Constitutional Law Notes

What is a Constitution? Constitutional government is a government that as a Constitution which limits the

powers of political authorities and is not susceptible to easy modification or abrogation

Constitution as Paramount Lawo A law overriding all other laws (laws must comply with the Constitution or

will be deemed invalid) Will not be able to be amended through an ordinary statute

o Determines the power of each area of government (separation of powers)o Usually found in written form – one or more documents o Will include – details of the key branches of government (their composition

and power), protected rights and freedoms, procedure of changing the Constitution

Constitution as the actual system of government (living Constitution)o Need to consult supplementary legislation, conventions and relevant judicial

proceedings o Many areas of government are not specified in the Constitution but have

developed through convention (e.g. the Australian Constitution makes no mention of the Prime Minister)

o Constitution in actual operation (a country may have a very good written Constitution but the experience of the society does not reflect the Constitution if judges/politicians are corrupt)

Constitution in the Philosophical Senseo The realization of an ideal (never fully realised)o Designed to limit/contain power and implement the rule of law

The Unwritten Constitution – a constitutional government may exist without a written constitution

o E.g. the United Kingdom – government derives their composition, powers, privileges and basic procedures from ancient custom and common law, conventional practice and a few defining statutes

o Parliament is supreme – legislation cannot be questioned by the courts Mixture of ideas – Westminster system from the UK, the written form, federalism,

separation of powers and judicial review from the USA Dicey – constitutional law includes “all rules which directly or indirectly affect the

distribution or the exercise of the sovereign power in the State” Ideal Constitution – constitutional stability (hard to change), representative

democracy, separation of power, federal distribution of power, protects basic rights and liberties

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Separation of Powers Sections of the Constitution vests the three great powers into three different

branches of governmento s.1 – legislative power vested in Parliament (Queen, Senate and HoR)o s.61 – executive power vested in the Queen (exercised by GG)o s.71 – judicial power vested in High Court, other federal courts and other

courts (State Courts) (known as CH III Courts) This ideal is impossible to achieve completely

o E.g. Separation of powers does not completely exist in Australia – the executive has majority support in HoR, the executive organized the legislative agenda (the executive control what Bills are passed), High Court allows legislature wide law making power, judges are appointed by the executive and removable by Parliament

The HC has condoned integration of the legislative and executive power but is strict on separation of judicial and non-judicial powers

Legislative Powero Capacity to change existing legal relations (creating new rules – must apply

generally (or to a class), not an individual)o Legislative power is distributed between Federal and State levelo Legislation that involves matters of policy or principle should be made by

Parliament (not the Executive) Executive Power

o Extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth

o Most commonly – accomplishing physical tasks within the limits of the law (e.g. carrying out public work on Crown land using funds already appropriated for the purpose)

o Police power – keep the peace and investigate and prosecute criminals. Police officers have no power to violate a citizen’s rights without the authority of law

o Military power – power to declare war and peace, deploy the nation’s military forces

o Foreign Affairs power – power to conduct relations with other nations and international organisations and make treaties with foreign States (treaties must be adopted by legislation to become domestic law)

o Contracts power – power to enter into contracts to achieve the purposes of government (can’t create legal relations unilaterally, only consensually)

o Power to alter legal relations unilaterally or coercively – power to create new legal relations or modify existing legal relations without the consent of the affected person (e.g. licences, authorisations, approvals and other regulatory orders) Quasi-Judicial Power

Different from legislative power in that while it allows the creation of new legal rights, these rights are not general and only apply in the particular case

Judicial Powero ‘The power which every sovereign must of necessity have to decide

controversies between its subjects, or between itself and its subjects, wether the rights relate to life, liberty or property.’ The exercise of this power does not begin until ‘some tribunal which has the power to give a

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binding and authoritative decision (whether subject to appeal or not) is called upon to take action’ – per Griffith CJ, Huddart, Parker & Co Pty Ltd v Moorehead (1909) at p.357.

o Two key aspects- existence of a controversy and the capacity to determine the controversy conclusively

o Judicial power is controlled power – it’s exercise is based on authoritative legal materials (rules, principles, conceptions and standards)

o Judicial power of the Cth is vested almost exclusively in CH III courtso Key question when it comes to judicial power – is the relevant power

characterised as judicial power o Jurisdiction (is the matter one in relation to which the judge may act?) – no

court has unlimited jurisdiction (s.73 – appellate jurisdiction, s.74 - original jurisdiction in respect to certain subjects, s.76 – Parliament can confer additional original jurisdiction)

o Effect – declare rights and duties of litigants according to established law but not altering legal positions (incremental changes)

Elements of Judicial Power (each must exist for the power to be deemed judicial)o Controversy

Must be a controversy between two parties (either the Crown and a subject or between two subjects)

Controversy is absolutely necessary Ch III defines federal jurisdiction in relation to matters (Re Judiciary Act interpreted the term ‘matter’ to refer to a controversy concerning a right, duty or liability

The dispute must be brought before the court – the court does not go out of their way to bring a matter before them

The Question of Standing – judicial power can only be exercised when a controversy is brought before the court by a person entitled to do so. The person has locus standi – a personal interest in the matter greater than the public

The Attorney-General has standing to bring an action to defend a public right

o Rights, Liberty and Property The controversy must concern ‘rights, liberty or property’ Two elements: rights must be - existing rights and basic rights Pre-Existing Rights

Must decide controversy according to existing rights and obligations, not create new rights and obligations – Tasmanian Breweries Case (1970)

This means that judges don’t make law – this is arguable. However, if judges do make law it is different to law made by the legislature (they can’t make law on any matter they want – limited to the controversy at hand – and must observe the rule of natural justice)

Basic Rights R v Quinn (1977) – judicial power is exercised only with

respect to ‘basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom.’

Problem – what rights are considered basic?

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o Conclusiveness Capacity to give a binding or authoritative decision (whether subject

to appeal or not) The court/tribunal doesn’t necessarily have to possess the ability to

enforce its own decisions – R v Davison (1954) Court of Record – a court that has the power to both make

determinations and enforce them (Alexander’s Case (1918)) Doctrine of res judicata – the matter cannot be litigated again by the

same litigants Doctrine of functus officio – the decisions cannot be varied by the

same tribunal except in very limited circumstances Doctrine of collateral attack – the decision made within jurisdiction

cannot be questioned in a collateral proceeding De novo hearings – the decision must not be subject to a de novo

hearing (when a court rehears both the evidence and legal submissions

Brandy v HREOC (1995) – stated the requirements of a de novo hearing

o The original decision is not enforceable because the aggrieved party failed to appeal

o There is no onus to appealo To enforce the decision, a new action must

commence in a proper courto Prosecutor must lead all the evidence – no

discretion, it is a new actiono The court must rehear the case on facts and law

If all of these conditions are met, the initial decision is not conclusive

o Non-Consensual Both parties don’t need to consent to go to court

Chameleon Powero R v Quinn – the power vested in the registrar to cancel the registration of a trade

mark was non-judicial. However, in Farberfabriken, the court held this power to be constitutional. Why?

o A chameleon power is judicial when vested in a court and is non-judicial when vested in some other body

o Principle of contradiction – you can’t say something is and isn’t at the same time – condemned in Visnic v ASIC (2007) and Alberran (2007)

Separation of Legislative & Executive Powers

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o Weak separation – the executive usually controls the HoR, parliament can delegate wide legislative power to the executive, the GG can summon/prorogue (suspend)/dissolve parliament

o Victorian Stevedoring Co and General Contracting Co v Dignan (1931) The separation was initially weak – but has been further weakened

by the court s.3 (which allowed the GG to make regulations on all aspects of

waterside employment) challenged based on unconstitutional delegation of legislative power

s.3 was upheld – reasons: responsible government is a safeguard, parliament can repeal bad executive law

Court suggested 2 limitations to delegated legislation: Must not be too wide that legislation can’t be characterized Must not amount to abdication of power

o Legislative Standards Act – lay down standards about delegating legislative power (laudable, not binding – not Constitutional)

Separation of Judicial and Non-Judicial Power The High Court is very strict in ensuring that judicial power is not given to other

bodies and that non-judicial power is not given to courts Rationale:

o Federalist: independent judiciary to maintain federal division (an independent judiciary can only be achieved if the judicial power is separated from other powers)

o Libertarian: checks and balances and judicial independence

KEY PROVISION: s.71 – The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

s.72 – the tenure and remuneration of federal judges s.73 – the appellate jurisdiction of the High Court s.75-76 – the original jurisdiction of the High Court s.77 – the Parliament’s power to define and invest federal jurisdiction in federal and

State courts

The High Court seeks to invest judicial power in only CH III Courts and prevent the vesting of non-judicial power in these courts

Prohibitory Rules1. Judicial power of the Cth shall not be vested in bodies not designated in CH III

Such bodies = High Court, Federal Courts (Federal Court, Family Court, Federal Magistrates Court) and State Courts in which Parliament vests federal judicial power)

Boilermakers Case (1956) – established this rule: the language of the Constitution prevents the possibility of vesting judicial power in other bodies

2. Judicial power may be vested only in courts in the strict sense

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A body is regarded as court if its main function or functions are judicial – Alexander’s Case (1918)

3. Federal courts that exercise judicial power must conform to s.72 The court must be constituted as provided in s.72 – Alexander’s Case Requirements: federal judges are appointed by the Governor-General;

removal can only be done by the Governor-General on an address of both houses of parliament on the grounds of proved misbehaviour or incapacity; remuneration of judges must be fixed and not diminish

Tenure for life (until 70) – can’t appoint judges for fixed terms (Alexander’s Case)

4. A court may delegate judicial power but must not abdicate judicial power Relieve the court from some of their work by assigning non-contentious

aspects of jurisdiction to officials who are not judges Harris v Caladine (1991) – Held that delegation of judicial powers to those

who are not judges (e.g. registrars) is valid providing that:o The delegation is not so extensive that it can no longer be said that

judges constitute the courto The delegation must not be inconsistent with the obligation of the

court to act judicially, and the decisions must be subject to review or appeal by a judge

The structure of the Court must not change The person the power is delegated to must be an official of the court

5. Judicial powers not within CH III must not be vested in the High Court or other federal courts

Re Judiciary Act (1921) – s.88 of the Act gave power to the HC to determine the validity of laws referred to it by the Governor General. It was held that as the power was judicial power outside of CH II, it was not exercisable by the High Court

The express vesting of some powers means the exclusion of other powers 6. Federal courts cannot exercise State judicial power except in cases of ‘accrued

jurisdiction’ Federal courts can exercise State judicial power in cases in which both

Federal and State jurisdiction arise in the same controversy7. Parliament must not vest non-judicial power in CH III courts

Boilermakers Case - the reasoning that judicial power cannot be vested in bodies that are not CH III courts due to the express vestment of such power in CH III courts must be applied to legislative and executive power (non-judicial power). As non-judicial power is expressly vested in other bodies, this means they cannot be vested in CH III courts.

There are exceptions. There is a difference between Federal and State courts in respect to this: (more non-judicial power can be given to State courts than to federal courts)

o Non-judicial power may be given to State courts providing that it is not incompatible with the exercise of federal judicial power (Kable, Fardon, Baker)

o Non-judicial power can’t be given to the HC or federal courts unless it’s incidental to the exercise of judicial power (Bond, Thornton, Davison)

8. State Parliaments must not vest in State courts non-judicial powers that are incompatible with their exercise of federal judicial power

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There is an absence of an explicit separation of powers in State Constitutions – allows State courts to exercise non-judicial power

Alexander’s Case – State Parliaments can give State courts non-judicial powers providing they do not threaten the character of the courts as bodies that primarily perform judicial function and do not undermine the courts’ capacity to exercise federal judicial power by diminishing public confidence

9. Parliament must not remove from courts jurisdiction that the Constitution has directly vested in them

Appellate Jurisdiction – s.73 has jurisdiction to hear appeals from all judgments from the original jurisdiction of the High Court, any other federal court, State Supreme Court, or any court – this right to appeal to the High Court cannot be removed (Cockle v Isaksen (1958))

Original Jurisdiction under s.75 cannot be removed – Lim v Minister of Immigration (1992)

10. Parliament must not direct the way courts exercise judicial power Parliament cannot direct the manner and outcome of the exercise of judicial

power Legislation should not impose a judgment on the court (Calder v Bull) or

intervene in judicial proceedings 11. The ban on bills of attainder and ex post facto punishment

Basic doctrine – it is lawful to do whatever the al woes not forbid Retrospective laws are not permitted – Polyukhvich v Commonwealth (1991)

Permissive Rules1. The persona designate rule

Non-judicial power can be vested in a judge in his/her personal capacity – Hilton v Wells (1985)

Grollo v Palmer (1995) imposed two conditions:o Compatibility condition – compatible with the judge’s capacity to

perform further judicial functions (time) and with the court’s responsibility (confidence)

o Consent condition – the judge must consent to being given the power unless it is incidental to judicial power

2. Judicial power with respect to military offences by service personnel may be vested in courts martial

Power outside CH III, thus can be given to a military tribunal – White v Director of Military Prosecutions (2007)

A service offence can also be a ‘civil’ offence triable under a CH III court (e.g. assault of a civilian while on duty)

What is a service offence? - E.g. desertion in times of war, insubordination, drunkenness on duty, unlawful discharge of a weapon. Two theories:

o Service status theory – triable by court marital if committed by a military servicemen even if it does not concern military discipline

o Service connection theory – triable by court martial only if connected to the purpose of maintaining military discipline (majority of judges like this theory but some disagreement – e.g. Alpert (2004) – rape by a service personnel while on recreational leave, triable by court martial)

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3. Parliament may exercise judicial power in relation to its own powers, privileges and immunities

Contempt of Parliament – influencing a member one way or another, giving false evidence to a committee of Parliament, stopping a member from getting to Parliament (Parliament decides what is contempt)

With these acts – parliament can exercise judicial power in relation to them (s.49 - Parliament may declare its own privileges – Parliamentary Privileges Act)

4. Superior courts may make rules of procedure Legislative in character – power of courts to regulate their own procedure

(general rules of conduct R v Davison (1954) – making procedural rules is ‘an extreme example of a

function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power’

Separation of Powers in State Constitutions State Constitutions do not recongise separation of powers to any degree - courts did

not recognize any separation until Kable v DPP (1996) State Parliaments can delegate but not abdicate legislative power HC’s doctrine of institutional integrity (DII) has effected a degree of separation of

powers. 4 aspects:o Grant of Incompatible Jurisdiction – State legislature must not grant a State

court a power that is incompatible with its role as a court exercising federal judicial power

o E.g. - Kable v DPP (1996) – legislation allowed the court to issue a detention order if it was likely that Kable would commit an act of violence - giving the court the power to make detention orders makes the court an instrument of government policy (undermines public confidence/independence) – this is incompatible with the federal judicial power vested in them)

o Depriving Supervisory Jurisdiction – State Supreme Courts have the power to confine inferior courts to the limits of their jurisdiction by granting relief (usually by writ of certiorari) on the grounds of jurisdictional error (an error leading to the court exceeding its legal power)

o State parliament can’t deprive Supreme Courts of this power – Kirk v Industrial Court of New South Wales (2010)

o Integrity of the constitution of courts should not be affected – excessive acting appointment would distort the character of the court as an independent and impartial body (this is not constitutional – tenure until 70)

o State law leading to failure of natural justice – basic requirements are impartiality and reasonable hearing

o Gypsy Jokers (2008); K-Generation (2009) – possible for court to receive criminal intelligence and not give this information to the defendant

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Commonwealth-State Relations

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The relationship between Cth and State government is a crucial part of the constitutional framework

Federation is evident throughout the Constitution Cth and States have defined areas of power – there is a possibility of conflict

o s.51 – enumerated powers of the Ctho Some powers are exclusive to Cth – s.52 and some other ones scattered

throughout the Cth (e.g. ss. 90 and 122)o Some powers are exclusive to States as they are not explicitly given to the

Cth – Residual Powers (s.107)o Some powers are concurrent – s.51 this raises the possibility of conflict

Conflict can arise in 3 ways:o Inconsistencies between Cth and State legislation in respect of concurrent

powers (s.109 prevails)o Cth legislation affects the executive government of the Stateso State legislation affects the executive government of the Cth

First question to ask: Does the subject matter of the law fall within one or more enumerated heads of power of the Cth?

