Strickland v Rocla Concrete Pipes Ltd

[1971] HCA 40

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.

STRICKLAND v. ROCLA CONCRETE PIPES LTD

(1971) 124 CLR 468

3 September 1971

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Law requiring certain agreements between trade competitors to be registered—Validity—Whether with respect to foreign corporations or trading or financial corporations formed within the Commonwealth—General provisions—Whether to be construed distributively in relation to constitutional heads of power—The Constitution (63 &64 Vict. c. 12), s. 51 (xx.)—Trade Practices Act 1965-1969 (Cth), ss. 7, 35, 3 6, 41, 42, 43—Acts Interpretation Act 1901-1964 (Cth), s. 15A.

Decisions

September 3.
The following written judgments were delivered: -
BARWICK C.J. The Parliament passed the Trade Practices Act 1965-1969 (Cth) ("the Act") as an Act, as its long title proclaims, "to preserve competition in Australian trade and commerce to the extent required by the public interest". The full scope of the Act is not limited by its express terms as to the persons upon whom it operates or as to the nature of the trade with respect to which their agreements or practices relate. Having regard to the terms of the Act it is plain enough that the Parliament entertained some hope that, in so far as its own legislative power did not extend, (and it was apparently conscious that it did not extend for the full scope of the Act) the States, or at least some of them, would complement the provisions of the Act by passing laws in substantially similar terms. Consequently the Act provides for the contingency that one or more of them might do. See s. 8. In the event of complementary State legislation operating with the Act, the draftsman has sought to avoid some of the problems of possible inconsistency and of possible liability under both statutory provisions. Clearly the Act cannot validly operate to the full extent of its terms. This would be still true even if the States or some of them had passed laws in terms identical with the substantive provisions of the Act. The form of the Act however in attempting to cover the event of complementary legislation has given rise to difficult questions as to its constitutional validity which have not proved easy of resolution. (at p480)

2. The respondents in these appeals, trading corporations formed in Australia were parties to certain agreements said to be examinable under the Act. The agreements related exclusively to trade within one State, namely the State of Queensland. The respondents were charged before the Commonwealth Industrial Court with having failed to furnish particulars of such agreements as required by s. 43 of the Act. As the agreements related entirely to aspects of intra-State trade legislative control of the respondents in relation to them was not within Commonwealth legislative power unless within the power granted by s. 51 (xx.). That Court dismissed the charge holding itself, properly as I think, bound by this Court's decision in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 . (at p480)

3. It was there decided that the legislative power of the Commonwealth did not extend to enable the Parliament to make a valid law controlling the intra-State trading operations of foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, that is to say, that a Commonwealth statute purporting to control and regulate those trading activities of such corporations was not a law "with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth" within the legislative power granted by s. 51 (xx.). (at p481)

4. It is claimed by the appellant that the Act ought so to be construed that it includes a valid law with respect to trading corporations within the operation of s. 51 (xx.) and that in consequence the respondents are bound by the various provisions of Pt IV of the Act. (at p481)

5. The Act, particulary in Pts IV, V and VI, purports to control the making of agreements and the pursuit of practices in the course of trade which impose and accept restrictions on the manner in which trade shall be carried on by persons carrying on businesses which are competitive. Monopolization of trade as defined is included as such a practice. There is no doubt that trading or financial corporations formed within the limits of the Commonwealth are included in the persons whose trading activities are thus sought to be controlled. But, apart from the possible effect of s. 7, they are not separately or specifically dealt with in and by the Act. I will refer to the provisions of those Parts which seem to me to be relevant for present purposes. (at p481)

6. Part IV of the Act begins at s. 35 which provides a specification of examinable agreements. It is in the following terms:

"35. (1) Subject to this Part, an agreement is an examinable agreement for the purposes of this Act if (either as originally made or by reason of a subsequent variation) it is an agreement the parties to which are or include two or more persons carrying on businesses that are competitive with each other and each of which is a business of the supply of goods or services, and is an agreement under which restrictions of any of the following kinds are accepted by one or more of those persons in relation to any such business, namely restrictions in respect of -

(a) the terms or conditions, whether as to prices or as to any other matter, upon or subject to which dealings may be engaged in;

(b) the concessions or benefits, including allowances, discounts, rebates or credit, that may be given or allowed in connexion with, or by reason of, dealings;

(c) the quantities, qualities, kinds or extent of goods or services that may be produced, acquired, held in stock or supplied, or the resources or methods that may be used, or the resources that may be acquired or maintained for use;

(d) the places in, to or from which goods or services may be supplied; or

(e) the persons or classes of persons who may be dealt with, or the circumstances in which, or the conditions subject to which, persons may be dealt with.

(2) For the purposes of this section, two or more businesses shall be deemed to be competitive with each other where the businesses are, in whole or in part, competitive with each other in relation to the supply or acquisition of goods or services (including acquisition of materials) or, but for any agreement of a kind referred to in the last preceding subsection, would be, or would be likely to become, so competitive, whether or not the businesses relate to the same kind of goods or services. (3) The agreements referred to in sub-section (1) of this section do not include an agreement the only parties to which are two or more corporations that are related to each other. (4) An agreement made before the date of commencement of this Act does not become an examinable agreement before the expiration of a period of thirty days from that date, and -

(a) if such an agreement is determined, by effluxion of time or otherwise, within that period, it does not become an examinable agreement; and

(b) if such an agreement is varied within that period, the variations shall be taken into account in determining whether the agreement becomes an examinable agreement at the expiration of that period."

Section 36 specifies the practices which are to be examinable. Section 37 defines monopolization for the purposes of the Act. Parts V and VI provide for the registration of examinable agreements and the examination of such agreements and of examinable practices. (at p482)

7. Section 42 requires particulars of an agreement which has become subject to registration under the Act to be furnished to the Trade Practices Commissioner ("the Commissioner") within thirty days of the date on which the agreement became liable to be registered. The Commissioner is to keep a Register of Trade Agreements: see s. 40. Section 41 specifies when an examinable agreement becomes registrable. Section 43 creates an offence of failing to furnish such particulars. Section 43 (1) and (3) are in the following terms:

"43. (1) If the requirements of the last preceding section are not complied with in respect of an agreement, every person who was a party to the agreement when it became subject to registration is guilty of an offence. . . . . (3) The penalty for an offence against this section is a fine not exceeding Two thousand dollars." (at p482)

8. Section 7 of the Act, which as will be seen is critical in considering the constitutional validity of the act, provides:

"7. (1) The restrictions referred to in section 35 of this Act, and the practices referred to in section 36 and Part IX of this Act, include restrictions and practices that are (whether exclusively or not) applicable to, or engaged in in relation to, or that tend to prevent or hinder, transactions, acts or operations - (a) in the course of trade or commerce with other countries or among the States;

(b) in or for the production, supply or acquisition of goods or services for, or goods or services required for, the purposes of any such trade or commerce;

(c) in or for the production, supply, acquisition or disposal of goods or other property, or services, by or to the Commonwealth or any authority or instrumentality of the Commonwealth;

(d) in a Territory, in respect of property in a Territory or in the course of any trade or commerce of a Territory; or

(e) in or for the production, supply or acquisition of goods or services for, or goods or services required for, the purposes of any trade or commerce of a Territory.

(2) The restrictions referred to in section 35 of this Act include restrictions, coming within the terms of that section, accepted under an agreement by a party to the agreement who is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth. (3) The practices referred to in section 36 and Part IX of this Act include practices on the part of a person who is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth. (4) The preceding provisions of this section shall not be construed as - (a) limiting the operation of this Act; or (b) excluding the application of section 15A of the Acts Interpretation Act 1901-1964 to this Act (including this section). (5) For the purpose of its operation by virtue of this Act
but without affecting its operation by virtue of a complementary State law, a determination or order made by the Tribunal shall be construed subject to this Act and so as not to exceed the powers of the Tribunal, to the intent that where the determination or order would, but for this section, have been construed as being in excess of the powers conferred on the Tribunal, it shall nevertheless be a valid determination or order to the extent to which it is not in excess of those powers. (6) In this section, 'trade or commerce of a Territory' means trade or commerce within a Territory, between a State and a Territory, between two Territories or between a Territory and a place outside Australia." (at p483)

9. Section 7A provides for the operation of the Act in relation to Tasmania in the event that the legislature of that State should refer to the Parliament a matter covering the subject matter of the Act. (at p484)

10. The appeals thus raise for this Court's decision three very important questions. The first question is whether this Court should now accept and act upon its former decision in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 . If this question is decided affirmatively the appeals must be dismissed. The second question is whether, if the Court is not prepared to accept that decision, the legislative power granted by s. 51 (xx.) extends so far as to authorize the making of a law requiring the registration of trading agreements of the kind described in s. 35 made by a trading or financial corporation formed within the limits of the Commonwealth and, in particular, requiring such a corporation to give particulars of such an agreement under penalty for failing to do so. The third question is whether, if that legislative power extends so far, the Act is a valid exercise of that power. This last question may involve the further question as to whether and, if so, how s. 15A of the Acts Interpretation Act 1901-1964 ("the Interpretation Act") operates upon and with respect to the construction of the Act or of any part thereof. (at p484)

11. I address myself to the first question namely - should this Court now accept its decision in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 as a correct construction of s. 51 (xx.) of the Constittution. I am clearly of opinion that it should not. However, out of respect for those Justices who formed the majority in deciding that case and having regard to the time which has elapsed since the decision was given, I should offer some analysis of the decision and state my reasons as concisely as possible for thinking that it was erroneous. The part of the decision which is relevant to the present appeal is the decision that ss. 5 (1) and 8 (1) of the Australian Industries Preservation Act 1906 (Cth) were invalid as being beyond the constitutional power of the Parliament. Section 5 (1) was in the following terms:

"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 competition 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."

