70616: Australian Constitutional LawFinal exam revision

ContentsWhat is in the exam?...................................................................................................................................4

Interpretation of the Constitution...............................................................................................................5

Characterisation of the law.........................................................................................................................6

Subject matter powers - sufficient connection test.................................................................................6

As in the Bank Nationalisation Case....................................................................................................6

As in Fairfax (1965)..............................................................................................................................6

As in Herald (1966)..............................................................................................................................6

As in Murphyores (1976)......................................................................................................................6

In Re Dingjan (1995)............................................................................................................................7

Purposive powers + - Reasonably appropriate and adapted test............................................................8

Subject Matter Powers................................................................................................................................9

The Race Power.......................................................................................................................................9

Koowarta.............................................................................................................................................9

Tasmanian Dams.................................................................................................................................9

Western Australia v Commonwealth...................................................................................................9

Kartinyeri.............................................................................................................................................9

Trade and Commerce Power.................................................................................................................10

Definition of Trade and Commerce...................................................................................................10

Required to be interstate or overseas...............................................................................................10

Intrastate trade..................................................................................................................................10

Corporations Power...............................................................................................................................12

Constitutional Corporations...............................................................................................................12

Power to incorporate.........................................................................................................................12

Scope.................................................................................................................................................12

Implied Incidental Power...................................................................................................................13

Purposive Powers......................................................................................................................................16

Nationhood............................................................................................................................................16

External Affairs......................................................................................................................................18

Physically external.............................................................................................................................18

International Relations/relationships with other countries...............................................................18

Matters of international concern.......................................................................................................18

Treaties/external affairs....................................................................................................................18

Grants Power.............................................................................................................................................21

S52 – regarding commonwealth land........................................................................................................21

The Territories Power................................................................................................................................22

The States..................................................................................................................................................23

Commonwealth laws affecting the state...............................................................................................23

State laws affecting the commonwealth...............................................................................................23

Inconsistency of laws.............................................................................................................................24

Implied Incidental Power...........................................................................................................................25

Chapter 3 Courts and the Separation of power.........................................................................................26

Does the Commonwealth Act create a Court?......................................................................................26

a) Is it constituted in accordance with Chapter III?........................................................................26

b) Is it exercising the judicial power of the Commonwealth?........................................................26

Does the Cth. Act create a tribunal that is not a Chapter III court?.......................................................27

a) Is it exercising judicial power of the Commonwealth?..............................................................27

b) Are the members of the tribunal Chapter III judges?................................................................27

c) Are the judges acting in their personal capacity or their judicial capacity?...............................27

Does the State Act create a court?........................................................................................................28

Rights and Freedoms.................................................................................................................................30

Freedom of religion...............................................................................................................................30

Acquisition of property on just terms....................................................................................................31

Implied Freedom of political Communication.......................................................................................32

Implied Right to Due Process, Fair Trial & Equality............................................................................33

What is in the exam? Characterising a law

o Heads of power The race power Trade and commerce Corporations External affairs Nationhood The territories power Grants power S52

o Other issues Separation of powers

Judiciaryo Chapter 3 courts and the exercise of the judicial power of the

commonwealtho Judges acting in persona designate

Rights and Freedoms Free trade between states Freedom of religion Freedom of political communication

o Freedom to gather/travel Limited right to vote Right to a fair trial Right to a trial by jury Acquisition of property on just terms

Melbourne Corporation Retrospectivity – Polyukovic, limited by university of Wollongong v metwally

[can’t use retro to claim that inconsistency didn’t happen] Reading down a law s15A interpretation act

Inconstancy between state and federal lawso Vanilla

Explicit inconsistency “covering the field”

Interpretation of the Constitution The broader interpretation of the constitution is favoured:

We are interpreting a Constitution broad and general in its terms … the court should in my opinion, always lean to the broader interpretation unless there is something in the context or the rest of the Constitution to indicate a narrower interpretation is better

Dixon J in the Bank Nationalisation Case [interpretation of banking power; held: power to be construed broadly]

Characterisation of the lawA law must be characterised in order to be valid.

Subject matter powers are characterised via the sufficient connection test, purposive powers are characterised via the reasonably appropriate and adapted test

Subject matter powers - sufficient connection testThe sufficient connection test is used to characterise a law under a subject matter power.

