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movements of goods and persons, transmission of electrical current, transportation, traffic, current, movement): Bank Nationalisation case profit motive not essential, but indicative (R v Trade Practices Tribunal) manufacturing is an essential preliminary condition to trade and commerce but is NOT in itself trade (Grannall v Marrickville Margarines) s 98 extends the definition of to include shipping and railways the property of any but it must still be oversea or interstate: SS Kalibia v Wilson Application to facts: It appears that (or section) not fit within the or element of the s51(i) power to legislate on trade or commerce matters, the next elements is whether the law matches either the 2nd or 3rd element, with other countries or interstate respectively.
Buying and selling is the very heart of trading: R v Trade Practices 3.
Trading can be interpreted in its current sense: case Trading corporations include: a football association, with majority applying current activities approach case) a state cricket association with its own ground (Hughes v Western Australian Cricket Association) the Red Cross Society and a hospital (Re E v Australian Red Cross in trade commerce University of at least of the revenue came from trading activities substantial trading activities that formed a significant proportion of the universities overall activities (Quickenden v Tasmanian Authority sold electrical power in bulk (Tasmanian Dams case) Financial Corporations: Predominant activity of a financial corporation is the borrowing of moneys to lend to its members, the lending of those moneys, the receipt of repayments and the ultimate repayment of moneys to the source from which they came.
WHAT IS THE INTERNATIONAL CLIMATE IN RELATION TO THESE FACTS?
General principles (apply to all) The power has a central core related to armed forces (Communist Party case), exercisable at war or in times of peace Power also has a secondary aspect that is purposive in nature (Communist Party case) What is necessary and appropriate for the defence of the Commonwealth in times of war is different from what is necessary or appropriate in times of peace: Pulyukhovich 2.
Thus, Parliament cannot amend definition to include persons who could not possible answer the description of aliens in the Constitution (Singh).
Application to Facts: On the facts, it appears that Act or would come under the aliens power, and the scope of the law not fall within the heart of the power. LLB203 Constitutional Law The Parliament can make laws with respect to the naval and military defence of the Commonwealth and of several states, and control of the forces to execute and maintain the laws of the Commonwealth (s 51(vi)) 1.
The parliament tried to exploit this suggestion Stephen Murphy JJ in the World Heritage Properties Conservation Act 1983, including a provision that: The could proclaim property if protection or conservation of the property Australia is a matter of international Since the majority in Tasmania v Commonwealth held that sufficient parts of the law were valid as an implementation of the treaty, they did not need to discussion this provision, however: Mason J observed that even if a subject was a matter of international concern, that not mean that Parliament may depart from the provisions of the treaty after it has been entered into Gibbs J who said the treaty was not sufficient basis for the act, held that the position might be different if Australia came under an international obligation to protect or conserve the property.
In Polyukhovich v Cth Brennan and Toohey who had rejected the external to basis for the War crimes Act 1945 seemed to assume that a law could be valid if ti was based on a matter of international concern, but held that there was not enough evidence of such concern in this case.
OTHER PRINCIPLES (SUBJECT TO BEING AND ADAPTED TO GIVING EFFECT TO THE TERMS OF THE CONVENTION) Partial implementation: not fatal to validity of the law unless the deficiency of implementation of the treaty is so substantial as to make it inconsistent with the treaty (Industrial Relations Act case) Excessive implementation: an act or provision may be struck down if it is an excessive implementation, i.e.
that it goes beyond the scope or purpose of the convention: Victoria v Commonwealth Comity: External affairs power supports the enactment of laws which punish acts in Australia which are violations of international law: R v Sharkey AND the external affairs power has been held to authorise the making of an interim control order insofar as the government subject to foreign terrorist threats, and the public threatened was that of another country: Thomas v Mowbray No longer necessary that there be a nexus between Australian interests and external affairs power (Victoria v cf Koowarta v Not limited to treaty to recommendations of international organisations (IR case) No material inconsistency is permissible (R v Burgess) No wide departure from the purpose of the treaty is permissible (Tasmania Dam case) Koowarta v majority RDA supported UN Convention Note decision in Toben v Jones if re 18C and 18D of RDA (or similar) 5.