HIGH COURT OF AUSTRALIA

                                                      O' Sullivan

                                                           Vs.

                                                 Noarlunga meat ltd.

            (Dixon C.J.(1), McTiernan(2), Webb(3), Fullagar(4), Kitto(5) and Taylor(6) JJ.)

                                                 17 December 1954

CATCHWORDS

Constitutional Law - Commonwealth regulations - State statutes - Inconsistency - Validity - Meat -
Export - Treatment - The Constitution (63 & 64 Vict. c. 12), ss. 51 (i.), 109 - Customs Act 1901-
1953, ss. 112, 270 (1) (c) - Commerce (Trade Descriptions) Act 1905-1950 - Meat Export Control
Act 1935-1953, s. 17 (1), (1A) - Metropolitan and Export Abattoirs Act 1936-1952 (S.A.), ss. 50a,
52a - Commerce (Meat Export) Regulations, reg. 4B.

HEARING

Adelaide, 1954, June 16. 16:6:1954Sydney, 1954, August 17-19; December 17. 17:12:1954

SPECIAL CASE removed into the High Court under s. 40A of the Judiciary Act 1903-1950.

DECISION

December 17.The following written judgments were delivered:

DIXON C.J. I have had the advantage of reading the judgment of Fullagar J.

MCTIERNAN J. This is a case stated under the Justices Act 1921-1943 (S.A.) and removed into
this Court pursuant to s. 40A of the Commonwealth Judiciary Act 1903-1950. The first question, as
framed by the magistrate, is whether s. 52a of the Metropolitan and Export Abattoirs Act 1936-1952
(S.A.) is a valid and operative enactment. The enactment of this section is within the constitutional
power of South Australia. The question to be answered is really whether the section is inconsistent
within the meaning of s. 109 of the Commonwealth Constitution with any law of the
Commonwealth. The material laws of the Commonwealth are the Commerce (Meat Export)
Regulations, Pt. II. This Part is headed "Registration of Premises and Standard Requirements
Therefor". Regulation 5 is in these terms: "All establishments used for the slaughter, treatment and
storage of meat, meat products or edible offal for export shall be registered". Regulation 6
prescribes the form of an application for registration. This regulation also directs the secretary of the
Commonwealth Department of Commerce and Agriculture to issue to an approved applicant a
certificate of registration specifying the operations which may be conducted in the establishment to
which it refers and the conditions to be observed. The standard requirements for registered premises
are dealt with by at least thirty-seven detailed regulations. These regulations refer to existing
premises and premises to be erected. Comparatively few are prescribed for the former but there is
also a general condition that such premises conform as far as practicable to the requirements
prescribed for new premises seeking registration. The first relates to site. This regulation has in view
facilities for drainage and distance from possible sources of infection and from public roads. The
standards pertaining to the matter of site are not concerned with suitability having regard to the
neighbourhood or the effect of starting a meat works on its amenities. The remainder of the
standards apply to such matters as the planning and internal arrangements of the premises including
the pens in which the beasts are to be kept; chilling, freezing and cool storage; employees'
accommodation; ventilation, wire fly-netting, lighting; sanitation and hygiene. Regulation 49
authorizes the secretary of the Department to relax the prescribed standards in certain respects if
"the sanitary objectives aimed at by this Part (of the regulations) will be attained". (at p577)

2. Part III deals with the supervision, inspection, preparation, transportation, marking and trade
description of meat intended for exportation. Part IV deals with exportation. Regulation 91, which is
in this Part, provides that the inspector appointed by the secretary of the Department to inspect and
pass meat, meat products or edible offal intended for export, shall issue to the exporter an export
permit in all cases in which the provisions of the Commerce (Meat Export) Regulations have been
complied with. It is important to notice reg. 103 which provides as follows: "Where by the law of
any State any goods are required to be inspected and approved by a State authority before export,
and the Minister is satisfied that such inspection and approval are as efficient as inspection and
markings under these regulations, the Minister may direct that such inspection and approval shall be
accepted, wholly or partly, in lieu of examination and marking under these regulations". The whole
plan effectuated by the regulations depends substantially upon reg. 4B for its justification under the
Commonwealth Constitution. The material parts of this regulation are:
"(1) The exportation of all meat, meat products or edible offal is prohibited unless - (a) the treatment
and storage of the meat, meat products or edible offal has been carried out in an establishment
registered in accordance with these regulations; (b) the provisions of these regulations have been
complied with; (c) the exporter has received an export permit in respect of the goods in accordance
with these regulations, and the export permit is in force at the time of exportation of the goods". (at
p578)

3. Section 52a of the Metropolitan and Export Abattoirs Act 1936- 1952 (S.A.) makes it an offence,
punishable by a fine, to use any premises in any part of the State outside the "Metropolitan Abattoirs
Area" for the purpose of slaughtering stock for export as fresh meat in a chilled or frozen condition
unless he is the holder of a licence from the State Minister of Agriculture authorizing him to use
those premises for that purpose. The provisions of the section relating to the grant of licences are as
follows: "(2) The Minister of Agriculture shall have a discretion to grant or refuse any application
for a licence under this section after due consideration of the following matters: - (a) whether the
applicant is a fit and proper person to hold a licence under this section; and (b) whether the place
where it is proposed to establish the premises to be used under the licence is a suitable place for the
establishment of such premises; and (c) whether the premises are necessary to meet the requirements
of the public: Provided that the Minister shall not refuse an application for such a licence if the
premises for which the licence is required are to be erected at least eighty miles from all premises,
existing at the date of such application, and established within the State for the purpose of
slaughtering stock for export as aforesaid. (3) Every licence shall be for such period and contain
such restrictions, terms and conditions as the Minister thinks proper. (4) This section shall not apply
to the Government Produce Department". Is this section in conflict with any provisions of the
Commerce (Meat Export) Regulations? The material regulations are, I think, regs. 5 and 6. (at p578)
4. Although the case is concerned with the question whether s. 52a is struck by s. 109 of the
Constitution, I think that it is necessary to consider other sections of the Act. If s. 52a is considered
in isolation an inadequate judgment may be formed of its operation. The Act grants to the
Metropolitan and Export Abattoirs Board, a corporation existing under it, the power to erect and
equip abattoirs and to construct railway sidings to serve them. The plant which the corporation may
instal includes, of course, cool storage: s. 68. The Act fences off an area of the State which is
described as the Metropolitan Abattoirs Area. This area may be added to or reduced by
proclamation : s. 7. There are different provisions applying to the area and the rest of the State.
While abattoirs are available under the Act for slaughtering stock, no person shall within the
Metropolitan Abattoirs Area elsewhere than at such abattoirs slaughter or allow to be slaughtered
any stock for human consumption : s. 70. The Metropolitan Abattoirs Area consists of
municipalities and districts which are enumerated in s. 7. One of these districts is called "the Garden
Suburb". The councils exercising local governmental powers in these municipalities and districts are
called for the purposes of the Act "constituent councils" : s. 7. The Act closes all private abattoirs
within the Metropolitan Abattoirs Area except slaughter-houses or abattoirs used or intended to be
used "only for the purpose of slaughtering stock for meat to be tinned or canned for export, or for
curing bacon and hams, or for the purpose of slaughtering stock for export otherwise than as fresh
meat in a chilled or frozen condition or for the purpose of slaughtering swine for export as fresh
meat in a chilled or frozen condition pursuant to a permit issued under section 50a": s. 79. This step
is consequential upon the monopoly given by s. 70 to the Board's abattoirs. The manner in which
the private abattoirs are closed is that s. 79 (1) forbids any constituent council or any board of health
to issue any licence for slaughtering of stock. But in the case of the slaughtering houses or abattoirs
used or intended to be used for the purpose of slaughtering stock for meat for export, as mentioned
above, the power of the appropriate constituent council or board of health to issue a licence is
retained. Section 109 of the Act is analogous to s. 79. The former section provides for the closing of
private abattoirs in any area added to the Metropolitan Abattoirs Area as defined by s. 7. The section
forbids the appropriate constituent council or board of health from issuing any licence for
slaughtering stock except in the case of slaughtering houses or abattoirs used or intended to be used
for the purpose of slaughtering stock for meat for export in forms similar to those specified in s. 79
(2). It will have been noticed that slaughtering of stock for meat for export in a chilled or frozen
condition is excepted from the operation of either s. 79 (2) or s. 109 (2) of the Act. Section 50, to
which s. 79 (2) and s. 109 (2) of the Act seem to be complementary, gives to the Board the sole
right within the Metropolitan Abattoirs Area to slaughter stock for export as fresh meat in a chilled
or frozen condition - and prohibits the slaughter of stock for this purpose in such area at any place
other than the premises of the Board. Within the Metropolitan Abattoirs Area this monopoly is
qualified by s. 50a. This section says that notwithstanding the provisions of s. 50 the Minister of
Agriculture may grant a permit to any person to slaughter swine for export as fresh meat in a chilled
or frozen condition at a slaughter-house or abattoirs which is licensed by a council or board of
health. The section gives to the Minister a discretion to grant or refuse any application for a permit
under this section and provides that every permit shall be for such period and contain such
restrictions, terms and conditions as the Minister thinks proper. Then comes s. 52a which applies to
the part of the State outside the Metropolitan Abattoirs Area. This section relates to the same
operations as s. 50, but in terms confers no monopoly upon the Board to conduct those operations.
The provisions of the section have been already mentioned above. (at p580)

