Competence of Legislature
Australia
In the case the High Court of Australia was considering the construction of the provisions of the Custom Act,1901, it was stated by BARTON J that :”The Constitution by sec. 52 (ii.) gives the federal Parliament exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to "Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth." The Customs Act 1901 was passed in pursuance of that power, and in some respects it is also referable to the power of taxation, and to the power to regulate trade and commerce with other countries. Now, looking at sec. 233 of the Customs Act 1901, we have to give a meaning to one particular portion of the following words:—"No person shall smuggle or unlawfully import, export, convey or have in his possession any goods." The prima facie meaning of those words would be to make it an offence for a person to have in his possession unlawfully any goods. Obviously that cannot be the meaning of the words, because there is no power under the Constitution for the federal Parliament to usurp the general law-making power of the States in criminal matters. The federal Parliament has only power to make such criminal laws as may give a sanction to the execution of Statutes which it has power to pass. Consequently a literal reading of those words would place them beyond the legislative powers of the Commonwealth, and would defeat the operation of the Act altogether. But, of course, that is not a construction which the Court would adopt, because it is well known that the Court will lean to such a construction as will bring the Statute within the power of the legislature whose act is in question.
That being so, what, within the limits of the legislative power of the Commonwealth, is the construction to be placed on those words? It cannot be disputed that the federal Parliament has power to pass legislation ancillary to the due execution of Customs laws; but another question remains behind, and it is this:—In interpreting a penal law, where the words used are wide and large, are we to arrive at a meaning which makes a crime by construction, or is the reasonable interpretation of words, which in their essence are somewhat ambiguous, to be that which allies the act sought to be punished most closely to the purpose of the legislation? It is obvious that the latter course is that which the Court should adopt.[1]”
Two separate questions of law have been submitted for our consideration observed O’CONNOR J , first in importance, namely, whether the Parliament of the Commonwealth has power to enact Part VII. of the Trade Marks Act 1905. The whole controversy turns upon the construction of pl. xviii. of sec. 51 of the Constitution which enables Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to "copyrights, patents of inventions and designs, and trade marks." The question to be determined is whether the subject matter upon which Parliament is thus empowered to legislate under the heading "trade marks" can include what is called the workers' trade mark created, regulated, and protected, by secs. 74 to 77 of the Trade Marks Act 1905 in the case of Attorney-General (NSW) ex rel Tooth & Co Ltd v Brewery Employees' Union of NSW.[2]
While arriving at conclusion he observed that :”The regulation of marks used in trade and commerce is a necessary part of the control of trade and commerce itself, and the exclusive right of the State to regulate all marks used in trade and commerce carried on wholly within its boundaries, and of the Commonwealth to regulate all marks used in other trade and commerce, would necessarily be included within their respective powers. But it became obviously essential in the distribution of powers between Commonwealth and State to deal in some special way with the kind of mark generally known and described by the legal term "trade mark," internationally recognized as property, carrying with it universally acknowledged rights, used both in the trade and commerce controlled by the State and in that controlled by the Commonwealth, and which was, at the time of the passing of the Constitution, a subject of agreement between the Colonies themselves and between the several Colonies and Great Britain. That species of mark could not in the nature of things be controlled by the States. It stood in the same position as copyrights, patents of inventions and designs, and could be dealt with effectively only by the national power of Australia. It was therefore specifically mentioned by the sub-section as amongst the subjects under Commonwealth control. And, interpreting the expression in its legal sense, the Commonwealth is thus empowered to legislate with respect to the trade and commerce of a State in so far as may be essential for the effective exercise of that control. If, however, the expression is to be taken in the ordinary sense of the words, as including every mark used in trade and commerce, it is difficult to see what limit can be placed on the power of the Commonwealth legislature to interfere in the control and regulation of the purely internal trade of a State. It would include the power to establish a registry, to direct what marks shall be registered, under what conditions they shall be applied for and used, and to what extent failure to comply with the conditions shall involve the restriction of any particular class of trade. There is hardly any operation of trade within a State that would not be subject to Commonwealth interference by virtue of such a power. Under these circumstances not only is there no reason why the legal meaning of the expression should not be adopted, but it is clear that any other meaning would be entirely inconsistent with the whole scheme of distribution of the commerce powers of Australia which the Constitution has enacted.
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