Huddart, Parker & Co Pty Ltd v Moorehead

[1909] HCA 36

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HUDDART, PARKER AND CO. PRO-

PRIETARY LIMITED DEFENDANTS, MOOREHEAD APPLETON MELBOURNE,

MOOREHEAD October 15,16,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF March 8, 9,

Commonwealth legislation, validity of-Interference with internal trade and com-

merce of States-Power to make laws with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth" -Limits of power-Creation of corporations-Control of corporations, their status, capacities and contracts-Inquiry by Comptroller-General of Customs-

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Compulsory answers-Judicial power of Commonwealth - Trial by jury-Inter state Commission-Australian Industries Preservation Act 1906 (No. 9 of 1906) (amended by Australian Industries Preservation Act 1907 (No. 5 of 1908) ), secs. 4, 5, 7, 8, 15B- The Constitution (63 &64 Vict. c. 12), secs. 51 (i.) (xx.), 71, 80, 101.

By the whole Court. Sec. 15B of the Australian Industries Preservation Act 1906 (as amended by the Australian Industries Preservation Act 1907) is intra vires the Commonwealth Parliament and valid.

The inquiry authorized by that section is not inconsistent with the right to MOOREHEAD. trial by jury conferred by sec. 80 of the Constitution.

Such an inquiry is not an exercise of the judicial power of the Common- Such an inquiry is not an incident of the execution and maintenance of the provisions of the Constitution relating to trade and commerce within the meaning of sec. 101 of the Constitution, and need not be entrusted to the

By the whole Court. Sec. 51 (xx.) of the Constitution does not confer on the Commonwealth Parliament power to create corporations, but the power is limited to legislation as to foreign corporations and trading and financial corporations created by State law.

By the Court, Isaacs J. dissenting. Secs. 5 and 8 of the Australian Industries Preservation Act 1906 are ultra vires the Commonwealth Parliament

By Griffith C.J. and Barton J. Sec. 51 (xx.) of the Constitution confers upon the Commonwealth Parliament power to prohibit foreign corporations and trading and financial corporations formed under State laws from engaging in trade and commerce within a State, as distinguished from trade and com- merce between States or with foreign countries, or to impose conditions subject to which they may engage in such trade and commerce, but does not confer upon the Commonwealth Parliament power to control the operations of such corporations which lawfully engage in such trade and commerce.

By O'Connor J. The power conferred by sec. 51 (xx.) of the Constitution is limited to the making of laws with respect to the recognition of corpora- tions as legal entities within the Commonwealth, and does not include a power to make laws for regulating and controlling the business of corporations when once they have been so recognized and are exercising their corporate functions by carrying on business in the Commonwealth.

By Isaacs J. See. 51 (xx.) confers on the Commonwealth Parliament power to control the conduct of the specified corporations in relation to outside persons, but not the powers and capacities of corporations, and secs. 5 and 8

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of the Australian Industries Preservation Act 1906 are a valid exercise of such

By Higgins J. The power conferred by sec. 51 (xx.) of the Constitution on the Commonwealth Parliament is a power to legislate with respect to the classes of corporations named, as corporations-that is, to regulate the status and capacity of such corporations and the conditions on which they may be permitted to carry on business; but does not include a power to regulate the contracts into which corporations may enter within the scope of their per- mitted powers. Secs. 5 and 8 of the Australian Industries Preservation Act 1906 are not legislation with respect to such corporations, but legislation with respect to trade and commerce.

APPEALS by way of orders to review.

On 22nd September 1908 the Comptroller-General of Customs, in writing, stated that he believed offences had been committed against secs. 5 (1) (a) and 8 (1) of Part II. of the Australian Industries Preservation Act 1906 (as amended by the Australian Industries Preservation Act 1907) in connection with the trade in coal, and called upon Huddart, Parker &Co. Limited, a company duly formed under the laws of Victoria, to answer in writing several questions, the nature of which is not material to this report. On the same day the Comptroller-General, in writing, required William Thomas Appleton, the manager of the above named com- pany, to answer the same questions, stating in this case that he believed that offences had been committed against secs. 4 (1) (a) and 7 (1) of the Act. Both the company and Appleton refused to answer the questions, and they were charged on information by R. W. Moorehead, an officer of Customs, with having refused to answer the questions. The informations were heard at the Court of Petty Sessions at Melbourne on 28th September 1908, and in each case the defendant was fined £5.

An order nisi to review the conviction of the company was obtained on the grounds :-

1. That sec. 5 (1) (a) and 8 (1) of the Australian Industries Preservation Act 1906 are unconstitutional and ultra vires, and, therefore, proceedings cannot be lawfully taken under sec. 15B of such Act (as amended), based upon a statement of the belief of the Comptroller-General that an offence has been committed against such sections.

2. That sec. 15B is itself unconstitutional and invalid.

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3. That if the arriving at a belief by the Comptroller-General under the provisions of sec. 15B is a judicial proceeding, or quasi- judicial proceeding, no opportunity was given to the defendants of being heard by the Comptroller-General before he arrived at such belief.

An order nisi was also obtained to review the conviction of MOOREHEAD. Appleton on the 2nd and 3rd grounds above set out.

Mitchell K.C., and Irvine K.C. (with them Harrison Moore), for the appellants. Secs. 5 and 8 of the Australian Industries Preservation Act 1906 are invalid. They are expressly intended to extend to the internal trade and commerce of the States, as will be seen from sec. 10 1. This legislation purports to be an exercise of the power conferred by sec. 51 (xx.) of the Constitution. Legislation as to the internal trade of the States is under the Constitution within the exclusive domain of the States, and that power of the States must be read together with the power given to the Commonwealth Parliament by sec. 51 (xx.): Citizens' Insurance Co. of Canada v. Parsons (1). The Common- wealth Parliament can only limit a corporation's enterprises SO far as they are within the scope of the Commonwealth power of legisla- tion, otherwise the Commonwealth Parliament could revolutionize the law of contracts and torts SO far as regards corporations. The Commonwealth Parliament cannot prescribe conditions as to a corporation's business which interfere with the powers of the State Parliaments to deal with internal trade Attorney-General for New South Wales v. Brewery Employés Union of New South Wales 2 The King v. Barger 3; Colonial Building and In- vestment Association v. Attorney-General of Quebec 4. Parlia- ment might limit the power of a company to make contracts by providing that they should only contract under seal, or in the event of a certain amount of capital being paid up, or Parliament might forbid discrimination in one State against companies formed in another State: See Crutcher v. Kentucky 5. But Parliament cannot forbid companies from carrying on certain businesses. Under this legislation, if one party to a contract is a

17 App. Cas., 96. 26 C.L.R., 469. 36 C.L.R., 41. 49 App. Cas., 157, at p. 166. 5141 U.S., 47, at p. 56. 8 CLR 334

company and the other an individual, the Act would bind the

company but not the individual. The power to legislate as to HUDDART,

corporations does not mean a power to make any laws whatever which apply to corporations: Attorney-General for Ontario V. Attorney-General for the Dominion (1). It does not include a MOOREHEAD. v. power to legislate as to the incorporation of companies.

[O'CONNOR J.-The idea of sec. 51 (xx.) of the Constitution is that what is generally known as the law as to companies should be put on a general footing all over Australia: Westlake's Private International Law, 4th ed., p. 358.

ISAACS J.-The whole question depends on what is the scope of the power Canadian Pacific Railway v. Corporation of the Parish of Notre Dame de Bonsecours (2); Grand Trunk Rail- way Co. of Canada v. Attorney-General of Canada (3); Toronto Corporation v. Canadian Pacific Railway Co. (4); United States v. 43 Gallons of Whiskey (5).

GRIFFITH C.J.-The question is, is this law truly ancillary to the power to legislate as to corporations

Sec. 15B of the Australian Industries Preservation Act 1906 is also invalid.

By sec. 13 (2) a second offence is made indictable. Then, in sec. 15A, where indictable offences are intended to be excluded, the exclusion is expressly made. The result is that sec. 15B is expressly intended to apply to offences whether they are indictable or not. There is no limitation of the time when this section is to be put into operation, and it might be acted upon as well after as before criminal proceedings have been instituted. It is in effect discovery in aid of criminal proceedings exerciseable before or after proceedings are instituted. If it is, then it is part of the judicial power of the Commonwealth which must be exer- cised by the High Court or some other federal Court: Sec. 71 of the Constitution. If the section contemplates a written state- ment of a definite charge, the investigation in relation to which the inquiry is made is judicial in its character, and one that can only be made by a Court of Justice, and it relates to a matter wherein redress can only be had in a judicial proceeding. That brings the case clearly within Kilbourn v. Thompson (6).

(I) (1896) A.C., 348, at p. 363.

(4) (1908) A.C., 54, at p. 59. (2) (1899) A.C., 367, at p. 372.

(5) 93 U.S., 188, at p. 197. (3) (1907) A.C., 65, at p. 68.

(6) 103 U.S., 168, at pp. 182, 192.

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[HIGGINS J.-In In re Chapman 1 that case is distinguished H. C. on the ground that there the subject matter was not within the jurisdiction of the House of Representatives, and it was held that where the subject matter was within the jurisdiction of the Senate the power, although it was judicial in its nature, might be exer- cised by the Senate.]

That was because the power was given to the Senate by the Constitution. See Sutherland's Notes on the United States Constitution, p. 62.

[ISAACS J.-The word "judicial" has two meanings. "It may refer to the discharge of duties exerciseable by a Judge or Justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind": Royal Aquarium and Summer and Winter Garden Society v. Parkinson 2.]

The term 'judicial power" in our Constitution has a wider meaning than in the United States Constitution. In the latter case the term is defined by Art. III., sec. 2, and it has been held to be restricted to the trial and determination of cases in federal Courts Robertson v. Baldwin 3. There is no such limitation in our Constitution: See secs. 71, 75. Under our Constitution any act which, at the time of federation, would be an exercise of judicial power, if done by a federal Court or a Court invested with federal jurisdiction in connection with a question of civil rights between individuals or with a criminal charge, is an exer- cise of judicial power. So an examination under the Australian Industries Preservation Act for the purpose of finding out whether a crime has been committed is an exercise of judicial power. The power conferred by sec. 15B cannot be supported by analogy to the power in revenue matters, which is based on the principle that, in the administration of the great Departments of the Commonwealth, Parliament may entrust to the officers of those Departments authority to make inquiries for the purposes of such administration, as in R. v. Arndel 4; Murray's Lessee V. Hoboken Land and Improvement Co. 5.

[HIGGINS J.-In Nishimura Ekiu v. United States 6, a

1166 U.S., 661. 2(1892) Q.B., 431, at p. 452. 3165 U.S., 275, at p. 279. 43 C.L.R., 557. 518 How., 272. 6142 U.S., 651. 8 CLR 336

A. decision of an immigration officer as to the right of an alien to

land was held to be final.] HEDDART,

That case depends on the same principle as is applicable to revenue matters. It may also be supported on the ground that the power of exclusion of aliens may be exercised through administrative officers. He referred to Wong Wing v. United States 1; Musgrove v. Chung Teeong Toy 2; Kelly v. Pitts- burgh 3.

[ISAACS J. referred to Chin You v. United States (4).

GRIFFITH C.J.-There is no power in the Customs Act 1901 like that in sec. 15B.

Duffy K.C. referred to secs. 64, 234 of the Customs Act 1901.

GRIFFITH C.J.-The object of these sections is to enable the Government to do something which it has to do itself.]

The object is to carry out the administration of the Department, [GRIFFITH C.J.-There are three Departments of Government, executive, administrative and judicial. If an act is for the pur- pose of carrying out the executive or administrative Departments, it is not part of the judicial power, but, if it is in aid of the judicial power, it may be part of the judicial power.]

This inquiry is in aid of criminal proceedings. A similar pro- vision in a United States Customs Statute, where in revenue cases the case for the prosecution was to be taken as admitted unless the defendant produced his books in Court, was held to be void as applied to a suit for a penalty or forfeiture of the defendant's goods: Boyd v. United States 5.

[ISAACS J. referred to Adams v. New York 6; Hale V. Henkel 7.]

