TRADE AND COMMERCE POWER

1. TRADE AND COMMERCE POWER SECTION 51 (i) COMMONWEALTH CONSTITUTION

2. TRADE AND COMMERCE POWER • S.51(i) Commonwealth Constitution: “The Parliament shall have power to make laws with respect to : TRADE AND COMMERCE WITH OTHER COUNTRIES AND AMONG THE STATES

3. MEANING OF “TRADE AND COMMERCE” • W and A McArthur v Queensland: • Not terms of art, but common knowledge, expressions of fact • Examples depend on varying phases of development of trade and commerce • Not confined to transportation over a boundary • Communings, negotiations, the bargain, transport and delivery are all “trade and commerce”

4. MEANING OF “TRADE AND COMMERCE” Australian National Airways v Commonwealth, per Dixon J: “It is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances”

5. MEANING OF “TRADE AND COMMERCE” • Australian National Airways v Commonwealth: • Cwlth conduct of transport services answers description of trade and commerce amongst the states • Cwlth able to both regulate and enter field of overseas and interstate trade and commerce

6. MEANING OF TRADE AND COMMERCE • Bank of New South Wales v Commonwealthper Dixon J: • Covers movement of goods, persons and intangibles eg gas, electricity, broadcasting, banking • Not confined to physical things or persons • Includes all forms of interstate transaction by commercial dealing, personal passage or communication

7. MEANING OF TRADE AND COMMERCE • Granall v Marrickville Margarine: • Do NOT read T and C power as never being able to reach or touch production • “With respect to T and C” = a relevance or connection with subject matter • T and C includes operation of inherent incidentals power ie can legislate re acts, matters and things necessary to effectuate main purpose of T and C power

8. TRADE AND COMMERCE POWER INCIDENTAL ASPECT of Trade and Commerce Power: Wragg v NSW(per Dixon CJ): . Distinction which s.51(i) makes between: (a) Interstate and International Trade AND (b) Intrastate trade MUST BE MAINTAINED, even where the principle of the incidental aspect of the T and C power applies

9. TRADE AND COMMERCE POWER • Wragg v NSW: • THEREFORE assumes T and C in Australia able to be divided into 2 distinct branches: • INTRASTATE TRADE • INTERSTATE AND OVERSEAS TRADE

10. TRADE AND COMMERCE POWER • CONCESSIONS TO DIVISION OF T and C power into the 2 distinct branches: • ALLOW concession where a PHYSICAL integration, connection or causal link exists between INTRASTATE trade and INTERSTATE or INTERNATIONAL T and C

11. TRADE AND COMMERCE POWER • CONCESSIONS TO DIVISION OF T and C power into the 2 distinct branches: • REFUSE concession where a ECONOMIC integration or link exists between INTRASTATE T and C and INTERSTATE or INTERNATIONAL T and C

12. TRADE AND COMMERCE POWER EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE

13. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • R v Burgess; Ex parte Henry: . Q of validity of Air Navigation Regulations under Air Navigation Act as applied to ALL civil aviation in Australia, incl regulation INTRASTATE air traffic . HC rejected validity this case, but left open for future possible Cwlth control of INTRASTATE AIR TRAFFIC

14. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • R v Burgess; Ex parte Henry: • Possible future Cwlth control, based on NON ECONOMIC considerations, as falling within T and C power • Principles canvassed in judgments of: • Latham CJ • Dixon J • Evatt and McTiernan JJ

15. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • O’Sullivan v Noalunga Meat: • Cwlth regs re processing of meat for export and licence to export meat • SA also imposed licence requirement • Therefore, s.109 issue • Majority found Cwlth intended to cover field of meat export regulation • Cwlth regs therefore valid exercise T and C power

16. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • O’Sullivan v Noalunga Meat: • Example of extent of ability of Cwlth to regulate different aspects of trade and commerce • Per Fullagar J: • Export trade – all matters beneficially or adversely affecting Oz’s Export trade • Could incl some circumstances of production or manufacture • Q of how far back Cwlth regulation can go need not now be answered; extends to acts or processes identified for export

17. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • O’Sullivan v Noalunga Meattherefore raises this Q: WHETHER TRANSACTIONS DIRECTED TOWARDS INTRASTATE T and C SO AFFECT OTHER TRANSACTIONS DIRECTED TOWARDS INTERNATIONAL OR INTERSTATE T and C, THAT THE TRANSACTIONS SHOULD BE REGARDED AS INTEGRATEDAND OPEN TO CONTROL UNDER the SECTION 51 (i) T and C power

18. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE Airlines of NSW v NSW: . Capacity of Cwlth to regulate intrastate air travel . Cwlth Air Navigation Regulations . State Acts regulating and licensing air navigation within NSW Q: Whether Cwlth regs valid and whether inconsistent with NSW legislation

19. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • Airlines of NSW v NSW: . NSW legislation NOT inconsistent with Cwlth regs . Rejected Cwlth claim to use s.51(i) T and C power to promote ECONOMIC well being of interstate and overseas air travel by regulating intrastate air services to ensure feeder services . BUT Cwlth laws for safety, regularity and efficiency of intrastate air services for protection against PHYSICAL INTERFERENCE of air navigation within Federal power is a valid law with respect to air navigation ie OK

20. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • Attorney General WA (ex rel Ansett Transport Industries Ltd) v Australian National Airlines Commission • S.19 B ANA Act (Cth): TAA powers to transport passengers and goods for reward between places in ONE state • Such powers may be exercised under Act for EFFICIENT, COMPETITIVE, PROFITABLE CONDUCT OF TAA

21. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE AG WA (Ex rel Ansett) v ANA: . TAA proposed service Perth-Darwin with stop at Port Hedland (ie intra-state service) for economic reasons (collection and disembarkation of passengers . Ansett challenge to s.19B of TAA Act . HC majority: S.19 B valid under s.122 Territories power: “The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth”

22. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • AG WA (Ex rel Ansett) v ANA: BUT (Barwick CJ, Gibbs and Stephen JJ) that s.51 (i) T and C power would not support the legislation – economic considerations constitutionally inadmissible in relation to INTRA STATE trade and commerce . Stephen J judgment . Murphy J dissenting judgment

23. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • Murphyores Inc Pty Ltd v Commonwealth • Customs Regs (Cth) and Environmental Protection (Impact of Proposals) (Cth) re Fraser Island sand mining • Murphores seeks injunction re Inquiry and declaration that Cwlth Minister not entitled to consider environmental report in considering whether to grant export licence under Customs Regs

24. EXTERNAL, INTERSTATE AND INTRASTATE TRADE AND COMMERCE • Murphores Inc Pty Ltd v Commonwealth: • HC upheld Cwlth’s right to control export of mineral sands, (external trade) taking into account environmental considerations, under the s.51 (i) T and C power • Judgments of: • Mason J • Stephen J

25. S.51(i)TRADE AND COMMERCE POWER END OF TOPIC