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1 correction by doug.butler - Show corrections

LONDON, March 14.-Tíie case for the Commonwealth Government in its appeal to the Privy Council against the  

decision of the High Court of Australia in invalidating sec-  

tion 46 of the Banking Act of 1947, which nationalises banking, is spread over 33 printed pages. The banks' case

(occupies 59 printed pages.

The appeals from the High   Court's five orders, declaring section 46 invalid and grant- ing injunctions, are consoli-


The appellants are the Commonwealth of Australia, the Federal Treasurer (Mr Ohlfley), the Ctommonweallth Bank of Australia, and fthe Governor of Hie Bank (Mr

Hugh Traill Armitage). The   respondents in the first ap- peal are the Bank of New South Wales and George Ro- land Love, a shareholder and director of the bank, and Nor- man Burgoun Perkins, an- other shareholder; the Com- mercial Banking Company of Sydney and Edward Ritchie Knox, a shareholder and di- rector, and Basil Colin Shubra Hordern, a share- holder; the National Bank of Australasia, and Harry Doug- las Giddy, a shareholder and director, and Vera de Lauret Rankin,, a shareholder; the Queensland National Bank in voluntary liquidation. and Fred Pace, liquidator; the Commercial Bank of Australia, and John Langley Wee, a shareholder and director, and Leslie Horace Ayliff White, a shareholder; me Bank ol Adelaide, and Sir Howard Watson Lloyd, a shareholder and director; : the Ballarat Banking Company Ltd. and the Hon. James Frederick Kffctson, a shareholder and director; the Brisbane Per- manent Building and Banking Company, and Walter Edwin Savage, a shareholder and di-


The respondents in the sec- ond appeal are the Bank of Australasia, tile Union Bank of Australia and the TgngHsh Scottish and Australian Bank The respondents in the third appeal are Victoria and the Victorian Attorney - General The respondents in the fourth appeal are South Australia and the South Australian Attorney General. The respondents in the fifth appeal are Western Australia and the Western Australian Attorney-General.

The Privy Council. granted the Commonwealth leave to appeal, but reserved to the re- spondents the right to raise the preliminary point that the appeals do not lie with a certi- ficate of the High Court under section 74 of the Constitution but if that point were decided against the respondents 1 they should be at liberty to raise all 1 such Constitutional points ta

they thought fit


. The appellants' case main tains that the Privy Council ii entitled to hear tile appeals without any necessity for thi appellants obtaining a certifi- cate from'the High Court.

The Commonwealth seeks ¡ reversal of tile High Court' decision for the following rea


' 1- Because on the prppe construction of section 74 o ? the Constitution, these appeal

to the Privy Council do not re quire a certificate of the Hig)

¡ Court.

2. Because section 921 of th Constitution does not lnvali date section 46 of the Bankin


3. Because the decision <

the majority.of the High Court in relation to section 92 is in- consistent with Privy Council decisions in the cases of James versus the Commonwealth, and James versus Cowan.

4- Because the object of sec- tion 92 of the Constitution is to secure free passage across State frontiers and not to limit the powers of the Parliament un- der section 51 (13) for the peace, order and good govern- ment of the whole Common- wealth to choose the persons who are to conduct the busi- ness of banking throughout the Commonwealth.

5. Because the real object of section 46 of the Banking Act is to regulate on a nation-wide basis and in tile national in- terest an important factor in the financial activities of the Community, namely banking.

6. Because section 46 of the Banking Act does not deal with i any interstate aspect of bank-

ing and any effect of the sec- tion on interstate trade and commerce is merely indirect

and incidental.

7. Because banking does riot fall within the expression, "trade, commerce and < inter- course," in section 92 of the Constitution, and accordingly section 46 of the Act does not impair the freedom of inter- state trade, commerce or in-


! 8. Because any other ob- jections which tiie respondents may raise or be permitted to raise against the validity of section 46 were rejected by the majority of judges of the High Court, and those judges were right in rejecting such objec-



The respondents contend that the High Court has not certified that any question re- lating to the validity of section 46 of the Banking Act is one which the Privy Council should determine, and that under sec- tion -74 of the Constitution the appeals do not lie in the ab- sence of such a certificate.

If, contrary to that submis- sion, it should be held that ..the Appeals are competent, the re- spondents will submit that sec- tion 46 is invalid. The respon- dents accordingly submit that since the High'Court has not granted a certificate .under sec- tion 74 of the Constitution that the section precludes the Privy Council from hearing and de- termining these consolidated appeals for the following, among other reasons:

1. Because the relief sought by the appellants in these con- solidated appeals carmot be granted by the Privy Council without determining an inter se question.