This is a criminal case just as is an inquiry by a grand jury Counselman v. Hitchcock 8; Hale v. Henkel 9. Under sec. 15B the person questioned must be in a position to raise all matters which go to show that he is not bound to answer: Inter- State Commerce Commission v. Brimson 10. The primary object of sec. 15B is to get evidence. If that is one of the objects

1163 U.S., 228. 2(1891) A.C., 272, at p. 282. 3104 U.S., 78. 5116 U.S., 616. 6192 U.S., 585, at p. 597. 7201 U.S., 43. 8142 U.S., 547. 9201 U.S., 43, at p. 60, 10154 U.S., 447, at p. 479 155 8 CLR 337

the section is

void. That that is the object see secs. 15B 4, 15c, 15D, 15E. Not only is the information wanted but also the means of proving the offence. If sec. 15B is valid the Court cannot inquire into the ground of the Comptroller's belief: Robinson V. Sunderland Corporation 1; Addyston Pipe and Steel Co. V. United States 2. If this is not really a power of discovery which should be exercised by a Court, it is a power which should be exercised by the Inter-State Commission whose power of adjudication is an exception out of the judicial power Inter-State Commerce Commission v. Brimson 3, and the Commission must be created before the power can be exercised: See secs. 101 et seq. of the Constitution. Sec. 15B by making the answers compulsory, and making them evidence against the person who answers, offends against sec. 80 of the Constitution, at any rate in respect of indictable offences. The right to a trial by jury implies the ordinary common law incidents for the protection of an accused person: Cooley's Constitutional Limitations, 7th ed., pp. 287, 442, 453; Callan v. Wilson (4).

[ISAACS J. referred to Harvard Law Review, April 1908; Inter- State Commerce Commission v. Harriman 5.]

One of those incidents is that a man shall not be compelled to give evidence against himself Montana Co. v. St. Louis Mining and Milling Co. 6; Thompson v. Utah 7; Capital Traction Co. V. Hof (8).

The legislative, executive, and judicial powers of the Common- wealth are not only separate but are mutually exclusive. A power that is found to be an exercise of the judicial power cannot be invested in any authority except a judicial authority. The legislative power may add to the executive power by creating new laws, and, whatever may be the definition of the judicial power, Parliament can enlarge its scope but cannot change its nature, but the executive and judicial powers must remain distinct. Each of the three Departments of Government has of necessity certain inherent powers, amongst others, that of informing itself of things necessary to carry out its functions. Thus the Execu-

4127 U.S., 540, at p. 549. 1(1899) 1 Q.B., 751. 2175 U.S., 211. 3154 U.S., 447. 5157 Fed. Rep., 432. 6152 U.S., 160, at p. 169. 7170 U.S., 343, at pp. 347, 349. 8 CLR 338

338

HIGH COURT tive may issue royal commissions, with power to compel witnesses

to answer questions; Parliament may invest a committee of either HUDDART,

House with a similar authority. So it is equally inherent in the judicial power that steps shall be taken to obtain information on matters necessary to an adjudication. When, therefore, an Act MOOREHEAD. of Parliament purports to confer ancillary powers of this kind,

which may be ancillary to either the judicial or the executive power, it is the duty of this Court to separate the ancillary powers from one another. If one of these ancillary powers is conferred upon a Department which has not the power to which it is ancillary, then the whole authority goes, or at least the particular ancillary power goes. The question, then, is whether the particular function in question properly and in substance falls within the realm of the judicial power. It is not sufficient to cut out of sec. 15B the thing which is aimed at and say that the section is innoxious. The function of the Comptroller under sec. 15B is to obtain evidence, and that is quite as much an ancil- lary to the judicial power as is a proceeding to perpetuate testi- mony: Daniell's Chancery Practice, 7th ed., p. 1271; or a bill for discovery.

[HIGGINS J. referred to Black's Constitutional Law, 2nd ed., p. 419.]

If a Court of Insolvency were created by the Commonwealth with power of compulsory examination, and a provision that evidence thus obtained from the insolvent might be used against him on his trial for an offence, the power of examination would be ancillary to the judicial power, and could only be conferred upon a Court. Even if sec. 15B were for the purpose of enabling the Attorney-General to institute proceedings, the power con- ferred would not be ancillary to an executive power, for the Attorney-General in instituting proceedings is not acting as an executive officer of the Government, but in aid of the judicial power. There is no executive power given to the Comptroller to which the power in sec. 15B can be ancillary. The only person who can act upon the information obtained is the Attorney- General. The power given in sec. 15B is not different in kind from that given to a Justice of the High Court by sec. 19 (5). Sec. 15B must mean either that a particular offence must be

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believed to have been committed, and that the offence must be set out with sufficient particularity to enable this Court to say whether it is an offence at all, or else that the Comptroller is not obliged to set out the particular offence or who is engaged in it. In the latter view, then, upon a prosecution for not answering a question, this Court can never decide whether there was any offence alleged or whether there were any grounds for believing that an offence had been committed, and the Comptroller's deter- mination of facts and law would be conclusive.

Duffy K.C. and Dr. Cullen K.C. (with them Starke), for the re- spondent. Secs. 5 and 8 of the Australian Industries Preserva- tion Act 1906 read literally and naturally are within the powers conferred by sec. 51 (xx.) of the Constitution. If they are not, they should be cut down SO as to be within that power. Sec. 51 (xx.) of the Constitution gives the Commonwealth Parliament authority to create corporations and to make laws with respect to everything which has relation to the powers and scope of corporations. The real question is whether these sections are in fact legislation dealing with corporations or legislation dealing with some other subject and applying it to corporations. The power extends to regulating the internal management and restraining the external affairs of corporations, and, in particular, it extends to enabling Parliament to forbid corporations doing certain things. By the Federal Council of Australasia Act 1885, sec. 15, power was given to deal with the "status" of corporations. See Quick and Garran's Australian Constitution, p. 604. When the Constitution was granted there were pro- visions in the United States Constitution and in the British North America Act 1867 dealing with the power of the federal authority to legislate as to corporations. In the former case Congress had only an ancillary power to deal with corporations. It might create corporations for several purposes, mainly under the Inter-State and foreign commerce power, and could prevent interference by State laws with corporations SO created. In the latter case under secs. 91 and 92 the Provinces had power to create corporations with provincial objects only, and the Dominion had power to create corporations for all other purposes, either

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under the general residuary power or to carry out the specially enumerated powers. In the Australian Constitution the words of HUDDART,

the Federal Council of Australasia Act referring to "status" are omitted, and the words used in sec. 51 (xx.) are much wider. They merely define the object of legislation.

[ISAACS J. referred to Employers' Liability Cases 1.] There is no reason why the power as to corporations should not be read as being equally as large as that as to aliens (sec. 51 (xix.) ): Robtelmes v. Brenan 2. If sec. 51 (xx.) does not give power to create corporations, there is an incidental power in the Commonwealth Parliament to create corporations in order to carry out the other powers, and sec. 51 (xx.) gives power to deal with those corporations as well as corporations created by the States and foreign corporations. The power is a general one to legis- late as to these corporations, though not necessarily an exclusive power. It would be a proper limitation for the Commonwealth Parliament to impose on a corporation created by it that the corporation should not monopolize any part of the trade of the Commonwealth, and the Commonwealth Parliament could give such a corporation power to hold land, although that would not prevent a State Parliament from enacting that no land should be held in that State by such a corporation. If the Commonwealth Parliament can make such provisions as to corporations it creates, it can do SO also as to State created and foreign corporations, and conditions which manifestly might be imposed on the creation of a corporation may equally be imposed on corporations which the Parliament already finds created. So the Commonwealth Parlia- ment may limit the capacities of corporations created by the States or of foreign corporations to do certain things which under the law of a State they may lawfully do.

[GRIFFITH C.J.-The words of sec. 51 (xx.), if taken alone, may be wide enough to confer such a power, but can such a power be reconciled with the implied prohibition in sec. 51 (I.) against interfering with intra-State trade and commerce ?]

Although an exercise of the power may inconvenience a State, that does not prevent the exercise being valid. The words of sec. 51 (xx.) must be given a fair meaning and, if SO interpreted,

1207 U.S., 463, at p. 493. 24 C.L.R., 395, at p. 404. 8 CLR 341

they give a power to interfere with the internal trade and commerce of the States, the implied prohibition is of no avail. Secs. 5 and 8 are really legislation dealing with corporations. It is similar to a provision that federal public servants should not join secret societies. The mere fact that the Act was called one dealing with secret societies would not affect its character or MOOREHEAD. validity as an Act dealing with federal public servants.

The provisions of sec. 15B do not interfere with the right to trial by jury provided for in sec. 80 of the Constitution. That a man shall not be compelled to incriminate himself is not an incident of trial by jury, and the Commonwealth Parliament may compel him to do SO if it chooses just as has been done in the States and elsewhere: Evidence Act 1890 (Vict.) sec. 56 R. V.

M Cooey 1; Callan v. Wilson (2); Cooley's Constitutional Limitations, 6th ed., pp. 379, 389; Miller's United States Consti- tution, pp. 313, 485; Phipson on Evidence, 4th ed., p. 197.

[ISAACS J. referred to United States v. Patterson 3.] The inquiry authorized by sec. 15B is not judicial. It is the duty of the Comptroller to find out whether an offence has been committed and by whom, and he is given the power in sec. 15B with the object of getting information from any person to enable him to give that information to the Minister. No judicial pro- ceeding is begun until the Attorney-General directs a prosecution. Kilbourn v. Thompson 4 does not support the contention that this is a judicial proceeding. It only decided that, in investigat- ing a matter as to which it had no power of investigation, Congress had no power to commit for contempt. Where the subject matter was in the jurisdiction of the Senate it was held in In re Chapman 5 that there was power to commit for contempt. It is essential to a judicial proceeding that rights of some sort shall be determined or that the Court must be in a position to determine something.

[ISAACS J. referred to R. v. Local Government Board 6; Miller's Lectures on the United States Constitution, pp. 313-315.]

The determination of the Attorney-General to prosecute is not judicial, and this inquiry is merely to enable him to come to a

15 V.L.R. (L.), 38. 3150 U.S., 65. 4103 U.S., 168. 2) 127 U.S., 540, at p. 549. 5166 U.S., 661. 6(1902) 2 I.R., 349, at p. 373. 8 CLR 342

342

HIGH COURT H.

determination. There is nothing in this inquiry which charac- terizes it as being ancillary to the judicial power. Similar powers HUDDART,

are given to executive officers under the Customs Act 1901, sec. 234 (see also secs. 38, 195, 196); Audit Act 1901, sec. 13; and Census and Statistics Act 1905, sec. 18. If sec. 15B contained MOOREHEAD. nothing about the evidence being used on a subsequent prosecu-

tion, undoubtedly the inquiry would be merely an administrative inquiry, and the fact that it may be SO used does not alter the nature of the inquiry.

An act, which if done by a judicial authority is an exercise of the judicial power, is not necessarily an exercise of the judicial power when done by an executive authority.

An inquiry made in order to determine whether judicial pro- ceedings shall be instituted is not judicial People v. Hayne 1; Sutherland's Statutes and Statutory Construction, 2nd ed., vol. I., p. 10; Bouvier's Law Dictionary, vol. II., p. 42. Even if this is an exercise of the judicial power, the Comptroller is either a Court formed for the particular purpose, or he is a delegate of the Court for the particular purpose, and is in the same position as a commissioner for taking evidence. This power is not one which can only be exercised by the Inter-State Commission. As to the origin and powers of the Inter-State Commerce Commission in the United States, see Inter-State Commerce Acts 1887 and 1893; Snider's Annotated Inter-State Commerce Commission; Ken- tucky and I. Bridge Co. v. Louisville and N.R. Co. 2; Inter- State Commerce Commission v. Cincinnati N.O. and T.P. Rail- way Co. 3.