Section 8 (1) provided as follows:

"Any foreign corporation or trading or financial corporation formed within the Commonwealth which monopolizes or attempts to monopolize or combines or conspires with any 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." (at p485)

12. Other provisions of the Australian Industries Preservation Act dealt with the restraint of foreign or inter-State trade and with monopolization of foreign or inter-State trade. As appears, ss. 5 (1) and 8 (1) were not limited to foreign or inter-State trade but extended to intra-State trade. (at p485)

13. The case was decided in the year 1909 at a time when the current doctrine of this Court was that the construction of the words of the Constitution by which legislative power is granted to the Parliament should be approached on the footing that there were certain legislative areas reserved by the Constitution to the States and that the Constitution should not be read as authorizing the Parliament to invade those areas unless as a necessary incident to the exercise of some granted power. This was the so-called reserved powers doctrine which was exploded and unambiguously rejected by this Court in the year 1920 in the decision of the Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") (1920) 28 CLR 129 . In applying the reserved powers doctrine to the construction of s. 51 (i.) the grant of power to make laws in respect to trade and commerce with foreign countries and among the States this Court adopted a view of the Supreme Court of the United States which treated the grant of power to the Congress in respect to trade and commerce with other countries and among the States as containing an express reservation to the legislatures of the States of power exclusively to deal with trade and commerce within a State. In Attorney-General (N.S.W.) v. Brewery Employees Union of New South Wales (1908) 6 CLR 469 Griffith C.J. applied this view of the Supreme Court of the United States. He said (1908) 6 CLR, at p 503 :

" . . . Consequently . . . the power to legislate as to internal trade and commerce is reserved to the State by the operation of s. 107 to the exclusion of the Commonwealth and this as fully and effectively as if s. 51 (i.) had contained negative words prohibiting the exercise of such powers by the Commonwealth 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' . . . . 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."

His Honour cited this passage in Huddart, Parker &Co. Pty. Ltd. v. Moorehead and said:

"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." (1909) 8 CLR, at p 352

The great impact this doctrine had in the construction of s. 51 (xx.) is obvious from this passage and from a general perusal of the reasons for judgment given in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 . The Court there sought to find some express provision of the Constitution either within or outside the words of s. 51 (xx.) which clearly and unequivocally authorized the Commonwealth to interfere with the carrying on of any business or trade within the boundaries of the States. Finding none, Griffith C.J. concluded (1909) 8 CLR, at p 354 :

"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." (at p486)

14. The influence of the doctrine of reserved powers is also readily seen in the judgment of Barton J. in which he says:

"Taking then sub-s. (xx.) to authorize the dealing with both classes of corporations on the same footing" (that is to say foreign and locally formed corporations) - "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 legislation with matters within the field of their internal or domestic trade?" (1909) 8 CLR, at p 363

His Honour could not construe the words of s. 51 (xx.) as constituting such an exception couched in clear and unambiguous terms. He therefore thought that the sections of the Australian Industries Preservation Act could only be supported if

" . . . the State field of commerce has only been entered incidentally to the execution of the power granted by sub-s. (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 corporations the subject of the grant." (1909) 8 CLR, at p 364

On examination his Honour concluded that the legislation could not be supported as merely ancillary to the execution of the power granted by par. (xx.). (at p487)

15. O'Connor J. says:

"We must, therefore, recognize at the outset that the Constitution, whilst empowering the Parliament of the Commonwealth to legislate with respect to foreign corporations and financial and trading corporations formed by the laws of any State, also vests in each State exclusive control over its own purely internal trade and commerce. The grant of power to the Parliament must thus be so construed as to be consistent as far as possible with the exclusive control over its internal trade and commerce vested in the State." (1909) 8 CLR, at p 370

So approaching the construction of s. 51 (xx.) his Honour concluded:

"The authority conferred by the subsection being thus restricted to making of laws with respect to corporations actually in being, it would appear to be plain that the field of legislation marked out for the Commonwealth Parliament extends no further than the regulation of the conditions on which corporations of the class described shall be recognized, and permitted to carry on business throughout the Commonwealth." (1909) 8 CLR, at p 371

Isaacs J. dissented and adopted an approach to the construction of the Constitution conformable to the subsequent decision of the Court in the Engineers' Case (1920) 28 CLR 129 . He thought ss. 5 (1) and 8 (1) to be valid because he construed the power of the Parliament as large enough to include the regulation of the conduct of foreign and trading or financial corporations formed within the limits of the Commonwealth in their transactions with or as affecting the Australian public. (at p488)

16. It is plain enough from a reading of the reasons given by the majority in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 that the influence of the then current reserved powers doctrine was so strong that the Court was driven to emasculate the legislative power given by s. 51 (xx.) and to confine it in substance to the statutory recognition of corporations falling within the terms of the paragraph and the fixing of the conditions upon which they might enter trade in Australia: for the rest, their trading activities in intra-State trade was a matter for the State legislation exclusively. (at p488)

17. The Court in the course of its judgment, decided that the expression in par. (xx.) "formed within the Commonwealth" was apt to include only corporations formed according to the laws of the States. But in this it seems to me their Honours were clearly wrong. There are powers granted to the Commonwealth as well as those left in residue to the States to which the formation within the Commonwealth of trading corporations might be referable. There is s. 122 granting legislative power with respect to the Territories. Section 51 (i.) for instance has been found a source of power to create a trading corporation. See Australian National Airways Pty. Ltd. v. The Commonwealth (No. 2) (1945) 71 CLR 115 . Corporations formed under any power by the Commonwealth or under Commonwealth legislation are clearly corporations formed within the limits of the Commonwealth. Had their Honours of the majority in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1) included these corporations in, rather than excluded them from, the ambit of par. (xx.) some of the difficulties which arise from their interpretation of par. (xx.) might have become apparent. (at p488)

18. I have had occasion recently to refer to the principles of constitutional construction definitively laid down in the Engineers' Case (1920) 28 CLR 129 and have no need here to repeat what I have written in Victoria v. The Commonwealth (1971) 122 CLR 353 . Section 107 of the Constitution so far from reserving anything to the States leaves them the then residue of power after full effect is given to the powers granted to the Commonwealth: and then subject to s. 109. Section 51 (i.) contains no explicit or implicit prohibition and does not reserve the subject of intra-State trade to the States. It can thus be seen that the earlier doctrine virtually reversed the Constitution. The question in relation to the validity of a Commonwealth Act is whether it fairly falls within the scope of the subject matter granted to the Commonwealth by the Constitution. That subject matter will be determined by construing the words of the Constitution by which legislative power is given to the Commonwealth irrespective of what effect the construction may have upon the residue of power which the States may enjoy. (at p489)

19. I therefore conclude that the reasoning of this Court in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 was in error and that it ought not be accepted now by this Court. The question then remains whether the Court's decision that s. 5 (1) and s. 8 (1) were invalid ought to be overruled. (at p489)

20. I have set out s. 5 (1) and s. 8 (1) of the Australian Industries Preservation Act. They were clearly laws regulating and controlling amongst other things the trading activities of foreign corporations and trading and financial corporations formed within the limits of the Commonwealth. In my opinion such laws were laws with respect to such corporations. They dealt with the very heart of the purpose for which the corporation was formed, for whether a trading or financial corporation, by assumption, its purpose is to trade, trade for constitutional purposes not being limited to dealings in goods. cf. Bank of New South Wales v. The Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1 . If the corporation is exercising its powers it will be carrying out trading operations and in that pursuit making agreements with others in matters of trade. Agreements to restrict trade or endeavouring to monopolize it are activities in trade with which the law has been familiar for centuries. Sections 5 (1) and 8 (1) in controlling such activities are in my opinion clearly laws with respect to the topic of s. 51 (xx.). I would conclude therefore that s. 5 (1) and s. 8 (1) were valid and that the Court's decision to the contrary in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 should be overruled. (at p489)

21. However, having regard to Sir Samuel Griffith's remark in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR, at p 345 and what was said in argument in these appeals I ought to observe that it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, from the validity of those sections, that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject matter of s. 51 (xx.). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law. Sections 5 (1) and 8 (1), in my opinion, were valid because they were regulating and controlling the trading activities of trading corporations and thus within the scope of s. 51 (xx.). But the decision as to the validity of particular laws yet to be enacted must remain for the Court when called upon to pass upon them. No doubt, laws which may be validly made under s. 51 (xx.) will cover a wide range of the activities of foreign corporations and trading and financial corporations : perhaps in the case of foreign corporations even a wider range than that in the case of other corporations : but in any case, not necessarily limited to trading activities. I must not be taken as suggesting that the question whether a particular law is a law within the scope of this power should be approached in any narrow or pedantic manner. (at p490)

22. We were invited in the argument of these appeals to set as it were the outer limits of the reach of the power under this paragraph of s. 51. This for my part I am not prepared to do : and indeed I do not regard the Court as justified in doing so. The method of constitutional interpretation is the same as that with which we have been long familiar in the common law. The law develops case by case, the Court in each case deciding so much as is necessary to dispose of the case before it.

