale in New South Wales is part of the first plaintiff's interstate trade and commerce. It is quite clear that when the milk and milk products enter New South Wales they are committed to interstate trade and commerce. Further, in my opinion, the first plaintiff's operation of interstate trade and commerce is not complete until the milk and milk products so introduced into New South Wales have been sold by it or on its behalf. It follows, in my opinion, that the activities of the second plaintiff as I have described them form part of the first plaintiff's interstate trade in the treated milk and milk products. But, in any case, to forbid the agent to sell the first plaintiff's milk and milk products at least places a burden upon the first plaintiff's interstate trade. Accordingly, if s. 92 protects the first plaintiff's interstate trade in such milk and milk products, it will protect the activities of the second plaintiff in its handling of such milk and milk products as agent of the first plaintiff up to and including the sale and delivery of that milk and those milk products on behalf of the first plaintiff. (at p577) 17. In my opinion, the Act on its proper interpretation cannot be confined to operations in relation to milk produced in New South Wales. It clearly operates, in my opinion, to make illegal the possession and sale in New South Wales of milk produced in Victoria and brought from that State for sale in New South Wales. It does so, along with milk and milk products produced in New South Wales. But the generality of its operation will not save it from invalidity in respect of interstate trade, that trade being within its purview. The Act thus operates of its own force upon the plaintiff's activity in bringing his milk into New South Wales from Victoria and in consequently possessing it in New South Wales with a view to its sale in that State. Further, the expropriation of the milk and milk products so soon as introduced into New South Wales is clearly for the purpose of preventing their sale and supply in the ordinary course in New South Wales as milk or milk products for human use and consumption. That purpose includes and is intended to include the sale and supply of the milk in the course of interstate trade and commerce. (at p578) 18. It is, in my opinion, quite apparent that the sole purpose of any attempt by expropriation or by prohibition of sale to prevent the entry into New South Wales from Victoria of milk and milk products is the protection of the monopoly of supply which the producers in New South Wales of milk and milk products and the Authority itself would consequently enjoy: in other words, the grounds of the exclusion are economic. To use Sir John Latham's phrase in Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. ("the Milk Case") <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 what, in my opinion, is sought by the statutory provisions, so far as concerns milk produced and pasteurized outside New South Wales is a "cordon economique". No question of a "cordon sanitaire" arises in these cases. Nothing in the Act or in ss. 23 and 24 suggests that the expropriation is designed as a means and particularly as the only practical means of protecting the public of New South Wales from the dangers of an impure commodity. Rather, the language used in relation to the earlier Milk Act, 1931-1936 is appropriate: "This Act allows a board to give a monopoly of the sale of milk ... to New South Wales producers ... They alone will be permitted to earn a living by producing and selling milk" (1939) 62 CLR, at p 123 . (at p578) 19. No doubt one of the purposes of the Act as a whole is to secure the wholesomeness and freedom from contamination of milk for human consumption and use. But the possession and overall detailed control of the commodity and of those who produce and handle it is not the only practicable way of securing that purpose. So far as intrastate activities are concerned, the provisions of the Act are within the competence of the State, whether or not less stringent or less comprehensive measures could secure the public against an unwholesome and contaminated commodity. Other considerations arise, however, in relation to interstate trade in milk and milk products. In that case, measures to ensure wholesomeness and freedom from contamination must be reasonable and no more onerous in their impact on interstate trade than may be regarded as reasonably necessary to achieve that purpose. It cannot properly be said, in my opinion, that expropriation of wholesome and uncontaminated milk or a prohibition on its sale are reasonably necessary to ensure that what is sold is wholesome and uncontaminated. (at p579) 20. There can be do doubt whatsoever, in my view, that the movement of the first plaintiff's milk and milk products from Victoria to New South Wales was part of a commercial transaction and itself constituted a part of interstate trade and commerce. Further, the possession for sale and the sale of the milk in New South Wales as the purpose and end point of that interstate commercial movement would be itself, in my opinion, part and parcel of that interstate trade. Indeed, that purpose established the commercial character of the transportation. (at p579) 21. It is also incontrovertible, in my opinion, that the statutory provisions, s. 23, s. 24 and s. 35 of the Act, aided by regs 24 and 79(10) (c) made under the Pure Food Act, of their own force, in the several respects I have mentioned, effectively prevent the plaintiffs from carrying out the interstate trade and commerce which I have described. It is not suggested that there is anything in the nature, quality or condition of the first plaintiff's treated milk and milk products which in any way renders them unfit or unsuitable for human consumption, or that there is anything in the conduct of the plaintiff's relevant activities of a fraudulent or dishonest nature. (at p579) 22. The statutory provisions thus operate to prevent the sale by the trader of the goods he brings into the second State for sale. Long since, in Duncan v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1916/67.html" title="View Case" class="autolink_findcases_inserted">[1916] HCA 67</a>; (1916) 22 CLR 556, at p 621 , as we are reminded by Sir John Latham in the Milk Case (1939) 62 CLR, at pp 122-123 , Sir Isaac Isaacs described as a most obvious infringement of s. 92 a prohibition on sale by the importer of goods brought interstate for sale. Sir Isaac Isaacs said <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1916/67.html" title="View Case" class="autolink_findcases_inserted">[1916] HCA 67</a>; (1916) 22 CLR 556, at p 621 : <blockquote> "The moment the State says 'You may keep but shall not sell your merchantable goods, not because they are deleterious, but because they are not', then trade and commerce are directly prohibited; and though this is still perfectly competent to the State so far as relates to its purely internal trade, it is, in my clear opinion, invalid if s. 92 is to have any operation at all - as to inter-State trade." (at p579) </blockquote> 23. Any endeavour by a State to preserve for its citizens a monopoly of dealing in any particular commodity would be an obvious infraction of the freedom of interstate trade. Such an attempt must be clearly distinguished from action on the part of a State to ensure that unhealthy, impure goods or dishonest practices are not introduced into the State or indulged in there. With that matter I have already dealt. For any State to attempt to preserve to its own citizens the right to deal in merchantable goods which were not deleterious and to do so by honest dealings is one of the obvious infractions of s. 92. As Sir Wilfred Fullagar pointed out in McCarter v. Brodie <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1950/18.html" title="View Case" class="autolink_findcases_inserted">[1950] HCA 18</a>; (1950) 80 CLR 432, at p 499 , "The protection of the industries of one State against those of another State was, of course, one of the primary things which s. 92 was designed to prevent ..." (at p580) 24. But, subsequent to the decision in Duncan v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1916/67.html" title="View Case" class="autolink_findcases_inserted">[1916] HCA 67</a>; (1916) 22 CLR 556 , some decisions of the Court diverged, as I think, from such a valid and basic principle in the interpretation and application of s. 92. They did so, in my opinion, because, rather than find the permitted exceptions from the disabling provisions of s. 92 in the very concept itself of freedom, the Court, regarding the constitutional prescription as freedom from something, sought to define, or provide, criteria for the identification of that from which the section required the interstate trade and commerce to be free. (at p580) 25. Before entering a brief discussion of this tendency and its consequences, I should deal with the question whether s. 23 can validly operate to expropriate the first plaintiff's milk and milk products upon their entry into New South Wales. They were then the subject of an operation of interstate trade: or, in the language of some of the relevant decisions, they were then committed to that trade. It is well settled that an expropriation can offend s. 92. Whether or not it does so in particular cases can give rise to difficulty. But, in this area of discourse, one thing is certain, namely, that goods actually committed to an interstate transaction cannot be expropriated, there being no question of unwholesomeness of the commodity or dishonesty in the manner of the transaction. In my opinion, s. 23 cannot validly operate to expropriate the first plaintiff's milk and milk products. (at p580) 26. I return to the discussion of the proper application of s. 92. Various attempts have been made to provide a criterion or a formula by which infringing statutory provisions may be identified. An early idea was that the subject matter of the law would be decisive, an idea derived from the period when it was thought that s. 92 did not bind the Commonwealth. But, after the decision in James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 CLR 1 , subject matter could not provide an answer to the question whether a statutory provision was in breach of the constitutional guarantee. Section 92 bound both Commonwealth and States alike. There then developed the notion that the question whether statutory provisions infringed s. 92 could be decided by determining the purpose of the State in enacting them. A kindred notion was that invalidity would ensue only where some purpose inimical to interstate trade can be discovered in the legislation. The emergence of these ideas can be seen in the reasons for judgment in the Milk Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases">[1939] HCA 28</a>; (1939) 62 CLR 116 , a case which I will later discuss. But these ideas have been exploded and clearly are no longer acceptable. (at p581) 27. After the many vicissitudes through which the application of s. 92 has passed, we are left with a statement by the Privy Council in Bank of New South Wales v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 that it is what the law does in the circumstances in which it was intended to operate, provided that merely remote consequences are ignored, which will determine whether the law infringes s. 92. Having applied the particular statutory provision according to its proper construction to the relevant situation in fact, the question is whether its operation thus explicated, leaves trade and commerce free. It will do so although it produces an impact upon interstate trade if its provisions do not in their nature go beyond the adjustment of the rights of man and man in a free and legally regulated society. The question is not from what is the interstate trade and commerce to be free: nor is it from what kinds of statutory provisions it is to be free. The statutory provisions must not infringe the freedom of interstate trade and commerce. The concept of freedom and the word "free" carry within themselves their own limitation. Perhaps the analogy of freedom of speech cannot be bettered. A man enjoys freedom of speech though he may not defame his fellows. The relationship of one man to another in a civilized society furnishes the basis for the conclusion that inability to defame without consequence is not an impairment of freedom, properly understood. The freedom of the individual to engage in interstate trade and commerce is included in the freedom of interstate trade and commerce which the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> guarantees. Thus laws to ensure public health and honesty and fairness in commercial dealings form examples of laws which the concept of freedom of trade and commerce does not deny. Consequently, laws, e.g., to secure public health, must have no impact which is reasonably unnecessary upon the activities of the individual in interstate trade and commerce. The protection of the individual is not merely incidental or peripheral to the enforcement of the constitutional guarantee. Indeed, whilst not exhausting the operation of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a>, it is central to it. (at p582) 28. I have expressed myself as above in several earlier cases, e.g. Harper v. Victoria <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/26.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 26</a>; (1966) 114 CLR 361 , Samuels v. Readers' Digest Association Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1969/6.html" title="View Case" class="autolink_findcases_inserted">[1969] HCA 6</a>; (1969) 120 CLR 1, at pp 14-18 , and S.O.S. (Mowbray) Pty. Ltd. v. Mead [1972] HCA 18; (1972) 124 CLR 529, at pp 543-552 . I have taken the opportunity, which consideration of the instant cases has afforded me, once more to traverse the ground covered in my reasons and those of my brother Justices who participated in the decision of those cases. With all due respect to those who expressed a contrary opinion to that which I have expressed, I remain convinced of the fundamental correctness of what I there said. However, I shall take this opportunity to expand on one or two aspects of the meaning and operation of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92.</a> This will involve reference to the latest criteria suggested for identifying those statutes which alone are said to infringe the constitutional guarantee. (at p582) 29. But, first, I ought to examine the case of Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. ("the Milk Case") <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases">[1939] HCA 28</a>; (1939) 62 CLR 116 . The decision in this case was pressed upon us not only as a precedent but as a correct exposition of the law. The basic facts of that case are not significantly different from the facts in the first of the present cases. It was decided that the State of New South Wales without breach of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> could prevent the sale in New South Wales of milk produced in Victoria and introduced into New South Wales for the purpose of such sale. (at p582) 30. Sir John Latham decided in that sense because of his interpretation of the decision of the Privy Council in James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1939) 55 CLR 1 . If I may say so, Sir John rightly concluded that their Lordships did not accept Sir Owen Dixon's view expressed in Peanut Board v. Rockhampton Harbour Board ("the Peanut Board Case") <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1933/11.html" title="View Case" class="autolink_findcases">(1933) 48 CLR 266</a>, at p 287 , and that it was decided that "Inter-State trade and commerce is by virtue of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> free, but 'free' means 'governed by law'" (1939) 62 CLR, at p 126 . He concluded that therefore "there must be some criterion which will make it possible to distinguish between laws which may properly govern such trade and commerce and other laws which, apart from <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a>, could have governed it, but which <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> prohibits" (1939) 62 CLR, at p 126 . Sir John enunciated the proposition that "simple legislative prohibition ... as distinct from regulation, of inter-State trade and commerce is invalid" (1939) 62 CLR, at p 127 . On the other side of that proposition, Sir John said that "a law prescribing rules as to the manner in which trade (including transport) is to be conducted is not a mere prohibition and may be valid ..." (1939) 62 CLR, at p 127 . Subject to what is meant by "regulation", this proposition was borne out in subsequent cases. But Sir John ultimately found the criterion of invalidity in the legislative purpose in the enactment of the statutory provision under challenge. He said: "In my opinion, in spite of what might appear to be a contrary view expressed in the comment upon the Peanut Board Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1933/11.html" title="View Case" class="autolink_findcases">(1933) 48 CLR 266</a>, at p 287 which I have quoted, the view of their Lordships of the Privy Council was that a State parliament could enact and provide for the administration of a compulsory marketing scheme so long as it was not directed against inter-State trade and was not merely a prohibition as distinct from a regulation of such trade" (1939) 62 CLR, at p 132 . (at p583) 31. Rich J. (1939) 62 CLR, at p 138 adhered to the Court's decision in Crothers v. Sheil <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1933/42.html" title="View Case" class="autolink_findcases_inserted">[1933] HCA 42</a>; (1933) 49 CLR 399 , a case which, with due respect, in truth had not really decided anything relevant to the facts and circumstances under consideration in the case then before the Court. (at p583) 32. Evatt J. thought that "it is impossible to accept the theory that, in applying <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a>, one need not look past the mere operation of the State law upon the inter-State trade, traveller or carrier and that one should disregard the nature and character of the State law which is impugned" (1939) 62 CLR, at p 150 (citing his Honour's own judgment in R. v. Vizzard; Ex parte Hill <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1933/62.html" title="View Case" class="autolink_findcases_inserted">[1933] HCA 62</a>; (1933) 50 CLR 30, at p 80 ). If his Honour had meant, which in my opinion clearly he did not, that a law regulatory in character in the appropriate sense of the word "regulatory" may not offend the constitutional provision, his statement, though indecisive in itself, would have been borne out by subsequent decisions. But, using Willard v. Rawson (1933) 48 CLR 316 , R. v. Vizzard <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1933/62.html" title="View Case" class="autolink_findcases_inserted">[1933] HCA 62</a>; (1933) 50 CLR 30 and O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1935/8.html" title="View Case" class="autolink_findcases_inserted">[1935] HCA 8</a>; (1935) 52 CLR 189 , as the basis of his remarks, his Honour, in my opinion, was treating the subject matter of the law as the relevant criterion of validity, or, at any rate, of critical significance in that respect. He later added (1939) 62 CLR, at p 150 : "The fact that a legislative scheme of a State will have a direct and even disastrous effect upon the interstate marketing business of certain individuals does not invalidate the scheme, providing its main objects and purposes are disparate from trade, commerce and intercourse and the scheme is not being administered for the purpose of restricting interstate marketing". This indicates the adoption of the same criterion as that chosen by Sir John Latham. His Honour takes the object of the legislative scheme, rather than its operation on interstate trade, as the criterion of validity. Further, his Honour found support in Hartley v. Walsh <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1937/34.html" title="View Case" class="autolink_findcases_inserted">[1937] HCA 34</a>; (1937) 57 CLR 372 , a case to which I shall need to refer. McTiernan J. adopted the same criterion. He said: "It is clear that the Milk Act does not profess to expropriate in order to hinder or burden the passing of milk ... from other States" (1939) 62 CLR, at p 158 . His Honour presumed that the purpose of the legislation was "an expedient one for reasons only of health, hygiene, efficiency and the economic benefit of farmers in the milk-producing districts" (1939) 62 CLR, at p 158 . I have already indicated that it is not enough that the motive of the expropriation is the protection of health. To be valid it would, in my opinion, need to be reasonably necessary as compared with other available expedients to achieve that purpose. (at p584) 33. These various expressions in the reasons for judgment in the Milk Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 , not always consistent within themselves, in my opinion, cannot stand in the light of the decisions in Bank of New South Wales v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 and in Hughes & Vale Pty. Ltd. v. New South Wales (No. 1) <a