Australian Constitutional Law Essay

2019 Words Jun 29th, 2014 9 Pages
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
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But how direct is this relation? Is there an intervening agency
at an intrastate level which could sever any connection to interstate trade? Y and
Z sell intrastate to bakeries and to agents. According to Lane, the buck stops
with the agent in terms of a direct relationship to interstate trade.

6

McCulloch v Maryland (1981) 4 Wheat 316
McCulloch v Maryland (1981) 4 Wheat 316, Marshall CJ at pp321-323
8
Huddart Parker v Commonwealth (1931) 44 CLR 492
9
P.H. Lane (see bibliography) pg 53 Para 3
7

2

Australian Constitutional Law

In the case of Bourke’s Appliances10, retailers of electrical goods, all Victorian,
join together to stop supply to an undercutting discount house. They threatened
too stop dealing with the bulk supplier if they continued supporting the discount
store. The supplier takes the retailers to court for conspiracy for restraint of
trade, contrary to Commonwealth legislation which relies on s51(i). Although
the bulk store could show a number of goods moving interstate from
Queensland, the court said that this was too remote. The Victorian transaction
only indirectly affected interstate trade and was not sufficiently connected. In
effect the interstate trade ceased once the goods had reached the bulk supplier,
and further trade with the retailers was intrastate trade. It must be noted
however that in the case of Y and Z, the good are moving in the other direction
with a possibility for export.
If a substantial link cannot…