As long as the law can be characterised as being a law with respect to a subject matter which is within power it does not matter that it might also be characterised as bearing upon some other subject matter not within

To characterise a law the focus should be on the direct legal operation of the law

In characterising a law the court is not concerned with the policy it embodies but only whether it can fairly be described as a law with respect to a specified subject matter – is there a sufficient connection between the law and the head of power. Do not examine the motives which inspire it or the consequences which flow from it.

As in the Bank Nationalisation Case The subject matter of the head of power is construed broadly The commonwealth may make any law within this subject matter

Dixon J in the Bank Nationalisation Case [limit of banking power]

As in Fairfax (1965) 1. What is the law with respect to?2. What does it do?3. What does it command or prescribe

Once it appears that a law has an actual and immediate operation within a field assigned to the CW as a subject of power that is enough …That it discloses another purpose that lies outside power is not sufficient to invalidate it

Kitto J in Fairfax v Commr of Taxation [involving taxation and superannuation]

As in Herald (1966)Since s51 of the constitution allows for laws “with respect to”, a substantial connection is sufficient.

Kitto J in Herald v Weekly Times [involving whether the law was with regards to television licences or those who hold them]

As in Murphyores (1976)Policy is irrelevant

That the law is dealing centrally with a topic, that it deals with other topics is fine.

it is enough that the law deals with the permitted topic and it does not cease to deal with that topic … account…It is now far too late to say that a law should be characterised by reference to the motives which inspire it or the consequences which flow from it.

It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate

Mason J in Murphyores [involving the export of sand]

In Re Dingjan (1995)This case was regarding subcontractors under the corporation’s power.

A requirement for actual connection was held by 4/3 of the court.

Gaudron J, in minority, says all you need is an express intention to get a sufficient connection.

Gaudron’s broad view has been propagated (e.g. in Workchoices)

Purposive powers + - Reasonably appropriate and adapted testThis test is used to characterize purposive powers (e.g. defense, nationhood); we ask is the Act appropriate and adapted to the purpose of the power.

This test is also used in the implied incidental power.

does it go beyond what is reasonably appropriate and adapted to its purpose

McHugh J in Nationwide News

Where it’s (1) a purposive power or (2) where the law impinges on an express or implied freedom or prohibition you can examine the law to see whether it is appropriate and adapted

Brennan in Cunliffe

Majority - the proportionality test is not relevant to non-purposive power

BUT Brennan, Kirby and McHugh all said proportionality may have a role to play in determining sufficient connection

Leask

Subject Matter PowersSubject matter powers are powers that are in respect to a subject head of power (as contrasted to those with respect to a purposive head of power, e.g. defence, nationhood).

They are characterised via the sufficient connection test.

The Race PowerS 51. The Parliament shall, subject to this Constitution have power to make laws for the peace,

order, and good government of the Commonwealth with respect to:

Sub S (xxvi) the people of any race for, whom it is deemed necessary to make special laws.

KoowartaThis case was regarding the validity of the racial discrimination act. It was held not to be valid under this head of power (but valid under external affairs) since there was a requirement that a law made under this head of power be:

A special law Specific to a certain race

Tasmanian DamsA race is:

A group of people with common history/ancestry/culture/religion/physical similarities (Brennan) All of the people that make up the identity of a race (Dean)

A special law is:

Special in its operation, not necessarily its terms (Brennan)

Western Australia v CommonwealthEven when it confers a benefit generally, if it confers particular benefit to a particular race, it is within the power.

Kartinyeri Gaudron J discussed that the race power is only valid where there is a relevant difference between races: covers positive and negative legislation

Gaudron J: it would not be appropriate or adapted for a negative law to be put in place regarding aborigines

Kirby J: s51(xxvi) is ambiguous, and should thus be interpreted in the light of Australia’s international treaty obligations/international law, and, thus, that negative racial laws should not be allowed.

Trade and Commerce PowerS 51. The Parliament shall, subject to this Constitution have power to make laws for the peace,

order, and good government of the Commonwealth with respect to:

Sub S (i) Trade and commerce with other countries, and among the states

This power is construed broadly.