Crown Immunity:o Distinct from intergovernmental immunities o The Crown is immune from lawsuits, legislation doesn’t bind the crown, the

Crown is a priority in the repayment of debts Intergovernmental Immunities:

o The idea that the Cth and the States may be impliedly wholly or partly immune from each other’s laws

o Prohibits the Cth and the States imposing upon each other’s agents and instrumentalities burdens that fetter, control or interfere with the free exercise of the legislative or executive power

o To what extent is the executive of the State/Cth government immune from interference from the other level of government?

o Three stages in the HC’s approach Dual sovereignty (1903-1920) – extensive ‘immunity of

instrumentalities’ was recognised (very strict) Legislative sovereignty (1920 – 1947) – no immunities were

enforced. The Cth was given broad power to regulate the States (this shift was caused by The Engineer’s Case)

Dual Federalism (1947 – present) – immunities revived in a modified form. A balance between the two previous stages (compromise of strict and relaxed)

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Dual Sovereignty Early days – the court was prepared to subject federal powers to heavy scrutiny Doctrine of reserved powers - where a power wasn’t expressly given to the Cth, it

belonged to the States

D’Emden v Pedder (1904) o Interference with Cth by a Stateo Looked at whether salary paid by the Cth to a Cth employee was subject to

State stamp dutyo Held: this was not allowed as it was a form of interference by the States. The

statute was read down so not to apply to the Ctho ‘When a State attempts to … fetter control or interfere with, the free

exercise of the legislative or executive power of the Cth’ the attempt is invalid (p.111) – need to keep the two levels of government separate

o Followed by Deakin v Webb, Cth v NSW and Baxter v Commissioner of Taxation

o KEY CASE: established that the two levels of government were wholly immune from the other level of government

Railway Servants’ Case (1906) o Interference with States by the Ctho Cth law relating to industrial arbitration scheme that was to bind NSW

government instrumentalities (businesses that are under the control of the gov’t –e.g. Australia Post, provision of utilities)

o While the Cth has the power to make laws with respect to this under the conciliation and arbitration power (s.51(xxxv)). However, need to consider implied immunities – this will restrict the exercise of Cth power

o Held: the Cth could not force NSW to take part in the industrial arbitration framework. Need to keep each government level separate

R v Barger (1904) o Interference with States by Ctho Question – could a Cth law impose a special tariff on agricultural machinery

used by factories that didn’t grant their workers certain conditionso Held: no as this was outside the Cth’s taxation power (can’t use taxation to

interfere with an area of State power – indirectly interfering with workers conditions) and it discriminated between the States

o The Cth can’t use the taxation power to interfere with a State area

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Exception to the Immunities - 3 main exceptions:o Interference is permitted in regard to a Cth power that involved control of

some aspect of State government –(e.g. Cth power to regulate interstate trade and commerce)

o Trading activities of State instrumentalities may be subject to Cth regulations as long as regulations are the same as other businesses (general regulations that only apply to trading activity, not employment conditions)

o Local governments do not enjoy immunity from Cth laws

Legislative Sovereignty Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) (The

Engineers’ Case)o Concerned a union award for engineers that was endorsed by a Cth

industrial relations tribunal. Was the award binding on the States as employers?

o Question – Does the Cth government have the power to make laws binding on the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one State?

o s.51(xxxv) – arbitration power – read broadly to cover all disputes across State borders. No reason why an Act based on this power would not apply to States.90

o States that the Railway Servants’ Case was decided wrongly o What changed? – different judges (influential judges left)

West v Commissioner of Taxation (NSW) (1937) o Concerned whether the NSW State government could tax the pension of a

retired Cth public servanto Dixon J stated that ‘where … separate and exclusive governmental powers

have been allotted to two distinct organisms, neither is intended … to destroy or weaken the capacity of functions expressly conferred on the other’

Dual Federalism (this is where we are at now – look at these cases) Melbourne Corporation v Commonwealth (1947)

o Interference with States by the Ctho Concerned an attempt by the Cth government to nationalise the banking

industry. The Banking Act 1945 (Cth) attempted to prevent private banks from providing services for a State or a State instrumentality (s.48 made them bank with the Commonwealth Bank). The Melbourne City Council challenged this law on the grounds that it was not within the Cth banking power and it was an impermissible interference with State governments

o Held: the HC struck s.48 down and stated that it was invalid based on the fact that the law singled out the States

Dixon J – Laws that impose a disability or burden upon the States are unconstitutional. ‘A distinction is drawn between laws of general application and laws singling out governments and placing special burdens upon the exercise of powers or the fulfilment of functions constitutionally belonging to them.’ (pp.81-82)

This applies to all powers under s.51 – except for some powers which authorise discrimination against the States (xxxi, xxxii, xxxiii, xxxiv)

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Dixon J: - stated what he believed to be the legal proposition of the Engineers’ Case – a power given to the Cth to legislate in respect to a given subject allows the Cth to make laws that affect the operations of the States and their agencies

Reservations – the use of federal legislative power to make a law that discriminates against States

Stated that the Cth cannot enact a law ‘aimed at the restriction or control of a State in the exercise of its executive authority’

Starke J – stated that legislation will be invalid if aimed to destroy the other level of government. Question: does ‘the legislation or the executive action curtails or interferes in a substantial manner with the exercise of constitutional power by the other’? (p.75) – if so, the legislation is invalid.

Latham CJ – based his reasoning on either/or characterisation, which is now discredited

Rich J – There is no implication in the Constitution that the Cth is restricted from exercising its powers to the fullest extent due to reservation to the States. However, ‘the Constitution expressly provides for the continued existence of the States. Any action on the part of the Cth … which would prevent a State from continuing to exist and function as such is necessarily invalid.’ Action can be invalid in two cases –

‘where the Cth singles out the States or agencies … and imposes on them restrictions which prevent them from performing those functions’

‘where, although the States or their essential agencies are not singled out, they are subjected to some provision of general application which in its application to the would so prevent or impede them.’ (p.66)

o Two key questions (Dixon J approach): Is the legislation within power? If so - Does the legislation violate any prohibitions? (offend an

express or implied limitation on the Cth’s use of power) It was held that the law was within the banking power but

violated an implied immunity o Some confusion as to which criteria to address in regards to interference

with State function as all judges adopted different approaches

Commonwealth v CIgamatic (1962) o Interference with the Cth by a Stateo Concerned a NSW statute that interfered with the Crown’s prerogative right

of the Cth to be prioritised in the payment of debt after insolvencyo Stated that the federal system is a dual system – if there is any supremacy,

it belongs to the Cth (States do not have the power to regulate the rights, privileges, duties or disabilities of the Cth)

o Uther v Federal Commissioner of Taxation (1947) – Rich J stated that a State is allowed to abolish a prerogative of the Crown. Dixon CJ held in Cigamatic that Uther should not be considered as binding

Victoria v Commonwealth (Payroll Tax Case) (1971)

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o Interference with States by the Ctho A Cth Act imposed a general tax of 2.5% on all wages paid by an employer

(which included States and State entities). States argued that this was not within the Cth’s power as it interfered with the functioning of State governments as employers

o HC held this was valid as it was a general law – didn’t only apply States in order to disadvantage them (applied to all employers – some exceptions)

o Reaffirmed the principle in Melbourne Corporationo Barwick CJ – ‘the government cannot ‘aim’ its legislation against a State’

His understanding of Melbourne Corporation – ‘a law of the Cth which in substance takes a State or its powers or function of government as its subject matter is invalid because it cannot be supported upon any granted legislative power’ (p.372)

Looked at characterisation – if the Act has two subject matters (one within s.51 and one not), then you need to consider what is the true subject matter - ‘It is the lack of an appropriate subject matter rather than the presence of an implied limitation upon some granted power that such a law … would fail.’ (p.373)

o Windeyer J – ‘implications arising from the existence of the States as parts of the Cth … may restrict the manner in which the Parliament can lawfully exercise its power to make laws.’ (p.403)

‘A law, although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Cth if it be directed to the States to prevent their carrying out their functions.’ (p.403)

Melbourne Corporation was decided on - Implied limitation to the power of the Cth due to the federal structure of the Constitution

o Gibbs J – ‘there should not be implied in the Constitution a limitation upon the legislative powers of the Cth that would render invalid any law to the extent which it purports to impose a tax upon the States.’ (p.423-424)

Accepts Dixon J’s view that a law is bad if it discriminates against States in the sense that is imposes a burden or disability upon them

Key question: does the legislation discriminate against the States?

Queensland Electricity Commission v Cth (1986) o Interference with States by the Ctho There was an industrial dispute between electricity workers and the QEC

(QLD government body). The Cth government intervened by passing legislation to bring the case into Cth jurisdiction to be dealt with by the Cth Conciliation and Arbitration Commission

o HC held that this law was discriminatory against QLD and was invalido Clarified the test to apply to Intergovernmental Immunities cases (QEC test –

per Mason J at p.217-218): (If yes, the law was invalid) Does the Cth law single out or discriminate against the States?

(anti-discrimination test – laws can’t place special burdens on State governments that don’t apply to other bodies)

Does the law inhibit the capacity of a State to function as a government? (function as a government test – laws of general application cannot operate to destroy or curtail the existence of States or their capacity to function as governments)

Key things to note:

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o Prohibits legislation that both discriminates against a particular State and States in general

o A law that deprives a State of a right, privilege or benefit that places them on equal footing with other States is not discriminatory

o These prohibitions apply both to States and agencies of the States (e.g. Melbourne Corporation)

o Deane J – the fact that a general law places an onerous burden on the States does not necessarily mean that it is discriminatory – the law must ‘discriminate in the sense that its operation involves a singling out of the States in a way that would prevent them from performing their essential functions or which would impede them in doing so’ (e.g. Payroll Tax Case – just because the tax paid by the States was particularly large and had an onerous effect, the legislation was not discriminatory as it did not single States out

Western Australia v Commonwealth (Native Title Act Case) (1995) o Interference with States by the Ctho The Act limited the way in which State government could respond to native

title claims. The State had to pay compensation in some cases. WA argued that this Act was discriminatory and that is interfered with their capacity to function as a government.

o HC held the Act was not discriminatory (it may affect WA more as there is a higher percentage of Indigenous people; but this wasn’t intentional)

o HC also held that there was no deprivation of the ability to function as government.

o The case stated that the second limb of the QEC test applies to: The ‘existence and nature’ of the State gov’t, but not specific

powers The ‘machinery of government’ and the capacity of the relevant

organs to exercise their power The essential ‘personnel, property, good and services’ the State

requires to operate

Re Australian Education Union; Ex parte Victoria (1995) o Interference with States by the Ctho A dispute arose when the Victorian government offered redundancy

packages to some school teachers and health workers. The union wished to bring the dispute under a federal award.

o Distinction between two categories of employees: (A) Non-high level officers (anyone not in the top level of managers) (B) High level officers (e.g. ministers, ministerial assistants and

advisers, heads of departments, parliamentary officers, judges)o Held that the Cth can’t interfere in State employment with respect to:

(these aspects are critical to a State’s capacity to function) For Category (A) (p.232)

The ‘number and identity of persons’ of people to employ The ‘term of appointment’ of employees (part-time, full-

time, casual, until retirement, etc) The ‘number and identity’ of people who they wish to

dismiss, with or without notice, on redundancy grounds

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For Category (B) (p.233) All those for Category (A) Qualification and eligibility conditions Number, identity, terms and conditions of employment for

the higher levels of government o Basically – the Cth cannot interfere with category

(B) employees in any respecto Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ gave a joint

judgment.o Held: ‘the existence of the States … and their capacity to function as

a government would not be impaired by the operation of federal awards made in respect of the vast majority of employees … if the award provisions were confined to minimum wages and working conditions which take appropriate account of any special functions or responsibilities’ (p.230) (F&R means amount of work done, skill level, responsibility level

o Basically – the Cth arbitration system could extended to industrial relations within the States on matters such as minimum wages and working conditions; however, cannot extend into areas of policy judgment in relation to employment structure

o As this law was about redundancy, it was invalid

Victoria v Commonwealth (Industrial Relations Act Case) (1996) o Interference with States by the Cth – application of AEU Caseo The Act was amended to increase protections for workers (restricted the

grounds of dismissal)o The HC ruled that the legislation did not bind the States as employers, since

it interfered with the protected areas designated in the AEU Case. The ‘number and identity’ of redundancies. The conditions of employment provided at the ‘higher levels of

government’.

Re Residential Tenancies Tribunal of NSW (1997) o Interference with Cth by a State (rare – the Cth’s legislative powers have

expanded over time)o Question – did the State tenancy legislation cover leases taken out by Cth

instrumentalities (in this case – the defence force)o HC held that States can’t pass laws that interfere with the ‘capacities’ of the

Cth, but they may regulate Cth ‘activities’ (State laws can’t single out Cth or remove special privileges enjoyed by the Crown)

Austin v Commonwealth (2003) o Interference with States by the Cth o Concerned a Cth ‘superannuation contributions surcharge’ directed at high

income earners (included State judges)o HC held that the levy was invalid as it interfered with the ability of the States

to discharge their functions under the principle set out in the AEU Case (relating to the appointment and remuneration of judges)

o Reformulated the QEC test: Instead of two limbs, it was expressed as a single, overriding test (per Gaudron, Gummon and Hayne JJ, p.249)

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Does the Commonwealth law curtail or interfere with the capacity of a State to function as a government?

