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INTRODUCTION & BACKGROUND ................................................................................................................................... 4
LEGISLATIVE POWER: FEDERAL DIVISION OF LEGISLATIVE POWER ...................................................................... 5
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers) .................................................... 5
S 51(XXIX) EXTERNAL AFFAIRS POWER ........................................................................................................................ 7
Koowarta v Bjelke-Petersen (1982) CLR 168 ......................................................................................................... 7
Tasmanian Dams Case (1983) 158 CLR 1 ............................................................................................................. 8
Victoria v. Commonwealth Industrial Relations Act Case (1996) 187 CLR 416 .................................................... 10
GEOGRAPHIC EXTERNALITY AND OTHER ASPECTS OF S 51(XXIX) ............................................................... 12
Horta v Cth (1994) 181 CLR 183 ........................................................................................................................... 12
XYZ v Cth (2006) 227 CLR 532 ............................................................................................................................ 13
S 51(XX) CORPORATIONS POWER ................................................................................................................................ 14
Work Choices ........................................................................................................................................................ 14
STATE CONSTITUTIONS AND STATE LEGISLATIVE POWER ..................................................................................... 17
McCawley v R (1920) ............................................................................................................................................ 18
S 109 INCONSISTENCY OF STATE AND FEDERAL LEGISLATION ............................................................................. 20
R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 ................................................................... 20
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 .................................................................................... 20
Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 ............................................................................................... 20
Telstra v Worthing (1999) 197 CLR 61 .................................................................................................................. 20
Ex Parte McLsean (1930) 43 CLR 472 ................................................................................................................. 21
Ansett Transport Industries (Operations) Pty Ltd v Wardley ................................................................................. 22
TA Robinson & Sons Pty Ltd v Taylor (1957) 97 CLR 177 .................................................................................. 22
OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 ........................................................................................... 23
Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 .............................................. 23
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 ................................................................... 23
Western Australia v Commonwealth (Native Title Case) (1995) 183 CLR 373 ..................................................... 24
Botany Municipal Council v Federal Airport Corporation (1992) 175 CLR 453 ..................................................... 24
Engineers' Case (1920) 28 CLR 129 ..................................................................................................................... 25
Melbourne Corporation (State Banking Case) ...................................................................................................... 25
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 ....................................................... 25
Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 ..................................................................... 26
Victoria v. Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 ................................................. 27
Austin v Commonwealth (Judges Superannuation Case) (2003) 215 CLR 185 .................................................. 28
CLASS 12 - FEDERAL EXECUTIVE POWER: NATURE AND LIMITS ........................................................................... 31
1 THE NATURE OF COMMONWEALTH EXECUTIVE POWER: INTRODUCTION ................................................ 31
2 EXECUTIVE POWER: APPROPRIATION AND EXPENDITURE ......................................................................... 32
Pharmaceutical Benefits Case .............................................................................................................................. 32
Pape v Commissioner of Taxation ........................................................................................................................ 32
Davis ..................................................................................................................................................................... 35
THE FEDERAL DIVISION OF JUDICIAL POWER AND THE SEPARATION OF POWERS ........................................... 36
INTRODUCTION TO CHAPTER III AND BOILERMAKERS DOCTRINE ........................................................................ 36
Boilermakers: R v Kirby; Ex Parte Boilermakers Society of Australia (1956) 94 CLR 254 .................................... 37
BOILERMAKERS LIMB 1 ............................................................................................................................................. 38
Precision Data Holdings v Wills (1991) 173 CLR 167 ........................................................................................... 38
Brandy v HREOC (1995) 183 CLR 245 ................................................................................................................. 39
Attorney-General v Alinta [2008] HCA 2 ................................................................................................................ 40
PART I: EXECUTIVE DETENTION AND JUDICIAL POWER .................................................................................. 42
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ............................................................................... 42
Al Kateb v Godwin (2004) 219 CLR 563 ............................................................................................................... 43
PART II: THE LEGISLATIVE USURPATION OF JUDICIAL POWER ..................................................................... 44
Liyanage v R [1967] 1 AC 259 .............................................................................................................................. 45
Nicholas v The Queen (1998) 193 CLR 173 ......................................................................................................... 45
BOILERMAKERS LIMB 2 ............................................................................................................................................. 46
Re Wakim; Ex Parte McNally (1999) 198 CLR 511 ............................................................................................... 47
Thomas v Mowbray [2007] HCA 33 ...................................................................................................................... 48

PERSONA DESIGNATA EXCEPTION ..................................................................................................................... 50
Hilton v Wells (1985) 157 CLR 57 ......................................................................................................................... 50
Grollo v Palmer (1995) 184 CLR 348 .................................................................................................................... 51
Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 .................................................................................... 52
Anesti 3
Kable v DPP (NSW) (1996) 189 CLR 1 ................................................................................................................ 54
South Australia v Totani [2010] HCA 39 ................................................................................................................ 55
Wainohu v New South Wales [2011] HCA 24 ....................................................................................................... 57
FEDERALISM AND ECONOMIC UNION .......................................................................................................................... 60
THE GRANTS POWER (S 96) AND FEDERAL/STATE FINANCIAL RELATIONS ..................................................... 60
South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case) ................................................ 60
Victoria v Commonwealth (1957) 99 CLR 575 (Second Uniform Tax Case) ....................................................... 61
Attorney General (Vic (Ex Rel Black) v Commonwealth (1981) 146 CLR 559 (DOGS Case) .............................. 62
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 .............................. 63
WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales [1940] AC 838 ............................ 63
ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 (9 December 2009) .................................................... 64
IMPOSITION OF EXCISE DUTIES (S 90) ................................................................................................................... 66
Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (for noting only) ........................................................... 66
Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 ......................................................................................... 67
Ha v New South Wales (1997) 189 CLR 465 ....................................................................................................... 69
CLASS 21 FREEDOM OF INTERSTATE TRADE: S92 .............................................................................................. 72
Cole v Whitfield (1988) 165 CLR 360 ................................................................................................................... 72
Castlemaine Tooheys Ltd v South Australia (1990) .............................................................................................. 74
Betfair Pty Limited v Western Australia [2008] HCA 11 ........................................................................................ 75
REPRESENTATION AND RIGHTS ................................................................................................................................... 76
CLASS 22 VOTING RIGHTS ....................................................................................................................................... 77
McGinty v Western Australia (1996) 186 CLR 140 ............................................................................................... 77
Roach v Electoral Commissioner [2007] HCA 43 (26 September 2007) ............................................................... 79
Rowe v Electoral Commissioner [2010] HCA 46 ................................................................................................... 81

Anesti 4

What does the Constitution do?
! Establishes key government institutions
! Grants powers and functions to those institutions
! Imposes limits on those institutions

What does the Constitution include?
! Chapter I Parliament: describes the upper and lower houses of Commonwealth parliament, but is silent
on many of their conventions
! Chapter II Executive: the Executive includes the Queen, GG, Federal Executive Council, Public
Servants, Ministers (PM, cabinet), statutory authorities, ASIO/ASIS; etc.
! Chapter III Judiciary: establishing the High Court and outlining its original (s 75) and appellate
jurisdiction (s 73).
! Chapter IV Finance and Trade
! Chapter V States

What fundamental concepts and ideas underlie the Constitution?
! Separation of powers (reflected in the structure of the Constitutions first three chapters)
! Rule of law
! Federalism

What is federalism?
! Federalism is a two-tiered system of government in which power is divided between central and
state/regional governments.
! Australias system can be described as centralised federalism, as the States (then colonies) become
State governments (retaining their own identity) while establishing an additional federal government.
This is different from decentralised federalism where a unitary state breaks down into multiple
independent governments whilst retaining some federal level of organisation.
! In centralising federalism, there is often a concern over retaining power. As a result, much of the
Commonwealth Constitution is focused on making arrangements for power sharing between the
Commonwealth and state governments.
! In Australia, the power of the states is plenary: ss 106 and 107 of the Constitution provide that
States have all the powers they had before federation, unless the Constitution takes that power
away or gives it exclusively to the Commonwealth.
! Australias Commonwealth government does not have plenary power: its power is limited to those
given in the Constitution. Those powers can be concurrent or exclusive powers.
! A power will be an exclusive power of the Commonwealth (and thus outside the power of the States)
- Taken away from States (s 114)
- Explicitly exclusive to Cth
- Implicitly exclusive to Cth (e.g. s 122, s 51(iv))

Anesti 5

The Heads of Federal Legislative Power
! The Commonwealths legislative power is not plenary. In order to make a law, the power to make the
law must be identified in the Commonwealth Constitution.
! Section 51 lists 40 matters with respect to the Cth parliament can exercise legislative power: also
known as placita (or individually, as a placitum).
! These powers, per the wording of s 51 itself, are subject to the rest of the Constitution. Therefore,
while the powers in s 51 might appear quite broad on their face, they are often interpreted more
narrowly so that they fit with the rest of the Constitution.

How to determine whether a law is with respect to a head of Commonwealth legislative power:
(1) Interpret the power: the head of power, independent of the particular law.
(2) Characterise the law: to determine whether it is with respect to the head of power as

Before the Engineers case, the Court used several guiding principles to aid them in this process:
Reserved State Powers Doctrine
! Principle of Constitutional interpretation: if a Cth legislative head of power could be interpreted broadly or
narrowly, the narrow meaning was to be adopted to prevent Cth legislation intruding on State legislative power
(areas traditionally reserved for the states).
! Rationale: in a federal system, it was necessary to protect the states and their interests

Doctrine of Immunity of Instrumentalities
! Mutual and reciprocal implied prohibition on the use of Cth and State powers (Cth and State executive and
instrumentalities were immune from each others laws).
! Underlying rationale: The implied immunity of instrumentalities doctrine asserted that, given two levels of
government in the same geographical territory, the governments must normally be immune from each others
laws. This was not because the Constitution said so but because this was implied in the very idea of federalism.
! When a state attempts to give its legislative or executive authority to an operation which would fetter, control, or
interfere with the free exercise of the legislative/executive power of the Cth, the attempt (unless expressly
authorized b the Constitution) is to that extent invalid and inoperative.
! E.g. Cth and its officers exempt from stamp duty legislation, and States and instrumentalities protected from Cth
industrial relations legislation.

However, Engineers overturned these doctrines: and emphasised that the approach is about
interpreting the power.

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers)
Authority for: Overturns reserved state powers and implied immunity of instrumentalities doctrines

! Engineers union lodged claims against employers throughout Australia, demanding an increase in
wages and improved conditions for engineers. These employers including WA government
! The society began proceedings in the Commonwealth Arbitration Court. The jurisdiction of this
court was provided by the Conciliation and Arbitration Act 1904 (Cth). This Commonwealth law
gave the Court jurisdiction to prevent and settle all industrial disputes extending beyond the limits
of any one state.
! The Constitutional provision purportedly authorising the Cth Act was s 51(xxxv).
! The WA government argued that the Cth did not 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, basing their arguments on the reserved state
powers doctrine and the doctrine of immunity of instrumentalities (not that the law was invalid; but
that it could not apply to the states).

Issue: Could an industrial award, made under the Commonwealth Conciliation and arbitration Act 1904
(Cth) enacted pursuant to the conciliation and arbitration power in s 51(xxxv) of the Constitution, validly
apply to and bind the State?

Held: states, and persons natural or artificial representing States, when parties to industrial disputes are
subject to Cth legislation under s 51(xxxv), if such legislation on its true construction applies to them. Here it
applied to them.
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! There is no basis for the doctrine of immunity of instrumentalities or the reserved state powers doctrine
in the Constitution. The Act was Constitutional in its application to the states.
! S 51(xxxv) is general enough to extend to all industrial disputes extending beyond the limits of any one
State. There was nothing in those words to exempt industrial disputes in which states are concerned.
! There is no other limitation of this power in the Constitution (including s 107, which merely preserves
state powers; it is a fundamental error to read s 107 as reserving any power from the Cth that falls
squarely within an express grant in s 51 of the Constitution).
! The doctrine of implied prohibition finds no place where the ordinary principles of construction are
applied so as to discover in the actual terms of the instrument their expressed or necessarily implied
! In cases of conflict between legislation, we give the Cth legislation supremacy (s 109).

Principles of interpretation
! Rejecting doctrine of political necessity: too vulnerable to the passions and biases of judges.
! Ordinary rule of statutory interpretation: golden rule (plain meaning but in the context of the text as a
whole) without speculating on the intentions or motives of the drafters (literalist); with knowledge of the
combined fabric of the common law and the statute law which preceded it (slightly different from pure
literalism; although still a literalist approach in focusing closely on the text).
! Courts approach to interpretation
o (1) Go to the power first, and interpret the words (in this case s 51(xxxv) literal interpretation -
words general enough to cover the state, nothing there to create an exemption for states)
o (2) Anything else in the text (Constitution subject to this Constitution)? No (including s 107).
o (3) Any other implied limitations?
! Rejects doctrines above.

Effects of the case: a big step towards the dominance of the Cth in the federal relationship: the laws made
by the Cth will now apply to states, so long as it can find a basis for that power in the Constitution (IE s 51).
Furthermore, consider the combination of this case with s 109; and the Cths economic powers in s 96). As
for interpretation of Constitution, moving away from originalism and intentionalism, towards a literalist
approach: Mason Court later finds that a literalist approach does not prevent the making of implications.
Current approach? Consider French J: no formula for truth, harmony, simplicity (a combination of
approaches suffices).

