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2.2 [s51(i)] Trade and Commerce.doc

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Queensland University of Technology

Trade & Commerce—s51(i) s51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) trade and commerce with other countries, and among the States. • To determine whether a law is one “with respect” to the subject matter of a head of power, look at the ‘rights, duties, powers [or] privileges’ which it ‘changes, regulates or abolishes’: Fairfax v Commissioner for Taxation • A law can be characterised as ‘with respect to’ more than one head of power: Murphyores v Cth; Fairfax v Commissioner for Taxation; Northern Suburbs Cemetery • No powers are reserved to the states, rather the states have full plenary power and the Cth has power only within its enumerated powers: Engineer’s case SUMMARY OF s51(i)  Core of the power involves buying and selling across state boundaries and overseas, and all commercial pre-cursors to such trade (eg. Negotiation, contracting etc): W & A McArthur v Qld  The definition of ‘trade and commerce’ has been applied strictly in the HCA to give effect to the distinction written into the Constitution but the incidental aspect of the power has expanded to take account of modern conditions  Periphery of the power may allow Cth to legislate with respect to:  Manufacturing: Noarlunga Meats  First sale about export/import: Paradiso  Conditions leading to intrastate trade where there is intermingling with interstate trade: Redfern v Dunlop Rubber Trade and Commerce • ‘trade and commerce’ is not a term of art, it’s an expression of fact. It’s a term of common knowledge as well known to laymen as to lawyers and better understood by traders and commercial men than by Judges: W&A McArthur v Qld (1920) • The essence of “trade” is buying and selling: St George County Council per Stephen J • There is no need for a profit motive – don’t have to discriminate on terms of trade or rates of sale: St George County Council (CC buying & selling electricity on large scale—no profit motive ← trying to supply as cheaply as possible  trading corporation nonetheless) • Extends to intangibles: Dixon in Bank NSW v Cth (the Bank Nationalisation case) o supply of gas, transmission of electric current, communication, telegraph, telephone, wireless, broadcasting, TV, visual signals, press agencies and transmission of $ by a bank o i.e. if activity involves a transaction, it is ‘trade and commerce’ • Cth can be a trader—power extends to Cth not only regulating but participating in T&C (including creating a corp to do it): o Airline: Australian National Airlines v Cth (1945) (Statutory commission to operate airline between states—challenged by private airlines  no limitation to be implied into 51(i): Engineers) o Shipping Service: Australian Coastal Shipping Commission v O’Reilly Activities Include • transporting/delivering for reward: ANA Case (regardless of purpose of transport—doesn’t have to be for the purpose of further trade & commerce) Andrew Trotter LWB242 2009-1 o Includes all commercial arrangements ← transportation is a direct and necessary result: W & A McArthur v Qld • Activities preliminary to trade—communings, negotiation and bargaining oral or written: W & A McArthur v Qld • Includes activities that lead up to trade—e.g. production, manufacture, processing, transport, distribution, sale—where a legitimate concern of the Cth (eg affecting quality of the exports): O’Sullivan v Noarlunga Meat Ltd (1954) (Slaughter of lambs (all for export) without State license—Registered under Cth law (defeats State law under s109)—but valid?  control of exports extends to control of quality of exports—legitimate concern of the Cth → valid); • Provided they are incidental to the acts of trade: Grannall v Marrickville Margarine (1955) • BUT Cth law will not invalidate State regulations on intrastate trade—no release from licensing requirements, etc: Swift v Boyd Parkinson (production of poultry for export & domestic markets in same factory—owners of slaughterhouse in contravention of State regulations—not in contravention of Cth regulations  no inconsistency—Cth legislation referred only to poultry for export → not saved by Cth legislation) o Same reasoning may not apply to other commodities—depends on whether it is a legitimate concern of the Cth (meat—fussy importers, Iran, US—slaughtering, freezing procedures important ↔ eg. wheat etc as “sowing wheat for export” may have no “objective” element) • Professionals—not trade & commerce: R v Small Claims Tribunal; ex parte Gibson (dentist not a trader—a professional—influenced by the snobbish distinction of judges between professions and mere trade) o Consulting engineers = trade and commerce: Bond Corporation v Theiss Contractors o Lawyers = T&C: Goldfarb v Virginia State Bar (US)  BUT lawyers will remain largely immune as they are rarely in interstate trade Core of Power • Cth has power to “prohibit, regulate and control the importation and exportation of goods” for any purpose (including environmental purposes): Murphyores v Cth (Constitutional validity of customs regulations prohibiting export of mineral sands—plaintiff miner of sands—permit application rejected on environmental grounds—appeal to court rejected ← may regulate for environmental purposes also) • Prohibiting a part of trade or commerce (drugs sections of Customs Act) o Imposing conditions on trade and commerce (= exports or imports) (even if reasons for law have nothing to do with trade or commerce): Murphyores v Cth • Regulating trade or commerce o who can be employed: Huddart Parker (Shipping & stevedoring company—boats travelling interstate & overseas) o Conditions of work:  R v Wright (Validity of Stevedoring industry act—prescription of conditions of employment—supported by legislation)  R v Foster (Could regulate employment on ships engaged in interstate or overseas trade and commerce) • Protecting interstate, overseas trade or commerce: Seamens’ Union v Utah Development (see now s 45D TPA—prohibited secondary boycotts of exports, harming overseas
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