5. The Commonwealth regulations depend for their constitutional validity upon s. 51 (i.) of the
Constitution. In effect, the regulations prohibit the export of meat and the other commodities
mentioned therein unless the premises in which the stock are slaughtered are registered in
accordance with the regulations and the standard requirements for registered establishments are
observed. It is a well-established proposition that the power granted by s. 51 (i.) to legislate with
respect to trade and commerce with other countries includes the power to prohibit exportation either
absolutely or unless a given condition is fulfilled. The question whether the condition is validly
imposed depends upon whether the prohibition read with the conditions is a law with respect to the
subject matter of trade and commerce with other countries. There may be a semblance of
inconsistency between s. 52a and regs. 5 and 6. It is argued for the State of South Australia that
really there is no conflict, but, if there be conflict, s. 52a does not fall because these regulations are
in excess of the power vested in the Commonwealth Parliament by s. 51 (i.). I do not agree with the
argument founded upon s. 51 (i.). In the first place I think that the standards required for registered
establishments have a real causative relation to the fitness of the meat and other products to enter
the stream of trade and commerce with other countries. That is, I think, a reasonable assumption and
it leads, in my opinion, inevitably to the conclusion that regs. 5 and 6 are valid. I think that the
scheme for registering the establishments described in reg. 5 can reasonably be regarded as an
effective means for securing observance of the prescribed standards. Regulations 5 and 6 therefore
are laws conducive to a legitimate end of the legislative power, namely, the securing of the quality
and wholesomeness of goods entering the stream of trade and commerce with other countries. The
question of the validity of regs. 5 and 6 and the following regulations prescribing standards is not
answered by pointing out that the Commonwealth Parliament has no power to make laws with
respect to the industry of slaughtering stock. The regulations prescribing the standard requirements
for registered establishments have a real and substantial connection with the subject of trade and
commerce in meat with other countries and this is enough to support the validity of regs. 5 and 6
which, as I have said, are reasonable means for securing the adoption of the standards. It is,
therefore, necessary for me to express my opinion on the question of inconsistency. (at p581)

6. Section 52a applies only to slaughtering for export. If the section extended to all slaughtering for
human consumption without distinguishing between home consumption and the export trade it
would be open to an attack upon the ground of inconsistency with the regulations, essentially the
same as that made in this case, but then the section could be attacked only to the extent of its
application to slaughtering for export. Having regard to the scheme of the Act, the present attack is
not really more forcible because the section relates only to slaughtering for export. Section 52a
provides a means for modifying the Board's monopoly of slaughtering stock for human
consumption. Section 50a does the same thing but to a lesser extent and in the same manner, that is
the grant of a licence by the Minister. Sections 79 and 109 of the Act are in this respect comparable
with ss. 50a and 52a. Indeed, the Commonwealth which was given leave to intervene did not claim
that s. 52a is inconsistent with any Commonwealth law. Evidently s. 52a does not in practice
interfere with or impair the operation of the regulations. The Commonwealth was only concerned to
maintain that the regulations were valid. In the case of a Commonwealth law of the same type as
these regulations inconvenience may result from declaring the State law to be inconsistent with the
Commonwealth law if it deals with matters in respect of which the Commonwealth has less power
to legislate than the States. However, this consideration would have no force if the State law were
really inconsistent with the Commonwealth law. (at p581)

7. Regulation 5 addresses itself to all establishments used at the time the regulations commenced or
thereafter to be erected for the slaughter, treatment and storage of meat, meat products and edible
offal for export. It directs that all such establishments shall be registered. This direction is not
addressed to any person. The person bound by it is no doubt the person who uses or is about to use
premises for the above-mentioned purposes. He is bound by the direction to the extent that if he
does not comply with it he may not obtain a permit to export the meat slaughtered, treated or stored
in the establishment. There would be no prospect of obtaining a permit to export meat or any of the
other products if the slaughtering, treatment or storage were done in an unregistered establishment
except possibly in a case to which reg. 103, quoted above, applies. (This regulation relates to
inspection under State Acts). Accordingly there is an effective practical sanction for the direction
contained in reg. 5. Regulation 99 provides that any person committing a breach of the regulation
for which no other penalty is provided shall be liable to a penalty not exceeding twenty pounds.
Regulation 5 provides no penalty for a breach. There are provisions, for example sub-regs. 1 and 13
of reg. 43, which are addressed to individuals. They would clearly be liable to this penalty if guilty
of a breach. Regulation 5 is not aptly expressed to create an offence. Many more of the regulations
are in the same form. These constitute requirements to which it is necessary to conform to obtain
registration. It is not necessary, I think, to decide whether reg. 5 merely creates a condition upon
which export is permitted or a rule of conduct, the breach of which exposes some person to
punishment. Even if reg. 5 creates the offence of failing to register establishments used for the
slaughter of stock for export, s. 52a may nevertheless not be in conflict with it. I think that a
distinction can be made. Regulation 5 applies to an establishment, in which slaughtering for export
is conducted, as an instrument or agency of trade and commerce with other countries. Section 52a
defines the premises to which it applies as premises used for slaughtering stock for export as fresh
meat in a chilled or frozen condition. The section applies to such premises under the aspect of
premises used as abattoirs or slaughter-houses, and forbids the use of any premises for particular
slaughtering operations without a licence from the Minister. Regulation 5 operates within the field
of trade and commerce with other countries. It could not validly operate beyond that field. The field
marked out by s. 52a is indicated by the matters which the section says are to be taken into
consideration by the Minister in exercising the discretion given to him by the section to grant or
refuse a licence. The first matter is whether the applicant is a fit and proper person to hold a licence
under this section. The Commonwealth regulations lay down no standards relevant to this matter.
The matter which in my judgment the Minister has to consider is not whether the applicant is a fit
and proper person to engage in trade and commerce with other countries. I think the matter for the
Minister to consider is whether the applicant is a fit and proper person to conduct abattoirs in which
the particular class of operations to be carried on is slaughtering stock for export as fresh meat in a
chilled or frozen condition. The second matter which the Minister has to consider is whether the
place where it is proposed to establish the premises is a suitable place for the establishment of such
premises. I have referred to the provisions of the regulations prescribing the requirements to which
the site of an establishment to be erected must conform in order to qualify the establishment for
registration. In my opinion the criteria of the suitability of a site laid down by the regulations are
different from the criteria involved in the words "a suitable place for the establishment of such
premises" which are to be found in s. 52a. The third matter which the Minister has to consider is
whether the premises in respect of which a licence is sought are necessary to meet the requirements
of the public. The Commonwealth regulations do not contain any express provisions as to this
matter. (at p583)