Mere discrimination may not always be enough to infringe immunity

o McHugh J maintained the QEC two limb test applies

Clarke v Commissioner of Taxation (2009) o French CJ identified 6 factors: (only one judge – only opinion, not binding) –

these factors form a multifactorial test to determine the application of 1. Whether the law in question singles out one or more of the States

and imposes a special burden or disability on them which is not imposed on persons generally

2. Whether the operation of a law of general application impose a particular burden or disability on the States

3. The effect of the law upon the capacity of the States to exercise their constitutional powers

4. The effect of the law upon the exercise of their functions by the States

5.The nature of the capacity or functions affected 6. The extent to which the constitutional head of power under which

the law is made authorises its discriminatory application

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Characterisation When evaluating legislation, ask:

o Does the Cth law match up with a s.51 power or another power within the Constitution?

o What is the subject matter of the law? Does it fall within one or more enumerated heads of power? (Characterisation)

The HC approach to characterisation has changed over time. Early view – Cth powers should be limited to protect the reserve powers of the State

o Dominant characterisation – What is the true subject of the law? (e.g. is the true subject matter of the law taxation or is the Cth using the taxation power to interfere with education?)

o E.g. R v Barger (1908) - A Cth law imposed a tariff on agricultural machinery used by factories that did not grant their employees certain minimum working conditions. This law was about both taxation (imposing a tariff) as well as industrial relations (the effect of the tariff was to try and improve workers’ conditions)

HC struck down the law (the dominant character of the law was not with respect to taxation – it was a law about working conditions) – stated that while the Cth can use tax to achieve an end not solely related to taxation; the Cth cannot use taxation to interfere with areas of state power.

o E.g. Huddart, Parker & Co v Moorehead (1909) - Cth tried to use the corporation power to question the plaintiff about its trading activities. The company refused to comply

HC held that the dominant character of the law was not regulating corporations; rather, to regulate trade and commerce (a State power). Thus, the law was invalid

Engineers’ Case – moved away from the dominant characterisation approacho Dual/Multiple Characterisation – Is there a reasonable view of the law that

places it within the head of power? (does not look at the true purpose of the law)

A law can have more than one legitimate subject matter – as long as at least one of the law’s subject matters is within Cth power, the law is valid

The connection between the law and the purpose must be genuine and not ‘so insubstantial, tenuous or distant that [the law] cannot sensibly be described as a law ‘with respect to’ the head of power’ (Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) )

This grants the Cth more power – they can make a law that impacts both a federal and State power and it will be valid

o E.g. Fairfax v Federal Commissioner of Taxation (1965) – concerned attempts of the Cth to use taxation to encourage private investments in government securities as superannuation funds were exempted from income tax if they bought government bonds. The law was challenged on the basis that it was not truly about taxation, rather about the investment of superannuation funds; thus, outside of the Cth power

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HC held that the law was valid and that Cth laws with respect to a s.51 power may also affect another area

As long as the law can be characterised as a law ‘with respect to’ a subject matter that is within Cth power, it is irrelevant that the law may also be characterised as bearing upon some subject matter not within the Cth’s power

o E.g. NSW v Cth (Work Choices Case) (2006) – concerned legislation that relied on the corporations power but affect industrial relations.

HC held that the law was valid – stated that the Cth powers must be read with ‘all generality that the words admit’

Two types of powers in ss.51 & 52: subject matter and purposiveo If the power is one of subject matter: test = Is there sufficient connection

between the law and the head of power?o If the power is purposive: test = proportionality

Conflict of Laws Must first determine if a law is valid

o Cth – the law must be within the powers of the Cth (s.51)o State laws will not be valid if they concern an exclusive Cth power (s.52)

There are some heads of power that both Cth and States can legislate in regards to. What happens if there is a conflict?

For a conflict to arise, there must be a valid Cth and a valid State law o In most conflict of law cases, the initial step is determining if both laws are

valido The Cth cannot create an inconsistency in order to extend their powers

(Airlines of New South Wales Pty Ltd v New South Wales (1965) ) s.109 – When a law of a State is inconsistent with a law of the Commonwealth, the

latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (Cth law trumps State law)

How to determine if two laws are inconsistent?o Conflict of Duties – A Cth law and a State law will be inconsistent if one law

requires an act and the other law prohibits it R v Brisbane Licensing Court; Ex parte Daniell (1920) – The Liquor Act

1912 (Qld) required a referendum on trading hours to be held along with the Senate elections. However, the Commonwealth Electoral Act forbade this. The Cth law prevailed under s.109.

o Conflict of Rights – A Cth law and a State law will be inconsistent if one law authorises an act an another law prohibits it

Tension between the laws – even though you can obey both laws by not doing the act

Colvin v Bradley Brothers (1943) – a State law prohibited women from working on milling machines. A Cth industrial award permitted it. The Cth law prevailed as it intended for women to do that type of law

O’Sullivan v Noarlunga Meat (No 1) (1954) – if a person is required to get both a Cth grant and a State grant under two different laws; getting only the Cth grant will suffice

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Exceptions – Commercial Radio Coffs Harbour v Fuller (1986) – Cth law required the erection of an antennae to establish a radio station and State law required the plaintiff to get approval. Plaintiff tried to argue they only had to follow Cth law (in order to avoid planning process). HC held that both laws applied

o Overlapping Requirements – one law imposes certain requirements while another law imposes more onerous requirements

No clear conflict – can obey both laws by meeting the more onerous requirements

Depends on how you interpret the less onerous requirements – as a minimum standard that another law can build on or designed to exhaust the requirements

Clyde Engineering v Cowburn (1910) – Cth award set a working week of 48 hours while NSW set a 44 hour week. After this, overtime was payable. NSW award was more onerous on employees. HC held that the Cth law prevailed as it was not intended to be a minimum standard; rather, to standardise employment arrangements on a national basis.

o Different Penalties – a Cth and State law may impose the same restriction but different penalties or procedures

Hume v Palmer (1926) – Cth and State law applied the same rules to steamship navigation but provided for different penalties. The Cth law prevailed.

o Operational Inconsistency – two different laws are not directly in conflict, but when these laws are exercised/in operation, there is conflict

The Cth law will tend to prevail Cth v WA (Mining Act Case) (1999) – the Mining Act 1978 (WA)

authorised mining activities. The Defence Act 1903 (Cth) excluded people from defence practice areas. No direct conflict between the laws but when a defence practice area is declared in a mining area, operational conflict will arise.

Suggestions of ‘operational conflict’ are usually rejectedo Covering the Field – If a Cth law shows an intention to cover the field

(completely regulate a particular topic), then any State laws on that topic are invalid

These two laws may even require the same conduct or pursue the same purpose

Two questions: (conflict if both questions are answered yes) Is the Cth law intended to be exclusive? (the only law on the

topic) Does the State law operate in the same field as the Cth law?

Sometimes this intention is explicitly stated in the law; other times the scope of the law will provide evidence (e.g. Clyde Engineering v Cowburn – the Cth intended to nationalise working conditions)

Test: ‘Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first?’ (per Isaacs J, p.489)

o Applied in Ex parte McLean (1930) by Dixon J

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The Cth can do the opposite and make an express provision of ‘clearing the field’ – indicating that the Act is to operate concurrently with State laws (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (GMAC Case) (1977)) – no inconsistency between Cth and State law as the Act was not intended to be exhaustive – such a provision is effective

A Cth law can’t declare that there is no inconsistency but in times of doubt surrounding whether a Cth law intends to ‘cover the field’, such a provision is helpful

Viskauskas v Niland (1983) - different processes in federal and state racial discrimination statutes. HC ruled that the Cth law was intended to be exhaustive (this outcome surprised the Cth who passed an amendment that the Act stating it was not intended to cover the field)

o Wollongong v Metwally (1984) – the Court held that the retrospective declaration of intent cannot eliminate the inconsistency that was declared

What are the consequences of conflict?o If a State law us affected by s.109, it is rendered inoperative (not invalid as

the Constitution suggests) – the State law will immediately come back into effect if the inconsistence is removed (e.g. the federal law is repealed)

Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) – the word ‘invalid’ in the Constitution should be interpreted as meaning ‘inoperative’ (per Latham CJ, p.573)

o If the inconsistent provisions can be severed from the rest of the Act, they will be – if the inconsistent provisions are essential to the Act, the whole Act will be inoperative.

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External Affairs Power External Affairs power – s.51(xxix) – concurrent power shared by the Cth and States The power is vague (only says ‘external affairs’) – the High Court has interpreted the

power to have thee sub-powers:

The Geographical Powero Literal – this power applies to laws concerning things, people and events

outside of Australia; applied broadly o Australia’s Territorial Sea: NSW v Cth (Seas and Submerged Lands Case

(1975) – territorial sea has been defined by international law as extending from the low water mark to 12 nautical miles (approx. 22km) offshore. The Ct passed a law that operated in this area. NSW challenged it. The HC upheld this legislation by saying it fell within the treaty power and within the geographical power (the sea is physically external to Australia)

The external affairs power covers ‘any affair which in its nature is external to the continent of Australia’. – per Barwick CJ

o War Crimes: Polyukhovic v Cth (1991) – concerned a Cth law that retrospectively criminalised war crimes during WWII. The HC upheld the legislation under the geographical power.

Raised a debate regarding whether the thing legislated on must have some connection to Australia – majority held that there did not need to be a connection. Brennan J argued this – there needs to be some Australian connection

The Treaty Powero The power of the Cth to pass legislation implementing international treaties

that Australia has signed (legislation must be passed for the treaty to be binding in Australia)

o First use of the power in Roche v Kronheimer (1921) – Higgins J used to the external affair power to uphold the Treaty of Peace Act 1919 (Cth) which implemented the Treaty of Peace signed at Versailles after WWI (other judges used defence power)

o R v Burgess; Ex parte Henry (1936) – an unlicensed aviator who performed stunts near the Sydney Harbour Bridge was charged under the Air Navigation Act 1920 (Cth) which said it is an offence to fly in Australian airspace without a licence. The aviator challenged the law. HC stated that the law fell within the treaty power (implemented the ‘International Convention for the Regulation of Aerial Navigation’)

It is clear ‘that the legislative power of the Cth over “external affairs” certainly includes the power to execute within the Cth treaties and conventions entered into with foreign powers.’ – per Evatt and McTiernan JJ, p.687

RULE: the treaty power extends to all bona fide treaties Note: the law was held invalid as it did not resemble the Convention

enough Starke and Dixon JJ proposed limitations to the treaty power

Starke J: the laws will only be valid if the ‘matter is “of sufficient international significance’ – p.658

Dixon J: the treaty must be of ‘some matter indisputably international in character’ to be implemented in Australia – p.669

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o Koowarta v Bjelke-Petersen (1982) – the RDA threatened to invalidate a QLD statute prohibiting Indigenous people from owning large parcels of land. The HC held that the RDA was supported by the treaty power (implementing the 1966 International Convention on the Elimination of All Forms of Racial Discrimination)

Debate about whether the treaty must have an international element and not be purely domestic in application. If not, this could allow the Cth to have a huge amount of power

RULE: expansive view – any law implementing a treaty may be within federal power (could possible be interpreted as needing ‘international concern’)

Gibbs CJ, Aickin and Wilson JJ adopted the limitations of Dixon J in R v Burgess

o KEY CASE: Cth v TAS (Tasmanian Dam Case) (1983) - Tasmanian government proposed to build a dam that would flood the Franklin River. Plan opposed by conservationists and the Cth. UNESCO declared the Franklin River a World Heritage Site in 1982. Cth passed legislation to protect the site and prohibit the construction of the dam. HC upheld the legislation – within the external affairs treaty power.

RULE: the treaty power is not limited by content – only requirement is that Australia has signed an international treaty in good faith about the topic that has been legislated on (even if the topic is traditionally legislated by the States). Don’t need to prove that the topic is in relation to a matter of international concern.

Could possible lead to the Cth using treaties to interfere in many State powers

Brennan J’s two step test:o Does the treaty impose an obligation?o If not, the Act has to be justified as dealing with a matter

of international concern. Gibbs CJ dissented – stated that the external affairs power was

not operative in this situation as the legislation did not affect Australia’s relations with other nations and heritage was not such a burning international issue

o Richardson v Forestry Commission (1988) – An act established a commission to investigate if a certain area of forest in Tasmania could qualify for world heritage. The Act prohibited certain works from occurring within the area. The majority held the act to be valid.

The High Court has a broad view of complying with a treaty obligation

o Limits on treaty power: Treaty must be a bona fide international agreement (good faith)

Tasmanian Dam Case – treaty must be genuine – the Cth can’t rely on treaties ‘entered into merely to … confer legislative power upon the Cth’ (e.g. the Cth may enter into a bilateral treaty with a nation who they provide incentive to so they can interfere with State matters)

Cth legislation must be reasonably related to the treaty

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Airlines of NSW Pty Ltd v NSW (No 2) (1965) – strict approach – is the Cth law appropriate and adapted to the implementation of the treaty?

Richardson v Forestry Commission (1988) – relaxed approach – could the Cth legislature reasonably form the view that the law was necessary to implement the treaty?

VIC v Cth (Industrial Relations Act Case) (1996) – middle position – the legislation must have a close enough connection to the treaty – ‘It is for the legislature to choose the means [of implementing the treaty] provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’

Legislation conforms to a treaty if it is reasonably capable of being considered to be appropriate and adapted to its implementation

Treaty Power is subject to other constitutional limits on Cth power (both express and implied)

Thus applies to all s.51 powers – cannot override constitutional rights or guarantees

However, the HC doesn’t read down this power in reference to the jurisdiction of the States

‘power … [is] “subject to this Constitution” so that such treaties and conventions could not be used to enable the Parliament to set at nought constitutional guarantees elsewhere contained’ (R v Burgess; Ex parte Henry, per Evatt and McTiernan JJ, p.687)

E.g. Freedom of religion (s.??) Melbourne Corporation principle, freedom of communication, separation of powers

The Cth must implement a binding treaty power, not a mere aspiration

QLD v Cth (Daintree Rainforest Case) (1989) – A binding obligation is required but the HC won’t scrutinise a treaty (will look at the views of the international community to see if they think the treaty is intended to be binding)

Richardson – the HC held that the Cth could use the treaty power to pre-emptively fulfil a possible future obligation (e.g. if an area was going to be World Heritage listed)

Industrial Relations Act Case (1996) – there must be a specific obligation – a mere aspiration will not allow this power to operate (may be hard to distinguish – benefit of doubt is given to the Cth)

o This case left the idea of whether an Act could be based on a recommendation – but the answer is No.

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The International Relations Powero Power directed at legislation aimed at preserving Australia’s relations with

other nationso Doctrine of comity – nations accept each other’s sovereignty

Thomas v Mowbray (2007) – ‘the pursuit and advancement of comity with foreign government and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs’ – per Gummow and Crennan JJ, p.364

o E.g. R v Sharkey (1949) - upheld federal legislation upholding sedition (including sedition against the British Crown – the UK and other Cth countries). HC held that this law was within the power of the Cth as the law was necessary to maintain friendly relations with other nations of the Cth

‘The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs’ - per Latham CJ, p. 136.

o Power can be used to pass Cth legislation to recognise or exclude the operation of foreign laws in Australia (will also cover extradition)

Kirmani v Captain Cook Cruises (No 1) (1985) – concerned the validity of legislation excluding the operation of British Imperial Act in Australia. HC held that this law fell under the external affairs power – laws that clarify international laws are valid.

o Possible to use this aspect of the external affairs power to authorise a mere aspiration on a topic of international concern (treaty power not applicable)

Tasmanian Dam Case – Mason, Murphy and Deane JJ supported this idea

HC has recently said that a mere aspiration wont be enough to enliven the external affairs power (Industrial Relations Act Case) – need either a binding obligation or the doctrine of comity

o How do you work out if a matter is of international concern?o Brennan J in Polyukhovich – ‘international concern’ is vague so that it

should be approached with caution – need proof (e.g. clear expression by the international community, adhered to in international practice)

Regulation of Matters of International Concern

External Affairs and Federalismo External affairs power authorises a broad range of Cth laws – can pass a law

on anything and rely on the external affairs power – only need a relevant treaty (there are many treaties about a vast range of matters)

o This power poses a significant threat to the federal balance o Industrial Relations Act Case shows that the court is becoming more

cautious about applying the treaty power

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Defence Power s.51(vI) – ‘the naval and military defence of the Commonwealth and of the several

States, and the control of the forces to execute and maintain the laws of the Commonwealth.’

