Bank of New South Wales v Commonwealth

Bank of New South Wales v Commonwealth
Court	High Court of Australia
Full case name	Bank of NSW & ors; Bank of Australasia & ors; Victoria; South Australia; and Western Australia (Plaintiffs) v Commonwealth; Treasurer of Australia; and Commonwealth Bank (Defendants)
Decided	11 August 1948
Citation(s)	[1948] HCA 7, (1948) 76 CLR 1
Case history
Subsequent action(s)	[1949] UKPC 37, [1950] AC 235; [1949] UKPCHCA 1, (1949) 79 CLR 497
Case opinions
Nationalisation of private banking amounts to a violation of an individual right to engage in particular types of trading and commercial activity under s 92. Failure to provide for the provision of interest on compensation meant the acquisition of bank shares and business was not made on "just terms".
Court membership
Judge(s) sitting	Latham CJ, Rich, Starke, Dixon, McTiernan and Williams JJ

Nationalisation of private banking amounts to a violation of an individual right to engage in particular types of trading and commercial activity under s 92.

Bank of New South Wales v The Commonwealth , also known as the Bank Nationalisation Case, is a decision of the High Court of Australia, that dealt with the Constitutional requirements that property be acquired on "just terms", and the interstate trade and commerce be free. The High Court applied an 'individual rights' theory to the freedom of interstate trade and commerce that lasted until 1988 when it was overturned in favour a 'free trade' interpretation in Cole v Whitfield.

Comfortable in government after two strong election wins, the Labor government of Ben Chifley announced in 1947 its intention to nationalise private banks in Australia. To accomplish this goal the Parliament passed the Banking Act 1947. Under the Act, shares in the private banks would be owned by the Commonwealth Bank of Australia, which in turn would be owned by the Federal Government. The proposal was controversial, and the constitutional validity of the law was challenged by a number of banks, including the Bank of New South Wales, as well as the non-Labor states of Victoria, South Australia and Western Australia. The banks were represented by a formidable legal team, with the Australian incorporated banks represented by Garfield Barwick KC, who would later become the Chief Justice, and the United Kingdom incorporated banks represented by Kitto KC, who would later be appointed to the High Court, while the Commonwealth was represented by the former High Court judge H. V. Evatt KC.

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