This power may be used to create government trading enterprises (Australian National Airways Pty Ltd v The Commonwealth)

Definition of Trade and CommerceThe words “trade” and “commerce” are given their popular meanings (W&A McArthur Ltd v Queensland)

This is defined broadly, including:

navigation, shipping and rail assets of the state (s98) intangibles (Bank of NSW v Commonwealth) goods in preparation for trade (Granall v Marrickville Margarine; Beal v Marrickville Margarine)

Required to be interstate or overseasAny export regulation falls within this scope (Murphyores v Commonwealth – export subject to environment)

Intrastate tradeThere is no direct power here to support intrastate trade regulations (R v Burgess; Ex Parte Henry; Airlines of NSW v the State of NSW & Anor (No 2))

However, intrastate trade may be allowed where:

it is inseparably connected to interstate trade and commerce (Menzies in Redfern v Dunlop Rubber)

it can be as distant so as to satisfy that it is “not too remote … that there is no real relationship” (Windeyer in Redfern v Dunlop Rubber)

it it intrinsically economically connected with interstate trade (Minister for Justice (Ex rel Ansett) v Australian National Airlines Commission)

Corporations PowerS 51. The Parliament shall, subject to this Constitution have power to make laws for the peace,

order, and good government of the Commonwealth with respect to:

Sub S (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth

Constitutional CorporationsForeign Corporations:

Outside of Australia (ownership) (R v Judges of the Federal Court of Australia Ex Parte Western Australian National Football League) (NSW v the Commonwealth (the Incorporation Case))

Trading Corporations

Trading defined in the modern sense (Actors and Announcers Equity Association v Fontana Films Pty Ltd)

Financial Corporations

Again, in the modern sense (Re Ku Ring Gai Cooperative Building Society (No 2)) (State Superannuation Board v Trade Practices Commission)

Whether a corporation is within one of these categories may be inferred by its actual activities or stated intensions (R v Trade Practices Tribunal; Ex Parte St George St Council).

These activities need not be a predominant part of the business (R v Judges of the Federal Court of Australia Ex Parte Western Australian National Football League) (State Superannuation Board v Trade Practices Commission)

If the company does nothing (e.g. a “shelf company”), its intended activities define it (Fencott v Muller).

Power to incorporateThe government has no express right to incorporate under this power (NSW v The Commonwealth (The Incorporation Case) but it may do so incidental to other powers (Strickland v Rocla Concrete Pipes Ltd).

ScopeTraditionally, narrow (Huddart, Parker & Co Pty Ltd v Moorehead); then broader, regulating the Trading and Financial activities of Trading and Financial organisations (Strickland v Rocla Concrete Pipes Ltd; R v The Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd). Then allowing regulation of “persons who harm the interests” of constitutional corporations (Actors and Announcers Equity Association v Fontana Films Pty Ltd). Then, allowing the regulation of any external activity of a consititutional corporation (Strickland v Rocla Concrete Pipes) (Commonwealth v Tasmania (the Tasmanian Dam case)).

Now, very broad, allowing for the regulation, even, of internal issues (Workchoices). Kirby J, in minority, spoke of the necessity to maintain federal balance with this power, in light of the interstate industrial dispute power.

Implied Incidental PowerSo long as there is a reasonable connection between a law’s direct legal operation and some matter directly within section 51(xx) of the Constitution, the law will be one with respect to the subject matter of section 51(xx) of the Constitution – Fencott v Muller

Purposive PowersUse the reasonably appropriate and adapted test.

NationhoodS 61 The executive power of the Commonwealth is vested in the Queen and is exercisable by

the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth

S 51 The Parliament shall, subject to this Constitution, have power to make laws…with respect to:

Sub s xxxix Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth

Nationhood power is the Power of the Commonwealth (specifically, the executive) to make laws based on Commonwealth as a nation.

The nationhood power is used for the advancement of the nation.o Brennan J in Davis v Commonwealth (1988): ‘it extends to the advancement of the

nation whereby its strength is fostered’. This was first promoted in Victoria v The Commonwealth and Hayden (1975) by Mason J:

o ‘there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’.

