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s51 & s92 Trade and Commerce Power: Section 51(i) gives power to make laws about trade and commerce with other countries, and among the States. Section 92 requires trade between states to be free. (1) Airlines of New South Wales Pty Ltd v New South Wales (No 2) (“Second Airlines Case”) (1965) 113 CLR 54 Summary: the case is about the validity of Commonwealth regulations about intrastate air navigation. Although the Commonwealth has the power to regulate interstate air navigation under s 51(i) of the Constitution, it can only regulate intrastate air navigation under the implied incidental power attached to that head of power. It was held that intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of physical interference with, interstate or foreign air navigation. Issue: Whether the Cth Air Navigation law applied to the intra-state transport of passengers Decision: The trade and commerce power and the external affairs powers as authorising legislation on the subject of air navigation, and the extent to which the Cth may validly legislate on that subject considered. Air Navigation was accepted as being within the Cth power to make laws. (2) Attorney-General (WA) v Australian National Airlines Commission ("Western Australia Airlines case") (1976) 138 CLR 492 Decision: The Commonwealth cannot encroach upon trade and commerce within a State, because s 51(i) provides for “trade and commerce with other countries [overseas trade], and among the States [inter-State trade]”, but not within the States [intra-State trade]. In Bank Nationalisation Case, the High Court applied an 'individual rights' theory to the freedom of interstate trade and commerce that lasted until 1988, when it was overturned in favour a 'free trade' interpretation in Cole v Whitfield. Second Airline Case: Can cover both interstate and intrastate if they are Inseparably connected WA Airline Case: intrastate service is economically be required to assure the operation of interstate service is not sufficient (3) Bank of NSW v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 (4) Cole v Whitfield (1988) 165 CLR 360 Bank Case: Background: Comfortable in government after two strong election wins, the Labor government of Ben Chifley announced in 1947 its intention to nationalise private banks in Australia. To accomplish this goal the Parliament passed the Banking Act 1947. Under the Act, shares in the private banks would be owned by the Commonwealth Bank of Australia, which in turn would be owned by the Federal Government. The proposal was controversial, and the constitutional validity of the law was challenged by a number of banks. Decision: The law is invalid and the court held: 

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Section 92 of the Constitution in providing that "trade, commerce, and intercourse among the States ... shall be absolutely free." conferred a positive right on the banks to engage in the business of interstate banking. * it involved the acquisition of property that was not "on just terms, contrary to section 51(xxxi) of the Constitution. The problem with acquisition arose out of the Act's sections detailing the appointment of new directors for all private banks with the power to control, manage, direct and dispose of assets of

those banks. Dixon J held that this was a "circuitous device to acquire indirectly the substance of proprietary interest."

*This particular understanding of s 92 would remain highly influential, until it was overturned in favour a 'free trade' interpretation in Cole v Whitfield.

Cole Case: Facts: Whitfield and his company imported some crayfishes from South Australia for reselling, which were undersized under Tasmanian regulations. Cole, a Fisheries Inspector, charged Whitfield with a breach of the regulations. Whitfield pleaded not guilty and argued that section 92 protected the freedom of his interstate trade. Decision: The Court rejected the "individual rights" approach favoured in earlier cases such as Bank of New South Wales v Commonwealth, and endorsed the "free trade" approach. The Court concluded it was to create a free trade zone among the Australian states, and the words "absolutely free" referred to freedom in the economic sense. Thus, laws of a protectionist kind interfering with interstate trade and commerce would be invalid. The Court looked to the purpose of the Tasmanian laws and found that their objectives were of a conservational nature. As the laws applied to all crayfish, they were not of a protectionist nature and hence not in breach of Section 92. (28) O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 – trade and commerce power/s109

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.

S99: Discrimination among states (5) Elliott v Commonwealth (1936) 54 CLR 657 In Elliott v Commonwealth, Evatt J, in his dissenting judgment, rejecting Isaacs, stated: in relation to sec. 99, the following propositions should be accepted:  Sec. 99 forbids four types of preferential legislation, viz., (a) giving preference to a State over another State; (b) giving preference to a State over any part of another State; (c) giving preference to any part of a State over another State; (d) giving preference to any part of a State over any part of another State.  Sec. 99 forbids laws or regulations which accord preferential treatment to persons or things as a consequence of local situation in any part of the six States, regardless of all other circumstances.  The section is not infringed if the preferential treatment is a consequence of a number of circumstances, including the circumstance of locality.

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The section operates objectively in the sense that the purpose or motive of the Legislature or Executive in giving preference by a law of commerce or revenue is not a relevant question, e.g., it is irrelevant that the Legislature or Executive desires to facilitate or encourage inter-State or overseas trade, or to increase revenue. Sec. 99 may apply although the legislation or regulations contain no mention of a State eo nomine, e.g., the section may be infringed if preference is given to part of a State (e.g., that part of New South Wales which is represented by the port of Sydney) over another State (e.g., Western Australia) or any part of another State. To prove infringement of sec. 99 it is not sufficient to show discrimination based on mere locality; it must also be shown that, as a consequence of the discrimination, tangible benefits, advantages, facilities or immunities are given to persons or corporations.