Defence power is a concurrent power – but there are a number of constitutional provisions relevant to defence:

o s.68 - ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.’ executive has control over day to day military operations

o s.114 - ‘A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force [...]’ States cannot establish a defence force (the defence power is more than just establishing a defence force)

o s.119 - ‘The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.’ in return for States not establishing an army, the Cth will defend the States from attack (e.g. military protects States from internal violence)

Nature of the Powero Elastic – the scope of the power changes depending on the historical and

social circumstances (war time or peace time) Andrews v Howell (1941) – ‘its application depends upon facts’ such

as ‘the existence and character of hostilities, or a threat of hostilities, against the Commonwealth’ – per Dixon J, p.278

Australian Communist Party v Commonwealth (Communist Party Case ) (1951) – Fullagar J has identified two aspects of the power:

1. Primary – Laws that have defences as ‘their direct and immediate object’ (core)

2. Secondary – a range of matters only indirectly related to defence (penumbra)

o Purposive – authorises legislation with a particular purpose (not a subject matter power)

Purposive power can cover laws on a large range of subject matters as long as they relate to a certain purpose

Stenhouse v Coleman (1944) – is a matter ‘incidental or conducive to the prosecution of a war that is being fought’

Relevant characterisation is one of proportionality, not sufficient connection to a subject matter

The Wartime Powero The defend power is extremely broad during wartime – can regulate any

aspect of the economy or Australian life o War time – a war that Australia is involved in as a party (scope can vary with

the extent that Australia is involved in)o Farey v Buryett (1916) – concerned legislation fixing the price of bread

during wartime. HC upheld law under defence power. Law not directly concerned with defence but assisted the war effort (need to tightly control the economy)

Scope of defence power is virtually unlimited during a time of total war where Australia is threatened

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o Lloyd v Wallach (1915) – HC upheld legislation giving a minister the power to detain anyone who threatened the defence of the Cth during WWI

o Legislation during war covers a very broad range of matters – price controls, rent controls and employment regulations

o Taxation and defence – First Uniform Tax Case (1942) – held that the defence power supported the seizure of tax office personnel and property as it was wartime and fund were needed for the war

o Limits on the wartime power: R v University of Sydney; Ex parte Drummond (1943) – legislation

placed limits on the number of students admitted to uni. Cth argued this was needed to support war effort. HC rejected this as there was no attempt to encourage people to contribute to the war – need a sufficient connection to defence.

Industrial Lighting Case (1943) – restrictions on lighting for industrial premises. HC said law lacked a sufficient connection to defence. (‘no specific relation to the subject of defence’ – per Latham CJ, p.418)

Jehovah’s Witnesses Case (1943) – Cth declared Jehovah’s witnesses a ‘subversive organisation’ which allowed government to seize group’s property and prohibit publications. HC said restrictions were unsupported by the defence power as this legislation can be used for purposes not related to defence.

The Transition to Peaceo Defence power authorises laws managing the transition from war to peaceo Scope at this time is less than in war time but more than in peace time o Law may deal with the repatriation and rehabilitation of soldiers, rebuilding

a destroyed city o Limits on the Transition to Peace Power:

R v Foster; Ex parte Rural Bank of New South Wales (1949) – HC held that a number of WWII regulations could not be sustained after the war (restriction on employment, petrol sales and supply of residential housing). The power does not cover ‘any problem […] created or aggravated by the war’ for an indefinite period as this would amount to a general power.

‘the cessation of hostilities leaves behind various matters which can legitimately be made the subject of Commonwealth legislation as being incidental to the execution of the defence power in the past’ –p.81

Peacetime Powero Defence power is narrowest during peacetime stull significant scope as

the Constitution has been interpreted due to the Engineer’s Caseo Defence power covers ‘defence preparedness’ and matters such as ‘the

enlistment (compulsory or voluntary) and training and equipment of men and women in nay, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications.’ – Australian Communist Party v Commonwealth (Communist Party Case) (1951) – p.254

o Successful use of the defence power:

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Clothing Factory Case (1935) – HC upheld legislation creating a Cth factory to produce clothes for both military personnel and civilians (multiple characterisation – had both a defence and not defence purpose – enough to hold it within the defence power)

Capital Issues Case (1953) – HC upheld legislation allowing the Treasure to restrict businesses from raising capital in ways competing with government capital issues (defence power as raising money through governmental bonds was necessary to fund the military)

o Unsuccessful use of the defence power: Shipping Board Case (1926) – law authorised the Cth Shipping Board

to produce and sell equipment for generating electricity. Cth argued that a reliable supply of electricity was needed for naval defence. HC struck down law – not a sufficient connection with defence (this law may have been okay during wartime)

Communist Party Case (1951) - The Communist Party Dissolution Act 1951 (Cth) outlawed the Communist Party, confiscated its property and allowed GG to outlaw other associated groups. Cth argued that these measures were needed for national defence. HC struck down the law – not supported by the defence power

This case would now raise concerns of the implied freedom of political communication

Military Disciplineo Defence power supports the establishment of service tribunals to hear

charges against military personnel (even during peace time)o R v Tracey; Ex parte Ryan (1989) –HC upheld the Defence Force Discipline Act

1982 (Cth) which established military tribunals. Limitations – can’t prevent civilian courts from also trying military personnel.

Internal Threatso s.51(vi) – extends to ‘the control of the forces to execute and maintain the

laws of Commonwealth’ this could be construed as police power (establishing a Cth police force); however, the police power falls under the incidental power (s.51(xxxix)) – look elsewhere to find a power to cover internal threats

o Terrorist attacks – lead to questions whether the defence power covers internal threats Thomas v Mowbray (2007) – HC upheld anti-terrorism legislation allowing ‘interim control orders’ under the defence power. Allowed the power to extend to internal attacks against body politic as a whole/against the government or public

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Corporations Power s.51(xx) – The power to make laws with respect to ‘foreign corporations, and

trading or financial corporations formed within the limits of the Commonwealth’ Concurrent power – Cth has been given enormous power to regulate economic

activity (after Work Choices Case) Two key questions in regards to this power:

o What are the entities with respect to which the Commonwealth may make law under s.51(xx)?

o What kind of law can the Commonwealth make with respect to these entities?

What is a Corporation? s.51(xx) applies to ‘constitutional corporations’ – foreign corporations, trading

corporations formed with the Cth and financial corporations formed within the Cth What is a corporation?

o An association that is given an artificial legal personality by lawo Established by State or Federal Law – uniform Corporations Act in every

jurisdiction o A corporation may be incorporated under a special statute (e.g. University of

Queensland Act 1998 (Qld), City of Brisbane Act) o Incorporation means – the company is a separate entity from its

shareholders and directors, the company can sue in tis corporate name, there is perpetual succession (employees change, company remains), power to acquire and hold property

Foreign Corporationso A corporation ‘formed outside the limits of the Cth’ (Incorporations Case

(1990))o Entity must be a corporation at foreign law (Adamson’s Case (1979) – an

entity is a corporation if, under foreign law, it is an entity separate from its members)

o Foreign corporation does not need to be a trading or financial corporation – s.51(xx) applies to all corporations

Trading Corporationso s.51(xx) will apply to corporations that only engage in intra-State trading

(trading only within one State) Huddart, Parker & Co v Moorehead (1908) said that s.51(xx) does

not apply to corporations that conduct only intra-State trade but this decision was overruled in Strickland v Rocia Concrete Pipes (Concrete Pipes Case) (1971) – said that the Huddart Parker decision was based on the reserved powers doctrine which was later overruled in the High Court

o What is a trading corporation? – a corporation set up to engage in trade (What was the purpose of setting up the corporation? Look at memorandum documents). There are three tests to determine whether or not a corporation is a trading corporation?

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1. Nature of the corporation is determined by the purpose for which It was set up (purpose test)

R v Trade Practices Tribunal; Ex parte St George Country Council (1974) – The Council was set up to provide an essential service to inhabitants; thus, was not a trading corporation. What was the purpose for which the corporation was set up? (per Gibbs and Menzies JJ)

2. Predominant and characteristic current activity (activities test) St George Country Council Case (1974) – a corporation will

be a trading corporation if it’s predominant characteristic activity is trading. The ends for which the corporation trades is irrelevant. (per Barwick CJ)

3.Trading activities are a ‘substantial’ or ‘not insignificant’ part of its operation

Authority favours this case – but it is not certain This is basically a judgment call R v Federal Court of Australia; Ex parte Western Australian

National Football League (Adamson’s Case ) (1979) – applied the activities test but said the trading activity must not be insubstantial (per Mason and Murphy JJ). Held that the WA and SA football leagues were trading corporations

Applied in State Superannuation Board v TPC (1982) by Deane J – minority said that the superannuation fund was not a constitutional corporation because its predominant or characteristic activity was governmental in nature

o Trading corporations – football leagues, state superannuation board, hydro electric commission of Tasmania (Tasmanian Dam Case (1983) ), shelf companies (a company that has been set up but not in operation – Fencott v Muller (1983) – in the absence of activities, apply the purpose test)

Financial Corporations o Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) – a

corporation is a financial corporations when it conducts ‘transactions in which the subject of the transactions is finance (such as borrowing or lending money) as distinct from transactions (such as the purchase or sole of particular goods …) in which finance, although involved in the payment of the price, cannot be properly seen as constituting the subject of the transaction.’ – per Deane J, p.642

o Suffices if financial dealing is a substantial part of its activity o E.g. – banks, building societies, finance companies, o Superannuation Boar v Trade Practices Commission (1982) – approved above

test and said that a corporation is a financial corporation if it engages in financial activities. Significant as it said that financial activities need not be the corporations predominant activities. But need only form a substantial proportion of its total activities

o Bourke v State Bank of NSW (1990) – commonwealth can’t regulate State Banks

Development of Corporations Power

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Corporation power was basically ignored as a basis for Cth legislation until Strickland overruled Huddart Parker

Huddart, Parker & Co v Moorehead (1909) o Held that the corporations power could not support the Australian

Industries Preservation Act 1906 (Cth) (early version of trades practices legislation)

o Court held that the corporations power should be construed narrowly in order to protect the reserved powers of the States

o Fear that a broader interpretation would give the Cth an uncontrollable power

o Isaacs J dissented and said that the corporations power was exercisable wherever ‘these specific objects are found, irrespective of whether they are engaged in foreign or Inter-State commerce, or commerce confined to a single State’. The autonomy of the States is safeguarded to an extent in that the power restricted the Cth in regards to what type of corporations they could legislation on (foreign, trading and financial). This already limits the Cth power; thus, you shouldn’t put even further limits on it. (p.393)

Isaacs J essentially looked at two questions – which corporations fall within s.51(xx)? And what aspects or activities of a corporation can be regulated under s.51(xx)?

Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) o Challenge to aspects of the Trade Practices Act 1965 (Cth).o Overruled Huddart Parker – said that it was decided on the reserved powers

doctrine which was now overruled in the Engineer’s Case (1920)

What kind of laws can Parliament make with respect to constitutional corporations? s.51(xx) is a power in relations to persons or entities, not activities (like the aliens

and races power) HC refuses to place an outer limit on the power – each case is determined on a case

by case basis with limits being pushed further out (Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982))

o ‘The subject of the power is corporations … the power is not expressed as one with respect to the activities of corporations, let alone activities of a particular kind or kinds.’ – per Mason J, p.207

Tasmanian Dam Case (1983) – extended the scope of the power to allow the Cth to regulate activities undertaken for the purposes of its trading activities

Parliament has no power with respect to incorporation of companies generallyo s.51(xx) does not enable the Cth to enact its own corporations law that

would regulate all aspects of companies (including their incorporation) o Why? – NSW v Cth (Incorporations Case) (1990) said:

The words ‘formed within the Cth’ refers to corporations already formed

s.51(xiii) gives power to make laws with respect to incorporations of banks (expressio unius exclusion alterius – express inclusion of one thing excludes another)

Parliament cannot have the power to legislate on formation of foreign corporations

Parliament cannot make law to abolish corporations

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o Parliament may regulate the conduct of activities of corporations but not ban them – Cth v Bank of NSW (Banking Case) (1948)

Parliament may establish Cth corporations under other heads of powers o E.g. the ABC and NBN were created under s.51(v) ‘postal, telegraphic,

telephonic, and other like services’; Commonwealth Bank established under s.51(xiii) ‘banking, other than State banking’; Australian National Airways created under s.51(i) ‘trade and commerce with other countries, and among the States’.

Extent of power to regulate corporation – there are two tests:o The ‘Distinctive Character’ test:

The aspect or activities that the Cth can regulate must have something to do with the characteristic that brings the corporation within the Cth power (e.g. if the law is in respect to a trading corporation, the law must have something to do with trading activities of that corporation)

o Objective of Statutory Command test: No limits – Cth can regulate any aspect or activity of the corporation Dominant test – fears of power being too broad A law is valid under s.51(xx) if the object of statutory command is a

constitutional corporation (directed at a corporation in s.51(xx)) Re Dingjan; Ex parte Wagner (1995) – ‘the corporations power is

directed to persons and not subject matters … the power conferred by s.51(xx) also extends to any subject that affects the corporation…. the law must have ‘a relevance to or connection with’ a s.51(xx) corporation.’ – per McHugh J, p.368

Gave no clear answer – agreed that the question shouldn’t be ‘what aspects or activities of a corporation can be regulated?’; rather, should be ‘what degree of relevance or connection to ‘constitutional corporations’ is necessary?’

Also supports laws directed to protecting constitutional corporations from conduct intended and likely to cause loss or damage to the corporation (Fontana Films)

May regulate purely intra-state activities of trading corporationso See above about intra-state corporations (Strickland)o If the purely intra-state activity is banking, parliament has no power due to

s.51(xiii) ‘banking, other than State banking’

Regulation of activities of third parties in relation to constitutional corporations o Actors and Announces Equity v Fontana Films (1982) upheld s.45D of the

TPA, which prohibited secondary boycott of corporations. The prohibited conduct is sufficiently relevant for the prohibition

of it to be described as a law with respect to the subject of constitutional corporations – per Gibbs J, p.183. However, there are limits to the power to regulate third parties

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o Davies v Commonwealth (1998) – HC considered the validity of certain provisions of the Australian Bicentennial Authority Act 1980 (Cth). Provisions granted the Authority a monopoly of certain symbols and expression including the term ‘200’. In their joint judgment, Mason CJ, Deane J and Gaudron J stated that s.51(xx) could be used to grant protection to corporation against deceptive use of its symbols but they held that this went far beyond protection of that kind

Regulation of industrial relations by corporation power – The Work Choices Caseo Work Choices Case – large expansion of the corporations powero Work Choices legislation was a series of amendments to the Workplace

Relations Act (Cth). The main Act was supported by the conciliation and arbitration power. Gov’t used corporations power to support the new Act

o Aim of legislation = use corporation power to install a comprehensive law governing industrial relations that radically changed the existing systems. The Act brought 85% of the Australian workforce within federal jurisdiction

o Law not supported by s.51(xxxv) – power over industrial disputes extending beyond the limits of any one State

o Challenged on the basis that: There is a distinction between internal and external relations of

corporations and s.51(xx) does not apply to internal relations REJECTED – this added a new filter to the test and was

indirectly based on the discredited reserved powers doctrine

The existence of specific industrial relations powers in s.51(xxxv) precludes the use of s.51(xx)

REJECTED – s.51(xxxv) deals with a narrower subject of conciliation and arbitration and a law may have several characters (the fact that is deals with IR doesn’t mean it isn’t a law on constitutional corporations)

o Majority said the rejection of the plaintiffs’ arguments ‘is favoured by a consideration of the text and structure of the Constitution and by the course of authority in this Court since at least the demise of the reserved powers doctrine in 1920.’