8. In my opinion the Commonwealth regulations leave it open to the States to determine who is a fit
and proper person to conduct the class of slaughtering operations mentioned in s. 52a ; what is a
suitable place for an abattoirs in which such operations are conducted, and whether the
establishment of any new abattoirs of that kind is necessary to meet the requirements of the public.
(at p583)

9. The acceptance of the argument that s. 52a is inconsistent with regs. 5 and 6 would involve the
destruction of the monopoly granted by the Act to the Metropolitan and Abattoirs Board, and would
lead to the conclusion that ss. 50a, 79 and 109 (of the State Act) are also inconsistent and invalid to
the extent of the inconsistency. It does not seem to me that the Commonwealth regulations manifest
an intention to operate so widely that these results would flow from them. I think that the language
of reg. 5 is compatible with accepting for the purposes of the regulations determinations made by a
State or a local governing body under State law, pursuant to which premises may be used for
slaughtering stock and treating and storing the products thereby obtained, whether for home
consumption or export. The continued acceptance or recognition of those determinations is implicit
in the description which reg. 5 contains of the establishments which are directed to be registered.
The description is "all premises used for the slaughter, treatment or storage of meat, meat products
or edible offal for export". The registration does not bring premises within that description : the
premises are not directed to be registered unless they are within the description. The regulations
intend that the status of a registered establishment should be acquired by premises which may be
lawfully used for those purposes. It is not an intended result of the regulations that registration
should give a right to use premises without the licence of a municipal council or a board of health or
of a State itself if that is necessary under State law. Registration, as I have said, does not bring an
establishment within the description of an establishment used for the purposes mentioned in reg. 5.
Upon the very terms of reg. 5, an establishment is not made subject to the direction given by the
regulation unless it is an establishment used for those purposes. Whether it is lawfully used may
depend upon State law. A comparable situation would arise if a Commonwealth law directed that all
hotels used for the accommodation of migrants were to be registered and that no hotel-keeper would
be permitted to provide accommodation for migrants unless the hotel were registered and
conformed to certain standards. It would, I think, be difficult to hold that the laws of the State under
which the hotels were licenced fell because of inconsistency with the Commonwealth law. In
enacting s. 52a the subjects upon which the State Parliament legislated are the personal
qualifications of persons to conduct abattoirs, the localities in which they may be conducted and the
number there should be. The Parliament confined this section to abattoirs in which a particular class
of slaughtering is conducted, namely, the slaughtering of stock for export in a chilled or frozen
condition. There are other classes of slaughtering for the export trade dealt with by the Act. Section
52a is essentially not a law with respect to trade and commerce with other countries. Regulation 5 is
not a law on the same subjects as s. 52a. (at p584)

10. The sanction for this section is punishment by a fine. It is not clear that the regulations intended
that failure to register an establishment under reg. 5 is to be punishable by a fine. If the regulations
do so, it would be hard to resist the conclusion that numerous other regulations described as
standard requirements also have penal sanctions and thus the export trade in meat has become
controlled by the criminal law. (at p584)

11. Difference between the legislative categories to which s. 52a and the regulations may be
assigned, and diversity between the sanctions for the section and reg. 5 are important considerations
in determining the question of inconsistency. I think that in the present case the decisive
consideration is the intention of the regulations. In my opinion they do not disclose the intention
that the direction to register under reg. 5 is the only law to be obeyed by any person who conducts
an establishment for the slaughter, treatment and storage of meat, meat products and edible offal for
export to qualify him to carry on the establishment lawfully. In my opinion s. 52a is not inconsistent
with any of the Commonwealth regulations. However, I think a reservation ought to be made about
sub-s. (3) of this section. If upon its true construction that provision authorizes the Minister of
Agriculture to prescribe a restriction, term or condition dealing with a matter covered by any of the
"standard requirements" prescribed by Pt. II of the regulations, a question similar to that considered
in State of Victoria v. The Commonwealth [1937] HCA 82; (1937) 58 CLR 618 would arise. (at
p585)
12. The second question asked by the magistrate should, upon the facts stated by him, also be
answered against the defendant company. (at p585)

WEBB J. For the reasons given by Taylor J., whose judgment I have had the advantage of reading, I
think the question in the special case should be answered as his Honour proposes. But, in addition to
the matters relied upon by his Honour as indicating that the Commerce (Meat Export) Regulations
are not intended to occupy the field to the exclusion of State law, I rely on reg. 103 which, in
authorizing the adoption of State inspection and approval of meat for export and consequential
markings of such meat, also indicates I think that those regulations are not intended to be exhaustive
and exclusive of State law. As stated by Dixon J. (as he then was) in Ex parte McLean (1930) 43
CLR 472 : "The inconsistency" (that is, within the meaning of s. 109 of the Commonwealth
Constitution) "does not lie in the mere coexistence of two laws which are susceptible of
simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its
enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular
conduct or matter to which its attention is directed" (1930) 43 CLR, at p 483 . (at p585)

2. I think that reg. 103 contemplates that the State's inspection, approval and markings, which
require an extensive and costly set up, but in any event are essential features of control, shall
continue to be made and given from time to time, as there is not sufficient indication anywhere in
the regulations that the State operations referred to are only those which are completed when the
regulations come into force, and therefore that the purpose of reg. 103 is simply to enable the
change from State to Commonwealth control to be brought about without a duplication of effort. (at
p585)

3. If I am right as to the intention of reg. 103, it is an important provision for the co-operation of
Commonwealth and State in securing and maintaining the standard of meat for export. After all, the
States are at least as much concerned as is the Commonwealth in securing and maintaining those
standards. The Commonwealth has no greater interest than the States in that matter. Indeed, where a
State is very largely dependent upon its export trade in a certain commodity, as South Australia is in
the lamb export trade and Tasmania in the fruit export trade, the State may have the greater interest.
However, there seems to be no doubt that the Commonwealth has the power in all cases to exclude
the State law. But I think the correct view of these regulations is that the State is permitted to remain
in the field so that advantage of its services may be taken from time to time if that appears desirable
to the authorities administering the regulations, who, of course, have no power to bind their
successors as regards future exports. I can see no regulation, not even regs. 5 and 10, that points as
clearly to the exclusion of the State law as reg. 103 points to its continuance. (at p586)

FULLAGAR J. This case comes before the Court on a special case stated for the Supreme Court of
South Australia by a special magistrate. It was removed into this Court by order under s. 40 of the
Judiciary Act 1903-1950. (at p586)