Anesti 7

! External affairs power, in light of Koowarta and Cth v Tasmania (Tasmanian Dam Case), enables the
Cth Parliament to legislate in respect of matters which are often regarded as falling within the domain of
state parliaments.
! What the power is used for:
(1) To implement treaties;
(2) Matters outside of treaties, including relations with other countries/people in other countries;
(3) All matters geographically external to Australia (e.g. XYZ);
(4) Matters of *international concern (controversial: curbed from Tasmanian Dams; XYZ &

Using s 51(xxix) to enter treaties:

The states, lacking full international personality, cannot enter into treaties.
! Executive decides to make/enter treaties, and the parliament can then integrate them into Australian
law; although, the power of parliament to carry treaties into effect is not necessarily as wide as the
executive power to make them.
! If the subject matter of the treaty corresponds with a subject of federal power, no problem arises; it is
only when there is no such clear correspondence that the scope of the external affairs power
becomes important.

Koowarta v Bjelke-Petersen (1982) CLR 168
Facts: In 1976, Koowarta (indigenous group) tries to buy a cattle station covering part of their homeland,
using funds from the Aboriginal Land Fund Commission. Qld government blocks the purchase: was policy of
government under Bjelke-Petersen (Qld Premier) that Aboriginal people should not be able to acquire large
areas of land (through Minister of Lands). Koowarta makes HREOC complaint arguing that blocking the sale
against Racial Discrimination Act (successful); Qld government appeals to Supreme Court, arguing that the
Racial Discrimination Act was not a valid law, for falling outside of any of the s 51 placita.

! Are ss 9 and 12 of the Act laws with respect to external affairs and so within the power conferred on the
parliament by s 51(xxix) of the Constitution?
! Whether under s 51(xxix) the Parliament can enact laws for the execution of any treaty to which it is a
party, whatever its subject matter, and in particular for the execution of a treaty dealing with matters that
are purely domestic and in themselves involve no relationship with other countries or their inhabitants.

Decision (4:3): Validity of provisions upheld (Mason, Murphy, Brennan)

Mason J
! S 51(xxix) includes power to make laws in regards to any treaty entered by Australia, made bona fide.
! Dicta: includes power to enter CIL into Australian domestic law, and matters of international concern.
! No requirement that the subject matter of treaty must be indisputably a matter of international affairs (c.f.
! Favours a liberal construction; and not too concerned with the federal balance.

Murphy J:
! For s 51(xxix) to be used to give effect to a treaty, it requires a necessary and sufficient condition in
regards to external affairs; but implementation of a treaty alone is sufficient to enliven the power
(regardless of whether the subject matter is also an internal affair).

Brennan J:
! If Australia! accepts a treaty obligation with respect to an aspect of Australias internal legal order, the
subject of the obligation thereby becomes (if it was not previously) an external affair, and a law with
respect to that subject is a law with respect to external affairs.
! *But only obligations; does not include CIL norms, benefits, general aspirations rather than binding obs.

Stephen J:
! *TEST: subject matter of treaty must be of international concern.
! Middle ground: this is not as broad as the other majority judges, but not as narrow as the indisputably
international test. The case therefore turned on Stephens judgment.
Anesti 8
! A.
- Looks to post-war history on racial discrimination, UN action (revealing the conduct of other
states); sufficient to show the matter is of international concern.
- And suggests that if Australia failed to take steps to tackle racial discrimination, it would affect
Australias relations with other states.
! There exists a treaty obligation, on a subject of major importance in international relationships, which
calls for domestic complementation within Australia. This is itself, without more, suffices to bring the
Racial Discrimination Act within the terms of s 51(xxix).

Gibbs CJ, Aickin and Wilson (dissent):
! The external affairs power must not be read too widely, but subject to federal balance in the CC
! Therefore, any treaty passed subject to the s 51(xxix) power has to meet an additional test and be
indisputable international in character; in this case, the subject matter of racial discrimination has to
be indisputably international in character. It is not.

Gibbs CJ (dissent):
! External affairs means matters concerning other countries.
! Concerned with scope of power: reading the power widely would allow the executive to itself
determine the scope of legislative power and arrogate to the Parliament power to make laws on any
subject whatsoever; if s 51 (xxix) empowers the parliament to legislate to give effect to every
international agreement which the executive may choose to make. The distribution of powers made by
the Constitution could in time be completely obliterated; federalism would be destroyed.
! While unlikely that an international agreement would be entered into as a mere device; this doesnt
remove the concern.
! Therefore, Gibbs prefers a narrower reading of s 51(xxix); only confers power to legislate on matters
which are themselves an external affair (relationship with other countries, or things or persons outside
- A. It is not enough that other countries may be interested in Australias stance on racial
- C. ss 9 and 12 were not within the legislative power conferred by s 51(xxix) under this narrow
reading. If Cth wants to fulfil international obligations, will require cooperation between Cth and
the States; and if she wants to combat racial discrimination, she can still do so within the power
conferred by s 51(xxvi).

Tasmanian Dams Case (1983) 158 CLR 1
! How to interpret the external affairs power (building on Koowarta)
! Principles to be applied in characterisation when using the external affairs power for treaty implementation
! Australia enters World Heritage Convention
! Tasmanian premier submits to Cth some parks to be nominated as WHO listed sites.
! Tasmanian parliament later passed law authorizing construction of dam on Gordon River in South
Western Tasmania (near the parks)
! Election and new Hawke Cth government. Cth policy to prevent building dam: enacts World Heritage
Properties Conservation Act 1983 (Cth) essentially making the dam unlawful.
! Cth applies for an injunction under the Act to prevent the dam being built.

Relevant legislation:
World Heritage Properties Conservation Act 1983 (Cth)
! S 9: (a)-(g) prohibits certain acts on certain property; s 9(1)(h) is a catch all clause, drawing in any
other acts prescribed for that paragraph (in delegated legislation); s (9)(2) another catchall, saying
anything that damages or destroys a property is also unlawful, even if not caught under s 9(1). S (9)(3)
! S 6(3) GG is allowed to choose which properties to which s 9 applies; with two statutory preconditions:
(1) the property is or is likely to be destroyed and (2) must be a property within (6)(1) (territories) or (2) in
a state, provided that certain criteria are satisfied and importantly (6)(2)(a) any property that the Cth
has recommended to be listed as a WH site and (b) a property to which Australia has international
obligations (c) giving effect to a treaty (d) property to which is an international concern
(*essentially trying to satisfy every interpretation in Koowarta).
World Heritage Convention
! Ratified by Australia in 1974. Article 5(a) through (e) introduce broad concepts but no clear obligations.
! Article 6, however, introduces international obligations to cooperate with the international community to
protect WH sites.
Anesti 9
! Article 34 contained a federal clause: (a) the obligations of the federal or central government shall be
the same as for those States Parties which are not federal States (Cth bound by promise?); (b) where
the implementation power is afforded to states under their Constitutional system, the Cth is bound to
provide a recommendation to the states for their adoption.

! Tas: the legislation is not Constitutionally valid, because it is not in respect to s 51(xxix) external affairs.
! Cth: Act was valid per s 51(xxix) because it gave effect to an international obligation under the WHC

Decision: (4:3) WHA authorised under the external affairs power; the provision banning the construction of
the dams was valid (although other parts of the Act were invalid).
Some of the provisions are valid: Mason, Murphy, Brennan and Deane JJ
Some of the provisions are invalid: Gibbs CJ, Wilson and Dawson JJ (And Brennan and Deane JJ).

(1) Interpretation of the power
(2) Characterisation of the law with respect to the power
! Entering treaty is enough: the existence of international character or international concern is
established by entry by Australia into the convention or treaty, sufficient to enliven s 51(xxix).
! S 51 (xxix) was framed as an enduring power in broad and general terms enabling the parliament to
legislate with respect to all aspects of Australias participation in international affairs and of its
relationship with other countries in a changing world (including a proliferation of external affairs)
! There is no reason to limit the s 51(xxix) to the implementation of an obligation.

! The power to implement treaty obligations under s 51(xxix) should be read subject to the federal nature
of the constitution, and construed narrowly to avoid upsetting the federal balance at the will of the Cth
! TEST: whether a matter is of international concern depends on the extent to which it is regarded by the
nations of the world as a proper subject for international action, and the extent to which it will affects
Australias relations with other countries (P340); admittedly to be applied with some difficulty (Stephen J
approach in Koowarta)
! Application. The convention does not place any obligation on the Cth to enact legislation for the
protection of any part of the national heritage within Australia, and of course the recommendation does
not purport to do so; and relations with other countries are not likely to be affected by whatever action
Australia takes to protect parks. Therefore s 51(xxix) power has not been attracted.
! ***Slight shift from Koowarta: note how has moved closer to the Stephens J test in Koowarta; Gibbs
previously said indisputably international in character: so out of Koowarta, Gibbs CJ is willing to take the
Stephens J test.

! Anything goes: willing for the power to extend to the implementation of a recommendation of
international organisations into Australian domestic law.
! The s 51(xxix) placitum flexible; capable of expansion; permits the parliament to legislate on a range of
matters; Australias external affairs, as a matter of practicality, are not limited to relations with other
states, but include internal matters.
! *NICE BIG LIBERAL TEST (OBITER): To be a law with respect to external affairs it is sufficient that it
(a) implements any international law, or (b) implements any treaty or convention whether general
(multilateral) or particular or (c) implements any recommendation or request of the UN organization or
subsidiaries or (d) fosters (or inhibits) relations between Australia or political entities, bodies ore persons
within Australia and other nation states, entities, groups or person external to Australia or (e) deals with
circumstances or things outside Australia or (f) deals with circumstances or things inside of Australia of
international concern.

Brennan J: external affairs power available for the implementation of treaty obligations. If they are
implementing something other than an obligation, the international concern test must be met.

Deane J: all about the obligations (doesnt talk about international concern).

Anesti 10
! Clear majority that 6(1), (2)(b) and (3) valid (Majority)
! Minority in dissent about s 6.
! S 9; only s 9(1)(h) valid (Mason, Murphy, Deane and Brennan); 9(2) also ends up invalid (Only
supporters are Mason, Murphy, Deane JJ the other 4 judges find invalid).
But s 9(1)(h) is enough; GG just needs to prescribe acts as
! Interpretation stage: Implementation of treaty obligations (LCD).
! Characterisation stage: they need to give effect to the treaty (Mason, Murphy, Deane J) but per Deane
will need to be proportionate.

Characterisation and the external affairs power: test for determining whether a law with respect to s
51(xxix) external affairs
! *Special test: only for dealing with treaty implementation aspect of s 51(xxix)
! Mason J: the law must conform to the treaty and carry its provisions into effect. Parliament cannot
legislate beyond the treaty or inconsistently with it (EG if Austrlaia signs the Save the Whales
Convention it cannot legislate freely on whales, nor legislate to kill whales).
! Deane J: the law must be capable of being reasonably considered to be appropriate and adapted to
achieving what is said to impress it with the character of a law with respect to external affairs (that
is, to implementing the treaty in question). ****Note how uses the same reasonable and adapted
term as Mason J, but perhaps a little more liberal capable of being considered!
o ***Application: we look at the purpose of the law in question (e.g. to implement certain
clauses of a convention); and then ask a question of proportionality (e.g. sheep treaty to
prevent sheep disease; sheep laws to kill all sheep; disproportionate?)
o Note that Mason J does not talk about proportionality (and that proportionality is difficult
when used as part of any test by the HCA).

How to tackle the process:
(1) Do the facts of this case give rise to a power under s 51(xxix)?
a. Application of principles of interpretation
b. Minority: (a) implementing a treaty? (b) subject matter of treaty matter of international
concern? (*Note Gibbs J narrow application; flow on effects?) Minority found in TasDams
that the facts required to enliven the s 51(xxix) power were not there (unlike in Koowarta),
and so the provisions were constitutionally invalid.
c. Majority: (a) implementing a treaty? If yes, its enough to enliven the s 51(xxix) power
because of the treaty implementations (Gibbs and others; treaty obligations plus
international concern).
(2) Are the provisions of the Act a valid implementation of the treaty obligation?
a. Minority: mute (you didnt enliven the power).
b. Majority
i. Mason J: Do the provisions (ss 6 and 9) give effect to the treaty? " S 6(2)(b) does,
and thats enough.
ii. Murphy J: everything is valid s 6 and 9 (it is all connected to the treaty)
iii. Deane J: applying his test; s 9(1)(a)-(g) provisions invalid for being disproportionate
(blanket ban) not appropriate and adapted means of carrying out the treaty,
because the acts are prohibited regardless of whether they are doing damage to the
property; but s 9(1)(h) and s 9(2) are valid, because they both require either the GG
or the Minister to give consideration to whether the act in question will damage or
destroy the property (showing that the provisions will meet the purposes of the
treaty); similar reasoning for 6(1) and 6(2)(b).
1. Note reference to s 15A of Cth AIA; invalid provisions can be severed, so
that the valid provisions survive.

Victoria v. Commonwealth Industrial Relations Act Case (1996) 187 CLR 416
Facts: Vic, SA, WA bring proceedings against Cth seeking declarations that provisions of industrial relations
legislation (implementing certain ILO IR treaty provisions into Australian law) were invalid for failing to be
laws in respect to s 51(xxix); providing for the imposition of, or imposed, obligations on employers with
respect to matters such as minimum wages, equal pay, termination of employment, discrimination in
employment and family leave.

Relevant legislation: Industrial Relations Act 1998 (Cth), as amended by Industrial Relations Reform Act
1993 (Cth), and the Industrial Relations Amendment Act 1994 (Cth).