Other limits on the corporations powero Like all s.51 powers, the corporations power ‘is subject to this Constitution’o Nationwide News v Wills (1992) – s.51 powers are subject to the implied

freedom of communication o Melbourne Corporation Case (1947) – cannot impair the capacity of the

States to function as States

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Taxation and Spending The people consent to the government taking money off them No taxation is possible except under the authority of an Act of Parliament Relevant sections:

o s.81 - government revenue must be paid into the Consolidated Revenue Fund (CRF)

o s.82 – Commonwealth expenditure takes priority in applying CRF funds o s.83 – money can only be drawn from the fund under an appropriation law o s.54 – appropriation bills for ordinary services of government (OASG) must

only deal with such appropriations If the Budget is not passed by both houses, it is convention for the PM to resign

Power to Impose Tax s.51(ii) – Parliament has the power to make laws with respect to ‘taxation; but so

as not to discriminate between States or parts of States’o This power has had a significant impact on the evolution of Australia’s

federal structure o Cth uses this power to raise most of its revenue – income tax and GSTo Only limit on taxation is that it doesn’t ‘discriminate between States or parts

of States’ s.90 – power to impose duties of customs and excise belong exclusively to the Cth Cth has a monopoly on income tax

o Established In the State Grants (Income Tax Reimbursement) Act 1942 (Cth) o Uniform Tax Scheme 1942 – States receive reimbursements from the Cth on

the condition that they do not impose income tax States taxes – stamp duty, land tax, various sales tax Federal and State taxes can’t conflict because a federal tax can only be fore federal

purposes and State taxes can only be for State purposes – Victoria v Cth

What is a Tax? Different types of taxes – income tax, wealth tax, land tax, stamp duty, duties of

customs and excise

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First question = is the exaction in question a tax? Matthews v Chicory Marketing Board (Vic) (1938) – A tax is a compulsory exaction

of money by a public authority for public purposes, enforceable by law, and is not a payment rendered for services (per Latham CJ)

Compulsory exaction of money:o Air Caledonie v Cth (1998) – the Migration Amendment Act 1987 (Cth) tried

to impose a $5 fee for immigration clearance upon international airline passengers entering Australia into the Migration Act 1958 (Cth). Plaintiff argued that the fee was a tax and couldn’t be inserted into the Migration Act as the Act dealt with matters other than the imposition of taxation (contravened s.55). Held that the $5 fee was a tax. o Rule: If the person required to pay is (a) given no choice about whether

or not the acquire the services; and (b) the amount of the exaction has no discernible relationship with the value of what is acquired; the exaction is a tax

o Also suggested that Latham CJ’s definition was not exhaustive (an exaction may be a tax even if a specified characteristic is missing or may not be a tax even if all characteristics are present)

Imposition by a Public Authorityo A public authority is a body that performs function or delivers services of a

public nature – independent, statutory bodies have been treated as public authorities

o Australian Tape Manufacturers v Cth (1991) – the majority stated ‘that it is not essential to the concept of a tax that the exaction should be by a public authority’ (if Latham CJ’s definition is not exhaustive, this judgment is okay)

Requirement of Public Purposeso Taxes must no be used for the private purposes of the leadero Australian Tape Manufacturers v Cth (1991) : money collected from a levy on

the distribution of all blank recording tapes was not paid into the CRF but paid directly to the association of copyright owners. Held the levy was a tax as it was for a public purpose (finding a solution to a problem of public importance – copyright)

Distinguish tax from: o Payment for services (getting something in return for money)

Need to show that there is a specific identifiable service; the fee is payable by the person who received the service; the fee is proportionate to the cost of the service

Service must be to the individual, not the public in order to not be a tax – A-G (NSW) v Homebush Flour Mills (1937)

Air Caledonie v Cth (1998) : held that a $5 immigration clearance fee paid by all incoming passengers and collected by the airline was a tax as it applied to citizens returning to Australia who did not need a licence; thus, there was no identifiable service

Air Services Australia v Canadian Airlines (1999) : held that air traffic service fees were not a tax as the charge clearly covered and was reasonably related to the expenses incurred and the charge was not imposed to raise revenue

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Held that the Ramsey Pricing Method is used to fix prices for monopoly services to ensure that a fair price is reached – if the price is not fair, the charge becomes a tax

o A precise relation to the value of services is not required

o There is no evidence of profit-makingo The charge must bear a reasonable relation to the

cost incurred by the provider o Fines and penalties for breaches of law (this is punishment)

o Northern Suburbs General Cemetery Reserve Trust v Cth (1993) – held that the ‘training guarantee shortfall’ (the difference between how much an employer was required to spend on training and how much they did spend) paid into a Training Guarantee Fund was a tax, not a penalty due to a number of factors

A fee is not a tax if it is arbitrary (that is, based on other than ascertainable criteria) Presumption that if an exaction is paid into the CRF, it is a tax (can be rebutted) –

Australian Tape Manufacturers If there is an exaction which is held to be a tax, it will fall within the core of s.51(ii). If

the law does not involve a tax, it may still be characterised as a law ‘with respect to taxation’ because it falls within the implied incidental aspect of s.51(ii) (s.51(xxxix) – Mutual Pools & Staff Pty Ltd v Cth (1994)

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The power to impose tax is controlled by: Procedural Limits:

o s.53 – taxation laws imposing taxation must originate in the HoR Because the government is responsible for fiscal policy and

government is formed in the HORo s.53 – the Senate cannot amend taxation bills (can still reject bills)

The Senate may request a taxation bill to be amended but the HoR does not need to comply

o s.55 – laws imposing tax must only deal with tax Practice of splitting tax legislation into two Acts – one dealing with

the imposition if taxation and the other providing the machinery for assessing and collecting the tax (Moore v Cth (1951) )

o s.55 – laws imposing tax (other than customs or excise) must deal with only one subject of taxation (State Chamber of Commerce v Industry v Cth (1987))

o s.55 – laws imposing duties of custom must deal only with customso s.55 – laws imposing duties of excise must deal only with excise

Substantive Limitso Discrimination – there cannot be discrimination between States or parts of

Stated (s.51(ii) and s.99) R v Barger (1908) : an excise duty, of which manufacturer’s giving

‘fair and reasonable’ labour conditions were exempted from, was held as discriminatory as the duty could differ between States

o Subject to express and implied limitations in the Constitution E.g. implied freedom of political communication, freedom of religion

(s.116), non-impairment of State’s capacity to function as States (taxation law struck down in Austin), separation of power

o Tax laws may be used to regulate economic activity or change behaviour Governments use taxes to reallocate wealth, regulate the economy

or influence social behaviour (e.g. carbon tax, alcopops tax, cigarettes tax)

Must still be a law with respect to taxation: Fairfax v Commissioner of Taxation (1965) – an Act that provided that income from superannuation funds were taxed unless they were invested in prescribed public securities was held to be not a law with respect to taxation

Customs and Excise Dutieso s.55 – ‘laws imposing duties of customs shall deal with duties of customs

only, and laws imposing duties of excise shall deal with duties of excise only.’ o s.90 – the power to impose customs and excise duties is exclusive to the

Cth o Customs and excise duties are indirect taxes – taxing one person with the

expectation that they will indemnify themselves at the expense of another

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Customs duty = tax on goods as they come in or leave the countryo Dennis Hotels v Victoria (1960) – the taxpayer is taxed by reason of, and by

reference to, his importation or exportation of goods o Different goods can attract different rates – a way of encouraging or

discouraging imports or exports

Excise duty = a tax on goods when they move from one party to another (e.g. manufacturer to wholesaler, wholesaler to retailer, retailer to consumer)

o A tax on goods, not services o Narrow view – ‘a duty analogous to a customs duty imposed upon goods

either in relation to quantity or value when produced or manufactured’ – Peterswald v Bartley (1904)

Two requirements: a tax imposed upon goods (1) either in relation to quantity or value; and (2) at the point of time where the goods are ‘produced or manufactured’

States argue this view so that they can impose such a charge without it being considered an excise duty

o Broader view – ‘a tax upon a commodity at any point in the chain of distribution before it reaches the consumer’ – Parton v Milk Board (1949)

‘The tax must bear a close relation to the production or manufacture, the sale or the consumption of the goods and must be of such a nature as to affect them as the subjects of manufacture or production’ – Matthews v Chicory Marketing Board (Vic) (1938)

Cth and manufacturers argue this view so to avoid having to pay such charges

o Ways States avoid s.90: Mechanism of Marketing Boards – States set up a marketing board

for a particular commodity funded by a charge levied on marketed goods – Parton v Milk Board (1949) (a Milk Board was to be financed by a levy upon ‘every dairyman’ and ‘every milk depot who sells or distributes milk’. The levy was held to be an excise duty, thus not allowed)

Mechanism of Licensing Fees – States require traders to pay a licence fee based on the amount of sales in the previous year – Dennis Hotels Pty Ltd v Victoria (1960) : licence granted to hotel owners upon payment of fees based on the cost of liquor purchased by them in the previous years. Not an excise duty as the connection between the goods and service was broken by the scheme

o Model still exists – need to consider proximity of the criterion of calculation; the high rate of tax indicating the revenue raising nature of the tax; absence of regulatory content

Appropriation and Spending s.81 – All revenues or moneys raised or received by the … Commonwealth shall form

one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner … imposed by this Constitution

o No money can be drawn from the treasury without an appropriation made through law

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o Appropriation must be for a purpose of the Cth, not a private purpose Purposes not confined to s.51 powers – AAP Case (1975) s.54 – a proposed law appropriating money ‘shall deal only with such appropriation’ Appropriation for OASG:

o s.53 – the Senate cannot amend a bill for OASG Unclear as s.53 provides that the Senate and HoR have the same

powers in regards to all proposed laws o What constitutes OASG?

OASG = recurrent, routine expenditure of government required for government to operate (not specific projects)

1965 Compact states that the following are not OASG: construction of public works and buildings; acquisition of sites and buildings; items of plant and equipment; grants to States under s.96; new policies not authorised by special law

1975: the Senate failed to pass the Supply Bill which led to the dismissal of the government by the G-G

Degree of specificity:o Combet v Cth (2005) – government spent money on advertising campaign to

promote labour law reforms. The money was appropriated for the departmental expenditure of the Department of Employment and Workplace Relations. Held that the Department cannot spend the money in any way they wish; rather, it is for the Parliament to determine the purposes

Grants Powero s.96 – allows the Cth to provide financial assistance to any State on ‘such

terms and conditions as the Parliament thinks fit’o Allows the Cth to exercise control in areas constitutionally in the States

powero States can reject grants; however, they do not have many sources of income

as they cannot levy an income tax o Deputy Federal Commissioner for Taxation v WR Moran (1939) – the grants

power allows the Cth to address inequalities between the States; s.99 (non-discrimination rule) has no application to s.96 grants

o Conditions must no authorise taking property except on just terms (s.51(xxxi)) – ICM v Cth (2009)

o The Cth is the only level of government that imposes income tax. A portion of this tax is then distributed. The validity of this arrangement was upheld in South Australia v Cth (First Uniform Tax Case) (1942) and affirmed in Victoria v Cth (Second Uniform Tax Case) (1957)

First Uniform Tax Case concerned four Cth laws that established the Cth’s monopoly over tax:

Income Tax Act 1942 (Cth) – fixed Cth income tax at a very high rate

State Grants (Income Tax Reimbursement) Act 1942 (Cth) – the Cth shall provide financial assistance to the States every year providing they don’t collect income tax

Income Tax (War-time Arrangements) Act 1942 (Cth) – provided for the transfer to the Cth of State public servants engaged in assessment or collection of income tax along with property of State taxation departments

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Income Tax Assessment Act 1942 (Cth) – no taxpayer should pay a State income tax until after they had paid the Cth income tax

Four States challenged the regime – the HC rejected the challenge. Found that all four Acts were valid; thus, the scheme was valid

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Freedom of Interstate Trade, Commerce and Intercourse s.51(i) – The Cth has the power to make laws with respect to ‘trade and commerce

with other countries, and among the States’ (concurrent power) This power is subject to s.92 – ‘on the imposition of uniform duties of customs,

trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.’

o Guarantees that trade, commerce and intercourse among the States will be ‘absolutely free’ (freedom of trade and commerce)

Section 92 Main interpretation of s.92 – Cole v Whitfield (1988)

o Joint unanimous judgment laid down a new approach to s.92o Regulations under the Fisheries Act 1959 (Tas) prohibited any person from

taking, buying, selling, offering or exposing for sale or having possession or control of crayfish smaller that the prescribed minimum size. Whitfield imported SA crayfish (smaller minimum size in SA than TAS) that were above the SA minimum size but below the TAS minimum size. Prosecuted for breaching the Regulation. He argued that the Regulation was invalid due to s.92. The HC held that s.92 was not infringed.

o A law infringes s.92 if it imposes ‘discriminatory burdens of a protectionist kind’ or if its effect is ‘discriminatory against interstate trade and commerce in that protectionist sense; or if its effect is ‘discriminatory and the discrimination is upon protectionist grounds’

o A law will infringe s.92 if it is a law that places a discriminatory burden of a protectionist kind

Must have three elements: burden on trade, discrimination and protectionist

Discrimination – see Castlemaine Tooheys v South Australia Protectionist – a law will be protectionist if it’s purpose or effect is

to benefit local traders within one State and disadvantage their inter-State competitors

A law will also fail if the practical effect is to place a discriminatory burden of a protectionist kind even if it does not appear to do so on the face of it

Need to first consider discrimination on the face of the law and then the practical effect

(e.g. tariffs that increase the price of imports, quotas on imports, differential railway rates and subsidies for local goods)

Bath v Alston Holdings (1988) o A VIC law imposed a higher licence fee on wholesalers and retailers who sold

imported tobacco. The VIC government said that as VIC wholesalers did not pay VIC wholesale licence fees, the heavier levy at the retail level for their products neutralised their advantage (the total burden on imported tobacco would be the same as the burden on local tobacco when it reached the consumer). The HC rejected this argument (f QLD tobacco was subject to wholesale tax in QLD, the VIC scheme would place it at a disadvantage and if QLD tobacco was not subject to wholesale tax in QLD, the VIC law would protect VIC tobacco by nullifying QLD tobacco’s competitive edge.