Its rationale was further summarised in below case: (6) Fortescue Metals Group Limited v The Commonwealth (2013) 250 CLR 548 the Court declared that its objectives were similar to that with respect to the taxation power:

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the constraints imposed by ss. 51(ii) and 99 of the Constitution serve a federal purpose – the economic unity of the Commonwealth and the formal equality in the Federation of the States inter se and their people. Those high purposes are not defeated by uniform Commonwealth laws with respect to taxation or laws of trade, commerce or revenue which have different effects between one State and another because of their application to different circumstances or their interactions with different State legal regimes. Nor are those purposes defeated merely because a Commonwealth law includes provisions of general application allowing for different outcomes according to the existence or operation of a particular class of State law. A criterion for determining whether that category of Commonwealth law discriminates or gives a preference in the sense used in ss. 51(ii) and 99 is whether the distinctions it makes are appropriate and adapted to a proper objective

S51(xx) Corporation Power!!! https://www.studocu.com/en-au/document/macquarie-university/constitutional-law/lecture-notes/lecture-notesthe-corporations-power/398036/view (7) New South Wales v Commonwealth; Western Australia v Commonwealth (2006) 229 CLR 1 (“Work Choices Case”) Background In December 2005, the WorkChoices reforms were passed by Federal Parliament. There were many elements in the reforms, including some which elicited political and social controversy and consternation. In a legal sense, perhaps the two most fundamental changes were (1) the purported elimination of State and Territory workplace relations legislation from the federal industrial landscape and (2) the attempt to rely almost completely on the corporations power directly to prescribe minimum terms and conditions of employment regardless of the existence of an intrastate industrial dispute. Majority Judgment The majority of the High Court : rejected the plaintiffs' argument that the corporations power was limited to external relationships. Their Honours said it was inappropriate and unhelpful to draw any distinction between external and internal relationships of a corporation. did not expressly accept the plaintiffs' argument that the nature of the corporation had to be a significant element in the law. Their Honours said that the corporations power was validly exercised if a law prescribed norms regulating the relationship between corporations and their employees. rejected the plaintiffs' argument that the corporations power had to be limited by the existence of the conciliation and arbitration power. Their Honours said, amongst other things, this contention was contrary to the Constitution's text and structure and High Court precedent since 1920.

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Their Honours also rejected other arguments of the plaintiffs that parts of the WorkChoices legislation which covered employers in Territories were an invalid exercise of the Territories power which removed State and Territory industrial laws from the new federal workplace relations system were an invalid exercise of the corporations power or curtailed or interfered with the capacity of States to function

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The majority declared:[5]

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A law which prescribes norms regulating the relationship between constitutional corporations and their employees, or affecting constitutional corporations in the manner considered and upheld in Fontana Films[6] or, as Gaudron J said in Re Pacific Coal, "laws prescribing the industrial rights and obligations of [constitutional] corporations and their employees and the means by which they are to conduct their industrial relations"[7] are laws with respect to constitutional corporations.

(8) R v Federal Court of Australia: ex parte Western Australian National Football League (“Adamson's Case”) (1979) 143 CLR 190 http://www.austlii.edu.au/au/journals/MelbULawRw/1980/17.pdf  

A trading corporation can be found to exist on the basis of the nature of its established activities (the "activities test"), or with respect to the objects for which it was incorporated (the "purpose test")[11] "Trading activities" are those that involve some form of buying and selling, and generate revenue, regardless of whether carried out at a profit (R v Federal Court of Australia; Ex parte WA National Football League ("Adamson's case"))