"The limits of the power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example." : R. v. Burgess ; Ex parte Henry (1936) 55 CLR 608, at p 669 per Dixon J . (at p490)

23. Of course frequently in order to dispose of a case the Court must state and discuss general principles or express concepts which are of value in subsequent cases. But that is a very different thing from setting out to decide at one blow the full ambit of a constitutional power. Indeed, to my mind one of the fundamental errors into which the Court was led by the reserved powers doctrine when deciding Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 was the endeavour to do that very thing rather than merely to decide whether the law which it had before it was a law with respect to the topic of granted power. (at p490)

24. We were also invited in the argument of these appeals to express some criteria by which a law may be held to be a law with respect to the topic of s. 51 (xx.). But such a submission in my opinion both misconceives our function and fails to realize that the constitutional formula is sufficient in itself. Efforts I know have been made to offer synonyms and explanations of that formula but, with great respect to those who have made the endeavour, the result cannot be definitive. An assumption of the Constitution in providing this Court as the arbiter of constitutional validity was that the Court would be able on being presented with a law made by the Parliament to answer the direct question whether properly construed and understood it was law with respect to one or more of the granted heads of power. The Constitution itself provides the criterion of validity: the law must be with respect to a topic of granted power. For my part the formula requires no explanation: in any case, it is the text and no commentary upon it however helpful may displace it. The constitutional formula requires a substantial connexion between the topic and the law. What will suffice in any particular instance to require an affirmative answer to the question whether it is a law with respect to the subject matter necessarily involves a matter of degree co-related to the nature of the power and to the provisions of the Act as they would operate in the area in which it is held they were intended to operate. As I have indicated, I have myself no difficulty whatever in saying that ss. 5 (1) and 8 (1) were laws with respect to, amongst other things, trading corporations formed within the limits of the Commonwealth. (at p491)

25. My conclusion, that ss. 5 (1) and 8 (1) of the Australian Industries Preservation Act were valid, answers the second of the questions which earlier I thought were raised by these appeals. A law requiring the registration of trading agreements restrictive of trade to which a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth is a party, and requiring the corporation to give particulars of such an agreement under penalty of a fine for failing to do so, appears to me clearly to be a law with respect to corporations of the kind described. As I have said, the making of such an agreement in the course of trade is truly a trading activity. Such a law is a law regulating and controlling the trading activities of such corporations. It would in my opinion clearly be within the legislative power of the Parliament granted by s. 51 (xx.) : as also would be the other substantive provisions of the Act if enacted with respect to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth. (at p491)

26. There remains the third of the questions and one which I have found much more difficult than those on which I have so far expressed myself. The question is, has the Parliament in the Act made such a law as I have described, namely a law which regulates or controls the trading activities of foreign corporations and trading and financial corporations formed within the limits of the Commonwealth either as the exclusive operation of its enactment or along with its operation on other persons and matters within the Parliament's constitutional competence? That question, in turn, resolves itself into two questions, (i) can what the Parliament has enacted be so construed as to disclose such a law? (ii) did the Parliament intend such a law? The premise is that the law as enacted is to the full extent of its intended operation beyond the legislative power of the Parliament. (at p492)

27. In the resolution of these questions we are not left without both general and, as I think, also a particular expression of parliamentary intention : for we must read as part of the Act s. 15A of the Interpretation Act. The particular intention I find in s. 7. Before construing the Act in order to ascertain whether the Parliament by it has enacted, amongst other things, a law comparable in substance to ss. 5 (1) and 8 (1) of the Australian Industries Preservation Act, I should say something of s. 15A of the Interpretation Act. Though we have become familiar with its terms and accustomed to its use, it is in its nature an extraordinary provision. The Parliament cannot direct this Court to give to statutory words which by its enactments already have a legal meaning, some other meaning, though an amendment of the law can be effected by the Parliament by an enactment deeming such words to have a different meaning for the future : or, where retrospective legislation is permissible, deeming them to have had the changed meaning as from a past date. Such a form of expression is in reality a form of amendment of the law. (at p492)

28. But the Parliament can when enacting a law place its own meaning upon the words it uses and the Court is bound to give effect to the parliamentary intention. It can do this by a standing expression of intention apart from merely defining words and phrases which must be treated as part and parcel of the enactment of substantive provisions. Thus, it is, I think, important to remember that the expression of intention found in s. 15A is part of the Act now under consideration and the Act may not be construed without regard to that expression of intention and the direction it contains. As part of the Act it is as binding on judicial tribunals as the substantive provisions of the Act. Isaacs C.J. observed upon this feature of s. 15A in Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319, at pp 373-374 . He said :

"That section" (15A) "has been proclaimed. That section, since the proclamation, is a declaratory enactment, applying to every Commonwealth statute whenever passed. It is a direction binding all strictly judicial tribunals - for they alone have the constitutional duty or power of determining the validity or meaning of a statute - that every Commonwealth Act 'shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth'. That portion of the section is a direction to every Court - to this Court in the present case - to disregard any portion of the statute that is invalid as exceeding the legislative powers of the Commonwealth. The second part proceeds to a further process of construction, namely, "To the intent that where any enactment . . . would, but for this section, have been construed as being in excess of that power'

- as, for instance, s. 33 or s. 34 - 'it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power'. That is to say, if, after discarding all excess exercise of legislative power, there remains any legislation that is within that power, the valid portion stands and must be given effect to."

But of course if the substantive enactment is single and indivisible, there can be no other legislative intention than to make the law so expressed. As it has been said, in such a case the Court is not required to legislate: Australian Railways Union v. Victorian Railways Commissioners, per Rich, Starke and Dixon JJ. (1930) 44 CLR, at p 386 . Indeed, in no case can the Court be required to legislate nor should it do so. Further, where the enacted words are capable of division or distribution, the reduced form of the enactment which results must operate upon the persons and things affected by it in the same manner as the enacted words would have operated upon those persons and things had Parliament had the legislative power to have validly passed the enactment. In such a case, it cannot be accepted that the Parliament intended an Act with a different operation upon or with respect to such persons and things. Again, the reduced form or operation of the Act must result in a "consistent workable and effective body of provisions". But within such limits, the parliamentary expression that it intends to enact any law within any of its powers which emerges by construction from the enacted words, notwithstanding any invalidity in parts of the enactment, is imperative. (at p493)

29. In addition to the expression of legislative intention found in s. 15A there is in this enactment a further expression of such intention in s. 7. Whether or not effect can be given to it, a matter to which I shall shortly turn, there can be no doubt that the Parliament intended to enact its substantive provisions in relation to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth. But in expressing its particular intention in s. 7 the Parliament has said that it also intends its enactment to operate to the full extent of its legislative power. That, in my opinion, is the effect of s. 7 (4). The presence of sub-ss. (1), (2) and (3) of that section are not to be taken as necessarily confining the operation of the Act to those persons and that trade to which they direct attention. On the other hand, the presence and operation of those subsections is not to preclude the operation of s. 15A. (at p494)

30. I turn now to the construction of the Act, containing as it does both s. 15A and s. 7, aided by the views of the Justices of the Court who have dealt with the use to be made of s. 15A. See particularly, Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at pp 369-372 per Dixon J . Perhaps I should first observe, that if the Act can be construed as enacting that foreign corporations and trading and financial corporations formed within the limits of the Commonwealth shall give particulars of restrictive agreements to which they are parties, that law will operate upon and with respect to such corporations and such agreements to which they are parties in precisely the way in which the Act as enacted would have operated if it had been wholly valid. Thus one of the difficulties at times encountered in the use of s. 15A is not here present. (at p494)

31. Further if such a law can be evoked by construction of the Act there can be no doubt that the Parliament intended to enact it. Section 7 (1) removes any such doubt. Lastly, such a law standing by itself could not, in my opinion, be said not to be a consistent or workable legislative scheme. (at p494)

32. I then turn to examine the possibilities of the construction of the Act. It is essential in this connexion to determine what s. 7 achieves when read with s. 35. I should add that without s. 7 the Act could not in my opinion be construed into validity. (at p494)

33. Although s. 42 read with s. 43 places an obligation upon all the parties to an agreement to ensure that the required particulars of the examinable agreement are furnished to the Commissioner within the prescribed time, it is s. 35, in particular s. 35 (1) which, in specifying the elements of an examinable agreement, is relevantly the focal section in the process of construction. It is important, therefore, first to observe the structure of that section. Its function, as I have said, is to furnish the criteria of an examinable agreement. Other provisions require its registration and provide for its examination. The elements of such an agreement according to the section are: (i) parties whose businesses are competitive in trade, and (ii) provisions which impose trading restrictions of one or more of the particular kinds set out in pars. (a) to (e) inclusive of sub-s. (1). (at p495)

34. Nothing in s. 35 (1) restricts its operation to persons of any particular class or description or limits the trade to which the restrictions relate to any particular form of trade. On the other hand, nothing in the section in my opinion denies the possibility of "disintegrating" the parties whose agreements may be examinable into classes of persons which in total exhaust the generality of the section. Nor is there anything in the section in my opinion which forbids its application in a distributive fashion over the classes of trade which are constitutionally significant. Though it may be conceded that the Parliament has wittingly made a law beyond its legislative competence, there is nothing in s. 35 or, for that matter, elsewhere in the Act which, in my opinion, would indicate that the Parliament intended an operation of the Act to its full enacted extent or not at all. Again, apart from s. 15A, the presence and terms of s. 7 preclude such a conclusion. But, having said so much, it must be observed that s. 35 (1) is a single undivided provision. Whilst, as I have said, nothing in the section precludes a disintegration or a distribution of its elements, without the presence of s. 7 (1) (a), the Court in my opinion would not be warranted in treating the restrictions as subdivisible into restrictions in relation to the various forms of trade which are constitutionally significant; nor the persons into foreign corporations and trading and financial corporations and others. Of course, the Act would operate with respect to restrictions relating to foreign and interState trade and upon foreign corporations and trading and financial corporations. But the fact that such persons and restrictions fall within the operation of the Act as enacted does not warrant the conclusion that the Act is a law with respect to that trade or those persons and to that extent valid. (See Pidoto v. Victoria (1943) 68 CLR 87, at pp 108-109 per Latham CJ .) We are here concerned to find by construction an enactment of the Parliament which is upon a topic of granted power. (at p495)