2. The case arises under the Metropolitan and Export Abattoirs Act 1936-1952 of the State of South
Australia. This Act provides for the establishment of a board to be called the Metropolitan and
Export Abattoirs Board, which is made a body corporate. It is necessary to refer only to two sections
of the Act. Section 50 relates to the slaughter of stock for export within the Metropolitan Abattoirs
Area, which is defined by s. 3. It provides: "(1) Except as provided by section 50a the board shall
have the sole right within the Metropolitan Abattoirs Area to slaughter stock for export as fresh
meat in a chilled or frozen condition. (2) Nothing in this Act shall operate so as to allow any person
other than the board to slaughter stock within the metropolitan abattoirs area for export as fresh
meat in a chilled or frozen condition, or any place within the said area other than premises of the
board to be used for that purpose. (3) The board shall not slaughter any stock for export except for
and on account of and in the manner directed by the manager of the Government Produce
Department. (4) The manager of the Government Produce Department shall not procure the
slaughter of any stock for export except upon condition that he is appointed by the owner of the
stock as agent to arrange for the slaughter, freezing, and shipment thereof, and, where required, to
market the meat and by-products, and, that he is to be paid an inclusive fee for all these services".
The exception provided by s. 50a is immaterial for the purposes of the present case. The other
relevant section is s. 52a, which relates to the slaughter of stock for export outside the Metropolitan
Abattoirs Area. It provides: "(1) No person shall in any part of the State outside the Metropolitan
Abattoirs Area use any premises for the purpose of slaughtering stock for export as fresh meat in a
chilled or frozen condition unless he is the holder of a licence from the Minister of Agriculture
authorising him to use those premises for that purpose . . . (2) The Minister of Agriculture shall
have a discretion to grant or refuse any application for a licence under this section after due
consideration of the following matters: - (a) whether the applicant is a fit and proper person to hold
a licence under this section; and (b) whether the place where it is proposed to establish the premises
to be used under the licence is a suitable place for the establishment of such premises; and (c)
whether the premises are necessary to meet the requirements of the public: . . ." (at p587)

3. The defendant company was charged with a breach of s. 52a (1) in that it did on 27th November
1953 in a part of the State outside the Metropolitan Abattoirs Area use certain premises owned and
occupied by it for the purpose of slaughtering certain stock, viz. lambs, for export as fresh meat in a
chilled or frozen condition. Such a breach is made an offence against the Act by s. 115. The case
states that the allegations of fact contained in the charge are true. The company's premises, however,
are registered under the Commerce (Meat Export) Regulations of the Commonwealth, and the
defence raised by the company is that s. 52a of the South Australian Act is inconsistent with those
Commonwealth regulations and is therefore invalid by virtue of s. 109 of the Constitution of the
Commonwealth. The prosecution denies that any such inconsistency exists, and says, further, that, if
the inconsistency does exist, the Commonwealth regulations are not authorized by the statutes under
which they purport to be made and could not lawfully be so authorized, because the making of them
involves an excess of the constitutional powers of the Commonwealth. Two questions are thus
raised. The first is whether there is an inconsistency within the meaning of s. 109. The second
(which need not be considered unless the first question is answered in the affirmative) is whether the
Commonwealth regulations are valid. The latter question is, on the view which I take, a question of
"limits inter se". The former is not such a question. (at p587)

4. The regulations, so far as they refer to registration of premises for the slaughter of stock for
export, are badly drawn and are not co-ordinated into a consistent whole. Some are expressed as
conditions of registration; some are not so expressed but must probably be taken to be so intended;
some are neither so expressed nor so intended but prescribe conditions which are to be observed in
and about the actual slaughter of stock and subsequent operations. (at p588)

5. It is not necessary to set out the material regulations in full, but it is necessary to examine closely
their nature and content. By reg. 4B, which was introduced into Pt. I of the regulations on 7th May
1953, it is provided that the exportation of all meat, meat products or edible offal, is prohibited
unless (a) the treatment and storage of the meat etc. has been carried out in an establishment
registered in accordance with the regulations; (b) the provisions of the regulations have been
complied with; and (c) the exporter has received an export permit in respect of the goods in
accordance with the regulations. Regulation 5 provides that all establishments used for the slaughter,
treatment and storage of meat, meat products or edible offal, for export shall be registered. This
regulation is cast in a form which is generally considered objectionable, since it is impersonal and
does not in terms cast any direct duty on any person. Such cases, however, are familiar enough, and
I would think it clear that reg. 5 must be construed as forbidding any person to use any
establishment for any of the purposes mentioned unless the establishment is registered. The use of
premises for htat purpose without registration will therefore be a breach of the regulations, for
which s. 99 provides a penalty not exceeding twenty pounds. (at p588)

6. Regulation 6 provides that applications for registration shall be in accordance with Form A. The
form requires the nature of the proposed operations to be stated, and it is to be accompanied by
plans and specifications of the premises. Regulation 6 also provides that there shall be issued to an
"approved applicant" a certificate of registration in accordance with Form B, which shall specify,
inter alia, all operations which may be conducted in the establishment to which it refers. In the
present case the certificate of registration issued to the defendant company states that its premises
are registered as "an establishment in which the following operations may be conducted: -
slaughtering and freezing of mutton and/or lamb for export". Certain conditions are stated which are
not material for present purposes. By reg. 7 an application for registration must be accompanied by,
inter alia, complete plans and specifications of the establishment and a clear photograph of the site,
showing its relation to the land or other property adjoining the establishment. Regulation 9 provides
that, where after the commencement of the regulations (they commenced on 30th March 1923) it is
intended to erect premises to be registered, registration shall not be granted unless the secretary
approves of the site prior to the erection of the premises. (at p589)

7. Regulation 12 provides that no premises or building shall be registered unless they conform to
such prescribed requirements as are applicable. Regulation 13 prescribes requirements with respect
to places appointed by the secretary for the inspection of meat for export. Regulation 14 provides
that no establishment shall be registered unless the site is such as to admit of ready and efficient
drainage. It also prescribes distances which must separate buildings, yards and pens from any
human habitation or any noxious trade establishment, and that the site is to be such as to allow an
interval of at least twenty yards between the main building and the nearest public road. Regulation
15 deals with the floor area of killing, dressing and hanging rooms. It prescribes certain areas for
floors and heights for walls, and it provides that the hanging room shall have not less than nine
square feet for each carcase hung. The hanging rails are to be not less than three feet apart.
Regulation 16 provides that, if meat is slaughtered for export, the establishment shall contain
chilling, freezing or cold storage accommodation commensurate with its killing capacity.
Regulations 17 to 21 inclusive contain other provisions which must be complied with if the
operations to be carried on include chilling or freezing. Regulation 23 provides that the height of
killing and dressing rooms shall be sixteen feet in the case of cattle, and ten feet in the case of sheep.
The walls are to be of a height of not less than four feet, and solidly constructed of brick, masonry
or concrete. Other matters of detail are provided for. Regulation 24 provides that the height of
hanging rooms for cattle shall be not less than sixteen feet and for sheep not less than ten feet.
Regulation 25 provides that chilling, freezing and cold storage rooms shall be constructed of
concrete, brick or wood, and that the hanging rails in chilling rooms for cattle shall be not less than
three feet apart and in the case of sheep not less than fourteen inches apart. By reg. 26 the rooms in
which edible offal and edible fats are prepared are to be constructed of material similar to that
prescribed for killing and dressing rooms. Regulation 27 requires ramps over which offal is
conveyed to be constructed with a hard impervious surface of concrete or other suitable material.
Regulation 28 contains detailed provisions with regard to sorting houses for offal and reg. 29 with
regard to casing houses. Regulation 30 contains provisions with relation to the accommodation of
employees engaged at the establishment. Regulation 31 provides that plant for the treatment of
inedible offal shall be at least ninety feet distant from any building in which edible offal is prepared
or stored for export. The buildings are to be constructed of materials similar to those prescribed for
killing and dressing rooms. By reg. 32 the wall and floors of the killing and dressing rooms are to be
rendered impervious and washable by means of cement rendering. Regulation 33 contains detailed
requirements with regard to ventilation. Regulation 34 provides that wire fly-netting shall, if the
secretary so directs, be provided over all openings and walls. By reg. 35 benches, tables and similar
articles are to be so constructed as to be easily drained, removed and cleansed. Regulation 36
contains detailed provisions with regard to lighting. Regulation 37 provides that there must be to the
satisfaction of the secretary air disconnection between compartments used for slaughter and
preparation and storage of meat and those used for purposes of dressing rooms etc. Regulation 38
provides certain special sanitary and other requirements relating to premises where meat is
preserved for export. These requirements are set out in great detail. Regulations 40 and 41 contain
detailed provisions with regard to drainage and the handling and disposal of blood etc. Regulation
42 contains certain requirements with regard to water supply and fittings. Regulation 44 provides
that yards, lairs and pens shall be provided, and the manner and materials of their construction are
prescribed. Regulation 45 provides that ramps shall be constructed with a hard impervious surface
of concrete or other suitable material and provided with raised kerbing. Regulation 46 provides that
a suitable race or yard shall be provided for the inspection of stock before killing. Regulation 47
provides that the area of yards and holding pens shall be such as to allow of at least twenty square
feet of floor space per head for cattle and six square feet per head for sheep. The floor area of pens
is to be constructed of materials similar to those prescribed for the floors of killing and dressing
rooms. There are also certain requirements with regard to drainage. Regulation 48 contains certain
requirements with regard to the construction of partitions separating pens and ramps and the gates or
doors leading from pens. (at p590)

