Carter v Potato Marketing Board [1951] HCA 60

High Court of Australia Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. Carter v Potato Marketing Board [1951] HCA 60

ORDER Appeal dismissed and order nisi discharged with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 17 Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ.

The appeal is brought from the Court of Petty Sessions at Brisbane under s. 39 (2) (b) of the Judiciary Act 1903-1950. Upon a complaint by the respondent, the Potato Marketing Board, the stipendiary magistrate sitting as the Court of Petty Sessions convicted the appellants of an offence under s. 15 (3) of The Primary Producers' Organisation and Marketing Acts 1926 to 1946 Q. The charge upon which the appellants were so convicted, stated briefly, was that at Brisbane on 17th May 1950 they received from a person other than the Potato Marketing Board (the respondent) sixty-one bags of potatoes forming part of what had been declared to be a commodity under and for the purposes of those Acts, which potatoes were not exempted by the respondent board from the operation of s. 15. Sub-section (3) of s. 15 provides that any person who, save as in the Act afterwards prescribed, sells or delivers any of the commodity to or buys or receives any of the commodity from any person other than the board shall be liable to a penalty not exceeding £500.

The answer made to the charge on behalf of the appellants depends upon s. 92 of the Constitution. The validity of sub-s. (3) is attacked as an attempted impairment of the freedom of trade commerce and intercourse among the States of a kind incapable of any severable or distributable operation which would support the charge. The validity of the sub-section was attacked also as inseverably connected with sub-s. (1). The text of sub-s. (1) of s. 15 will be set out later. All that now need be said is that according to the appellants' claim sub-s. (1) is inconsistent with the freedom of inter-State trade and incapable of a severable or distributable application to or operation upon the domestic trade of the State of Queensland.