35. I turn now to s. 7. It is not a definition section. Its terms cannot simply be applied to some word or expression in the substantial provisions of the Act in order to give that word or expression a particular meaning. It contains, however, as I have said, an expression of parliamentary intention. But, does it do more? When read with s. 35 (1) does it achieve what might be regarded as a series of enactments, one of which is a law with respect to inter-State trade, and another a law with respect to corporations formed within the limits of the Commonwealth which can operate side by side within the section? (at p496)

36. Section 35 (1) nominates the restrictions the presence of which in an agreement will make it examinable. Section 7 (1) (a) says that the restrictions there referred to "include" restrictions of the described kind which, speaking broadly, relate to foreign or inter-State trade. Then in the presence of s. 7 (1) (a) we do not merely find that restrictive agreements relating to foreign and inter-State trade are within the operation of s. 35 (1); we find the Parliament enacting that the substantive provisions in s. 35 (1) are to apply to restrictions relating to foreign and inter-State trade and commerce. In my opinion, this is the proper meaning and effect to be given to the "inclusion" by s. 7 (1) (a) of such restrictions in those specified in s. 35 (1). It is not difficult in my opinion to read s. 7 (1) (a) with s. 35 (1) to achieve a law within the ambit of s. 51 (i.). If the restrictions are so limited every other part of s. 35 (1) can apply because the limitation of the restrictions to those relating to foreign and inter-State trade is enought to reduce s. 35 (1) in that respect into validity. If s. 7 contained no other provisions than s. 7 (1) (a) the Court in my opinion could construe, and under the requirement of s. 15A, should construe the enactment as containing a valid law with respect to foreign and interState trade. But there are further provisions in s. 7 notably for present purposes s. 7 (2). I turn to consider the impact of that subsection. (at p496)

37. But before doing so, I should notice a submission much pressed upon us in the argument of this appeal, namely, that the only relevant use of s. 15A is to enable the reduction in the ambit of, or the distribution of, the terms of an Act which as enacted can be seen to be an attempt by the Parliament, though ineffective, to exercise legislative power under a particular paragraph of s. 51, so that it is a valid Act on that subject matter. In other words, if the enactment appears to be an attempt to make a law on interState trade, s. 15A can only be used to so construe the enactment that it is a valid law under s. 51 (i.). In my opinion, this is an erroneous proposition and springs from a misunderstanding of s. 15A and of its use. In the first place, the validity of an Act is to be determined by this Court and an Act will be valid if it is with respect to any legislative power of the Parliament. It matters not what power the Parliament thought itself to be exercising. In the second place, s. 15A requires any law which can be seen in the enactment by construction, if with respect to any head of legislative power, to be treated by the Court as valid, subject of course to the various considerations to which I refer elsewhere in these reasons. The need to find a law by construction which operates in the same way upon and with respect to persons and things as the enactment, if valid, would have done does not mean that the Act as so construed must be upon any particular head of legislative power. The submission, in my opinion, should be rejected. (at p497)

38. A law with respect to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth in order to be valid does not need to be limited in its operation to foreign or inter-State trade. Thus, the effect of s. 7 (1) (a) apart, there need be no limitation upon the restrictions described in s. 35 (1) in order that the section should be a law with respect to the topic of s. 51 (xx.). It is the generality of the description of the parties to the examinable agreements and not the nature of the trade to which the agreement relates which is relevant in relation to s. 51 (xx.). Section 7 (2) purports to include in the examinable agreements to which s. 35 (1) refers, agreements to which foreign corporations and trading and financial corporations formed within the limits of the Commonwealth are parties. It seems to me therefore if there had been no other provision in s. 7 than s. 7 (2) it would have been proper to limit the operation of s. 35 (1) to agreements to which such corporations are parties, treating its application to all other parties as an invalid excess and giving the enactment no other valid operation than as a law with respect to the topic of par. (xx.) of s. 51. (at p497)

39. But s. 7 does not merely contain s. 7 (1) (a) or s. 7 (2). It contains both and, indeed, contains more than both, provisions, though what I am about to say would be true even if those were the only provisions of s. 7. It seems to me, that whilst the conclusions I have expressed would have been proper and indeed required by s. 15A, looking at s. 7 (1) (a) or s. 7 (2) separately as if each were the only provision made by s. 7, the same cannot be said when both provisions are part of s. 7. Of course, an application of s. 15A may educe from an enactment more than one law, and indeed laws in exercise of different heads of power. But in such a case, those laws must be able to co-exist in the enactment. (at p497)

40. In the case of a law resulting from the application of s. 7 (1) (a) the restrictions would be limited to those relating to foreign and inter-State trade. However, in the case of a law resulting from the application of s. 7 (2) the relevant restrictions would not be so limited. The suggested use of s. 7 as a whole thus produces incompatible results. Section 35 (1) cannot at the same time apply to all trade and only to foreign and inter-State trade. As I have observed, s. 35 (1) is a single provision and not an aggregate of subparagraphs. In my opinion, s. 35 (1) cannot be "disintegrated" by the use of s. 7 into a series of paragraphs each dealing with one of the categories indicated in s. 7 with a residual paragraph to cover the cases not covered in the other paragraphs. Further the Court would not be justified in using s. 7 (1) (a) and s. 7 (2) with s. 35 (1) to construct a provision that the parties to a relevant agreement should be (a) parties engaged in relation to that agreement in foreign or inter-State trade and (b) parties one or more of whom is a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth. This would not be a permissible method of avoiding the consequence that the restrictions of which s. 35 (1) speaks would by the application of both s. 7 (1) (a) and 7 (2) at the same time include restrictions which relate only to foreign and inter-State trade and restrictions which relate to all trade. To do so would in my opinion, be legislating and not construing. Such a course is clearly outside the Court's function. (at p498)

41. Further, if a law on foreign and inter-State trade and a law on foreign corporations and trading and financial corporations cannot both be derived properly by construction from the enactment, the Court has no means of deciding which one of the two laws was intended by the Parliament to be its Act. (at p498)

42. I have not drawn particular attention to the provisions of s. 7 (1) (b) and (c) and s. 7 (3). Their presence only seems to exacerbate the difficulties which are caused as I think by the co-existence of s. 7 (1) (a) and 7 (2). (at p498)

43. Further, I have not specifically dealt with the provisions of s. 36. But like reasoning as I have used with respect to s. 35 would in my opinion produce a like result in relation to that section. (at p498)

44. After much consideration, I can see no way in which s. 35 (1) can be construed with both s. 7 (1) (a) and s. 7 (2) to produce a law upon foreign and inter-State trade and at the same time a law with respect to foreign corporations and trading and financial corporations. (at p498)

45. Therefore performing to the full the duty which I conceive to be imposed upon me by s. 15A, I am unable so to construe the Parliament's enactment as to disclose a law with respect to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth. Therefore though I am clearly of opinion that the Parliament could have made a valid law in the terms of the Act specifically limited either as the sole or as a separate part of its operation to agreements made or practices followed by such corporations, I am of opinion that it has not done so. Indeed, because of the manner in which the Parliament has expressed its enactment, the Act is in my opinion wholly invalid. It purports to impose obligations upon all persons who make the agreements or follow practices of the described kind in relation to all forms of trade and its terms are incapable of being construed in any more limited sense. (at p499)

46. Accordingly for this reason, these appeals should be dismissed. (at p499)

McTIERNAN J. I agree in the judment of the Chief Justice, so far as it relates to the decision in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 and to the scope of s. 51 (xx.) of the Constitution. With respect, I do not agree in the conclusion reached by the Chief Justice with regard to s. 35 of the Trade Practices Act 1965-1967 (Cth). (at p499)

2. Having regard to the relationship of sub-ss. (1) and (2) of s. 7 to s. 35 it is not possible to say that s. 35 is beyond the constitutional power of the Commonwealth because its application is limited to the extent of the operation of sub-ss. (1) and (2). Each of these is a valid exercise of constitutional power, the latter, of course, of the power granted by s. 51 (xx.). (at p499)

3. I am of opinion that it is implicit in the scheme of legislation consisting of sub-ss. (1) and (2) of s. 7 and s. 35 that the references to restrictions in s. 35 should be assigned distributively to the several situations specified in pars. (a), (b), (c), (d), (e) of sub-s. (1) and in sub-s. (2). (at p499)

4. In my opinion, there is no constitutional obstacle to the proceedings brought against the respondents. The appeals should therefore be allowed. (at p499)

MENZIES J. Each respondent was charged in the Commonwealth Industrial Court with an offence against s. 43 of the Trade Practices Act 1965-1969 (Cth) in that it was a party to an agreement made on 11th April 1969 with the other respondents concerning the supply of concrete pipes in the State of Queensland which agreement was subject to registration under Pt V of the Act and the requirements of s. 42 of the Act were not complied with in that particulars of the agreement were not furnished to the Commissioner of Trade Practices. The charges were heard together as were these appeals. (at p500)

2. Each charge was dismissed on the ground that, so far as the Trade Practices Act seeks to place obligations on companies which entered into agreements concerned solely with intra-State trade, it is not a valid exercise of Commonwealth legislative power. (at p500)

3. The informant in each case sought the leave of this Court to appeal from the orders dismissing the charges. That leave has been granted. The only question for decision upon these appeals is whether the Act does validly impose obligations upon the respondents with regard to an agreement which relates solely to intra-State trade. (at p500)

4. By virtue of s. 43 of the Act a person party to an agreement becoming subject to registration is guilty of an offence if the requirements of s. 42 are not complied with in respect of that agreement. (at p500)