Sec. 51 (xx.) gives the Commonwealth Parliament power to put the law as to companies upon a uniform basis throughout the States in the same way as in the case of the law as to other commercial matters. If in sec. 51 (xx.) the word "companies" were used in place of the words which are used there, the scope of the sub-section would extend to matters which are ordinarily to be found in a Statute as to companies. The only object of using the particular words is to exclude domestic non-trading and non-financial corporations. If a Commonwealth Act is directed

117 Am. St. R., 211, at p. 217. 237 Fed. Rep., 567. 364 Fed. Rep., 981. 8 CLR 343

to something which differentiates corporations from individuals, it

is within sec. 51 (xx.). Corporations always have been the subject of special legislation. See Customs and Inland Revenue Act 1885 (48 &49 Viet. c. 51), sec. 11. The prohibition in secs. 5 and 8 of the Australian Industries Preservation Act 1906 bear a real relation to the peculiar qualities of corporations as dis- tinguished from individuals, and the Court should not say that the law is not one relating to corporations unless it is clearly shown that no such relation exists. Under sec. 51 (xx.) the Parliament can forbid the corporations from engaging in intra- State trade at all, and SO it can permit them to engage in that trade on certain conditions only. The Parliament can prohibit those companies from doing what the laws of the States permit, although it is not contended that it can authorize the doing of acts which a State law forbids. The express power given by sec. 51 (xx.) must not be cut down by the powers reserved to the States: The King v. Barger 1; Citizens Insurance Co. of Canada V. Parsons 2. Under sec. 15B the forming by the Comptroller of a belief is the only condition precedent to the inquiry. He need not have any complaint. The forming of a belief is not an exercise of the judicial power: R. v. Arndel 3; nor is the mak- ing an inquiry Clough v. Leahy 4. If sec. 15B is to be regarded as legislation as to evidence, it is authorized by sec. 51 (xxxix.) as being incidental to a power vested in the federal judicature: Fong Yue Ting v. United States 5. If sec. 15B enables a person on his trial to be questioned, it does no more than is done lawfully under the Customs Act 1901. The section does not infringe the provisions in the Constitution as to trial by jury. Under English law admissions made at a Coroner's inquiry may be used at the trial of the person who makes them: Archbold's Criminal Practice, 22nd ed., p. 300, and also those made by a bankrupt: R. v. Scott 6. The Commonwealth may as to criminal procedure depart from that which ordinarily prevails Riel v. The Queen 7. He also referred to Moses v. Parker 8;

16 C.L.R., 41, at p. 69. 27 App. Cas., 96. 33 C.L.R., 557. 42 C.L.R., 139, at pp. 154, 156, 5149 U.S., 698, at p. 729. 625 L.J.M.C., 128. 710 App. Cas., 675, at p. 678. 8(1896) A.C., 245, 8 CLR 344

344

HIGH COURT

OF A. United States v. Ferreira 1. This is not a matter which

can be dealt with only by the Inter-State Commission. Sec. 101 HUDDART,

of the Constitution only confers a power to create the Commission, but imposes no duty to create it, and when created Parliament need not confer upon it all or any of the powers as to trade and MOOREHEAD. commerce, but may entrust some or all of them to the ordinary

administration of the law.

K.C. in reply. The power of inquiry is not an independent power, but a means to an end, and the question of its validity only becomes of importance when it is compulsory. Under the Constitution compulsion can only be exercised as a means of executing some power belonging to that Department of Government to which that end belongs. A compulsory power of inquiry as to whether a crime has been committed, and by whom, is in the nature of a judicial proceeding which, in a Government having specified and separate powers like the Government of the Commonwealth, can only be exercised by one of the Courts referred to in sec. 71 of the Constitution. This is SO whether the compulsory power includes power to compel a person, against whom the charge is alleged, to answer or not. If it does include that power, additional reason is afforded for the invalidity of the power of inquiry. In such a Government as that of the Com- monwealth the power of compulsory inquiry can only be exer- cised otherwise than by a Court when it is auxiliary or incident to the purpose of some legislative or executive power or function -using executive as including administration. In such a Govern- ment a compulsory power of inquiry into a matter, in respect of which relief or remedy, whether civil or criminal, can only be given in a Court, is an exercise of the judicial power of that Government. As to sec. 15B, the Comptroller has no administra- tive duty-as far as this part of the Act is concerned-in the shape of administering the Act apart from making this inquiry. So that the duty of inquiry is not ancillary to any other duty which the Comptroller has, and he is in the same position in this respect as if the duty of inquiry were deputed to a police officer. The constitutionality of an Act is to be tested, not by what

113 How., 40. 8 CLR 345

has been done in the particular instance, but by what may be OF done.

[He also referred to In re Pacific Railway Commission 1; Ah Yick v. Lehmert 2; Judiciary Act 1903, sec. 68 (2); Stephen's PROPRIETARY History of the Criminal Law, vol. I., pp. 216, 221; R. v. Borron 3; R. v. Adamson 4; Law v. Llewellyn 5; United States v. MOOREHEAD. Ju Toy 6; Dicey's Conflict of Laws, 2nd ed., pp. 534, 545; Ash- bury Railway Carriage and Iron Co. v. Riche 7; Brice on Ultra Vires, 3rd ed., p. 43; United States v. Dewitt (8).

GRIFFITH C.J. referred to Cox v. Coleridge 9 Munster V. Lamb 10.

O'CONNOR J. referred to Westlake's Private International Law, 4th ed., p. 358.

ISAACS J. referred to Inter-State Commerce Commission V. Baird 11 Watson v. M'Ewan 12.

HIGGINS J. referred to Cooley's Constitutional Limitations, 7th ed., p. 250.

Duffy K.C. referred to In re Mercantile Bank; Ex parte Millidge 13.]

Our. adv. vult. The following judgments were read :-

GRIFFITH C.J. These appeals are brought from convictions for breaches of sec. 15B of the Australian Industries Preserva- tion Act 1906 in refusing to answer certain questions put to the appellants by the Comptroller-General of Customs.

That section provides that if the Comptroller-General believes that an offence has been committed against Part II. of the Act, or if a complaint is made to him in writing that such an offence has been committed, and he SO believes, he may, by writing under his hand, require any person whom he believes to be capable of giving any information in relation to the alleged offence to

132 Fed. Rep. 241, at p. 253. 22 C.L.R., 593. 33 B. &A., 432, at p. 439. 4Q.B.D., 201. 5(1906) 1 Q B., 487. 6198 U.S., 253. 7L.R. 7 H.L., 653, at p. 672. 91 B. &C., 37. 1011 Q.B.D., 588. 11194 U.S., 25. 12(1905) A.C., 480. 1319 V.L.R. 527 ; 14 A.L.T., 269. 8 CLR 346

OF A. answer questions and produce documents in relation to the alleged

offence, and it imposes a penalty of £50 on any person failing to HUDDART,

Secs. 4, 5, 7, 8, and 13 are, SO far as material, as follows - Sec. 4. (1) " " Any person who, either as principal or as agent, MOOREHEAD. makes or enters into any contract, or is or continues to be a

member of or engages in any combination, in relation to trade or commerce with other countries or among the States-

'(a) with intent to restrain trade or commerce to the detriment of the public; or

'(b) with intent to destroy or injure by means of unfair com- petition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers and consumers,

" is guilty of an offence.

Penalty: Five hundred pounds." Sec. 5. (1) " Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which, either as principal or agent, makes or enters into any contract, or engages or continues in any combination-

"(a) with intent to restrain trade or commerce within the Commonwealth to the detriment of the public, or

"(b) with intent to destroy or injure by means of unfair com- petition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers,

"is guilty of an offence. "Penalty: Five hundred pounds." Sec. 7. (1) " Any person who monopolizes or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other coun- tries or among the States, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence.

'Penalty Five hundred pounds." Sec. 8. (1) "Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which monopolizes or attempts to monopolize, or combines or conspires with any

8 CLR 347

person to monopolize, any part of the trade or commerce within the Commonwealth, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence.

Penalty: Five hundred pounds." Sec. 13. (1) " 'Any offence against this Part of this Act (not MOOREHEAD. being an indictable offence nor an offence against secs. 15B, 15c, or 15E of this Act), shall be tried before a Justice of the High Court without a jury.

"(2) Any offence against this Part of this Act committed by a person who has previously been convicted of any offence against this Part of this Act shall be an indictable offence."

The appellants, Huddart Parker &Co., are a corporation duly formed under the laws of the State of Victoria. The appellant Appleton is their manager.

The Comptroller-General, purporting to act under sec. 15B, called upon the appellants in both these cases to answer certain questions to which it is not necessary to advert in detail. In Huddart Parker &Co.'s case the written requirement recited that the Comptroller-General believed that the offences had been committed against the provisions of secs. 5 and 8 of Part II. of the Act in connection with the trade in coal.

In Appleton's case the recital was that he believed that offences had been committed against secs. 4 and 7 of Part II., also in connection with the trade in coal.

No objection was taken on the ground of want of particularity in the statement of the alleged offences in relation to which the questions were put.

Both appellants contend that sec. 15B is ultra vires of the Commonwealth Parliament. Huddart Parker &Co. further contend that secs. 5 and 8 are ultra vires. I will deal first with the latter contention.

Secs. 4 and 7 are limited in terms to matters in relation to trade or commerce with other countries or among the States, and it is not suggested that these enactments are not within the first of the powers enumerated in sec. 51 of the Constitution. Secs. 5 and 8 are not SO limited as to subject matter, but are limited to foreign corporations and trading and financial corporations

8 CLR 348

formed within the Commonwealth-adopting the language of

pl. X.X. of sec. 51. It is common ground that secs. 5 and 8, as HUDDART,

framed, extend to matters relating to domestic trade within a State, and the question is whether the power to make laws with re- spect to foreign corporations, and trading or financial corporations MOOREHEAD. formed within the limits of the Commonwealth" extends to the

governance and control of such corporations when lawfully en- gaged in domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth Parlia- ment can make any laws it thinks fit with regard to the operation of the corporation, for example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them. In short, any law in the form " No trading or financial corporation formed within the Common- wealth shall," or " 'Every trading or financial corporation formed, etc., shall," must necessarily be valid, unless forbidden by some other provision of the Constitution.

It is not seriously disputed that the words of pl. xx., if they stood alone, might be capable of such a construction, but the appellants contend that it is not the true one. The respondent relies on the literal meaning of the words, which, he says, confer an express power which is not to be cut down by implication. In support of this view he contends that the words are large enough to include the creation of trading and financial corpora- tions, and that the power to create a corporation implies a power to attach to the corporation when created any condition whatever that Parliament may think fit.

It may be that this consequence would follow SO far as regards the internal affairs of a corporation SO created, whether it would or would not also follow as to their dealings with strangers. But

I am of opinion that the words in question do not on their face purport to deal with the creation of corporations. In the case of foreign corporations it is obvious that the Parliament cannot create them. The formation and regulation of corporations in general is one of the matters left to the States, and in my judg- ment the words formed within the limits of the Commonwealth

8 CLR 349

mean formed under State laws. They may be large enough to include corporations formed by the Commonwealth itself within territory under its exclusive jurisdiction, and corporations created by the Commonwealth itself as instruments of government; but an express power is not necessary for either purpose.

In my opinion the meaning of pl. XX. is that in the case, as well MOOREHEAD. of trading and financial corporations formed within the Common- wealth, as of foreign corporations the Commonwealth must take them as it finds them, and may make such laws with respect to their operations as are otherwise within its competence.

The appellants further contend that the provisions of secs. 5 and 8 are not really laws with respect to corporations, but laws with respect to trade and commerce. Reference was made to the decision of the Judicial Committee in the case of the Grand Trunk Railway Co. of Canada v. Attorney-General of Canada 1, in which the question for decision was whether a provision of a Dominion Statute, which prohibited railway companies created by the Dominion Parliament from contracting out of a liability to pay damages for personal injuries to their servants, was within the competence of that Parliament.

The validity of this pro- vision was attacked on the ground that it was in substance an interference with "property and civil rights," a matter reserved to the Provincial legislatures. It was not disputed that the power to make laws for through railways was entrusted to the Dominion. The question for determination was thus stated by Lord Dunedin, who delivered the judgment of the Board 2 The point, therefore, comes to be within a very narrow compass. The respondent maintains

that this is truly railway legisla- tion. The appellants maintain that, under the guise of railway legislation, it is truly legislation as to civil rights." And, after referring to the occasional overlapping of the field of Dominion and Provincial legislation, he proceeded 3 :-" Accordingly, the true question in the present case does not seem to turn upon the question whether this law deals with a civil right-which may be conceded-but whether this law is truly ancillary to railway legislation."

