Strickland v Rocla Concrete Pipes Ltd

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Strickland v Rocla Concrete Pipes Ltd
Coat of Arms of Australia.svg
Court High Court of Australia
Decided 3 September 1971
Citation(s) [1971] HCA 40, (1971) 124  CLR  468
Case opinions

(5:2) The Trade Practices Act 1965 was incapable of being read down to be within Commonwealth legislative power on the basis that s 7, the "reading down" provision, required the Court to legislate rather than read down the law.

The Court unanimously agreed that the restrictions placed over Commonwealth power to regulate constitutional corporations in

Contents

Huddart, Parker & Co Pty Ltd v Moorehead have been overturned, and the Commonwealth may regulate trading activities of trading corporations (per Barwick CJ, McTiernan, Menzies, Windeyer, Owen, Walsh & Gibbs JJ)
Court membership
Judge(s) sitting Barwick CJ, McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ
This case overturned a previous ruling
Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36, (1909) 8 CLR 330

Strickland v Rocla Concrete Pipes Ltd, [1] also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51(xx) of the Australian Constitution. This was an important case in Australian constitutional law because it overruled the decision in the earlier case of Huddart, Parker & Co Pty Ltd v Moorehead , [2] which held that the corporations power only extended as far as the regulation of their conduct in relation to their transactions with or affecting the public. Since this case, the Commonwealth has had at least the ability to regulate the trading activities of trading corporations, thus opening the way for an expansion in Commonwealth power.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Constitution of Australia the supreme law of Australia

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

Australian constitutional law

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

The width of this power was later considered again in the cases of Actors and Announcers Equity Association v Fontana Films , [3] Commonwealth v Tasmania (the Tasmanian Dam Case), [4] Re Dingjan; Ex parte Wagner , [5] and New South Wales v Commonwealth (the WorkChoices Case). [6]

<i>Commonwealth v Tasmania</i>

Commonwealth v Tasmania was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia. The case centred on the proposed construction of a hydro-electric dam on the Gordon River in Tasmania, which was supported by the Tasmanian government, but opposed by the Australian federal government and environmental groups.

<i>New South Wales v Commonwealth</i> (2006)

New South Wales v Commonwealth is a landmark decision of the High Court of Australia, which held that the federal government's WorkChoices legislation was a valid exercise of constitutional power. In essence, the majority found the Constitution's corporations power capable of sustaining the legislative framework, while the conciliation and arbitration and territories powers were also seen as supporting parts of the law. Further, the majority also held that the legislation permissibly limited State powers and did not interfere with State constitutions or functioning. A minority dissented.

Background

Section 43 of the Trade Practices Act 1965-1969 (Cth) made certain agreements between competitors restricting competition "examinable", and the respondents in this case were charged with breaching that section. The agreements in question were exclusively related to trade in Queensland. Because this is purely intrastate trade, the respondents would not have fallen within the legislative power granted by section 51(i) of the Constitution. The Commonwealth Industrial Court, at first instance, rejected the charge, following Huddart, Parker & Co Pty Ltd v Moorehead, [2] in which it was held that a law with respect to the trading activities of constitutional corporations was not within power.

Queensland North-east state of Australia

Queensland is the second-largest and third-most populous state in the Commonwealth of Australia. Situated in the north-east of the country, it is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean. To its north is the Torres Strait, with Papua New Guinea located less than 200 km across it from the mainland. The state is the world's sixth-largest sub-national entity, with an area of 1,852,642 square kilometres (715,309 sq mi).

Decision

Corporations power

The Court unanimously rejected the decision in Huddart, Parker & Co Pty Ltd v Moorehead, [2] holding that it was based on the rejected doctrine of reserved State powers, which was abolished in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. ; "the earlier doctrine virtually reversed the Constitution" (per Barwick CJ). The Court found that laws with a sufficient connection to the trading activities of constitutional corporations were valid. In addition, the broader conception of the corporations power, that allows for the regulation of any activities of constitutional corporations, was flagged; "I must not be taken as suggesting that the question whether a particular law is a law within the scope of this power should be approached in any narrow or pedantic manner" (per Barwick CJ).

Garfield Barwick 7th Chief Justice of Australia and politician

Sir Garfield Edward John Barwick, was an Australian judge who was the seventh and longest serving Chief Justice of Australia, in office from 1964 to 1981. He had earlier been a Liberal Party politician, serving as a minister in the Menzies Government from 1958 to 1964.

Reading down

Barwick CJ also gave guidance as to reading laws with respect to section 15A of the Acts Interpretation Act 1901 (Cth). While he noted that there can be an express intention by the Parliament as to the interpretation of the law, he stated that if it is "single and indivisible", it will not be possible to read down the law and provide it with an alternative interpretation. The coexistence of sections 7 and 35(1) meant that it would have had to apply to both all trade, and to only foreign and interstate trade. However, since section 35(1) is a single provision and not a series of paragraphs, Barwick CJ felt that it would be "legislating and not construing" if it were broken up accordingly.

See also

Related Research Articles

The 1913 Australian Referendum was held on 31 May 1913. It contained six referendum questions and was held in conjunction with the 1913 federal election.

Constitution Alteration (Corporations) 1912 was an Australian referendum held in the 1913 referendums which sought to alter the Australian Constitution to extend the Commonwealth legislative power in respect to corporations.