Anesti 11
! Unanimously rejected the matter of international concern test; picked up the Mason and Murphy JJ line
in Tasmanian Dams (implementation of treaties and not merely treaty obligations, suffices to enliven the
s 51(xxix) power).
! All six judges endorse the Deane J approach (whether the laws are capable of being considered
reasonable and adapted to implementing the treaty), but Dawson J expresses doubt over the purposive
test and the proportionality requirement.

Majority (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ)
! Treaty must define with sufficient specificity a regime, in order for a law to rely on s 51(xxix) for
support; and laws must follow this regime.
- Terms of aspiration in treaties cannot enliven the legislative power conferred in s 51(xxix).
- NB. This has never been used to actually invalidate a Cth law.
- NB. The requirements of specificity are fairly loose; the terms of treaty are often lofty, so the
standards are different from those when determining domestic legislation.
- Bona fide?
- Obligations not necessary.
! To be a law in respect to s 51(xxix), the means of giving effect to a treaty must be capable of being
reasonably considered appropriate and adapted to that end (so that it operates in fulfilment of the
treaty and thus upon a subject which is an aspect of external affairs) (Deane J test *minus the emphasis
on proportionality, though they dont knock it out completely)
- *An obligation imposed by a treaty does not necessarily provide the outer limits of a law enacted
to implement it
- Partial legislative implementation of a treaty: a law can still be with respect to s 51(xxix),
where the remaining treaty obligations are left to states or other Cth legislative or executive
- While deficiency of implementation is not necessarily fatal to the validity of a law, a law will be
held invalid if the deficiency is so substantial as to deny the law the character of a measure
implementing the convention (you dont have to implement the entire treaty but you cant be
too picky either).

Dawson J:
! Rejects Deane Js purposive test for legal validity of laws made under s 51(xxix) in Tasmanian Dams
unlike the majority, outright rejects proportionality.
! S 51(xxix) is not purposive (e.g. implement treaties, achieve international goodwill etc), but a power to
make laws with respect to particular matters whose subject matter answers to the description of external
! The question is not what the law is for, but what it operates upon.
! Therefore agrees with the majority; but only where they do NOT rely on the Tasmanian Dams case.

! Div 1: could reasonably be considered appropriate and adapted to the implementation of the convention.
! Div 3: The Court held the validity of the provisions with respect to the external affairs power, except
those provisions including harsh just or unreasonable test as an additional ground of unlawful
termination, which were found to have gone beyond the terms of the convention, but could be severed.
! Div 5: supported by s 51(xxix).
! NOTE decision on IRC recommendations: the power of the IRC to make an order was conditional upon
the order being reasonably regarded as appropriate and adapted to giving effect to the Conventions to
which they related.

Issue (1): When will a treaty give rise to a power of implementation under s 51(xxix)?
! Bona fide treaties.
! Dont necessarily need to create obligations.
! Cant be too aspirational or vague per Industrial Relations
! Has to have some specificity in terms of the regime it prescribes.

Issue (2): When will a law be a valid implementation of a treaty?
! Deane J in VicDams as adapted in the IR Case; so that emphasis is on capable of being considered of
adapted and acceptable! minus the second emphasis on proportionality in application (it may not
always be helpful per the joint-majority, and Deane Js express rejection of the proportionality

Anesti 12
NOTE: international concern requirement can be raised as a ground to enliven the power, but very
questionable (e.g. Callinan and Heydon in XYZ not supportive of international concern as a


! S 51(xxix) not confined to treaties; includes relations of the Cth with other countries outside Australia.
! The power extends to places, persons, matters or things physically external to Australia (Polyukovich).
! The external affairs power empowers the Cth to make laws with respect to matters affecting Australias
relations with other governments or persons in other countries: R V Sharkey.
! No sufficient nexus test for exercise of s 51(xxix) external affairs power.
- Previous requirement of a nexus (tied to the peace order and good government intro), albeit
not necessarily substantial, between Australia and the external affairs which a law purports to
affect before the law is supported by s 51(xxix) (Brennan CJ in War Crimes Act Case).
- Toohey J in War Crimes describes this as a matter which Parliament recognises as touching or
concerning Australia in some way.
- However, since War Crimes, Brennan CJ and Toohey J changed their views to reflect that of the
majority; no sufficient nexus test for exercise of s 51(xxix) external affairs power (Industrial
Relations Act case).
- Victoria v Cth; geographic externality is enough the mere fact of the matter being
geographically external to Australia is sufficient to enliven the s 51(xxix) external affairs power.
! The external affairs power is not limited to exercise consistent with international law (Horta).
! XYZ: reaffirm the Tasmanian Dams line there is no need for the sufficient nexus test (four member of
the courts strongly affirm this; with Kirby expressing a little doubt).

Horta v Cth (1994) 181 CLR 183
! Issues relating to Australia's recognition of the sovereignty of a foreign nation over foreign territory were
generally not justiciable in Australian courts, except in cases where such recognition is granted merely as a
device for gaining greater legislative power.
! Australias laws are still valid even if inconsistent with international obligations/international law.
Parties: Horta (and others), the Commonwealth (invoking s 75(iii) HCA jurisdiction)
Facts: in 1989, Australia and Indonesia entered a treaty for exploration of petroleum resources in Timor
Gap, brought into Australian law by the Petroleum (Australia-Indonesia Zone of Cooperation Act 1990 (Cth)
(and Consequential act). Horta, an East Timor resident (along with two others), broadly claimed that
because the treaty was contrary to international law, as it breached the right of East Timor to self-
determination and sovereignty over the area, then (a) the legislation was invalid in respect to the s 51 (xxix)
Constitutional External affairs legislative power under which the law was made (beyond the legislative
competence of parliament), and (b) that the Executive had no prerogative power to enter into the treaty
(under s 61 of the Constitution).
Legal issues: Whether the legislation made by the Cth is valid: whether Constitution s 51(xxix) external
affairs power confines parliament to make laws only when they are consistent with Australias international
obligations or with international law, and whether the executive has the power to enter treaties under s 61
that are invalid in international law (note: more comprehensive list of issues in the case itself, P442, see
Applicable law: Commonwealth Constitution, Australia-Indonesia 1989 Petroleum Treaty, Petroleum
(Australia-Indonesia Zone of Cooperation Act 1990 (Cth) (and Consequential act).

Reasoning (unanimous):
! The question of whether or not a matter or thing is territorially outside of Australia is itself sufficient to
bring a matter under s 51(xxix) is unanswered.
! The enactment of the law was prima facie within the legislative power conferred by s 51(xxix) because:
- Geographic externality: The area of the Timor Gap and the exploration of petroleum resources in
that area fell under the phrase. Each of those matters is geographically external to Australia.
- Substantial nexus or touching: there is an obvious and sufficient nexus between those matters
and Australia. They are all matters which Parliament recognises as affecting or touching
! The law was prima facie a law with respect to external affairs, regardless of whether the provisions of the
Act enable the discharge of the obligations of Australia under the Treaty or give effect to provisions of
the Treaty. In fact, it would be so if there were no Treaty.
! There may be circumstances (though not in this case) where a law is prima facie within the legislative
power conferred by s 51(xxix), but nonetheless outside the legislative powers of the Parliament by
reason of some other provision of the Constitution, express or implied, to which the legislative power
Anesti 13
conferred by s 51(xxix) is subject.
! Even if the treaty were void or unlawful under international law, or if Australias entry or performance of
the Treaty involved a breach of international law obligations, the legislation would not be deprived of its
character as a law with respect to external affairs with respect to s 51(xxix). Neither s 51(xxix) nor
Constitution elsewhere confines that power to enactment of laws consistent with Treaties or IL.

XYZ v Cth (2006) 227 CLR 532
! Court upholds geographic externality principle (Majority), but Kirby J expresses some doubt about the
principle and expresses a desire for further elaboration. He nevertheless justified validity of the Crimes
Acts by holding they were made with respect to Australias external relations with other nation states
and with international organisations.
! Callinan and Heydon JJ held the geographic externality principle should be rejected, and the cases
relying on that principle be overruled.

Anesti 14

The corporations power s 51(xx) gives the Commonwealth Parliament the power to legislate with respect to
certain kinds of corporations: foreign corporations and trading and financial corporations formed within the
limits of the Cth.

(1) Does the law apply to this situation?

(a) Which corporations: what are trading and financial corporations formed within the limits of the Cth?
(i) Foreign corporations: anything incorporated in another country or in a state
(ii) Trading corporations
i. Original purpose test (St George County Council) rejected.
ii. Activities test supported by majority in Adamson (1979)
1. What is trading?
a. Exchange of money/goods/services.
b. Activities carried on with a view to earn revenue (Adamson)
2. How much trading?
The test is whether a substantial or sufficiently significant proportion of the activities of the
business constitute trade (Adamsons Case)
a. Mason in Adamson: its a matter of fact and degree
3. Activities test endorsed by Tasmanian Dams majority. Mason J explicitly rejects St George test.
4. Possibly outside the scope: if the trading activities are so slight and so incidental to some other
principle activity such as religion or education in the case of a church or school, it might not be a
constitutional corporation (Mason J, Adamsons case)
(iii) Financial corporations
a. Similar to trading corporations: does the corporation engage in financial activities which forma
sufficiently significant or substantial amount of its overall activities?
b. NB. This is not a hot issue. Corporations definition is old news.

(2) Scope of the power: is this a validly enacted law?

(b) What power does the Cth have with respect to those corporations?
! Broad (any activities) test was adopted by five judges in Workchoices:

(c) What power does the Cth have with respect to persons who are non-corporations?
! The broad test of Gaudron J in Pacific Coal adopted in WorkChoices
- The regulation of the conduct of those through whom it acts, employees and shareholders, and the
regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or
- Limited: must be connected in a way that is not insubstantial, tenuous or distant (quoting Dixon J,
Melbourne Corporation, endorsed by HCA in Workchoices)

THE CURRENT LAW: Work Choices Case
! Work Choices Act goes far beyond regulating trading activities of a constitutional corporation or activities done for
the purposes of trade (only the broad view would support this).
! TEST: Joint judges ultimately endorsed the object of command (broad) view, by endorsing Gaudron J
approach in Pacific Coal: extends to regulation of activities, functions, relationships, and business of a corporation,
rights and privileges, imposition of obligations, and to the regulation of the conduct of those through whom it acts,
employees and shareholders, and the regulation of those whose conduct is or is capable of affecting its activities,
functions, relationships or business.
! Callinan J dissented and Kirby J dissented with own list of horribles, expressing concerns over federalism; were also
swayed by the argument that the limitations expressly imposed on the Cth in s 51(xxxv), suggested that s 51(xx)
should not be construed so as to allow the Cth to circumvent those limitations.
Work Choices
Plaintiffs: Unions and States trying to prevent the Cth using s 51(xx) to grossly overstep its traditional role in
industrial relations.

Relevant legislation: Workplace Relations Amendment (WorkChoices) Act 2005, amending to the
Workplace Relations Act 1996. Purported to eliminate state and territory workplace relations legislation, to
create a uniform industrial relations framework. Heavily relied on the s 51(xx) corporations power and, to a
lesser extent, s 51(xxxv). Connected to corporations power through definition of Employer in the act,
which was defined in s 6(1) to include a constitutional corporation, which was further defined in s 4 to mean
a corporation to which s 51(xx) applies (foreign, trading and financial corporations formed within the limits of
the Cth).
! Part 7: minimum entitlements, applied to employers and employees as defined in the Act. Challenges to
Anesti 15
what is, and is not, included in Workplace Agreements; limited role for the commissions.
! Part 9: imposed obligations not just on constitutional corporations, but prohibited industrial action by
anyone likely to cause damage to a Constitutional corporation (like Fontana Films; the hook is the legal
or practical effect on Constitutional Corporations).
! Part 15(5): OHS entry requirements; for entering workplaces where contractors were providing services
to a Constitutional Corporation (so not just the CC offices, but workplaces of contractors providing
services to a Constitutional Corporation; like Dingjan, there is some hook to the Constitutional
Corporation, but was it enough?)
! Part 16: freedom of association with unions prohibitions; again contractors of constitutional corporations.