1(1907) A.C., 65. 2(1907) A.C., 65, at p. 67. 3(1907) A.C., 65, at p. 68. 8 CLR 350

So, in the present case, it is said, the question must be asked whether the provisions of secs. 5 and 8 are truly ancillary to the HUDDART,

power to make laws with respect to certain corporations, what- ever that may extend to, or are an invasion of the field of domestic trade, a matter which is reserved to the States. As to MOOREHEAD. their being an assertion of a right to enter that field there can be

no doubt. I am disposed to accept the argument of the appellants on this point, but it is, I think, better to consider it in conjunction with a further argument, founded upon decisions of this Court which I have neither the right nor the inclination to review.

I have already said that the words in question, if they stood alone without any qualifying or controlling context, might be capable of bearing the wide construction claimed by the respon- dent. Is there then anything in the context of the Constitution to require a more limited construction

In The King v. Barger 1 the majority of the Court said - "The Constitution must be considered as a whole, and SO as to give effect, as far as possible, to all its provisions. If two pro- visions are in apparent conflict, a construction which will reconcile the conflict is to be preferred. If, then, it is found that to give a particular meaning to a word of indefinite, and possibly large, significance would be inconsistent with some definite and distinct prohibition to be found elsewhere, either in express words or by necessary implication, that meaning must be rejected."

In the Union Label Case (Attorney-General for New South Wales v. Brewery Employés Union of New South Wales 2), referring to the power to legislate with respect to trade and commerce, I said (and my brothers Barton and O'Connor agreed with me): - The power to legislate with respect to trade and commerce' conferred by sec. 51 (1) is not unlimited. In the case of United States v. Dewitt 3, Chase C.J., delivering the judg- ment of the Supreme Court, said :- That Congress has power to regulate commerce with foreign nations and among the several States and with the Indian tribes, the Constitution expressly declares. But this express power to regulate commerce among the States has always been understood as limited by its terms,

16 C.L.R., 41, at p. 72. 26 C.L.R., 469, at pp. 502-3. 39 Wall., 41, at p. 43. 8 CLR 351

and as a virtual denial of any power to interfere with the internal trade and business of the separate States except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested.'

"This doetrine has been the foundation of a great number of decisions as to the validity of the legislation of Congress, and it MOOREHEAD. has never been doubted.

The same doctrine follows from the literal words of sec. 51 (i.) of the Australian Constitution, which confers the grant of power, not in general terms, but only as to trade and commerce with other countries, and among the States.' This is, emphatically, an instance in which the rule expressio units exclusio alterius must be applied.

It follows that the power does not extend to trade and com- merce within a State, and consequently that the power to legislate as to internal trade and commerce is reserved to the State by the operation of sec. 107, to the exclusion of the Commonwealth, and this as fully and effectively as if sec. 51 (i.) had contained nega- tive words prohibiting the exercise of such powers by the Com- monwealth Parliament, except only, in the words of Chase C.J.,

as a necessary and proper means for carrying into execution some other power expressly granted.' It follows that, in order to warrant such an interference with the trade and commerce of a State as would be authorized by the extended meaning claimed for the words in question, it must be shown that such a power of interference is a necessary and proper means of carrying into execution the power to legislate as to trade marks. If such an invasion of the exclusive powers of the States was intended, it is strange that the power should have been conferred in language which seems at first sight SO inadequate for the purpose.

In my opinion, it should be regarded as a fundamental rule in the construction of the Constitution that when the intention to reserve any subject matter to the States to the exclusion of the Commonwealth clearly appears, no exception from that reservation can be admitted which is not expressed in clear and unequivocal words. Otherwise the Constitution will be made to contradict itself, which upon a proper construction must be impossible."

8 CLR 352

It is a corollary to this rule that, if there be an exception from the reservation, the extent of that exception must be equally HUDDART,

clearly and unequivocally expressed, and that SO far as the excep- tion does not extend the reservation remains in full force. I cannot accept the doctrine that if an invasion of the sphere of MOOREHEAD. the State is admitted for a limited purpose the reservation

altogether disappears. The invasion is only permitted SO far as it is necessary to enable the power in question to be exercised, and the extent of the permitted invasion is determined and limited by the same necessity.

The Constitution is therefore to be construed as if it contained an express declaration that power to make laws with respect to trade and commerce within the limits of a State, and not relating to trade and commerce with other countries or among the States, is reserved to the States except SO far as the exercise of that power by the Commonwealth is necessary for or incidental to the execution of some other power conferred on the Parliament.

Is then the enactment that trading and financial corporations shall not enter into certain contracts or combinations relating to domestic trade wholly within a State a necessary and proper means of carrying into execution some other power expressly granted by the Constitution--in this case a power to make laws with respect to such corporations ?

The contracts and combinations mentioned are governed by State law, and are either lawful or unlawful under that law. If the Commonwealth Parliament can declare an act of a trading or financial corporation in relation to domestic trade which is lawful under State law to be unlawful, it can, e converso, make lawful a similar act of such a corporation which is unlawful under State law.

A more flagrant invasion of the spheres of the domestic law of trade and commerce and the domestic criminal law can hardly be conceived.

In Peterswald v. Bartley 1 the Court said :- 1n construing a Constitution like this it is necessary to have regard to its general provisions as well as to particular sections, and to ascertain from its whole purview whether the power to deal with such matters was intended to be withdrawn from the States, and conferred

11 C.L.R., 497, at p. 507. 8 CLR 353

upon the Commonwealth. The Constitution contains no pro- vision for enabling the Commonwealth Parliament to interfere with the private or internal affairs of the States, or to restrict the power of the State to regulate the carrying on of any businesses or trades within their boundaries, or even, if they think fit, to prohibit them altogether. That is a very important matter to be borne in mind in considering whether this particular provision ought to be construed SO as to interfere with the States' powers in that respect. If the majority of the Supreme Court were right, the Constitution will have given to the Commonwealth, and withdrawn from the States, the power to regulate their internal affairs in connection with nearly all trades and businesses carried on in the States. Such a construction is altogether contrary to the spirit of the Constitution, and will not be accepted by this Court unless the plain words of its provisions compel us to do so."

Some confusion has, I think, been caused by failing to dis- tinguish between acts which are ultra vires of a corporation and acts which, though otherwise within the powers of a corporation are prohibited by positive law. In neither case can the corpora- tion effectually do the act. But, although the effect is identical, the cause is quite different. The distinction is well pointed out in Westlake's Private International Law, at p. 358, and by Lord Cairns in Ashbury Railway Carriage and Iron Co. v. Riche

8 CLR 354

A. secs. 5 and 8. The entering into the contracts or combinations

specified without that intent is not prohibited. The sections, therefore, are not directed to the capacity of the corporation, which is assumed, but to their behaviour while acting within their capacity.

In my judgment the words of pl. XX. are not clear and unequivocal, but are open to two constructions, and, applying the principles which I have stated, I think that they ought not to be construed as authorizing the Commonwealth to invade the field of State law as to domestic trade, the carrying on of which is within the capacity of trading and financial corporations formed under the laws of the State. In other words, I think that pl. XX. empowers the Commonwealth to prohibit a trading or financial corporation formed within the Commonwealth from entering into any field of operation, but does not empower the Commonwealth to control the operations of a corporation which lawfully enters upon a field of operation, the control of which is exclusively reserved to the States.

For these reasons I think that secs. 5 and 8 are beyond the constitutional power of the Commonwealth, and that the appeal of Huddart, Parker &Co. should be allowed.

The objection as to the validity of sec. 15B rests upon different grounds. It is said-and truly-that the enactment authorizes compulsory discovery in aid of criminal proceedings for offences, which in some cases are indictable, and that such offences are, under sec. 80 of the Constitution, triable by jury. And it was contended that such discovery, which may be obtained from the person alleged to be guilty of the offence, and used against him (see par 4 of sec. 15B), is inconsistent with the right to trial by jury. It was also contended that such discovery, being ancillary or incidental to an intended exercise of judicial power, is itself an exercise of that power, and can only be committed to a federal Court or a Court invested with federal jurisdiction. It was further contended that, if the power to compel discovery for such a purpose is not a part of the judicial power, it is an incident of the execution and maintenance of the provisions of the Con- stitution relating to trade and commerce, and the laws made

8 CLR 355

thereunder, which is a duty entrusted by sec. 101 of the Constitu- tion to the Inter-State Commission.

Sec. 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court and in such other federal Courts as the Parliament creates, and in such other Courts as it invests with federal jurisdiction. It follows that the Parliament has no power to entrust the exercise of judicial power to any other hands. The Comptroller-General of Customs is not such a Court. The question for determination, then, is whether this compulsory discovery appertains to the judicial power. It was argued that the proceeding objected to is in principle analogous to the exam- ination of witnesses before a justice with a view to the commit- ment of an accused person for trial on indictment that in the event of the accused being tried before a Justice of the High Court without a jury the analogy would be complete, while, if he were tried on indictment and a further investigation before justices were necessary (which may be doubtful), the result would only be to divide the preliminary inquiry into two stages not differing in essential quality; that such proceedings before justices are always regarded as judicial proceedings, that they must, therefore, be regarded as an exercise of the judicial power and further that the interrogation of witnesses with a view to the administration of either the criminal or civil law is a matter that is in practice in British countries entrusted to judicial tribunals, and must, therefore, be regarded as within the term 'judicial power as used in sec. 71 of the Constitution.

I am disposed to accept the argument of analogy between the powers conferred on the Comptroller-General and those exercised by examining justices. I think that it may also be conceded that of recent years justices exercising this function have been sometimes regarded and spoken of as exercising judicial func- tions. It becomes important, therefore, to inquire what is the true nature of their functions. On this point the case of Cox V. Coleridge 1 is very instructive. At common law the original function of justices of the peace was executive, and in no sense judicial, all the judicial functions which they have lately exer-

11 B. &C., 37. 8 CLR 356

OF cised having been conferred by Statute. The origin and history

of their power to examine witnesses with a view to commitment HUDDART,

for trial was pointed out in that case by Best J.

At first a person accused of crime was arrested and kept in confinement until he could be brought to trial. Then the Act 1 Richard III. c. 3 authorized justices to grant bail to persons accused of felony. This power was abused, and the Act 1 &2 Ph. &M. c. 13 directed that before the justices admitted accused, i.e. arrested, persons to bail, they "shall take the examination of the said prisoner, and information of them that bring him'" before them, and certify the examination to the justices of gaol delivery. The object was, as pointed out by the learned Judge, not to institute a judicial inquiry, but to obtain information to be given to the justices of gaol delivery. This information having been found useful, the Act 2 &3 Ph. &M. c. 10 was passed, by which the provisions of the former Act were extended to cases in which bail was refused, the object still being to give assistance to the Judges. In the words of Best J. 1 :-" So far was this examination from being a judicial inquiry, which means an inquiry in order to decide on the guilt or innocence of the prisoner, that, as the law was administered a few years after the passing of these Statutes, the justices, even where it appeared that a prisoner was not guilty, were not to discharge him without bail Dalton, C. 164. The modern practice is, indeed, different, and is more consistent with law and humanity; and I refer to Dalton, only to show that it could not then have been the opinion of the profession that this examination was anything like a judicial inquiry."

In the same case Abbott L.C.J. said 2, speaking of the nature of the proceeding before examining justices :- What is it ? It is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be diffi- cult, if the right exists in the present case, to deny it in that." Holroyd J. said 3 :-" A magistrate, in cases like the present, does not act as a Court of Justice; he is only an officer deputed

11 B. &C., 37, at pp. 53-4. 21 B. &C., 37, at pp. 49-50, 31 B. &C., 37, at pp. 51-2. 8 CLR 357

by the law to enter into a preliminary inquiry, and the law which casts upon him that jurisdiction, presumes that he will do his duty in inquiring whether the party ought to be committed or not."

I think that this case, which was decided in 1822, must be taken as an authoritative exposition of the law on the subject as it then stood. It is true that since that time many laws have been passed both in England and Australia regulating the pro- cedure in such inquiries, but I do not think that they have the effect of altering the essential nature of the inquiry, which cannot be regarded now, any more than then, as an exercise of judicial functions. If this is the correct view, it follows that the inquiry by the Comptroller-General, whether regarded as a sub- stitute for, or as a preliminary step to, an inquiry by justices, cannot be regarded as a judicial function, and the foundation for this argument consequently fails.

