Strickland v Rocla Concrete Pipes Pty Ltd

[1971] HCA 40

High Court of Australia|1971-07-01|Before: Gibbs JJ

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High Court of Australia

Decision date

1971-07-01

Before

Gibbs JJ

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Judgment (182 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. Strickland v Rocla Concrete Pipes Pty Ltd [1971] HCA 40

[2]

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.

[45]

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. [1] 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 [2] . 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 [3] : 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. 1. (1920) 28 C.L.R. 129. 2. (1908) 6 C.L.R. 469. 3. (1908) 6 C.L.R., at p. 503. 4. (1909) 8 C.L.R., at p. 352. 5. (1909) 8 C.L.R. 330. 6. (1909) 8 C.L.R., at p. 354.

[66]

"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. [1] . 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. 1. (1930) 44 C.L.R. 319, at pp. 373-374. 2. (1930) 44 C.L.R., at p. 386.

[72]

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 inter-State 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 [1] .) We are here concerned to find by construction an enactment of the Parliament which is upon a topic of granted power.

[117]

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.

[122]

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 Attorney-General 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 intra-State 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.

[127]

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 [2] 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 inter-State 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.

[161]

I have stated above the question which is, in my opinion, the only question which must be decided. I propose to consider it, in the first place, independently of the provisions of s. 7 of the Act. I do not think it could be disputed that the terms of s. 35 are so general and consequently the operation of ss. 41, 42 and 43 is so general that those provisions cannot be regarded in their entirety as provisions the enactment of which is authorized by s. 51 (xx.). That being so, the question is whether or not those provisions can be read and construed, in accordance with s. 15A of the Acts Interpretation Act 1901-1966 Cth, as having a valid operation, as laws authorized by s. 51 (xx.), to the extent to which they are not in excess of that power. In stating the matter in that way, I am not overlooking the fact that s. 15A refers generally to the legislative powers of the Commonwealth and not specifically to various particular heads of power. I do not mean to assert that in every case it is necessary, in order that s. 15A may be applied, that the Court should be able to see by an examination of the terms of an Act that it was intended to be an exercise of power under one single head of power and should then be able by construction to confine it so that it is not in excess of what could be enacted under that particular head of power. Nor do I mean to say that a law can never be a law with respect to more than one of the topics enumerated in s. 51 (xx.). My statement that in the present cases the question is whether the relevant provisions of the Act can be read and construed so that their operation is confined to what could be validly enacted under the power conferred by par. (xx.) is based upon the fact that there is not any other relevant source of legislative power to sustain the provisions in so far as they would make each of the respondents guilty of the offence charged against it upon proof or admission that particulars of the agreement to which it was a party had not been furnished.

[163]

There have been many cases in which the effect of s. 15A of the Acts Interpretation Act and of other similar provisions has been considered. I do not intend to discuss all those authorities but I wish to refer to some of them. A distinction has been drawn in several cases between two kinds of enactment, that is, between an enactment containing separate words or expressions, some of which considered separately would make the enactment valid and others of which would make it invalid, and an enactment in which there is a general word or expression comprising matters in respect of which legislation could be validly enacted and matters in respect of which it could not: see, e.g., Pidoto v Victoria [1] , where Latham C.J. referred to the examination of those two situations by Isaacs J. in R. v The Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [2] . See, also, R. v Poole; Ex parte Henry [No. 2] [3] . In the present appeals we are concerned with an enactment of the second kind. It is well established that although it may be easier to apply s. 15A (or a similar provision) to an enactment of the first kind, it may be applied in some cases to an enactment in which the subject matter is expressed in general terms. By way of illustration, I refer to two decisions in which this has been done. Both were concerned with trading transactions and both were cited in Johnson v Commissioner of Stamp Duties [4] , to demonstrate a distinction which was regarded by their Lordships as justifying the decisions in those cases that the enactments had partial validity, whereas in the case before their Lordships such a conclusion could not, in their opinion, be reached. In the two cases cited their Lordships thought that the "elements of divisibility or distributiveness lay within the framework of the enactments". But in the case which they were there considering, they thought that there was no scope for the application of any such distributive principle. They said that there was no way of splitting the enactment up into good and bad. The two cases to which their Lordships thus referred were Newcastle and Hunter River Steamship Co. Ltd. v Attorney-General (Cth) [5] and Carter v Potato Marketing Board [6] . In the former case, which was decided before the enactment of s. 15A, there was a provision in somewhat similar terms, in the Navigation Act 1912-1920 Cth, with which the case was concerned. The provisions which were challenged related to the manning of ships and to the standards of accommodation in ships and prohibited any ship from engaging without a licence in "the coasting trade" (which was defined) and imposed penalties on the master and owner of such ship for breaches of those provisions. The Court held that the provisions were, to the extent to which they purported to describe rules of conduct to be observed in respect of ships engaged solely in the domestic trade of a State, beyond power. But because of the "readingdown" provision, the Court held that the enactment was not invalid for all purposes. It could operate validly in relation to ships engaged in inter-State or foreign trade. In so far as they applied to those ships (and to their owners and masters), the provisions were treated as valid enactments under s. 51 (i.) of the Constitution. In Carter v Potato Marketing Board [1] , the Court was not concerned with Commonwealth legislation but with that of a State. It was held that the legislation, in which the relevant provisions were expressed in general language, would operate in some of its applications to interfere with the freedom of trade, commerce and intercourse among the States and would be an infringement of s. 92 of the Constitution. There was in the State Act a provision to the effect that it was to be read and construed so as not to exceed the legislative power of the State. It was held that in the transaction in relation to which the appellants had been convicted for an offence no inter-State trade was involved and that the provision which the appellants had infringed should be applied distributively and operated validly upon the receipt by the appellants of the commodity to which it referred. Referring to that provision the Court [2] said this:

[165]

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] [1] . But the laws now under consideration are not in my opinion laws of the kind to which I have just referred.

[170]

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.

[173]

If Huddart, Parker & Co. Pty Ltd v Moorehead [1] 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 (2), 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. [3] and O'Connor J. [4] 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) [5] 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.

[181]

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 meaning, 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 [1] . 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. [2] . In my opinion the only object which Parliament could have had in stating in 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] [1] 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 -

[182]

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 [2] 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 [3] . 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 intra-State 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. 1. (1943) 68 C.L.R. 87, at p. 109. 2. (1943) 68 C.L.R., at p. 110. 3. (1939) 61 C.L.R. 634, at p. 652. 4. (1948) 76 C.L.R., at p. 371. 5. (1951) 84 C.L.R. 460, at p. 484.