No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
The constitutional validity of Federal legislation such as the Trade Practices Act 1974 (Cth) depends upon the legislation falling within the ambit of the law-making powers of the Commonwealth enumerated in the Constitution. Those law-making powers are contained primarily within s 51, supplemented by additional heads such as s 122 and others. The Trade Practices Act 1974 (Cth) (the “Act”), drafted after successful constitutional challenges to earlier trade practices legislation, relies for its constitutional validity primarily on the corporations power (s 51(20)), bolstered by the trade and commerce power (s 51(1)), postal services (s 51(5)), banking (s 51(13)), insurance (s 51(14)), external affairs (s 51(29)), dealings with the Commonwealth (s 52) and the territories power (s 122). The constitutional foundations of the Act are expressly referred to in s 6 of the Act. That section provides something of a checklist of heads of power upon which the Act is based and is designed to enumerate, when necessary, the extension of the Act to constitutional heads of power other than the corporations power.
1 For example, Australian Industries Preservation Act 1906 challenged in Huddart Parker Co Pty Ltd v Moorehead (1909) 8 CLR 330; Trade Practices Act 1965-1967, Parts V and VI challenged in Strickland v Rocio Concrete Pipes Pty Ltd(l971) 124 CLR468.
2 (1980) 44 FLR 455,461.
3 See G Lindell, “The Corporations and Races Powers” (1984) 14 FL Rev 219 and Strickland v Rocla Concrete Pipes supra n 1, 507-8 per Menzies J.
4 Supran 1.
5 Griffiths CJ, Barton, O'Connor and Higgins JJ; Issacs J dissenting.
6 Supran 1.
7 Ibid, 489 per Barwick CJ.
8 (1977) 136 CLR 235.
9 (1983) 152 CLR 570.
10 Indeed, as Mason J said in Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169, 204-205, referring to Strickland v Rocla Concrete Pipes Pty Ltd, supra n 1, R v Trade Practices Tribunal; ex parte St George County Council (1974) 130 CLR 533 andR v Federal Court of Australia; ex parte WA National Football League (Adamson) (1979) 143 CLR 170, the judgments of the Court: “proceed upon the footing that the power extends to the regulation of the trading activities of foreign corporations and trading and financial corporations formed within the limits of the Commonwealth, without deciding whether it travels further”.
11 Seamans Union of Australia v Utah Development Co (1978) 144 CLR 120.
12 Supran 10.
13 Ibid 183 per Gibbs CJ.
14 (1983) 158 CLR I.
15 As Zines points out, the Commonwealth could have validly prohibited sand mining of Fraser Island on the facts of Murphyores v Commonwealth (1976) 136 CLR 1 by legislating to prohibit mining by a corporation on the island, that being within the corporation's power as an act done for the purposes of trade: L Zines, The High Court and the Constitution (3rd ed 1991) 84.
16 In contrast with the cases of O'Sullivan v Noarlunga (1954) 92 CLR 565 and Airlines of New South Wales Pty Ltd v New South Wales (No. 2) (1965) 113 CLR 54, since the law related to the incidents of the trade and commerce power, its purposes were required to be “appropriate and reasonable”. Rather, as in Murphyores v Commonwealth (1976) 136 CLR 1 and Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418, the purposes ofa Jaw relating to activities centrally within power are irrelevant in an examination of the law's constitutional validity.
17 Gibbs CJ, Mason, Murphy, Deane and Brennan JJ.
18 Mason, Murphy, Deane and Brennan JJ.
19 Mason, Murphy and Deane JJ.
20 Mason and Murphy JJ. Gibbs CJ, Wilson and Dawson JJ expressly opposed such a wide view of the power. Brennan and Deane JJ did not decide the issue, although the latter commented that not every law commencing “a trading corporation shall” or “a trading corporation shall not” is a law with respect to trading corporations for the purposes of s 51(20): Franklin Dam case supra n 14, 272.
21 L Zines, supra n 15, 82.
22 (1979) 143 CLR 170.
23 Ibid 233. Cited with approval by the majority in State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282, 293 overruling the predominant and characteristic test favoured by Stephen J in Adamson, and Gibbs CJ and Wilson J in the State Superannuation Board v TPC case. Similarly, see the majority decision (joint judgment of Mason, Murphy, Brennan and Deane JJ) in Fencott v Muller (supra n 9) and the Franklin Dam case (supra n 14, 119). Early cases had looked at the purposes of the formation of a corporation: R v Trade Practices Tribunal; ex parte St George County Council (1974) 130 CLR 533, although the test was later rejected, except in the case of a dormant corporation, or one that had not yet commenced activities: State Superannuation Board case, 304-5 per Mason, Murphy and Deane JJ and endorsed in Fencott v Muller, supra n 9, 62-3.
24 (1978) 22 ALR 621.
