§ 413. “By any Law or Regulation of Trade, Commerce, or Revenue.”

The corresponding words of the United States Constitution, are “by any regulation of commerce or revenue.”

LAW OR REGULATION.—“Regulation” is a word which may be used in a general or a restricted sense. In its widest meaning it denotes any prescribed rule or order, and therefore includes every law; as, for instance, it does in the words of the United States Constitution quoted above. More particularly, it is often used to denote rules or regulations prescribed by the Executive under the authority of an Act of Parliament. Such rules, when within the scope of the authority given, have the force of law, and are in fact laws in every sense of the term. But the word “regulation” also includes purely administrative regulations, not made under the direct authority of an Act of Parliament, and not being laws in the proper sense of the term. The words ‘law or regulation,’ taken together, are wide enough to include every rule or order prescribed by the Parliament or by any department of the Government of the Commonwealth.

“Regulation” does not necessarily involve restriction; a regulation may be permissive.

“Regulation is not necessarily the imposition of a burden. The Federal statutes, for instance, authorize every railroad company in the United States, whose road is operated by steam, to carry passengers and property from State to State; to receive payment therefor, and to connect with roads of other States. This statute is a regulation of commerce made by Congress under the authority of the commerce clause, and yet is permissive only and imposes no burden.” (Prentice and Egan, Commerce Clause, pp. 188–9.)

“To regulate commerce has often been defined as ‘to prescribe the conditions under which commerce shall be conducted.’ Such a definition as this clearly brings within its scope all regulation of instrumentalities as well as acts of commerce. It is not surprising, therefore, that this definition has been often qualified by the general statement that ‘it is not everything that affects commerce that amounts to a regulation of it within the meaning of the Constitution.’ ” (Prentice and Egan, p. 189; Henderson v. Mayor of New York, 92 U.S. at p. 270; Munn v. Illinois, 94 U.S. 135.)

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Taxation of commerce is regulation of commerce—and indeed such taxation is often imposed with a view to regulation rather than with a view to revenue. (See Prentice and Egan, p. 198.)

TRADE, COMMERCE, OR REVENUE.—This section is a limitation upon two powers of the Commonwealth: the trade and commerce power, conferred by sec. 51—i., and the revenue power, contained chiefly in sec. 51—ii., but also incident to many other legislative powers of the Commonwealth. “Law or regulation of revenue” includes laws which deal with the raising of revenue from any source whatever—whether by taxation, by fines or pecuniary penalties, or by fees for licenses, fee for services, &c. The fact that, under sec. 54, bills appropriating such penalties or fees are not to be taken, for the purposes of that section, to “appropriate revenue or moneys,” does not mean that penalties and fees are not revenue—and indeed rather implies the contrary.

As regards taxation, the prohibition against preferences adds little, if anything, to the provision in sec. 51—i., that taxation laws must not “discriminate between States or parts of States.” But the use of the wider word “revenue” extends the prohibition to all revenues other than those arising out of taxation, and prevents any preference being given by the Commonwealth in respect of any revenue charges whatsoever; such as fees for postal, telegraphic, and telephonic services, or rates on railways of the Commonwealth.

This section, therefore, extends to all laws and regulations of trade, commerce, and revenue, the condition which is elsewhere imposed with regard to laws dealing with taxation—viz., that they shall not discriminate between States or parts of States. It is a limitation upon the power of Parliament to regulate trade, commerce, and revenue, and is intended to prevent discriminations in favour of one State against others. (Passenger Cases, 7 How. 283.)