href="/cgi-bin/viewdoc/au/cases/cth/UKPCHCA/1954/5.html" title="View Case" class="autolink_findcases_inserted">[1954] UKPCHCA 5</a>; (1955) AC 241; (1954) 93 CLR 1 . I suggest inconsistency in the reasoning because, in the case of Sir John Latham's reasons, the notion of regulation does not involve any concept of legislative purpose in enacting the law: but that ultimately is the criterion Sir John suggests, without indicating how that purpose is to be ascertained: and, in the case of Evatt J.'s reasons, the criterion of the subject matter of the Act, which clearly he espouses, does not involve the legislative purpose which his Honour ultimately finds decisive. (at p584) 34. The advance in the decision of Bank of New South Wales v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 was the displacement of these various criteria, something not done with clarity in the decision in James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 CLR 1 , and the decision that the operation of the Act upon interstate trade and commerce, whatever its subject matter and whatever the legislature's purpose in passing it, would itself be decisive, if by that operation a burden or hindrance was placed upon interstate trade and commerce which was not regulatory in character, regulatory being used in the special sense of which I have spoken elsewhere: see Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR, at p 16 ; also per Kitto J. in Hughes v. Vale Pty. Ltd. v. New South Wales (No. 2) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1955/28.html" title="View Case" class="autolink_findcases_inserted">[1955] HCA 28</a>; (1955) 93 CLR 127, at p 218 . The extreme statements of Dixon J. in the Peanut Board Case (1933) 48 CLR, at p 287 and of Evatt J. in the Milk Case (1939) 62 CLR, at pp 150, 152 have been displaced. Sir Owen Dixon's statement was: "The words 'absolutely free' admit of no qualification, but they are used with reference to governmental control and exclude all such control; trade, commerce and intercourse among the States are made up of acts, transactions and conduct which, considered as trade, commerce and intercourse, are free of all ... governmental control whatsoever". I have earlier referred to Evatt J.'s first statement <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1975/45.html" title="View Case" class="autolink_findcases_inserted">[1975] HCA 45</a>; (1975) 134 CLR 559 at p 583 . His second statement was: "... sec. 92 does not prevent a State from socializing any one of its industries of production, converting the reward to the producer from a chance of selling at a good or a bad price to a proportionate share in the proceeds arising from State control of the industry" (1939) 62 CLR, at p 152 . The solution is found in comparing the result produced by the operation of the law with the freedom of interstate trade which, properly understood, leaves room for regulatory provisions of the kind to which reference has been made. This decision in Bank of New South Wales v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 renders the reasoning, and as I think the conclusion, in the Milk Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 unacceptable. That case should be treated, in my opinion, as having been overruled. (at p585) 35. I should now deal with the case of Hartley v. Walsh <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1937/34.html" title="View Case" class="autolink_findcases_inserted">[1937] HCA 34</a>; (1937) 57 CLR 372 , on which reliance was placed in the argument of these cases. A Victorian statute forbad the purchase or sale of dried fruits unless they had been packed in a Victorian packing shed. It has been said that the decision upholding the Victorian law "was based upon the principle that the regulations were directed to procuring standards of quality, condition and grade and that such regulations had been expressly recognized in James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 CLR 1 " (Wynes, Legislative, Executive and Judicial Powers in Australia, 4th ed. (1970), p. 257). It was said in Bierton v. Higgins <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1961/41.html" title="View Case" class="autolink_findcases_inserted">[1961] HCA 41</a>; (1961) 106 CLR 127, at p 135 , that "it is ... unnecessary for us to reconsider the decision in the earlier case", i.e. Hartley v. Walsh <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1937/34.html" title="View Case" class="autolink_findcases_inserted">[1937] HCA 34</a>; (1937) 57 CLR 372 , "though it is desirable to point out that it rests substantially on principles which have not been regarded as acceptable in recent years". The regulation under challenge in Hartley v. Walsh <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1937/34.html" title="View Case" class="autolink_findcases_inserted">[1937] HCA 34</a>; (1937) 57 CLR 372 was destructive of all interstate trade in dried fruits, unless they had first been brought into Victoria for packing or unless they were first processed in Victoria in a packed condition. They could be purchased outside Victoria in an unpacked condition but could not be sold or purchased in Victoria for delivery from another State: nor could unpacked fruit be sold in Victoria for delivery into another State. The particular contracts in Hartley v. Walsh, as Dixon J. points out (1937) 57 CLR, at p 388 , were made in Victoria and were sales of unpacked dried fruits for delivery into South Australia. "... in each case the transaction was one of inter-State commerce". Whilst it was said that the regulation was a health or pure food provision, it was not maintained that the only reasonable method of protecting the Victorian public from unwholesome or contaminated fruit was to require their packing in a Victorian shed. In my opinion, the regulation operated to burden interstate trade both in packed and unpacked dried fruits and was not in the relevant sense itself of a regulatory nature. Wholesome and uncontaminated dried fruit packed in South Australia or in New South Wales could not be sold in Victoria by its importer from South Australia or New South Wales, and unpacked dried fruit could not be sold for delivery into South Australia or New South Wales. In my opinion, the decision in the case is inconsistent with the principles affirmed in the cases before the Privy Council and applied, e.g., in Cam & Sons Pty. Ltd. v. Chief Secretary (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1951/59.html" title="View Case" class="autolink_findcases_inserted">[1951] HCA 59</a>; (1951) 84 CLR 442 and Fish Board v. Paradiso <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1956/60.html" title="View Case" class="autolink_findcases_inserted">[1956] HCA 60</a>; (1956) 95 CLR 443 . The case of Hartley v. Walsh <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1937/34.html" title="View Case" class="autolink_findcases_inserted">[1937] HCA 34</a>; (1937) 57 CLR 372 ought not to be followed and should be regarded as overruled. (at p586) 36. I should now deal with the way in which the notion of a criterion for identifying offending laws was expressed in Grannall v. Marrickville Margarine Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1955/6.html" title="View Case" class="autolink_findcases_inserted">[1955] HCA 6</a>; (1955) 93 CLR 55 . I have pointed out earlier that, at the time O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1935/8.html" title="View Case" class="autolink_findcases_inserted">[1935] HCA 8</a>; (1935) 52 CLR 189 was decided, the Court had adopted the view that the subject matter of the impugned Act determined whether or not it was an infraction of s. 92. This view was adopted because it was thought that that section did not bind the Commonwealth but only the States. It had been decided also that a law which worked on the motor vehicle or the carrier was not a law on the subject of trade but only with respect to an instrument of trade and therefore not an infraction of the constitutional provision. It was in those circumstances that Dixon J. in O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) (1935) 52 CLR, at pp 204 et seq made the oft-quoted pronouncement. He was aiming, as I have said, to point out that, in that case you could scarcely say that the law was merely operating on an instrument of trade because Gilpin was carrying his own goods in the course of trade. Therefore a law which said in effect that he could not carry his goods in the course of and for the purpose of trade was fastening on something which was essentially an aspect of trade which, even on the doctrines of the Court as they then stood, would make the law a law about trade and thus satisfy the decisions. It is very important, in my opinion, to observe that that is precisely what Dixon J. was then doing. He had been a dissenter throughout the earlier period. He had dissented with a statement which, it seems to me, went too far and to which reference had already been made. But in O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) Dixon J. was, as it were, accepting for the purpose of his statement that the decisions of the Court were correct. (at p587) 37. Now there was no reference made by the respondents in their arguments in Bank of New South Wales v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 at any stage to O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1935/8.html" title="View Case" class="autolink_findcases_inserted">[1935] HCA 8</a>; (1935) 52 CLR 189 . There was a reference in that case made by the appellant in its argument, but the reference was of a historical nature. It was not a case relied upon by the appellant, nor by the respondents: it is not referred to either directly or indirectly in the judgment of their Lordships. However, properly understood, its positive statement as to a law which will offend the constitutional provision is not inconsistent with the reasoning of their Lordships. A law which made an element of interstate trade the basis of a prohibition could clearly enough operate to burden interstate trade depending on the substantive provisions of the Act. What was said by Dixon J. did not as originally expressed indicate, nor could it now be regarded as indicating, a text for a criterion for identifying the only laws which may infringe s. 92. (at p587) 38. After the decision of Bank of New South Wales v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 there came another search, as it were, as had occurred after James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 CLR 1 , for some formula which would enable it to be decided from what interstate trade was to be free. The real effect of the several cases in the Privy Council seems to me, if I may respectfully say so, not to have been appreciated. "Free" has its own limitations and you decide whether the freedom is infringed by the operation of the law irrespective of the purpose, its subject matter and so on. Of course, that leaves a nice problem in each case where a law places a burden on interstate trade and commerce and to that I adverted in my reasons in Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR, at p 15 . (at p588) 39. But the limited positive statement in O. Gilpin v. Commissioner for Road Transport and Tramways (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1935/8.html" title="View Case" class="autolink_findcases_inserted">[1935] HCA 8</a>; (1935) 52 CLR 189 seems to have been treated as involving a negative and as describing the only laws which could be held to offend the constitutional provision. The formula expressed in Grannall v. C. Geo. Kellaway and Sons Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1955/5.html" title="View Case" class="autolink_findcases_inserted">[1955] HCA 5</a>; (1955) 93 CLR 36 , was a formula which in reality, in my opinion, set up the subject matter of the law as the criterion of invalidity, for a law which, for its operation, fastens upon a critical aspect of trade must of its nature be a law on the subject of trade. Again, as a limited statement it may be acceptable that a law on the subject of trade which burdens interstate trade and is not regulatory in nature will breach s. 92. But it does not follow and, indeed, in my opinion, it is insupportable that only such a law offends the constitutional guarantee. Quite obviously, expropriation cases are not of that kind, particularly if found in a law on the subject of health. It may be doubted whether the standstill in Duncan v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1916/67.html" title="View Case" class="autolink_findcases_inserted">[1916] HCA 67</a>; (1916) 22 CLR 556 would fit such a formulation: and other illustrations could be given. (at p588) 40. The final matter with which I should deal is the submission that the effect of the Act and the regulations upon the plaintiffs' trade is merely economic and not within the operation of the Act. I have adverted elsewhere to this recurring theme in some of the decided cases. The operation of an Act is what it does in the situation in which it is to work according to its proper construction. An Act does not operate in a vacuum, so that you study only its words in the abstract. It operates in and upon matters of fact, which, if it is valid, modifies and causes by that modification further changes. All these effects are within its operation until the point of remoteness is reached. In this area we are not involved in the difficulties introduced in other areas by the concept of foreseeability. The expression in the decision of the Privy Council in Bank of New South Wales v. The Commonwealth (1950) AC, at p 310; (1949) 79 CLR, at p 639 , "some indirect or consequential impediment which may fairly be regarded as remote", was clearly a reference to remoteness as understood in various areas of the law. It was not intended to exclude the consequences produced by an Act operating upon the facts which, according to its proper interpretation, it intended to affect. The language of their Lordships' decision lends no support whatever, in my opinion, to the proposition that the economic result produced by an Act is not within its direct operation. When one remembers that the purpose of examining the operation of an Act is relation to s. 92 is to determine whether the situation produced by that Act leaves trade and commerce free, it immediately seems impossible to exclude the economic product of the Act as irrelevant - as outside the direct operation of the Act. In the instant cases, the matter to my mind is particularly plain. The legislative provisions directly produce the result that a trader may not lawfully sell within the State a commodity of commerce, except on terms dictated by or on behalf of the State. The fact that these provisions put an end to the trade of the trader cannot be regarded as but an "economic" and thus irrelevant consequence of the legislation. It is fairly and plainly within its operations. (at p589) 41. In the present case, s. 35 of the Act and reg. 79(10)(c) operate as a mere prohibition on sale: to prohibit the sale of perfectly healthy milk in a quite honest transaction cannot, on any view, in my opinion, be regarded as being regulatory in nature. (at p589) 42. In my opinion, ss. 23, 24 and 35 cannot validly operate with respect to the plaintiffs' trade in milk and milk products brought from Victoria by the first plaintiff for sale in New South Wales: nor can reg. 79(10)(c) so operate. Having regard to s. 14A of the Interpretation Act 1897-1972, total invalidity of these provisions does not ensue on the conclusion that their operation upon interstate trade and commerce offends s. 92. (at p589) 43. I would answer the questions in the stated cases as follows: 1. Yes, as being contrary to s. 92, though otherwise authorized by s. 54 of the Pure Food Act. <blockquote> 2. Unnecessary to answer. 3. Yes, as to each method of sale of the first plaintiff and as to the </blockquote>method of sale of the second plaintiff. <blockquote> 4A. Inapplicable to each method of sale of the first plaintiff. 4B. Inapplicable to the sales of the second plaintiff. 5. Yes, as to each method of sale of the first plaintiff and to the method </blockquote>of sale of the second plaintiff. <blockquote> 6. Inapplicable to each method of sale of the first plaintiff. (at p590) </blockquote> McTIERNAN J. It is necessary to consider, in the first place, whether, by reason of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>, milk transported from Victoria across the border to New South Wales is exempt from the provisions of the Dairy Industry Authority Act 1970 (N.S.W.). Until this question is answered it is not possible to determine whether or not reg. 79(10)(c), a regulation made under the Pure Food Act 1908 (N.S.W.), is obnoxious to s. 92. (at p590) 2. The object of the Act, expressed in its long title is, "to constitute the Dairy Industry Authority of New South Wales and to confer and impose on that Authority powers, authorities, duties and functions relating to the supply of milk". A further purpose of the Act expressed in its long title is, "to repeal the Milk Act 1931". Section 3 repeals that Act. (at p590) 3. The object of the Milk Act 1931, expressed in its long title, was, "to provide for the regulation and control of the supply and distribution of milk for consumption or use in the metropolitan milk distributing district comprising certain areas in and around the city of Sydney and in other milk distributing districts to be established; to constitute a Milk Board and to define its functions and powers ..." (at p590) 4. Section 17 of the Dairy Industry Authority Act, 1970 reads: "The Authority is hereby charged with the regulation and control of the quality, supply and distribution of milk for the purposes of ensuring the wholesomeness and purity of milk and dairy products in the interests of public health". (at p590) 5. Section 23(1) of the Act reads: <blockquote> "Milk - (a) supplied for human consumption, as milk, or for use by humans, as milk, in New South Wales; or (b) supplied for use in the production or manufacture, in New South Wales, of dairy products, is absolutely vested in and is the property of the Authority". (at p590) </blockquote> 6. Section 24(1) reads: <blockquote> "A registered dairyman may, subject to the provisions of this Act, deliver to the Authority any milk vested in the Authority under section twenty-three of this Act." </blockquote>"Dairyman" means "the occupier of dairy premises". "Dairy premises" means "any land or premises used for or in connection with the stalling, grazing, feeding or milking of cattle for the purpose of producing milk which is supplied or to be supplied for profit or sale". (Section 4(1)). (at p591) 7. Section 33(1) reads: <blockquote> "A person who acts as a dairyman or carries on any activities as a milk vendor, without being the holder of a certificate of registration as a dairyman or milk vendor, as the case may be, that authorises him to do so, is guilty of an offence ..." </blockquote><blockquote> "Milk vendor" means - "any person - (a) who is the occupier of a milk store; (b) who, otherwise than as an employee or a carrier, receives or accepts milk to be supplied to another person; or (c) who sells milk to another person;" </blockquote><blockquote> (Section 4(1)). (at p591) </blockquote> 8. Section 33(6) reads: <blockquote> "The conditions to which a certificate of registration may be made subject may include - (a) conditions as to the grade, class or description of milk which the holder of the certificate is authorised to treat, deposit, store, distribute, supply or sell; (b) conditions prohibiting the holder of the certificate from treating, depositing, storing, distributing, supplying or selling milk otherwise than at a place or in an area or in a manner specified in the certificate; and (c) such other conditions as the Authority deems necessary for the purpose of carrying out or giving effect to any of the provisions of this Act." (at p591) </blockquote> 9. Section 35(1) reads: <blockquote> "As on and from a day to be appointed by the Governor and notified by proclamation published in the Gazette (being a day after the day appointed and notified under subsection two of section one of this Act), any person who sells, otherwise than to a milk vendor, or to a dairy produce factory within the meaning of the Dairy Industry Act, 1915, milk that has not been - (a) pasteurised within the meaning of the Pure Food Act, 1908, and the regulations made under that Act; or (b) treated in the prescribed manner, is guilty of an offence against this Act." </blockquote>Turning to the Milk Act, 1931-1936. Section 22 of that Act reads: <blockquote> "Subject to the provisions of this Act the Board is hereby charged with the regulation and control of the supply and distribution of milk within the metropolitan milk distributing district and such other milk distribution districts as may from time to time be established." (at p591) </blockquote> 10. Section 26(1) reads: <blockquote> "From and after a day to be appointed by the Governor and notified by proclamation published in the Gazette, milk supplied for consumption or use within the metropolitan milk distributing district or milk distributing sub-district thereof specified in the proclamation shall become absolutely vested in and be the property of the Board." (at p592) </blockquote> 11. Section 27(1) reads: <blockquote> "Upon and after the date of the publication of any proclamation under section twenty-six of this Act, all milk supplied for consumption within the milk distributing district or sub-district thereof specified in the proclamation shall be delivered by the dairyman producing the same to the Board in accordance with the provisions of this section."