Australian Constitutional Law
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 Constitution in order to strike down 1
Commonwealth of Australia Constitution Act (1900) (The Constitution) Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194
Swift Australian Co Pty Ltd v Boyd-Parkinson (1962) 108 CLR 189 4
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 Fullagar J at Para 596 2
Australian Constitutional Law
the contrary state law. For our purposes, Noarlunga Meat proved that the control of hygienic standards is enough to extend the power of s51(i) so long as a significant geographical distinction can be distinguished.
The major difference between the facts in Noarlunga Meat and Y and Z is the significance of the interstate activity as the majority of produce from the slaughterhouse was destined for interstate trade. In considering the implied incidental powers of s51(i) in McCulloch v Maryland6, Marshall CJ held that “where any power or control is expressly granted there is included in the grant to the full extent of the capacity of the grant and without special mention every power and control, the denial of which would render the grant itself ineffective.”7 Fullagar J referenced this assessment in extending the grant of the power to the control of hygienic conditions in and abattoir. In Huddart Parker v Commonwealth8 the power extended beyond the main grant to control the workers who loaded materials onto a ship. This illustrates how the Commonwealth reserves the power to control an aspect of trade, although incidental, in order to make effective the main grant of s51(i). In the operation of Y and Z’s milling business, the grant would extend in the same way to the control of defective equipment and sanitation processes.
“A peripheral activity is directly related to the activity is directly related to the activity of overseas or interstate trade when there is no intervening agency or occurrence between the peripheral activity and the overseas or interstate activity”9. There is no licence or...
Bibliography: 1. Australian Constitutional Law- Materials and Commentary, 7th Edition. P.
Hanks, P Keyzer and J Clarke. Published by Lexis Nexis- Butterworths
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
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