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§ 428. “Forbid.”

The widest and simplest way in which the Parliament could exercise its power of prohibition would be by a law following the words of this section, and so occupying the whole field. It is clear, however, that the Parliament is not restricted to the alternatives of exercising all the power or none. It may legislate to prevent personal preferences and discriminations only, or preferences and discriminations only which are unjust to any State. It need not forbid all preferences and discriminations which are undue, &c.; it may forbid any preference or discrimination which is undue, &c.

It is equally clear, however, that the Parliament has no power to define or interpret what constitutes a preference. If the Parliament departs from the words of the section, and attempts to forbid, in general terms, particular kinds of rates, such as low long-haul rates, or group rates or terminal charges, it will be powerless to make such rates preferential unless they are, in fact and in law, preferential. And if the Parliament prohibits a general class of rates which, qua that class, are not necessarily preferential, it will run the risk of the whole law being declared void by the High Court. It does not seem, however, that any exception could be taken to a law which prohibited a special


  ― 905 ―
kind of rate—for instance, a less charge for a long-haul than for a short-haul—“so far as the same may be a preference or discrimination which is undue and unreasonable, or unjust to any State.”

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