(at p592) </blockquote> 12. I refer to Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 . The crucial facts of this action were that cream had been supplied in the metropolitan district of Sydney by the defendant company in contravention of the Milk Act, and the defendant company intended to continue supplying milk as aforesaid in contravention of the Act. The defendant's affidavit showed that the cream supplied came from Victoria and sought to justify its action by relying on <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. (at p592) 13. The headnote of the case reads: <blockquote> "Milk produced in Victoria and supplied for use in a milk-distributing district constituted under the Milk Act, 1931-1936 (N.S.W.) is subject to the provisions of that Act and therefore cannot be sold within such a district except in accordance with the marketing scheme provided by the Act. The Act, so construed, does not contravene s. 92 of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. So held by Latham C.J., Rich, Evatt and McTiernan JJ. (Starke J. dissenting)." (at p592) </blockquote> 14. Latham C.J. said in his reasons for judgment (1939) 62 CLR, at p 126 : <blockquote> "If inter-State trade and commerce can be governed by any law which a parliament chooses to enact, such trade and commerce is no more free than any other potential subject matter of legislation. Thus, there must be some criterion which will make it possible to distinguish between laws which may properly govern such trade and commerce and other laws which, apart from <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a>, could have governed it, but which <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> prohibits. James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 </blockquote>CLR 1 , <blockquote> which it is the duty of this court to follow, tells us that the application of laws of the first class will still leave inter-State trade and commerce free." </blockquote>He continued (1939) 62 CLR, at p 127 : <blockquote> "One proposition which I regard as established is that simple legislative prohibition (Federal or State), as distinct from regulation, of inter-State trade and commerce is invalid. Further, a law which is 'directed against' inter-State trade and commerce is invalid. Such a law does not regulate such trade, it merely prevents it. But a law prescribing rules as to the manner in which trade (including transport) is to be conducted is not a mere prohibition and may be valid in its application to inter-State trade notwithstanding <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92."</a> </blockquote>He further said (1939) 62 CLR, at p 131 : <blockquote> "In the present case, however, the question is, I think, squarely raised whether it is possible for a State parliament, operating within its territorial limitations, to introduce what James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 CLR 1 describes as </blockquote>compulsory <blockquote> regulation and control of all trade, including inter-State trade." </blockquote> and again (1939) 62 CLR, at p 132 : <blockquote> "The Milk Act is an Act which expropriates property, and that expropriation is made for the purpose of controlling trade, and, upon the construction of the Act which I am assuming to be correct, inter-State trade is included in the trade to be controlled." </blockquote>Latham C.J. continued (1939) 62 CLR, at p 133 : <blockquote> "In the present case there is nothing to show that the Act is directed against inter-State trade or that the real object of the Act is to interfere with inter-State trade" </blockquote> and he said (1939) 62 CLR, at p 135 : <blockquote> "Thus, in my opinion, James v. The Commonwealth <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1936/32.html" title="View Case" class="autolink_findcases_inserted">[1936] HCA 32</a>; (1936) AC 578; (1936) 55 CLR 1 makes it possible to uphold the validity of the Act not </blockquote>only <blockquote> as to the expropriation provisions which it contains, but also as a whole. A court should always take the view, if it is fairly open, that an Act of parliament is valid rather than that it is invalid." (at p593) </blockquote> 15. The limitation of the Act to certain "distributing districts" did not in any way conduce to the conclusion at which the majority of the Court arrived in that case. (at p593) 16. I am not in any doubt that the present Act is like the Milk Act, 1931-1936 in that it is regulatory and not a prohibitory law. (at p593) 17. It is important to notice that in The Commonwealth v. Bank of New South Wales (1950) AC 235, at p 270 counsel for the respondents said in argument, "It is submitted, next, that the Milk Board Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 was wrongly decided." The reference of course is to the decision of the majority of the High Court in Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. (1939) 62 CLR, at p 127 . Their Lordships, as appears from their reasons, did not decide that this Court wrongly decided the Milk Board Case. Indeed their Lordships adopted the statement of Latham C.J. in the Milk Board Case, above quoted and which reads (1950) AC, at pp 310-311; (1949) 79 CLR, at p 640 : <blockquote> "One proposition which I regard as established is that simple legislative prohibition (Federal or State), as distinct from regulation, of inter-State trade and commerce is invalid. Further, a law which is 'directed against' inter-State trade and commerce is invalid. Such a law does not regulate such trade, it merely prevents it. But a law prescribing rules as to the manner in which trade (including transport) is to be conducted is not a mere prohibition and may be valid in its application to inter-State trade notwithstanding sec. 92." (at p594) </blockquote> 18. Surely the Government of the State of New South Wales acted wisely in adopting the regulatory plan of the Milk Act, 1931-1936 for the Dairy Industry Authority Act 1970, the former Act having passed the test of judicial scrutiny in this Court and in the Privy Council. (at p594) 19. In my opinion ss. 23, 24 and 33, which are the heart of the plan, are not, in their application to milk transported from another State and supplied for human consumption in New South Wales, obnoxious to <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. (at p594) 20. <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s79.html" class="autolink_findacts">Regulation 79(10)</a> of regulations under the Pure Food Act, 1908 (N.S.W.) is a regulation "For Securing the Cleanliness and Freedom from Contamination of Milk". Clause 10 reads as follows: <blockquote> "(a) No person shall deliver milk or cream in wholesale quantity to a milk vendor for retail sale at any place other than a milk store in relation to which such milk vendor is registered pursuant to the Dairy Industry Authority Act, 1970. (b) For the purposes of subclause (a) of this clause, the depositing of any containers, cans, churns, bottles or other receptacles containing milk or cream on any footpath or roadway whether or not adjacent to the milk store referred to in such subclause, or on any open space, whether or not in or upon such milk store, shall not constitute a delivery of milk or cream at such milk store. (c) As on and from 1st July 1973, no person shall supply or sell pasteurised milk for human consumption or use by man in New South Wales that has not been pasteurised by a holder of a certificate of registration issued under the provisions of the Dairy Industry Authority Act, 1970, that authorises that holder to carry on the activity of pasteurising milk." (at p595) </blockquote> 21. By s. 54 of the Pure Food Act, regulations are only adopted by the Government of New South Wales if they are made by the Health Commission of the State on the advice of the advisory committee, appointed, for the purposes of the Pure Food Act, 1908, by the Government. The Health Commission of New South Wales was created by the Health Commission Act, 1972. The members of the advisory committee include the Professor of Chemistry in the University of Sydney, a bacteriologist, a legally qualified medical practitioner, the Government Analyst, a representative of the Chamber of Commerce, a representative of the Chamber of Manufacturers, and persons "conversant with trade requirements". (at p595) 22. The word "treatment" is defined in s. 4(1) of the Dairy Industry Authority Act, 1970, in relation to milk to include: "The examination, cleansing, pasteurisation, modification, homogenisation, separation, sterilisation, alteration or manufacture into another form of milk or into a dairy product, packaging, testing, grading, cooling, refrigerating, bottling, or packing, and 'treat' has a corresponding meaning." (at p595) 23. Section 33(2) of the Act provides that a certificate of registration may authorize a milk vendor to carry on only such activities as are specified in the certificate. (at p595) 24. Clause 10(c) deals with supply or sale of pasteurized milk for human consumption or use by man. Where pasteurized milk is supplied for such consumption or use in New South Wales it is, by s. 23 of the Dairy Industry Authority Act, vested in, and is the absolute property of the Board. It follows that sub-cl. (c) is applicable only to the Board. If any person should supply or sell any milk in New South Wales, the property of the Board, as if the milk was his property but was not pasteurized as required by the subclause, he would be in breach of the subclause. (at p595) 25. For my part, I do not see the relevance of s. 92 in any situation contemplated by sub-cl. (c) if, in truth, there is no conflict between the Dairy Industry Authority Act and s. 92. (at p595) 26. I would answer all the constitutional questions in each case stated in favour of the Dairy Industry Authority of New South Wales and remit all the merely ultra vires questions to the Supreme Court of New South Wales. (at p595) GIBBS J. These two cases stated, which have been heard together, raise for decision the questions whether three statutory provisions - reg. 79(10) (c) of the regulations made under the Pure Food Act, 1908 (N.S.W.), as amended, and ss. 23 and 33 of the Dairy Industry Authority Act, 1970 (N.S.W.) ("the Act") - are valid and applicable to sales made, or milk supplied and sold, as the case may be, by the plaintiffs, having regard to the effect of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. The first plaintiff (North Eastern Dairy Co. Ltd.) carries on the business of processing milk and selling and distributing milk and milk products. Its principal processing plant is at Kiewa in Victoria. It engages in three courses of dealing which give rise to the present questions. First, milk and milk products processed and packaged by the first plaintiff at Kiewa are loaded on to the first plaintiff's motor vehicles at Wodonga in Victoria and carried to Albury in New South Wales where the first plaintiff makes door-to-door sales to householders. Secondly, milk and milk products processed and packaged by the first plaintiff at Kiewa are similarly loaded at Wodonga and carried to Albury where they are delivered to the proprietors of a number of shops each of whom has executed an agreement with the first plaintiff. By each of these agreements the first plaintiff appoints the shopkeeper as its agent to sell the milk or milk products which it agrees to deliver to the agent and the agent agrees to store the milk and to endeavour to sell it as agent for the first plaintiff to customers in New South Wales. The agreement states that no property in the milk delivered shall pass to the agent and that neither the agreement nor anything done under it constitutes a sale by the first plaintiff to the agent. The agent is entitled to commission on milk sold and the first plaintiff agrees to retake delivery of possession of milk delivered to the agent and unsold. The milk and milk products are sold by shopkeepers to customers in the ordinary course of business. The second plaintiff (Carroll's Food Mart Pty. Ltd.) is the proprietor of two supermarkets in Albury and has entered into agreements of this kind with the first plaintiff and sells in its supermarkets milk and milk products delivered by the first plaintiff in the manner mentioned. Thirdly, the first plaintiff delivers milk and milk products to shopkeepers in the area of Junee in New South Wales who have entered into agreements of the kind described and who sell the milk and milk products to customers in New South Wales. In this case the milk and milk products, although processed and packaged at Kiewa, are delivered by employees of the first plaintiff to the first plaintiff's depot at Wagga Wagga in New South Wales where they are transhipped to other vehicles of the first plaintiff and delivered by other employees of the first plaintiff to the shops in the Junee area. (at p597) 2. By s. 23 of the Act it is provided as follows: <blockquote> "(1) Milk - (a) supplied for human consumption, as milk, or for use by humans, as milk, in New South Wales; or (b) supplied for use in the production or manufacture, in New South Wales, of dairy products, is absolutely vested in and is the property of the Authority" (i.e., the Dairy Industry Authority of New South Wales constituted under the Act). "(2) Milk vested in the Authority by the operation of subsection one of this section and accepted by the Authority at a place where the Authority accepts milk is so vested, freed from all mortgages, charges, liens, pledges, interests, and trusts affecting it, and the rights and interests of every person in that milk are converted into a claim for payment for the quantity of milk so accepted." </blockquote>It is made plain by s. 24(2) and (3) that the Authority is not obliged to accept any milk. Moreover, it appears from s. 24(1) and s. 25(1) that only milk delivered by a registered dairyman will be accepted. It is provided by s. 24(5) that where milk is not accepted by the Authority the person who, but for s. 23, would have been its owner may dispose of the milk in any manner specified in an instrument in writing authorizing him to do so issued to him by the Authority and shall, unless the Authority otherwise determines and notifies him in writing, be deemed to have been authorized to dispose of the milk in any manner otherwise than by supplying it for human consumption, as milk, or for use by humans, as milk, in New South Wales, or for use in the production or manufacture, in New South Wales, of dairy products. Section 33(1) of the Act provides as follows: <blockquote> "A person who acts as a dairyman or carries on any activities as a milk vendor, without being the holder of a certificate of registration as a dairyman or milk vendor, as the case may be, that authorises him to do so, is guilty of an offence against this Act." </blockquote>Section 4 contains a number of definitions. "Dairyman" is defined to mean "the occupier of dairy premises", and "dairy premises" means "any land or premises used for or in connection with the stalling, grazing, feeding or milking of cattle for the purpose of producing milk which is supplied or to be supplied for profit or sale". The expression "milk vendor" means any person - <blockquote> "(a) who is the occupier of a milk store; (b) who, otherwise than as an employee or a carrier, receives or accepts milk to be supplied to another person; or (c) who sells milk to another person." </blockquote>"Milk store" means "any building or place at or upon which milk is treated, deposited, or stored, and includes any building or place at or from which milk is supplied ...". By s. 33(4) it is provided that the Authority may approve an application for a certificate of registration as a dairyman or milk vendor subject to such conditions as it thinks fit or may refuse the application. Section 34(1) provides that the Authority may refuse to issue a certificate of registration to, or may cancel the certificate of registration issued to, any person (inter alia) - <blockquote> "(d) if in the opinion of the Authority it is necessary or desirable, in the public interest or to enable the Authority to effectively carry out or give effect to any of the provisions of this Act, to refuse to issue or to cancel the certificate." </blockquote>By s. 35 it is an offence for any person to sell, otherwise than to a milk vendor or to a dairy produce factory, milk that has not been pasteurized within the meaning of the Pure Food Act, 1908 (N.S.W.), as amended, and the regulations made under that Act, or treated in the prescribed manner. Regulation 79(10)(c) of the regulations made under the Pure Food Act, 1908 (N.S.W.), as amended, reads as follows: <blockquote> "As on and from 1st July, 1973, no person shall supply or sell pasteurised milk for human consumption or use by man in New South Wales that has not been pasteurised by a holder of a certificate of registration issued under the provisions of the Dairy Industry Authority Act, 1970, that authorises that holder to carry on the activity of pasteurising milk." (at p598) </blockquote> 3. The first plaintiff is not the holder of a certificate of registration under the provisions of the Act that authorizes it to carry on the activity of pasteurizing milk but does hold a pasteurization licence issued under the <a href="/cgi-bin/viewdoc/au/legis/vic/hist_act/mpa1958242/" class="autolink_findacts">Milk Pasteurization Act 1958</a> (Vict.). Both the first plaintiff and the second plaintiff hold certificates of registration under the Act authorizing them to sell milk but each such certificate is subject to a condition whose effect is that milk pasteurized by the first plaintiff cannot be sold under the authority of the certificate. (at p598) 4. Before turning to the main questions in the case I should notice a submission made on behalf of the plaintiffs that reg. 79(10)(c) is not authorized by s. 54 of the Pure Food Act. That section gives the Health Commission of New South Wales, on the recommendation of an advisory committee, power to make regulations (inter alia) "for securing the wholesomeness, cleanliness, freedom from contamination, and adulteration of any food ...". A regulation requiring milk sold for human consumption to be pasteurized by an authorized person appears to me to be calculated to secure the wholesomeness and freedom from contamination and adulteration of the milk. This argument must fail. (at p599) 5. I turn then to the submissions as to the effect of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. Quite recently, in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR 529 , I expressed my opinion on questions similar to those that arise in the present case; I adhere to what I there said and need not repeat the discussion. I can therefore express quite briefly, and with little further citation of authority, the reasons that lead me to the conclusions that I have reached in the present case. There can be no doubt that in taking milk over the border for the purpose of selling it the first plaintiff was engaging in interstate trade. On the other hand, in my opinion the sales made within New South Wales to customers who made no stipulation that the milk should come from Victoria, and who were indeed quite indifferent as to the origin of the milk, were, considered by themselves, intrastate sales. However, as Walsh J. said in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR, at p 582 , in a passage to which I referred in Pilkington v. Frank Hammond Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1974/13.html" title="View Case" class="autolink_findcases_inserted">[1974] HCA 13</a>; (1974) 131 CLR 124, at p 176 , in many cases an act may have a double aspect, being in one aspect an act which forms part of intrastate trade, and in another aspect an act which forms part of interstate trade. Viewed from the point of view of the plaintiffs' trade, each sale was at least "an inseparable concomitant or consequence of that transaction" (cf. Fergusson v. Stevenson <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1951/49.html" title="View Case" class="autolink_findcases_inserted">[1951] HCA 49</a>; (1951) 84 CLR 421, at p 435 ). The trade in which the first plaintiff engaged did not consist merely in bringing the milk across the border - it carried the milk from one State to another to sell it in the latter State. Trade is not limited merely to carriage. The essential object of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> would be defeated if a State could, by the enactment of legislative provisions such as those now in question, entirely exclude from sale the products of another State. The present case is clearly distinguishable from S.O.S. (Mowbray) Pty. Ltd. v. Mead <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1972/18.html" title="View Case" class="autolink_findcases">[1972] HCA 18</a>; (1972) 124 CLR 529 . In that case the statutory burden was placed on the first sale made in Tasmania by a shopkeeper to whom goods had been consigned by the manufacturer in Sydney; the statute did not prevent the New South Wales seller and the Tasmanian buyer from completing their interstate transaction and the only effect which the statute had on interstate trade was an economic or commercial one. In the present case the person selling the goods within the State is the very person who has brought the goods across the border for that purpose, and the legislation prevents the plaintiffs' interstate transactions from being carried to their conclusion. The second plaintiff's activities occur entirely within New South Wales, but form an essential and integral step in the transactions of the first plaintiff, and take their colour accordingly - cf. Reg. v. Wilkinson; Ex parte Brazell, Garlick and Co. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1952/6.html" title="View Case" class="autolink_findcases_inserted">[1952] HCA 6</a>; (1952) 85 CLR 467 . It should be added that it was not shown that any element of sham or contrivance attached to the relationship between the first plaintiff and its agents. (at p600) 6. Any one of the laws now under consideration, if valid and applicable, would have prevented the first plaintiff from selling within New South Wales the goods which it brought there for sale. <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s33.html" class="autolink_findacts">Section 33</a> and reg. 79(10)(c) forbid the sales because the plaintiffs do not hold certificates of registration in appropriate terms and because the milk has not been pasteurized by the holder of an appropriate certificate. Indeed <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s33.html" class="autolink_findacts">s. 33</a> appears to go further and to prevent the plaintiffs from storing the milk in New South Wales. It is true that the prohibition imposed by those provisions is not absolute but conditional on the absence of the requisite certificate, but the Authority has a wide and almost unfettered discretion to refuse to grant a certificate - its discretion is limited only by its own opinion as to what is desirable in the public interest. For the purposes of considering whether such provisions, if applicable, would infringe <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> they may therefore be treated as though they impose an absolute prohibition on the sales. <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s23.html" class="autolink_findacts">Section 23</a>, if valid and applicable, prevents the sales from being made because it has the effect that the milk the subject of any sale is expropriated, at latest, at the moment when it is supplied to a customer. If these provisions applied to a transaction of interstate trade, they would restrict it directly and immediately. (at p600) 7. It is not possible to justify any of these statutory prohibitions on the ground that they are necessary to protect the health of the public or on the ground that they are regulatory. No one would doubt that it is necessary to have controls on the production, processing and distribution of milk in order to prevent it from becoming contaminated or polluted. Nor can it be doubted that one purpose of reg. 79(10)(c) is to ensure that milk sold is of proper quality. However, reg. 79 goes far beyond what is reasonably necessary for the purpose of ensuring that no milk is sold which is likely to constitute a danger to health. It has not been established that milk pasteurized in accordance with the law of Victoria would be less wholesome than that pasteurized in New South Wales. I would not doubt that a law of New South Wales might validly prescribe standards of purity of milk sold in that State, even if imported by the seller from another State, and might insist that the milk should have been pasteurized in accordance with a prescribed procedure, assuming the prescription to be reasonable. However, reg. 79(10)(c) enables the Authority to prevent entirely the sale in New South Wales of any milk pasteurized elsewhere, however free from defect it may be. Moreover, none of the provisions can be described as merely regulatory - each goes far beyond mere control of the incidents of the transactions in question. (at p601) 8. For these reasons, on principle it seems to me that any one of the statutory provisions in question, if applicable, would operate as a direct and impermissible burden on the interstate trade of the plaintiffs. The conclusion that I have reached is no doubt inconsistent with the decision in Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 , but the reasoning on which that decision was based can no longer be regarded as acceptable in the light of the more recent decisions that have authoritatively expounded the meaning and effect of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92.</a> (at p601) 9. I accordingly consider that any one of the statutory provisions now under consideration would, if it operated on any of the three courses of dealing to which I have referred, contravene <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. However, s. 14A of the Interpretation Act, 1897 (N.S.W.), as amended, requires ss. 23 and 33 of the Act to be read and construed so as not to exceed the legislative powers of the State, so that a provision which would otherwise have been construed as being in excess of those powers is to be valid to the extent to which it is not in excess of those powers. Those sections, therefore, on the construction which s. 14A requires to be given to them, are not applicable to the courses of dealing in question in these cases. Section 14A does not apply to the construction of regulations, but it was contended on behalf of the Authority that reg. 79(10)(c) should be given a limited construction that would render it valid, in accordance with the principle referred to in Attorney-General (N.S.W.) v. Stocks and Holdings (Constructors) Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1970/58.html" title="View Case" class="autolink_findcases_inserted">[1970] HCA 58</a>; (1970) 124 CLR 262, at p 274 . I think it unnecessary to decide whether that contention is correct; if the regulation is valid because it is given a restricted application it will not affect the three courses of dealing at issue in these cases, and it therefore need not be decided whether the regulation is totally invalid. (at p602) 10. I would answer the questions asked in the cases stated in accordance with these reasons. (at p602) STEPHEN J. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree with those reasons and with the answers there proposed to the questions raised by the stated cases. (at p602) <blockquote> MASON J. </blockquote>NORTH EASTERN DAIRY CO. LTD. v. DAIRY INDUSTRY AUTHORITY OF N.S.W. Shorn of its superficial details the issue raised by this case stated by a judge of the Supreme Court of New South Wales is whether the Dairy Industry Authority Act, 1970 (N.S.W.) and reg. 79(10)(c) made under the Pure Food Act, 1908 (N.S.W.), as amended, regulate the trade in pasteurized milk in that State by protecting consumers from deleterious products, as the defendant asserts that it does, or whether the legislation merely protects New South Wales producers of pasteurized milk from the competition in that State of Victorian pasteurized milk, as the plaintiff claims that it does. If the plaintiff's claim is correct then the legislation infringes <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> and is invalid. (at p602) 2. The plaintiff, which is a company incorporated in Victoria and is the holder of two certificates of registration as a milk vendor under s. 33 of the Dairy Industry Authority Act, has for many years sold and supplied in New South Wales milk and milk products, including pasteurized milk, processed and packaged at its plant situated at Kiewa in Victoria. The plaintiff holds a pasteurization licence issued under the <a href="/cgi-bin/viewdoc/au/legis/vic/hist_act/mpa1958242/" class="autolink_findacts">Milk Pasteurization Act 1958</a> (Vict.), but it does not hold a certificate of registration under the New South Wales Act authorizing it to carry on the activity of pasteurizing milk. (at p602) 3. The defendant, a statutory authority established by the Act and charged by s. 17 with "the regulation and control of the quality, supply and distribution of milk for the purposes of ensuring the wholesomeness and purity of milk and dairy products in the interests of public health", claims that the sale and supply by the plaintiff in New South Wales of milk pasteurized in Victoria is illegal as it is not authorized by the two certificates of registration held by the plaintiff. These certificates restrict the plaintiff to the supply in the Albury area of milk which has been pasteurized at Albury by Haberfield's Milk Pty. Ltd., a competitor of the plaintiff (which holds a certificate authorizing it to pasteurize milk), and to the supply in the Wagga Wagga area of milk pasteurized at Wagga Wagga by Inland Dairies Pty. Ltd., another competitor of the plaintiff (which also holds a certificate authorizing it to pasteurize milk). In the case of Wagga Wagga the restriction arose as a result of a variation made on 6th July 1973 by which an additional condition was added to the plaintiff's certificate. The defendant also asserts that the sale or supply of pasteurized milk for human consumption that has not been pasteurized by the holder of a certificate of registration authorizing the holder to carry on the activity of pasteurizing milk is an offence against reg. 79(10)(c) of the regulations made under the Pure Food Act. The defendant therefore threatens to cancel the two certificates of registration held by the plaintiff. The plaintiff's answer is to say that its sale and supply of Victorian pasteurized milk in New South Wales forms part of interstate trade and commerce, that as such it is not affected by reg. (79)(10)(c) either because the regulation is invalid on the ground that it infringes s. 92 or is otherwise ultra vires or because it should be read so as not to apply to interstate trade. The plaintiff further submits that the relevant provisions of the Dairy Industry Authority Act, in particular s. 23 (which vests in the Authority milk supplied for human consumption or use by man) and s. 33 (which authorizes the issue of certificates of registration subject to conditions) have no application to the plaintiff's interstate trade because they infringe s. 92 or because they should be read down so as to comply with the constitutional prohibition. (at p603) 4. The case raises four broad issues which may be stated in this way: <blockquote> (1) Is the plaintiff engaged in interstate trade and commerce? (2) (a) If the answer to (1) is yes, is reg. 79(10)(c) invalid or is it to </blockquote>be read as having no application to the plaintiff's interstate trade in pasteurized milk? (b) Is s. 33 of the Dairy Industry Authority Act invalid or should it also be read as having no application to the plaintiff's interstate trade in pasteurized milk? (c) Is s. 23 of the Dairy Industry Authority Act invalid or should it also be read as having no application to the plaintiff's interstate trade in pasteurized milk? (at p604) 5. These issues may be conveniently considered in the order in which they have been stated. (1) Is the plaintiff engaged in interstate trade and commerce? (at p604) 6. In the Albury area the plaintiff delivers pasteurized milk to householders and to shops. In the case of householders the milk is processed and packaged at Kiewa and is sold by employees of the plaintiff using motor vehicles owned by the plaintiff. The motor vehicles are loaded with milk at the plaintiff's depot at Wodonga in Victoria. Deliveries by the plaintiff to shops in the Albury area are made under agreements in a standard form with shopkeepers. An example is provided by the agreement dated 28th February 1974 between the plaintiff and Carroll's Food Mart Pty. Ltd. ("Carroll's"). This agreement provides that the plaintiff appoints Carroll's as its agent to sell for it packaged milk produced in Victoria and which will be of a standard of quality and packaging to comply with the requirements of the statute. Carroll's promises that it will store separately on its premises the milk delivered by the plaintiff and that it will use its best endeavours to sell that milk as agent for the plaintiff to customers in New South Wales. It is expressly stipulated that no property in the milk will pass to Carroll's and that nothing done under the agreement will constitute a sale by the plaintiff to Carroll's. It is acknowledged that delivery is accepted of possession of the milk for sale on behalf of the plaintiff. Carroll's is paid a commission on sales effected. As in the case of sales to householders, deliveries are made by employees of the plaintiff using motor vehicles owned by the plaintiff. The vehicles are loaded with milk at the plaintiff's depot at Wodonga, the milk being transhipped from other vehicles which have delivered it from Kiewa. (at p604) 7. Agreements in the same standard form regulate deliveries by the plaintiff of milk and milk products to shops in the Junee area. In this instance the milk is delivered by the plaintiff's vehicles from Kiewa to the plaintiff's depot at Wagga Wagga. It is there transhipped to other vehicles of the plaintiff and delivered by its employees to the shops. (at p604) 8. Whether in these circumstances it is correct to conclude that the sales made by the plaintiff to householders and to shops are interstate sales raises a question on which different opinions have been expressed - see S.O.S. (Mowbray) Pty. Ltd. v. Mead [1972] HCA 18; (1972) 124 CLR 529, at pp 543-544, 557-558, 598 . It is not a question which needs at this time to be pursued to a conclusion because on the view which I take of this matter the plaintiff can successfully bring itself within the protection afforded by s. 92 by another avenue. The importation by the plaintiff of pasteurized milk from Victoria into New South Wales for the purpose of sale there forms part of interstate trade, even if the sale which is the end purpose of the importation is held not to form part of that trade in accordance with Harper v. Victoria <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/26.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 26</a>; (1966) 114 CLR 361 . The issue for subsequent consideration is whether the legislation imposes a relevant burden on that trade. (2) (a) Is reg. 79(10)(c) invalid or is it to be read as having no application to the plaintiff's interstate trade in pasteurized milk? (at p605) 9. The suggestion that quite apart from considerations of constitutional validity the regulation was not authorized by the regulation-making power contained in s. 54 is, I think, without any substance. The section empowers regulations to be made. <blockquote> "generally for carrying out the provisions of this Act, and for securing the wholesomeness, cleanliness, freedom from contamination, and adulteration of any food or article ..." </blockquote>The regulation provides: <blockquote> "As on and from 1st July 1973, no person shall supply or sell pasteurised milk for human consumption or use by man in New South Wales that has not been pasteurised by a holder of a certificate of registration issued under the provisions of the Dairy Industry Authority Act, 1970, that authorises that holder to carry on the activity of pasteurising milk." </blockquote> prohibition against the sale of milk not pasteurized by an authorized pasteurizer is in my view a regulation carrying out the provisions of the Pure Food Act and for that matter one which secures the wholesomeness and freedom from contamination and adulteration of milk. (at p605) 10. It is necessary, then, to proceed to the question of constitutional validity. If the first sale within a State of goods imported there for the purpose of sale forms part of interstate trade for the reasons given by Barwick C.J. in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR, at pp 543-544 , then a prohibition against the sale or supply of goods extending to imported goods is a burden on interstate trade, unless the prohibition can be classified as regulatory. But it does not follow that if the first sale by the importer is not part of interstate trade, a general prohibition against sale is consistent with s. 92. The prohibition may be held to constitute a burden on interstate trade either because the sale is inseparably connected with that trade or because it may appear that the effect of the prohibition is to destroy that trade: see Vacuum Oil Co. Pty. Ltd. v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1934/5.html" title="View Case" class="autolink_findcases_inserted">[1934] HCA 5</a>; (1934) 51 CLR 108 ; Fish Board v. Paradiso <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1956/60.html" title="View Case" class="autolink_findcases_inserted">[1956] HCA 60</a>; (1956) 95 CLR 443 ; O'Sullivan v. Miracle Foods (S.A.) Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/64.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 64</a>; (1966) 115 CLR 177 . I regard each of these cases, as did Walsh J. in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR, at pp 587-590 , as authority for the proposition that a prohibition applying to the first sale by an importer within a State may constitute a burden on interstate trade. To the extent to which the observations in Wragg v. New South Wales <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 may be thought to be inconsistent with this proposition I would not follow them. (at p606) 11. The distinction drawn by the Privy Council in the Banking Case (1950) AC 235, at p 310; <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1949) 79 CLR 497, at p 639 , was between laws which operated directly and immediately to restrict or burden interstate trade and laws which created some "indirect or consequential impediment which may fairly be regarded as remote". In deciding whether a given law falls within one category rather than the other, their Lordships did not intend in my view to exclude from consideration the practical effect of the law. It is said that this is a gloss added by the later cases, although it has been acknowledged that a law may operate as "a circuitous means" of burdening operations of a kind that s. 92 protects: see Hospital Provident Fund Pty. Ltd. v. Victoria <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/8.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 8</a>; (1953) 87 CLR 1, at p 36 ; Grannall v. Marrickville Margarine Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1955/6.html" title="View Case" class="autolink_findcases_inserted">[1955] HCA 6</a>; (1955) 93 CLR 55, at p 78 ; Mansell v. Beck <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1956/70.html" title="View Case" class="autolink_findcases">[1956] HCA 70</a>; (1956) 95 CLR 550, at p 565 ; and R. v. Connare; Ex parte Wawn <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/18.