Question one

Issue – Is s10 of the salmonella prevention act 2022 (NSW) invalid because it breaches

s92 of the commonwealth constitution?

Issue one – Does s10 of the Salmonella Prevention Act 2022 (NSW) breach s92 of the

Commonwealth Constitution?

Legislation and application

S92 of the Constitution provides trade within the commonwealth to be free on the imposition

of uniform duties of customs, trade, commerce and intercourse among the states. S10 of the

Salmonella Prevention Act provides that any individual engaged in the transport of food or

other consumable items across state borders must obtain permission from the ministry of

health. This provision is inconsistent with s92 where trade is considered absolutely free by

means of internal carriage or ocean navigation.

Conclusion

S10 of the Salmonella Prevention Act is in breach of s92 of the Constitution.

Issue two – Can s10 of the state law be considered as trade and commerce?

Legislation and Application

The wording of the provision in the state law does not specifically include the words “trade

and commerce” outlined in the constitution. In applying the case of W & A McArthur Ltd v

Queensland (1920), trade and commerce can be defined as “the bargain, the transport, and

delivery are all parts of that class or relations which the world calls trade and commerce”. In

applying this precedent to s10 of the State act, the wording of “corporation or community
organisation in the transport of food and other consumable items” allows to fall under the

notion of “trade and commerce” as per s92.

Conclusion

S10 of the Salmonella Prevention Act is considered to be trade and commerce, thus proving

its invalidity in regard to the constitution.

Issue three – Does “absolutely free” outlined in s92 of the constitution apply to s10 of the

Salmonella Prevention Act?

Legislation and Application

The wording in the constitution applying to absolute freedom of trade and commerce is

identified in the case of W & A McArthur v Qld (1920). Defined in the case, absolute freedom

has the natural meaning “of absolute freedom from every sort of impediment or control by

states”. Where s92 protects private rights of individuals to engage in interstate in trade and

commerce, the case of Cth v Bank of NSW (1949) has two qualifications. This includes

permissible regulation and the striking down of provisions that have a direct effect on free

trade. It can be argued that s10 of the new state law has a direct effect on free trade, as all

consumable items into NSW across state borders has been affected.

Conclusion

S10 of the Salmonella Prevention Act is not considered to be compatible with the notion of

“absolute freedom” outlined in the constitution.

Issue four – Does the state law have a protectionist purpose?

Legislation and Application

Where protectionism is applied, it is considered an adoption of laws which treat local

products differently by reason of origin or is a protection of local industries against external

competition. In applying the case of Bath v Alston Holdings (1988), the element of

competitive advantage needs to be considered to satisfy this notion. In this case, the

Salmonella Prevention Act can be considered to not satisfy this component of external

competition. Where the law is generated on the prevention of future salmonella outbreaks, the

case of Castlemaine Tooheys v South Australia (1990) generates an exception to this rule,

allowing the legislature to enact a law to benefit the people of New South Wales.

Conclusion

The state law does not have a protectionist purpose as it is exempt in order to protect the

people of NSW.

Issue five – Is the state law discriminatory in nature?

Legislation and application

In applying the case of Cole v Whitfield, discrimination subjects trade and commerce to a

disability and/or disadvantage. Where it can be both direct and indirect, the case raises the

question of whether regulation is so disadvantageous that it places a burden on interstate

trade. It can be argued that the state law in this case can be considered valid as there is no

complete interstate discrimination, as individuals are able to seek a permit from the Ministry

of Health prior to trade. The state law also has not generated a competitive advantage on the

state, and it did not have a protectionist purpose.

Conclusion

It can be concluded that the state law is not discriminatory in nature.

Issue – In the alternative, is s10 inoperable because of s109 of the commonwealth

constitution?

Issue one – Is the Salmonella Prevention Act considered a law as per s109 of the

Constitution?

Legislation and Application

S109 of the Constitution provides that when a state law is inconsistent with a law of the

Commonwealth, the latter shall prevail, and the former shall be invalid. As per this section, a

law is considered an act of parliament, made under the authority of the primary act. In this

case, both the Salmonella Prevention Act and the Community Health Act 1988 (cth) are

considered to be laws under s109 of the Constitution.

Conclusion

The state law is considered a law as per s109 of the Constitution.

Issue two – Are the Salmonella Prevention Act and the Community Health Act 1988

simultaneously obedient?

Legislation and Application

The first test in regard to inconsistency is that of direct inconsistency. Where the two laws in

question are not able to be simultaneously obedient, the laws can be considered inconsistent,

and the state law is then invalid. As the Community Health Act 1988 (cth) requires that any
registered association may supply and operate a food/beverage stall in a public place on

completing the Health and Safety training module. The state law is inconsistent with this as it

can be considered to compel disobedience of the commonwealth law, as per Ex Parte Daniell

(1970). However, in considering this factor, it can be inferred that as per Whybrow (1910), it

can be possible for to obey both the state and commonwealth law. In this case, it is possible

for the scouts to obtain a permit and complete the module in both the state and

commonwealth law, thus the laws are not necessarily inconsistent.

Conclusion

The state and commonwealth law can be simultaneously obedient as both can be obeyed.

Issue three – Is there a conferral of rights between the state and commonwealth laws?