8. Part III of the regulations deals with "Supervision, Inspection, Preparation, Transportation,
Marketing and Trade Description of Meat intended for Export", and contains reg. 91, which
provides that an export permit in accordance with form E shall be issued by the inspector to the
exporter in all cases in which the provisions of the regulations have been complied with and a note
to that effect signed by an inspector has been made upon the face of the notice of intention to export
which is required to be given. (at p591)

9. The above summary, which gives only in bare outline the effect of a large number of regulations,
is sufficient to show that they constitute an extremely elaborate and detailed set of requirements
which must be complied with before registration can be obtained of premises to be used for the
slaughter of stock for export. They relate to site, materials of construction, arrangement, dimensions
and many other matters. It is an offence to use premises for the slaughter of meat for export unless
the premises are registered. Registration cannot be obtained except upon compliance with all these
detailed provisions, and in addition the applicant must be "approved". But, if all those provisions are
complied with, an approved applicant is entitled to a certificate specifying the operations which may
be conducted on the premises. In my opinion a State statute which has the effect of prohibiting the
use of premises registered under the Commonwealth regulations for the very purpose for which they
have been registered under those regulations is plainly inconsistent with those regulations. (at p591)

10. It is, of course, possible to obey both laws. It is possible to refrain altogether from using
premises outside the Metropolitan Abattoirs Area in South Australia for slaughtering stock for
export as chilled or frozen meat. It is equally possible to comply with all the detailed requirements
of the regulations and obtain registration thereunder, and then, after failing to obtain a licence under
s. 52a of the South Australian Act, to use the premises for storing apples or not to use the premises
at all. But it is now well settled that there may be inconsistency within the meaning of s. 109
between two laws, although it is quite possible to obey both. The test of inconsistency which is now
generally applied was laid down in Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6 [1926]
HCA 6; ; (1926) 37 CLR 466 . It has been applied in a number of later cases: see especially H. V.
McKay Pty. Ltd. v. Hunt [1926] HCA 36; (1926) 38 CLR 308 ; Hume v. Palmer [1926] HCA 50;
(1926) 38 CLR 441 ; Ex parte McLean [1930] HCA 12[1930] HCA 12; ; (1930) 43 CLR 472 ;
Colvin v. Bradley Bros. Pty. Ltd. [1943] HCA 41; (1943) 68 CLR 151 and Wenn v. Attorney-
General (Vict.) (1948) 77 CLR 84 . In Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6;
(1926) 37 CLR 466 , Isaacs J. said: "If . . . a competent legislature expressly or impliedly evinces its
intention to cover the whole field, that is a conclusive test of inconsistency where another legislature
assumes to enter to any extent upon the same field" (1926) 37 CLR, at p 489 . The test was analyzed
and fully stated by Dixon J. in Ex parte McLean (1930) 43 CLR 472 , in a passage which is often
cited. His Honour said: "When the Parliament of the Commonwealth and the Parliament of a State
each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws
which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes,
and s. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse
(Hume v. Palmer [1926] HCA 50; (1926) 38 CLR 441 ). But the reason is that, by prescribing the
rule to be observed, the Federal statute shows an intention to cover the subject matter and provide
what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary
to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same
duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of
two laws which are susceptible of simultaneous obedience. It depends upon the intention of the
paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what
shall be the law governing the particular conduct or matter to which its attention is directed. When a
Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern
the same conduct or matter" (1930) 43 CLR, at p 483 . (at p592)

11. Applying this test, it appears to me impossible to deny that the regulations evince an intention to
express completely and exhaustively the requirements of the law with respect to the use of premises
for the slaughter of stock for export. The extremely elaborate and detailed character of the
regulations seems to me to be itself sufficient to compel this conclusion. Almost every requirement
which occurs to one as a relevant requirement is prescribed. But this is not the only feature of the
regulations which appears to me to compel the conclusion that there is inconsistency in s. 52a of the
South Australian Act. It is true that the regulations do not in express terms provide that it shall be
lawful for any person who has obtained the registration of premises to slaughter stock for export on
those premises. But reg. 6 (2) requires the secretary to issue to an approved applicant a certificate of
registration, and that certificate must specify the operations which may be conducted in the
establishment to which it refers. According to the certificate held by the defendant company the
operations which it may conduct on the premises are, as has been said, the slaughtering and freezing
of mutton and/or lamb for export. It is clearly contemplated that, when registration has been
obtained, the operations referred to in the certificate may be lawfully conducted on the registered
premises. Section 52a of the South Australian Act is a clear denial of any such permission. The
case, indeed, is seen, I think, closely to resemble the case of Colvin v. Bradley Bros. Pty. Ltd.
(1943) 68 CLR 151 . In that case an order which had been made under s. 41 of the Factories and
Shops Act 1912-1936 (N.S.W.) prohibited the employment of females on a milling machine. By an
award of the Commonwealth Court of Conciliation and Arbitration the employment of females on
certain classes of work, which included work on a milling machine, was permitted unless such work
had been declared by a Board of Reference to be unsuitable. There had been no such declaration by
any Board of Reference. It was held by this Court that the order in its application to persons covered
by the award was inconsistent with that award and therefore, by virtue of s. 109, invalid. (at p593)

12. It was said that the purpose and object of s. 52a was different from the purpose and object of the
Commonwealth regulations. It was said that s. 52 a was not concerned with the purity and quality of
meat intended for export but was concerned with such matters as the suitability of the proprietor of
the premises, the suitability of the site and similar matters of local concern. As to this there are two
things to be said. In the first place the suitability of the applicant and the suitability of the site are
plainly matters with which the regulations are concerned. In the second place, the discretion given
to the Minister by s. 52a is absolute. It is true that he is required to consider the matters specified in
sub-s. (2) of s. 52a, but subject to the proviso to sub-s. (2) - and, of course, to the requirement of
good faith - the Minister of Agriculture may refuse a licence for any reason whatever which seems
good to him. In particular, he could refuse a licence because he thought that a Commonwealth
requirement, which had been complied with, was not sufficiently drastic. It should perhaps be added
that the subject matter of the Act here is the same as the subject matter of the regulations - the use of
premises for slaughtering stock for export. It is therefore unnecessary to consider whether the
statement of Latham C.J. in Colvin v. Bradley Bros. Pty. Ltd. (1943) 68 CLR, at p 159 , that the
"classification of statutes according to their true nature is . . . a matter that is irrelevant to any
application of s. 109" is not expressed somewhat too widely. (at p593)