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 18</a>; (1939) 61 CLR 596, at p 618 where Dixon J. said: "... an attempt to place a burden upon the first sale of goods after their introduction into a State well might be obnoxious to s. 92 because of its tendency to prevent or discourage the importation of such goods from another State". (at p606) 12. This approach takes account of the practical effect of a law. The contrary view has no secure base in s. 92 itself and it subtracts significantly from the freedom which the section guarantees. To say that consistently with s. 92 it is permissible to enact laws whose practical effect is to burden interstate trade is to reduce the constitutional prohibition to a legal formulation which may be readily circumvented. (at p607) 13. So long as reg. 79(10)(c) remains in force milk pasteurized in Victoria cannot be sold for human consumption or use by humans in New South Wales. It is the fact that milk once pasteurized cannot be pasteurized again and the defendant does not suggest that it could, or would, issue a certificate of registration under the Dairy Industry Authority Act to pasteurize its milk in Victoria. The practical effect of the regulation is therefore to put an end to the interstate trade in Victorian pasteurized milk and to discriminate against the Victorian product and the Victorian producer. In the conventional language of the cases it imposes a burden on the importer of Victorian pasteurized milk by preventing him from selling his product in the State. This results in my opinion from the direct and immediate operation of the law. It is not a mere economic or social consequence of the regulation (S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR, at p 594 ). To say that the prohibition does not directly destroy the importation of pasteurized milk because it leaves the importer free to import it, though unable to sell it, seems to me to desert reality. (at p607) 14. The regulation prohibits the sale of the product of another State whilst permitting the sale of the competitive product produced within the State. As the prohibition discriminates against the products of other States, unless it can be justified as a regulation of interstate trade, it falls within the field of operation of s. 92. (at p607) 15. The freedom which s. 92 confers is, notwithstanding its language, a qualified freedom. Other decisions apart, the Banking Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 acknowledges that s. 92 does not prevent the enactment of laws which are no more than regulatory. In this context there is no need to explore the limits of what is permissible regulation, although as will appear later, the vesting provisions of the Dairy Industry Authority Act require some reference to that topic. A law which does no more than protect the community from hazards affecting health is regulatory in the relevant sense. A law which prohibits the supply or sale of noxious foods within a State does not offend against s. 92. Likewise, a law which prohibits the supply of milk for human consumption which has not been pasteurized by certificated pasteurizers may well be a law which protects the community from the risks of infection arising from the sale or supply of contaminated milk. But reg. 79(10)(c) travels beyond such a law. Because it prohibits the sale of Victorian milk pasteurized according to Victorian requirement (which are in all respects comparable with those prescribed in New South Wales) it is impossible in my view to say reg. 79(10)(c) is a permissible regulation of interstate trade. (at p608) 16. The defendant argued that it was a reasonable regulation of the trade in pasteurized milk to require that pasteurization should take place in approved premises within the State so that they could be regularly inspected by departmental officers to ensure compliance with prescribed standards and so that the requirements of the law could be enforced in the courts of the State. Why departmental officers are unable to inspect premises in Victoria was not explained. Nor was it explained why observance of prescribed standards could not be made a condition of a certificate so as to enable cancellation of the certificate should non-compliance occur. (at p608) 17. An alternative means of achieving a similar result would be to make it an offence to sell pasteurized milk which had not been pasteurized to the prescribed standard. Again no persuasive reason was advanced why such a method of regulation was inadequate to maintain the desired purity of pasteurized milk. The defendant's case was that it was for the legislature to choose the method of regulation which it thought necessary or desirable. This is to disregard the constitutional injunction as it has been interpreted by the Court. It is for the defendant to show that the regulation is permissible and, to do so, it must satisfy the Court as a matter of fact that the method of regulation selected, because it protects public health, is a reasonable regulation of interstate trade. (at p608) 18. Here the legislature has selected a mode of regulation which, perhaps advisedly, is calculated to burden, indeed to destroy, the interstate trade in pasteurized milk, in preference to other modes of regulation which would involve no discrimination against the Victorian product. As the defendant has failed to show that the discriminatory mode of regulation selected is necessary for the protection of public health, it is in my judgment not a reasonable regulation of the interstate trade in pasteurized milk. (at p608) 19. The regulation is not saved from invalidity by s. 14A of the Interpretation Act of 1897, as amended, which applies only to statutes. The earlier view that s. 92 does not invalidate legislation but merely makes it inapplicable to interstate transactions (see W. & A. McArthur Ltd. v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1920/77.html" title="View Case" class="autolink_findcases_inserted">[1920] HCA 77</a>; (1920) 28 CLR 530, at pp 558-559 ) has given way to the accepted doctrine that legislation inconsistent with the section is invalid. The extent of the invalidity which thereby results depends upon severability, and in the absence of a provision such as s. 14A the presumption is that the provision was intended to take effect in its entirety (Wilcox Mofflin Ltd. v. New South Wales <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1952/17.html" title="View Case" class="autolink_findcases_inserted">[1952] HCA 17</a>; (1952) 85 CLR 488, at p 523 ). True it is, as the defendant contends, there is a general rule of construction that a statutory instrument will be read, where possible, so as not to exceed the legislative power in the exercise of which the instrument was enacted. But this rule of construction must take account of the presumption against divisibility. This is particularly so in the case of a prohibition expressed in absolute terms where the context suggests, as here, that it was intended that interstate transactions should fall within its embrace. (at p609) 20. Consequently, reg. 79(10) (c) is in my opinion invalid. (2) (b) Is s. 33 of the Dairy Industry Authority Act invalid or should it also be read as having no application to the plaintiff's interstate trade in pasteurized milk? (at p609) 21. The Dairy Industry Authority Act ("the Act") establishes the defendant and entrusts to it the responsibility of regulating and controlling the quality, supply and distribution of milk for the purpose of ensuring the wholesomeness and purity of milk and dairy products in the interests of public health (s. 17). The defendant is required to perform certain functions (s. 20) and it is armed with various powers (ss. 18, 19), some of which are exercisable only with the approval of the Governor, as for example the power to engage in the collection, treatment or wholesale or retail distribution of milk (s. 19(a)), the power to manufacture, distribute and sell milk and dairy products (s. 19 (d)) and the power to purchase milk for resale or use (s. 19(e)). (at p609) 22. Section 23 vests in the defendant all milk which is supplied for human consumption or for use by humans in the State or which is supplied for use in the production or manufacture in the State of dairy products. Notwithstanding this provision the defendant is not bound to accept milk delivered to it (s. 24(2)). The defendant may fix the quantity of milk which may be delivered by a dairyman and accepted by it (s. 24 (3) ) and it may dispose of milk which it has accepted to milk vendors or other persons (s. 24(4)). Where milk is not accepted by the defendant, the person who would have been the owner, but for s. 23, is entitled to dispose of the milk in any manner, and subject to conditions, specified in writing by the defendant (s. 24(5) (a)) and shall be deemed, unless notified to the contrary in writing, to have been authorized to dispose of the milk in any manner otherwise than by supplying it for human consumption or for use by humans in the State or for use in the production or manufacture in the State of dairy products. It is an offence for a dairyman to dispose of milk vested in the defendant otherwise than in accordance with s. 24(5) (s. 24(6)). (at p610) 23. Provision is made by Pt V of the Act for the fixation by the Minister of minimum prices to be paid to dairymen for various grades of milk. The minimum prices are fixed after the consideration by the Minister of recommendations by the Dairy Industry Prices Tribunal, a tribunal constituted by s. 42 of the Act. The defendant is bound to pay to each dairyman in respect of milk delivered to and accepted by the Authority the minimum price applicable to that milk (s. 25(5)). (at p610) 24. Division 3 of Pt III of the Act establishes a licensing system. It commences with s. 33(1) which prohibits a person from acting as a dairyman or carrying on any activities as a milk vendor without being the holder of a certificate of registration. A certificate may authorize a milk vendor to carry on such activities as a milk vendor as are specified (s. 33(2)). The defendant may approve an application for a certificate subject to conditions or refuse it (s. 33(4)). The conditions to which a certificate may be made subject include - <blockquote> "(a) conditions as to the grade, class or description of milk which the holder of the certificate is authorised to treat, deposit, store, distribute, supply or sell; (b) conditions prohibiting the holder of the certificate from treating, depositing, storing, distributing, supplying or selling milk otherwise than at a place or in an area or in a manner specified in the certificate; and (c) such other conditions as the Authority deems necessary for the purpose of carrying out or giving effect to any of the provisions of this Act." </blockquote>The defendant is empowered to vary the conditions attaching to a certificate and to impose additional conditions (s. 33(7)). Non-compliance with a condition is an offence (s. 33(8)). A certificate may be refused or cancelled on various specified grounds which include the following (s. 34(1)): <blockquote> "(b) if in the opinion of the Authority he (i.e. the applicant) is not a fit and proper person to hold such a certificate; ... (d) if in the opinion of the Authority it is necessary or desirable, in the public interest or to enable the Authority to effectively carry out or give effect to any of the provisions of this Act, to refuse to issue or to cancel the certificate." (at p611) </blockquote> 25. Section 35 makes it an offence to sell as from a date proclaimed otherwise than to a milk vendor or to a dairy produce factory milk that has not been pasteurized or treated in the prescribed manner. (at p611) 26. Part IV of the Act makes provision for the annual allocation by the defendant of a base market quantity of milk in the form of quotas applicable to particular dairy premises for the purpose of determining the quantity of milk that may be delivered to and accepted by the defendant. (at p611) 27. From all this it will be discerned that the Act, notwithstanding its long title, does not confine its attention to ensuring the wholesomeness and purity of milk and milk products. The provisions relating to production quotas are unrelated to considerations of quality and hygiene, as indeed are the provisions respecting price. They are no doubt designed to ensure a reasonable return to the producer and to maintain stability in the industry by achieving a sufficient, yet not excessive, supply of milk for human consumption and for the production of dairy products within the State or such parts of it as are not excluded from the operation of the Act. (at p611) 28. Although all milk supplied for human consumption in the State or for use by humans is vested in the defendant, the purpose of the vesting goes beyond ensuring that milk sold to the public is of a high quality and free from impurity. The defendant differs from the conventional collective marketing board in that it neither distributes nor disposes of all the milk which is vested in it. It disposes only of milk accepted by it, leaving the producer whose milk is not accepted to dispose of it in effect as the defendant may direct. He is unable to sell his milk for human consumption, use by humans or use for production or manufacture in the State of dairy products in the State, unless authorized so to do. (at p611) 29. Although it is empowered to engage in the retail distribution of milk with the approval of the Governor (s. 19(a)), it seems that the retail distribution of milk is undertaken largely, if not wholly, by registered milk vendors who draw their supplies either from the defendant, registered dairymen or other registered milk vendors. (at p611) 30. It is against this background that the provisions of ss. 33 and 34 are to be considered. The prohibition contained in s. 33(1), unless it is read so as not to apply to interstate trade, would apply to sales made in the course of interstate trade, such as those made by the plaintiff. The prohibition would in this event contravene s. 92 unless the licensing system set up by the Act constitutes a permissible regulation of the interstate trade in milk. The provisions of s. 33(6) and s. 34(b) and (d), which are vague and imprecise, go beyond what is a permissible regulation of interstate trade because they do not sufficiently limit the executive discretion. They enable the defendant arbitrarily to refuse registration to a person engaged in that trade or to grant registration subject to the condition that milk drawn from another State will not be supplied. The criterion in s. 33(6) (c) and s. 34(1) (b) and (d) is the opinion of the defendant, thereby disabling the applicant from establishing by judicial decision that the facts are such that no ground of objection, conformably with s. 928 can be taken to the grant of unconditional registration. Consequently, unless ss. 33 and 34 are read down so as not to apply to interstate trade in accordance with s. 14A of the Interpretation Act of 1897, as amended, they would collide with s. 92 - see Hughes & Vale Pty. Ltd. v. New South Wales (No. 2) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1955/28.html" title="View Case" class="autolink_findcases_inserted">[1955] HCA 28</a>; (1955) 93 CLR 127 ; Collier Garland Ltd. v. Hotchkiss <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1957/40.html" title="View Case" class="autolink_findcases_inserted">[1957] HCA 40</a>; (1957) 97 CLR 475 . (2) (c) Is s. 23 of the Dairy Industry Authority Act invalid or should it also be read as having no application to the plaintiff's interstate trade in pasteurized milk? (at p612) 31. By s. 23 "milk supplied for human consumption, as milk, or use by humans, as milk, in New South Wales", as well as milk supplied for use in the production or manufacture in the State of dairy products, is vested in the defendant: when vested and accepted by the defendant it is freed of all encumbrances, and the rights and interests of any person in the milk are converted into a claim for payment in accordance with prices notified by the Minister. Only a registered dairyman may deliver milk to the defendant and, as I have already observed, the defendant is not bound to accept any milk delivered to it (s. 24(1) and (2) ), although it may determine the quantity of milk per week which may be supplied by a dairyman and which it will accept. (at p612) 32. In my view, s. 23 vests the milk to which it refers in the defendant at the time of its supply for any of the purposes there mentioned, whether it is accepted by the defendant or not, and in those cases where it is accepted by the defendant, before that acceptance. I would give to the word "supplied" in s. 23(1) a meaning similar to that which Barwick C.J. gave to the same word in Andaloro v. Wyong Co-operative Dairy Society Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/61.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 61</a>; (1966) 119 CLR 278, at p 292 , when he said that the word signified "that point of time at which the milk is committed for the purpose of sale for consumption or use within a milk distributing district". Here it must be read as referring to the time when it is committed to any of the purposes mentioned in s. 23(1) within the State. In the Andaloro Case Barwick C.J. and McTiernan J., who concurred, were in the minority. However, the new Act, though similar to the Milk Act, 1931-1965 (N.S.W.), differs in its expression in such a way as to make the earlier decision of this Court distinguishable. There are three factors which lead me to this conclusion. Section 23(2) indicates that vesting precedes and is in no sense dependent on acceptance by the defendant of the milk. Section 24(1) makes it plain that vesting precedes and is in no sense dependent on delivery of the milk by a dairyman to the defendant. Milk not accepted by the defendant is nevertheless treated by s. 24(5) as milk which is vested in the defendant, requiring its express or deemed authority for disposition by the supplier. (at p613) 33. In terms, then, s. 23(1) would operate to divest the plaintiff's property in its pasteurized milk after it crosses the border as it is then appropriated for human consumption. The question is whether such a divesting is consistent with s. 92 and, if not, whether s. 23 should be read down in order to conform with s. 14A of the Interpretation Act. (at p613) 34. To support the valid application of s. 23 to the plaintiff's pasteurized milk the defendant relies on the decision of this Court in Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 , in which it was held that the Milk Act, containing an expropriation provision (s. 26) similar to the present s. 23, did not infringe s. 92. The two grounds upon which the members of the Court who formed the majority based their decision were that the validity of the scheme established by the Act had earlier been upheld in Crothers v. Sheil <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1933/42.html" title="View Case" class="autolink_findcases_inserted">[1933] HCA 42</a>; (1933) 49 CLR 399 and that the Act was not directed against interstate trade because it applied equally to interstate and intrastate trade. Neither ground can now be supported. In Crothers v. Sheil the decision was not that the scheme did not contravene s. 92, but that it was not established that the case involved an interstate transaction. And subsequent decisions such as Cam & Sons Pty. Ltd. v. Chief Secretary (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1951/59.html" title="View Case" class="autolink_findcases_inserted">[1951] HCA 59</a>; (1951) 84 CLR 442 and Fish Board v. Paradiso <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1956/60.html" title="View Case" class="autolink_findcases_inserted">[1956] HCA 60</a>; (1956) 95 CLR 443 have shown it is not enough to save a State Act from the operation of s. 92 that it applies alike to interstate and intrastate trade by divesting property in a commodity from those within the State as well as from those who bring it into the State in the course of interstate trade. For these reasons Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 should not now be followed. (at p614) 35. A State law which expropriates property in a commodity from a person who brings it into New South Wales from Victoria for the purpose of sale in New South Wales has an effect similar to a State law which prohibits the importation of that commodity into New South Wales from Victoria. Accordingly, unless it can be justified as an element in a scheme which constitutes a regulation of interstate trade, expropriation of goods in the course of that trade (cf. Grannall v. Marrickville Margarine Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1955/6.html" title="View Case" class="autolink_findcases_inserted">[1955] HCA 6</a>; (1955) 93 CLR 55 ), like prohibition, runs counter to s. 92 because its effect is to destroy that trade. (at p614) 36. It has been generally recognized that the absolute freedom of which s. 92 speaks must admit of some qualification. The conception of trade, commerce and intercourse in a community regulated by law, as the Privy Council observed in the Banking Case (1950) AC, at p 310; (1949) 79 CLR, at p 639 , "presupposes some degree of restriction upon the individual", with the consequence that the regulation of interstate trade is compatible with s. 92. It is the character and extent of the regulation which may be undertaken conformably with s. 92 that as always remains in question. (at p614) 37. Past experience has demonstrated that in deciding whether an attempted regulation of interstate trade falls foul of the section various factors need to be taken into account and that their significance depends upon the nature of the particular trade and the character of the regulation in question. All this makes it difficult to state in precise terms a criterion which will distinguish permissible regulation from that which is inconsistent with the section. (at p614) 38. Nevertheless, some assistance in elucidating this problem is to be gained by recalling, as I had occasion to point out in Pilkington v. Frank Hammond Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1974/13.html" title="View Case" class="autolink_findcases_inserted">[1974] HCA 13</a>; (1974) 131 CLR 124, at p 186 , that s. 92 has a predominant public character and that the protection which it gives to the rights of the individual is incidental to and consequential upon the protection which is given to the entire concept of interstate trade. Once the predominant public character of the provision is recognized it is more easily perceived that regulation of interstate trade, for the benefit of the community may be consistent with the freedom which is guaranteed and that it may not necessarily involve any collision with the derivative protection which the section gives to individual rights. (at p615) 39. The freedom guaranteed by s. 92 is not a concept of freedom to be ascertained by reference to the doctrines of political economy which prevailed in 1900; it is a concept of freedom which should be related to a developing society and to its needs as they evolve from time to time. Section 92 finds its place in a <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> which was intended to operate beyond the limits of then foreseeable time - it would be a serious mistake to read the guarantee or immunity which it offers as one which necessarily and rigidly reflects ideas accepted almost a century ago. Instead, the section should be seen as a provision whose operation may fluctuate as the community develops and as the need for new and different modes of regulation of trade and commerce become apparent. (at p615) 40. So much was, I think, acknowledged by the Privy Council in the Banking Case (1950) AC, at p 311; (1949) 79 CLR, at pp 640-641 . Lord Porter there said: <blockquote> "For their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free." (at p675) </blockquote> 41. As I remarked earlier, regulation of interstate trade the effect of which is to protect the public from the risk of contaminated or impure milk does not contravene <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> so long as it appears that the detriment which it works to interstate trade is reasonably necessary to protect the interests of the public. There is, of course, no reason why the class of regulation consistent with the section should be limited to laws the effect of which is to protect public health. There are many other fields in which interstate trade may be regulated in the interests of the public in conformity with <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92.