2. Because the declaration and injunction against which these consolidated appeals are made, are themselves decisions of the High Court on an inter se question

3. Because the determination of an inter se question was in- cluded in the rationes decidendi (reasons for judicial deaision) of the majority of the High Court judges who were parties

to the order of that court.

The respondents' case in- cludes a summary of the evi- dence pointing out the magni- tude of the business of the re- spondent banks and that all

- j

the banks (except the Ballarat Banking Company and the Brisbane Permanent Building and Banking Company) oper- ate Australia-wide organisa- tions and carry on extensive operations.

The respondents' summary of evidence also states .that the interstate banking facilities, which are provided by the re- spondent banks, could not pos- sibly be provided without the trained staff, equipment and assets which they are enabled

to maintain on an Australia wide basis, by reason of the balance of their entire busi- ness, both intrastate and inter- state. Not only does the con-

duct of modem business re-'

quire for its operation the utilisation of banking facilities,! but such facilities are essen-! tial to enable the "States to carry on and perform their necessary governmental func- tions.

The States' savings' banks and the Commonwealth Sav- ings Bank are competing for business and if the private banks were prohibited from carrying on business, the States' banks would be de- pendent upon the Common- wealth Bank for such facilities as they require.


The respondents contend that if. contrary to their sub- mission, section 46 of the Banking Act confers upon the Federal Treasurer power ' to give notice of the compulsory acquisition of any bank, the

section is invalid:

1. Because, in conjunction with section 22, sub-sections .5 to 9, of the Act it is a law for the acquisition bf the property of the private banks and does not provide just terms ; indeed it armed the intending pur- chaser with a power so menac- ing that no fair bargain could be expected.

2. Because» by tself, it is a law for the acquisition in whole or in part of the private banks' businesses, and ( pro- vides no compensation for that acquisition.

. The respondents state that section 92 of the "Constitution is an overriding Constitu- tional provision, guaranteeing freedom of trade, commerce and intercourse among thc States. It affectively withdraw! from both the Commonwealth and the Stetes power to name any law inconsistent with the freedom guaranteed. The Con- stitution thus deliberately cre- ates a gap in the legislative

Continued on Page Four)

Privy Council Appeal

(Continued from Page One)

field but, by section 128 of the Constitution, it enables the Australian people to reduce or close the gap if they see fit to do so. There is neither neces- sity nor warrant for reducing this gap by placing any gloss on rhe express words of the



The respondents contend that a banker, in carrying out interstate banking' transac- tions as part of his business, is to that extent engaged in in- terstate trade, commerce and


The respondents submit that the consolidated appeals should be dismissed for the following reasons:

1. They are. incompetent, m the absence of a certificate of

the High Court^ under section

76 of the Constitution.

2. Section 46 of the Banking Act is inseparable from the other provisions of the Act, whose invalidity is not chal- lenged by the appellants.

3. Section 46 of the Act is beyond the legislative power of the Commonwealth, derived from section SI or any other provision of the Constitution.

4. Section 46 of the Act con- travenes section 92 of the Con- stitution.

5. Section 46 of thc Act is j beyond the powers of the ?', Commonwealth, because it is

;j inconsistent with the mainten-

ir ance of the Constitutional in t tegrity of the States.

1 6. Section 46 of the Act con . travenes section 105A of the - Constitution and the financial

ij agreement made under it.

rt A pétition by the Govern límente of New South Wale« Aand^iififflfilftnd^j^jn^gGgnj

in support ol tne uomnwu wealth was granted.

The New South Wales and Queensland Government's peti- tions to Intervene were grant- ed without objection by the re-



j Before Dr Evatt opened for

the Commonwealth. Lords

¡Norman and Du Parcq men- tioned that they had a small j holding in one of the banks j I concerned. | j Lord Potter asked counsel!

! whether they would like the, two ¡lords to withdraw, but neither ¡Dr Evatt nor Sir Cyril Rad- cliffe raised any objection to

j the two law lords sitting to j ¡hear the appeal. j j Dr Evatt, opening the Com-j

; monwealth's case, poiniea oui

j that the main question was

i whether Section 46 of the 'Banking Act was invalidated by any section of the Constitu ition providing for interstate

free trade.

s* The special correspondent of

the Associated Press says : " In ¡ a small booklined judicial

{chamber of the Privy Council, j seven lords cf appeal-liords ¡Porter (chairman), Simonds. f Uthwatt, Du Parcq, Normand, ¡Morton of Henryton and Mc I Dermott-began their hearing

of the Commonwealth Gov- ernment's appeal against the High Court's decision invali- dating the Act nationalising banking.

Of the seven members of the i board, only Lords Simonds, Uthwatt and Morton heard the preliminary application for leave to appeal. Although the seven lords of appeal have pre- viously heard the Privy Coun

?j eil appeal, this crae tice li ver;