This scope of the nationhood power was confirmed in Pape v Commonwealth (2009); however the court unanimously stated that the power has to be limited by the principles of Federalism.

o French CJ: ‘It has to be capable of serving the proper purposes of a national government. On the other hand, the exigencies of “national government” cannot be invoked to set aside the distribution of powers between the Commonwealth and the States and between the three branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions’.

At present, not enough case law to determine detailed criteria, however “as cases are decided, perhaps precise tests will be developed”: Davis v The Commonwealth (1988).

Must be peculiarly adapted to the federal government (e.g. it shouldn’t be more appropriate for the state to enact the legislation) (Pape).

This has to be balanced with federalism (Pape)

Heydon, in Pape, said nationhood does not exist

External AffairsParts of external affairs are purposive, and parts are subject matter.

S51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

Sub S (xxix) External affairs

This gives the commonwealth the power to:

Legislate on matters/affairs which are physically external to Australia (a this is a non-purposive power)

Legislate re Australian relationships with other nation states (this is a purposive power) Change Australian law so as to address matters of an international concern (this is a purposive

power) Change domestic law so as to implement international agreements/treaties that Aust is a party

to (this is a purposive power)

Physically externalThis is a non-purposive power.

The commonwealth may legislate on persons, places, matters or things physically external to Australia (the Seas and Submerged Lands Case).

e.g. War crimes and retrospectivity (Polyhukovich v The Commonwealth)

International Relations/relationships with other countriese.g. illegalising the “excitement of disaffection” against allies (R v Sharkey)

NB: international law flavours legislative interpretation when there is uncertainty as to its meaning (Teoh v Minister for Immigration)

This may be extended to constitutional interpretation (Newcrest Mining (WA) Limited v The Commonwealth per Kirby)

Matters of international concernMay be legislated on (Tasmanian Dams)

Treaties/external affairs?Requirement for note of treaty in legislation?

The executive has sole power over external affairs, which can be legislated via the incidental power (Barton v Commonwealth; Tasmanian Dams), including treaties, customary international law, etc.

Is purposive (reasonably and appropriately adapted) (Commonwealth v Tasmania; Victoria v Commonwealth)

The treaty

A treaty requires drafting, signing, ratification and legislating into Australian law. Ratification is an executive act, not a legislative one.

Treaties need to be executed into law (Victoria v Commonwealth) They can be about anything (R v Burgess; Ex Parte Henry) (Koowarta) (Tasmanian Dams) Need not be lawful (Horta v Commonwealth)

Implementation of the treaty (i.e. legislating)

Domestic law must conform to the treatyo Includes power to legislate incidentally to the treaty (R v Burgess; Ex Parte Henry)o Adherence need not be meticulous, as long as the purpose of the treaty is effected (R v

Poole; Ex Parte Henry)

Limitation

A treaty may not be signed as a “sham or circuitous device to attract legislative power” (Koowarta, R v Burgess; Ex parte Henry, Horta v Commonwealth)

Grants PowerS96 During a period of ten years after the establishment of the Commonwealth and

thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as Parliament thinks fit.

This is not limited, but advised by ss 99, 51(ii) [taxation], 51(iii) [excises] (DCT NSW v Moran)

It cannot be used discriminatorily (Moran v DCT)

They are allowed to be conditional (the First Uniform Tax Case)

It does not make laws, only allows for grants (Melbourne Corporation)

The conditions may be enforced (Tax 2) but state acceptance of a grant cannot enforced (i.e. this is not a coercive power) (Tax 2)

Fine for schools (e.g. outside scope of religion, because didn’t enforce a religion) (DOGS)

S52 – regarding commonwealth landS52 The Parliament shall, subject to this Constitution, have exclusive power to make laws for

the peace, order, and good government of the Commonwealth with respect to:

(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;

(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;

(iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.

The Territories Powers 122 Government of territories The Parliament may make laws for the government of any

territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on terms which it thinks fit.