Again It is plain that the power which, by sec. 71 of the Constitution, is to be exercised by Courts is a power of such a nature that an appeal will lie to the High Court from anything done in its exercise. It is equally plain that an appeal does not lie to any Court either from an order of commitment or an order of discharge made by examining justices. For this think that the proceedings before them cannot be regarded as an exercise of judicial power.

Apart from these considerations, I am of opinion that the words "judicial power" as used in sec. 71 of the Constitution mean the power which every sovereign authority must of neces- sity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

With regard to the argument that, since it is the general prac- tice to entrust the interrogation of witnesses to judicial tribunals' that function must be regarded as an exercise of judicial power, I think that both the premises and the inference are faulty. Many such interrogations are no doubt SO entrusted, but many others,

8 CLR 358

358

HIGH COURT relating to matters of administration, are entrusted to other

authorities. And I have already shown that in the most nearly analogous case the function, although entrusted to persons who for other purposes exercise judicial functions, is not regarded as itself an exercise of such functions.

Some decisions of the Supreme Court of the United States, and in particular the case of Kilbourn v. Thompson 1, were referred to, but I am unable to derive any assistance from them, although they contain dicta which at first sight support the appellants' argument. The actual decision in the cases turned upon quite different points from those now under consideration.

With regard to the argument that compulsory examination of a suspected person is inconsistent with the right of trial by jury in the case of indictable offences, it is sufficient to say that the doctrine expressed by the maxim nemo tenetur seipsum accusare was introduced into English law long after the institution of trial by jury; that its application has frequently been excluded by Statutes in the case of indictable offences (e.g., offences against the bankruptcy laws); and that the rule is rather one of evidence than one relating to trial by jury.

This objection therefore also fails. It remains to consider the objection that the power sought to be conferred on the Comptroller-General by sec. 15B could only be lawfully entrusted to the Inter-State Commission. Sec. 101 of the Constitution is as follows:- There shall be an Inter- State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execu- tion and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder."

The language is analogous to that of sec. 61, which declares that the executive power of the Commonwealth extends to " the execution and maintenance of this Constitution, and of the laws of the Commonwealth." It is contended that sec. 101 is in effect an exception from, or proviso to, sec. 61, SO far as relates to the execution and maintenance of laws relating to trade and com- merce, and that pending the appointment of the Commission the

1103 U.S., 168. 8 CLR 359

execution and maintenance of these laws, whatever that phrase may mean, is in abeyance, just as the right of action by a State against the Commonwealth or another State was in abeyance until the establishment of the High Court. It was pointed out that before the establishment of the Commonwealth great diffi- culties had arisen in the United States of America with respect to the execution of the trade and commerce laws of that Republic, and that an Inter-State Commission had been created for that purpose. It was also pointed out that the duties to be performed in the execution of such powers are of great complexity, and require the exercise of a fine and impartial discretion. Accord- ingly, it is said, it was provided by sec. 103 that the members of the Commission should have a fixed tenure of office SO as to be free from political pressure. It is contended that these pro- visions are inconsistent with the entrusting of the execution and maintenance of the trade and commerce laws to ordinary members of the Public Service. On the other hand, it is said that the words of sec. 101, although in form mandatory, are from the nature of the case directory only, and that on any other construction any laws which the Parliament might pass as to trade and commerce would be nugatory until the Commission were appointed. This objection, however, would not apply to the punishment of offences created by such laws, since it could not have been intended by sec. 101, whatever it means, that the institution of criminal proceedings should be taken out of the hands of the Commonwealth law officers.

Grammatically, sec. 101 appears to me to be open to two con- structions, according as the words "for the execution and main- tenance," &., are read as merely qualifying the words powers

necessary," or are read as if they immediately followed the words "shall be," that is, as if the language of the section were transposed, SO as to begin with the words " For the execu- tion and maintenance," &.

I am disposed to think that the words qualify both "shall be' and powers

necessary," but I do not think the point is material.

For, supposing that the Inter-State Commission had been estab. lished, and that it was desired to prosecute a person suspected of

8 CLR 360

a breach of some enactment in a law relating to trade and

commerce the violation of which was made an indictable misde- HUDDART,

meanour, could it be suggested that a preliminary inquiry as to the guilt of the suspected person before justices in the ordinary way is prohibited by sec. 101 ? I think not. If this is the

MOOREHEAD correct view, it must be because such an inquiry, held in the

ordinary course of law, is not, in any view of the meaning of sec. 101, one of the matters entrusted solely to the Commission. It follows also, I think, that the inquiry directed by sec. 15B, whether regarded as substitutional or preliminary, is equally free from the supposed prohibition.

For these reasons, I think that the provisions of sec. 15B are not ultra vires of the Commonwealth Parliament, and that Appleton's appeal fails.

BARTON J. Secs. (1) (a) and 7 (1) of the Australian Industries Preservation Act 1906, which apply only to the second of these appeals, are not called in question. They are, indeed, in terms and in meaning, clearly within the legislative authority with regard to "trade and commerce with other countries, and among the States," given by the Constitution in sec. 51 (1). Sec. 15B, though common to the two appeals and attacked alike in both, need not be considered in connection with the first of them, the company's appeal, if the Court comes to the conclusion that secs. 5 (1) (a) and 8 (1) of the Principal Act are invalid as in excess of constitutional authority. I proceed first, then, to the consideration of those enactments. It is of interest to begin by comparing secs. 4 (1) (a) and 7 (1) with secs. 5 (1) (a) and 8 (1) in order to elucidate the effect of the latter. Remembering that by the interpretation clause of the Act "person" includes corpora- tion unless a contrary intention appears, and placing sec. 4 side by side with sec. 5, and sec. 7 side by side with sec. 8, it becomes clear that the intentions of Parliament in both secs. 4 (1) (a) and 5 (1) (a) could all have been fulfilled by sec. 4 (1) (a) SO far as oversea and Inter-State commerce are concerned, whether the offender was an individual or any kind of corporation and that the two sections cover precisely the same ground to that extent. It is thus in respect only of the regulation of contracts and combinations in

8 CLR 361

relation to the domestic trade of the States, that Parliament has deemed it necessary to make separate provision by sec. 5 1 (a). An exactly similar result stands out upon a comparison of secs. 7 (1) and 8 (1).

It is thus manifest that the real object of secs. 5 (1) (a) and 8 (1) is rightly or wrongly to enter for the purpose of those sections the domain of the domestic or internal commerce of the States. That is a legislative act not in terms or by implication authorized by the commerce power in the Constitution (sec. 51 (1) ). As indeed is apparent on the face of that expressed power, it SO defines the limits of the federal law-making authority that by the clearest implication, SO strong in its effect that an express prohibi- tion would have been superfluous, it excludes from the bounds of that granted power, as we have more than once decided, the whole of any trade or commerce which begins and ends entirely within the confines of any one State: The King v. Barger (1); Attorney- General for N.S.W. v. Brewery Employés Union of N.S.W. 2. That class of trade and commerce is reserved to the States respectively by sec. 107 of the Constitution, for it has not been exclusively," or at all, "vested in the Parliament of the Commonwealth," nor has it been "withdrawn from the Parlia- ment of the State."

The operation, then, of secs. 5 (1) (a) and 8 (1) upon contracts and combinations, in relation to what may be called Intra-State, as distinguished from Inter-State, commerce is forbidden by the Constitution in sec. 51 (1) unless we can find elsewhere in the federal charter some power which purports to authorize it, and which can be read as an exception to that prohibition. If any such power exists it must, if possible, be read as an exception only.

Where, then, is that authority to be found ? In argument, the source of it was said to be in sec. 51 (xx.) of the Constitution. No other provision was adduced, and if the authority is not there, I can find no trace of it. The terms of that power are that the Parliament may " make laws for the peace, order, and good government of the Commonwealth with respect to foreign corporations, and trading or financial corporations

16 C.L.R., 41. 26 C.L.R., 469. 8 CLR 362

II. within the limits of the Commonwealth." The respondent urges

that this power is SO general in its terms that it is ample to authorize the regulation of these classes of corporations to the extent attempted-that is, even as to their dealings in internal State trade; SO that the federal Parliament may prohibit and penalize MOOREHEAD. any kind of such trade dealings even when the State within

whose competence they are sanctions them, either expressly or by silently leaving them to the operation of the common law. It is argued that the sub-section gives all this power because where there is authority to incorporate there is power to impose condi- tions on the grant of incorporation; and that the words are SO general, and by themselves SO unrestricted, that the power to incorporate must be included. I leave aside the question as to the imposition of conditions, because that is only material to the argument quoted if the words themselves give power to create the classes of corporations enumerated. As to foreign corpora- tions, the creative power exists elsewhere, ex vi termini. That being so, there is no good reason given why the Constitution should be taken to have intended to give that power in respect of the other class - trading or financial corporations formed within the limits of the Commonwealth- - within which class the appellant company falls, because it is incorporated under the company laws of the State of Victoria. I think the sub-section is carefully framed to place this class of corporations on the same footing as foreign corporations with regard to the stage at which they become subject to federal legislation. Before a foreign corpor- ation can become SO subject, it must have been formed in the country of its origin before a trading corporation can become so subject, it must have been "formed within the limits of the Com- monwealth"; but not under the authority of the Commonwealth any more than its foreign congener. On this construction "formed within the limits of the Commonwealth" means formed under the law of a State, and this I take to be the true meaning. I add two further considerations. First, finding associated as the sub- jects of the power, a class as to which creative powers could not possibly be conferred, and a separate class as to which such a power might if intended be granted, one would expect such an intention, if it existed, to be expressed in something like definite

8 CLR 363

terms by way of distinction between the two classes. So far is that from being the case that the grant is couched in terms which rather import that its limits as to each class as nearly coincide as the nature of the case admits. The other consideration is, that where a right to create a class of corporations is intended to be given, the framers of the Constitution knew how to make the MOOREHEAD. intention unmistakeable, for they have done SO in par. (xiii.) of the same section: ( Banking

the incorpora- tion of Banks

The claim of creative power, therefore, seems to fail, and with it the authority to enact these provisions SQ far as it is based on such a power.

Taking then sub-sec. (xx.) to authorize the dealing with both classes of corporations on the same footing-that is, the footing that neither class is a creature of federal legislation-does the sub-section, SO read, constitute an exception to the otherwise exclusive reservation to the States of the power to deal by legis- lation with matters within the field of their internal or domestic trade ?