5. Section 42 provides that, when an agreement has become subject to registration, particulars of it must be furnished as required within thirty days after it became subject to registration. (at p500)

6. Section 41 makes an examinable agreement subject to registration. (at p500)

7. An examinable agreement is defined by s. 35. It is an agreement between two or more parties being persons carrying on competitive businesses supplying goods or services whereby one or more of such persons in relation to any such business accepts restrictions in respect of any of the matters lettered (a) to (e) therein. To take one instance, (a) relates to restrictions in respect of the terms or conditions, whether as to prices or as to any other matter, upon or subject to which dealings may be engaged in. For present purposes it is to be assumed that the agreement of 11th April 1969 is an agreement within the terms of this section. (at p500)

8. Section 7 is an odd provision which, so far as is relevant, must, I think, be set out in full:

"7. (1) The restrictions referred to in section 35 of this Act . . . include restrictions . . . that are (whether exclusively or not) applicable to, or engaged in in relation to, or that tend to prevent or hinder, transactions, acts or operations - (a) in the course of trade or commerce with other countries or among the States;

(b) in or for the production, supply or acquisition of goods or services for, or goods or services required for, the purposes of any such trade or commerce;

(c) in or for the production, supply, acquisition or disposal of goods or other property, or services, by or to the

Commonwealth or any authority or instrumentality of the Commonwealth;

(d) in a Territory, in respect of property in a Territory or in the course of any trade or commerce of a Territory; or

(e) in or for the production, supply or acquisition of goods or services for, or goods or services required for, the purposes of any trade or commerce of a Territory.

(2) The restrictions referred to in section 35 of this Act include restrictions, coming within the terms of that section, accepted under an agreement by a party to the agreement who is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth.

. . . . .

(4) The preceding provisions of this section shall not be construed as - (a) limiting the operation of this Act; or (b) excluding the application of section 15A of the Acts Interpretation Act 1901-1964 to this Act (including this section)." (at p501)

9. This section does no more than afford several glimpses of the obvious. Section 35 is couched in quite general language and the transactions particularized in s. 7 (1) are, without any aid from that subsection, within the scope of s. 35. Had s. 7 (1) stood by itself, a court, in order to give it some operation, might perhaps have read it as intending to restrict the generality of s. 35, but s. 7 (4) provides expressly that it shall not be construed as limiting the operation of any part of the Act. Furthermore, that subsection enacts, but without any substance, that s. 7 (1) shall not be construed as excluding the operation of s. 15A of the Acts Interpretation Act 1901-1964 (Cth). But how could it do so? That section is concerned with reading down legislation so that it will not be in excess of constitutional power; s. 7 (1) does no more than say that certain particular things shall be within general words which, of themselves, comprehend those particular things. It is of the same order of significance as a statement that the word "men" includes men six feet tall but is not restricted to men of that height. Section 7 does not add to or detract from s. 35 and the validity of ss. 35, 41, 42 and 43 has to be determined, so far as I can see, without any assistance from s. 7 which neither adds to nor detracts from the provisions of the Act that here fall for consideration. If the role of s. 7 is to encourage the courts to apply s. 15A, that encouragement is unnecessary and the section is merely surplusage. (at p501)

10. The Parliament of the Commonwealth has no express power to control restrictive trade practices, although it may, of course, exercise control over such practices by laws otherwise within its legislative power. Here, as I follow the argument, it is conceded that s. 35, although expressed in quite general terms, cannot validly apply, for instance, to an agreement made between individuals imposing trading restrictions in relation to their trading with the public intra-State. It is claimed, however, that the section and the later sections can validly apply to an agreement made between companies imposing trading restrictions in relation to their trading with the public intra-State because of the power which Parliament has by virtue of s. 51 (xx.) of the Constitution to make laws with respect to "Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". (at p502)

11. Each of the respondents here is a trading corporation formed within the limits of the Commonwealth. (at p502)

12. It is the contention that s. 51 (xx.) supports the Trade Practices Act in relation to the charges against the respondents which the Industrial Court rejected on the authority of Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 . This Court decided in 1909 that s. 51 (xx.) did not confer a power to make laws regulating the carrying on by a company of business within its corporate powers. (at p502)

13. I propose to defer consideration of Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 for the time being and to consider first whether ss. 35, 41, 42 and 43 of the Trade Practices Act can properly be described as a law with respect to trading corporations formed within the limits of the Commonwealth, however wide a meaning may be given to those words, and, whether or not the sections are given their natural meaning or are reduced by construction by virtue of s. 15A of the Acts Interpretation Act. This is in the following terms:

"15A. Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." (at p502)

14. If ss. 35, 41 and 42 of the Act are examined as they stand, there appears to me to be no ground for concluding that they are laws with respect to trading corporations formed within the limits of the Commonwealth. They are laws with respect to trade which apply to any person party to an agreement of the kind specified. A law is not to be described as with respect to the various persons or classes of persons upon whom it casts obligations. A criminal law of general application is neither a law with respect to all persons to whom its command goes, nor to such of those persons as happen to be criminals. It is properly described simply as a criminal law, i.e. a law making certain conduct criminal. So it is in other cases. It would, I think, be highly artificial to regard ss. 35, 41, 42 and 43 as laws with respect to the persons bound by them. Every person is bound by them if he brings himself within their terms. They are laws which bind everybody but they are not laws with respect to everybody. (at p503)

15. At this point it is necessary to return to s. 15A of the Acts Interpretation Act which applies to ss. 35, 41, 42 and 43 without any aid from s. 7. (at p503)

16. That section does not enable a law with respect to one matter to be construed as a law with respect to another matter in order to bring it within legislative power. The section does not authorize the judicial conversion of one law into another law. It provides a rule of construction of Parliament's enactment: Pidoto v. Victoria (1943) 68 CLR 87, at pp 88 and 89 . Let it be supposed that a law of the Commonwealth makes it an offence for any person to be in debt in a sum exceeding $100,000. That law would be invalid and could not, by an application of s. 15A, be read as applying to any person who is bankrupt in order to have the support of the power to make laws conferred by s. 51 (xvii.) so that it would validly apply to bankrupts. This, I think, is the point of the observations made by Dixon J., as he then was, when in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at pp 354 and 372 , his Honour made the following observations about a provision of the same sort as s. 15A, viz. s. 6 of the Banking Act 1947 (Cth):

"Can s. 6 not only require that provisions, although prima facie interdependent, should be construed as divisible and be separated accordingly, but also supply a new scope and object to the separated provision, a new purpose or relevance or, in other words, place it upon a fresh constitutional basis? It is to this question that I referred when I said that there arose concerning the operation of s. 6 in respect of s. 13 a curious and difficult question. My answer to it is that if s. 13 is to be segregated from ss. 17-19 in obedience to s. 6, it still remains necessary to refer it to the same constitutional basis of power. It is not open to ascribe fresh purposes to it, find another possible relevance to the subject. To do so would mean giving the provision a new operation for the purpose of saving it.

. . . . .

The Court has gone very far as a result of s. 15A and in spite of the difference in form of par. (a) of s. 6, I doubt whether the paragraph in any way extends the operation of the rule of construction as we have applied it. Paragraph (c) of s. 6, however, is a very distinct extension of the doctrine of the Court. At first sight it may seem to express the somewhat disconcerting intention that the Court, having ascertained at what points the Act as passed offends against the Constitution, should then undertake the task of reframing it from the fragments that might remain. But a closer examination of the paragraph shows that it does not attempt an inadmissible delegation to the Court of the legislative task of making a new law from the constitutionally unobjectionable parts of the old. The point at which the paragraph applies is in effect when it is found how much of the Act is necessarily inconsistent with the Constitution. Then, if it appears that the Act, with those parts excised, would have a different effect in substance, the paragraph declares that that consideration shall not be enough in itself to displace the application of the directions or statement of intention contained in s. 15A or in par. (a) of s. 6. It does not assume to require the Court to give to any provision a different meaning or even operation from that which it possesses as it stands in the statute read as a whole. What it is concerned with is the consequences which the same immediate operation resulting from the fixed meaning of the Act will produce upon acts, matters and things it covers. Section 6 (c) may be said to express an intention that, however much amputation and excision may be necessary, what is left of the Act shall be law, but it does not say that it shall be submitted to plastic surgery. In any case s. 6 is a declaration of intention that provides a guide in ascertaining whether any given provision is, according to the true meaning of the enactment, conditional upon the valid operation of another. But in the nature of things it cannot be more than a guide. In the end the extent to which any part of the enactment held to be bad is inoperative must depend upon the real intention of the legislature in relation to the particular situation resulting from the invalidity found to exist." (at p504)

17. Furthermore, s. 15A does not require more than that an Act shall, notwithstanding that it is in part in excess of legislative power, be read as a valid enactment to the extent to which it is not in excess of that power. It does not turn an Act which is invalid, as being wholly outside legislative power, into an Act which is, in part, within power. In Pidoto v. Victoria (1943) 68 CLR, at p 111 , Latham C.J. said:

". . . where there are general words or expressions which apply both to cases within power and to cases beyond power, then if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character. In such a case also it would be necessary to consider whether such reading down would alter the policy or operation of the statute with respect to the cases which, after the reading down, would still remain within its terms. But if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid. In such a case the law cannot be saved by the Acts Interpretation Act." (at p505)

18. In my opinion s. 43, as it stands and without s. 15A, has no valid operation at all. As I have already indicated, I do not regard this and the related sections as being in part laws with respect to each subject matter about which the Parliament could, if it had chosen to do so, have made a law requiring a limited class of people to register agreements. Of course Parliament could, had it seen fit to do so, have made a law forbidding restrictive trade practices in relation to trade or commerce with other countries or among the States as was done by s. 4 (1) of the Australian Industries Preservation Act 1906 (Cth). The point here is that Parliament has not done so by the sections under consideration. (at p505)

