BANKS CLAIM FEDERAL ACT INFRINGES CONSTITUTION
LONDON, April 6. The extent to which section 92 of the Australian constitution protected the rights of the individual was discussed by Mr. G. E. Barwick, K.C., today when the Privy Council continued the hearing of the Federal Government’s appeal against the High Court order invalidating the Banking Act.
Mr. Barwick said if they were to have a community they must have Jaws regulating the conduct of the individual. The question in the present case was whether the law went beyond regulation and became a burden. Mr. Barwick said the exclusion of persons from participation in trade infringed section 92 unless, in exceptional cases, their exclusion proved to be no more than a regulation of the activity in which they were engaged. He said that to exclude an individual for no reason except that he was not wanted infringed section 92. Mr. Barwick said he did not say that there should be power to select the actors in any chosen business, but he did maintain that to subject the actor to arbitrary executive control was to impose a burden on him.
Mr. Barwick submitted that it was for tlie court to determine whether the Banking Act imposed a burden as distinct from regulation. Mr. Barwick said that in framing tlie constitution the people reserved to themselves an area of political power as, in section 92, they also reserved to themselves the power to amend the constitution.
It was true that created a gap in legislative power, but the apparent impasse could be removed by the people themselves as they retained the right to vote the Federal Parliament wider powers. The court was the protector of sectiun 92 and also stood guard uver the protected area. Mr, Barwick claimed that the constitution gave preference to inter-State trade. It said, in effect, that the States could do what they iiked with trade in their own territories but that interstate trade must be absolutely free.
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Bibliographic details
Gisborne Herald, Volume LXXVI, Issue 22917, 8 April 1949, Page 5
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328BANKS CLAIM FEDERAL ACT INFRINGES CONSTITUTION Gisborne Herald, Volume LXXVI, Issue 22917, 8 April 1949, Page 5
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