Restriction for the Wellbeing of the People of the State

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Castlemaine Tooheys v South Australia (1990) – A SA statutory scheme stated that (1) non-refillable bottle carried a deposit of 15c while refillable bottles required a deposit of 4c; and (2) non-refillable bottles had to be returned to the retailer to get the refunds (more of a hassle) while refillable bottles had to be returned to collection depots. The purpose of the law was to render the sale of beer in non-refillable bottle as commercially disadvantageous. Bond sold beer in non-refillable while South Australian brewers sold beer in refillable bottles. The HC held that the disadvantage in this law was ‘protectionist’ of South Australian brewers against interstate competition as it limited the market of Bond (SA had an advantage as they had been producing refillable bottles for some time already).

o SA claimed that the object of the scheme was (a) litter control and (b) conservation. Held that litter control is a legitimate object (however, this does not require different modes of returning bottles) but conserving resources is not a legitimate object when the resources are not produced in the State

o The joint majority judgment developed a number of principles for a law to be consistent with s.92:

1. The law must be necessary or appropriate and adapted to the achievement of a legitimate object (i.e. it is not discrimination to impose limits aimed at either the protection of the community from a real danger or threat to its welfare; or the enhancement of the communities welfare)

2. The burden placed on interstate trade must be incidental (i.e. the law shouldn’t aim to impose such a burden)

3. Burden on interstate trade should not be disproportionate to the achievement of the legitimate object

4. There is no reasonable non-discriminatory alternative means o These principles limit the prima facie assumption that State legislators

should be allowed a broad area of discretion in enacting regulatory measures for ‘the well-being of the people of that State’. (More limitations placed on this assumption in Betfair v Western Australia)

Betfair v Western Australia (2008) – A WA law prohibited (a) betting exchanges (using internet); (b) betting with such exchanges; and (c) publishing WA race field without authorisation. WA said hat the scheme was to protect the integrity of the industry and that the exchanges made no contribution to the industry. The HC struck down the law and stated that these objectives could be achieved through alternative, non-discriminatory means such as regulations.

o The provision prohibiting betting through a betting exchange was held to have infringe s.92 as it impaired the freedom of Betfair to deal with customers in WA and impaired the freedom of WA punters to use an interstate betting exchange

o More limitations on the assumption: The presence of a non-discriminatory object won’t save a law A provision that grants a discretion to exempt a party from a

prohibition will not save a law that has the object of prohibition

State Monopolies Barley Marketing Board (NSW) v Norman (1990) – A scheme where all barley grown

in NSW was vested in the Barley Marketing Board was upheld. However, there is a possibility that if the commodity was a scarce resource, a State monopoly may offend s.92

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Possibility that State monopolies may not survive post-Betfair (current authority is Barley Marketing Board)

Freedom on Interstate Intercourse Nationwide News v Wills (1992) – ‘freedom of inter-state intercourse is not confined

to the physical movement or carriage of goods or things among the States. It encompasses all of the modern forms of inter-state communication’

A ‘personal freedom to pass to and fro among the States without burden’ – Cole v Whitfield (1988)

A burden on inter-state intercourse does not necessarily have to be discriminatory – Nationwide News v Wills

A restriction on the freedom will be valid if: (Nationwide News v Wills)o The law is enacted chiefly for a purpose other that preventing or impeding a

crossing of a State border o Imposition of the burden is appropriate and adapted to the fulfilment of the

other purpose o Impediment is an incidental and necessary consequence of the law’s

operation One activity may be both trade and intercourse (e.g. television broadcasting): in

such a case, Nationwide News v Wills held that the question about whether to apply the narrower test in Cole v Whitfield or the more lenient test in Nationwide News should be answered according to the relevant characterisation of the law

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Constitutional Rights and Liberties There are a number of express and implied rights and freedoms in the Constitution

Terminology Right, liberty, power and immunity all have different meanings Right = a right entails a duty on the part of another to do or refrain from doing an

act o Every right has a corresponding duty – e.g. if students have the right to

receive a lecture on a topic, the lecturer has the duty to provide that lecture Liberty = a liberty entails that others have no right to prevent someone from doing

a certain acto There is no corresponding duty, just no right – e.g. the liberty to move

Power = a power is the liberty to do an act that changes the legal status of anothero A special type of liberty – e.g. the Minister has the power to grant a licence

and change the legal position of the licensee Immunity = the right that a power holder does not exercise a power

o There is an exception to a power (a disability) in relation to those with an immunity – e.g. a diplomat has diplomatic immunity and cannot be charged

Common Law Freedom Fundamental common law freedom = a person may do anything that the law does

not prohibit (natural liberty – only limited by physical inability and legal limitations) A person may refrain from doing what the law does not require Freedom is limited by laws imposing duties (e.g. freedom of speech is limited by

defamation law)

Source of Rights Common law rights (judge-made) – e.g. contract law (a seller’s right to be paid for

goods delivered); tort law (a pedestrian’s right not to be run over); crime (person’s right not to be robbed)

Statute law rights (from Acts and subordinate legislation) – e.g. the right to be paid a benefit under a certain Act

Constitutional rights (rights guaranteed by the Constitution and can’t be changed without a referendum)

Express Constitutional Rights and Freedoms All powers in s.51 are subject to the express rights in the Constitution Freedom to vote at parliamentary elections and referendum (ss.7 & 24) Right to be compensate for acquisition of property by the Cth (s.51(xxxi)) Right to a trial by jury when indicated under Cth law (s.80) Freedom of interstate trade, commerce and intercourse (s.92) Right not to be discriminated against on grounds of religion (s.116) Rights not to be discriminated on grounds of residency (s.117)

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Right to Compensation for Property Acquired

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s.51(xxxi) – The Cth has the power to make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’

Based on the United States’ fifth amendment – ‘nor shall private property be taken … without just compensation’

It is widely accepted that the government has the power to take private property for public purposes

The power of the State government to acquire property is not limited by s.51(xxxi) – thus, the States can legally acquire property without paying just compensation

o However, legislation requires compensation to be paid in some circumstances – e.g. s.18 of the Acquisition of Land Act 1967 (Qld)

o The Cth has used State agencies to acquire property for federal purposes without paying the owners just compensation (is this right?)

Federal Acquisitions Power Specific Acquisitions Power:

o s.51(xxxiii) – acquisition with the consent of a State, of any railways of the State, on agreed terms (essentially power to purchase from State railways)

o s.85 – acquisition of State property connected with public service departments that are transferred to the Cth, subject to compensation

o s.125 – acquisition of territory or the seat of government General Acquisitions Power – s.51(xxxi):

o Exclusive power – only applies to the Cth (not States)o Territories made under s.122 are also bound (Wurridjal v Cth (2009) )o All s.51 powers are subject to this right – the Cth can’t use any power to

acquire property without paying just compensation (Attorney-General (Cth) v Schmidt (1961) )

o Exception: times of war (Johnson Fear v Cth (1943) allowed the executive commandeering of property without just compensation as it was justified under the common law prerogative of the Crown. Held in Burmah Oil v Lord Advocate [1965] that the enemy must be engaged with Australia, not just approaching)

o Elements of the Acquisition Power: Property Acquisition Just Terms From any State or person For any purpose in respect of which Parliament has power to make

laws

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Property The term ‘property’ has been interpreted very broadly Includes both real property (land) and personal property (chattels) What amounts to property?

o Exclusive possession without title: Minister fo State for the Army v Dalziel (1944) – Dalziel rented a vacant lot owned by the Bank of NSW and operated a commercial car park. The Minister for Army tried to requisition the land for defence purposes. Held that Dalziel’s right in the property was sufficient to entitle Dalziel to compensation.

s.51(xxxi) ‘extends to any acquisition of any interest in any property’o Company shares: Bank of NSW v Cth (Bank Nationalisation Case) (1948) –

The Banking Act 1947 (Cth) authorised the CBA to acquire shares in the bank and upon such acquisition, government appointed directors would replace the company directors. No compensation was provided. Held that shares constituted property; thus, just compensation was required.

o Ships requisitioned in wartime: Marine Board of Launceston v Navy Minister (1945) – a tugboat owned by the Marine Board was requisitioned during the war. The regulation provided for compensation; however, there was no provision for interest on delayed compensation

o Cause of action vested in an injured worker: Georgiadis v Australia & Overseas Telecommunications Co (1992) – A Cth Act established a system of compensation for injured worked by extinguished all causes of actions for common law damages. Held that a cause of action was considered property

Acquisition The term ‘acquisition’ has been interpreted very narrowly s.51(xxxi) refers to compulsory acquisition, not consensual acquisition (BMA v Cth) Key element – taking control or deprivation or dispossession (Bank Nationalisation

Case (1948) ) The Cth does not have to take the property directly – a law that requires A to

transfer property to B may amount to acquisition (Collins v Hunter) o State acquiring property for the Cth was held to be compensable acquisition

(Magennis v Cth (1949) ) Regulation of economic activity that diminishes property value (e.g. by limiting it’s

use) does not amount to acquisition o E.g. Bans on export of minerals mined (Murphyvores Inc v Cth (1976) );

allowing the lessee to obtain a renewal of a lease against the wishes of the lessor (Trade Practices Commission v Tooth & Co Ltd (1979) ); fixing prices so low as to deprive the trader of any change of trading (BMA v Cth (1949) )

Taxation does not amount to an acquisition of property (Attorney-Genera (Cth) v Schmidt (1961) )

Forfeiture of prohibited imports does not amount to an acquisition of property. It is an incidental power of customs laws (Burton v Honan (1952) )

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Wealth transfers resulting from the exercise of legislative power does not amount to acquisition: Nintendo v Centronic (1994) – an Act vested copyright of an integrated circuit design in Nintendo. Centronic used this design and argued there was an acquisition of property as the Act had taken away their right to use the design. Held that there was no acquisition; Health Insurance Commission v Peverill (1994) – an Act reduced the Medicare benefits for pathology services. Peverill claimed that there was an acquisition of his property rights on fees. Held that while the payment for services can constitute property, this was a statutory right and the substitution of a less valuable statutory right was not an acquisition.

The Cth does not physically have to acquire something – can be an acquisition that leads to a direct benefit or financial gain (e.g. Georgiadis v Australia & Overseas Telecommunications Co (1992) – acquisition of a cause of action gave the Cth a direct benefit as it released them from liability for damages)

Limitation of Property Use:o bBundle of rights – the right to own, use, control, dispose of propertyo Is a party entitled to compensation of one of their rights are taken away? –

generally, the regulation/limitation of property use will not amount to acquisition; thus, does not require just compensation (will amount to an acquisition when it reaches a certain point – no specific test, discretionary)

o Tasmanian Dam Case (1983) – the State’s deprivation of land use did not amount to acquisition (only 4 judges addressed this issue – 3 said no)

o Destroying property will not amount to acquisition – need to actually take possession of property

o Limitation of mining rights (right to explore): Newcrest Mining (WA) v Cth (1997) – held that the legislative cancellation of Newcrest’s mining rights was an acquisition of property. Newcrest was not allowed compensation because the HC was bound by Teori Tau, which stated that no compensation was required for legislation made under s.122 (Teori Tau was overruled by Wurridjal v Cth [2009] )

Cancellation of rights can amount to an acquisition of property o Limitation of water entitlements: ICM v Cth (2009) – under a new access

licence, the plaintiff’s water entitlements were seriously decreased. Held that there was no acquisition as the State always had the power to limit the volume of ground water taken and there was no common law right to ground water

Purpose of Acquisition: Acquisition can only be for purposes with respect to which Parliament as power to

make law (not limited to enumerated heads of powers in s.51 but also extends to ss.52, 61, 71, etc – Blakeley v Cth (1953) )

Just Terms Does not require payment of market value (Grace Bros v Cth (1946) ) ‘Just terms’ = what is the fair amount of compensation taking into account the

interests of both the property owner and the public (Nelungaloo v Cth (No 1) (1948))

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Judicial discretion – will vary Circumvention of the Just Terms Clause:

o In the past – the Cth would enter into agreements with the States. The Cth would make grants to the States under s.96 subject to the condition that they would take or regulate property for the Cth (as the States are not bound by the ‘just terms’ condition) – Magennis v Cth (1949) invalidated such a scheme (the law made under s.96 was characterised as being a law of acquiring property, not an exercise of the grants power)

The Act invalidated in Magennis v Cth was modified to remove any reference to the acquisition of property. This allowed the Cth to circumvent s.51(xxxi) as the law could not be characterised as a law with respect to acquisition of property

o States can achieve the same result by making formal agreements with the executive (an executive agreement between the States and Commonwealth, not an Act) – upheld in Pye v Renshaw (1951)

o The constitutionality of this practice was left open in ICM v Cth (2009) but will most likely by reconsidered in Spencer v Cth [2010] when it returns to Court Pye v Renshaw will probably be overruled

Express Rights

Non-Discrimination on Religious Grounds/Freedom of Religion s.116 – The Commonwealth shall not make any law for establishing any religion, or

for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Two objects:o Prohibits the Cth from discrimination among religions (establishment clause)o Prevents laws that prohibit free exercise of religion (free exercise clause)

Broad interpretation of ‘religion’ (Church of The New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) – held that Scientology was a religion and entitled to tax exemptions for religious institutions.

o Mason CJ and Brennan J – two-fold test: belief in a supernatural Being, Thing or Principle; and the acceptance of canons of conduct in order to give effect to that belief (canons of conduct which offend against the ordinary laws are outside of s.116)

o Wilson and Deane JJ – indicia of ‘a religion’: collection of ideas and/or practices involving a belief in the supernatural (reality extends beyond what we can perceive); ideas that relate to man’s nature and place in the universe and his relation to things supernatural; the ideas are accepted by adherents as requiring or encouraging them to observe particular standards of codes or conduct or participate the specific practices; identifiable group; the adherents themselves view the collection of ideas and practices as a religion

o Murphy J – stated that any attempt to determine what a religion is poses a threat to freedom of religion

Establishment Clause:o The Cth cannot:

Establish any religion Impose any religious observance Impose a religious test for any office or public trust under the Cth

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o AG (Vic); Ex rel Black v Cth (DOGS Case) (1981) – HC upheld public funding of religious schools (argument that government funding of church school amounted to an establishment of religion was rejected)

Barwick CJ and Wilson J – establishment meant the establishment of a religion as a national or Cth institution

Gibbs and Mason JJ – establishment clause bars the erection of a religion as the official state religion

Stephen J – the clause prohibits discrimination between religions Free Exercise Clause:

o Protects not only the free exercise of religion but also the freedom not to have a religion, practices or beliefs (Jehovah Witnesses Case (1943))

o s.116 protects the practice of religion and acts which are done in practice of religion

o Subject to limitations – what is ‘reasonably necessary for the protection of the community and in the interests of social order’ (Jehovah Witnesses Case (1943))

o Only laws that are aimed at limiting religious freedom are barred – laws of general application that incidentally impact religious freedom are allowedo Krygger v Williams (1912) - Krygger objected on religious ground to

undergo peacetime military training. The Act provided that if a person is forbidden by religion to bear arms, they are to be allocated a non-combatant duty. Krygger argued that compulsory military training prohibited him from free exercise of his religion. The HC rejected this as said that it was a law of general application and stated that requiring someone to do something which has nothing to do with religion is not prohibiting him from free exercise of religion.

Right to be Tried by Jury on Indictment for Offences Under Federal Law s.80 – The trial on indictment of any offence against any law of the

Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Elements:o Entitlement applies to trials on indictment (not any offence)

Indictment = a formal accusation of the commission of a criminal offence (usually very serious crimes) – presented by the A-G or DPP

Parliament can avoid s.80 by making the offence non-indictable – Kingswell v R (1985)

A person indicted for a federal offence cannot opt for a trial by judge without a jury – Brown v Queen (1986)

o Applies to any offence against federal lawo Trial must be held in the State the offence is committedo If the offence is not committed within a State (e.g. at sea, on a plane, if the

offence spans more than on State), the trial is held in the place prescribed by Parliament

Parliament can avoid s.80 by making the offence non-indictable (this technically offers no guarantee of the freedom at all)

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o R v Bernasconi (1915) – ‘if a given offence is not made triable on indictment at all, then sec 80 does not apply’

o Dixon and Evatt JJ argued a wider interpretation of s.80 in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) – s.80 should be read to guarantee a fundamental right to trial by jury in criminal cases (at least in serious ones)

o Wide interpretation rejected in Kingswell v The Queen (1985) – ‘it has been held that s.80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves I to the Parliament to determine whether any particular offence shall be tried on indictment or summarily’

Trial by jury:o Finding of guilt by the jury for a federal offence on indictment must be

unanimous – Cheatle v The Queen (1993) o Jurors my be randomly or impartially selected – Katsuno v The Queen (1999) o Innovation is allowed for other aspects of the jury framework

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Freedom from Interstate Discrimination s.117 – A subject of the Queen, resident in any State, shall not be subject in any

other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Prevents State from discriminating against interstate residents Street v Queensland Bar Association (1989) – QLD Supreme Court rules on the

admission of barristers required an applicant admitted in another State to lodge an affidavit that he or she intended to practice principally in QLD. Non-QLD barrister were initially admitted for only 1 year to determine whether they practices principally in QLD. HC struck down this scheme as violating s.117.

o Mason J – s.117 embodies federation and enhances national unity. The effect of s.117 is to confer on an individual an immunity against ‘impermissible disability or discrimination’

Goryl v Greyhound Australia (1994) – a NSW plaintiff suffered personal injury while travelling on a Greyhound bus owned by a company incorporated in QLD. Accident occurred in NSW but the case was heard in QLD under QLD law. s.20 of the Motor Vehicles Insurance Act (Qld) limited damages to what the plaintiff could have gained in their State of residence. Goryl would have been awarded less under NSW law. HC held that s.20 violated s.117.