Any power to constitute such an exception must be couched in clear and unambiguous terms. It is not sufficient that it is capable of being read as an exception, if it is equally capable of being read as subject to the reservation of that field in favour of the States; for the reservation is effected by what Chase C.J., in the United States v. Dewitt 1, speaking for the Supreme Court as to the meaning of the commerce power, truly described as "a virtual denial of any power to interfere with the internal trade and business of the separate States." The Australian Constitution in sec. 51 (1), as we have already decided, contains a similar reservation as the direct and necessary consequence of language identical save in its omission of one sphere of trade which does not exist here-namely, that with the Indian tribes. Sub-sec. (xx.) is equally capable, apart from that reservation, of being read in either of the ways I have stated. To overcome, or to be read as an exception to, the reservation, it would, as its framers must have known, have had to be expressed in language which admitted only of the former of these constructions. It is

19 Wall., 41., at p. 44. 8 CLR 364

impossible to contend that it is SO expressed. Therefore, it is

not such an exception. HUDDART,

Sections such as 5 1 (a) and 8 (1) might have been sustained in the United States had they been, to use other words of Chase C.J. in the sentence just quoted (1), "a necessary and proper MOOREHEAD. means for carrying into execution some other power expressly

APPLETON granted or vested"-that is, some power other than the trade

and commerce power-or, as he put it elsewhere in the same MOOREHEAD.

judgment (1), " an appropriate and plainly adapted means" to that end. The Australian Constitution in sec. 51 (xxxix.) gives expressly a corresponding power as to "matters incidental to the execution of any power vested by this Constitution in the Par- liament," &. The term "incidental" is at least as wide as the term " necessary and proper." Sub-sec. (xxxix.) is no doubt made an express power for more abundant caution, although it would certainly have been implied in the absence of express bestowal. But before this legislation can be justified under that power, we must be satisfied that the State field of commerce has only been entered incidentally to the execution of the power granted by sub-sec. (xx.). That is to say, the primary object of the legislation must be, not the interference with the forbidden subject of State trade, but the control of the corpora- tions the subject of the grant. If that were not so, the substan- tive power and the incident would be made to exchange places, an operation which no one will attempt to support as a valid exercise of power. Now the object (I say nothing of the motive) of the Acts of which these sections form part is proclaimed by their whole purview to be truly stated in their title. It is "the preservation of Australian industries and the repression of destructive monopolies." The provisions as a whole are directed to the attainment of that object by means of prohibition, punish- ment and machinery. By sec. 2 the legislation is divided into three parts-I., Preliminary; II., Repression of monopolies; III., Prevention of dumping. It is, therefore, by the repression of monopolies that Part II. essays to carry out the object of the Acts. The provisions, even apart from the heading and the title, leave no room for argument on that point. By secs. 4 (1) (a) and

19 Wall., 41, at p. 44. 8 CLR 365

7 1 it is sought to effect this avowed purpose, SO. far as the conduct penalized is in the course of trade or commerce with other countries or among the States by secs. 5 (1) (a) and 8 (1) it is sought to cover also, as far as posssible, the field of trade or com- meree within the respective States. The former process is not forbidden, but the latter is. To get over that difficulty sec. 5 (1) MOOREHEAD. (a) and 8 (1) are framed by way of penalizing the obnoxious contracts and combinations if made by corporations of the classes

SO often mentioned. So far as external and Inter-State trade is concerned this would have been virtually tautological, as I ex- plained at the outset of this opinion. So that the clear object of referring to the corporations is that the field of State trade may be successfully invaded. Now, bearing in mind, " not the motive which actuates the legislature," or "the ultimate end desired to be attained," which are irrelevant (The King v. Barger) (1), but the substantive purpose of the Acts as a matter of construction gathered from their entire tenour, aided, if that were not super- fluous, by sec. 2 and the title, it becomes transparent that the endeavour of the provisions now challenged is to secure some legislative control of the forbidden subject of State trade for the better repression of monopolies, and that the attempted use of sub-sec. (xx.) is only incidental to that endeavour. Such an expedient will not avail to pierce the shield which the Constitu- tion throws round the internal trade of the States. This is the very converse process to that held valid in the Grund Trunk Railway Co. of Canada v. Attorney-General of Canada 2, and Toronto Corporation v. Canadian Pacific Railway Co. 3. There it was held that the Dominion Parliament might enter the field, reserved to the Provinces, of " Property and Civil Rights" for the purpose of making provision ancillary and appropriate to the effective execution of powers expressly granted to the Dominion, and outside the jurisdiction of the Province. That would be a justification here if the true construction of the enactments chal- lenged were similar. But here we find, not a resort to the field reserved for the more effective execution of a power expressly bestowed, but the invocation of an expressed power as a mere means of effectively invading the forbidden field. I repeat that

16 C.L.R., 41, at p. 67. 2(1907) A.C., 65. 3(1908) A.C., 54. 8 CLR 366

it is the converse process. To resort for a moment to the ver-

nacular, the dog can wag the tail, but it by no means follows that the tail can wag the dog. See also on this point the Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association 1, where we held, notwithstanding the absence from the Con- MOOREHEAD. stitution of any express power for the purpose, apart from sub-

sec. (xxxix.) of sec. 51, that industrial organisations might law. fully be incorporated for the more effective execution of the power granted by the Constitution in sub-sec. (xxxv.).

I am of opinion, therefore, that secs. 5 (1) (a) and 8 (1) of these Acts, in SO far as they deal with the domestic trade of the States, are in no wise incidental or ancillary to the execution of sec. 51 (xx.) of the Constitution, and that the invasion of that sphere is prohibited by the Constitution. Hence, I am bound to hold that these provisions are invalid, and that the company is entitled to succeed.

Not dissenting from any of the reasons of the Chief Justice, I have still felt it desirable to state at some length my views as to the two enactments which I think must be pronounced invalid.

As to the second appeal, that of Appleton, I think the inference from Cox v. Coleridge 2 is too strong to be withstood, and that sec. 15B is not an exercise of the judicial power; and I cannot find that it is impeachable on any other of the grounds taken. Agreeing fully as I do with the judgment of the Chief Justice as to this section, I feel that I ought to refrain from adding unneces- sarily to this opinion, especially under present circumstances. But it is contended that the section is invalid as giving the Comptroller-General powers of claiming and enforcing discovery in matters of trade which, even if not within the judicial power, cannot be reposed in any authority other than the Inter-State Commission, an authority not yet established. Not only do I think that such an inquiry as is authorized by sec. 15B is not a matter solely within the competence of that Commission, but I wish to say that, unless arguments be adduced in some future case much more compelling than any I have yet heard, I shall not be disposed to hold that the execution and maintenance of federal laws within the commerce power, any more than of the

To some extent the grant of power has admittedly overstepped the line of demarcation separating jurisdiction as to Inter-State and foreign trade from that concerning purely Intra-State trade. See the judgment of the learned Chief Justice in The King V. Barger 1. And once that line is passed, where is the new line to be consistently drawn, except where I have drawn it ? I have shown that on the affirmative side the words are not satisfied by mere recognition; and on the negative or prohibitory side, what is the authority for drawing it at exclusion which, besides recognition, is also admitted by my learned brothers' view ? Nothing in the Constitution lends itself to that result-no solitary authority English or American gives any countenance to it. So far as they go the American cases are opposed to it. In Pembina Mining Co. v. Pennsylvania 2, Field J., basing his statement on several authorities, says:-" The absolute power of exclusion includes the right to allow a conditional and restricted exercise of its corporate powers within the State."

And how can the power once admitted at all be sensibly divided?

16 C.L.R., 41, at p. 69. 2125 U.S., 181, at p. 186. 8 CLR 403

What reason is there in permitting the Commonwealth Parlia- ment to deny to a foreign company all business whatever, whether beneficial or hurtful to the general public, and yet in not permitting the Parliament to allow the company to do business that is innocuous, but, as the challenged sections provide, to exclude business that is harmful to the people of the Common- wealth Again: in the case, say, of a New South Wales trading corporation with powers limited to the State in which it is formed, what is the power which is conceded by the appellants to the Commonwealth Parliament? It cannot expel them from New South Wales. That is plain. Compulsory recognition by the very State is superfluous. The Commonwealth Parliament admittedly can- not lop off any capacities it cannot add to them. All that is for the State. The only authority left is mere prohibition against trading at all in New South Wales, either absolutely or subject to some preliminary conditions, but it is said that, permitted to trade at all, its operations are entirely subject to State control. In all this contention I confess I see nothing but endless intricacy and bewildering confusion.

Will this doctrine of preliminary or conditional permission or prohibition stand a practical test ? As the argument claims exclusive State power on the actual field of operations, it is obvious that penalties may lawfully be imposed by the State at every point of corporate action, a power which could altogether nullify a mere general permission of the Commonwealth to trade. It is inconceivable that SO futile a power, as paragraph (xx.) would then be, was solemnly handed over to the nation. Further, a conditional prohibition, once the condition was fulfilled and the corporation legally stationed on the field, might in many cases be equally futile and leave the gravest injury without remedy unless the States chose to give it. Preliminary precautions, in the case of trading and financial corporations, cannot of them- selves determine rights or ensure relief against actual wrongs committed. This depends on the substantive law and a federal security, for example, might, having regard to a State law, be an idle formality or else become a mere licence fee. A so-called security, whether in money or publication of balance sheet, or whatever it might be, insisted on by the Commonwealth law,

8 CLR 404

would on the appellants' assumption be utterly valueless to

persons actually injured, except SO far as the corporation com- HUDDART,

mitted a breach of State law. There might be no State law applicable to the injury, or it might vary in every State. This,

I am convinced, was not the object of the Federal Constitution.

MOOREHEAD Take the present case: how would a federal provision requiring

foreign companies to comply with the law prevent the actual crushing of individuals by a powerful combination, which no State law prohibited ? And if it is to be left to the State to say whether such combinations are permissible, the requiring a deposit is only ancillary, and no advantage is gained by creating a double power to do that. So, to limit the clause in the way contended for, again requires the introduction of words which have not been inserted, and which would constitute a vital alteration of the actual language used.

It was practically conceded that the Federal Parliament could entirely forbid a foreign company doing any business whatever in Australia, or might grant permission to enter the field of trade upon conditions. It was contended, however, that the conditions must in a sense be preliminary only, and as long as the company was lawfully stationed on the field of internal trade, it was beyond the reach of the Federal Parliament, except that, perhaps, a failure to continue the observance of a condition might termi- nate its right to trade at all. If, however, that is within the permitted authority of the Commonwealth Parliament-and it appears to me that SO much at least is quite consistent with the opinions of my learned brothers-the ultimate result may be that equally great control may be exercised by the Parliament, but at much greater necessary cost to the corporations concerned. Mere power to recognize corporations I put aside, because I cannot for a moment think this great national power was created for the special and exclusive benefit of corporations, and not in any way for the protection of the general public. And if there is power to impose conditions of trading on foreign corporations, it applies necessarily to Australian corporations, and these conditions must be within the discretion of the Parliament. Further, the power, whatever it is, must apply to corporations already existing at the date of the law as well as to those which thereafter come

8 CLR 405

into existence. So that a valid law might be passed by the Federal Parliament, enacting that if any such corporation engaged in such a transaction as those struck at by the chal- lenged sections, its power of trading at all should thereupon cease, it must forthwith quit the permitted area, or, in other words, henceforth there should be, as the learned Chief Justice has said, a denial of the capacity to enter into contracts relating to domestic trade, or a particular branch of that trade. The differ- ence in result would be that the penalty must be not £500 or £1,000, but the whole franchise of the company, or its franchise as to a particular branch of that trade. It can hardly be a con- solation to these corporations to know that the Federal Parliament may find itself driven to protect the public, even though the cost to the company may be its very existence in Australia. This, however, besides being very hard on the corporation itself, gives no redress to persons actually injured-it prevents future wrongs, but leaves the past untouched. And if the Federal Parliament is to be entrusted with such radical powers even in respect of a company doing purely State business, what possible reason can exist for cutting down the primary meaning by denying the milder power such as is exercised in secs. 5 and 8, which it is admitted are within the literal terms of the Constitution, and, as

I think, cannot be denied without impliedly inserting other words ? The States too would scarcely see much shelter in a doctrine which conserved to them the exclusive right to fine a man, but allowed the Commonwealth to hang him.

Now, on the other hand, there is strong affirmative reason for giving to the plain words of the power their ordinary and natural meaning. Before the Constitution was framed it was common knowledge in Australia that the affairs of trading and financial corporations, whether formed in Australia or abroad, had been the cause of much business strain and anxiety, that the general public entering into contractual relations with them as depositors, investors or shareholders, had unfortunately found the need of some powerful controlling authority to give greater security than had hitherto been afforded by the law. To some extent more effective State legislation could and did follow. But the increase in the formation of corporations for all kinds of

8 CLR 406

business enterprises, commercial, industrial and financial, is one

of the most notable characteristics of modern life. They are incorporated in one State, and can take the capacity to trade in all, and the freedom of Inter-State trade introduced by the Constitution increased the likelihood of their doing SO. Not MOOREHEAD. only have they many advantages expressly and directly flowing

from the language of the law, but by their inherent nature, and proceeding from their very magnitude, their wealth, the influence that mere numbers inevitably bring, they possess a power which few individuals can hope for. This power may be exerted for the public good, but it may not, and, where it is not, the danger is proportionate to the power. The mere fact of combination is therefore a feature of SO much commercial importance as to create in itself strong ground for the dis- tinction in sub-sec. (xx.) of sec. 51 of the Constitution. Said Lord Macnaghten in Quinn v. Leatham 1 That a con- spiracy to injure-an oppressive combination-differs widely from an invasion of civil rights by a single individual cannot be doubted. I agree in substance with the remarks of Bowen L.J. and Lords Bramwell and Hannen in the Mogul Case 2. A man may resist without much difficulty the wrongful act of an individual. He would probably have at least the moral support of his friends and neighbours; but it is a very different thing (as Lord Fitzgerald observes) when one man has to defend himself against many combined to do him wrong." So, too, Harlan J. in Northern Securities Co. v. United States 3 :- If Congress legislates for the protection of the public, may it not proceed on the ground that wrongs when effected by a powerful combination are more dangerous and require more stringent supervision than when they are to be effected by a single person?" And at p. 340, quoting from another case:-"Men can often do by the combina- tion of many what severally no one could accomplish, and even what when done by one would be innocent. potency in numbers when combined, which the law cannot over- look, where injury is the consequence." Add to the power of numbers, the facilities of extension, the comparative personal

1(1901) A.C., 495, at p. 511. 223 Q.B.D., 598 (1892) A.C., 25. 3193 U.S., 197, at p. 335. 8 CLR 407

immunity of the individuals who compose the corporation, and the other special features of these artificial beings, and there presents itself a sufficient reason for handing over to a strong national authority for uniform and effective treatment, should it consider the occasion requires it, the comparatively vast and far- reaching transactions of foreign and trading or financial cor- porations.