Issue: were the various provisions of the legislation supported by s 51(xx) (constitutionally valid)?
Decision: provisions valid

- Reject argument that s 51(xx) is limited to regulating the external relationships of corporations
- Failed referendums to broaden the scope of the s 51(xx) corporations power by the Australian
people could not be used to determine the meaning of s 51(xx); this was the role of the Court
under s 76(i)
- S 51(xxxv) conciliation and arbitration power does not limit the Cths capacity to legislate using
the s 51(xx) power to legislate in regards to industrial disputes (no negative implication)
- Reject distinctive character test (the fact that the corporation is a foreign, trading or financial
corporation should be significant in the way in which the law relates to it, from Dawson J in Tas
Dams). It is an approach which would read the power as confined to making laws with respect
to the trading activities of Australian trading corporations and the financial activities of Australian
financial corporations. But that, of course, is not what s 51(xx) says.
! To determine whether a law is respect to a head of power, the court looks for a sufficient connection
! The court adopts the test used by Gaudron J in Pacific Coal: Cths legislative power under S 51(xx)
- Extends to the regulation of the activities, functions, relationships and business of a corporation
described in that subsection!
- the creation of rights and privileges belonging to such a corporation
- the imposition of obligations upon it,
- and in respect of those matters, to the regulation of the conduct of those through whom it acts,
its employees and shareholders, also the regulation of those whose conduct is or is capable of
affecting its activities, functions, relationships or business.
# Loose standard: The connection described by the Court as not insubstantial,
tenuous or distant, in order to demonstrate that the connection was sufficient (but not
creating a separate test).
# Limits to s 51(xx): when it comes to third parties providing services to Constitutional
Corporations, the Cth can only legislate to affect your activity in the course of providing
those services to constitutional corporations.
- NB. This s 51(xx) test is not a substitute for a sufficient connection, but rather just a way of
getting there [178].
! Provisions imposing obligations or privileges on constitutional corporations
- Part 7 (minimum entitlements): Is imposing an obligation on constitutional corporations (on
employers to extend minimum entitlements to employees).
- Parts 8, 10, 12: also impose obligations (" GDOC)
- Part 9 (prohibits industrial action; gives power to IR commission to order non-employers to
cease action if causes damage to CC): must not lock out employees is an obligation; IR
commission powers capable of affecting its activities, functions, relationships or business.
! Other sections affected non-constitutional corporations
- Part 15: ss 365 and 366 placed prohibits third parties from misrepresenting a contract between
employers constitutional corporations and employees.
# Valid: third-parties conduct capable of affecting activities, functions, relationships and
business of Constitutional corporations.
- Part 15, Div 5: OHS entry provisions
# Issue: Applied to workplaces of contractors who provides services for a CC (to third
party workplace).
# The CC is not under an obligation, but has a benefit under this provision
# " Cth made concession: reading down the provision, so that it applied only to
contractors in the course of providing services to constitutional corporation [286].
Anesti 16
# *Tying it back to Gaudron: the regulation of whose conduct is or is capable of affecting
[constitutional corporations] activities, functions, relationships or business.
# Read down OHS provision; too tenuous

Anesti 17


[Dont sweat State constitutional stuff: only being read for the purpose of s109 CC]

Where do states get the power to make their Constitutions? [Unresolved]
! Imperial power continued by ss 106 & 107?
! S 106 as the source?

What are the legislative powers of the states?
! For the peace order and good government, for Victoria in all cases whatsoever; equivalent.
! Per Union Steamship Co v King (1988) HCA; plenary power is conferred; for the peace, order
and good government are not words of limitation.

Commonwealth Constitution, sections 52, 90, 106, 107, 108, 109, 114, 115, 117.
! S 52: Exclusive powers of the Parliament
- (i) seat of Cth government, and places acquired by Cth for public purpose
- (ii) public service matters, transferred to Executive Cth Gov by Constitution
- (iii) other matters declared by Const to be within Cth parliaments exclusive power
! S 90: Cths exclusive power over bounties
! S 106: Saving of the State constitutions (will continue as is, unless altered by their own Constitutional
! S 107: Saving the power of state parliaments (will continue as is, unless altered by Constitution).
! S 108: Saving of state laws (continue as is, unless modified).
! 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.
! S 114: States cant maintain military forces. Cth and state cant tax each others property.
! S 115: States cannot coin money.
! S 117: rights against state-based discrimination.

Constitution Act 1975 (Vic), sections 8, 9, 15, 16, 18.
! S 8: Governor can fix places and times for parliament to meet, and discontinue or dissolve the assembly
subject to 8A (a motion of no confidence, and no motion of confidence within 8 subsequent days).
! S 9: Demise of the crown is not to dissolve parliament
! S 15: Victorian parliament has state legislative power, includes Council, Assembly, her Majesty.
! S 16: legislative power of parliament ( in and for Vic in all cases whatsoever).
! ! S 18: some examples of manner and form requirements
- Parliament can alter the Constitution Act by passing a bill, save for some entrenched
provisions that require
- S 18(1B) - a referendum (EG composition of houses)
- S 18(2) special majority (EG recognition of indigenous people)
- S 18(2AA) absolute majority (EG aspects of Supreme Court)

Australia Act 1986 (Cth), sections 2, 5, 6.
S 2(1): states can legislate extraterritorially for the peace order and good government of that state, and
have all the powers that the UK might have had before the Act was passed, but not powers that would
expand the states capacity to engage with relations with countries outside Australia.
S 5: saves the status of the Constitution.
S 6: manner and form requirements; states cant legislate to change constitution, powers or procedure of
their parliaments unless its something required by a law made by that parliament from time to time
S 7: powers and functions of Her Majesty and Governors in respect of states: does not preclude queen from
exercising powers when in Australia, and advice to be given by Premiers.
S 10: termination of responsibility of UK government in relation to state matters
S 12: amendment to Statute to Westminster (striking out certain sections limiting state powers).

Anesti 18
Union Steamship Co of Australia Pty Ltd v King, Casebook 1043-1045.
! The power of states to make laws for the peace, welfare and good government of the state is a
plenary power (citing PC decisions): these words do not function as words of limitation.
! These words do not confer on the courts of a State, jurisdiction to strike down legislation on the ground
that, in the opinion of the court, the legislation does not promote or secure the peace, order and good
government of the colony.
! However, the court leaves open the possibility that the judiciary can restrict the exercise of legislative
power when conflicting with rights rooted in democratic system of government.
! However, see the textbook; it is unlikely that a fundamental rights principle will prevail as a limitation on
state legislative power.

The Legal Status of the States vis--vis the Commonwealth, Casebook 1049-1057.
! S 106 of the CC provides that The constitution of each state shall, subject to this constitution, continue
as to the establishment of the Cth, or as at the admission or establishment of the State, as the case may
be, until altered in accordance with the Constitution of the State.
! Do states derive their powers, and not just status, from the CC? (Re: ss 106 & 107; confer or
- Mixed views from HCA.
- Deane J: Cth is a creature of CC, unlike the states (Commission v Cth).
- Brennan CJ possible disagreeing in McGinty v WA.
- Toohey J disagreeing: source was Imperial legislation, but now s 106 of the CC (McGinty v WA).
- Kirby J firmly believes states derive existence and power from CC (ABC v Lenah Game Meats).
! Also the possibility that the sovereignty of the people is the source of state Constitutions (like CC).

What does subject to this constitution in s 106 mean?
! Does this mean that the Cth can affect or alter a state Constitution?
! In Port MacDonnel v SA, HC held that state Constitutions subject to Cth law made under s 61(xxxviii),
but not under other heads of legislative power in s 51.
! Also, State Constitutions are not subject to every implication to be drawn from the Cth Constitution.
! There is, however, ongoing disagreement about the extent to which a Cth law can affect the Constitution
of a state (see CB 1053), with Kirby suggesting in AG v Marquet that any law that does so would be a
formal alteration of ss 106 and 107 of the CC, repugnant to s 128.

What is the effect of s 107 of the Constitution?
! Every power of the parliament of a colony which has or becomes a State shall, unless by this Const
exclusively vested in the Parliament of the Cth (e.g. 52, 90) or withdrawn from the parliament of the state
(e.g 114), continue as at the establishment of the State, as the case may be.
- Some powers are not granted exclusively (a la s 52, 90, 111), but become exclusive in effect;
e.g. s 115 and s 51(xii).
! Preserves the plenary legislative powers of state parliaments, alongside those of Cth.
! Must be read alongside s 106, which in general is aimed at the Constitutions of states, which vest power
! HCA in WA v Cth: Cth cannot pass a law inconsistent with s 107, and therefore cannot withdraw from
any state parliament a legislative power that is conferred on or confirmed to that parliament by s 107, or
control content of state law (other than overriding it via s 109).
! Maybe a limitation: states cannot abdicate their own powers (Kable v DPP, Brennan CJ).
! Australia Acts 1986 (Cth, Imp) enhanced legal independence of states.

Other limits on state legislative powers
! State constitutions are state law, and can be changed without special procedures (McCawley).
! But limitations from s 6 of Australia Acts? ! Gives state parliament power to impose manner and form
requirements on itself, and an obligation to observe manner and form requirements in order for a law to
be valid.
! Manner and form requirements: a special process in order to change a state Constitution.

McCawley v R (1920)
! Inconsistencies between state law and state constitutions.
Facts: Qld Constitution provided SC judges of SC appointed for life subject to good behaviour. Industrial
Arbitration Act 1916 (Qld) established court of Industrial Arbitration, and s 6(6) empowered GinC to appoint
judge of SC (with same rights and powers of SC judge) for seven years, with eligibility for reappointment.
Prima facie inconsistency.
Issue: Was the Industrial Arbitration Act in conflict with the Constitution Act in as much as it purported to
Anesti 19
authorise the appointment of a judge for 7 years only?
! The state argued that The Constitution of Qld is a controlled constitution. It cannot, therefore, be altered
merely by enacting legislation inconsistent with its articles. It can only be altered by an Act which in plain
and unmistakeable language refers to it; asserts the intention of the Legislature to alter it, and
consequentially gives effect to that intention by its operative provisions.
! However, the Constitution is neither controlled nor uncontrolled: Britain gave the states the power to
figure out their own Constitutional issues.
! The legislature of Queensland is the master of its own household, except in so far as its powers have
in special cases been restricted. No such restriction has been established, and none in fact exists, in
such a case as it is raised in the issues now under appeal.
! The legislation was not ultra vires. The legislature fully entitled to vary the tenure of the judicial office.

Anesti 20

S 109 CC: When the law of a state is inconsistent with a law with a law of the Commonwealth, the latter
shall prevail, and the former, to the extent of the inconsistency, be invalid.

! (A) Preliminary issue: clearly identify laws, and what they provide. Are the state and Cth laws valid?
! (B) Effect of inconsistency: former, to the extent of the inconsistency, be invalid.
- Not absolutely invalid; but inoperative.
- Still on the books; can be reactivated if Cth law repealed
- May remain operative in areas where it is not inconsistent with federal law (Telstra v Worthing;
still applied to NSW employees, but not Federal employees).
! (C) Three tests for s 109 inconsistency:
- (1) Impossibility of obedience: sometimes direct inconsistency - impossible to obey both laws
- (2) Denial of rights: one law confers a legal right which the other diminishes, overrides or
- (3) Cover the field: Cth law demonstrates an intention to cover the field if it demonstrates an
intention to be the only law on a particular topic.

1. Impossibility of simultaneous obedience test:

R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23
Federal law: election must not be on same day as referendum.
State law: election must be on same day as referendum.
HELD: Cth and Qld laws held to be inconsistent: logically impossible to obey both laws.
EXAM! This test will only apply to two commands.
Inconsistency was a conflict, or inconsistency, between the state Act authorising and commanding the
referendum vote and the Cth Act forbidding the referendum vote on that day. Then s 109 of the Constitution
enacts that in such a case the State law, to the extent of the inconsistency, is invalid.

2. Denial of rights test (rights inconsistency):

Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Federal law: award working week 48 hours; employers given right (not command) dock pay of those
working under.
NSW state law: working week 44 hours; right to employee to receive full wage, and overtime for 44+ work.
HELD: Inconsistent.
The JJ used different inconsistency tests. Knox CJ and Duffy JJ held impossibility of obedience test may be
insufficient in some cases. They formulated a denial of rights test: a statute is inconsistent with another
when it takes away a right conferred by that other even though the right be one which might be waived or
abandoned without disobeying the statute that conferred it.
" State law interferes with right conferred under Cth law (note Cth law starting point).

Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151
Federal law: Cth award gave award employers right (may) to employ females in award industries.
State law: NSW Act makes it an offence (command) to employ women on milling machines.
HELD: Inconsistency
Latham CJ: There was a clear inconsistency, and therefore the Cth award prevails per s 109 (the right to
employ females in award industries was diminished by the state law making employment of women in one of
those industries an offence).
*Furthermore, the application of s 109 does not depend upon any assignment of legislation to specific
categories; regardless of which area of law the state and federal laws may each come from or their subject
matter, inconsistency (under the denial of rights test different for cover the field test) nevertheless
leads to the Cth law prevailing.

Telstra v Worthing (1999) 197 CLR 61
Facts: W commences claim under NSW workers compensation legislation, that he was injured when
working for Telstra. To defeat his claim, Telstra argued that the NSW Act conflicted with Cth law and, by
reason of s 109 of the Constitution, was invalid to the extent of the inconsistency.
Held: the NSW legislation was inconsistent with Cth legislation
Anesti 21
! Federal law set out entitlements calculated in a particular way, and imposed obligation on worker to go
through rehabilitation in order to receive compensation.
! State law has different requirements for calculating entitlements.
! They both, however, deal with the same field.
! To the apply the state Act would qualify, impair and in some respects negate the application of
the Federal law. Therefore, there was inconsistency between the two statutes, and they were
rendered invalid.

3. Covering the field test:

Three general questions:
(1) What field (subject area) does the Cth law regulates, controls or deal with?
(2) Does the Cth expressly or implicitly intend to cover that field completely and exhaustively?
(3) Does the state law attempt to enter into or regulate the field or part of the field covered by the Cth
NB. Does not matter if there are no conflicting rights or duties, or laws require the same thing.
Cowburn: 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 on the same field.

Ex Parte McLsean (1930) 43 CLR 472
State (NSW) law: NSW legislation created offences for employees failing work obligations.
Cth law (in conjunction with award): The Cth law (Conciliation and Arbitration Act) gives the power to
make awards. Act created an offence for breaching a Cth industrial award. The award stipulated that
employers and shearers must comply with the Awards. The award covered Australias shearing industry
(employees must shear sheep).
Held: laws inconsistent.
(1) Possible to obey both " no impossibility of obedience inconsistency.
(2) No rights inconsistency
(3) Covering the field inconsistency
! Focus is on Cth intention: When a federal matter discloses an intention to completely, exhaustively or
exclusively legislate over particular conduct or matter, it is inconsistent with it for the law of a state to
govern the same conduct or matter.
! (a) The field covered by the Cth law was the regulation of relationships between employer and
! (b) The state law entered this field.
! (c) Intention: The Act gave full and complete efficacy and exclusive authority [over the field of
relationship between employer and employee] to the award (implicitly indicate intention).
! In these conditions, in so far as it affects persons bound by the award. S 4 of the Act is inconsistent with
the provisions of the Federal statute and, by virtue of s 109 of the Constitution, the latter must prevail,
and the former to the extent of the inconsistency is invalid. Accordingly no offence was committed under
state law.
! Examples of where there would not be inconsistency: if the state law was prohibiting torture of
sheep, in the context of an employment relationship (some sort of incidental effect).