Sweedman v Transport Accident Commission (2006) – discrimination based on when the car was registered did not violate s.117 as it was not based on residency (discrimination must be based on residency)

Discrimination which does not violate s.117 – State welfare benefits, licensee of a hotel being required to reside on the premises, in-State residency requirement for elective or other public office

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Implied Rights Some rights and freedoms are implied within the Constitution Varying degrees of implication - some rights are necessary implications while others

are inferred from the structure of the Constitution Necessary implications = implications that are logically necessary

o e.g. s.73 – implication that a party to a Supreme Court judgment is entitled with leave to appeal to the HC (Cockle v Isaksen (1959) ); s.24 – implication that the people of the Cth have a right to choose the HoR (Roach v Electoral Commissioner (2007) )

Ban on Bills of Attainder A bill of an attainder is an ex post facto law that retrospectively creates crimes or

retrospectively increases punishment for past crimes Not all ex post facto laws are unconstitutional (e.g. laws that retrospectively grant

benefits or cure past injustices are valid) and retrospective impositions of a civil nature are also valid (e.g. retrospective taxes)

Separation of power in the Constitution (ss. 1, 61 & 71) prevents Parliament from enacting Bills of Attainder (Parliament doesn’t have judicial power. Passing a retrospective criminal law allows the Parliament to predetermine the outcome of a particular case; which is analogous to judicial power)

Nullum crimen, nulla poena sine lege – Principle that a person must not be punished for a lawful act or suffer greater punishment than what is prescribed by law

o Principle enshrined in Art 15(1) of the International Covenant on Civil and Political Rights (ICCPR

Exceptions:o The Nuremburg Exception

Art 15(2) – ‘nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations’

Polyukhovich v Cth (1991) – Cth retrospectively included war crimes in the War Crimes Act 1945 (Cth). Court upheld Act as the Parliament did not determine guilt, this was left to the Court to decide. The Nuremburg Exception was not used.

In the US, there is a express ban on bills of attainder

The Right to a Fair Trial Before Courts Everyone is entitled to a fair trial before being deprived of life, liberty or property s.71 – vests judicial power to the High Court, Federal Courts and State Courts Leeth v Cth (1992) – courts must ‘exhibit the essential attributes of a court and

observe … the essential requirements of the curial process, including the obligations to act judicially’

Kirk v IRC (2010) – HC held that State Parliament cannot remove the supervisory jurisdiction of the Supreme Court (strengthens right to a fair trial under State law)

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The Ban on Executive Deprivation of Life, Liberty and Property

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Prohibition on executive action Australian Communist Party v Cth (1951 ) - Communist Party Dissolution Act 1950

(Cth) was designed to ban the Australian Communist Party, liquidate its assets and disqualify its members from public office. The deprivations were to be imposed by executive order of the GG. HC invalidated the Act because it was not within the defence power during peacetime.

Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) - reaffirmed the constitutional rule with respect to executive detention – ‘involuntary detention in custody by the State is penal or punitive in character, and under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.’

o Following detentions are not punitive: Detention pending investigation and trial; Detention in cases of mental illness, detention in cases of infectious

disease; and Detention for the purposes of deportation of illegal immigrants, or

until their applications are heard for asylum or refugee status

Freedom of Political Communication The freedom of communication is not expressed anywhere in the Constitution Two cases that were decided on the same day (Nationwide Newspapers and ACTV)

establish that the Constitution embodies an implied freedom of political communication

Nationwide Newspapers v Wills (1992) – concerned the publication of an article calculated to bring the Australian Industrial Relations Commission into disrepute through imputations of corruption. Publisher was charged under s.299(1)(d)(ii) of the IR Act, which was interpreted to allow the punishment of statements that brought a member of the Commission or the Commission into disrepute, even if the statements were true. All judges held that the provision was unconstitutional:

o Brennan, Deane, Toohey and Gaudron JJ – held there even though there may be a sufficient connection to s.51(xxxv) (conciliation and arbitration power), all s.51 powers are subject to the Constitution and the Constitution contained an implied freedom of communication and this provision unreasonably restricted this freedom

o Mason J and McHugh J – held the provision lacked a sufficient connection with s.51(xxxv) and that a freedom of speech in relation to public affairs and institutions should be considered

o Dawson J – held the provision was beyond the s.51(xxxv) as it was disproportionate to the achievement of a legitimate end

Australian Capital Television v Cth (ACTV) (1992) – Part 3D of the Broadcasting Act prohibited electronic broadcasting during election (Federal, State and Local) campaign periods. Free airtime was given to political parties represented in the previous Parliament in proportion to the number of fist preference votes they received at the previous election. Independents and private citizens were given free air time at the discretion of the Australian Broadcasting Tribunal. Held that while Part IIID was within the ‘postal, telegraphic, telephonic and other like services’ power, it unreasonably restricted the freedom of communication

Reasoning: (from Nationwide and ACTV)

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o 1. Constitutional provisions (ss. 7, 24, 64 and 128) reveal an intention to create a representative form of government

o 2. Freedom of communication is essential to the functioning of a representative form of government

There is a need for communication of political matters between the representative and the represented and among the represented

o 3. Thus, there is an implied freedom of political communication Freedom to communicate information, opinions and ideas about all

aspects of the government, including the qualifications, conduct and performance of those involved in government, whether legislative, executive or judicial

Only through communication can citizen’s criticise government decisions and actions, seek to bring about change, call for action ad influence the elected representatives

If there was no such freedom, government would not be responsive to the needs and wishes of the people

No limit to the range of matters that may be relevant – extends to all matters of public affairs and political discussions

Lange v ABC (1997) – the freedom is derived from the words ‘directly chosen by the people in ss.7 & 24

What amounts to communication?o Speech, writing, photos an cartoons clearly amount to communicationo Actions: Levy v Victoria (1992) - Levy protested against duck shooting by

entering the hunting area. Charged for this action. Levy argued that he was exercising his freedom of communication. Held that actions may amount to communication; however, in this case there was no unreasonable restriction on the freedom of communication

Freedom of communication and State lawo ACTV and Stephens v WA Newspapers (1994) held that the freedom of

communication extends to political discussion at the State level Freedom of communication is subject to reasonable restrictions

o Freedom is not absolute – will not always prevail over other interests o Content (ideas or information communicated) vs. Mode (the method of

communication)o ACTV held that restriction on content and more difficult to justify than

restrictions on modeo Requirements:

Restriction must be reasonably proportionate to the object Restriction must achieve a legitimate object The object and manner of its achievement must be consistent with –

representative principle, responsible government and the referendum process

Restriction must be appropriate (no other less restrictive method available)

Restriction must be adapted to the object (not excessive) Not only the object, but the manner of its achievement must be

consistent with representative power (Coleman v Power (2004) )o E.g. Parliament can regulate the conduct of people in relation to elections so

as to prevent intimidation and undue influence, even if this restricts the freedom

Freedom does not protect commercial communications

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o APLA Ltd v Legal Services Commissioner (NSW) (2005) – rejected the challenge that an Act that prohibited advertising for legal services restricted freedom of communication. Held that limiting the marketing of legal services is not incompatible with a system of representative and responsible government

Defamation o After the freedom of political communication was recognised, the law of

defamation changed accordingly to respect that freedom o Theophanous v Herald & Weekly Times [1994] –Theophanous was a Member

of Parliament who was defamed. He argued that the defence of qualified privilege (which was limited to publications among persons having reciprocal duties) should be expanded due to the freedom of communication. The defence was expanded.

o Lange v ABC (1997) – refined the defence of qualified privilege. Qualified privilege can apply to communications to a wide

audience that relate to government or political matters. Statements must be reasonable (will be reasonable if there are

reasonable ground to believe it is true; the writer/publisher took reasonable steps to verify facts; writer/publisher didn’t believe it to be untrue; writer/publisher sought a response unless it was impractical or unnecessary to do so)

Malice (improper purpose) will defeat the defence (an intention to cause political damage is not an improper purpose)

Freedom of Association No case has directly upheld the freedom of association Obiter dicta in ACTV suggest there is such a freedom:

o Mason CJ – representative government depends on free communication between all persons, groups and bodies (groups and bodies implies there is association)

o Gaudron J – parliamentary democracy may entail freedom of movement, association and speech generally

o McHugh J – conclusion to be drawn from ss. 7 & 24 is that the freedom of participation, association and communication in relation to federal elections is protected by the Constitution

Logical inference from the ration in ACTVo The Constitution establishes representative and responsible government

freedom of communication is essential to this form of government (Nationwide and ACTV)

o This could suggest that all freedoms essential to representative government are implied in the Constitution if the freedom of association in political matters is essential to such government, the freedom of association is implied in the Constitution

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Legislative and Constituent Powers of the States

Types of Constitutions: ‘Rigid’ or ‘controlled’ – the Constitution cannot be changed except by a special

procedure (e.g. a referendum or a special majority) (most written Constitution) ‘Flexible’ or ‘uncontrolled’ – the Constitution can be changed by normal legislation

passed in an ordinary manner State Constitutions are considered flexible but may be made rigid by State

Parliament

Legislative Power of State Parliaments State Parliaments have plenary legislative power their power is not unlimited but

is not limited to a list of specific subjects Have the power ‘to make laws for the peace, welfare and good government of the

colony in all cases whatsoever’ (s.2 of the Constitution Act (Qld) – also implemented in s.2(1) of the Australia Act)

o Need to ask whether the statute is for the peace, welfare and good government of the State

o BLF Case (1986) – held that the words do not grant the States an unlimited legislative power; rather, the power is confined to ‘the peace, welfare and good government’

Limitations on State Power Australian States have always been subject to external limitations on the legislative

capacity of their Parliaments

Limitation within the Commonwealth Constitutiono Heads of power exclusively vested in the Commonwealth Parliament are not

within State legislative power (e.g. customs and excise duties power, currency, defence)

o Some provisions of the Constitution expressly limit State legislative power (e.g. s.114 provides that a State ‘shall not … impose any tax on property of any kind belonging to the Commonwealth’; s.117 that prevents interstate discrimination

o It is stated in s.6 that State Constitutions are ‘subject to this Constitution’ – thus, State legislative powers may be subject to limitations implied in the Constitution

Does the State Parliament have the power to amend the State’s Constitution Act?o Each State Parliament has the power to amend the constitution of its State,

subject to such binding ‘manner and form’ requirements that Parliament has imposed in exercise of that power

o The Colonial Laws Validity Act 1865 (Imp) stated that the State Parliament could amend the State Constitution

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o McCawley v R [1920] – Privy Council held that State Parliament may make laws that are inconsistent with the Constitution without formally amending the Constitution (if Parliament could amend the Constitution with a normal law, then they should also have this power) however, if the law concerns the ‘constitution, powers and procedure’ of parliament, manner and form requirements (if any) must be followed

Limitation on State legislative power after the Australia Act 1986 (Cth)o The Australia Act served to sever legal ties with the United Kingdom (made

clear in Sue v Hill (1999) )o s.1 – UK Parliament has no power to legislate for the States o s.2(1) – States have full power ‘to make laws for the peace, order and good

government of the State’ o s.2(2) – States may legislate extra-territorially but have no power to engage

in relations with foreign countries o s.3 – State laws are not void if they are inconsistent with UK lawo s.5 – State legislative power remains subject to the Cth Constitution o s.6 – Laws respecting the constitution, powers and procedures of

parliament must be ‘passed in such manner and form as may from time to time be required by a law made by that parliament, whether made before or after the commencement of this Act’

o s.8 – State laws cannot be disallowed by Her Majestyo s.9 – No State law is to be withheld from Her Majesty’s pleasureo s.10 – Termination of the responsibility of UK government in relation to

State matters o s.11 – Termination of appeals to the Privy Council from decisions of State

Supreme Courts (the High Court was made the highest court of appeal)

The Manner and Form Limitations s.6 of the Australia Act 1986 (Cth) – ‘a law made after the commencement of this

Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.’

Manner and form requirements are restrictive procedures – restrict legislative power by requiring that laws on certain topics may only be enacted by a special and more difficult procedure

Need to ask a number of questions in regards to this section:

1. Is the Act one respecting the ‘constitution, powers and procedure of the Parliament of the State’? (yes)

o Constitution – refers to the compositions of Parliament (not the written Constitution)

Taylor v Attorney-General (QLD) (1917) – ‘the constitution of a legislature … [means] the composition, form or nature of the House’. ‘Probably the power does not extend to authorise the elimination of the representative character of the legislature…’

WA v Wilsmore (1981) – qualifications of members does not fall under the ‘constitution’ of Parliament

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Attorney-General (WA) v Marquet (2003) – a change to the distribution of electors is a law respecting the ‘constitution’ of Parliament

o Powers – refers to legislative power, the power to punish for contempt of Parliament and the power to conduct public inquiries

o Procedures – refers to procedures for enacting bills

2. Is there a manner and form requirement prescribed in an earlier Act? (yes)o What is a manner and form requirement?

AG (NSW) v Trethowan (1931) – a referendum is a manner and form requirements

West Lakes v SA [1980] – a requirement that is too hard to meet is not a M&F requirement (rather, it is an attempt to limit future legislative power).

Comalco v AG (Qld) [1976] – ‘Comalco’ clauses (a clause that requires approval of extra-parliamentary agents) are not M&F requirements (rather, are an abdication of legislative power)

3. Is the manner and form requirement mandatory and not merely directory? (yes)o A provision is mandatory if it affects rights (e.g. shall)o A provision is directory if it imposes obligations to observe (e.g may)o An Act will be rendered void if there is a failure to observe mandatory

provisions; however, not if there is only a failure to observe a directory provision (Clayton v Heffron (1960) )

4. Does the manner and form requirement apply to itself? (it should)o Hypothetical example: s.1 states that the Parliament shall consist of 50

members. s.2 states that s.1 shall not be repealed or amended except with a successful referendum. Parliament can get around s.2 by first repealing s.2 and then amending s.1. To avoid this make s.2 (the M&F) provision apply to itself

5. Does the manner and form provision apply to the later Act?o AG (WA) v Marquet (2003) – s.13 of the Electoral Distribution Act 1947 (WA)

stated that ‘it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill to amend this Act, unless …’. A 2001 Bill sought to repeal the Act. Held that amend included repeal in this context as allowing the provision to be repealed would defeat the purpose of the provision.