S109 - inconsistency (9) Hume v Palmer (1926) 38 CLR 441 In Hume v Palmer 38 C.L.R. 441 it was held that the Navigation Act 1901 of this State and Article 19 of its Regulations for Preventing Collisions at Sea so far as they related to a steamship engaged in interstate trade failing to obey that Article in Port Jackson were inconsistent with the Commonwealth Navigation Act 1912– 1920 and invalid; the objection was that the prosecution should have been taken under the Commonwealth Act. "A difference in the penalties prescribed for conduct which is prohibited or penalized by Commonwealth and State laws has been held to give rise to inconsistency between those laws (see Hume v. Palmer (1926) 38 CLR 441 ; Ex parte McLean (1930) 43 CLR 472 ), at least when it appears that the Commonwealth statute by prescribing the rule to be observed evinces an intention to cover the subject matter to the exclusion of any other law. . . (10) R v Lowenthal; Ex parte Blacklock (1974) 131 CLR 338 In Reg. v. Loewenthal; Ex parte Blacklock..., I pointed out that such a provision in a Commonwealth law cannot displace the operation of s. 109 in rendering the State law inoperative. But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive. S109 (42) R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 https://en.wikipedia.org/wiki/Section_109_of_the_Constitution_of_Australia The Commonwealth can avoid covering a legislative "field" by passing an express provision declaring its intention not to do so. This means in practice that the Commonwealth can control the operation of s.109 in a negative way by making it clear that related State laws are to operate concurrently with the Commonwealth law. The leading case is R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, where Mason J. noted: 28. The judgments to which I have referred make the point that although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s. 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law. 29. It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed. In Reg. v. Loewenthal; Ex parte Blacklock..., I pointed out that such a provision in a Commonwealth law cannot displace the operation of s. 109 in rendering the State law inoperative. But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive. (11) Melbourne Corporation v Commonwealth (1947) 74 CLR 31 – Between Cth and State Facts: During WWII CBA was given a power to oversee private banks and control the supply of money and credit. The Banking Act 1945 sought to make this permanent. Ben Chifley (PM and Treasurer) proposed to compel states and authorities, including LGAs to bank with the CB. Section 48 provided that banks could not conduct banking business for a State or authority of a State, including an LGA without consent of the treasurer.

The Melbourne City Council were notified that it was an authority to which s 48 applied and thus sought to have it struck down. Held: s 48 is invalid The Melbourne Corporation principle renders constitutionally invalid any Commonwealth law that is otherwise valid under a head of power in s51 or some other part of the Constitution if it: 1. Places a special burden on the states; 2. Which significantly impairs, curtails or weakens the capacity of states or state agencies to exercise their constitutional powers or functions Melbourne Corporation Doctrine o In 1947, Cth wanted to nationalise the banks and enacted legislation to this effect - Banking Act 1945 (Cth), which provided in part that banks shall not conduct any banking business for a state o Legislation was challenged on a number of grounds, one of which was that it was ‘discriminatory’ in the sense that it was ‘aimed at’ the States and State authorities, and that neither the Commonwealth nor the States are competent to aim its legislation at the other so as to tend to weaken or destroy the functions of the other. o A majority of the court (Latham CJ, Rich, Starke and Dixon J; McTiernan J dissenting) accepted this argument o The High Court recognised an implication arising from the federal structure of government contemplated by the Constitution that the Commonwealth may not impose special burdens or disabilities on a State or States or destroy or curtail the continued existence of the States or their capacity to function as governments. o Latham CJ referred to the Engineers’ case and said that this case didn’t say that the States are inferior to and subjects of the Cth. o The Melbourne Corporation principle as formulated by Starke J was applied in QEC v The Commonwealth (1985).

Chapter III Justification Power (12) Polyukhovich v Commonwealth (“War Crimes Act Case”) (1991) 172 CLR 501 Background The War Crimes Act 1945 (Cth) provided that any person who committed a war crime between 1 September 1939 and 8 May 1945 was guilty of an indictable offence. Ivan Timofeyevich Polyukhovich had been charged under the Act with war crimes, alleged to have been committed between September 1942 and May 1943 in the Ukraine while it was under German occupation in World War II. Polyukhovich's lawyers argued that the law was beyond the scope of Commonwealth legislative power in section 51(vi) (defence) and section 51(xxix) (external affairs) of the Constitution. He further argued that the attempt to make past criminal conduct an offence was an invalid attempt to usurp the judicial power of the Commonwealth, that power being vested by the Constitution in Chapter III courts, by enacting what was effectively a bill of attainder. Decision External affairs power By a majority of 6 to 1 (Brennan J dissenting) the court held that the Act was a valid exercise of the external affairs power. The six majority judges all wrote separate opinions. Mason CJ, Deane, Dawson, Gaudron & McHugh JJ were all of the opinion that as the subject matter of the legislation was external to Australia then the law was a valid one under the external affairs power. Mason CJ also said that if the Parliament considered that Australia had an interest or concern it was not for the court to examine whether there was a relevant interest or concern. Toohey J, however, considered that it was not sufficient that the Act dealt with matters outside Australia. In his opinion, the subject matter had to 'touch and concern' Australia, In the event, he found that there was a sufficient connection between the subject matter of the Act and Australia to allow the law under section 51(xxix). In dissent, Brennan J suggested that there must be a nexus between Australia and the 'external affair' involved. He held that, because the subject of war crimes in World War II was not an external affair at the time, i.e., 1939 to 1945, the subsequent acquisition of citizenship or residence in Australia by an individual was not enough to transform the subject matter into an external affair. Judicial power In relation to Polyukhovich's contention that the Act purported to usurp (take illegally) the judicial power of the Chapter III courts, the court held by a majority of 4 to 2 (Brennan J not deciding) that the statute did not invalidly usurp the judicial power of the Commonwealth. While...