Australian Constitutional Law
Australian Constitutional Law
Question One
In order to determine whether Y and Z are subject to the proposed law, the activities of the milling business must be examined and a connection to s51(i) of the Commonwealth of Australia Constitution Act1 (hereafter referred to as the
Common wealth) must be established. Also to be considered is the purpose of the legislation, or whether purpose is necessary to the power at all. One limitation to s51(i) to be addressed is the geographical distinction which it requires, and what peripheral activities might the courts be willing to deem interstate or intrastate trade.
Y and Z, to their knowledge, engage only in intrastate trade. However it would be unreasonable to assume that some produce is not sold interstate, by the agents. We must look to common law in order to determine the courts views on characterisation in terms if interstate and intrastate trade. In Redfern v Dunlop
Rubber Australia2, the high court held that the scope of s51(i) extended to regulate a function which combined both interstate and intrastate trade. This dilemma was discussed more widely in Swift Australian Co Pty Ltd v BoydParkinson3 where the court held that poultry intended for intrastate trade should be subject to state legislation and visa versa. The physical integration of both intrastate and interstate goods eventuated in Redfern v Dunlop Rubber Australia as the high court thought it a more practical approach.
The facts presented in the case of Y and Z are similar to those in O’Sullivan v
Noarlunga Meat Ltd4. Fullagar put to the court “the question of whether the commonwealth with respect to trade and commerce with other countries extends to authorising legislation regulating and controlling the slaughter of meat to export”5 His honour went on to hold that the power does extend. In Noarlunga
Meat Ltd, a processing abattoir was operating on federal law standards and was seeking the implementation of s109 of the
Question One
In order to determine whether Y and Z are subject to the proposed law, the activities of the milling business must be examined and a connection to s51(i) of the Commonwealth of Australia Constitution Act1 (hereafter referred to as the
Common wealth) must be established. Also to be considered is the purpose of the legislation, or whether purpose is necessary to the power at all. One limitation to s51(i) to be addressed is the geographical distinction which it requires, and what peripheral activities might the courts be willing to deem interstate or intrastate trade.
Y and Z, to their knowledge, engage only in intrastate trade. However it would be unreasonable to assume that some produce is not sold interstate, by the agents. We must look to common law in order to determine the courts views on characterisation in terms if interstate and intrastate trade. In Redfern v Dunlop
Rubber Australia2, the high court held that the scope of s51(i) extended to regulate a function which combined both interstate and intrastate trade. This dilemma was discussed more widely in Swift Australian Co Pty Ltd v BoydParkinson3 where the court held that poultry intended for intrastate trade should be subject to state legislation and visa versa. The physical integration of both intrastate and interstate goods eventuated in Redfern v Dunlop Rubber Australia as the high court thought it a more practical approach.
The facts presented in the case of Y and Z are similar to those in O’Sullivan v
Noarlunga Meat Ltd4. Fullagar put to the court “the question of whether the commonwealth with respect to trade and commerce with other countries extends to authorising legislation regulating and controlling the slaughter of meat to export”5 His honour went on to hold that the power does extend. In Noarlunga
Meat Ltd, a processing abattoir was operating on federal law standards and was seeking the implementation of s109 of the
Bibliography: 1. Australian Constitutional Law- Materials and Commentary, 7th Edition. P. Hanks, P Keyzer and J Clarke. Published by Lexis Nexis- Butterworths 2004 2. A Manual of Australian Constitutional Law, 5th Edition. P.H. Lane. Published by The Law Book Company 1991 3. www.austlii.edu.au/au/cases/cth - Judgements for cases referenced. 4. Legal Notes and Desktop Publishing- Constitutional Law 2nd Edition 1980 7