This question concerns the extent to which the Commonwealth Parliament may regulate intra-State activities under s51 (i). The trade and commerce power is directed to laws dealing with overseas and inter-state trade and commerce but in some circumstances it may be able to legislate with respect to intra-state trade and commerce.

Whether the Commonwealth can regulate the intra-state conduct will depend upon whether there is justification for the Commonwealth intruding into the intra-state matter. There are various High Court judgments which expand the reach of the power in s51 (i) to intra-state conduct. The text book discusses the four ways of regulating these peripheral activities which are not mutually exclusive see text book p 53 onwards. The main case law will require a discussion of Airlines No 2, and contrast O'Sullivan's Case. In addition consider Redfern and contrast it with Bourke Appliances.

The agreement to lower prices ete requires a discussion of whether the Commonwealth Parlt's power under s5 1 (i) can extend to intra-state conduct because of its economic impact on inter-state trade. The student will need to consider Wragg's Case and explain how it has been adopted into s51(i) law and also consider Ansett Transport Industries. The student also must consider the likelihood that the High Court may see things differently in the future and accept economic connections as sufficient.

The outcome will be that (a) is not within Commonwealth power but (b) arguably will be.

The student will need to consider the identification of a trading corporation within Constit s51 (xx) applying the 'activities test' from Adamson's Case and the State Superannuation Case. Yellowstone NL is engaged in exploration and mining so the student will need to consider Isaacs J in Huddart Parker when the judgment regarded a mining company as a domestic corporation outside s51 (xx). In the problem Fall-Out is the associated trading corporation.

When discussing the activities that can be controlled under s51(xx) the student will need to rely upon Fontana Films, Tasmanian Dam and Dingjan. The activities of the truck drivers clearly damage the trade of a trading corporation and fall within Fontana Films though unlike in Fontana Films this conduct is not intended to harm the trade of Fall-Out it is aimed at the Commonwealth Govt. Tasmanian Dam permitted the Commonwealth to regulate non-trading activities of a trading corporation where they were undertaken for the purposes of the trade.

It is more difficult to regulate the safety standards in the mine whether thinking about Fontana, Tasmanian Dam or Dingjan.

Under s51(i) it is intra-state activity. The conduct of the truck drivers may be within Commonwealth by extending a case such as Utah Development Co but not safety standards in the mine and the student should distinguish O'Sullivan.

A Commonwealth-State relations question which needs the student to consider whether a general State law can bind the Commonwealth. There is an express immunity in s 114 from "any tax on property " of each other but s 114 aside Engineers Case suggests there is something special about the power to tax.

If the State law is non discriminatory and the Commonwealth has not protected itself by utilising the protection it can obtain from relying upon s51 (i) and its incidental powers and s 109 the State law may be able to tax Commonwealth employees.

The Payroll Tax Case led the High Court to say that after Engineers the State could tax the Commonwealth as an employer provided the law was a general provision.

The explanation of how the Commonwealth can protect itself lies with a discussion of Australian Coastal Shipping Commission v O'Reilly where the State power to tax was frustrated by the Commonwealth use of its power under s51 (i) but Menzies J cautioned that such conduct would be carefully scrutinised

The critical case for the student to consider is Re Residential Tenancies Tribunal (NSW) and Henderson (1997) when leave was given to argue that Cigamatic was wrongly decided. It rejects any claimed immunity for the Commonwealth from State laws said to arise from Cigamatic Whilst affirming Cigamatic the High Court made it clear that the Commonwealth and its agencies had no general immunity. Further High Court affirmed Pirrie v Me Farlane. The decision upsets the law in Bogle

The Commonwealth engages in external affairs when the federal executive undertakes an international obligation on any kind of matter after Tasmanian Dam decision. The federal parliament can implement those obligations. Tasmanian Dam said that the entering into of the international agreement was itself an external affair The topic did not have to be one of international concern and to this extent the view propounded by Stephen J in Koowarta has been qualified. The preservation of a duck species in Victoria is not a matter of international concern but that is now a non issue because of the existence of the bilateral agreement.