Legislation and Application

Where there is a conferral of rights between the state and commonwealth laws to which the

state law takes away a commonwealth right, the state law is considered inconsistent and is

invalid. Where the rights outlined in the commonwealth law allow the scouts to conduct trade

and commerce after completing an online module, it can be determined that the state law does

not take away this right. Although the state law requires a permit from the Ministry of Health,

we can apply the case of Colvin v Bradley Bros (1943). This allows individuals seeking to

conduct trade to complete both the module and seek a permit from the Ministry of Health,

thus allowing both rules to be obeyed and rights have not necessarily been conferred. Where

s5 of the commonwealth law only applied to the supply and operation of the food and

beverage stall, and not the trade component in which the scouts were involved in between

Victoria and Wagga Wagga. This reveals that there is not an inconsistency between the laws,

as the state law covers interstate trade, and the commonwealth covers the supply and
operation of a food and beverage stall. In addition, the wording of the commonwealth law

with the use of “may” allows for statutory interpretation, allowing the validity of the state

law. These two laws can both be obeyed and are consistent.

Conclusion

The state law does not necessarily take away a right conferred by the commonwealth law, as

the wording within its provisions and the rights covered are not diminished by the Salmonella

Prevention Act.

Issue four – Is there indirect inconsistency between the commonwealth and state law?

Legislation and Application

In determining indirect inconsistency, it is important to apply the case of Airlines of NSW

(1965) in adopting a narrow approach in considering the fields of the legislation. It can be

inferred that the purposes of the laws covered two different thing; the state law regarded the

interstate trade of consumable items, and the commonwealth covering the supply and

operation of food within a public place. Although the subject matters are similar in nature and

overlap to an extent, the case of Commercial Radio Coffs Harbour v Fuller (1986) can be

applied where a law is intended to be supplementary to or cumulative upon State law. These

State law in question is not inconsistent with the commonwealth law as interstate trade is

different from trade within the state and does not cover the field of trade within the public

place within the state.

Conclusion

There is no indirect inconsistency between the commonwealth and state laws.

Overall Conclusion

It can be determined from the purposes of the state law and the commonwealth laws that

there is no inconsistency in its provisions. Where the Salmonella Prevention Act is concerned

with interstate trade, the Community Health Act only covers the operation and supply within a

public place of a state. These laws are consistent with each other, thus the scouts are

subjected to the fine for breach of s10 of the Salmonella Prevention Act due to interstate

trading without getting a permit from the Ministry of Health.

Question 2

The Engineers case has started a shift in power from the states to the federal government.

Since the exposure of this case, federalism was enhanced, and the power shift resulted in a

range of changes in the ways the different laws operate and the consideration of validity of

state laws. This can be recognised in the provision of s109 and 51 of the Constitution and the

changed role of the High Court in its decision making. The Engineers case spurred a range of

changes, allowing for more consistency and favour for the commonwealth. With this shift in

power, it allows for a more generalised structure of government, ensuring that laws are

consistent with the Constitution and protecting the rights of individuals living in Australia.

The Engineers case (1920) caused an expansion in federal power after its succession in the

High Court. Concerned with union workers and issues regarding their pay, there was a vast

difference between the wages awarded by the state, and those by the new Federal

Government. The case was taken to the High Court raising the question as to whether the

commonwealth was permitted with the power to make binding laws on the states. This issue

was further question regarding interstate disputes. The ultimate decision of the case exposed a
shift in power between the commonwealth and the states. Where this case exposed the

commonwealth to have a more dominant position, the high courts interpretation in regard to

constitutional provisions altered, particularly in regard to s109 of the Constitution. Where this

section of the constitution evidently favours commonwealth laws, any inconsistency between

the two permits the State law to be invalid. This further enforces the power in which the

Commonwealth has over the states, establishing a range of criteria in order to prove its

validity. This section of the Constitution allows for consistency and aid in decision-making,

as there is a clear framework when it comes to conflicting laws between the states and

commonwealth. The Commonwealth’s power to make laws is also heightened in s51 of the

Constitution. Where the Commonwealth is given the power to enact laws for the prevention

and settlement of industrial disputes beyond the limitations of any State. This section grants

the Commonwealth extensive power, limiting the states dramatically. This was identified in

the case of NSW v Commonwealth (2006), where industrial relations were under the control

of the Commonwealth’s supremacy.

Following the Engineers Case, the shift toward federalism was highly influenced by the

decision of the High Court. Where the High Court’s interpretation of the issue at hand under

s51 of the Constitution was ultimately in favour for the union, it highlighted the

commonwealth’s supremacy in decision making. The separation of judicial powers requires

all courts to exercise federal jurisdiction, as per the ‘Kable principle’. Independent of the

legislature and the executive, the courts impartial role requires them to maintain public

confidence in the federal jurisdiction. Where the high court has the power to interpret

statutory provisions and conduct judicial review, the court has the power to eliminate

particular laws in which are inconsistent with the constitution. In adopting this principle, the

high court is able to consider both commonwealth and state provisions in conjunction with

the constitution. This allows for a structured framework, ensuring that per s109,
commonwealth laws are generally favoured. This permits a sufficient framework in decision-

making and ensuring that the states are compliant with the Constitution and Federal

Government.

The Engineers Case spurred a shift toward federalism, changing the ways in which statutes

are determined and adopted against commonwealth legislation. The case and the ways in

which the High Court functions in regard to statutory interpretation and decision making

allows for sufficient protection of constitutional provisions and the rights to Australians. In

maintaining commonwealth superiority, it allows for the states of Australia to remain

consistent and ensure that there are no conflicting laws and provisions when it comes to

resolving disputes that are interstate.