S111 States may surrender territory The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

This allows the government to make a territory (Capital Duplicators Pty Ltd v Australian Capital Territory) and a legislature for that territory, which has plenary power (Berwick Ltd v Gray)

Commonwealth may deny any legislation within 6 months Commonwealth may legislate over the state (paramount laws) The commonwealth has plenary power (not subject to the constitution like the powers under

s51) (Spratt v Hermes) … it is unqualified (Teori Tau v Commonwealth) If a an act allows self government, Tau is overruled (e.g. NT and ACT in their respective “self-

government” acts) The Territories power may be limited so that the constitution remains whole (Capital

Duplicators) and is limited by political communications (Lange v ABC) Freedom of interstate trade applies to territories (self government acts) Territorial courts aren’t an exercise of the judicial power of the commonwealth, and thus aren’t

chapter 3 courts, but are subject to the Kable doctrine.

The StatesNSW may make a law about anything as long as it goes to “peace order and good government” s5 NSW Const (plenary).

Originally, neither state nor commonwealth could legislate to affect one another (Re Tracy; Ex Parte Ryan). Further, the reserve powers doctrine meant to preserve residual state power (s107, R v Barger).

Both of these principles were overturned in the Engineer’s Case (and Fairfax v Commr of Taxation).

The state and the commonwealth are still limited as to their dealings with one another via the Melbourne Corporation Principle, whereby neither party may obstruct the other from exercising their powers nor interfere with their operation.

Commonwealth laws affecting the stateA commonwealth law may legislate on the states unless (QEC v Commonwealth)

It discriminates against the states or places special disabilities on themo Unless that discrimination places the states on equal footing (Mason J in QEC v

Commonwealth)o Determined by looking at the substance of the law (Re Australian Education Union; Ex

parte Victoria)o Discrimination is not proved if the law only has greater practical effect on one state (WA v

Commonwealth) A Commonwealth Act of general application that operates to destroy or curtail continued

existence of the States or their capacity to function as governments’ is invalid.o The Commonwealth law has to directly effect the existence of a state power (WA v

Commonwealth)o A Commonwealth law cannot take people, money, etc. which the state requires off the

state (WA v Commonwealth)

State laws affecting the commonwealthThe commonwealth is basically immune to state legislation if the immunity is incidental to a head of power (s109); that is, unless:

The law is administrative (Dixon J, dissenting in Uther v FCT, confirmed in Commonwealth v Cigamatic)

S80 of the judiciary act applies

Note, the state may make a law that has extra-territorial application s2(1) Australia Act (Pearce v Florenca)

Inconsistency of lawsS 109 Inconsistency of laws. 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.

Basically, the Commonwealth law prevails if there is an inconsistency. Where the head of power is concurrent, the commonwealth law will override the state law if it is valid and there is an inconsistency (s109). Where the head of power discussed is an exclusive power (e.g. currency, defense, s52 (seat of Government), acquisition of property on just terms), only the commonwealth may legislate (and it is immune in those areas) (Worthing v Rowell and Muston Pty Ltd).

Law, here, describes statute only (Engineers, Felton v Milligan), there are exceptions:

Industrial awards (ex Parte McLean) Court rules (Flaherty v Girgis) A law with respect to a territory may override state law (Lamshed v Lake), but not a law of the

territories (NT v GPAO) The constitution is not a s109 law (Re Colina) Administrative decisions are not law (Airlines of NSW v NSW)

Where there is a direct or indirect inconsistency, the state law is invalid to that extent:

NB: different punishments for the same crime is not enough to establish inconsistency (McWater v Day), but in Hume v Palmer, this was contradicted. McWater v Day is Authority.

There is a direct inconsistency if:o “one law requires what the other forbids” (Telstra Corp v Worthing)o Or if both laws cannot be obeyed simultaneously

One law takes away rights given by another (or vice versa) (Mabo v Q’land) (WA v Commonwealth)

There is an indirect inconsistency if the commonwealth wants to “cover the field”o “If a competent legislature expressly or impliedly evinces its intention to cover the whole

field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field…” (Clyde Engineering v Cowborn)

o There may be an express intention to cover the field (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation)

o Or an implied one (Clyde Engineering) Take into account wording and level of detail (Wenn v Attorney General) The breadth of the legislation (ABC v Industrial Court of South Australia) Whether the subject matter is a federal or state one (R v Lowenthal; Ex Parte

Black)

Implied Incidental PowerS51(xxxix) matters incidental to the execution of any power vested by this Constitution in the

Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth

Every head of power includes

Every power and every control the denial of which would render the grant ineffective