Since there is an agreement between two sovereign states the discussion under s51(29) will focus upon the use of the power to pass legislation relying upon a treaty obligation.

The treaty must be entered into bona fide. It is difficult to establish that the agreement has been entered into other than for bona fide reasons and though this is seen as a possible limitation as early as Burgess it is an inadequate limitation see Gibb CJ in Koowarta.

Since cannot satisfactorily establish lack of bona fides have to consider extent to which can implement obligations whether limited to obligations imposed etc. The obligation imposed was one as to advice, education, research etc and the response by Cth was none of those. A strict matching was called for by Burgess but not adhered to in Poole or Airlines the domestic implementing law must be reasonably adapted and appropriate. Part of law in Tasmanian Dam was struck down as invalid. Consider the discussion in Richardson Case. The law would appear to be acceptable

There is some possibility Victoria could challenge the law under Melbourne Corp which is explained as having two limbs in Queensland Electricity Commission Case. The law is not addressed to Victoria it is not a law aimed at and directed at Victoria in a discriminatory way but though the law appears to be universal in its practical operation it does discriminate against Vic. But it does not appear to be a significant interference with the capacity of the State to function.

The Tribunal is not created as a court within Chapt 111 of the Constit. The separation of powers doctrine strictly applies in the area of judicial power see Boilermakers Case. It is necessary that the tribunal be vested with purely non-judicial functions.

The indicators of an exercise of judicial power require consideration of the analytical descriptions contained in text book p189. The essential case law to discuss being Huddart Parker, Brandy, Precision Data Holdings and Tasmanian Breweries. Eventually the student must acknowledge that it appears to be a judicial determination but is within Quinn's Case and valid.

The contempt provision in the statute is valid. Prosecution for contempt must be before a court.

The privative clause is also valid makes the decision more protected but it cannot alter a constitutional right of review within s75.

The body is an administrative tribunal . The fact the President is a judge is acceptable Hilton v Wells, the designated person rule. An appeal from this body to the High Court under s73 will not lie.

Any appeal must be a review in the original jurisdiction of the High Court under either s75 or where jurisdiction is conferred under s76.

The Commissioner of Taxation will be within s75(iii) and the student should discuss Bank of NSW v The Commonwealth, Inglis and Repatriation Commission v Kirkland.

Alternatively the student should consider review relying upon s76(i) vested by the Judiciary Act s30(a). The proceedings may have involved an argument over the interpretation of income tax in a federal statute but the matter falls within s76(i) after considering the High Court judgment in the Commonwealth Savings Bank Case and contrasting that decision with James Case.

Section 76(ii) is a possibility but the facts do not explain whether the statute gives any right of review.

Each scheme requires consideration of s90 and discussion of what is a duty of excise. The earliest view of duty of excises is contained in Peterswald v Bartley. Essentially a duty of excise is (i) a tax and (ii) a tax upon goods. The narrow view of a duty of excise was rejected as early as Parton's Case when the tax was imposed on distribution not production or manufacture yet it was a duty of excises. In Matthews Case again the High Court moved away from a narrow view of duty of excise and no longer required the tax to bear a close relationship to the quantity or value of what was produced or manufactured.

The Q. licensing system is similar to Browns Transport and Bolton v Madsen Is the tax on the carriage of goods or is it upon the distribution of goods. What approach should be taken to determine this. The criterion of liability approach taken by Kitto J in Dennis Hotels has lost favour and the approach now is to consider what the tax does in substance.

The licensing provisions include regulatory features but the fact it in substance taxes distribution (Parton) and imposes a hefty fee (Capital Duplicators and Hematite) makes it more probable that this is revenue raising and not really regulatory. The use of the back-dating device will not assist Q because since Ha v NSW -Dennis Hotels survives but is limited to those circumstances. The minority view in Ha has always had some support in the High Court but has never achieved a majority acceptance.

The NSW scheme requires discussion of whether this is not tax but a fee for service. Consideration of Parton as contrasted with Harper, Air Caledonie. When considering Harper there is a distinguishing feature there is a distinguishing feature because in the problem the levy is for each pig.

Requires discussion of s 109.