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What is the relationship between section 51(i) and section 92 of the Constitution Critically assess the approach of the High Court in its interpretation of the relationship between the two sections in the Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (Bank Nationalisation Case). Critically assess the High Court's interpretation of section 92 in Cole v Whitfield (1988) 165 CLR 360. How did the Court apply Cole v Whitfield in Castlemaine Tooheys Ltd v South(1990) 169 CLR 436.
The Bank of New South Wales v Commonwealth case or as is famously referred to as the Bank Nationalisation Case, saw a noteworthy decision being given by the High Court. In this case, the constitutional requirements were dealt with, with regards to the property being acquired on “just terms”, along with the interstate trade and commerce being free. Under this case, the power of the commonwealth, which was related to the acquisition of property, pursuant to section 51(xxxi) of the Constitution was considered by the court. Further, the level of compensation which had to be provided to the banks, which were being acquired, on the basis of the bank nationalisation scheme, being provided on just terms of not, was also discussed under this case. A key discussion of this case was the applicability of section 51(xxxi) and 92.
In the following parts, the relationship between section 51(i) and section 92 of the Constitution has been elucidated, to understand the manner in which they coincide and contradict each other. Once this is done, the approach adopted by the High Court, regarding the relationship between these two sections, in the quoted case has been discussed. The Commonwealth is empowered through section 51(i) of the constitution of the nation to legislate regarding the matter which relate to the trade and commerce with the other nation and within the states. The key issue with regards to section 51(i) relates to the meaning which has been attributed to the term trade and commerce. This question was addressed by the High Court in 1920, in the matter brought before it in W&A McArthur Ltd v Queensland. Read More...
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