Identification of the field:

Anesti 22

Ansett Transport Industries (Operations) Pty Ltd v Wardley
Facts: W wants to become Ansetts first female pilot.
State law: Vic Equal Opportunity Act made sex discrimination in employment and dismissal illegal.
Cth law: However Airlines Pilots Agreement 1978 authorised employers to employ and dismiss pilots (same
legal effect as industrial Award; given force of law by virtue of the Conciliation and Arbitration Act 1904 Cth).
Issue: did the Cth Agreement, given power by the Cth Act, intend to cover the field of employment and
dismissal so that any state legislation in that area was invalid per s 109?
Held: no inconsistency
! Mason, Murphy and Wilson JJ: 1978 agreement did not intend to cover the field of dismissal or provide
an unqualified right to dismiss.
! Stephen J: held that there was no inconsistency because the Cth law (1978 Agreement) and State law
dealt with different fields or subject matters.
(Stephen J):
! Stephens J approach: look at laws separately, characterise what they are about, and then reach
your conclusion:
- The present industrial [Cth] agreement! is concerned with industrial matters and its terms should
be construed accordingly; they should not be regarded as trespassing upon alien areas remote from
its purpose and subject matter, whether those areas concern the nations foreign affairs or social
evils such as discrimination upon the ground of sex.
! The question is one of legislative intent. While the Agreement and the Act each deals with aspects of
the engagement and dismissal of employees, they are essentially dissimilar both in character and in
general content!.
- The [Vic legislation] confines itself to the matter of discrimination on the grounds of sex or marital
status, whatever other effect it may have within those areas is only incidental to its operation in
proscribing sexual discrimination and in promoting equality of opportunity: at [249].
- When they are essentially disparate in character, as are the Agreement and the Act, their interaction
at some point may well be shown, once they are construed and account is taken of the limited
context of the respective Acts, to involve no element of inconsistency.
! The Cth Act was silent on the matter of sexual discrimination because it was irrelevant to the Act.
! Therefore, there is no inconsistency arising under the doctrine of covering the field.
Reasoning (Mason J):
! Direct inconsistency?
! The issue therefore turns upon the interpretation of the agreement and! the question is whether the
provisions of the (Cth) Agreement were intended to operate, subject to, or in disregard of, the general
! Application: the agreement should not be viewed as a general industry award which seeks to
determine exhaustively the respective rights of employer and employee. Although the agreement does
deal with many of the matters usually found in an award, such as pay, hours of work and leave, its
emphasis on setting out in exact detail the manner and procedure governing the advancement of a pilot
in terms of seniority and rights dependent thereon.
- The agreement does not confer on Ansett a substantive right of dismissal; it merely assumes the
right of dismissal for which the general law provides.
- The right of dismissal under general law has been altered in Victoria by a state act: restricts
employers from dismissing an employee by reason of sex (s 18(2)(b)).
- The agreement is to be read in the light of this alteration in the general law.
- Furthermore, Cl 6B of the Agreement does not seek to cover the field of the employers
substantive right to dismiss
! Cover the field: The P must demonstrate that as a matter of legislative intention the power or
discretion is to be exercise to the exclusion of what state law says upon the topic.

Whose intention?:
! Identification is essentially a question of Cth legislative intention.
! However, in two circumstances, that may not be enough.
! (1) For instance, where Cth Act gives an arbitrator power to make awards exhaustive of matters in
dispute or concern industrial relations, it may be necessary to ascertain the arbitrators intention to
decide whether the Parliaments intention has been implemented (e.g. with workplace agreements).

TA Robinson & Sons Pty Ltd v Taylor (1957) 97 CLR 177
State law: NSW Act confers long service leave right.
Federal law: Cth award silent.
Anesti 23
! Held (majority): that Cth law did not intend to cover field there is nothing to show that the
Conciliation Commissioner who made the Cth award meant that his determination should cover the
grounds of long service leave to the exclusion of any right arising from any other source of authority (no
intention to cover the field).

Drawing an inference to determine whether the legislation intends to comprehensively cover the

OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565
Cth law: Commerce Meat Export Regulations made under Customs Act 1901: prohibited export of meat
unless the slaughter was carried out in premises registered under those Cth regulations.
State law: prohibited the use of premises for slaughtering stock for export without a license issued by state
Held: Inconsistency. The comprehensiveness of the Cth regulations demonstrated that the Cth law was
intended to cover the field or subject matter of premises used for slaughtering stock for export.
Reasoning (Fullagher J):
! There can be inconsistency under s 109, even if it is possible to obey both laws. The test for
inconsistency is that of Clyde v Cowburn.
! The comprehensiveness of the regulations demonstrated that the Cth law was intended to cover the
! Impossible to deny regulations evince intention to completely cover the field of the use of premises for
the slaughter of stock for export. The extremely elaborate and detailed character of the regulations
was sufficient to reach this conclusion.

Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399
SA Act: gave Industrial Court power to order that a dismissed employee should be reemployed (if dismissal
was harsh, unjust, unreasonable).
Cth Act: regulated ABCs employment of permanent and temporary employees.
Held: The SA Act was inconsistent with the Cth Act: drew inferences that the Cth intended to cover the
field to the exclusion of any state law on the topic.
! Cth Act was very detailed about permanent employees, but not temporary employees.
- Drew an inference that Cth parliament intended the broadcasting act to completely and
exhaustively cover the field in relation to permanent and temporary employees.
- The absence of detail about temporary employees, read in light of what was said about permanent
employees, showed an intention to give [absolute] discretion to the ABC (subject to some oversight
by board) to cover the field.
! Particular provisions of the Cth Act would be clearly inconsistent with the State Act, because where
the former allowed a boards review of dismissal to be final, the latter gave the industrial court the
jurisdiction to reinstate an officer.
! Other provisions - such as the terms of appointment expressed by s 43(6) would not stand easily
alongside a jurisdiction or authority in any other body to reinstate a temporary employee.
! And one Division leaves no room for the operation of a section of the SA Act, or any state law, in
relation to the dismissal of officers in the service of the Commission. These provisions indicate that
the Commissions power was intended to be exclusive and unqualified.

Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
State law: NSW Act prohibits handicap discrimination in services.
Cth law: Life Insurance Act gives life insurance company discretion over who it insures and premiums etc.
HELD: inconsistent.
! The Cth Act expressed legislative policy that registered insurance companies should in accordance
with their own judgement founded upon the advice of actuaries and prudent insurers determine who to
insure and how.
! It would alter, impair or detract from or undermine - the Cth scheme of regulation if a registered life
insurance company was precluded by state legislation from classifying different risks differently, and
taking into account physical impairment.
! Therefore, state legislation which either absolutely or subject to qualifications makes it generally unlawful
for life insurance companies to take into account such factors would be inconsistent with the general
scheme of the provisions of the [Cth] Act.

Express statement of Cth legislative intention: not an unlawful limitation of state power contrary to s
107 of the Constitution
Anesti 24

Western Australia v Commonwealth (Native Title Case) (1995) 183 CLR 373
Commonwealth stipulates no States can legislate on extinguishment of Native Title
! Issue: Whether the statement Native Title is not to be extinguished contrary to this Act meant that any
state law that purported to extinguish Native Title in any way would be invalid by reason of s 109.
! Held: inconsistency.
Important dicta
! However, by reason of inconsistency with a law of the Cth s 109 state law is not rendered absolutely
invalid, but remains valid but inoperative to the extent of the inconsistency so long as the inconsistency
remains (state laws are not rendered invalid by the Cth law, but by the force of s 109).
! If the Cth intends to make a law the exclusive and exhaustive law upon a subject within its legislative
power, the intention may appear from the text or from the operation of the law. The text may reveal the
intention either by implication or by express declaration.
! Simply because the Cth expresses an intention to cover the field is not an attempt to cut down the
legislative powers of the states.

Botany Municipal Council v Federal Airport Corporation (1992) 175 CLR 453
Covering the field by express statement; stating that person(s) is/are immune from state law
Facts: Cth regulation authorising dredging in spite of state law. Commonwealth attempts to manufacture
inconsistency by expressly stating in the legislation that it is intended to cover the field
! HELD: Valid
! There can be no objection to a Cth law falling within a head of Cth legislative power providing that a
person is authorized to undertake an activity despite a state law prohibiting, restricting, qualifying or
regulating that activity.
! Indeed, unless the law expresses itself directly in that way, there is the possibility that it may not be
understood as manifesting an intention to occupy the relevant field at the exclusion of the states.

Anesti 25


BQ. If a Commonwealth law is made to apply to a state government (Crown immunity question), does
the law have the power to make a law binding the state government?

TEST: two-limb from Melbourne Corporation, expanded in following cases, and then reduced to a singular
test in Austin

Engineers' Case (1920) 28 CLR 129
! Rejected doctrine of reserved state powers; and rejected doctrine of intergovernmental immunities in its
absolute. They said implications were not to be made on the basis of a vague conception of the spirit of the
compact; they need to flow necessarily from the text. However, it did not rule the implications out altogether.

Melbourne Corporation (State Banking Case)
! Source of the intergovernmental immunity doctrine; two limb approach
Facts: Cth Act says banks cannot engage with state governments or state authorities without the permission
of the Federal treasurer.
! Principle that arises: there are two classes of case where the Cth would prevent a State from continuing
to exist and function as such as is necessarily invalid, because of the text of the Constitution provides for
the States to continuing to exist and functioning as a state.
! TWO CLASSES (elaborations of overarching principle above):
(1) Where the Cth singles out the States or agencies and imposes on them restrictions which prevent or
impede them from carrying out essential government functions (DISCRIMINATION)
(2) Even where not singling out, subject to legislation which impedes or prevents them from carrying out

Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
" Two limb test for intergovernmental immunities is adopted and applied; elaborates on the discrimination
point. Gives us discrimination principle, and also provides an exception (where discrimination logical and
rational purpose).
Facts: Commonwealth implemented an Act tailored towards an industrial dispute with the QEC (with ETU
union), overriding Qld legislation that the ETU didnt like. The QEC run 97% of the electricity for Queensland,
so they are overwhelmingly an agency of the government of Queensland. The law applied specifically (IE it
named it) to an industrial dispute with the QEC, and it also applied to other disputes that may arise in the
future between the QEC and unions so all disputes of the same kind in the future. The law created special
procedures and rules that departed from the normal processes for resolving disputes; for instance,
preventing the AIRC from dismissing the dispute. QEC and the state government claim that, while the Cth
has a head of power, that power was limited by implied prohibition not to discriminate against the state.

Issue: Did the Cth legislation breach an implied prohibition on Cth parliaments legislative powers against
discriminating against States or their agencies?

Held: (majority) the Cth Act was invalid.

Mason J:
! Outlines principle in Melbourne Corporation: implied prohibition consists of two elements
- (1) Prohibition against discrimination involving special burdens or disabilities on states and
- (2) Prohibition against laws of general application that destroy or curtail continued existence
of States or their capacity to function (P792).
! Firstly, prohibits discrimination against all states, or particular states.
! Secondly, protects legislatures as well as executive governments.
- Applies to agencies of a state as well as the state itself: the prohibition protects the exercise
of functions of the State; it does not matter whether the function is carried out by a government
department or an authority brought into existence to carry out the function (P972).
! Discrimination is when a state is ISOLATED FROM THE GENERAL LAW
- But not all isolating laws are necessarily discriminatory: A law which deprives a state of a
right, privilege or benefit not enjoyed by the others, so as to place the State on an equal footing
with others, is not a law which isolates the State from the general law. Parliament can abrogate
a prerogative of a State without offending the prohibition against discrimination (P972).
Anesti 26
! Refers to both de jure and de facto discrimination: the court must look at the actual operation of the
law in the circumstances. If, as a matter of substance, the actual operation of the law is to discriminate
against the State or a particular state in the relevant sense, it will be within the scope of the reservation
regardless of how disguised by the substances may be by ingenious expression or outward form.
! Application:
- The singling out of the state agency here makes it discriminatory:
# The Cth Act discriminated against the State of Qld by singling out disputes (isolating
from the general law) to which employers in that State are parties, those employers
being for the most part authorities brought into existence by the State to carry out public
functions, and then subjecting those disputes to a regime of differential treatment
(special disability or burden).
# NB. Test used is whether isolated from general law
# When the Parliament singles out disputes in the electricity industry to which agencies
of the State of Queensland are parties and subjects them to special procedures which
differ from those applying under the principle Act to the prevention and settlement of
industrial disputes generally, and of industrial disputes in the electricity industry in
particular, it discriminates against the agencies of the State by subjecting them to a
special disability in isolating them from the general law contained in the principal
Act (P973). The regime was tailored for Queensland authorities, as distinct from the
authorities of other states and, what is more important, from the general run of
employers in the industry (P973).
- De facto or indirect discrimination: slightly different reasoning for s 6(2)
# A law of general application may still be discriminatory in operation.
# Section 6(2) appeared to be a law of general application, but was in fact not, because it
would overwhelmingly affect the Queensland agency.
# Therefore, s 6(2) was discriminatory.
! *The court does not explicitly rule out the possibility that some laws may be exempt from the prohibition
those that SERVE SOME LOGICAL AND RATIONAL GOAL: e.g. laws with respect to defence under
s 51(vi). Conciliation and arbitration was not such a power.
! NB. A law may discriminate against a state even if it subjects others (eg private employers) to a special

Australian Education Union; Ex parte Victoria (1995) 184 CLR 188
! Picks up on the (2) structural integrity/impairment limb of the Melbourne Corporations principle
Facts: Vic parliament enacts Employee Relations Act 1992 (Vic) and Public Sector Management Act 1992
(Vic) to create individual employer-employee agreements and cut size of public sector. Offers teachers
severance packages. Historically, state government employees regulated by state (not federal) industrial
awards. Employees unions now sought for protection of federal awards, by requesting AIRC under Industrial
Relations Act 1988 (Cth) to make finding that industrial dispute per s 51(xxxv) existed and create federal
award covering Vic government employees. Vic argues that Commonwealth AIRC does not have power to
make laws on state employees; that is, that the Cth does not have the power to set up the AIRC with the
power to deal with state employees.