D’Emden v. Pedder (1904)

every legislative power carries with it the authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter

Granall v Marrickville Margarine Pty Ltd (1955)

Chapter 3 Courts and the Separation of power

Does the Commonwealth Act create a Court?

a) Is it constituted in accordance with Chapter III? Only Chap III courts can exercise Chap III powers: New South Wales v Commonwealth

(the Wheat case) (1915). 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 Parliament prescribes.

s 79: Number of judges: The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

s 72: Judges Appointment, Tenure and Remunerationo The Justices of the High Court and of the other courts created by the Parliament

i. Shall be appointed by the Governor-General in Council:ii. Shall not be removed except by the Governor-General in Council… on the

ground of proved misbehaviour or incapacity:iii. Sub-section provides for:

i. Fixed remuneration;ii. Appointment of tenure until aged 70;

iii. Cannot become a judge once aged 70.

b) Is it exercising the judicial power of the Commonwealth? s 75: establishes jurisdiction of the High Court; s 76: establishes additional jurisdiction of the High Court; s 77: establishes the power of Parliament to define the jurisdictions of courts.

Definition of Judicial Power:o It has never been possible to frame a definition of judicial power that at once exclusive

and exhaustive: R v Davison (1954).o However, one starting point for the determination of the meaning of the phrase ‘judicial

power’ is to consider what powers were in the minds of the lawyers of the Constitution at the time — that is, the connotation of the words at the time of Federation: see Attorney-General for New South Wales v Brewery Employees Union of New South Wales (the Union Label case) (1908) 6 CLR 469.

o Three historical judicial powers are: Judicial review; Determine criminal guilt; and Make binding and enforceable decision (involving legal rights).

o The historical approach to ‘judicial power’ was taken in R v Davison (1954).

The power to determine criminal guilt is an exclusive power of courts: Chu Kheng Lim v Minister for Immigration (1992); Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918).

o The judicial power of the Commonwealth is infringed by legislation which purports to remove the power of a Chapter III Court to make a determination of criminal guilt before incarceration: Polyukhovich v The Queen (1991).

o The Parliament can change statutory rights at issue in pending litigation: Polyukhovich v Commonwealth (1991).

o Re Tracey; ex parte Ryan (1989): military tribunals can punish for breach of military discipline (see above).

Binding, Authoritative and Conclusive Decisionso The word ‘binding’ refers to the enforceability of a decision. The principle that only a

Court exercising judicial power can make a legally enforceable decision was reconfirmed in Brandy v Human Rights and Equal Opportunity Commission (1995).

o Authoritative means conclusive. Only a court can make a conclusive determination of law: Luton v Lessels [2000].

o While the power of enforcement is exclusive to Courts, the power to make conclusive determinations of legal rights does not preclude non-Chapter III bodies from making decisions that affect legal rights, or even from making decisions based on their opinion as to the applicability of laws to facts. However any legislative scheme which enables non-Chapter III bodies to determine legal rights must not give the body a power to make conclusive decisions — that is, a decision from which no appeal lies: Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930).

Does the Cth. Act create a tribunal that is not a Chapter III court?

a) Is it exercising judicial power of the Commonwealth? See above.

b) Are the members of the tribunal Chapter III judges? On facts.

c) Are the judges acting in their personal capacity or their judicial capacity? Persona Designata Rule:

o Federal judges may occupy non-judicial posts if they do so as ‘designated persons’ not as members of their court: Hilton v Wells (1984).

You must look at nature of power conferred; if it is judicial than the judge is exercising judicial capacity, if it is administrative than the judge is acting in their personal capacity.

Another test is whether in undertaking their duties being a judge is part of those duties, or whether it is a qualification of them.

The majority in Grollo v Palmer (1995) affirmed Hilton v Wells (1984).o Boilermakers was reiterated: judges cannot undertake non-judicial roles that would

jeopardise their roles as individual judges or as part of the judiciary. However, if the

persona designata rule applies, it was trusted that a judge would step aside if the case came before them.

o Brennan CJ, Deane, Dawson and Toohey JJ stated that there are two elements to the persona designata rule:

The judge must consent to the conferral of non judicial power; and The persona designata function cannot be incompatible with the judges

performance of their Chap III powers, or powers that would interfere with the judiciary’s function as an institution [at 364-5].

