Strickland v Rocla Concrete Pipes Pty Ltd [1971] HCA 40

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

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 3 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.

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 [1] .