Issue: to what extent can federal awards made under Cth legislation based on s 51(xxxv) constitutionally
bind State governments and their employees, given the implied intergovernmental immunity?

Held: the Cths power to regulate State governments and their employees is limited
(1) There was an interstate dispute; (2) that the AIRC not constitutionally precluded from making federal
awards binding on States and employees in relation to minimum wages and conditions; (3) awards
unconstitutional in relation to employment qualifications and appointment and to employment terms and
conditions of State Ministers, ministerial assistants and advisers, departmental chief executive officers,
senior office holders, State parliamentary officers and State judges.

Reasoning (Mason CJ, Brennan, Deane, Toohey, Gaudron, McHugh JJ):
! Held: Cth has constitutional power to pass laws to give AIRC statutory power to deal with state
employees. However, this power is subject to the doctrine of implied immunity.
! The doctrine of implied immunity
- Implied limitations must be read subject to the express provisions of the Constitution: if a head
of Cth power authorises legislation that interferes with States powers, there can be no room for
the application of the implied limitations (Re Lee)
- The construction of any other legislative power in s 51 calls for a consideration of the text of the
power, its subject matter and the general constitutional context in combination (SPSF, Brennan)
Anesti 27
! The limitation consists of two elements: (1) the prohibition against discrimination which involves the
placing on the States of special burdens or disabilities (the limitation against discrimination) and (2) the
prohibition against laws of general application which operate to destroy or curtail the continued existence
of the States or their capacity to function as governments.
! (2) What is an impairment or curtailment of the capacity of a State to function as a government?
- Does not mean preclude any impairment of States capacity to exercise government functions.
- "TEST: would the federal law destroy or curtail the existence of the state or its capacity
function as a government?
# Cth is therefore limited in passing laws interfering with states right to determine:
- Number and identities of employees a state wishes to employ
- The term of their appoint
- The number and identity of people it chooses to dismiss on redundancy grounds
- Those engaged at higher levels of government, the power to determine their
terms and conditions: hence, Ministers, ministerial assistance and advisers,
heads of departments and high level statutory office holders, parliamentary
officers and judges would clearly fall within this group. The implied limitation
would protect states from the exercise by the Commission of power to fix
minimum wages and working conditions in respect of such persons and possibly
others as well.
# An impairment of a states rights in these respects would constitute an infringement of
the implied limitation.
# However, the prescription by a federal award of minimum wages or working conditions
would not infringe the implied limitation (save for the particular persons).
# CF. Dawson J dissent: the distinction between what is and isnt essential state function
is unstable in this case (P986)
- S 111(1A) removed power of AIRC to dismiss industrial dispute if no state arbitration system.
- Prosecutor submitted that s 111(1A) de facto discriminates against Vic and Vic
employers/employees by denying them recourse to s 111(1)(g).
- The Court rejects it, but does not say that there was no de-facto discrimination.
- The provision is framed in general terms and is capable of applying to any state which introduce
a system similar to the Victorian system. The fact that Victoria is the only State presently
affected by s 111(1A) is not a compelling consideration.
- Test: Whether s 111(1A) discriminates against Vic is not a question to be determined by
reference to the subjective motives of the legislators, rather it is a question of determining what
was the purpose of the enactment, ascertained by reference to the substance and actual
operation of the law in the circumstances to which it applies: if there is a logical rational
reason for Parliament to pass the law, Court may not find that there was de-facto discrimination
- Application: It was logical and rational for Parliament to remove power when there was no state
arbitration system.

*Dawson J (dissenting):
! Implied limitation test: federal law under s 51(xxxv) invalid if it would prevent a state from continuing to
exist and function as such. Figuring out when a law does this is difficult.
! Sceptical of the majority judgements distinction between what the Cth can and cannot regulate in
regards to the relationship between a State and its employees (if who you hire is critical to the
functioning of a state, so is their wages and conditions) and the distinction between higher and lower
level government employees (in terms of how a state functions, both are important)

Victoria v. Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416
! " Further applies governmental immunity rule (two-limbed principle), and by focusing on the second
structural integrity argument, fleshes out that second limb.
! EXAM" Use majority reasoning for (2) AEU type of discrimination; including reading down
Facts: Amendments to the Industrial Relations Act imposed on employers (including States) obligations
concerning minimum wages, equal pay, termination of employment, discrimination, leave, and the right to
engage in industrial action. The Act was drafted to apply to all state employees. Section 6: this Act applies to
Crown in each of the states. Victoria was the only state without a state arbitration system.
Victoria claimed that each of the legislative provisions were invalid in their application to Victoria; because (1)
they were de-facto discriminatory and (2) because they interfered with Victorias capacity to function as a

Decision: Legislation could validly apply to states except in a few circumstances (in relation to the
Anesti 28
employment terms and conditions of higher level State personnel and to State decision concerning number
and identity of State employees, and whom states dismiss on redundancy grounds).

Brennan CJ, Toohey, Gaudron, McHugh, Gummow JJ (Dawson J agreeing) Reasoning:
! R. Court reiterated the principles outlined in AEU, and build on (2):
(1) The prohibition against discrimination which involves the placing on the States of special burdens or
disabilities (the limitation against discrimination) and
(2) The prohibition against laws of general application which operate to destroy or curtail the continued
existence of the States or their capacity to function as governments.
- Build on point (2): precludes Cth from controlling states in their decisions on who to employ,
and the terms and conditions of employment for higher level personnel.
- The question whether a provision is discriminatory is to be determined from the purpose of the
enactment ascertained by reference to the substance and actual operation of the law in the
circumstances to which it applies.
! A. Do the provisions interfere with Victorias capacity to function as a government based on AEU
- Some are fine
# EG. S 170DB: valid, because it prescribes the steps to be taken before or in association
with termination, rather than the number or identity of persons whom the States wish to
dismiss on redundancy grounds.
# EG. SS 170DD AND DG: concerned with redundancy, but not interfering with right of
states to determine number and identity of those made redundant.
- Others are an issue:
# EG. S 170DE(1): however, prima facie would be invalid because it requires there to be
a valid reason for termination connected with operation requirements. This would
prevent a State from determining the number and identity of those to be made
# EG. S 170FA: requiring compliance with an AIRC order for severance pay and
consultation with unions about redundancy; effectively interferes with states power to
determine number and identity of those made redundant.
- Therefore!
! Courts read down s 6 (this Act applied to Crown), so that the problem sections did not
interfere with states capacity to function as a government based on the AEU principles:
- EG. The effect of reading down s 6 is that the states are not bound b s 170DE(1) to the extent
that it would otherwise operate to prevent them determining the identity and number of those
they wish to make redundant.
- FURTHER EG. Section 170AE (Minimum wage orders): not (1) discriminatory but (2) would
interfere with functioning of Victoria as a government if applying to higher level employees; and
by reading down s 6 in relation to this provision, it does not apply to higher level employees of
the government.

Austin v Commonwealth (Judges Superannuation Case) (2003) 215 CLR 185
! Current formulation of implied intergovernmental immunity doctrine rule;
EXAM! Use singular test; can apply AEU principles within the context of this test (Gaudron,
Gummow, Hayne, JJ; Gleeson CJ; cf McHugh J). Also note the result; court actually strikes down entire
Facts: Austin was a judge of the Supreme Court of New South Wales who was challenging a
Commonwealth law (Superannuation Contributions Tax Act), which effectively imposed a contributions
surcharge on the superannuation of state judges. The Commonwealth law was part of a wider scheme
imposing a superannuation charge on higher income earners, equalising the tax burden on judges vis-a-vis
other high income earners. (The surcharge was not imposed on states directly, as employers because it
could have infringed s114 of the constitution which outlaws taxation of state property). If a person was a
judge since before 1987, the charge was not imposed as the liability to pay the charge could have run to
hundreds of thousands of dollars. The New South Wales government, in response, amended the charge
system to lower the burden that would have to be paid. Austin challenged the law on the basis that this
curtailed the essential functions of the state, by forcing states to change the way that judges were

Issue: Did the law interfere with the essential Constitutional functions of the state?

Decision: Law was held invalid; a new formation of the intergovernmental immunities rule emerged.

Gaudron, Gummow, Hayne JJ:
Anesti 29
! Principles foundation: Commonwealths legislative powers do not extend to making law which denies
one of the fundamental premises of the Constitution, namely, that there will continue to be State
governments separately organised (P998)
! "New formulation of principle:
- There is, in our view, but one limitation, though the apparent expression of it varies with
the form of the legislation under consideration.
- The essential question... is whether the law restricts or burdens one or more of the
States in the exercise of their constitutional powers.
# The question presented by the doctrine in any given case requires assessment of the
impact of particular laws by such criteria as special burden and curtailment of
capacity of the States to function as governments (P999)
# Discrimination is an example of this: but while discrimination may be indicative of
infringement of the limitation upon legislative power! It is not, of itself, sufficient
to imperil validity.
- These criteria are to be applied by consideration not only of the form but also the substance
and actual operation of the federal law (P999)
- NB. invalidity does not necessarily attend any federal law which requires a State in the
performance of its functions to bear a burden or to suffer a disability to which others are not
subject, and this will particularly be the case with tax laws. (P999)
! Application:
- Do the laws restrict or control the States in respect of the working of the judicial branch of the
State government? (P1000)
# They impose a liability directly on the judges not the states
# This is similar to Melbourne Corporation, where the burden was imposed on individuals
- But it is for the states to decide what these liabilities are in relation to its judges, like it is the
States who are to decide how its higher members of parliament get paid (Australian Education
Union). This is because remuneration of judges plays an important role in maintaining the body
politic: NB. discussion of judicial independence).
! C. The conclusion reached is that, in its application to [Austin], the [Acts] are invalid on the ground of the
particular disability or burden placed upon the operations and activities of New South Wales (P1002)

Gleeson CJ:
! The Melbourne Corporation discrimination limb is really part of a wider principle test: what
constitutes relevant and impermissible discrimination is determined by the wider principle.
! Principle: includes but is not limited to legislation that aims to destroy the States or their agencies, or of
one or more of their governmental attributes or capacity.
- NB. destroy is a possibly higher standard than the limits test posed by the majority.
! Application: an attempt to dictate to States the terms and conditions of engagement of judges would be
an impermissible interference with the capacity for states to function as governments (P997)
- It is a breach of the implied freedom when a federal law with respect to taxation treats state
judges differently from the general run of high income earners and federal judges, and to
their practical disadvantage. This is not constitutionally permissible because of its
interference with arrangements made by States for the remuneration of judges (P997)
- Its not simply that youre interfering with higher level employees a la AEU, but that youre
interfering with states capacities to make its own arrangements for state judges, which is part of
their functioning as governments, as required by federalism.
- *It interfered so much, that they had to pass laws to clear things up.

*McHugh J: insists on the Melbourne two principle test, but agrees with plurality on the issue.
! Key States cant interfere with State court judges. Even if the legislation attacks them specifically, if it
interferes with their relationship with the State as judges of that State, it will contravene this doctrine.
- A. federal law discriminates against State judicial officers in a way that interferes in a significant
respect with the States relationships with their judges; a special measure designed to single
judges out and place a financial burden on them that no one else in the community incurs
(making them pay debts in hundreds of thousands of dollars, unlike private citizens).
! The interference with Judges salary was so serious that the State enacted its own legislation
- Thus, the practical effect of the federal legislation is to require the States to pay a sum of money
to a retiring State judge to be paid to the Commonwealth, a payment that the Commonwealth
accepts or assumes it could not directly require the States to pay (P1004).
- Therefore violates the principles enshrined in Melbourne Corporation.

*Kirby J (dissent): agrees on the implied freedom existing, but doesnt think it applies to the case
Anesti 30
! Agreed on one principle position, and that determining whether the Melbourne Corporation implication
is invoked is always going to be one of degree.
! Contests the proposition that determining the amount of superannuation to be paid interferes with the
states power to determine the remuneration with its judiciary: mere discrimination does not equate to
interference with the fundamental constitutional function of the state. Recognition otherwise would push
the implication beyond what the Constitution itself can support.

Anesti 31


Constitutional source of executive power:
s 61: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-
General as the Queens representative, and extends to the execution and maintenance of this Constitution,
and of the laws of the Commonwealth
! S 61 a vehicle for Commonwealth prerogative powers and capacities giving effect to the common law
position (Zines)
! Being enshrined in the Constitution, it also enables Parliament to regulate and control the
Commonwealths prerogative powers and capacities through s 51(xxxix)

Who has the power?
The executive includes the Queen of Australia, the Governor-General, government ministers, and public
servants employed by federal governmental departments.