Does the State Act create a court? States are not subject to any separation of powers: BLF v Minister of Industrial Relations (1986).

o However, States may not act in a way that is repugnant to the judicial power of the Commonwealth: Kable v DPP (NSW) (1996).

Note: this has only been applied once (in Kable). Importantly in Kable: The Supreme Court was exercising Federal jurisdiction; and The legislation in question specifically targeted one person.

Rights and FreedomsAll minor rights and freedoms, see lecture slides.

Freedom of religionS116 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.

What is a religion?

belief in a supernatural Being the acceptance of canons of conduct in order to give effect to that belief (the Scientology Case,

Mason and Brennan) Murphy gave a broader view

The commonwealth cannot establish a religion as a state religion (DOGS)

The commonwealth shall allow the free exercise of religion

A religious person isn’t obligated to vote But may be obligated to serve in the military (i.e. it depends on seriousness of duty) (Judd v

McKeon)

Acquisition of property on just termsS51(xxxi) 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;

What is property?

The HC has given a broad construction to the word ‘property’.o property refers to “any interest in any property” and was not limited (Minister of State

for the Army v Dalziel)o Therefore, property could include full title and ownership, possession, both real and

personal property and tangible or intangible property.

What is acquisition?

s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized,

but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property (Bank of NSW)

refusing renewal of a lease is not acquisition (TPA v Tooth) includes refusing a cause of action (Georgiadis)

What are just terms?

Market Value (PJ Magennis)

Implied Freedom of political CommunicationHC through the 1990’s developed a principle that because s7, 24 and 128 create a system of representative government, there was implicit within the Constitution a freedom to communicate on matters of political and governmental concern (Nationwide News; ACTV; Theophanous; Stephens). In Davis v Cth Brennan J stated that “minorities are thus entitled to freedom in the peaceful expression of dissident views.”

There is an implied right to political communication.

This is derived from the right to vote and responsible government (McGinty, Langer) in Lange v ABC this was discounted, with representative government seen as fluid.

Test is from Lange, modified by Coleman v Power

1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

2. Is the law reasonably appropriate and adapted to serve a legitimate end?

This applies to defamation (Robert v Bass)

In Levy v Vic McHugh J held hat “the constitutional implication does more than protect rational argument and peaceful conduct that conveys political or governmental messages. It protects false, unreasoned and emotional communications.” However, in this case the law was proportionate to the public safety and hence the plaintiff was unsuccessful. In Robert v Bass, the court reiterated the position in Lange that the constitutional freedom confers no right on individuals but invalidates any statutory rule that is inconsistent with the freedom.

Implied Right to Due Process, Fair Trial & EqualityCh III courts must exercise their functions in accordance with principles of natural justice, that is, a person must be given a fair trial and a hearing that is free from vice (Wilson v Minister for Aboriginal & Torres Strait Islander Affairs). In Leeth v Cth, Gaudron J held that it was “an essential feature of judicial power that it should be exercised in accordance with the judicial process.” Consequently, there is an implied constitutional right to a fair trial. In Dietrich v The Queen the court held that it would be a miscarriage of justice if an accused person, charged with a serious criminal offence and unable to afford legal representation, was refused adjournment until representation was available.

Publicity is to be seen as the authentic hallmark of the judicial process, that is, judicial power should be under public scrutiny (McPherson v McPherson; approved by Gibbs J in Russell v Russell). While there will be exceptions (e.g. family matters where children are involved, sexual assault offences etc) it is very difficult for a government to justify imposing a blanket ban on an open court. It would most likely be found to be inconsistent with the exercise of judicial power to have all matters of a particular court behind closed doors.

The extent of an implied constitutional right of equality is limited. In Leeth v Cth Mason CJ, Dawson and McHugh held that there is no general requirement contained in the Constitution that the common law should have a unified approach. Although Deane and Toohey JJ dissented, claiming the laws were discriminatory and unconstitutional, the majority held that while there may be an implied right of equality to be treated the same that does not extend to issues such as the different procedural laws that are put in place by the State.

This has been extended to include a potential right of freedom of association and travel (Gaudron in minority in Kruger v Commonwealth), though it hasn’t gained momentum