13. It was argued that reg. 103 indicated an intention on the part of the Commonwealth that State
legislation on the subject matter of the regulations could exist alongside the Commonwealth law.
Regulation 103 provides that "where by the law of any State any goods are required to be inspected
and approved by a State authority before export, and the Minister is satisfied that such inspection
and approval are as efficient as inspection and marking under these regulations, the Minister may
direct that such inspection and approval shall be accepted, wholly or partly, in lieu of examination
and marking under these regulations". No such conclusion as is suggested can, in my opinion, be
drawn from reg. 103. In the first place, it is very limited in its scope and relates only to inspection
and marking. In the second place, it is incapable to my mind of carrying the implication suggested.
Indeed, I am not at all sure that it does not indicate a contrary intention, because it applies only
where the Minister is satisfied with regard to State inspection and approval, and the intention seems
to be that, in the absence of satisfaction and direction on the part of the Minister, the
Commonwealth system is to supersede any State system. But all that reg. 103 really means is that, if
satisfactory machinery happens to exist at any port, the Minister, in the interests of economy, may
use it. It is impossible to imply an intention that the export of goods which have received a
Commonwealth export permit may be prohibited by a State. (at p594)

14. The conclusion that there is inconsistency, within the meaning of s. 109, between s. 52a of the
South Australian Act and the Commonwealth regulations makes it necessary to consider the second
question, which relates to the validity of the regulations. The regulations purport to be made under
the Customs Act 1901- 1953 and the Commerce (Trade Descriptions) Act 1905-1950. Only Pt. II of
the regulations is directly relevant in the present case, and Pt. II is, in my opinion, within the power
conferred in terms by s. 270 (1) (c) of the Customs Act. That provision, so far as material,
authorizes the Governor-General to make regulations not inconsistent with the Act for prescribing
"the conditions of preparation or manufacture for export of any articles used for food or drink by
man". The power given by s. 270, however, must be regarded as limited by the Constitution. The
question therefore resolves itself into whether the regulations are within the constitutional power of
the Commonwealth. If Parliament had enacted them directly, would they be valid? The only power
invoked, and, so far as I can see, the only relevant power, is that given by s. 51 (i.) of the
Constitution to make laws with respect to trade and commerce with other countries. (at p594)

15. Before considering the constitutional question it will be well to look again for a moment at the
regulations and to see what is their general scheme and what they really do. In this connection it
becomes necessary to look also at certain other regulations, viz. the Meat Export Control (Licences)
Regulations made under s. 28 of the Meat Export Control Act 1935-1953. (at p595)

16. What may be called the keystone of the Commerce (Meat Export) Regulations seems to be
found in reg. 4B, which prohibits the export of meat, etc. unless (a) treatment and storage has been
carried out in a registered establishment; (b) the provisions of those regulations have been complied
with; and (c) the exporter has received an export permit. "Treatment and storage" do not include
slaughter, but, since reg. 5 in effect prohibits slaughter for export in an unregistered establishment,
the regulations will not have been complied with if slaughter has taken place in an unregistered
establishment. It is to be noted, in addition, that reg. 4 of the Meat Export Control (Licences)
Regulations prohibits the export of meat except by persons who hold licences, and reg. 7 of those
regulations requires a licensee to comply with the Commerce (Meat Export) Regulations. The
licence under the Meat Export Control (Licences) Regulations is in general terms, but an "export
permit" is also required before any particular consignment may be lawfully exported. The issue of
an export permit is provided for by reg. 91 of the Commerce (Meat Export) Regulations which, as
has been noted, says that a permit shall issue if the regulations have been complied with. (at p595)

17. So far the general structure, though somewhat complex and very elaborate in detail, seems clear
enough. The export of meat is prohibited unless it was slaughtered in a registered establishment, and
an establishment cannot be registered unless it complies with the prescribed conditions. The export
of meat is also prohibited unless certain other prescribed conditions as to treatment, storage and so
on, are complied with. And so far no ground for attack on the validity of the Commerce (Meat
Export) Regulations appears. There is no suggestion of any ulterior objective behind the regulations:
no such question as that which arose in R. v. Barger [1908] HCA 43 [1908] HCA 43; ; (1908) 6
CLR 41 , or that which arose in Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran
Pty. Ltd. [1939] HCA 27; (1939) 61 CLR 735 , arises here. The Commonwealth is legislating to
ensure that only meat of a certain grade and quality shall be exported, and the law is clearly a law
with respect to trade and commerce with other countries. The power given by s. 51 (i.) extends to
authorizing the total prohibition of the export of any commodity, and a fortiori it includes a power
to prohibit the export of any commodity except upon compliance with prescribed conditions. (at
p596)

18. But the regulations go further than this, and, indeed, if they did not go further, it might be less
clear that they were inconsistent with s. 52a of the South Australian Act. Regulation 5 prohibits the
use of any premises for the slaughter of meat for export unless those premises are registered, and a
penalty is imposed by reg. 99 on any use of premises which is in breach of reg. 5. In fact, although
the regulations were originally enacted in 1923, it was not until 1953 that reg. 4B was introduced,
which expressly prohibits the export of meat etc. unless, inter alia, it was slaughtered in a registered
establishment. It is true that reg. 91 (which provides for export permits) has been in force from the
beginning, and reg. 4 of the Meat Export Control (Licences) Regulations has been in force since
1936. But the position originally was, and still is, that reg. 5 prohibits the use of premises for
slaughter for export unless the premises are registered, and they cannot be registered unless they
comply with a large number of prescribed conditions which descend to meticulous detail. The
question which emerges is whether the Commonwealth power with respect to trade and commerce
with other countries extends to authorizing legislation regulating and controlling the slaughter of
meat for export. In my opinion it does so extend. (at p596)

19. The question obviously tends to open up a wide field of speculation as to the extent of the power
in question. But it will be wise, I think, to avoid that field, and to concentrate attention on the
particular case before us and the particular commodity with which that case is concerned. It will be
wise also, I think, to begin by obtaining as clear a conception as possible of what is meant by the
expression "slaughter for export". It would perhaps have been better if we had had some evidence
before us as to Australia's export trade in meat, and as to the processes involved in the killing and
preparation of meat for export and for home consumption respectively. But it seems to me safe to
say that Sir Garfield Barwick was entirely right when he said that the expression "slaughter for
export" is used in the relevant legislation as a composite expression which would be understood
objectively in the trade. Whether "slaughter for export" is taking place is not, from the point of view
of the legislator, a question which depends entirely on some intention in the mind of the owner or
slaughterer of a beast - an intention which may change from time to time as operations proceed. The
whole process from killing to packing will be conditioned in certain respects by the predetermined
destination of the meat, and "slaughter for export" is, in the mind of the legislator, a definite
objective conception distinct from slaughter for home consumption. It does not, of course, follow
that any corresponding position exists with regard to any commodity other than meat. It may very
well be, for example, that such an expression as "mining metals for export" or "sowing wheat for
export" is meaningless except by reference to some subjective element. (at p597)