What is executive power?
! The scope of federal executive power is unclear: has often been discussed but never defined
(Davis, per Mason CJ, Deane and Gaudron JJ): in Pape court refuses to define scope.
! Nevertheless, it is clear that federal executive power includes:

*The powers conferred on the executive by the Constitution " Through s 61: the vehicle
(1) Express powers conferred by Constitution
! Such as ss 2, 5 (prorogue parliament), 28, 32, 578 (dissolve houses; royal assent bills), 64, 68
(command-in-chief naval military), 72 (judges) and 128

(2) Main source: executive can exercise powers conferred by statute
! Statutory executive powers generally based on s 51
! Can only come from a valid statute per s 51 placita.
! EG. Migration Act: Minister has power to decide whether to grant a visa

Executive can exercise the common law (inherent) powers:
(3) Capacities (personal rights)
! All the powers possessed by individual persons EG. Powers to contract, spend money, form
corporations, employ and dismiss persons.
! However, not the same as an individual; EG. Mason CJ in Commonwealth v John Fairfax said Cth was
not entitled to an injunction based on the disclosure of confidential information, as a normal individual
would, because it was not a relevant detriment to the government.

(4) Prerogatives
! The power to enter into treaties, declare war.
! Can be displaced by a long period of disuse or abrogated by legislation (Tampa)
! It is unclear how far the prerogative extends in emergencies short of war (Zines, P260).
! All of these prerogatives capable of interfering with the rights of others.
! Does not include coercive powers such as: power to deport, extradite, require evidence (*but perhaps
otherwise where national emergency situations).
! Tampa: extensions of prerogative? (French CJ). Note the shaky ground of French CJ reasoning in
Tampa; prerogative power extending to prevent entry of non-citizens and to do such things as
necessary to effect that exclusion. Zines is sceptical of this subjective statement.

Anesti 32
(5) Nationhood power
! Power conferred on the executive by s 61 (Pape)
! Includes responsibilities deduced from the existence and character of the Cth as a national government
(Mason J in AAP; majority in Pape).
! It includes the 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
(Mason J in AAP).
! Also gives rise to legislative power; by virtue of s 51(xxxix) matters incidental to execution of
government power
! In Pape, the nationhood power in s 61 (rather than s 81) was identified as the source of the executive
Cths power to spend.

Limits of executive power:
! Executive power is limited. The executive:
- Cant adjudicate: that is for judiciary
- Cant impose a criminal sanction
- Cant raise a tax
- Cant impose detention
- Cant deprive a person of liberty or create an offence (P260PM).
! These things all require legislation.

Leslie Zines, The inherent executive power of the Commonwealth (2005) 16 PLR 279.
" Outlines the Constitutional sources of executive power; discusses some of the grey areas.


When can the Cth spend?
S 81 and s 83 govern the Cths power of appropriation:

S 81 confers the Commonwealth power to appropriate money:
Section 81: Consolidated Revenue Fund
All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form
one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner
and subject to the charges and liabilities imposed by this Constitution.

S 83 creates parliamentary control over finance (if the Cth wants to spend money, needs legislation):
Section 83: Money to be appropriated by law
No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.
S 53 appropriation bills can only begin in lower house.
S 54 adds that a proposed law appropriating money shall deal only with such appropriation.

TEST: For what purposes can the Cth appropriate money?

Pharmaceutical Benefits Case
Facts: Majority found the Pharmaceutical Benefits Act unauthorised by s 81: did far more than appropriate
money. It also regulated chemists, medical practitioners etc. The regulatory aspects could not be found
incidental to the power of appropriation, therefore legislation invalid.
Judges had various meanings of purposes of the Commonwealth:
! Latham CJ, McTiernan J: Broad view: purposes as determined by the Commonwealth.
! Williams J: Narrow view: the federal division of power limited the purposes for which the
Commonwealth could appropriate, so any purpose had to be within the heads of legislative power
(ss 51, 52), executive power (s 61) or judicial power (Chapter III) the four corners of the Constitution.
! Dixon, Starke, Rich JJ: Middle view, Commonwealths power is limited, but extends to the power to
appropriate moneys for purposes which are incidental to the existence of the Commonwealth as a state
and to the exercise of the functions of national government (Dixon J)
- This is the nationhood power, and was held not to authorize the appropriation at issue in this

Pape v Commissioner of Taxation
! Executive authority to make payments from s 61 implied nationhood power (not s 81); giving rise to a
Anesti 33
legislative power by virtue of s 51(xxxix) for laws incidental to the nationhood power.
Facts: Rudd government passed two acts to form an economic stimulus package in response to the GFC.
They effectively required the ATO to pay tax bonuses to Australians (between $250 and $900) as soon as
practicable after the Acts commenced. Professor Pape received such a payment, and alleged that there was
no head of power under the Constitution to support these gift payments.
Legislation: Tax Bonus for Working Australians Act (No 2) 2009 (Cth), providing power to make fiscal
stimulus package. S 16 Taxation Administration Act 1953 (Cth) which provided appropriation to cover the
amount the commissioner of taxation required to pay under a taxation law, including those fiscal stimulus
packages that could be made through the above act.

Issue: whether a stimulus package designed to minimise the effects of the GFC on the Australian economy
was a valid exercise of executive power.

Pape challenged that the ATO as executive had no lawful authority to make the payment:
(1) There is no specific provision in the Constitution to make those provisions (including s 61)
(2) No legislative authority to implement the payments: the allegedly supporting Acts were invalid because
the payment was not a tax.
(3) No common law power

(1) Once parliament has made an appropriation, executive can spend it as it wants. (2) Tax Bonus law valid;
by virtue of s 51(ii), s 51(xxix), s 51(xxxv); and (3) per s 61 confers nationhood power to executive and
therefore gives parliament to legislative virtue of s 51(xxxix).

(1) Purposes of the Commonwealth under s 81 means for such purposes as the Cth Parliament may
determine (AAP, Mason Js broad view).
- NB. This is not so significant anymore, because s 81 is not the source of the executives power
to spend
(2) What is the legal authority provided to the executive by a lawful appropriation under s 81?
! "EXAM: S 81 does not confer a power to spend (unanimous by court), but only to appropriate
- French CJ: S 81 and 83 do not confer a spending power upon the Cth parliament. They provide
for parliamentary control of public moneys and their expenditure. The relevant power to expend
public moneys, being limited by s 81 to expenditure for the purposes of the Cth, must be found
elsewhere in the Constitution or statutes made under it.
! Majority: the nationhood power under s 61 supports the making of the bonus payments
- S 61 includes a nationhood power: the executive power of the Commonwealth includes the
responsibilities arising, as Mason J had put it in the AAP Case, from the existence and
character of the Cth as a national government.
- A. The making of payments to taxpayers as part of a fiscal stimulus package in an effort to
minimise the effects of the GFC was held to fall within this aspect of the power.

French CJ: reiterates views of Mason J in AAP like other majority judges, but is concerned that the
executive power be capable of serving the proper purposes of national government.
! But you have to preserve the constitutional fundamentals: Emphasised that the exigencies of
national government cannot be invoked to set aside (1) federalism the distribution of powers between
Cth and States and (2) SoP between the three branches of government for which this Constitution
provides, nor (3) circumventing prohibitions on executive abrogate constitutional prohibitions [60]
! A. Nationhood power could support short term fiscal measures to combat economic conditions affecting
nation as a whole, but only where those measures are peculiarly within the capacity and resources
of the Cth government.

Gummow, Crennan and Bell JJ
! Maintenance of the Constitution in s 61 imports more than a species of what is identified as the
prerogative in constitutional theory. It conveys the idea of the protection of the body politic or nation of
Australia [more concerned than French on idea of national emergency]
! However, that does not mean the executive can do whatever it likes in the national interest.
! A. The short-term fiscal measures was akin to a short term measure to combat a natural disaster
(emergency), and supported by the nationhood power.

What then about meaning of purposes of the Commonwealth under s 81?
Anesti 34
! Not necessary to determine given approach: Hayne and Kiefel JJ
! Broad meaning: French CJ, Gummow, Crennan and Bell JJ
! Narrow meaning: Heydon J

!EXAM: law clear on the nationhood power; what will be contentious is the application of that law to the
facts (was/was not the action supported by the nationhood power?
The scope of the Cth power to spend post-Pape (from Saunders)
! Gummow, Crennan and Bell J: support an understanding of s 61 that is likely to incorporate broad
authority to spend, both as an accoutrement of nationhood and as the perceived corollary of an
unrestricted power to tax (CF minority judges).
! French CJ: s 61 must be capable of serving the proper purposes of a national government, but
constitutional fundamentals must also be preserved. Constitutional support for expenditure for
national purposes, by reference to the executive power, may arguable extend to a range of subject areas
reflecting the established practice of the national government over many years which may well have
relied upon ss 81 and 83 of the Constitution as a source of substantive spending power.
! Heydon J (minority) rejected notion of nationhood power altogether
! Hayne and Keifel JJ accepted existence of nationhood power, but narrow and limited. Didnt A.
- Looked to other s 51 placita: Determined in Pape that the spending under s 51(ii)

Cheryl Saunders, The source and scope of the Commonwealth power to spend (2009) 20 Public
Law Review 251 (Supplementary Materials).
! Pre-Pape, there is a lot of confusion about where the Cth gets its power to spend: s 81 and 83, or s 61?
- SS 81 and 83 as the source of the power is complicated by the fact that while they require a law
to effect an appropriation, they do not clearly confer authority to make such a law.
! The doctrinal significance of Pape
- Sections 81 and 83
# Are not the source of the Cth power to spend.
# There must be a valid appropriation before money can be lawfully withdrawn to meet
# Must be made by law by virtue of 83
# Authority for the expenditure must be found elsewhere in the Constitution
- Section 61
# Source of authority for Cth spending usually supplied by a head of legislative power
under s 51.
# Failing all else, however, authority for spending may be sourced in the executive power.
# Note, however, that the other three members of the court rejected the executive power
as a source for tax bonus legislation.
- Section 51(xxxix)
# Once action is validly sourced in the executive power s 61, s 51(xxxix) provides authority
for legislation with respect to matters incidental to the execution of the power.
# There are, however, limits to the scope of incidental legislative power, particularly when
used in support of the executive power; it does not offer a license to legislate generally
on the subject matter of executive activity.
- The scope of the Cth power to spend post-Pape
# Gummow, Crennan and Bell J support an understanding of s 61 that is likely to
incorporate broad authority to spend, both as an accoutrement of nationhood and as the
perceived corollary of an unrestricted power to tax (CF. minority judges).
# Chief Justice: s 61 must be capable of serving the proper purposes of a national
government, but constitutional fundamentals must also be preserved. Constitutional
support for expenditure for national purposes, by reference to the executive power, may
arguable extend to a range of subject areas reflecting the established practice of the
national government over many years.

The legislative aspect of the nationhood power by virtue of s 51(xxxix): matters incidental to
executive government
! When does the executive need legislation to support the exercise of nationhood power?
- Whenever spending: can only spend money when appropriated by legislation (ss 81, 83)
- Coercive powers: need legislation (Davis)
# Cant impose coercive or regulatory laws
# Cant impose a criminal sanction
# Cant impose detention
Anesti 35
# Cant deprive a person of liberty or create an offence (P260PM).
! Where does that power come from?
- After Pape, comes from s 51(xxxix)
- No implied nationhood legislative power.

But there are limits to the legislation which can be passed under s 51 (xxxix) in support of
nationhood power (what can be in that act? What is the scope of that Act?
- *If what the executive is doing is beyond the nationhood power (see Pape), then parliament
cannot make a law under s 51(xxxix) (would not then be incidental).
- Will also need to be proportional
- The parliament, in order to support the executive, will need to find another placitum.

Mason, Deane and Gaudron JJ
! R. S 51(xxxix) can be used to pass coercive laws (infringing rights of individuals)
! R. But there are limits:
- The incidental power does not enable the Cth to legislate in aid of any subject which the
Executive Government regards as of national interest or concern.
- Proportionality test: between the laws in question and the goals to be achieved by the
nationhood power
# A. Power of Authority to prohibit use of everyday words given Authority protection which
is grossly disproportionate to the need to protect the commemoration and the Authority.
- The framework reaches far beyond the legitimate object sought to be achieved and inhibits
freedom of expression by enabling the Authority to regulate the use of common expressions and
by making unauthorised use a criminal offence.

Tony Blackshield and George Williams, Australian Constitutional Law & Theory: Commentary &
Materials (5
ed 2010) 494-495, 503-512 (Supplementary Materials).
! Origins of a legislative nationhood power originates in Burns v Ransley and R v Sharkey which held that
the Cth had the power to protect itself against subversion and sedition.
! For Latham CJ, S 51(xxxix) permitted legislation incidental to the exercise of executive power, or the
protection and maintenance of the legal and political organization of the Cth.
! Dixon J in Sharkey instead thought that the power arises out of the very nature and existence of the
Commonwealth as a political institution (minority view; later called into question).
! Usually attempts to invoke the nationhood power are unsuccessful. And there are limits to the power:
you cant use it to cut a swathe through the Constitution (Kirby J).
! Per Pape
- Majority held valid exercise of executive power, and accordingly that the legislative enactment of
criteria for the payments was valid under s 51(xxxix).
- Nationhood power is limited by considerations of federalism and other constitutional distribution
of powers
- All seven judges rejected the idea that s 81 could give rise to a general appropriation power
capable of supporting the validity of national expenditures.

