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172 Pages • Complete Study Notes • Year: Pre-2018
Complete Notes Preview: Trade & Commerce • Why do we start with this particular pwr? • s 51(i) is potentially the largest & most general Cth pwr. • Though they have not gone as far as US cts, Aust cts will do so in the future. • This section raises interesting qs of interpretation (earliest interpretative pwr). • Unsatisfactory because most recent case (in 1976) does not represent the current position. • Cases concerning this section have been decided on narrow & unsatisfactory grounds. • People talk about this as if it were interstate & foreign but the actual words are commerce with other countries & among the States (broad concept) – s 51(i) & s 92. • ‘Interstate’ means movement across State boundary whereas concept of commerce ‘among the States’ may not require that but that it requires more than one State. • H C Sleigh v SA (1977) - oil refineries were not in every state so they entered into agreement to supply each other in diff’nt States. - was this agreement among the petrol cos an agreement involving commerce among the States. - HCA said that you need movement across State boundary. - Murphy J dissented & said commerce among the States meant commerce which concerns more than one State. • What movement is required by HCA? • 3 things/pwrs that extend s 51(i): 1) implied incidental pwr 2) express incidental pwr – s 51(xxxix) 3) s 98 1) Implied Incidental Pwr (p 173) • It is a general principle of common law that where pwr/grant is given to anybody, there is automatically enough additional pwr granted to make the original grant effective. • This applies to public pwrs & private pwrs (eg in wills & deeds). • Doctrine applies to leg, exec & jud pwrs. • Eg: authorised to drive car & therefore enough sufficient pwr to get inside garage to get to car (implied incidental pwr). • Eg: if Cth sets up ct & gives it pwr to issue orders but does not expressly say can enforce it, there will be an implied judicial pwr (if given pwr to issue orders, can then have implied incidental pwr to enforce them).
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