</a> (at p616) 42. In the passage which I have quoted from the Banking Case (1950) AC, at p 311; (1949) 79 CLR, at pp 640-641 , Lord Porter was there speaking of the creation of a government monopoly which involved a prohibition against engagement in interstate trade. Even so, it was acknowledged that at some stage a total prohibition against engagement in interstate trade in the course of establishing a government monopoly might conceivably be consistent with <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92.</a> (at p616) 43. It is clear enough that it would be no easy task to bring a legislative scheme involving expropriation or monopoly safely home beyond the reach of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92.</a> It would need to appear that the scheme was "the only practical and reasonable manner of regulation", to use the words of Lord Porter, or that it was part of the "legal framework" within which <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> contemplated interstate trade as being freely carried on, to reiterate what Kitto J. said in Greutner v. Everard <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1960/33.html" title="View Case" class="autolink_findcases_inserted">[1960] HCA 33</a>; (1960) 103 CLR 177, at p 188 - see also Hughes & Vale Pty. Ltd. v. New South Wales (No. 2) (1955) 93 CLR, at pp 217-219 . (at p616) 44. Yet these considerations are of no avail to the defendant in the present case. It does not appear that the vesting of milk in the defendant is necessarily related to functions undertaken by it so as to protect the public from the dangers of contaminated or impure milk. For the most part it seems that, despite the vesting, milk remains in the possession of dairymen and milk vendors and that the precautions taken to prevent contamination and to maintain purity are taken by dairymen and vendors. Pasteurization, for example, is undertaken by those to whom certificates are issued under <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s33.html" class="autolink_findacts">s. 33.</a> It is not shown therefore that the vesting of milk in the defendant is the only practical and reasonable mode of regulating the trade in milk so as to ensure high quality and to protect public health. (at p616) 45. Indeed, it is a fair inference from the provisions of the Act that the vesting of milk in the defendant is designed not to ensure high quality and to protect public health, but to play a part in the rationalization of production of milk within the State, a field in which I suspect there is no intended role for the importer of milk from Victoria except in the event that New South Wales supplies prove deficient and then to the extent of the deficiency only. (at p616) 46. In the result, in order to save s. 23 from contravening s. 92, it is necessary to read it down in accordance with s. 14A of the Interpretation Act so as not to apply it to the plaintiff's milk brought into the State in the course of interstate trade. (at p617) 47. I would therefore answer the questions asked in the stated case as follows: 1. Is reg.79(10) (c) of the Pure Food Regulations made under the Pure Food Act, 1908 (N.S.W.) void for either, and if so, for which of the following reasons: <blockquote> (a) that it is contrary to the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>; (b) that it is ultra vires the regulation-making power given by <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s54.html" class="autolink_findacts">s. 54</a> of </blockquote>the Pure Food Act? <blockquote> Answer: Yes, for the reason stated in par. (a). 2. Are the provisions of reg.79(10) (c) of the Regulations made under the </blockquote>Pure Food Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to: <blockquote> (a) the sales of the plaintiff referred to in par. 6 of the stated case; (b) the sales referred to in par. 7 of the stated case; (c) the sales referred to in par. 8 of the stated case? Answer: Not answered. </blockquote> 3. Are the provisions of s. 23 of the Dairy Industry Authority Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to: (a) milk supplied and sold in the manner prescribed in par. 6 of the stated case; (b) milk supplied and sold in the manner described in par. 7 of the stated case; (c) milk supplied and sold in the manner described in par. 8 of the stated case? <blockquote> Answer: (a) Yes. (b) Yes. (c) Yes. 4. Is the condition numbered 3 to which the plaintiff's certificate of </blockquote>registration No. V1689 under the Dairy Industry Authority Act, 1970 was purportedly made subject by virtue of the variation dated 20th June 1973, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: <blockquote> (a) invalid, or (b) inapplicable to: (i) the sales of the plaintiff referred to in par. 6 of the stated case; (ii) the sales referred to in par. 7 of the stated case; (iii) the sales referred to in par. 8 of the stated case?194050 </blockquote>Answer: (b) Yes. 5. In the restriction of the plaintiff's certificate of registration No. V7712 under the Dairy Industry Authority Act, 1970, which purports to restrict the milk which the plaintiff is authorized to sell, to milk that has been pasteurized by Haberfield's Milk Pty. Ltd., Albury, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: <blockquote> (a) invalid, or (b) inapplicable to: (i) milk supplied and sold in the manner described in par. 6 of the stated </blockquote>case; (ii) milk supplied and sold in the manner described in par. 7 of the stated case; (iii) milk supplied and sold in the manner described in par. 8 of the stated case? <blockquote> Answer: (b) Yes. 6. Is the plaintiff, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the </blockquote><a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> entitled to sell milk in New South Wales in the manner described in: <blockquote> (a) Paragraph 6 of the stated case; (b) Paragraph 7 of the stated case; (c) Paragraph 8 of the stated case </blockquote>without being the holder of a certificate of registration as a milk vendor that authorizes it to do so pursuant to s. 33 of the Dairy Industry Authority Act, 1970? <blockquote> Answer: (a) Yes. (b) Yes. (c) Yes. (at p618) </blockquote> <blockquote> CARROLL'S FOOD MART PTY. LTD. v. DAIRY INDUSTRY AUTHORITY OF N.S.W. </blockquote> 48. The questions and facts recited in this stated case are similar to those considered in North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of New South Wales. North Eastern Dairy Co. Ltd. ("NEDCO") supplies milk pasteurized at Kiewa in Victoria to the plaintiff at its supermarkets at 447 Dean Street, Albury and at the Albury Village Shopping Centre where the plaintiff sells the milk by retail to the public. The supply of milk by NEDCO to the plaintiff is governed by two agreements dated 28th February 1974 between the parties. The first agreement relates to the supply of milk to the supermarket in Dean Street; its terms have been sufficiently stated in the earlier case. The second agreement relates to the supply of milk to the supermarket in the Albury Village Shopping Centre and it is expressed in terms which are almost identical. (at p618) 49. The plaintiff holds a certificate of registration as a milk vendor in respect of each of the supermarkets. By notice dated 22nd February 1974 the defendant varied the conditions to which each of the certificates was subject by making it a condition that the plaintiff would not sell milk that has not been delivered by a milk vendor authorized to sell milk that has been pasteurized by a milk vendor who is the holder of a certificate of registration under the Dairy Industry Authority Act authorizing him to pasteurize milk. (at p619) 50. The only distinction which emerges between the two cases is that in this instance it is the agent of the importer and interstate supplier who seeks the protection of s. 92. Although the plaintiff is not itself engaged in interstate trade, the restrictions sought to be placed upon it by the defendant are as destructive of the interstate trade in milk, and in particular of NEDCO's interstate trade in milk, as the conditions which the defendant has sought to impose on NEDCO's certificates of registration as a milk vendor. And as the plaintiff in selling NEDCO's milk acts as its agent and for that purpose holds the certificates of registration, it can avail itself of the protection of s. 92. Any other view would in my opinion operate as a negation of the protection which the section gives to interstate trade generally and to NEDCO's trade in particular. (at p619) 51. I would therefore answer the questions as follows: 1. Is reg. 79(10)(c) of the Pure Food Regulations made under the Pure Food Act, 1908 (N.S.W.) void for either, and if so, for which of the following reasons: <blockquote> (a) that it is contrary to the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>; (b) that it is ultra vires the regulation-making power given by <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s54.html" class="autolink_findacts">s. 54</a> of the </blockquote>Pure Food Act? Answer: Yes, for the reason stated in (a). 2. Are the provisions of reg. 79(10)(c) of the Regulations made under the Pure Food Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to the sales of the plaintiff referred to in par. 4 of the stated case? Answer: Not answered. 3. Are the provisions of s. 23 of the Dairy Industry Authority Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to milk supplied and sold in the manner described in par. 4 of the stated case? Answer: Yes. 4. Is the condition to which the plaintiff's certificates of registration under the Dairy Industry Authority Act, 1970 were purportedly made subject by virtue of the variations dated 22nd February 1974, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>. <blockquote> (a) invalid, or (b) inapplicable to the sales of the plaintiff referred to in par. 4 of the </blockquote>stated case? Answer: (b) Yes. 5. Is the plaintiff, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> entitled to sell milk in New South Wales in the manner described in par. 4 of the stated case without being the holder of a certificate of registration as a milk vendor that authorizes it to do so pursuant to s. 33 of the Dairy Industry Authority Act, 1970? Answer: Yes. (at p620) JACOBS J. The determination of the meaning and application of the apparently simple words of s. 92 has proved notoriously difficult. Its meaning has been definitively explored in earlier authority of this Court and of the Privy Council and thereby this difficulty is reduced, if not resolved, but its application to the multitude of factual situations which arise and will continue to arise frequently presents problems of great difficulty. In the course of this difficult task it is necessary always to go back to the words of the section as they have been construed and to set them against the factual situation, actual or envisaged, with which the Court is faced in the particular case. Section 92 operates upon factual situations, actual or envisaged, of trade, commerce, and intercourse among the States. It is not in terms an injunction against the enactment of laws. However, it happens that most commonly it falls to the courts to examine the operation of a law in order to determine whether and in what way that operation will affect acts or events of trade, commerce, and intercourse among the States; then, if it affects those acts or events in such a way that they are not absolutely free within the meaning of s. 92, that law is found incapable of affecting those acts or events. Section 92 prevails. Legislative power is denied, not directly, but indirectly, as a consequence. (at p620) 2. What has long been recognized is that by the words "absolutely free" there is not conferred upon any and every act or event of trade, commerce, and intercourse among the States, an immunity from all controls, an absolute licence. This construction of the section, in the face of its words read literally, has been forced on the Court by the sheer necessity of life in an organized society as that society exists and evolves. But obviously, once this necessity is recognized, something must be added or implied in the construction of the two apparently peremptory words. The implication has been expressed by taking the antonyms of freedom, namely burden or restriction, and by describing the type of burden or restriction which is not antithetical to being absolutely free within the meaning assigned to those words in s. 92. Though previously in decisions of this Court not dissimilar statements had been made, the implication was definitively stated in the Banking Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 . The burden or restriction which is inconsistent with absolute freedom is one which operates directly and immediately and not so indirectly or consequentially that it may fairly be regarded as remote. It must operate upon the act or event which is an act or event of trade, commerce, and intercourse among the States and it must be one which on analysis cannot fairly be described as "regulatory" in character. The difficulties arise in the application of this test or these tests to particular circumstances, in the characterization of the operation of any particular law or other act upon the act or event of trade, commerce, and intercourse in order to determine whether or not it is a burden or restriction which is inconsistent with the absolute freedom which s. 92 enjoins. (at p621) 3. The difficulties, I think, are reduced, though not removed, if it is realized that, although the meaning of s. 92 is a question of law, the question whether by the operation of any impugned legislative or other act an act or event of trade, commerce, or intercourse among the States is in the particular circumstances not absolutely free is a question of fact and different answers to very similar questions may need to be given at different times and in different generations. For instance, the difference between Australia at war and Australia at peace may result in different answers to the question proposed. The degree to which the exigencies of modern industrial society may require the governments of our society to control or participate in the trade, commerce, and intercourse of that society may likewise require different answers to the question of fact to be given at different times and in different ages. Another consequence is that since the elucidation of the question in each case involves judgment upon a question of fact, it is inevitable and has been recognized to be inevitable that judicial minds will differ on the answer to be given. None of this results in uncertainty in the law so long as the factual basis of the decisions is recognized. Nevertheless, it is inevitable and proper that such decisions should result in a pattern emerging, a pattern which will remain applicable in a given time and condition of our society. There is nothing novel in this. The indeterminate tests for the establishment of breach of legal right or duty, of which reasonableness is perhaps the best known, are familiar to lawyers trained in the common law, who are equally familiar with the need constantly to bear in mind the danger of elevating the reasoned conclusion of fact into an immutable principle of law. (at p622) 4. The court reaches the necessary conclusions of fact largely on the basis of its knowledge of the society of which it is a part. The supplementing of that knowledge is a process which does not readily lend itself to the normal procedures for the reception of evidence. The special nature of the knowledge sought to be imparted to the court has led to difficulties which have been the subject of learned writing. I only wish to state my view that parties should not feel bound to channel the information which they or any of them desire to have before the court into a pleading or statement of agreed facts or stated case (as was done in the instant cases). All material relevant (in a general, not a technical, sense) to the matter under consideration may be brought to the court's attention, though it is obviously desirable that it should be previously exchanged between the parties. (at p622) 5. Where, as in the instant cases, the impugned burden or restriction flows from legislation, Acts and regulations, the operation of that legislation must be examined in order to determine its impact, if any, on trade, commerce, and intercourse among the States and to determine whether that impact is impermissible within the meaning which has been assigned to the words of s. 92. This inquiry is not a literal but a practical inquiry in both its principal aspects, namely, whether the operation of the legislation creates an impediment on trade, commerce, and intercourse between the States which is a direct one (that is to say, not a consequential impediment which may fairly be regarded as remote), and whether the legislation can properly be regarded as regulatory. One must look for the burden or restriction not only in the language of the legislation but in the operation of the legislation. This is made clear by the words of the Judicial Committee in the Banking Case (1950) AC, at p 310; (1949) 79 CLR, at p 639 . Their Lordships said: <blockquote> "...s. 92 is violated only when a legislative or executive act operates to restrict such trade commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote." (at p623) </blockquote> 6. They did not say "when a legislative or executive act restricts such trade, commerce, and intercourse directly" and I would not assume that the language used was a circumlocution for the latter form of expression. Moreover, the distinction was not one with every consequential impediment but with a consequential impediment "which may fairly be regarded as remote". (at p623) 7. The principle enunciated finds, perhaps, its clearest illustration in the operation of legislative or other acts which are in terms discriminatory against trade, commerce, or intercourse with another State or other States. Examples of a legislative act discriminatory in its terms are naturally rare but one such example is Fox v. Robbins <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1909/81.html" title="View Case" class="autolink_findcases_inserted">[1909] HCA 81</a>; (1909) 8 CLR 115 . More commonly, however, it is not the operation of the legislative act gleaned from its express terms but its actual operation in the community which results in the discrimination. The fact that the result of the operation of the legislative act is discrimination is, it may be generally stated, sufficient to show that that act operates to restrict trade, commerce, and intercourse among the States directly and immediately. Discrimination as a cause of invalidity is not an exception to some otherwise generally applicable principle but is a most glaring example of the application of the relevant principle itself. (at p623) 8. I would next state the necessity to bear in mind that the act of trade, commerce, and intercourse among the States may not be the act of the party who seeks to assert the freedom which s. 92 enjoins. That party may rely on a burden placed upon the trade, commerce, or intercourse of another because s. 92 establishes a national constitutional injunction against any impermissible burden. This is subject only to the party having a sufficient interest to maintain the action. Once the act or event which forms part of trade, commerce, and intercourse among the States is identified then attention must be concentrated on that act or event in applying s. 92 to it. (at p623) 9. The directness of the burden or restriction on an act or event of trade, commerce, and intercourse among the States is related to the character of the burden or restriction - on whether it is prohibitive or regulatory. The questions of directness and of regulatory character are "cognate" problems, to use the word of the Judicial Committee in the Banking Case (1950) AC, at p 309; (1949) 79 CLR, at p 639 . Thus, a State statute may in many instances validly impose a requirement on an intrastate sale whatever be the source of the subject goods but that requirement may be an illegitimate restriction on the actual interstate sale of those same goods. The directness of the burden or restriction operating upon the act or event