37.
83 These principles informed the reasoning of Griffith CJ, Barton and O'Connor JJ in Huddart Parker. And because these principles underpinned the then accepted doctrine of the Court, they find some reflection in the reasoning of both Isaacs J and Higgins J. But both Isaacs J and Higgins J had expressed their opposition to the reserved powers doctrine in R v Barger[1] and in Attorney-General for NSW v Brewery Employés Union of NSW ("the Union Label Case")[2]. As Higgins J said in Huddart Parker[3], it is a mistake to treat the internal trade of a State as forbidden to the federal Parliament "until the utmost limits of all the powers conferred on that Parliament by sec. 51 have been ascertained". And as Isaacs J pointed out[4], s 107 of the Constitution, relied on as working the reservation of domestic trade and commerce to the States[5], reserves to the parliaments of the States only those powers not exclusively vested in the federal Parliament or withdrawn from the parliaments of the States. The relevant question presented by s 107 thus is what legislative power the Constitution grants to the federal Parliament, not what the Constitution prohibits or reserves.
84 To give effect to the reserved powers doctrine, any uncertainty or ambiguity in the federal power was resolved, as O'Connor J put it[6], by giving "full operation to the power conferred" but not so as to make it "inconsistent with those portions of the Constitution which leave to the State exclusive power to regulate its own internal trade". And the alternative view of the ambit of the power given by s 51(xx) posited by Griffith CJ, that "no limit can be assigned to the exercise of the power"[7], was rejected on that basis.
85 The second matter of present relevance to notice about what was said in Huddart Parker is, as noted earlier, the use that was made of a distinction