<i>Amalgamated Society of Engineers v Adelaide Steamship Co Ltd</i>

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd, commonly known as the Engineers case, was a landmark decision by the High Court of Australia on 31 August 1920. The immediate issue concerned the Commonwealth's power under s51(xxxv) of the Constitution but the Court did not confine itself to that question, using the opportunity to roam broadly over constitutional interpretation.

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Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power", the extent of which has been the subject of numerous judicial cases.

The reserved powers doctrine was a principle used by the inaugural High Court of Australia in the interpretation of the Constitution of Australia, that emphasised the context of the Constitution, drawing on principles of federalism, what the Court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the States. The doctrine was challenged by the new appointments to the Court in 1906 and was ultimately abandoned by the High Court in 1920 in the Engineers' Case, replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.

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<i>New South Wales v Commonwealth</i> (1990)

New South Wales v The Commonwealth, the Incorporation Case, was a decision handed down in the High Court of Australia on 8 February 1990 concerning the corporations power in s51(xx) of the Commonwealth Constitution. The states of New South Wales, South Australia and Western Australia brought an application seeking a declaration as to the validity of certain aspects of the Corporations Act 1989 (Cth).

<i>Airlines of New South Wales Pty Ltd v New South Wales (No 2)</i>

Airlines of New South Wales Pty Ltd v New South Wales , was a High Court of Australia case about the validity of Commonwealth regulations about intrastate air navigation. Although the Commonwealth has the power to regulate interstate air navigation under s 51(i) of the Constitution, it can only regulate intrastate air navigation under the implied incidental power attached to that head of power. It was held that intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of physical interference with, interstate or foreign air navigation.

<i>Cole v Whitfield</i>

Cole v Whitfield, was a landmark High Court of Australia decision where the Court overruled two long settled approaches to the interpretation of the Constitution, that no regard could be had to the debates of Constitutional Conventions in the interpretation of the Constitution, and that the words "absolutely free" in Section 92 of the Constitution of Australia, protected a personal individual right of freedom in interstate trade. It was instead replaced with the economic notion of "free trade" in that interstate trade was not to be subject to discriminatory burdens of a protectionist kind. Despite being a unanimous judgment, the decision remains controversial.

<i>Pye v Renshaw</i>

Pye v Renshaw, is a High Court of Australia case that deals with the interaction between section 51(xxxi) of the Constitution, and section 96 of the Constitution.

<i>Huddart, Parker & Co Pty Ltd v Moorehead</i>

Huddart, Parker & Co Pty Ltd v Moorehead is a leading decision by the High Court of Australia that dealt with two issues under the Australian Constitution, the identification and extent of judicial power that is vested in the courts and the corporations power of the Parliament. The Court unanimously held that the inquiry provisions of the Australian Industries Preservation Act 1906 were not an exercise of judicial power. The judgement of Griffith CJ in particular continues to be cited in relation to its examination of the identification and extent of judicial power. The court however divided on the proper approach to the corporations power. The majority, Griffith CJ, Barton & O'Connor JJ, strongly influenced by the now discredited doctrine of reserved State powers, held that the corporations power was to be construed narrowly because the trade and commerce power did not include intrastate trade and commerce. While the reserved powers doctrine was unambiguously rejected by the High Court in 1920, Huddart, Parker was not formally overruled by the High Court until Strickland v Rocla Concrete Pipes Ltd (1971).

<i>Australian Boot Trade Employees Federation v Whybrow & Co</i>

Australian Boot Trade Employees Federation v Whybrow & Co, commonly known as Whybrow's case or the Boot Trades case was the third of a series of decisions of the High Court of Australia in 1910 concerning the boot manufacturing industry and the role of the Commonwealth Court of Conciliation and Arbitration in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for common rule awards and the jurisdiction of the High Court to grant prohibition against the Arbitration Court. The majority held in Whybrow that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In Whybrow the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct jurisdictional error as part of its original jurisdiction. Finally in Whybrow the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.

<i>Melbourne Steamship Co Ltd v Moorehead</i>

Melbourne Steamship Co Ltd v Moorehead was the last of a series of cases in which members of a cartel, described as the "Coal Vend" were prosecuted under the Australian Industries Preservation Act. The majority of the High Court held that the investigation power was spent once a prosecution had commenced and that under the Act, a corporation could not be required to answer questions. While the decision was based on the wording of the specific legislation, its ongoing significance is its foundation for the requirement that the government act as a model litigant.

<i>R v Associated Northern Collieries</i>

R v Associated Northern Collieries is a decision of the High Court of Australia concerning the activities of the Coal-Vend cartel. The convictions entered by Isaacs J in this decision were later set aside by the Full Court in Adelaide Steamship Co Ltd v The King.

References

  1. ↑ Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40 , (1971) 124 CLR 468(3 September 1971), High Court (Australia).
  2. 1 2 3 Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 , (1909) 8 CLR 330.
  3. ↑ Actors and Announcers Equity Association v Fontana Films [1982] HCA 23 , (1982) 150 CLR 1690.
  4. ↑ Commonwealth v Tasmania (the Tasmanian Dam Case) [1983] HCA 21 , (1983) 158 CLR 1.
  5. ↑ Re Dingjan; Ex parte Wagner [1995] HCA 16 , (1995) 183 CLR 323.
  6. ↑ NSW v Commonwealth (the WorkChoices case) [2006] HCA 52 , (2006) 229 CLR 1.

George Graham Winterton was an Australian academic specialising in Australian constitutional law. Winterton taught for 28 years at the University of New South Wales before taking up an appointment of Professor of Constitutional Law at the University of Sydney in 2004.

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