Why, then, should we shut our eyes to the obvious facts of life, and the practical reasons which confront us, and why, as was said in one case, should we go "hunting for reasons" to cut down the plain words of the Constitution, and SO deprive them of their ordinary signification in frustration of the intention of the Con- stitution, at all events as that may be gathered on the face of the document ?

At this point the further words of Tindal L.C.J. in The Sussex Peerage Case 1 become important :- But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the Statute." The ground and cause of making this Statute, the Federal Constitution, was for the better government of the Australian people, to select certain powers, and subject to express limitations, to place them unre- servedly for uniform treatment on national considerations in the hands of a strong central authority to be exercised as if Australia were one undivided country and without regard to State lines. The ground and cause of this particular sub-section are too fresh in the public minds to be easily forgotten. The words of trust and reservation as to all the powers conferred are alike plain, and were intended to be plain. There is no need to search for implied prohibitions.

Looking on the face of the document I find nothing to detract from the natural signification of the unequivocal English terms employed. The appellants' argument really assumes an unwilling grant of power to a dangerous hand that might use the power rashly, and asks for a consequent narrow construction of powers. Again and again that has been held a purposeless argument in a

111 Cl. &F., 85, at p. 143. 8 CLR 408

Court of law: Bank of Toronto v. Lambe 1; Aftorney-General

for Canada v. Attorney-General for Ontario 2.

But once that argument disappears, what rational justification is left to limit the natural effect of the words tried by Lord Selborne's rule ? I am unable to see why it is beyond the com- petency of a Federal Parliament, under the powers expressly conferred upon it, to say that foreign corporations and Australian trading and financial corporations shall not, except under liability to penalties, overtly exercise their capacities SO as designedly to injure the Australian people or crush Australian industries.

For these reasons I am of opinion this appeal also should be dismissed.

HIGGINS J. The question as to the validity of secs. 5 and 8 of this Act is undoubtedly difficult but to my mind the difficulty lies, not SO much in determining that the Federal Parliament has exceeded its powers under sec. 51 (xx.), as in fixing precisely the limits of that power.

We have to examine 1 the power conferred (2) what has been enacted as under that power.

1The only power on which the Federal Parliament relies is as follows (sec. 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 0 :-(inter alia) (xx.) Foreign corporations, and trading or financial corpor- ations formed within the limits of the Commonwealth." It has always to be remembered that the State Constitutions continue as before, subject, however, to the Constitution (sec. 106); and that every power of a State Parliament continues unless it is by the Constitution exclusively vested in the Commonwealth Parlia- ment or withdrawn from the State Parliament. Before the Constitution each State had power to make any laws that it saw fit for the people within its borders. The State power is the rule, the Federal power is the exception and those who argue for the Federal Parliament must establish therefore, affirmatively, that power has been given to it to make the enactment in question- power under sub-sec. (xx.) for, as my brother Isaacs has pointed 2(1898) A.C., 700, at p. 713. 112 App. Cas., 575, at p. 587. 8 CLR 409

out, it is not here contended that any incidental or ancillary power, under sub-sec. (xxxix.), or otherwise, will suffice. The power has been given by sub-sec. (xx.), or not at all.

(2) What, then, has been enacted ? Shortly stated, this Act, in secs. 4 and 7, forbids, as to Inter-State and foreign trade, certain contracts and combinations, intended to restrain or to monopolize trade, or to destroy Australian industries by unfair competition; and they are forbidden to persons as well as to corporations. These sections are admittedly laws "with respect to" Inter-State and foreign trade within sec. 51 (I.) of the Constitution; and it is only because they do regulate such trade that they are valid. But then come secs. 5 and 8 of the Act, under which precisely the same kind of conduct is forbidden as to trade of any kind, whether internal to a State or not, but it is forbidden to corporations only; and we are asked to treat the very same words as were used in secs. 4 and 7 as now being legislation, not with respect to trade, but with respect to corpora- tions. To say the least, this is a startling change of front. Secs. 4 and 7 indicate that the Parliament regards all such contracts and combinations as bad, not bad in the case of corporations only; and it is obvious that secs. 5 and 8 are confined to corpora- tions merely because the Parliament thinks it has power to legis- late with respect to such contracts and combinations in the case of corporations and not in the case of persons. This considera- tion does not settle the matter, however; for whatever Parliament thought, whatever was Parliament's motive, the question remains, is this a law with respect to "-that is to say, as I understand it, on the subject of-corporations

If the argument for the Crown is right, the results are cer- tainly extraordinary, big with confusion. If it is right, the Federal Parliament is in a position to frame a new system of libel laws applicable to newspapers owned by corporations, while the State law of libel would have to remain applicable to newspapers owned by individuals.

If it is right, the Federal Parliament is competent to enact licensing Acts, creating a new scheme of administration and of offences applicable only to hotels belonging to corporations. If it is right, the Federal Parliament may enact that no foreign or trading or financial corporation shall pay its

8 CLR 410

employés less than 10s. per day, or charge more than 6 per cent. interest, whereas other corporations and persons would be free HUDDART,

from such restrictions. If it is right, the Federal Parliament can enact that no officer of a corporation shall be an Atheist or a Baptist, or that all must be teetotallers. If it is right, the MOOREHEAD. Federal Parliament can repeal the Statute of Frauds for contracts

of a corporation, or may make some new Statute of Limitations applicable only to corporations. Taking the analogous power to make laws with regard to lighthouses, if the respondent's argu- ment is right, the Federal Parliament can license a lighthouse for the sale of beer and spirits, or may establish schools in lighthouses with distinctive doctrinal teaching, although the licensing laws and the education laws are, for ordinary purposes, left to the State legislatures. But these arguments from inconvenience are not conclusive. The question still remains, are these secs. 5 and 8 legislation " with respect to corporations, or are they legislation with respect to trade, commerce and industry

Now, how are we to determine what is the subject of any law, of any legislation, when two or more things that might be subjects of legislation are mentioned in it ? The mere fact of mentioning corporations in these secs. 5 and 8 does not necessarily make them a law "with respect to -on the subject of-corporations If a Licensing Act provides that the Licensing Court shall not transfer the licence of a wife to her husband unless the husband be approved by the Court as a holder of a licence, we should not call it legislation "with respect to" marriage or of marital rela- tions. If an Act provides that every marriage shall be celebrated in presence of two witnesses of full age, and shall be registered, we should not call it legislation "with respect to' witnesses, or "with respect to infancy, or " with respect to" registration. The first is a law "with respect to" dealing in intoxicating liquors; the second is a law with respect to marriage. To use the words of the Privy Council in Russell v. Reg. 1, we must find what is "the primary matter dealt with." We must find "the true nature and character of the legislation in the particular instance under discussion

in order to ascertain the class of subject to which it really belongs." Is this a law substantially with respect

17 App. Cas., 829, at p. 839. 8 CLR 411

to corporations, or is it a law substantially with respect to trade ? H. OF The regulation of trade combinations is "the primary matter dealt with (to use the phrase of Russell v. Reg. 1. As Lord Watson said during the argument of Attorney-General for Ontario v. Attorney-General for Quebec 2 that which it " (the Act) "accomplished, and that which is its main object to accomp- lish, is the object of the Statute" " (as distinguished from the motives which influenced the legislature).

Personally, I feel no doubt that that which these sections accomplish, or attempt to accomplish," the "true nature and character of these sections," their direct primary and dominant object, is the regulation of trade. The first and principal ques- tion in ascertaining what is the subjeet of any particular legisla- tion would seem to be, in most cases, what kind of obligations are imposed. This test was expressly or impliedly accepted in R. v. Barger 3 by, I think, all the members of the Court; for the point on which the minority differed from the majority of the Court was finally that the minority regarded Parliament as having imposed an obligation to pay Excise, whereas the majority thought that Parliament had imposed an obligation to observe certain labour conditions.

Here, as it seems to me, the obligations imposed are obligations as to trade, commerce and industry; therefore the sections come under the head of laws with respect to trade, commerce and industry, although applied to corporations only. In short, we have here, not a law "with respect to corporations, but a law

with respect to" combinations. It is a law, substantially, "with respect to" trade, and not a law, substantially, with respect to corporations. My opinion, as will be seen, rests simply on the construction of sub-sec. (xx.) as one of the powers conferred by sec. 51 of the Constitution, and on an examination of secs. 5 and and 8 of this Act for the purpose of finding the true nature and character of the impeached legislation.

It has been said that this power as to corporations is quite as large as the power with regard to "naturalization and aliens" (sub-sec. xix.). I have no doubt that it is; but I think that any

17 App. Cas., 829, at p. 839. 2Lefroy's Legislative Power in 36 C.L.R., 41. 8 CLR 412

valid law with respect to aliens must be directly regulative of

aliens as aliens, just as any law with respect to corporations must HUDDART,

be directly regulative of corporations as corporations. At the same time, it is more difficult, from the nature of the subject, to conceive a law referring to aliens which is not aimed at regu- MOOREHEAD. lating aliens, than it is to conceive a law referring to corporations

which is not aimed at regulating corporations. It may be that, in some cases-e.g., if the Federal Parliament prescribed that no aliens shall use the Statute of Frauds or the Statute of Limita- tions as a defence, that all aliens shall be taught certain religious doctrines, or that no alien shall work in factories, or be supplied with beer-the Act should be treated as an Act with respect to other subjects, and not with respect to aliens. But the position is not SO clear, and in each case the classification of the law would have to be determined by the Court after a careful scrutiny of the nature and object of the law in its entirety.

But, it is asked, what then is the exact scope of the power in sub-sec. (xx.) ? I think it is my duty to face this question, but

I do not wish to be taken as giving any final or exhaustive definition. In the first place, this sub-sec. (xx.) does not give any power to incorporate companies. Such power of incor- poration as the Federal Parliament has is implied, not express, not direct and independent, but ancillary, incidental to its other powers. This sub-section applies only to corporations which have been formed abroad, or (if trading or financial) by the States. But there is ample scope provided for the Federal Parliament by this sub-section. It can regulate such companies as to their status, and as to the powers which they may exercise within Australia, and as to the conditions under which they shall be permitted to carry on business. It is well established that each country has a right to prevent a foreign corporation from carrying on business within its limits, either absolutely, or except upon certain conditions: Hooper v. California 1; and this principle seems to be at the basis of sub-sec. (xx.). The Federal Parliament can, in my opinion, prescribe what capital must be paid up, probably even how it must have been paid up (in cash or for value, and how the value is to be ascertained), what

1155 U.S., 648. 8 CLR 413

returns must be made, what publicity must be given, what auditing must be done, what securities must be deposited.