19. What then is the effect of s. 15A here? That section, in my opinion, does not turn one invalid law into a number of valid laws. It merely preserves the validity of so much of an invalid law which is severable as would be valid had it been enacted otherwise than in association with matter in excess of power. To make the point it may be asked how, by a process of construction - which is all that s. 15A directs - can ss. 35, 41, 42 and 43 be read as requiring the registration of agreements relating to trade and commerce with other countries or among the States. Would, for instance, it be sufficient if one party to the agreement were to be engaged in such trade? If so, what is the position of the other parties? More fundamentally perhaps, what form would the sections take if they were to be construed as applying to persons engaged in trade with other countries or among the States, and to aliens, and to whoever else may in any circumstances fall within the scope of Commonwealth legislative power? Section 15A does not give a chameleon-like quality to all Acts of Parliament so that if the question arises whether one person is bound thereby it is only necessary to see whether the Commonwealth, by a different law, could bind that person. The point may be illustrated by a reference to the Banking Act 1947. Some provisions of that Act, held invalid, might well have been valid had they been in terms limited to banking in so far as it was not inter-State trade. If the law had taken that form s. 92 of the Constitution would probably not have affected the validity of the Act. It was not thought, however, that, by reason of s. 6 of that Act and s. 15A of the Acts Interpretation Act, s. 46 of the Banking Act 1947, for instance, could or should have been read as a law validly prohibiting banking business in Australia other than banking business forming part of inter-State trade or commerce. The simple reason for this is that Parliament did not so provide. What s. 46 provided for was the prohibition of all banking business in Australia, and s. 15A and s. 6 of the Banking Act did not warrant reading down that single prohibition so as to bring it within power to a limited but undefined extent. It is for Parliament to make laws and the courts' only authority is to interpret them and apply them. Parliament cannot direct courts to reconstruct out of the ruins of one invalid law of general application a number of valid laws of particular application. Section 15A has never been regarded as an attempt to do this. There is another difficulty in the application of s. 15A in the way that the AttorneyGeneral has argued that it should be applied. Section 43, for instance, would, upon his submission, impose an obligation upon a corporation party to an agreement, but would it impose a like obligation upon an individual entering into a restrictive agreement with a corporation in relation to intra-State trade only? It was virtually conceded that s. 43 could impose no obligation arising out of an agreement between individuals relating solely to intraState trade. What power, it may be asked, would support the application of s. 43 to an individual so contracting with a company? Does s. 15A enable the provisions of the Act to apply to agreements so far as one party is concerned but not another? Difficulties of this sort cannot be conclusive but the host of difficulties that would arise, were s. 15A to be applied in accordance with the submission of the Attorney-General, lends support to a conclusion, formed on the more fundamental grounds that I have already stated, that the Attorney-General is claiming too wide an operation for s. 15A. (at p506)

20. I am unable to accept the proposition that s. 15A operates give limited validity to the provisions of ss. 35, 41, 42 and 43 so that they validly apply to an agreement such as that here under consideration. In my opinion these sections cannot be supported by s. 51 (xx.) of the Constitution as laws with respect to trading corporations formed within the limits of the Commonwealth. (at p507)

21. This conclusion would, of itself, require the resolution of these appeals in favour of the respondents, but, as it may be that all members of the Court do not share my opinion, I consider it necessary to go further and to face the question of the validity of the sections upon an assumption. That assumption is that s. 15A does authorize the Court to extract from ss. 35, 41, 42 and 43 a law of limited scope to the effect that any foreign corporation or trading or financial corporation formed within the limits of the Commonwealth, which is party to an agreement of the sort described in s. 35, commits an offence if it does not furnish particulars of that agreement in the manner provided. The question would then arise whether such a law would be a valid exercise of the legislative power of the Parliament. (at p507)

22. This brings me to the scope of s. 51 (xx.) of the Constitution and to Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 . (at p507)

23. In the first place I will consider s. 51 (xx.) as it stands in the Constitution. (at p507)

24. It is one of a number of matters enumerated in s. 51 as subject matters with respect to which Parliament has been given power to make such laws as it thinks fit subject to the Constitution. Each subject of enumeration is not exclusive of the others and a limit upon one cannot be inferred merely from the existence of another of more particular scope. Nevertheless, when there is to be found a limit in the definition of one subject matter the others should not be construed as enabling Parliament, by legislation on a different subject matter, to override that express restriction. Of this s. 51 (xxxi.) provides the simplest example, but in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1 there is to be found another example, namely a limitation upon s. 51 (xx.) arising from the terms of s. 51 (xiii.). For the most part, subject matter is expressed impersonally; indeed, it is only in pars. (xix.), (xx.) and (xxvi.) that the subject matter is persons. Each of these paragraphs presents its own problems. For instance, can Parliament, by legislation under par. (xix.), provide widowers' pensions for aliens notwithstanding that par. (xxiiiA.) does not authorize the provisions of widowers' pensions? Again, could Parliament, by a law under par. (xxvi.), make, if it thought necessary, laws governing all the trading activities of people of particular races? Again, could Parliament, notwithstanding the limitations in par. (xxxv.), make a law for the settlement of industrial disputes between corporations and their employees in the course of interState trade? In a measure the very generality of a subject matter defined by reference to persons of a particular description provokes the question whether it is intended that the Parliament should have the power to make any laws outside constitutional prohibitions with regard to persons of these descriptions. Is any law commencing "Every alien shall . . ." a valid law? I do not think it is necessary here to determine whether the Attorney-General's affirmative submission is correct because all we are here concerned with is a law relating to the trading of trading corporations formed within Australia. Prima facie such a law is within power. (at p508)

25. However, the problem which I am now considering did arise in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 and by its decision in that case this Court did severely restrict the ambit of s. 51 (xx.). There s. 5 of the Australian Industries Preservation Act 1906 was held to be invalid. It was in these terms:

"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 competition 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." (at p508)

26. Griffith C.J. and Barton J. decided that s. 51 (xx.) did not confer on the Parliament power to control the operations of the corporations there described which lawfully engaged in trade and commerce. O'Connor J. decided that s. 51 (xx.) did not confer power to make laws for controlling the business of corporations which are recognized by law and are exercising their corporate functions by carrying on business. Higgins J. decided that s. 51 (xx.) did not confer power to regulate the contracts into which corporations may enter within the scope of their powers. (at p508)

27. So much for the negative aspect of the decision. The majority of the Court went further, however, and did not indicate what laws s. 51 (xx.) did empower Parliament to make. Thus Griffith C.J. and Barton J. thought it conferred power to prohibit corporations from engaging in trade and commerce within a State. O'Connor J. thought the power it conferred is to make laws with respect to the recognition of corporations as legal entities throughout the Commonwealth. Higgins J. decided that s. 51 (xx.) conferred power to make laws to regulate the status and capacity of corporations and the conditions upon which they may carry on business. (at p509)

28. Isaacs J. dissented and decided that s. 51 (xx.) conferred power to control the conduct of corporations in relation to third persons. In his judgment s. 5 was valid. (at p509)

29. It is apparent that there was no unanimity about the power conferred on the Parliament by s. 51 (xx.). (at p509)

30. The limitations upon s. 51 (xx.) which the majority discerned are not manifest from the words of the paragraph itself. Griffith C.J. and Barton J. based their limitation principally upon s. 51 (i.) treating that subject matter of legislative power as forbidding legislation with respect to trade and commerce other than interState and overseas trade and commerce unless there were to be found some positive and unambiguous provision operating by way of exception of s. 51 (i.) to authorize such legislation. Their Honours did not regard s. 51 (xx.) as such a positive and unambiguous exception. This reasoning, particularly the construction of s. 51 (i.) as denying to the Parliament, and, through s. 107, as reserving to the States, power to make laws with respect to intra-State trade, was based in no small measure upon the doctrine, since abondoned, that s. 107 of the Constitution preserves to the States, to the exclusion of the Commonwealth, any legislative power over a particular matter not falling within s. 51 (i.) in the absence of some exception. The course of later decisions has, however, made it clear that the grant of power in the limited terms of s. 51 (i.) is not the equivalent of a denial of legislative power outside those limits. All that can properly be said now is that any power which the Parliament has to legislate with respect to intra-State trade is not conferred by s. 51 (i.), and if, and to the extent that it exists, it is because power to make laws with respect to part of such trade is implicit in other subject matters about which the Parliament has power to legislate, e.g. s. 51 (iii.), (v.), (vi.), (xii.), (xiii.), (xiv.), (xv.), (xvi.), (xvii.), (xviii.), (xxxv.). Indeed, it seems to me that Griffith C.J. and Barton J. would have included (xx.) in the foregoing enumeration but only within limits not discoverable from the terms of (xx.) itself. (at p509)

31. The basis of the limitation which O'Connor J. found in s. 51 (xx.) is indicated by the following passage in his judgment:

"We must, therefore, recognize at the outset that the Constitution, while empowering the Parliament of the Commonwealth to legislate with respect to foreign corporations and financial and trading corporations formed by the laws of any State, also vests in each State exclusive control over its own purely internal trade and commerce. The grant of power to the Parliament must thus be so construed as to be consistent as far as possible with the exclusive control over its internal trade and commerce vested in the State." (1909) 8 CLR, at p 370

It is, however, no longer possible to use assumed State legislative powers said to be reserved under s. 107 to reduce the scope of the legislative power granted by the Constitution to the Parliament. (at p510)