25 Ibid 642. In the State Superannuation Board case ( supra n 23) this description was endorsed by Mason, Murphy and Deane JJ. Another description of historical significance is contained in J Quick and R R Garran, Annotated Constitution of the Australian Commonwealth (1901) 607: “companies which receive deposits of money for investment and make advances on the security of land, such as land-mortgage companies and building societies” ie “financial institutions which are not banks”, cited in P H Lane, The Australian Federal System (2nd ed 1979) 187, n43.
26 State Superannuation Board case supra n 23 per Mason, Murphy and Deane JJ.
27 Supran8.
28 Ibid 242. Mason J (at 241) expressed doubt about the operation of the Act with respect to “bodies corporate”, which is a wider class of persons than is covered by s 51(20).
29 Supra n 10,209. Aickin J concurred with the judgment of Mason J:ibid 215.
30 Ibid 195.
31 Although in the St George County Council case (supra n 23, 393), an oblique reference was made by Gibbs J: “The [corporations] power is limited to corporations specifically enumerated, since the only possible reason for expressly referring to three kinds of corporations was to exclude all other kinds from the range of the power”. Similarly, in New South Wales v Commonwealth (1990) 169 CLR 482, 497 (the Incorporation case) in the joint judgment of Mason CJ, Brennan, Dawson, Toohey, Gaud.ron and McHugh JJ it was held that: “The power conferred by s5l(xx) is not expressed as a power with respect to a function of government, a field of activity or a class of relationships but as a power with respect to persons, namely, corporations of the classes therein specified The expressions 'trading or financial' and 'formed within the limits of the Commonwealth' serve to restrict the classes of domestic corporation which can be the subject of Commonwealth power. To fall within one limit of the power, a corporation must satisfy two conditions: it must be formed within the limits of the Commonwealth and it must be a trading or financial corporation.
32 G Evans, “The Constitutional Validity and Scope of the Trade Practices Act1974” (1975) 49 ALI 654, 659. See also G Q Taperell, RB Vermeesch & DJ Harland, Trade Practices and Consumer Protection (3rd ed 1983) 59-60; B G Donald & JD Heydon, Trade Practices Law (1978) 49-50; P H Lane, The Australian Federal System (2nd ed 1979) 190; CCH Australia, Trade Practices Reporter (1991) Vol 1, 551-553 and RV Miller, Annotated Trade Practices Act (13th ed 1992) 26.
33 For example, G Q Taperell, R B Vermeesch and D J Harland, supra n 32, 59 describe the situation where the acquisition by a holding company of a company The nature of a holding company could not be prohibited by s 50 when, if the acquiring company was a trading company, the merger would be in breach of s 50 of the Act.
34 For example Corporations Laws 9 and ss 46-50 follow a similar pattern.
35 Grannall v Marrickvi/le Margarine Pty Ltd (1955) 93 CLR 55, 77 per Dixon CJ,McTiernan, Webb and Kitto JJ: “[E]very legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter”. Similarly Wragg v NSW (1953) 88 CLR 353, 385-6 per Dixon J. See, for example, P H Lane, supra n 32, 190; B G Donald and J D Heydon, supra n 32, 49; G Q Taperell, R B Vermeesch and D J Harland,supra n 32, 60.
36 Houston, East & West Texas Rly v US (The Shreveport case) 234 US 342; 34 Sup Ct 833; 58 L Ed 1341 (1914).
37 (1936) 55 CLR 608,per Latham CJ, Evatt, McTiernan and Dixon JJ.
38 Ibid per Dixon J. Explicit warning against adopting the American view was given in Airlines of NSW Pty Ltd v NSW (No 2), supra n 16, 77-8 per Barwick CJ, 113- 115 per Kitto J, 144 per Menzies J and 149 per Windeyer J.
39 Following the common law maxim quando lex aliquid a/icui concedit, concedere et ilfud videtur sine quo res ipsa valore non potest see Marshall C J in M'Culloch v Maryland (1819) 4 Wheat 316; 4 Law Ed 579.
40 P H Lane, supra n 32, 190.
41 Supra n 10, 183 per Gibbs CJ for example.
42 Attorney-General (WA) v Australian National Airlines Commission (Western Australian Airlines case) (1976) 138 CLR 492, 501 per Barwick CJ, and 504 per Gibbs J; and Airlines of NSW Pty Ltd v NSW (No 2), supra n 16, 115 per Kitto J; 88 per Barwick CJ. There is some doubt as to the conclusive answer. See, for example Mason J in Western Australian Airlines (at 523) and in Australian Coarse Grains Pool Pty Ltd v Barley Marketing Board (Qld) (1985) 157 CLR 605,625; Western AustrolianAirlines (at 530-1) per Murphy J; and the criticism ofZines, supro n 15, 65-69.
43 Supra n 31.
44 Supra n 15, 93.
45 Supra n 1, 393 per Isaacs J .
46 See for example, the Franklin Dam case, supra n 14 and accompanying text and the swnmary by L Zines, supra n 15.
47 See the comments of Mason and Stephen JJ in Actor's Equity supra n 10 and CIM Holdings supra n 8 quoted in the text at n 27-31.