The Federal Parliament controls as it were the entrance gates, the tickets of admission, the right to do business and to continue to do business in Australia; the State Parliaments dietate what acts may be done, or may not be done, within the enclosure, prescribe laws with respect to the contracts and busi- ness within the scope of the permitted powers. An Act which forbids to corporations, and punishes, a contract which is within the permitted powers, is not an Act "with respect to" corpora- tions as such, it is an Act with respect to contracts. A distinction of an analogous kind has been recently recognized in this Court in a section of a very different character. In the Steel Rails Case (Attorney-General of New South Wales v. Collector of Customs for New South Wales) 1, sec. 114 of the Constitution came under discussion. It forbids the Commonwealth to "impose any tax on property of any kind belonging to a State." Certain steel rails had been bought by the Government of New South Wales, and imported; and it was held that the import duty was payable, because duty was imposed, not on property as property, but on the act of importation, the movement of property. The subject of the tax there was not property, but the movement of property; the subject of the law here is not corporations, but the contracts of corporations-the contracts which corporations may make within the ambit of the powers permitted by the Commonwealth Parliament to be exercised. There is power in sub-sec. (1) to make laws "with respect to" a certain number of actions and transactions-Inter-State and foreign trade. There is power in sub-sec. (xx.) to make laws with respect to" certain actors- to wit, corporations. The Federal Parliament has no power, in regulating the actors, to regulate, in whole or in part, transactions which do not belong to Inter-State or foreign trade. It can confer on a corporation power to hold lands as a matter of cor- porate capacity but the State legislature, having the control of the lands within the State, can forbid such lands to the corpora- tion, can prescribe laws in the nature of mortmain: Colonial Building and Investment Association v. Attorney-General of

15 C.L.R., 818. 8 CLR 414

Quebec 1. The Federal Parliament can, as it were, regulate the

terms of admission into a field and of remaining therein, but it cannot make a law imposing a penalty for picking a turnip.

The distinction may be fine, but it is clear, and necessarily incidental to the fine distribution of powers and subjects between

MOOREHEAD, federal and State legislatures in a complex society. The Federal

Parliament can regulate corporations as to status, capacity, and the conditions on which business is permitted. But it is for the State Parliament to regulate what contracts or combinations a corporation may make in the course of the permitted business. The principle on which the distinction is based is not peculiar to federations, or novel to British law; for, according to the Privy Council, the status of a person in a Colony (e.g. as alien or subject) may have to be determined by the law of England, while the law of the Colony decides what rights and liabilities are attached to the status thus ascertained: Donegani v. Donegani 2; In re Adam 3. In fine, if the Statute of Limitations or the Statute of Frauds or the common law as to contracts is to be altered or repealed, even as to corporations, it must be altered or repealed by the State Parliament, which can deal with private persons as well as with corporations, and can secure uniform treatment.

In dealing with questions of constitutional powers, I take it that our duty is first to ascertain the meaning of the sub-section (in this case sub-sec. xx.), construing the Constitution as we would construe an ordinary Act of Parliament, and secondly, to look for the subject matter of the Act impeached, the things or the actions regulated, the target aimed at, as distinguished from the motive which influenced Parliament. It may seem a paradox but the best way to find the subject of any Act is to find its object-what the Act accomplishes, or aims at accomplishing. I mean what it directly or immediately accomplishes, or aims at accomplishing, not what was the ulterior motive in the minds of the legislature. An Act may impose a tax on land values. The object of the Act is to get money from landowners by taxation. The subject of the Act is-to use the classification of sec. 51-

19 App. Cas., 157, at p. 166. 23 Knapp., 63. 31 Moo. P.C.C., 460. 8 CLR 415

taxation. But the motive of the Act may be to induce land- H. C. owners to part with land which they do not put to use; and with the motive this Court has nothing to do. As to these sections 5 and 8, if anyone were asked, without any reference to the Constitution, what do these sections accomplish or aim at accom- plishing, the answer would surely be-unhesitating-that it is the direct prohibition of unfair restraint of trade, unfair competition, monopoly.

It was urged by Dr. Cullen that if the legislative prohibition is found to bear a real relation to the peculiar qualities of a corporation distinguishing it from natural persons, then the Court will not pronounce that it is not a law relating to corpora- tions, unless it be clearly shown that no such relation exists. But, in the first place, secs. 4 and 7, to which I have already referred, show that the prohibition, in the same words, is applied to persons as well as to corporations (in Inter-State and foreign trade), and that it does not bear any real relation to the peculiar qualities of a corporation. In the second place, this argument involves an inversion of the logical position. Those who support a federal law must show affirmatively that it is made "with respect to" some federal subject and the mere fact that aliens, or corporations, or something else named in the list of federal subjects, are mentioned in the law, and are affected by the law, is not enough. In short, the thirty-nine articles contained in sec. 51 are subjects for legislation, not pegs on which the Federal Parliament may hang legislation on any subject that it likes.

I adhere to the view which was expressed by my brother Isaacs, and by myself, in R. v. Barger 1, that the Federal Parliament is like a specific legatee of powers, and the State Parliament is like a residuary legatee, and that it is a mistake to treat the internal trade of a State as forbidden to the Federal Parliament until the utmost limits of all the powers conferred on that Parliament by sec. 51 have been ascertained. But it is quite true that if we look at sec. 51 (1) alone, and no further, the internal trade of a State is excluded from the Federal Parlia- ment, is forbidden to the Federal Parliament. Further on we find that the forbidden area is narrowed by the gift of express

16 C.L.R., 41. 8 CLR 416

power to the Parliament to legislate with regard to bills of

exchange, &. I am disposed to think that even sub-sec. (xx.) narrows the forbidden area further, but not to the extent claimed Co. for the respondent. Under sub-sec. (xx.) why should not the

Federal Parliament legislate even as to a limited company which MOOREHEAD. carries on a drapery business in a single city of one State ? But

although the forbidden area of the internal trade of a State is narrowed by the gift of a power to the Federal Parliament to make laws with respect to bills of exchange, I cannot find that the Constitution further narrows it by any gift to the Federal Parliament of power to make laws with respect to contracts. I accept fully the doctrine laid down in Gibbons v. Ogden 1, and

I therefore treat this power conferred by sub-sec. (xx.) as "complete in itself," as a power which "may be exercised to its utmost limit and acknowledges no limits other than those pre- scribed in the Constitution." But we have first to find out what the power is, and for this purpose we have to consider and construe the whole of the clauses in sec. 51 "SO as to reconcile the respec- tive powers and give effect to all" Citizens Insurance Co. of Canada v. Parsons 2. It is not enough to say what the meaning of sub-sec. (xx.) would be if it stood by itself, if there were no other powers given. As the Privy Council has pointed out in the case just cited, and in other cases, we must construe the Constitution as one whole document, on ordinary principles of construction, " so as to reconcile the respective powers and give effect to all." On this principle I am driven to treat this power in sub-sec. (xx.) as a power to legislate with respect to corpora- tions as corporations. Beyond this limit, the area for which the State legislatures can legislate is to be found.

So far, my reasoning has been applied to our own Constitution, mainly to its own words as they stand, and on ordinary principles of interpretation. I do not approve of the practice SO often adopted of rushing to American cases for points-to cases which, owing to the differences in the Constitution, are as often mis- leading as helpful. But many cases have been cited from the United States and from Canada, and it is worth while to see whether any principles have been laid down in these countries

19 Wheat., 1. 27 App. Cas., 96. 8 CLR 417

which conflict with what seems to be the natural reading of our H. Constitution. In the United States Constitution the expressions used in the gift of powers are SO various (" to lay and collect duties," to establish an uniform rule of naturalization," &.) that we cannot hope for much authority on the present subject. Yet it may be not unworthy of notice that a State legislature can MOOREHEAD. require and enforce a licence for the sale of certain patented articles, whatever the Federal Act with respect to patents may prescribe as to the rights and privileges of the patentee: Webber V. Virginia 1. The Canadian Constitution has, however, like ours, a single phrase covering all the subjects of legislation. In secs. 91 and 92 of the British North America Act, the power, as expressed, is "to make laws in relation to matters coming within" certain classes of subjects" mentioned. But there is this differ- ence, amongst others, that there is a specific list of powers con- ferred on the Provincial Parliaments, as well as a specific list of powers conferred on the Dominion Parliament. The residuary powers belong to the Dominion Parliament; and therefore we are more likely to get help from cases which deal with the limits of the provincial powers. The Provincial Parliaments, for instance, have power to legislate as to "municipal institutions in the Pro- vinces." But if a Provincial Parliament attempt to give to municipal institutions a power to deal with the liquor traffic, the provincial law is void Attorney-General for Ontario v. Attorney- General for Canada 2. On the other hand, a Provincial Par- liament has been held to have power to prescribe the cleaning of a ditch belonging to the Canadian Pacific railway, although it has no power to regulate the structure of the ditch-a Dominion matter; for the line of distinction sometimes has to be very narrow Canadian Pacific Railway v. Parish of Dame de Bonsecours 3. In the Citizens Insurance Co. of Canada V. Parsons 4, an Ontario Act had prescribed that certain conditions should be deemed to be included in every contract for fire insur- ance. The Dominion Parliament had the regulation of trade and commerce; and it was assumed, for argument sake, that fire insur- ance was a part of trade and commerce. Yet it was held that the

1103 U.S., 314. 2(1896) A.C., 348, at pp. 363-4. 3(1889) A.C., 367. 47 App. Cas., 96. 8 CLR 418

OF A. Ontario Act was valid, that the regulation of trade and commerce,

the power committed to the Dominion, did not include the regula- tion of the contracts of a particular trade. I do not refer to these cases as settling the point which we have to decide. It is easy to point out distinctions in our Constitution. I refer to them as MOOREHEAD. showing that, under a Constitution which presented similar diffi-

culties, the reasoning which I have applied to the Australian Constitution (sec. 51) has not been rejected-has been, indeed, substantially adopted.

As for the lengthy arguments with regard to the constitution- ality of sec. 15B of the Act of 1908, I think that it is not necessary for me, after what has been said by my learned colleagues, to give my reasons at length for concurring with them in their opinion that the section is valid. I cannot regard the functions of the Comptroller-General under that section as being in any sense judicial, still less as being an exercise of the judicial power of the Commonwealth. The numerous cases and expressions which have been cited on this subject have been pressed on us, I think, without due regard to the circumstances, and to the peculi- arities of the United States Constitution, and especially to the express provisions therein against self-crimination and "due pro- cess of law." 1 concur also with my colleagues in refusing to accept the view that the powers conferred by sec. 15B on the Comptroller- General are powers which cannot, under the Constitution, be exercised except by the Inter-State Commission, which is not yet created. It is sufficient for me to say that, although the Constitution uses mandatory words as to creating an Inter-State Commission, it leaves it to the discretion of Parliament to say what powers should be bestowed on the Commission; and even when the powers have been bestowed, it by no means follows that the powers must be bestowed exclusively on the Commis- sion. Subject to any law that may be made by Parliament as to the Inter-State Commission and its powers, the Governor-General in Council-virtually the Ministers and officers-can exercise any of the executive power of the Commonwealth (secs. 51, 61 of the Constitution).

The result is, in my opinion, that secs. 5 and 8 are invalid for the purposes of this conviction of this corporation, and invalid SO

8 CLR 419

far as they apply to trade and commerce, as well as industry, other than that referred to in sec. 51 (1); but that sec. 15B of the Act of 1908 is valid.

Appeal of Huddart, Parker &Co. Propy. Appeal of Appleton dismissed. Solicitors, for the appellants, Malleson, Stewart, Stawell &Nankivell.

Solicitor, for the respondent, C. Powers, Commonwealth Crown Solicitor.

[HIGH COURT OF AUSTRALIA.]

THE KING v. THE COMMONWEALTH COURT OF

CONCILIATION AND ARBITRATION.

EX PARTE THE BROKEN HILL PROPRIETARY COM-

PANY LIMITED.

THE COMMONWEALTH OF AUSTRALIA INTERVENING. Jurisdiction of Commonwealth Court of Conciliation and Arbitration-Industria

dispute extending beyond the limits of one State-Undertaking carried on by one employer in two States-Relationship of employer and employé-Temporary cessation of work owing to dispute-Conditions precedent to jurisdiction- Acquiescence in jurisdiction by party seeking prohibition-Discretion of High April 14, 15, Court-Excess of jurisdiction-Matter not in dispute between the parties-Sub. 16, 19, 20, 21, mission of dispute by plaint-Prohibition guoad-Commonwealth Conciliation and Arbitration Act 1904 (No. 13 of 1904), secs. 19 (b), 38 (u) - The Constitu- tion (63 &64 Vict C. 12), sec. 51 (xxxv.), (xxxix.).

Where the employés engaged in different branches of one industry carried on in different States by a single employer take concerted action in making a