of trade, commerce or intercourse among the States at the instance of one only of those States is sufficient in itself to attract the injunction of s. 92. On the other hand, in some instances the restriction on the interstate sale itself may be legitimate because its regulatory character is recognizably permissible despite the directness of the burden. In other cases still the nature of the burden imposed on the intrastate sale may be such that it operates as a burden on the prior interstate transaction. (at p624) 10. But in every case it is necessary to examine the nature and quality of the restriction in the light of the known and proved economic social and other circumstances of its imposition and of the community in which it is imposed. The operation of the restriction is thus determined without any need to speculate about the motives of the legislation. The purpose and effect of the legislation must be examined in the circumstances of its enactment and in the light of its operation in those circumstances of time and place. (at p624) 11. Where the restriction operates on a resale within a State of goods the subject of a previous interstate sale, the restriction will be closely scrutinized by the Court in order to make sure that the effect on that previous interstate sale is so indirect or consequential that it may fairly be described as remote. As a broad generalization it may be stated that, though the actual interstate sale must generally be left free of impediment imposed unilaterally by the State, once the subject goods have been sold and delivered into the other State they are subject to the laws of that State which regulate the sale of all such goods in that State. However, this can only be stated as a broad generalization. Moreover, the particular law of the importing State may be such that it effectively prevents the resale of the imported goods in circumstances unrelated to any criterion or regulation of sale, but related rather to prohibition of sale. Such prohibitions of resale, as distinct from regulation thereof, will frequently on examination be found to operate upon the prior interstate sale by way of direct impediment rather than "indirect or consequential impediment which may fairly be regarded as remote" and will not easily escape the injunction of s. 92 unless the interstate sale itself would have escaped that injunction. Where the effect of State legislation in its operation is to give preference or advantage to the same or a competing class of goods produced in that State that legislation is more likely than not to be found to create a direct impediment to the interstate sale of those goods even though the legislation in its terms appears to place a burden only on sales or other dealings with the goods in that State. (at p625) 12. I have attempted to set out as shortly and simply as I can, in the light of the authorities, the approach which should be made to such a set of facts as is now presented to the Court. It is necessary to say something of those authorities which deal with facts similar to the present cases or said to do so. It is not necessary to refer to cases on kindred but distinguishable circumstances, cases for instance, on monopoly or manufacture in one State for purposes of trade with another State or on expropriation legislation where a whole class of goods is expropriated. (at p625) 13. Wragg v. New South Wales <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 has naturally and properly been regarded as a case of great importance in the history of judicial interpretation and application of s. 92. Before I come to it I would refer to certain earlier decisions. The first is W. & A. McArthur v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1920/77.html" title="View Case" class="autolink_findcases_inserted">[1920] HCA 77</a>; (1920) 28 CLR 530 . That case dealt with contracts for the sale of unascertained goods. I would summarize the conclusion as follows. Where the source of those goods was intended by the contract to be another State, the contract itself was an act of trade, commerce, and intercourse among the States. Where the source of goods was no part of the contract, the contract said nothing on the subject matter of trade, commerce, and intercourse among the States. On the other hand, Vacuum Oil Co. Pty. Ltd. v. Queensland <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1934/5.html" title="View Case" class="autolink_findcases_inserted">[1934] HCA 5</a>; (1934) 51 CLR 108 was a case where the sale was by the person who introduced the goods into the State of Queensland for the purposes of sale and the imposition was held in the circumstances to be an impermissible burden on such a person. The same may be said of The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1926/47.html" title="View Case" class="autolink_findcases_inserted">[1926] HCA 47</a>; (1926) 38 CLR 408 . (at p625) 14. I shall pass by Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 in order to return to it later and I come now to Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 . That case stressed the importance of identifying the act or event of trade, commerce, and intercourse among the States and of examining whether there is imposed by the impugned legislation a direct impediment of an impermissible kind on that act or event. It declared that in the case of an impediment imposed on intrastate sales it was not sufficient in order to obtain relief from that impediment by virtue of s. 92 merely to find that the goods in question had been the subject of a prior interstate sale. In particular it was held that State price fixing of intrastate sales had no direct effect on the freedom of a prior act of interstate sale. The price fixing on the intrastate sale produced no more than "economic consequences prejudicing importation because it effects the domestic price which an importer can afford to pay" per Dixon C.J. (1953) 88 CLR, at p 387 . This was not sufficient: "... any effect which the prescription of a general price for intra-State sales may have on the business of importing potatoes from Tasmania is not a direct effect but an economic consequence too remote to constitute an impairment of the freedom which s. 92 assures" per Taylor J. (1953) 88 CLR, at p 398 . These carefully chosen words fall far short of erecting a complete dichotomy between direct effect and economic consequence and this is borne out by the later passage (1953) 88 CLR, at p 399 : "The conclusion might well be different if it were established in any particular case that a Prices Regulation Order relating to intra-State sales had been promulgated for the purpose of preventing or impeding or otherwise burdening the business of importing such goods into New South Wales from another State." The purpose here referred to is the purpose to be gathered from the legislation and is the same as the effect of the legislation. This is well established. (at p626) 15. There is another aspect of Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 - the sales by "primary wholesalers" who were importers. Dixon C.J. dealt with the position of "primary wholesalers" generally (1953) 88 CLR, at p 383 . He did not advert to the position of "primary wholesalers" whose course of dealing was related in par. 18 of the stated case (1953) 88 CLR, at pp 360-361 . Taylor J. dealt with "primary wholesalers" and said (1953) 88 CLR, at p 399 : <blockquote> "With respect to sales by 'primary wholesalers' who are importers there may be stronger grounds for invoking s. 92, for some of these sales may actually be made in the course of inter-State trade. But before the plaintiffs can invoke s. 92 they must establish that, at least, some of those sales are of such a character as to be within the protection of s. 92. In my opinion, the facts leave this matter completely open. It is true that, except in the case of the small proportion sold by primary wholesalers otherwise than to secondary wholesalers, the primary wholesaler does not take the imported potatoes into store but sells them ex-wharf and delivery is taken by the purchaser at the wharf, but such sales are not necessarily part of inter-State trade. Possibly, upon examination, some may be found to fall within this category, but this is not sufficient to entitle the plaintiffs to any declaration based on the assumption that all or any of them constitute a part of trade, commerce and intercourse between the States even if, by reason of s. 92 such sales are not subject to the provisions of the legislation - a point which the views above expressed leave completely open." </blockquote>Taylor J. was here dealing with all relevant primary wholesalers because in one or another sense of the term they were all importers of Tasmanian potatoes. He was not dealing only with those whose course of dealing was described in par. 18 of the stated case. The word "importer" is used to describe persons in two different situations. If I order goods from abroad, or from another State, and pursuant to that order goods are shipped and then completion of the sale takes place by delivery and payment on arrival I am commonly described as an importer of the goods. But if by that is meant an importer of my own goods, that is not always or even usually correct. The vendor brings the goods in to my order and completes the sale to me in this State. However, if I send or bring my own goods into the State, I am also described as an importer. At the same time however I am exporter from the place whence the goods are sent. (at p627) 16. Now in Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 the impugned sales in New South Wales were in no instance established as sales mad eby a company which had sent or brought its own potatoes into the State for the purposes of selling them. They were all, so far as is now relevant, sales made in New South Wales by a company which had bought from a Tasmanian exporter. I would not like to think that the distinction which I make turns primarily on when the property in the potatoes passed. What is an act or event of trade, commerce, and intercourse among the States must be determined as a matter of commercial reality rather than of mere legal form. However, I would point out that, even in the case of the few sales made direct between the Tasmanian exporter and the New South Wales primary wholesaler, it was not established that the primary wholesaler was bringing into the State of New South Wales potatoes the property in which had already passed to it in the State of Tasmania. The property would not generally pass until payment against delivery of shipping documents: Halsbury's Laws of England, 3rd ed., vol. 34, pp. 165, 173-174: and there was no evidence of when payment and delivery of shipping documents took place. The so-called importer was not bringing in its own potatoes from Tasmania and then selling them in New South Wales. The exporter from Tasmania was either the importer in the strict sense into New South Wales or else in other cases the first sale between the two States was to P.I.C. Pty. Ltd. Therefore, Wragg's Case (1953) 88 CLR, at p 353 does not deal with the power of the State to restrict the first sale by an exporter-importer. It does not deal with sales by importers who are also exporters from the other States, as in the case now before the Court. In my view the words of Dixon C.J. in Wragg's Case (1953) 88 CLR, at p 387 must be read in the light of those facts. He never acceded to the proposition that a man who brought goods into a State from another State for the purpose of selling them ended his interstate transaction when he brought the goods in but before he sold them. Nor can I read the language of Taylor J. in this important judgment as so holding. He was dealing with importers who were not also exporters from the other State and with sales in New South Wales by those importers. He showed clearly that the interstate transaction was the export-import transaction of sale and delivery and not the subsequent sale in New South Wales by the so-called importer. However, neither the conclusion, nor in my respectful view the reasoning, establish that export-import separated from the sale which is the purpose of the export-import is the only act or event of trade, commerce, and intercourse among the States. I repeat that an act or event of trade, commerce, and intercourse among the States must be looked at in its commercial reality. If a man buys goods in one State and has them sent to him in another State, the interstate act or event extends from the sale to the delivery. When the goods are received the interstate transaction is completed. That is what I understand Wragg's Case to have decided. It does not decide that the interstate transaction is not still current so long as an exporter is selling or attempting to sell his goods from one State in another. I would interpose here that I find it impossible to distinguish between an exporter who sends his goods to another State pursuant to a contract of sale with a purchaser in that State and an exporter who accompanies his goods, in person or by his agent, to another State in the hope of selling them there. In neither case at that stage are the goods committed to the intra-State trade of the importing State. Indeed in the second case the exporter may not find a purchaser and may perforce send or take the goods back whence they came. (at p628) 17. Three years later Fish Board v. Paradiso <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1956/60.html" title="View Case" class="autolink_findcases_inserted">[1956] HCA 60</a>; (1956) 95 CLR 443 was decided. It was a case of an "importer", not an exporter-importer. The actual interstate transaction was the contract of sale and delivery from New South Wales into Queensland. Nevertheless, the majority of the Court took the view that an Act prohibiting the resale of the fish by that purchaser importer operated to restrict the trade and commerce between New South Wales and Queensland directly and immediately. Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases">[1953] HCA 34</a>; (1953) 88 CLR 353 could be distinguished by applying the test laid down in the Banking Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1949/47.html" title="View Case" class="autolink_findcases_inserted">[1949] HCA 47</a>; (1950) AC 235; (1949) 79 CLR 497 in such a way as to look beyond the immediate legal effect of the Act to what was held to be its direct operation upon the interstate transaction. (at p629) 18. In the meantime Kitto J. had decided Williams v. Metropolitan and Export Abattoirs Board <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/93.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 93</a>; (1953) 89 CLR 66 . The facts in that case were in my respectful opinion significantly different from those in Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 . There had been a threat to forfeit goods of a Victorian trader whose goods from Victoria were in South Australia in course of transit to his South Australian agent for the satisfaction of orders obtained from customers in South Australia. A declaration was sought inter alia that the South Australian statute did not authorize the seizure of the goods of the Victorian trader. The ground was that the goods were in the course of trade, commerce, and intercourse among the States. Kitto J. held that they were not because the contracts of sale between the Victorian trader and the Adelaide merchants had not included a term that the source of the goods should be another State. But with great respect it appears to me that the Victorian trader's transactions had passed beyond the stage of a contract for the sale of unascertained goods. At the time of the threat to forfeit under the South Australia law Victorian goods were in course of transit from Victoria to South Australia either for sale generally or in fulfilment of prior contracts. The import into South Australia and the sale there were part and parcel of the same transaction. I am unable to separate the import from the purpose of that import - the purpose of selling or of fulfilment of a prior contract of sale. I respectfully agree with the analysis of this case by Barwick C.J. in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR, at pp 547-549 . (at p629) 19. Harper v. Victoria <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/26.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 26</a>; (1966) 114 CLR 361 is an instance of a restriction placed primarily upon an intrastate sale where the goods had been the subject to a previous interstate transaction which had been completed. In Harper v. Victoria <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/26.html" title="View Case" class="autolink_findcases">[1966] HCA 26</a>; (1966) 114 CLR 361 the effect upon trade, commerce, and intercourse among the States was considered and it was held that the effect was not one which could be described as direct, rather than a remotely consequential, one. On the other hand, in O'Sullivan v. Miracle Foods (S.A.) Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1966/64.html" title="View Case" class="autolink_findcases_inserted">[1966] HCA 64</a>; (1966) 115 CLR 177 it was held that, although the immediate burden of s. 23 of the Margarine Act, 1939-1956 (S.A.) was placed upon intrastate acts and transactions, nevertheless the law operated in such a way as to impose an illegitimate burden upon prior interstate transactions in that the effect on the latter transactions was direct rather than remotely consequential. It may well be that the factual test applied in reaching this conclusion was whether the legislation in its operation resulted in a preference or advantage to a competing class of goods produced in the State imposing the burden by prohibiting the sale of the other goods or by imposing conditions of sale or resale unrelated to any criterion of regulation. But it was essentially a decision on the facts, namely, the operation of the law in the circumstances of the time and place. The difference of result in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR 529 must be regarded as a difference flowing from the different operation of a different law in different circumstances. The different conclusions may be difficult to explain but it is only to make confusion worse confounded to attempt a reconcilation by enunciation of immutable propositions of law, or to regard one as rightly and the other wrongly decided in law. At the most there were different evaluations of factual situations. (at p630) 20. Cantarella v. Egg Marketing Board (N.S.W.) <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1972/16.html" title="View Case" class="autolink_findcases_inserted">[1972] HCA 16</a>; (1972) 124 CLR 605 requires especial considerations. In so far as it was held that the conditions imposed on the interstate sale of eggs were regulatory it was a decision depending on all the facts and circumstances. However, if it was decided that there was no relevant interstate transaction (and therefore no relevant trade, commerce, and intercourse among the States) on the ground that the interstate transaction consisted only of the carriage of the eggs from Queensland to New South Wales and did not extend to the sale in New South Wales by the Queensland exporter McLean (through his agents Peter and Carmel Cantarella) which was the purpose of the carriage, then with respect I do not think that the decision should be followed. I think, however, that that was not a ratio decidendi of the majority but was that of Walsh J. only. He placed reliance upon the fact that there was no preceding contract of sale while the eggs were in Queensland, therefore no interstate sale of eggs and therefore no transaction of trade, commerce, and intercourse among the States, other than the making of the interstate journey which was at an end before the sale took place in Sydney between the Queensland exporter and the New South Wales purchaser. With great respect I cannot accept the proposition that such trade, commerce, and intercourse between Queensland and New South Wales as the Queensland exporter had was limited to the journey. It extended to the purpose of that journey, namely, sale. That was the only reason why he sent his eggs from Queensland to New South Wales. The journey and the subsequent sale were part of one enterprise of trade, commerce, and intercourse among the States of Queensland and New South Wales. The decision can only be sustained on the basis that the conditions imposed were an essentially reasonable regulation applicable to the sale of all eggs to which they applied and which had no vitiating character in their operation, such as, for instance, conferring a preference or advantage in fact on New South Wales traders over traders from other States. (at p631) 21. The same cannot be said of the New South Wales Act which presently falls to be considered by this Court. The Dairy Industry Authority Act, 1970 (N.S.W.) is plainly an Act regulating the supply of milk in New South Wales for the purpose of controlling the extent of its production, even though a legislative intention is disclosed that a purpose of the Authority should be that of ensuring the wholesomeness and purity of milk and dairy products in the interests of public health (s. 17). The legislative intention is - (1) that the Authority