"Certainly the language in which sub-s. (3) is expressed, interpreted naturally, and without the imposition of any artificial restriction by reference to constitutional limitations, extends to inter-State transactions upon which it cannot validly operate. To that extent it would be invalid. But it is a provision applying distributively, that is to say, it applies to each and every receipt of a commodity or purchase or sale or delivery within its terms separately and independently of every other receipt purchase sale or delivery. The very purpose of such provisions as s. 1A as understood in this Court and repeatedly applied is to establish a presumption that to the extent that its operation is within the power of the legislature a law is to be valid notwithstanding that as expressed it is in excess of power: see Bank of New South Wales v. The Commonwealth (1948) 76 CLR, at p 369 ." (at p518)

9. If one seeks to apply to the provisions with which these appeals are concerned what was said by the Court in the passage just quoted the result is, in my opinion, that they could be properly read, if to do so would give them validity, as applying distributively to each and every agreement of the specified kind separately and independently of every other agreement of that kind. If the regulation by the Parliament of agreements of that kind could be described as the enactment of a law with respect to trade and commerce (as I think it could), the result would be that in its application to agreements made in the course of and for the purpose of trade or commerce with other countries or among the States the law could be valid notwithstanding that as expressed it would be in excess of power. But in my opinion the provisions in question cannot be read as applying distributively to each and every person who becomes a party to an agreement of the specified kind and as being, in consequence, valid in their application to any person who happens to be within a class of persons mentioned in the enumeration of powers contained in s. 51. I come back to what I have already said, namely, that the subject matter of the relevant provisions is not the persons who enter into agreements. They are not laws which upon a distributive application can be seen to be laws with respect to particular persons or classes of persons whether corporate or not. They are not laws with respect to trading corporations formed within the Commonwealth, which have been expressed either by design or by mistake in language so wide that unless confined they would have some operation beyond that subject matter. They are laws in which the personality of those whom they bind is not significant as an element in the nature or character of the laws. No doubt it is possible to suppose that a case may occur in which a law which might have been validly enacted with respect to a limited class of persons, such as a law with respect to aliens or a law with respect to the corporations mentioned in s. 51 (xx.), is expressed so as to apply to a larger class of persons than those within the scope of the power. In such a case it may be possible to hold that the law has a valid operation in its application to persons within the class to which the power extends: see R. v. Poole; Ex parte Henry (No. 2) (1939) 61 CLR 634, at p 652 . But the laws now under consideration are not in my opinion laws of the kind to which I have just referred. (at p519)

10. In Pidoto's Case (1943) 68 CLR 87 , Latham C.J. included in his discussion of the operation and application of provisions, such as s. 15A, a statement which has been quoted by Menzies J. in his judgment in the present case. Latham C.J. said that general words or expressions can be read down so as to give valid operation of a partial character

". . . if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals." (1943) 68 CLR, at p 111

In the provisions with which we are now concerned, I think that there is no standard criterion or test to be discovered from the terms of the law itself, upon which could be based a partial operation confined to the corporations mentioned in s. 51 (xx.), unless this be provided by s. 7 of the Act. That is a question to which I shall refer later. At this point, what I wish to say is that in the nature of the subject matter with which the law deals there is not to be found a means of dividing it into a valid law with respect to certain corporations and an invalid law with respect to other persons. (at p520)

11. It is true that in references which have been made to the distributive applications of laws, there are instances in which expressions have been used to the effect that a law may be held to operate validly in relation to some persons to the exclusion of others: see Huddart Parker Ltd. v. The Commonwealth (1931) 44 CLR 492, at p 513 ; and Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 371 . But I do not regard those statements as detracting from the validity of the opinion that in a case such as this the process of dissecting a law expressed in general terms into valid and invalid parts cannot be effected by dividing the persons to whom the law may apply into separate classes. If some other means can be discovered, by examining the subject matter, of splitting up the law and dividing the acts or transactions comprised in its subject matter into separate categories, it would be natural enough to speak of the law as applying validly to those persons who do the acts or engage in the transactions in one category and as not applying to those who do other acts or engage in other transactions to which the legislative power does not reach. But the distinction between the persons affected is not in such a case the basis upon which the law is treated as divisible. It is merely the consequence of a division made upon a different basis. The law may be "distributed" over each and every part of the subject matter but not over each and every person who is affected by the law. In Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 252 , Rich and Williams JJ. described what the Court may do in reading down a law to make it conform to constitutional requirements in these terms:

"It can only read down a provision which is in excess of power so that it will have an operation consistent with the Constitution where the provision contains independent portions within power which are severable, or the provision is capable of operating in a distributive manner in respect of each and every part of the subject matter and its operation can be confined to those parts which are within power: Pidoto v. Victoria (1943) 68 CLR 87 ."

With that statement I am in agreement. (at p520)

12. I must refer now to s. 7 of the Act. Its provisions have been set out in other judgments. In my opinion, they are not effective to give a valid operation to the provisions of ss. 35, 41, 42 and 43, as laws authorized by par. (xx.) in so far as those provisions relate to agreements to which a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth is a party. Section 7 does not itself enact any law requiring any of those corporations (or any other person) to do any act or to refrain from doing any act. Nor does it contain any provisions by which the meaning of the expressions used in s. 35 is defined. The restrictions therein mentioned are stated in s. 7 (2) to include restrictions accepted under an agreement by a party to the agreement who is such a corporation. But it is stated expressly in sub-s. (4) of s. 7 that the provisions of sub-ss. (1), (2) and (3) shall not be construed as limiting the operation of the Act. This means that the generality of s. 35 is not to be confined by reason of anything contained in s. 7 (2). I cannot regard that subsection as providing any assistance towards a conclusion that the provisions of ss. 35, 41, 42 and 43 are laws with respect to the corporations described in s. 51 (xx.) of the Constitution. It is stated also in sub-s. (4) of s. 7 that the preceding provisions of that section shall not be construed as excluding the application of s. 15A of the Acts Interpretation Act. The result is that s. 15A may still be applied if apart from those provisions of s. 7 it would be applicable. But if without those provisions s. 15A would not be applicable, they cannot help to make it apply. It is not possible, in my opinion, to treat s. 7 (2) as providing a criterion or test upon which may be based a separation or distribution of the relevant operative provisions of the Act so as to give them a valid partial operation confined to those agreements to which one of the corporations mentioned in s. 51 (xx.) is a party. I conclude that there is nothing in s. 7 which affects the opinion stated earlier in this judgment that the relevant provisions are so expressed that they cannot be regarded as being in part an enactment of a law with respect to such corporations. (at p521)

13. I do not regard the views which I have stated as leading necessarily to the conclusion that the provisions of ss. 35, 41, 42 and 43 can have no valid operation at all. I do not think that those views compel a denial that those provisions deal, in part of their operation, with matters which form part of trade and commerce with other countries and among the States, or a denial that s. 15A may be applied so as to enable them to take effect to that extent as laws authorized by s. 51 (i.). I do not regard the reasons which I have given for thinking that the provisions cannot take effect at all as laws authorized by s. 51 (xx.) as being inconsistent with an affirmative answer to the question whether they may operate validly in some cases as laws with respect to trade with other countries or among the States. No doubt there are objections which might be urged with much force against a conclusion that the question should be answered affirmatively. Some difficulties in the way of reaching that conclusion are raised in the judgment of Menzies J. herein. No doubt there are others which could be suggested if that question had to be decided. But there is no need to give a final answer now to a question which is not raised by the facts proved or admitted in these proceedings and which has not been fully argued. In my opinion that question should be left open. Likewise any question as to the operation of the laws contained in the Act upon agreements in relation to transactions in or concerning the Territories of the Commonwealth need not be answered and should be left open. (at p522)

14. In my opinion the appeals should be dismissed. (at p522)

GIBBS J. I have had the advantage of reading the judgments prepared by other members of the Court and may therefore state my conclusions more briefly than the importance of the issues would otherwise have permitted. (at p522)

2. If Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 was rightly decided the power given by s. 51 (xx.) of the Constitution to make laws with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth" did not authorize the Commonwealth Parliament to enact ss. 7 (1909) 8 CLR, particularly at pp 352 and 354 , 35, 41, 42 and 43 of the Trade Practices Act 1965-1969 ("the Act"). The first question therefore is whether that decision was correct. It is clear from the reasons given by Griffith C.J. (2), Barton J. (1909) 8 CLR, particularly at p 363 and O'Connor J. (1909) 8 CLR, particularly at pp 370-372 that those learned Justices, who constituted the majority, based their conclusions on the doctrine of reserved powers which since Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (the Engineers' Case) (1920) 28 CLR 129 cannot be accepted as correct. The other two members of the Court, Higgins J. and Isaacs J., were sharply at variance in their opinions as to the scope of par. (xx.) of s. 51. The decision therefore cannot be treated as a binding authority and it is now necessary for us to decide for ourselves whether s. 51 (xx.) would empower the Parliament to pass a law in effect providing that every foreign corporation and trading or financial corporation formed within the limits of the Commonwealth which carries on within a State a business of the supply of goods and which is a party to an agreement, made with a person carrying on a competitive business, under which the corporation accepts restrictions of the kind specified in s. 35 of the Act in relation to its business, will be guilty of an offence if prescribed particulars of the agreement are not furnished to the Commissioner of Trade Practices within a fixed time. Speaking generally, the restrictions specified in s. 35 are such as would, if accepted, tend to have the effect that businesses ostensibly competing in trade were not truly in competition. Put more broadly, the question is whether s. 51 (xx.) authorizes the Parliament to pass a law to regulate the trading activities of foreign corporations and trading or financial corporations formed within the limits of the Commonwealth which are engaged in intra-State trade in such a way as to preserve competition in the conduct of the trade. (at p523)

