T&C problem question PDF

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Answer for tutorial problem question for trade and commerce power ...

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Problem questions The executive committee of Animals Alive are seeking advice as to whether of sections 1 and 2 of the Economic Security (Meat and Livestock industries) Act 2011 (Cth) (‘The Act’) is invalid as they have been detrimentally affected by this law. Whether it operates ‘with respect to’ the scope of the Commonwealth’s legislative powers conferred in s. 51 and 52 of the Constitution is a matter dependant upon the assessment of the Act’s characterisation. Given that the Act aims to ensure the ‘economic security of the Australian nation, including the protection of Australian economic interest’, then the power that would most Law would most likely fall under the trade and commerce head of power (s. 51(i)). Under the T&C power, the Constitution permits the Commonwealth parliament to dualistically regulate and participate in trade and commerce with other countries whilst also in conjunction amongst the States [Australian National Airways v Cwth 1945]. It is considered as a subject matter power and therefore, a ’sufficient connection’ must exist between this head of power and the impugned provisions of the Act as to ensure the valid operation [Grain Pool of WA v Cwth 2000]. In assessing whether such a connection exists, the rights, powers, liabilities, duties and privileges that the provision create, alter or remove must also be considered.

High Court interpretation of ‘Trade and Commerce’

The scope of this head of power, as well as the approach in which the High Court interprets ‘trade and commerce’ is of a broad nature as to include yet but not exhaustive to: participation in negotiations, transport and delivery and inherently - the act of trade itself [W & McArthur Ltd v QLD 1920]. Furthermore, the Noarlunga Meats Case highlighted that s51(i) was not confined strictly to the realms of trade and commerce but also pertains to anything sufficiently connected to it. Justice Fullagar, with whom Dixon CJ, Kitto J and McTiernan JJ agreed, confirmed that the trade and commerce power extended to enable the prohibition of export trade except upon compliance with certain conditions.

Section 1 In application to the facts, section 1 sets out various regulations which protect the interstate trade of livestock, poultry and meats. The act also creates an obligation of citizens from interfering with the transport of these exports and is enforced by the imposition of penalties for a breach [Fairfax v Federal Commissioner of Tax 1965]. Therefore, in light of the broad Fullagar in Noarlunga Meats case, since this section regulates the transport of exports, there is a sufficient connection with the head of power. Thus, Animals alive will be liable to any breaches of this section.

Section 2 Interpretations of s. 51(i) of the constitution express that the governing of trade within a state does not fall within the scope of power the Commonwealth parliament can exercise [AG (WA) v Australian National Airlines Commission 1976]. In this instance section 2 expresses to operate as to regulate the intrastate trade of livestock, poultry, and animals and on this basis, section 2 cannot be considered as valid. However, the commonwealth may reserve the necessary implied incidental power as to extend the scope of s. 51(i) beyond its current limits to encompass intra-state trade. In Redfern v Dunlop Rubber Australia Pty Ltd (1964) where the issue was whether the Commonwealth could prohibit trades and practices between states, Menzies J stated that head of power may only extend to intra-state trade and commerce if there is an inseparable connection with inter-state trade and commerce. Furthermore, Windeyer J affirms, and extends, stating that ‘the connexion between inter and intra trade or commerce must not be so remote or insignificant that there is no real relationship’. As such, the Commonwealth may argue that there is such connexion as the preparation of interstate and intrastate export are conducted in the same factory,, and transport of the goods is not so remote from each. However, this argument will likely fail since the there is no evidence that the existence of the interstate trade is dependent on the intrastate trade.

Conclusions In light of the perspectives above, section 1 will be valid as the regulations of export fall under the head of power. However, section 2 will not be valid since it relates to intra-state trade which is not within the scope of Commonwealth legislative powers, and there is no connexion or dependence of the two co-existing under one regulatory body....