51. 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;
ELEMENT 1: Is the subject matter part of “Trade and Commerce”?
• The “essence of “trade” is buying and selling: St. George County Council
Trade is both:
1. The act of transporting/delivering (at least for reward) : ANA Case
2. All commercial arrangements of which transportation is a direct and necessary result form part of trade or commerce : McArthur
3. The preliminary mutual communings, negotiation and bargaining oral or written. McArthur
4. Intangibles (gas, electricity, visual signs, communication: Bank Nationalisation case
5. Profit element is Not essential : St George CC
Are professions involved in trade?
A dentist was held not to be a trader but a professional: R v. Small Claims Tribunal; ex parte Gibson
Consulting engineers supply services in trade or commerce: Bond Corporation v. Theiss Contractors
Lawyers engage in trade and/or commerce: Gold Farb.
NB: Lawyers will remain largely immune as they are rarely in interstate trade
ELEMENT2: Is the stuff going “Interstate” T&C?
• It is ONLY interstate and international trade and commerce which falls under the ambit of s.51(1) (as opposed to INTRASTATE or local trade or commerce)
Therefore, a Cth law which affects interstate trade will be valid.
TRANSPORT - If the law applies to Transport, anything that crosses a border is interstate T&C
INTANGIBLES - The movement of Intangibles (like credit) across borders is i/s commerce Bank Nationalisation Case
CONTRACT - If the law applies to the Making of a Contract, the contract must (expressly or by necessary implication) contemplate delivery across a border:
McArthur Case
- Simply being a deal which MIGHT result in movement across borders is NOT