The question requires consideration of the extent to which the Commonwealth Govt relying on s51 (i) can pass a law dealing with production or manufacture that is intraState production. Mere production and manufacture have traditionally not been regarded as trade and commerce. For activities like production and manufacture to come within Cth control under s51 (i) there must be some objective connection between the activity and scope of the power, namely overseas and inter-state trade. The student will need to consider O'Sullivan v Noarlunga Meat and explain why the Commonwealth was able to deal with pre-production processes in that situation but not able to in Beal v Marrickville Margarine Pty Ltd.

If a Commonwealth law seeks to deal with an intra-state activity there must be some objective physical connection between that activity and overseas or inter-state trade and commerce. The facts do not spell out sufficient connection. If the Cth were to deal with the growing of genetically modified crops it would need to draft the law as a prohibition on the exportation as in Murphyores.

(b) Whether the production of a crop by corporate growers falls within Cth control requires consideration of Constit. s51 (xx). The corporation will need to be a trading corporation within Constit. s51 (xx) and that requires consideration of Adamson's Case and State Superannuation Board Case.

The growing of a crop by a manufacturing corporation that trades in what is manufactured would be an activity undertaken for the purposes of the trade of the trading corporation see Tasmanian Dam

An initial issue is whether the corporation is a trading corporation and that requires a discussion of Adamson's Case and State Superannuation Board Case. The fact the profit is obliged to go back to sport may distinguish this body from the corporation considered in Adamson. But in Adamson the mere building up of assets without profit may indicate the body is a trading corporation

The activities that can be controlled requires consideration of Isaac J's view in Huddart Parker, Strickland v Rocla Concrete Pipes; Actors Equity, Tasmanian Dam; Victoria v The Commonwealth and Dingian; ex parte Wagner. The conclusion from this case law is that the Commonwealth could deal with those matters.

The external affairs power in Constit 51 (xxix) may be used by the Commonwealth Parlt to carry out Australia's treaty obligations.

Ever since the decision in Tasmanian Dam the existence of the treaty will establish that the subject matter is one of international character affirmed by later case law such as Victoria v The Commonwealth.

After Tasmanian Dam the Comonwealth can implement specific international treaty obligations provided the treaty is entered into bona fide. There is no suggestion that there is any lack of bona fides.

In Tasmanian Dam the Commonwealth was to implement specific international obligations but in Richardson v Forestry Commission non-obligatory aspects of the treaty could be implemented. The High Court gave a wide interpretation of the power to embrace 'reasonably apprehended obligations' The law as proposed by the Cth is surely conflicting with a fundamental principle of the Convention and falls within Burgess Case and contrast that with Poole.

The Conventions sets out rules and then lays down exceptions that are permitted. The domestic law falls within the permitted exceptions. It is clearly a clinical trial and it is for a limited period to be strictly monitored etc. The Cth law is contrary to the allowable exception and is directly inconsistent with the Convention. If the law is directly inconsistent it could not be argued that it is "reasonably adapted and appropriate" see Airlines

The law may also infringe the Melb Corp principle even though it has not had much success under s51 (xxix).

The issue raised by the problem is whether the fees charged by ASIC are in fact fees for service or are taxes.

ASIC will argue that they are fees for service. The discussion of fees for service will involve consideration of Air Caledonie International and Harper v State of Victoria. contrast with Parton v Milk Board and explain that these are s90 cases and adopted into tax law by Air Caledonie.

It would seem that in fact the fees are taxes. The elements of tax are satisfied see Matthews v Chicory Marketing Board and Air Caledonic.

If the fees are to be characterised as taxes then they cannot be introduced relying on Constit. s51(xx). The law sets out to be a Constit. 51(xx) law and the inclusion of taxes is then ultra vires that power and the taxes are invalidly included.

Alternatively if these payments are taxes then the law offends s55. Air Caledonie, Blank Tapes Case and Re Dymond

The Authority is a body not created within Ch 111 as there is no attempt to comply with s72 ... retirement according to a statutory prescribed age. The body being nonjudicial it must exercise non-judicial power see Boilermaker's Case.

It is then necessary to consider whether the powers being exercised are in fact nonjudicial powers by discussion of the following indicia together with relevant case law as follows:-

• Definitive decision itself declaring rights
• Declaring existing rights under existing law
• Decision based on legal standards
• Trappings of a court
• Historical test

The fact enforcement proceedings go before a federal court is also indicative of the fact the body is not a Ch 111 body exercising judicial power see Tasmanian Breweries.

The conclusion is that the Authority is dealing with statutory rights see Quinn's Case and not a basic legal right. Valid.

To invoke the original jurisdiction of the High Court requires consideration of Constit. s75, s76

The High Court's original jurisdiction vested by Constit. s75 cannot be removed by Commonwealth legislation therefore the privative clause cannot oust s75. The statute will oust Constit. s76

Members of the AAT will be "officers of the Commonwealth" by a consideration of R v Murray,. ex parte the Commonwealth and R v Drake-Brockman.

The remedy of mandamus is within s75(v) and the remedy of certiorari will issue to make effective mandamus see R v Cook,- ex parte Twigg

(a)The Cth's power with respect to duties of excise is exclusive of the States and Territories see Peterswald v Bartley and Capital Duplicators (No 1)

The student will have to consider if the levy is a duty of excise by considering:Capital Duplicators (no 2) and Ha v NSW

The broad view of an excise duty in that case would strike down the levy as a duty of excise.

(b) ln the H.C. judgment of Cole v Whitfield a new approach was taken to s92. The freedom is to be one from 'discriminatory burdens of a protectionist kind'. Is the effect of the State tax discriminatory against interstate trade and does it have the effect of protection on intrastate trade. S.92 guarantees absolute freedom of interstate trade and commerce from all interstate border duties and other discriminatory fiscal charges levied on interstate transactions of trade and commerce. The court will consider the purpose, the form and the substance of the challenged law. The State tax law is discriminatory.

Sec 90 is not likely to be attracted see Hughes and Vale (No 1)

(c) There is an express immunity given under Constit s. 1 14 but that aside in Engineers Case the H.C. suggested there might be something special about the power to tax. If the State law is non-discriminatory and the Cth has not protected itself then Victoria v The Cth (1971) applies. After Re Residential Tenancies Tribunal (NSW) (1997 the Cth does not enjoy any special immunity from the operation of State laws of general application. The Cth as an employer would be liable to pay the tax.

This question involves a discussion of s 109.

As preliminary matters need to consider (a) meaning of "law" (b) meaning of inconsistency (c) meaning of invalid

Discussion of inconsistency requires consideration of whether the inconsistency is direct or indirect and an elaboration of the three tests from case law:-

• impossible to obey State and federal laws at same time
• denial or qualification of rights test
• cover the field

When characterising the subject matter of the law it may emerge that the laws deal with a different field and there is then no inconsistency see Commercial Radio Co@fs Harbour where a Cth law had granted a right to operate a radio transmitter did not oust a State environmental law. The limitation on the subject matter of the Cth law allowed State laws to operate.