20. Probably fifty years ago in the United States such legislation as that contained in the Commerce
(Meat Export) Regulations would have been held to lie outside the federal commerce power. A
sharp distinction seems to have been drawn between manufacture or production on the one hand and
commerce, conceived essentially as the movement of goods, on the other hand: see, e.g. Kidd v.
Pearson [1888] USSC 217; (1888) 128 US 1, at pp 20, 21 (32 Law Ed 346) . Today, however, it
seems most probable that such legislation would be held within the power to regulate commerce
with foreign nations. It is possible indeed that the killing and treatment of stock for export might be
regarded as themselves part of the course of commerce with foreign nations, but in any case I think
they would be held to be matters within the commerce power: see, e.g., Stafford v. Wallace [1922]
USSC 93; (1922) 258 US 495 (66 Law Ed 735) ; National Labor Relations Board v. Laughlin Steel
Corporation [1937] USSC 80; (1936) 301 US 1 (81 Law Ed 893) and United States v. Darby [1941]
USSC 49[1941] USSC 49; ; (1941) 312 US 100 (85 Law Ed 609) . It was argued that the
regulations in question here are a direct regulation of the very subject matter of the power, that they
control steps taken in the actual course of trade and commerce with other countries. But, even if
counsel for the State of South Australia be right in saying that the course of commerce with other
countries does not begin until a later stage, I am of opinion that the regulations must be held valid
on the broad general principle of constitutional interpretation adopted in the earliest days of this
Court. In D'Emden v. Pedder [1904] HCA 1; (1904) 1 CLR 91 , the Court accepted the famous
enunciation of the principle by Marshall C.J. in M'Culloch v. Maryland (1819) 4 Wheat 316, at pp
321-323 (4 Law Ed 579, at pp 580, 581) , as "a most welcome aid and assistance" and said : "Where
any power or control is expressly granted, there is included in the grant, to the full extent of the
capacity of the grantor and without special mention, every power and every control the denial of
which would render the grant itself ineffective" (1904) 1 CLR, at p 110 . (at p598)

21. It is true that the Commonwealth possesses no specific power with respect to slaughter-houses.
But it is undeniable that the power with respect to trade and commerce with other countries includes
a power to make provision for the condition and quality of meat or of any other commodity to be
exported. Nor can the power, in my opinion, be held to stop there. By virtue of that power all
matters which may affect beneficially or adversely the export trade of Australia in any commodity
produced or manufactured in Australia must be the legitimate concern of the Commonwealth. Such
matters include not only grade and quality of goods but packing, get-up, description, labelling,
handling, and anything at all that may reasonably be considered likely to affect an export market by
developing it or impairing it. It seems clear enough that the objectives for which the power is
conferred may be impossible of achievement by means of a mere prescription of standards for
export and the institution of a system of inspection at the point of export. It may very reasonably be
thought necessary to go further back, and even to enter the factory or the field or the mine. How far
back the Commonwealth may constitutionally go is a question which need not now be considered,
and which must in any case depend on the particular circumstances attending the production or
manufacture of particular commodities. But I would think it safe to say that the power of the
Commonwealth extended to the supervision and control of all acts or processes which can be
identified as being done or carried out for export. The "slaughter for export" of stock is such an act
or process, and, in my opinion, the Commerce (Meat Export) Regulations are within the legislative
power conferred upon the Commonwealth by s. 51 (i.). (at p598)

22. The questions submitted to this Court should, in my opinion, be answered -

       1. No.2. No. (at p598)

       KITTO J. I entirely agree in the judgment of my brother Fullagar and have nothing to
       add. (at p598)

TAYLOR J. The questions for decision in this case are whether s. 52a of the Metropolitan and
Export Abattoirs Act 1936-1952 of the State of South Australia is inconsistent with any of the
provisions of the Commerce (Meat Export) Regulations made pursuant to the Customs Act 1901-
1952 and the Commerce (Trade Descriptions) Act 1905-1950 and, if so, whether the conflicting
Commonwealth provisions are within statutory and constitutional power. (at p599)

2. The defendant company, which owns and operates an abattoirs in South Australia outside the
Metropolitan Abattoirs Area as defined by the first-mentioned Act, is the holder of a licence issued
by a local governing authority pursuant to Pt. XXVII of the Local Government Act 1934-1952. This
is the general condition upon which it is lawful to slaughter cattle, sheep, or swine within the local
government area in which the defendant company's establishment is situated. Such licences may be
issued in respect of premises which the authority is of the opinion "are suitable for the purpose, are
situated in a convenient situation and conform to any by-laws in force in the area and to the
provisions of the Health Act 1935". Licences so issued remain in force until 30th June next after the
grant thereof. There is nothing in the Local Government Act to restrict the purposes for which
slaughtering operations may be carried on pursuant to such a licence and if it were not for the
provisions of s. 52a of the Metropolitan and Export Abattoirs Act the defendant company at its
establishment might, apart from the effect of the relevant Commonwealth legislation, have lawfully
slaughtered and prepared meat for export. It was, however, the holder also of a certificate issued
pursuant to the Commerce (Meat Export) Regulations which certified that the company's premises
"have been registered in the name of Noarlunga Meat Limited of Noarlunga as an establishment in
which the following operations may be conducted : 'Slaughtering and freezing of Mutton and/or
Lamb for export'". It is unnecessary to specify the several conditions subject to which the certificate
was granted. (at p599)
3. Before considering the operation and effect of the last-mentioned regulations and the certificate
issued thereunder it is necessary to make reference to some of the provisions of the Metropolitan
and Export Abattoirs Act. By Pt. IV of the Act the Metropolitan and Export Abattoirs Board is
empowered to erect and establish abattoirs and to execute certain incidental works and there is
conferred upon the Board the exclusive right of conducting slaughtering operations in the
Metropolitan area (ss. 82 and 70). But in spite of the provisions of s. 6, which stipulate that the
provisions of the Act shall apply within the Metropolitan Abattoirs Area, the Act makes express
provision for the control of some slaughtering activities outside that area. Section 50 provides that
"except as provided by s. 50a" the Board shall have the sole right within the Metropolitan Abattoirs
Area to slaughter stock for export as fresh meat in a chilled or frozen condition, whilst s. 52a
provides that no person shall in any part of the State outside that area use any premises for the
purposes of slaughtering stock for export as fresh meat in a chilled or frozen condition unless he is
the holder of a licence from the Minister of Agriculture authorizing him to use those premises for
that purpose. The Minister is given a discretion to grant or refuse any application for a licence under
this section after due consideration of a number of matters which are specified in sub-s. (2). It is the
prohibition in the latter section which, it is said, the company failed to observe and which is said to
be in conflict with the relevant Commonwealth legislation. (at p600)

4. From the brief references to the State legislation which I have made it is apparent that, with some
immaterial exceptions, slaughtering operations in South Australia may not be carried on within the
Metropolitan Abattoirs Area by any person other than the Board and that, outside that area, they
may not be carried on by any person unless he is the holder of a licence under the Local
Government Act (or certain other legislation to which it is unnecessary to refer) or, in the case of
slaughtering for export, he is the holder of a licence under s. 52a of the Metropolitan and Export
Abattoirs Act. Since the defendant company's operations were carried on outside the last-mentioned
area and it was the holder of an appropriate licence under the Local Government Act, it was entitled
lawfully to engage in slaughtering operations but, as it did not hold a licence under s. 52a of the
Metropolitan and Export Abattoirs Act, it was subject to the prohibition erected by that section. This
at least was the submission of the complainant. But the defendant contended that being the holder of
a certificate issued under the Commonwealth regulations it needed no further lawful authority to
engage in the operation of slaughtering and treating meat for export. The effect of the issue of that
certificate was, it was contended, to confer upon the defendant company lawful authority to conduct
the operations therein specified one of which is, of course, the operation the subject of the present
charge. If this contention is sound and the relevant regulations are within power then the charge
against the defendant company is not well founded and must be dismissed. (at p600)

