O'Sullivan v Noarlunga Meat Ltd

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O'Sullivan v Noarlunga Meat Ltd
Coat of Arms of Australia.svg
Court High Court of Australia
Decided16 June 1954
Citation(s) [1954] HCA 29, (1954) 92  CLR  565
Case history
Appealed to Privy Council
[1956] UKPC 24, [1957]  AC  1;
[1956] UKPCHCA 4, (1956) 95  CLR  177
Subsequent action(s) O'Sullivan v Noarlunga Meat Ltd (No 2) [1956] HCA 9, (1956) 94  CLR  367
Case opinions
(3:3) The Commonwealth licensing system was inconsistent with the state licensing system (per Dixon CJ, Fullager & Kitto JJ; McTiernan, Webb & Taylor JJ dissenting)(3:3) Section 51(i) of the Constitution permits the Commonwealth to regulate the slaughter of meat for export (per Dixon CJ, Fullager & Kitto JJ; McTiernan, Webb & Taylor JJ dissenting)
Court membership
Judge(s) sitting Dixon CJ, McTiernan, Webb, Fullagar, Kitto and Taylor JJ

O'Sullivan v Noarlunga Meat Ltd, [1] was a case decided in the High Court of Australia regarding the scope of the trade and commerce power, under s 51(i) of the Australian Constitution, and inconsistency between Commonwealth and State laws, under section 109 of the Constitution.

High Court of Australia Highest court in Australia

The High Court of Australia is the highest court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states and territories, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Constitution of Australia United Kingdom legislation

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

Section 109 of the Constitution of Australia deals with the legislative inconsistency between federal and state laws and declares that valid federal laws override inconsistent State laws, to the extent of the inconsistency. Section 109 is analogous to the Supremacy Clause in the United States Constitution and the Paramountcy doctrine in Canadian constitutional jurisprudence, and the jurisprudence in one jurisdictions is considered persuasive in the others.



Noarlunga Meat Ltd was charged with contravening the Metropolitan and Export Abattoirs Act 1936 (SA), s 52a, because it did not hold a State licence for slaughtering stock. All premises outside the metropolitan area "for the purpose of slaughtering stock for export as fresh meat in a chilled or frozen condition" were required to obtain a licence from the State Agriculture Minister. However, the defendant company was registered under the Commerce (Meat Export) Regulations (Cth). Regulation 4B prohibited the exportation of meat unless an export permit had been granted, and regulation 5 required that all premises used for the slaughter of meat to be registered.

South Australia State of Australia

South Australia is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of 983,482 square kilometres (379,725 sq mi), it is the fourth-largest of Australia's states and territories by area, and fifth largest by population. It has a total of 1.7 million people, and its population is the second most highly centralised in Australia, after Western Australia, with more than 77 percent of South Australians living in the capital, Adelaide, or its environs. Other population centres in the state are relatively small; Mount Gambier, the second largest centre, has a population of 28,684.

States and territories of Australia first-level subdivision of Australia

Government in the Commonwealth of Australia is exercised on three levels: federal, states and territories, and local government.

Slaughterhouse facility where animals are killed for consumption as food products

A slaughterhouse, also called abattoir, is a facility where animals are slaughtered, most often to provide food for humans. Slaughterhouses supply meat, which then becomes the responsibility of a packaging facility.

The defendant company argued that the State act was invalid by virtue of inconsistency with the Commonwealth regulations, which is dealt with in s 109 of the Constitution.


Trade and commerce power

The Commonwealth has the power to make laws with respect to "trade and commerce with other countries, and among the States", as per s 51(i) of the Constitution. This power authorises the prohibition of the export of certain commodities, and by extension the prohibition of commodities with certain restrictions. Regulation 4B is therefore within its power.

Regulation 5 does not fall under the direct head of power. Instead, it falls within the implied incidental power, which was best expressed in D'Emden v Pedder (1904) 1 CLR 91 at p 110. Fullagar J, with whom Dixon CJ and Kitto J concurred, stated that the Commonwealth may control any steps leading to the export itself (generally labelled as "production") that may affect "beneficially or adversely" Australia's export trade. This includes provisions to control the quality of meat being exported, which may involve regulation of such stages as packaging and handling. In fact, it may be necessary to "enter the factory or the field or the mine" to secure Australia's export industry.

<i>DEmden v Pedder</i> Jump to navigationJump to searchlegal case heard in the High Court of Australia in 1904

D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian constitutional law of the degree to which the two levels of Australian government were subject to each other's laws.

Sir Wilfred Kelsham Fullagar, KBE, QC was an Australian judge who served on the High Court of Australia from 1950 until his death in 1961. He had earlier served on the Supreme Court of Victoria from 1945 to 1950, and had previously been considered one of Melbourne's leading barristers.

Owen Dixon Australian judge and diplomat

Sir Owen Dixon was an Australian judge and diplomat who served as the sixth Chief Justice of Australia. A judge of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest-ever jurist.

In general regulation of production may occur where there is an objectively different method of production between meat destined for home and foreign consumption, but Fullager J was clear in restricting the application of the principle to the specific factual circumstances at hand.


Fullagar J noted that it was possible to obey both sets of laws simultaneously, by acquiring both State and Commonwealth licenses. However, it was his opinion that the regulations expressed an intention to "completely and exhaustively" cover the field with regards to the regulation of such premises; he found the detailed regulations compelling in this regard. Furthermore, the State law would have acted to deny the rights granted by a certificate obtained under the Commonwealth regulations.

The court was split 3-3. As this was a stated case and not an appeal, the decision of the Chief Justice prevailed, [2] in what is sometimes described as a statutory majority. [3]


In June 1955 the Privy Council gave special leave to appeal except in relation to the constitutional powers of the Commonwealth and the States. The High Court subsequently refused to issue a certificate under section 74 of the Constitution. [4] The Privy Council held that the question of whether laws were inconsistent involved the application of section 109 of the Constitution and did not involve a question in relation to the constitutional powers of the Commonwealth and the States. The Privy Council approved the decision of the statutory majority, particularly the judgment of Fullager J and dismissed the appeal. [5]

Judicial Committee of the Privy Council Judicial body in the United Kingdom

The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for certain British territories and Commonwealth countries. Established on 13 August 1833 to hear appeals formerly heard by the King-in-Council, the Privy Council formerly acted as the court of last resort for the entire British Empire, and continues to act as the highest court of appeal for several independent Commonwealth nations, the Crown Dependencies, and the British Overseas Territories.

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  1. O'Sullivan v Noarlunga Meat Ltd [1954] HCA 29 , (1954) 92 CLR 565(17 December 1954), High Court.
  2. Judiciary Act 1903 s23 as amended by the Judiciary Act 1912.
  3. Milne v Federal Commissioner of Taxation [1976] HCA 2 , (1976) 133 CLR 526 at p. 533 per Barwick CJ.
  4. O'Sullivan v Noarlunga Meat Ltd (No 2) [1956] HCA 9 , (1956) 94 CLR 367(2 March 1956), High Court
  5. O'Sullivan v Noarlunga Meat Ltd [1956] UKPC 24 , [1957] AC 1; [1956] UKPCHCA 4 , (1956) 95 CLR 177(4 July 1956), Privy Council (on appeal fromAustralia).