constitutional law week 3 notes
TRADE AND COMMERCE POWER
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
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