3. The words of par. (xx.) do not contain any express limitation to corporations engaged in inter-State trade and in my opinion none should be implied. This is of course not to say either that no implications should be made in the interpretation of the Constitution or that in determining the meaning of one paragraph of s. 51 it is not permissible to seek assistance in the words of another. However, the fact that par. (i.) of s. 51 gives the Parliament power to make laws with respect to "trade and commerce with other countries, and among the States" does not mean that no laws affecting intra-State trade may be made under any other part of the section. It is obvious that laws with respect to many of the topics referred to in the other paragraphs of s. 51 may have an effect on intra-State trade. In my opinion a law may be a law with respect to a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth notwithstanding that it affects the corporation in the conduct of its intra-State trade. (at p523)

4. Nor is there to be found in the express words of par. (xx.) anything to suggest the implications which the learned Justices in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 read into it. Griffith C.J. said that par. (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." (1909) 8 CLR, at p 354

Barton J. was apparently of the same opinion (1909) 8 CLR, at p 366 . O'Connor J. thought that the paragraph gave -

" . . . the power of making a uniform law for regulating the conditions under which foreign corporations, and trading or financial corporations created under the laws of any State, would be recognized as legal entities throughout Australia." (1909) 8 CLR, at p 373

Higgins J., whose view of the section was somewhat similar to, although wider than, that of O'Connor J., said that the Parliament has no power, in regulating corporations, to regulate in whole or part transactions which do not belong to inter-State or foreign trade, but that it can "regulate corporations as to status, capacity, and the conditions on which business is permitted" (1909) 8 CLR, at pp 413, 414 . But par. (xx.) does not speak of prohibiting corporations from entering into the field of trade, or of imposing conditions on such entry or on the recognition of corporations, or of the status and capacity of corporations, and the introduction of these concepts greatly narrows the effect of the paragraph. Isaacs J., on the other hand, considered that the words of the paragraph should be given their ordinary and natural meaning, and that so read s. 51 (xx.) "entrusts to the Commonwealth Parliament the regulation of the conduct of the corporations in their transactions with or as affecting the public" (1909) 8 CLR, at p 395 . (at p524)

5. The scope of par. (xx.) of s. 51 was also discussed by some of the members of the Court in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1 . Neither Latham C.J. (1948) 76 CLR, at pp 201-204 nor Dixon J. (1948) 76 CLR, at p 330 dealt with the meaning of par. (xx.) so far as it governs the present question. However, Rich and Williams JJ. said:

"The language of the placitum indicates an intention to give the Commonwealth Parliament power to make laws from time to time with respect to the conditions, subject to the performance of which, corporations of all kinds created beyond Australia and trading and financial corporations incorporated in Australia should be entitled to carry on business throughout Australia or in any part thereof." (1948) 76 CLR, at p 255

This seems to be an acceptance of the view taken by Higgins J. in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 , but their Honours went on to say (1948) 76 CLR, at p 256 that it was unnecessary in the case before them to pursue the meaning of the power. Starke J. on the other hand said that in his opinion -

". . . the power authorizes the Commonwealth to govern and regulate the operation of these companies but would not authorize the suppression of all such corporations or the nationalization of their activities. Thus, the carrying on business in Australia by these corporations might be prohibited absolutely or except upon certain conditions and the exercise of their powers in Australia might be regulated and so forth." (1948) 76 CLR, at p 304

On this view, which seems as wide as that of Isaacs J., a law of the kind under consideration would be valid. (at p525)

6. It is neither necessary nor desirable for us in the present case to endeavour to define in full detail the limits of the power which par. (xx.) confers. We need not consider whether the exercise of the power could lead to the results which in Huddart, Parker &Co. Pty. Ltd. v. Moorehead Higgins J. regarded as extraordinary and "big with confusion" (1909) 8 CLR, at pp 409 - 410 . However, it seems to me that it would be placing a quite unwarranted restriction on the words of the paragraph to read it as not extending to empower the Parliament to govern and regulate the trading activities of corporations of the kind mentioned in the paragraph, for the purpose of preserving competition in trade. In my opinion, therefore, a law of the kind suggested would be within the power of the Parliament. (at p525)

7. The second question that falls for decision is whether the relevant sections of the Act are on that view valid, so far as they apply to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. Sections 35, 42 and 43 would, if read alone, apply to all agreements of the kinds specified in s. 35 by whomsoever made, wheresoever they may operate and whether or not they are made in the course of inter-State trade. Plainly those sections, if read alone, would be beyond the constitutional power of the Parliament. However, s. 7 (1) provides inter alia that the restrictions referred to in s. 35 "include" restrictions that are applicable to, or engaged in in relation to, or that tend to prevent or hinder, transactions, acts, or operations of the kinds set out in pars. (a) to (e) of the subsection, whose provisions are set out in other judgments and which I need not repeat. Section 7 (2) provides that the restrictions referred to in s. 35 include restrictions accepted under an agreement by a party to the agreement who is a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth. It is true that without any aid from s. 7, s. 35, if construed according to the full generality of its meanings, would have the effect that the restrictions to which it refers would include restrictions of the kinds described in sub-ss. (1) and (2) of s. 7. However, in my opinion, s. 7 is not a mere piece of surplusage designed for no reason to state what was already obvious. In my opinion the subsection amounts to a legislative declaration that the Act operates in part on agreements containing restrictions of the kind specified in s. 35 when those restrictions answer any of the descriptions contained in sub-ss. (1) and (2) of s. 7. The object of this declaration is to provide a foundation for the operation of s. 15A of the Acts Interpretation Act 1901, as amended (Cth), whose application to the Act is expressly recognized by s. 7 (4). It is intended to indicate "a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law", to use the words of Latham C.J. in Pidoto v. Victoria (1943) 68 CLR 87, at p 109 . Of course s. 7 indicates not one but a number of standards and tests to be applied to preserve the validity of the Act but in my opinion the Court is not required to determine arbitrarily, or merely to guess, "whether to apply one possible limitation to the exclusion of the others, or two or three possible limitations, or all possible limitations", to adopt again the words of Latham C.J. (1943) 68 CLR, at p 110 . In my opinion the only object which Parliament could have had in stating s. 7 various respects in which the law is intended to operate was to indicate that if the operation of the Act in any of the ways mentioned would save it from invalidity, it should be given that operation. But it could not have been intended that the tests were to be, as it were, cumulative. Section 7 describes the operation of the Act by reference, inter alia, to the kind of person concerned (that is, to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth), to the nature of the trade (that is, to trade or commerce with other countries, or among the States) and to the place where the acts to which the restrictions apply are done (that is, in a Territory). The words of s. 7 make it clear that Parliament did not intend, for example, that the Act should only apply to restrictions accepted by a corporation of one of the kinds mentioned and applying to acts done in the course of inter-State trade. It intends that each limitation should be applied separately, so that the Act will operate on restrictions affecting inter-State trade, and restrictions accepted by the corporations mentioned whether affecting inter-State trade or not, and restrictions applying to acts done in a Territory. It seems to me, with the greatest respect to those who take a contrary view, that s. 15A requires the Act to be construed in this way. The manner of operation of s. 15A and similar sections has been discussed in a number of cases. In R. v. Poole; Ex parte Henry (No. 2) (1939) 61 CLR 634, at p 652 Dixon J. pointed out that two types of case present themselves under provisions such as s. 15A and that in the type of case with which we are concerned -

". . . a provision which, in relation to a limited subject matter or territory, or even class of persons, might validly have been enacted, is expressed to apply generally without the appropriate limitation, or to apply to a larger subject matter, territory or class of persons than the power allows."

Sir Owen Dixon went on to say that in such a case -

". . . the question may simply be whether the legislature intended the provision to have a distributive operation or effect. That is to say, did it intend that the particular command or requirement expressed in the provision should apply to or be fulfilled by each and every person within the class independently of the application of the provision to the others; or were all to go free unless all were bound?"

In Bank of New South Wales v. The Commonwealth (1948) 76 CLR, at p 371 Dixon J. said that -

". . . the effect of such clauses" as s. 15A "is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail."

A similar view was expressed by the Court in Carter v. Potato Marketing Board (1951) 84 CLR 460, at p 484 . In my opinion the Act is divisible, but in a number of ways; its provisions are intended to have a distributive effect, that is, to take effect in so far as they relate to a subject matter within the power of the Parliament (inter-State trade) and in relation to persons within the power (foreign corporations and trading or financial corporations formed within the limits of the Commonwealth) and in relation to territories within the power (Territories of the Commonwealth). I have not stated exhaustively the effect of s. 7, for it is unnecessary to do so. The intention of Parliament was to indicate by s. 7 the various ways in which the Act might validly operate, so that s. 15A might give it validity in all of those ways. To give the Act this operation is not to re-write it, and on the agreements to which it applies it has the same result as it would have had if it had applied to all agreements without limitation. In my opinion, therefore, the combined operation of s. 7 of the Act and s. 15A of the Acts Interpretation Act, so far as it is material in the present case, is that the Act may be read so that it applies to agreements containing restrictions accepted by a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth, notwithstanding that the corporation is engaged in intraState and not inter-State trade. In my opinion, the Act can then be described as an Act with respect to corporations of the kind mentioned in par. (xx.). Clearly an Act may be a law with respect to more than one of the subject matters mentioned in s. 51, and yet be valid. The question therefore must be whether the Act, in so far as it deals with the trading activities of foreign corporations and trading or financial corporations formed within the limits of the Commonwealth is a law with respect to such corporations. For the reasons already given that question should be answered in the affirmative. (at p528)

8. I would allow the appeals. (at p528)

Orders

Appeals dismissed with costs.