5. It may be contended that, in terms at least, the certificate purports to confer a licence to conduct
the operation of slaughtering and freezing mutton and lamb for export. This, however, by no means
disposes of the difficulty in the case, for the extent to which the certificate can operate as a licence
to perform this operation can be ascertained only by a consideration of the provisions upon which
its efficacy as a licence depends. Regulation 5 provides that all establishments used for the
slaughter, treatment and storage of meat, meat products or edible offal for export shall be registered.
Provision is made by reg. 6 for the making of applications for registration and for the issue of
certificates of registration. The form in which such certificates should issue is prescribed and the
certificate issued to the defendant company is in that form. Divisions 2, 3 and 4 of Pt. II prescribe in
considerable detail standard specifications with respect to the construction, ventilation, sanitation
and methods of operation of registered establishments, whilst Pt. III contains extensive provision
with respect to supervision, inspection, preparation, transportation and the marking of meat intended
for export. It is unnecessary to refer to these provisions in detail and it is sufficient to say that the
conditions prescribed and the provision made for supervision and inspection are of a most
comprehensive and exhaustive character. Regulation 91 makes provision for the issue of export
permits to exporters in all cases "in which the provision of these regulations have been complied
with", though until May 1953 the regulations themselves do not appear expressly to have placed any
direct embargo or prohibition on the export of meat. In that month, however, reg. 4B (1) was
promulgated. That regulation is in the following terms : - "The exportation of all meat, meat
products or edible offal is prohibited unless - (a) the treatment and storage of the meat, meat
products or edible offal has been carried out in an establishment registered in accordance with these
regulations ; (b) the provisions of these regulations have been complied with ; (c) the exporter has
received an export permit in respect of the goods in accordance with these regulations, and the
export permit is in force at the time of exportation of the goods." (at p601)

6. But prior to the promulgation of this regulation the Meat Export Control (Licences) Regulations
were in operation and reg. 4 of those regulations prohibited the export of meat except by persons
who held licences. These regulations came into force in June 1936 and, apparently, are still in force.
We have not been told, nor have I been able to discover, whether prior to that date the exportation of
meat without a licence was forbidden by proclamation pursuant to s. 112 of the Customs Act before
its amendment in 1934, but upon the view which I have formed of the operation and effect of the
Commerce (Meat Export) Regulations this is of little consequence. (at p601)

7. The contention that the issue of a certificate of registration issued pursuant to the regulations
operated to confer upon the defendant company lawful authority to conduct the operations therein
specified asserts, in effect, that the regulations evidence an intention on the part of the
Commonwealth to assume the supervision and control of all establishments for the slaughtering of
stock and the preparation of meat for export. To this end, it is said, the regulations exhaustively
define the standard requirements for such establishments and have provided for the issue of licences
to approved applicants. In one sense much of this may be conceded without damage to the
complainant's case, for a great deal depends upon what is meant by the assumption of "supervision
and control" of such establishments. If this means that the Commonwealth intended to constitute
itself the sole licensing authority for such establisments, and if the effect of the regulations is to
carry this intention into operation, then it may be assumed that the issue of a licence would have the
effect contended for on behalf of the defendant. In those circumstances there would be a clear
conflict between the relevant regulations and s. 52a of the Metropolitan and Export Abattoirs Act.
But it does not necessarily follow that if this view be rejected there is no such conflict. It is
sufficient for the defendant to establish either that the issue of a certificate has such an effect or,
alternatively, that the effect of the regulations is to prohibit the use of establishments which are not
registered thereunder for the purpose of slaughtering stock and the preparation of meat for export. In
the latter case they would also clearly conflict with the provisions of s. 52a which purport to
empower the Minister to issue licences authorizing the use of premises for that purpose. (at p602)

8. In considering the problem it is not without significance to observe that the regulations do not
contain any provision which purports expressly either to confer upon the holder of a certificate
authority to slaughter or treat meat for export or to prohibit the use of establishments for those
activities. Regulation 5 merely provides that all establishments used for the slaughtering, treatment
and storage of meat, meat products or edible offal for export shall be registered, whilst reg. 6
provides machinery for the issue of certificates of registration. A perusal of the regulations discloses
that almost invariably they are not couched in the language of command but rather in the form of
specifications, some of which appear to be designed as conditions precedent to the registration of an
establishment and others as conditions precedent to the right to obtain an export permit under reg.
91 in respect of meat processed in a registered establishment. In other words, the regulations, in the
main, present themselves not as rules of conduct with which the regulations imperatively require
compliance, but as the antecedent specification of conditions the fulfilment of which will entitle an
applicant to the issue of an export permit at the appropriate time. A few individual regulations, and
notably reg. 10, are not couched in language which is appropriate to such an understanding of them,
but they are not in question in this case and they are insufficient, I think, to require modification of
the general view which I have expressed. The object which the regulations appear to be designed to
achieve might have been achieved in other ways. It might have been brought about by a simple
prohibition of export except in cases where the commodity had been processed under specified
conditions designed to ensure appropriate export standards and this, of course, might have been
done without any provision for the registration of slaughtering establishments. But I see very little,
if any, difference between such a plan and that which is carried into effect by the regulations. In the
main the regulations merely prescribe conditions designed to secure standards of purity, quality and
condition at the point of export and these are the conditions which, if observed, will entitle an
applicant to an export permit. Again, in the main, the only sanction for the observance of these
conditions, including that of registration, is that failure to observe them will or may result in the
refusal of such a permit. If this be the correct view of the effect of the regulations then it is quite
clear that their provisions were not intended to supersede, pro tanto, all other existing requirements
for the establishment of slaughter-houses. Indeed, it clearly appears that when the regulations came
into operation there was in existence in South Australia, and no doubt in the other States, legislation
providing for the licensing and supervision of abattoirs generally and it should not, in the absence of
a clear indication, be inferred that it was the intention of the Commonwealth to over-ride this
legislation so far as the slaughtering of stock for export was concerned. If such a result was intended
I should have expected the regulations expressly to provide that the holder of a certificate of
registration might lawfully engage in that operation. The meaning of reg. 5 is, of course, a critical
matter in the case and I am unwilling to recognize it as the cornerstone of a licensing scheme
intended to supersede the legislation of the State. (at p603)

9. In these circumstances the form of the certificate of registration adds nothing to the defendant's
arguments. It is merely a certificate which evidences the fact that for the purposes of the regulations
the defendant company's establishment is a registered establishment. (at p603)

10. On the view which I have formed it is, I think, quite immaterial that s. 52a deals exclusively
with the slaughtering of meat for export or that the grant of a licence thereunder is in the discretion
of the Minister. (at p604)

11. For the reasons which I have given I am of opinion that there is no conflict between the relevant
State and Commonwealth legislation and it becomes unnecessary to consider whether the provisions
of the Commerce (Meat Export) Regulations or any of them are invalid. Accordingly I am of
opinion that the first question raised by the special case should be answered in the affirmative, and,
since there is no dispute on the facts of the case, the second question should also be answered in the
affirmative. (at p604)

ORDER

The questions in the special case dated 29th March 1954 which special case stood removed into this
Court under s. 40A of the Judiciary Act 1903-1950 are answered as follows : -

Question 1 - No.Question 2 - No.With these answers the cause is remitted to the specialmagistrate of
the Court of Summary Jurisdictionat Adelaide.

The complainant to pay the costs of the special case.
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