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6. Does the plaintiff have standing to bring an action when manner and form requirements are not satisfied? (yes)

o A person must have standing to challenge a law – will have standing if the law affect the person’s private rights

o ACK v Cth (1980) – a person cannot sue in relation to a public right or to prevent a public wrong (public rights are vindicated by the A-G: A-G may also lend his name to an individual to sue in a relator (ex rel) action)

o s.53(5) of the Constitution Act (Qld) gives standing to every elector to challenge a law passed contrary to the referendum requirement in s.53

7. Can the Court stop by injunction a law being enacted contract to manner and form requirements?

o Court have the power to invalidate laws that do not comply with M&F requirements

o s.53(5) of the Constitution Act (Qld) – grants Courts the power to grant injunctions to stop bills being proceeded with contrary to the referendum requirement in s.53

o A-G (NSW) v Trethowan [1932] – courts are reluctant to stop the legislative process by injunction (prevent a Bill from being passed) when M&F requirements have been disregarded (will strike a law down after it has been passed) position may be different in Queensland as the Constitution (Qld) expressly grants Courts the authority to do so

8. Can the Queensland Parliament’s constitution, powers and procedures be changed without a referendum? (no)

o s.53 of the Constitution Act (Qld) – a bill that expressly or impliedly in any way affects ss. 1, 2, 2A, 11A, 11B and 53 shall not be presented for assent unless approved at a referendum

o Whether or not s.53 is binding on the Queensland Parliament by virtue of s.6 of the Australia Act depends on how the next question is answered

9. Can manner and form limits be imposed independently of s.6 of the Australia Act 1986 (UK)?

o s.6 of the Australia Act only applies to laws with regards to the ‘constitution, powers and procedures of parliament’ Can State Parliaments bind itself with manner and form requirements on other subjects? (e.g. entrenching a Bill of Rights with the need for a referendum to change it)

o Two views on whether a sovereign parliament can bind itself on any subject: View 1 – Sovereign can do anything including limits its own power View 2 – Sovereign can do anything including repealing or

disregarding its own previous commandso Case authority is unhelpful on this matter:

Clayton v Heffron – held that the NSW Parliament has complete and unrestricted power to make laws including law that change the constitution (inconclusive)

Bribery Commissioner v Ranasinghe (PC) – held that Ceylon Legislature has no power to ignore the conditions of law making. However, the Ceylon legislature was not sovereign but limited by the Ceylon Constitution (not authoritative)

o Reconstitution Theory:

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Theory holds that a sovereign parliament may reconstitute itself for the purpose of dealing with specific Acts or subjects and subsequently impose additional requirements on the newly reconstituted Parliament. Thus, they can impose M&F limitations upon itself independent of s.6

Jackson v H.M. Attorney-General (The Fox Hunters Case) [2005] – the Parliament Act 1911 (UK) drastically limited the power of the House of Lords. The House of Lords could delay a law for 2 years but after that the House of Commons could pass it with royal assent. The Parliament Act 1949 reduced the period to 1 year. This Act was passed by the HoC under the 1911 Act without the HoL consent. The Hunting Act 2004 was passed by the HoC under the 1949 Act without the HoL consent. It was argued that because the HoC and the Queen was a subordinate body, they could not increase its own power and that the 1949 Act is ultra vires the 1911 Act. Held that the HoC and the Queen are subordinate bodies and its powers are limited (e.g. it cannot abolish the House of Lords); however, the express and implied imitations did not preclude the enactment of the 1949 Act. Two judges used the reconstitution theory to support this conclusion.

No case has directly dealt with this issue – if upheld, it would allow the Parliament to impose any M&F requirements, not merely on those relating to the constitution, powers and procedures of Parliament

o Policy Issues: There may be consequences of Parliament being able to impose

M&F requirements on any law could lead to the destruction of parliamentary democracy and each party will seek to entrench its own policies

Fundamental features of the constitution alone may be entrenched by M&F requirements

o The Queensland Solution: s.53 of the Constitution Act (Qld) – a bill that expressly or impliedly

in any way affects ss. 1, 2, 2A, 11A, 11B and 53 shall not be presented for assent unless approved at a referendum

ss. 1, 2 and 2A deal with State Parliament The words ‘in any way affects’ is broader that ‘respecting

the constitution, powers and procedure’ A law containing a M&F requirement diminishes the power

of Parliament hence, the law itself requires a referendum Thus, the Constitution Act (Qld) cannot be amended with

respect to Parliament and the Governor without a referendum

Positive effect as any2 fundamental change affecting the legislative and executive branch requires the approval of the people

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Amendment of the Cth Constitution

There are seven ways to change the Constitution By an amendment Bill passed by both Houses of Parliament and approved at a

referendum By the transfer of powers from States to the Cth under s.51(xxxvii) By the creation of a new legislative power by agreement of all the States under

s.51(xxxviii) By changing an initial constitutional provision by Parliament as authorised by the

Constitution by use of words such as ‘unless Parliament otherwise provides’ (e.g. ss 30, 34)

By changes through judicial interpretation State Constitutions can be amended by State Parliament subject to manner and

form requirements By revolution (can be violent such as in America or France or peaceful such as in

Australia)

Constituent Power Constituent power is different to legislative power Constituent power is the power to make a law that changes the Constitution Many legislatures have separate constituent bodies (e.g. in Australia, s.128 provides

that the constituent body is the Parliament and the electorate)o Some sections of the Constitution allows the Parliament to change that

section by themselves (e.g. s.72) – this is not a constitutional amendment; rather, a change of the initial constitutional setting

Some legislatures have both constituent power and legislative power (e.g. NZ) however, there may be a special manner and form requirement to amend the Constitution

Sovereignty The UK Parliament is sovereign The Cth and State Constitutions were created by sovereign acts of the UK Parliament Sovereignty is considered to be limitless power:

o All persons and authorities are subject to the sovereign’s lawo The sovereign is not bound by another’s law

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o The sovereign is not bound by its own previous law (can change the existing law at will)

Some limits to sovereignty:o Territorial limits – other countries do not have to obey the sovereign’s lawso Practical political limits – the people will vote them out if they pass

unpopular laws (e.g. the UK Parliament can’t say that all blue eyed people will be exiled)

o Limits imposed by general public international lawo Limits imposed by EU lawo Sometimes the sovereign cannot undo what it has done (e.g. granting a

country independence – the courts and officials of that country will no longer obey UK legislation) most important limit in Australia

Hans Kelsen and the Basic Norm A norm is an ‘ought’ proposition something ought to be done Norms can be both legal and non-legal/moral Legal norm = a norm that has validity conferred by another valid norm (behind every

legal norm lies another legal norm)o E.g. A police officer has the authority to fine you for speeding. He gets that

authority from an Act of Parliament. That Act is valid as under the Constitution, the Parliament has the power to make such a law. The Constitution obtained its validity from a UK law. That UK law is binding, as the Parliament is supreme (the furthest you can push this is to the basic norm – a political fact)

The whole system is based on a basic norm (e.g. s.128 of the Constitution) – usually found in the Constitution

The basic norm can be changed by revolution or by peaceful agreement

Evolution of Australian Independence 1788-1823: There was no legislature in the colonies. The colonies were governed by

the Governor (had legislative and executive power) who was responsible to the Colonial Secretary who was responsible to the British Parliament

1823-1828: The Legislative Council of NSW was established – established to give the Governor advice, which the Governor had to act on. The British Parliament retained legislative power

Australian Courts Act 1828: Deprived the Governor the power to legislate against the will of the Legislative Council (prior the Governor only had to consult with the LC). English law applied in the colony as it existed on the 25h of July 1828 (after then, only imperial laws apply by ‘paramount force’ – if it expressly or by necessary implication extended to the colony)

1828-1865: Every colony obtained its own Constitution via a Constitution Act and obtained a legislature.

Colonial Laws Validity Act 1865 (CLVA): o A UK Act will apply in a colony if it is extended by express words or

necessary intendment (s.1)o Colonial laws that are repugnant to UK Acts extending to the colony are void

and inoperative (s.2)

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o Colonial legislatures have power to make laws with respect to (a) legislatures and (b) the constitution, powers and procedures of the legislature (s.5)

o Colonial laws must observe manner and form requirements in legislating with respect to s.5(b)

Federation – 1900: 6 colonies were federate under the Commonwealth of Australia Constitution Act 1900 (UK) – CACA.

o s.9 of the CACA states that the Cth Constitution shall be as follows and sets out s.128.

o The UK Parliament retained the power to make laws for the Cth and the States.

o Australia gained dominion status – has their own legislature but stays within the British Empire.

o There were two ways to amend the Constitution – s.128 referendum or an Act of UK Parliament amending the CACA

Statute of Westminster Adoption Act 1942: Act enacted by the UK Parliament in 1921. Had to be adopted by the Australian Parliament to be effective in Australia – adopted in 1942.

o The CLVA does not apply to the dominions (s.2) o A dominion has extra-territorial power (s.3)o No UK Act will extend to a Dominion unless the Dominion requested and

consented to it (s.4)o Such a request must be made by the Cth Parliament and Government (s.9)

Can the UK Parliament repeal the Statute of Westminster?o The UK Parliament is said to be sovereigno Could the UK Parliament repeal ss. 4 and 9 and legislate for Australia even

without a requesto It is unlikely that the Australian Courts and other authorities would

recognised such a repeal o Also, politically – the basic norm may have changed to s.128 because the

power to request is subject to control under s.128 by constitutional amendment

Australia Act 1986: o The object of the Australia Act was to sever the remaining constitutional

limits to the UK (except the monarchy) o To remove doubts about the validity, an identical Act was passed by both

the UK and Australian Parliament o 4 stage process:

Each State Parliament enacted the Australia Act (Request) Act to give the Cth power under s.51(xxxviii) to enact the Australia Act

The Cth enacted the Australia Act 1986 (Cth) The Cth passed the Australia Act (Request) Act (Cth) to request the

UK Parliament to enact and identical Act to the Australia Act (Cth)

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The UK Parliament enacted the identical Australia Act 1986 (UK)o What the Australia Acts did:

s.1 – No UK Acts were to extend to the Cth or the States s.2 – States given full legislative power s.3 – CLVA limits on State legislative power removed (repugnancy

doctrine repealed) s.6 – manner and form provisions concerning State parliaments re-

enacted (s.5 of CLVA was repealed) s.7 – State Governors given full powers. The Queen may exercise

such powers when present in the State. State Premiers to advise the Queen

s.8 – State laws are not subject to disallowance by the Queen s.9 – No withholding of assent by Governor or reservation for the

Queen’s pleasure s.10 – Termination of UK government’s responsibility for

government of States s.11 – Abolition of appeals to the Privy Council s.12 – Request provision of Statute of Westminster Act repealed s.15 – Method of repealing/amending the Australia Act (Cth)

(1) Can only be amended on request or with concurrence of all State Parliaments

(3) Nothing in (1) prevents the exercise by Cth Parliament of any power conferred upon it by a constitutional amendment under s.128

Requirement of s.128: Process:

o A bill to amend the Constitution must originate in one of the Houseso The bill must be passed by an absolute majority of each house (majority of

ALL MP’s – not just the present MP’s)o If the bill is deadlocked (when one House passes the Bill twice and the other

House rejects it twice), the Governor-General may refer it to a referendum (there must be an interval of at least 3 months between the first rejection and the second passing)

Failure to pass or passing with unaccepted amendment equates to a rejection (e.g. if the Senate doesn’t reject the Bill but waits it out without taking any action)

o If passed by both Houses – the Bill shall be submitted to a referendum between 2 and 6 months after it has passed (everyone in States and Territories that are eligible to vote at normal elections can vote)

o The Bill must be approved by a double majority – a majority of all voters and majority in a majority of States

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o If the amendment either (a) diminished the representation of the State in either House; or (b) alters the limits (boundaries) of a State – the approval of the affected States is essential

o A Bill approved at a referendum must be presented to the GG for royal assent

Constituent Power after 1986 UK Parliament has no constituent power (request provision in Statute of

Westminster Act was repealed) Can the UK Parliament repeal the Australia Act (UK) and change the Constitution?

– Unlikely as the basic norm has changed s.128 is the only source of constituent power in Australia Professor Gilbert argues thee is a 2nd source of constituent power:

o Argued that s.15 creates a second source of constituent power (s.15 states that the Australia Act can only be amended by an Act of the Cth Parliament on request or with concurrence of all State Parliaments)

o Step 1: Cth Parliament would amend s.15(1) of the Australia Act (UK) on request of all States to grant the Cth Parliament the power to amend the Constitution by the same procedure

Would read: ‘This Act or the Statute of Westminster 1931 or the Constitution of the Commonwealth of Australia … may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States …’

o Step 2: Parliament under s.15(1) would enact amendments of the Constitution on request of all the States

o Note: the Australia Act (Cth) cannot be used as it was made under s.51(xxxviii) which is subject to the Constitution

Arguments against Professor Gilbert’s argument: s.15 is in a hierarchical relationship to s.128 and s.128 is the Basic Norm of the Constitution

Relevance of Jackson v Her Majesty’s Attorney-General (Fox Hunting Case) [2006] UK Parliament is a triumvirate – the Queen, House of Lords and House of Commons Parliament Act 1911 (UK) stated that a Bill rejected by the Lords over 3 sessions in 2

years may be enacted by the Queen and Commons A bill was passed by Common in 1947 to reduce the time that the Lords could delay

Bills (from three sessions over two years to two sessions over one year). After the Lords rejected this Bill in 3 sessions over 2 years, the Queen and Common enacted the Bill Parliament Act 1949

The Hunting Act banned cruel forms of fox hunting – it was passed under the Parliament Act 1949 after the House of Lords resisted it in 2 sessions over one year

Jackson challenged the validity of the Parliament Act 1949 – argued that the 1911 Act could only be changed by the triumvirate (not just the Queen and Commons)

The House of Lords (the Court) declared both the Parliament Act 1949 and the Hunting Act as valid key reason: there had been a shift in the Basic Norm – the Parliament Act 1949 had been treated as being valid over such a long period

This decision gives some credit to Prof. Gilbert’s theory – unlikely to be followed I Australia due to s.128

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Can Australia Become a Republic? s.128 can be used to amend the Constitution but not the Commonwealth of

Australia Constitution Act (has 9 sections – the 9th section introduces the Constitution to be as follows)

CACA cannot be changed by recourse to s.51(xxxviii) in a way that alters the Constitution as the powers are ‘subject to the Constitution’ (thus subject to s.128)

o s.51(xxxviii): subject to this Constitution … ‘the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia’

It may not be necessary to repeal or amend the CACA:o It may be sufficient if the Constitution is amended under s.128 to substitute

a local Head of State in place of the Queen and Governor-Generalo What about the preamble? ‘Whereas the people of NSW, Vic, SA, Qld and

Tas … have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.’ the preamble is not part of the Act (only used to aid in interpretation in case of doubt; thus, the preamble may be ignored)

Can a State Secede from Australia? No provision in the Cth Constitution to permit a State to secede Secession is only possible by amendment of s.3 of the CACA (established the Cth

constituting the 6 original States) o CACA can only be amended by the UK Parliament on request and consent of

the Cth Parliament o Request provision was repealed by the Australia Act 1986 there doesn’t

seem to be a legal way in which a State can secede 1933 – more than 2/3 of voters in WA voted in favour of secession. A petition was

sent to Britain and received by a joint committee of the House of Lords and Commons. Held that such a petition was not receivable according to convention in the absence of a request by the Cth government.

Reference re Secession of Quebec [1998] – held that the province of Quebec had no constitutional right of unilateral secession. However, if the people of Quebec democratically decided to secede, the federal and other provincial governments have a constitutional duty to negotiate the terms of a possible secession

A State may separate by force and establish its own Basic Norm – highly unlikely as the State would struggle to gain recognition as a nation at international law

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