should acquire title to all milk intended for human consumption or use, as milk, or for use in the production or manufacture of dairying products (s. 23); (2) that the Authority should acquire that title from registered dairymen and no one else (s. 24(1)); (3) that the quantity to be acquired by the Authority from a registered dairyman should be determined by the Authority (s. 18 (1) (d) and s. 26) within the special quota provisions in Pt IV of the Act; (4) that all sales of milk other than a deemed sale to the Authority under s. 25(2) should be by registered milk vendors (s. 33); (5) that as a consequence registered milk vendors should sell only milk to which the Authority had acquired title; (6) that any treatment of milk, as by pasteurization, should be done by the Authority (s. 19(a)) or by a registered milk vendor whose certificate of registration authorized him to carry on that activity (s. 33); (7) that no land or premises should be used as dairy premises, that is to say, used for or in connexion with the stalling, grazing, feeding or milking of cattle for the purpose of producing milk which is supplied for profit or sale except land occupied by a registered dairyman (ss. 4 and 33); and (8) that the dairy premises of a dairyman should be situated in New South Wales: Interpretation Act, 1897 (N.S.W.), s. 17. (at p632) 22. Thus only milk produced from dairy premises in New South Wales can be sold in New South Wales for human consumption. The Act does not provide a scheme for the marketing of milk wherever it may be produced. The effect of the legislation is that the plaintiff North Eastern Dairy Co. Limited cannot sell its milk produced in Victoria anywhere in New South Wales for human consumption, as milk, or for use by humans as milk or for use in the production or manufacture in New South Wales of dairy products (s. 24(5)). The language of s. 24 in relation to s. 23 is difficult but it may be taken that the milk of this plaintiff is not accepted by the Dairy Industry Authority - indeed it cannot be as this plaintiff is not a registered dairyman - and therefore s. 24 (5) is applicable. This plaintiff cannot supply, sell, or deliver the milk in its raw state even to a pasteurizing company (s. 24(6) and s. 33(1)). It cannot sell its pasteurized milk by virtue of the same provisions. It is doubtful whether it could sell the milk other than for human consumption or use as milk or for use in the production or manufacture of dairy produce (s. 24(5)), as such a sale would be a sale of milk, and the plaintiff would be a milk vendor carrying on an activity as such without being the holder of a certificate of registration authorizing him so to do (s. 33). The only possibility of this plaintiff selling its milk in New South Wales is if the Authority with the approval of the Governor should exercise its power under s. 19(e) to purchase the milk. (at p632) 23. Legislation which so operates is, in my view, plainly obnoxious to the injunction of s. 92 and is therefore incapable of application to the sale or supply by the plaintiff North Eastern Dairy Co. Ltd. either directly or by its agent of its milk in New South Wales, subject only to the question whether a purpose in the legislation of assuring purity and wholesomeness of milk makes that legislation permissible where it would otherwise be impermissible. For the moment I leave this question aside and will return to it when at the same time I consider the applicability to the plaintiffs of reg. 79(10)(c) of the regulations made under the Pure Food Act, 1908 (N.S.W.). (at p633) 24. For reasons which appear from what I have stated earlier I am of the opinion that the plaintiff North Eastern Dairy Co. Ltd. directly and through its agent Carroll's Food Mart Pty. Ltd. engages in a transaction of trade, commerce, and intercourse between the States of Victoria and New South Wales when it transports milk from Victoria to New South Wales for the purpose of selling the milk in New South Wales either directly or through its agent and when it sells the milk to purchasers in New South Wales. The transport, the purpose thereof and the effectuation of the purpose are not severable. Subject to the question whether the burden is permissible even on this transaction because of a regulatory character thereof, that is the end of the matter on the facts presented before the Court. It has been strongly urged that Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 is applicable but that case has little, if anything, to say on a transaction of the kind presently being considered. In Wragg's Case the sales by all concerned were sales of potatoes in New South Wales after the conclusion of the interstate sales. They were resales, just as sales by purchasers from the plaintiff North Eastern Dairy Co. Ltd. in New South Wales would be resales. It was held that the effect on the interstate transaction was remotely consequential. There was still complete freedom to export potatoes to New South Wales; there was only the economic consequence affecting the price at which such exports could be effected. None of this is true in the present case, even if the relevant sales were or should be regarded as intrastate sales. If either sale or resale within New South Wales of the plaintiff Victorian company's milk falls within the Dairy Industry Authority Act, 1970 (N.S.W.), then that Act operates directly and in no way indirectly or consequently upon any interstate transaction between the Victorian company and any New South Wales consumers or resellers. There cannot practically be any such transactions. The interstate trade would for all practical purposes be brought to an end. There is nothing remote or consequential about that, especially when the impugned Act by such an operation has the effect of preferring New South Wales milk producers to those such as the plaintiff who produce milk in another State. In no way, therefore, are the principles enunciated in Wragg's Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1953/34.html" title="View Case" class="autolink_findcases_inserted">[1953] HCA 34</a>; (1953) 88 CLR 353 applicable to the circumstances of the present case. I should add that I say nothing of the case where the legislation provides for compulsory resale within the importing State. That is not the present case. Even if the Victorian milk vests in the Authority by virtue of s. 23 there is no provision whereby the Authority is bound to pay for it. If it does not vest, then there is a simple prohibition on resale. On both views the interstate trade is directly burdened. (at p634) 25. There is next the question whether the impugned provisions of the Act are regulatory in character so that the burden imposed on the acts and events of trade, commerce, and intercourse between Victoria and New South Wales is permissible. Clearly they are not in themselves regulatory only. It would be fanciful to suggest that the purpose expressed in s. 17 colours the operation of the whole Act so far as it operates upon the supply and distribution of milk generally. It is in its operation a milk supply Act which goes far beyond what is necessary and reasonable to ensure the wholesomeness and purity of milk and dairy products in the interests of public health. Even if it were, it selects as its criterion of operation factors which negate the possibility of continued trade and commerce between Victoria and New South Wales in milk and dairy products. (at p634) 26. It is convenient now to turn to reg. 79(10)(c) of the regulations made under the Pure Food Act, 1908 (N.S.W.). It is as follows: <blockquote> "As on and from 1st July 1973, no person shall supply or sell pasteurised milk for human consumption or use by man in New South Wales that has not been pasteurised by a holder of a certificate of registration issued under the provisions of the Dairy Industry Authority Act, 1970, that authorises that holder to carry on the activity of pasteurising milk." (at p634) </blockquote> 27. This regulation cannot consistently with s. 92 be allowed on the facts and in the circumstances disclosed in the stated cases to operate so that no milk from Victoria can be sold in New South Wales. This is so for a number of reasons. The regulation selects as the measure of control the application of the provisions of an Act which in its integral structure offends against the injunction of s. 92. This is impermissible in itself. The submission of the defendant Authority is that milk is a product which must be produced and treated under especially hygienic conditions and that it is a permissible regulation of trade in that product within the State of New South Wales that only milk from sources under the control of that State and its inspectors should be supplied and sold in New South Wales. But this submission cannot be sustained. It does not explain the purpose and effect of the Dairy Industry Authority Act itself. It goes some way to explaining reg. 79(10) (c) but not far enough. There is nothing in the cases or the material before the Court to suggest that Victoria has a defective or ineffective system of hygienic control of its milk production and treatment. Indeed the contrary is the true position. The requirements of the <a href="/cgi-bin/viewdoc/au/legis/vic/hist_act/mpa1958242/" class="autolink_findacts">Milk Pasteurization Act 1958</a> (Vict.) demonstrably achieve the purpose of proper milk pasteurization which may be accepted as the purpose of reg. 79 (10) (c). In those circumstances the latter cannot be allowed to operate so as to prohibit the supply and sale of Victorian pasteurized milk in New South Wales. The impediment to trade, commerce, and intercourse is in such circumstances direct prohibition, not regulation. (at p635) 28. What, then, of Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 ? That was a decision on the Milk Act, 1931 (N.S.W.). It is to be noted that the circumstances were different from those now appearing in that the sales by the defendant company were of cream supplied to it from Victoria. It purchased the cream there and took delivery in Sydney. See per Starke J. (1939) 62 CLR, at p 138 . This interstate sale and delivery was a prior transaction. (at p635) 29. The argument of the plaintiff Milk Board was that the cream being sold by the defendant company, being cream which had been purchased from Victorian vendors, was vested in the Board and an injunction was sought to restrain its resale by the defendant company in the metropolitan milk distributing district of Sydney upon the ground that the cream was the property of the Board. See per Latham C.J. (1939) 62 CLR, at pp 120-121 . The Milk Board expressly recognized its obligation to pay for the cream so vested in it. See per Latham C.J. (1939) 62 CLR, at p 136 . That was a different set of facts altogether. Whether differences in the Acts justified such a different view of this operation of the Milk Act from that now propounded as the operation of the Dairy Industry Authority Act I am not concerned to inquire. One thing is clear, namely, that the Dairy Industry Authority has no intention of paying the plaintiff Victorian milk producer for all the milk and dairy products which it sees fit to export to New South Wales, and the Act does not provide that it shall do so. There is thus an absolute prohibition on sale or resale, with no provision for compulsory sale or resale on terms which do not destroy the practical possibility of the continuance of the plaintiffs' trade, commerce, and intercourse between Victoria and New South Wales in milk and dairy products. I would expressly leave open the question whether, on the assumptions of fact as to the operation of the Milk Act, 1931 which were the basis of the decision in the Metropolitan Cream Case <a href="/cgi-bin/viewdoc/au/cases/cth/HCA/1939/28.html" title="View Case" class="autolink_findcases_inserted">[1939] HCA 28</a>; (1939) 62 CLR 116 , that case was correctly decided. (at p636) 30. I would answer the questions in the stated case as follows: North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of New South Wales. 1. Not answered. 2. Yes. 3. Yes. 4. Not answered. 5. Not answered. 6. Yes. Carroll's Food Mart Pty. Ltd. v. Dairy Industry Authority of New South Wales. <blockquote> 1. Not answered. 2. Yes. 3. Yes. 4. Not answered. 5. Yes. </blockquote>(at p636) ORDERNORTH EASTERN DAIRY CO. LTD. v. DAIRY INDUSTRY AUTHORITY OF N.S.W. The questions asked in the Case Stated are answered as follows:- 1. Is reg. 79(10) (c) of the Pure Food Regulations made under the Pure Food Act, 1908 (N.S.W.) void for either, and if so, for which of the following reasons:- <blockquote> (a) that it is contrary to the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>; (b) that it is ultra vires the regulation-making power given by <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s54.html" class="autolink_findacts">s. 54</a> of the </blockquote>Pure Food Act? Answer: Yes, for the reason stated in par. (a). 2. Are the provisions of reg. 79(10) (c) of the regulations made under the Pure Food Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to: <blockquote> (a) the sales of the plaintiff referred to in par. 6 of the Stated Case; (b) the sales referred to in par. 7 of the Stated Case; (c) the sales referred to in par. 8 of the Stated Case? </blockquote>Unnecessary to answer. 3. Are the provisions of s. 23 of the Dairy Industry Authority Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to: (a) milk supplied and sold in the manner described in par. 6 of the Stated Case; (b) milk supplied and sold in the manner described in par. 7 of the Stated Case; (c) milk supplied and sold in the manner described in par. 8 of the Stated Case? Answer: (a) Yes. <blockquote> (b) Yes. (c) Yes. 4. Is the condition numbered 3 to which the plaintiff's Certificate of </blockquote>Registration No. V1689 under the Dairy Industry Authority Act, 1970 was purportedly made subject by virtue of the variation dated 20th June 1973, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: <blockquote> (a) invalid, or (b) inapplicable to: (i) the sales of the plaintiff referred to in par. 6 of the Stated Case; (ii) the sales referred to in par. 7 of the Stated Case; (iii) the sales referred to in par. 8 of the Stated Case? </blockquote>Answer: (b) (i) Yes. <blockquote> (ii) Yes. (iii) Yes. 5. Is the restriction of the plaintiff's Certificate of Registration No. </blockquote>V7712 under the Dairy Industry Authority Act, 1970, which purports to restrict the milk which the plaintiff is authorized to sell, to milk that has been pasteurized by Haberfields Milk Pty. Limited, Albury by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: <blockquote> (a) invalid, or (b) inapplicable to: (i) milk supplied and sold in the manner described in par. 6 of the Stated </blockquote>Case; (ii) milk supplied and sold in the manner described in par. 7 of the Stated Case; (iii) milk supplied and sold in the manner described in par. 8 of the Stated Case? Answer: (b) (i) Yes. <blockquote> (ii) Yes. (iii) Yes. 6. Is the plaintiff, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the </blockquote><a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> entitled to sell milk in New South Wales in the manner described in: <blockquote> (a) Paragraph 6 of the Stated Case; (b) Paragraph 7 of the Stated Case; (c) Paragraph 8 of the Stated Case without being the holder of a </blockquote>certificate of registration as a milk vendor that authorizes it to do so pursuant to s. 33 of the Dairy Industry Authority Act, 1970. Answer: (a) Yes. <blockquote> (b) Yes. (c) Yes. </blockquote>CARROLLS FOOD MART PTY. LTD. v. DAIRY INDUSTRY AUTHORITY OF N.S.W. The questions asked in the Case Stated are answered as follows:- 1. Is reg. 79(10) (c) of the Pure Food Regulations made under the Pure Food Act, 1908 (N.S.W.) void for either, and if so, for which of the following reasons:- <blockquote> (a) that it is contrary to the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>; (b) that it is ultra vires the regulation-making power given by <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s54.html" class="autolink_findacts">s. 54</a> of </blockquote>the Pure Food Act? Answer: Yes, for the reason stated in par. (a). 2. Are the provisions of reg. 79(10) (c) of the regulations made under the Pure Food Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to the sales of the plaintiff referred to in par. 4 of the Stated Case? Unnecessary to answer. 3. Are the provisions of s. 23 of the Dairy Industry Authority Act inapplicable by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> to milk supplied and sold in the manner described in par. 4 of the Stated Case? Answer: Yes. 4. Is the condition to which the plaintiff's certificates of registration under the Dairy Industry Authority Act, 1970 were purportedly made subject by virtue of the variations dated 22nd February 1974, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a>: <blockquote> (a) invalid, or (b) inapplicable to the sales of the plaintiff referred to in par. 4 of the </blockquote>Stated Case? Answer: (b) Yes. 5. Is the plaintiff, by reason of the provisions of <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s92.html" class="autolink_findacts">s. 92</a> of the <a href="/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/" class="autolink_findacts">Constitution</a> entitled to sell milk in New South Wales in the manner described in par. 4 of the Stated Case without being the holder of a certificate of registration as a milk vendor that authorizes it to do so pursuant to s. 33 of the Dairy Industry Authority Act, 1970. Answer: Yes.  </article> </div>   <div id="page-side">  <div class="side-element side-print"> <svg xmlns="http://www.w3.org/2000/svg" viewbox="0 0 21 20" enable-background="new 0 0 21 20"> <g fill="#C3C3C3"> <path d="M15.6 19.6h-10c-.6-.2-1-.6-1-1.3v-3.5H2.2c-.7 0-1.2-.5-1.2-1.2V5.3C1 4.5 1.5 4 2.2 4H4.6V1.6c0-.6.3-1 .9-1.2h10.2c.6.2.9.6.9 1.3V4H19c.5 0 .9.3 1.1.8 0 .1 0 .1.1.2v8.9c-.2.6-.6.9-1.3.9H16.6v3.6c0 .5-.4 1-.9 1.2h-.1zm3.4-6V5.2H2.2v8.4h2.4v-1.2H4c-.3 0-.5-.1-.5-.4-.2-.4.1-.8.6-.8h13.1c.4 0 .6.3.6.6s-.3.6-.6.6h-.6v1.2H19zm-3.6-1.2H5.8v6h9.6v-6zm0-10.8H5.8V4h9.6V1.6zM15.4 8.2c0-.3.3-.6.6-.6s.6.3.6.6-.3.6-.6.6-.6-.3-.6-.6zM10.6 13.6h3c.3 0 .6.2.6.5s-.2.6-.5.7H7.6c-.4 0-.7-.3-.7-.6s.3-.6.7-.6h3zM10.6 17.2H7.7c-.4 0-.7-.2-.7-.6 0-.3.3-.6.7-.6h5.9c.4 0 .7.2.7.6 0 .4-.3.6-.7.6h-3z"></path> </g></svg> <h4>Print</h4> <ul> <li> <a class="print-special" href="javascript:void(0);">Print (pretty)</a> </li> <li> <a class="print-minimal" href="javascript:void(0);">Print (eco-friendly)</a> </li> </ul> </div>  <div class="side-element side-download"> <svg xmlns="http://www.w3.org/2000/svg" viewbox="0 0 21 20" enable-background="new 0 0 21 20"> <g fill="#C3C3C3"> <path d="M12.5.9c1.3.5 1.7 1.5 1.7 2.9-.1 1.6 0 3.3 0 5h3.1c0 .1.1.1.1.2-.2.3-.3.5-.6.8l-5.3 5.3c-.7.6-1 .7-1.6.1-1.9-1.9-3.7-3.7-5.6-5.5-.1-.2-.3-.4-.6-.8H7c0-.4 0-.7.1-.9V3.8C7 2.4 7.4 1.4 8.7.9h3.8zM1.4 14.5h1.4v2.4c0 .9.2 1.1 1 1.1h13.5c.9 0 1-.2 1.1-1.1v-2.4h1.4v3.2c-.3.9-.9 1.4-1.7 1.7h-15c-.9-.3-1.4-.9-1.7-1.7v-3.2z"></path> </g></svg> <h4>Download</h4> No downloadable files available </div>  <div class="side-element side-cited-by"> <svg xmlns="http://www.w3.org/2000/svg" viewbox="0 0 21 20" enable-background="new 0 0 21 20"> <path fill="#C3C3C3" d="M10.2 16.6c-.9-.2-1.8-.3-2.7-.5-1.5-.4-2.9-1.1-4-2.3-3-3-2.9-7.4.4-10.1C6.2 1.7 9 1.1 12 1.4c1.7.2 3.2.8 4.6 1.8 3.1 2.3 4 5.6 2.5 9.2-.8 2-2.3 3.4-4 4.6-2.3 1.5-4.8 2.2-7.4 2.5h-.2c-.1-.1-.2-.1-.4-.2 0-.1 0-.3.2-.3.7-.4 1.4-.7 2-1.1.4-.3.7-.8.9-1.3z"></path></svg> <h4>Cited By</h4> <ul> <li> <a href="/cgi-bin/LawCite?cit=[1975] HCA 45"> LawCite records</a> </li> <li> <a href="/cgi-bin/sinosrch.cgi?method=boolean&query=1975 HCA 45 or HCA 1975 45"> NoteUp references</a> </li>  </ul> </div>  <div class="side-element side-social"> <svg xmlns="http://www.w3.org/2000/svg" viewbox="0 0 21 20" enable-background="new 0 0 21 20"> <path fill="#C3C3C3" d="M20.7 3.7c-.7.3-1.5.5-2.4.6.9-.5 1.5-1.3 1.9-2.3-.8.5-1.7.8-2.7 1-.8-.8-1.9-1.3-3.1-1.3-2.3 0-4.2 1.9-4.2 4.2 0 .3 0 .6.1 1C6.9 6.7 3.8 5 1.7 2.5c-.4.6-.6 1.3-.6 2.1 0 1.4.8 2.7 1.9 3.5-.7-.1-1.3-.3-1.9-.6v.1c0 2 1.4 3.7 3.4 4.1-.4.1-.7.1-1.1.1-.3 0-.5 0-.8-.1.5 1.7 2.1 2.9 3.9 2.9-1.4 1.1-3.2 1.8-5.2 1.8-.3 0-.7 0-1-.1 1.9 1.2 4.1 1.9 6.4 1.9 7.7 0 11.9-6.4 11.9-11.9v-.5c.8-.6 1.6-1.3 2.1-2.1z"></path></svg> <h4>Join the discussion</h4> <ul> <li> <a href="https://twitter.com/intent/tweet?text=%E2North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW [1975] HCA 45; (1975) 134 CLR 559 (17 October 1975)%E2%80%9D&url=http://www.austlii.edu.au/au/cases/cth/HCA/1975/45.html&via=austlii&hashtags=austlii" target="_blank">Tweet this page</a> </li> <li> <a href="https://twitter.com/intent/user?screen_name=AustLII" target="_blank">Follow @AustLII on Twitter</a> </li>  </ul> </div> </div>  <footer class="closing"> <div class="inner">  <ul class="closing-tertiary"> <li> <a href="/austlii/">About</a> </li> <li> <a href="/austlii/copyright.html">Copyright & Usage</a> </li> <li> <a href="/austlii/privacy.html">Privacy</a> </li> <li> <a href="/austlii/disclaimers.html">Disclaimers</a> </li> <li> <a href="/austlii/help/">Help</a> </li> </ul>http://www.austlii.edu.au/au/cases/cth/HCA/1975/45.html </div> </footer> </div>  <script src="/js/production.min.js"> </script> </body> </html>