to annex what conditions it pleases to the permission to enter it and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, or good government, or to its social or material interests." For that proposition the judgment cited Vattel, Law of Nations, book I., section 231; book II., section 125. Later on in the judgment it is said:" The power of expulsion is, in truth, but the complement of the power of exclusion. If entry be prohibited, it would seem to follow that the Government which has the power to exclude should have the power to expel the alien who enters in opposition to its laws."

66

66

The same doctrine has been definitely established in the United States of America. In Chae Chan Ping v. United States, 130 U.S., 581, the Supreme Court of the United States affirmed the validity of a former Act of Congress excluding Chinese labourers from the United States. In that case FULLER, C.J., said :-" Those labourers are not citizens of the United States; they are aliens. That the Government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power." To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The Government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers." In the later case of Fong Yue Ting v. United States 149 U.S., 698, the same doctrine was approved.

51, (xx.) Foreign corporations72 and trading or financial corporations formed within the limits of the Commonwealth :

§ 72. "CORPORATIONS."

LEGISLATION.

AUSTRALIAN INDUSTRIES PRESERVATION (ISAACS) ACT 1906.

The Australian Industries Preservation Act 1906, sections 5 (1) and 8 (1) assumed to be passed in the exercise of Commonwealth power over corporations provided :-

Section 5 (1) Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which, either as principal or agent, makes or enters into any contract, or engages or continues in any combination

(a) with intent to restrain trade or commerce within the Commonwealth to the detriment of the public, or

(b) with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an offence.

Section 8 (1) Any foreign corporation, or trading or financial operation formed within the Commonwealth, which monopolizes or attempts to monopolize, or combines or conspires with any person to monopolize, any part of the trade or commerce within the Commonwealth, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence.

Other sections of the same Act passed in the undoubted exercise of powers conferred by the Constitution, section 5 (1) relating to inter-state and external trade and commerce were as follows:

Section 4 (1) Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination, in relation to trade or commerce with other countries or among the States

(a) with intent to restrain trade or commerce to the detriment of the public; or

(b) with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers and consumers, is guilty of an offence.

Section 7 (1) Any person who monopolizes or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other countries or among the States, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence.

15B (1) "If the Comptroller-General believes that an offence has been committed against this part of this Act, or if a complaint has been made in writing to the Comptroller-General that an offence has been committed against this part of this Act and the Comptroller-General believes that the offence has been committed, he may by writing under his hand require any person whom he believes to be capable of giving any information in relation to the alleged offence to answer questions and to produce documents to him or to some person named by him in relation to the alleged offence.

(2) No person shall refuse or fail to answer questions or produce documents when required to do so in pursuance of this section.

Limits of Federal Power.

In the cases of Huddart Parker & Co. v. Moorehead; Appleton v. Moorehead, (1908) 8 C.L.R., 330, it was held by the whole Court that paragraph 51 (xx.) of the Constitution does not empower the Federal Parliament to create corporations, but is limited to legislation as to foreign corporations and as to trading and financial corporations created by State law. (Previous dicta suggesting the contrary, in Jumbunna Coal Mine Co. v. Victorian Coal Miners' Association, 6 C.L.R., at pp. 334, 355, must now be considered as of no authority).

It was further held by a majority (ISAACS, J. dissenting) that the paragraph does not empower the Federal Parliament to control the operations of corporations which lawfully engage in trade and commerce within a State. As to what the paragraph does empower the Federal Parliament to do, the dicta of the Justices forming the majority do not altogether agree. The Chief Justice and Mr. Justice BARTON thought that it gave power to forbid corporations from entering into any particular field of intra-state commerce, or to impose conditions upon their entry into such field, though not to control their conduct within the lawful sphere of their operations. Mr. Justice O'CONNOR thought that it was limited to legislation for the recognition of corporations as legal entities within the Commonwealth. Mr. Justice HIGGINS thought that it extended to regulating the status and capacity of corporations and the conditions on which they might carry on business.

The case involved the validity of sections 5 and 8 of the Australian Industries Act 1906. This Act, which was directed against contracts, combinations and monopolies in restraint of trade, was, as to most of its provisions, limited (in accordance with the limits of the federal power with respect of trade and commerce) to matters

with other countries and among

relating to trade and commerce the States." But sections 5 and 8, which dealt with offences by corporations, purported to extend to trade and commerce generally --including intra-state trade and commerce-the Parliament having acted on the view that these provisions could be supported as laws in respect of corporations, independently of the trade and commerce power.

On 22nd September 1908 the Comptroller-General of Customs, in writing, stated that he believed offences had been committed against section 5 (1) (a) and 8 (1) (relating to corporations), Part II. of the Australian Industries Preservation Act 1906 (as amended by the Australian Industries Preservation Act 1907) in connection with the trade in coal, and he called upon Huddart Parker & Co. Ltd., a company duly formed under the laws of Victoria, to answer in writing several questions.

On the same day the Comptroller-General, in writing, required William Thomas Appleton, the manager of the above-named Company, to answer the same questions, stating in this case that he believed that offences had been committed against sections 4 (1) (a) and 7 (1) relating to inter-state trade. Both the company and Appleton refused to answer the questions, and they were charged on information by R. W. Moorehead, an officer of customs, with having refused to answer the questions. The informations were heard at the Court of Petty Sessions at Melbourne on 28th September 1908. and in each case the defendant was fined £5.

The defendants appealed to the High Court on the grounds :That sections 5 (1) (a) and 8 (1) of the Australian Industries Preservation Act 1906 were unconstitutional and ultra vires, and, therefore, proceedings could not be lawfully taken under section 15B of such Act (as amended), based upon a statement of the belief of the Comptroller-General that an offence had been committed against such sections. That the provisions of sections 5 and 8 were not really laws with respect to corporations but were laws with respect to trade and commerce; that section 15в was invalid.

It was decided by the whole Court that sections 4 (1), 7 (1) and 15B of the Australian Industries Preservation Act 1906 (as amended by the Australian Industries Preservation Act 1907), so far as applicable to inter-state trade were intra vires the Commonwealth Parliament and valid. It was further decided by the Court that

the inquiry authorized by section 15в was not inconsistent with the right to trial by jury conferred by section 80 of the Constitution. The Court also held that such an inquiry by an officer was not an exercise of the judicial power of the Commonwealth and was therefore valid.

The majority of the Court held that sections 5 and 8 penalizing corporations were ultra vires and void; that they were not laws in respect of corporations, but an unconstitutional attempt to control intra-state trade and commerce.

In the result the conviction of Huddart Parker & Co., on the information under sections 5 and 8 relating to corporations engaged in the internal trade of a State was quashed. The conviction of W. T. Appleton, for refusing to answer questions relating to interstate trade was confirmed.

66

The Chief Justice (Sir SAMUEL GRIFFITH), in his judgment said: Sections 4 and 7 are limited in terms to matters in relation to trade and commerce with other countries and among the States, and it is not suggested that these enactments are not within the first of the powers enumerated in section 51 of the Constitution. Sections 5 and 8 are not so limited as to subject-matter, but are limited to foreign corporations and trading and financial corporations formed within the Commonwealth-adopting the language of pl. xx. of section 51. It is common ground that sections 5 and 8, as framed, extend to matters relating to domestic trade within a State, and the question is whether the power to make laws with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth' extend to the governance and control of such corporations when lawfully engaged in domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth Parliament can make any laws it thinks fit with regard to the opera tion of the corporation, for example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them. In short, any law in the form 'No trading or financial corporation formed within the Commonwealth shall,' or Every trading and financial corporation formed, etc., shall,' must necessarily be valid, unless forbidden by some other provision of the Constitution.