Anesti 36


Commonwealth Constitution Chapter III:
! Chapter III of the Constitution vests judicial power in the HCA and federal courts and has been frequently
referred to as an exhaustive statement of judicial power.
s 71: Three courts exercising federal judicial power for purpose of Boilermakers doctrine: (1) HCA (2) other
Federal courts that Parliament creates (3) other courts that parliament invests with federal jurisdiction -
state supreme courts.
s 72: Judges of the HCA or other federal court (these are key judicial independence) provisions.
! (i) Shall be appointed by the GG (in council).
! (ii) Can only be removed upon address from both houses of parliament in same session on the ground
of proved misbehaviour or incapacity.
- Note: this is a very high threshold and has never happened. There is NO other way to remove a
judge. Cannot implement legislation specifying terms are to be certain times. Can only legislate
in respect to age.
! (iii) Will receive remuneration as fixed by the parliament but not to be diminished in their tenure.
! Must retire by 70, though the Parliament may lower the age by law.
! May resign in writing delivered to the GG.
s 73: HCA can hear appeals from any original jurisdiction case from the HCA or any other federal court or
court exercising federal jurisdiction or supreme court of any state, and the judgement of the HCA will be final
and conclusive. Parliament cannot legislate away this jurisdiction.
s 75: HCA have original jurisdiction in all matters:
! (i) arising under a treaty
! (ii) affecting consuls or representatives of other countries
! (iii) in which the Cth or person suing/being sued on behalf of the Cth is a party
! (iv) between states, between residents of different states and between a state and a resident of another
! (v) in which a writ of Mandamus (do something) or prohibition or injunction is sought against an officer of
the Cth.
s 76: Parl can pass a law conferring original jurisdiction on the HCA for any matter
! (i) arising under the constitution or involving its interpretation
! (ii) arising under any laws made by the parliament
! (iii) of admiralty and maritime jurisdiction
! (iv) relating to the same subject-matter claimed under laws of different states.
- this is an exhaustive list of matters over which the Parliament can confer jurisdiction.
s 77: In terms of original jurisdiction, Parliament can make a law
! (i) defining the jurisdiction of any federal court other than the HCA
- implication here from this section and s 76 that the Parliament cannot pass a law defining or
limiting the jurisdiction of the HCA in any way.
! (ii) defining the extent to which the jurisdiction of any federal court is to be exclusive to the states
! (iii) investing state courts with federal jurisdiction.
- so parliament can vest federal jurisdiction in a state court. The converse is not the case see
strand II of boilermakers.
s 78: The Parliament may make laws conferring rights to proceed against the Commonwealth or a state in
respect of matters within the limits of the judicial power (check how practical this section is)
s 79: Parliament can set the number of judges to sit on any federal court.
- So the number of judges in any court could be any number at any time
s 80: for offences contravening cth law, trial shall be by jury and held in the state where the offence

Anesti 37
What is judicial power?
! EXAM In cases dealing with the Boilermakers doctrine, the Court has repeatedly reiterated that judicial
power is an inherently difficult concept to define, and that an exhaustive definition is not possible. Whether a
power can be said to be judicial therefore depends upon a balancing of competing indicia (Blackshield and

Boilermakers: R v Kirby; Ex Parte Boilermakers Society of Australia (1956) 94 CLR 254
! Formulation of two-limb principle of where judicial power can and cannot be granted;
(1) cant grant non-judicial power to courts, and
(2) cant grant judicial power to things that arent courts.
Facts: Legislation made under s 51(xxxv) established the Cth Court of Conciliation and Arbitration
composed of judges with arbitral powers (i.e. non-judicial power) and power to enforce awards (e.g.
judicial power). It ordered the Boilermakers Union to comply with an award: some members failed to do so,
and the court fined the society for contempt (IE. enforcing the award). The society challenged the orders,
saying that an arbitral tribunal (non-judicial) cannot be given power that is by nature, judicial; and that the
legislation establishing the court was therefore unconstitutional.

Decision (4:3): The attempt by tribunal is invalid. Arbitral tribunal cannot exercise chapter III powers.
Therefore in this case cannot fine society or impose punitive measures.
! It is an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential
functions the exercise of any part of the strictly judicial power of the Commonwealth. The basal reason
why such a combination is constitutionally inadmissible is that CHIII does not allow powers which are
foreign to the judicial power to be attached to the courts created by or under that chapter for the
exercise of the judicial power of the Commonwealth (P855)

Reasoning: Dixon CJ, McTiernan, Fullagar, Kitto JJ
! Subject to this constitution: except for legislation under s 51 (xxxix) which deals with matters
incidental to the functions of the judicature, when an exercise of legislative powers is directed to the
judicial power of the Commonwealth it must operate through or in conformity with Chap III (P852)
- For that reason it is beyond the competence of the Parliament to invest with any part of the
judicial power any body or person except a court created pursuant to s 71 and constituted in
accordance with s 72 or a court brought into existence by a state (P852)
! Why? The very text of the Constitution confirms that only judicial functions can be reposed in
the judiciary:
- Chapter III is an exhaustive statement of the manner in which the judicial power of the
Commonwealth is or may be vested
- Principle of separation of powers inferred from the text (P853). Therefore courts established
under Ch III have the exclusive purpose of performing judicial functions.
- Principle of federalism can clearly be inferred from the text: and having a set of federal courts
who can moderate the relationship between the Cth and the states the foundation of the
system prescribed by the Constitution- is a central responsibility.
! Application and conclusion:
- The Arbitration Court is not a Ch III court (non-judicial arbitral tribunal).
- Therefore, it cannot be conferred with the judicial power of the Commonwealth: Chap III does
not allow powers which are foreign to the judicial power to be attached to the courts created by
or under that chapter for the exercise of the judicial power of the Cth (P855).
- Therefore, the legislation (despite being a valid law with respect to s 51(xxxv)) constitutionally
invalid; not made subject to Constitution Ch III.
- Non-judicial bodies cannot exercise Chapter III (federal) power: Chap III does not allow the
exercise of a jurisdiction which of its very nature belongs to the judicial power of the
Commonwealth by a body established for purposes foreign to the judicial power (P855).
# Federal judicial power only to be exercised by courts constituted under Ch III (i.e.
beyond the competence of the Parliament to invest with any part of the judicial power
any body or person except a court created pursuant to s 71 and constituted in
accordance with s 72 or a court brought into existence by a State.
- Chapter III courts cannot exercise functions which are not chapter III judicial powers (or
powers incidental to it): Chap III does not allow a combination with judicial power of functions
which are not ancillary or incidental to its exercise but are foreign to it (P855)
# Non-judicial power cannot be vested in Ch III courts except where ancillary exercise of
judicial power.
- Subsequent exception: where power incidental to exercise of judicial power.
Anesti 38

*Reasoning: Williams J (Dissent)
! Constitutionally: Rejects argument that separation of powers really exists here, and requires such
stringent separation. No express statement that Ch III courts cannot exercise powers that are not only
judicial in character. The CC needs to be read as a whole, and there there are at least four legislative
powers in s 51 (xvii) bankruptcy (xviii) copyrights (xxii) bankruptcy (xxxv) conciliation which would
appear to require a mixture of administrative and judicial functions for their effective exercise.
! Practically: The process of making and enforcing awards is continuous - makes practical sense that the
powers be combined (P857)
! Historically: It has been well accepted that these powers can be combined arbitral court has been
used this way for a while (P858)

Boilermakers Case (Privy Council) CB858-9
! Cth appealed unsuccessfully to the Judicial Committee of the Privy Council; slam Williams dissent
! Confirms SoP to be found in CC structure: It is to Chap III alone that Parliament must have recourse
if it wishes to legislate in regard to judicial power (P859).
! In a federal system the absolute independence of the judiciary is the bulwark of the Constitution against
encroachment whether by the legislature or by the executive. To vest in the same body executive and
judicial power is to remove a vital constitutional safeguard (P859).


Boilermakers Limb 1: Is this an attempt to confer judicial power on a non-judicial body?
powers by conferring judicial (adjudicative) power on the executive/administrative tribunal?

Precision Data Holdings v Wills (1991) 173 CLR 167
! Application of Boilermakers L1
Statement of which features constitute arbitral power as opposed to judicial power. Policy, future rights and
obligations (as opposed to a settlement about existing rights and duties) point to arbitral (non-judicial).
Facts: Precision Data sought a declaration that the Corporations and Securities Panel established under the
Australian Securities Commission Act could not exercise some of the functions established by the
Corporations Law of Victoria, because they would be exercising judicial power of the Cth contrary to the
Legislation enabled the Corporations and Securities Panel to
! 733(1): Make declarations that acquisitions or conduct has been unacceptable (upon ASC app)
! 733(3): Had to take into account consideration of policy in making declarations:
- Efficient, competitive, and informed market.
- Public interest
! 734(2)(a): after making declaration, Panel can make orders it thinks necessary or desirable to protect
rights or interests of any person affected by the conduct or to ensure that the takeover proceeds in a fair
! S 734 (5) states that a person shall not contravene an order.
- Where a person contravenes an order (under s 734), the court may make such orders
necessary to secure compliance with the panels order, including remedial orders and orders
directing someone to do or refrain from doing a certain act.
! Required the Panel to make findings of fact (s 733 (3)(a)) in order to be satisfied that such conduct had

Issue: whether panel (non-judicial body) had been given judicial power?

Decision: valid. The panel does not exercise judicial power in the making declarations or orders. The nature
of power is arbitral, not judicial.

Reasoning Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, McHugh JJ (unanimous):
! It is difficult (perhaps impossible) to define judicial power (common ingredients).
- Functions may be classified as either judicial or administrative according to the way in which
they are to be exercised and by who. (P805)
- EG. Fact-finding and application of laws to facts are ingredients common to both judicial and
non-judicial processes.
! Indicia:
Anesti 39
- Adjudication about what rights/obligations should exist in future suggests arbitral (not
judicial): if the object of the adjudication is not to resolve a dispute about the existing rights and
obligations of the parties by determining what those rights and obligations are but to determine
what legal rights and obligations should be created, then the function stands outside the realm of
judicial power (P805)
# See quote from Re Ranger Uranium Mines: determination of current matters is judicial,
but the ascertain what rights/obligations should exist is arbitral (non-judicial).
# *This is later qualified.
- Policy considerations in making decision suggest arbitral (not judicial) power (P805-6)
# However, sometimes considerations of policy play a role in shaping of legal principles.
# ATP matter of degree?: if policy considerations are major factor in decision-making?
! Application: panel is exercising non-judicial power because
- In this case, adjudication is not about existing rights and obligations by way of application
of the law in past events or conduct.
# ASC makes the application to the Panel
# Declaration does not resolve a controversy about rights (just saying conduct
- Panel is bound to take account of commercial policy considerations.
# Decision is not based on just law.
# The panel members were experienced in business, not judicially trained; they were there
to make a decision informed not only by the law.
- The object of making an inquiry and determination is to create a new set of rights and
- "EXAM: ATP indicia take on character when applied to the facts.
- *NB. where a discretionary authority conferred upon a court to be exercised according to legal
principle or some objective standard or test (not policy considerations), it will be possible to
conclude that the determination by the court constitutes an exercise of judicial power.
- Not enforceable: As the making of a declaration necessarily proceeds, in part, at least, from
an assessment of considerations of commercial policy, not solely from an application of the law
to the facts as found, neither the making of a declaration nor the making of orders is binding in
the same sense that a judicial determination would be binding. Both are subject to judicial
review (P806)
NB . Fine distinction between binding and enforceable
! The panel are making a declaration that is binding on the parties, but that is not enforcement in a
judicial manner. It is like the parties have made an agreement to do something. At a later stage, if a party
does not comply, they can be taken to court where the agreement can be enforced.
! Judicial review of a non-judicial decision v appeal: A non judicial decision maker makes a decision,
and then a process of judicial review gives court the power to review that decision.

Brandy v HREOC (1995) 183 CLR 245
! Binding (enforceable) nature of decision may be critical to defining judicial power (and it does not matter
if that enforceability is direct, or essentially forced through a Ch III court as a mechanism)
! If all else is equal, enforceable suggests judicial power
! Under Racial Discrimination Act, certain acts are unlawful. Complaints can be lodged with the HREOC,
who can hear them and hold an enquiry, and make a determination by (for example) making a
declaration that someone engaged in unlawful conduct, should perform any reasonable act or course to
redress loss, or pay damages.
! Not directly binding: Under s 25Z(2) a determination is not binding or conclusive on the parties, but
after determination is made, HREOC must lodge it with the Registry of the Federal Court, and once it
has been registered it has the effect as if it were an order were made by the federal court so it is
binding, and enforceable.
! The decision can be reviewed, and all issues of fact and law can be reviewed but cannot take new
evidence so just like a normal appeal.
! Under this legislation a complaint was lodged and the plaintiff was ordered to apologise and pay
compensation. They contested the constitutionality of such an order.

Decision: invalid. Power is judicial power, because their decisions are enforceable.

Reasoning Deane Dawson, Gaudron and McHugh JJ (Mason CJ, Brennan, Toohey JJ delivered joint
judgement to same effect):
! The commission is not a court in accordance with Chapter III, and therefore cannot exercise the judicial
Anesti 40
power of the commonwealth (P793)
! Difficult to define judicial power:
- It can be a binding and authoritative decision of controversies between subjects ! made
by a tribunal which is called upon to take action (P794); but sometimes this could be legislative
or administrative attribute too.
- It determines existing rights and duties and does so according to law. That is to say, it does
so by the application of a pre-existing standard rather than by the formulation of policy or the
exercise of administrative discretion (P794), but sometimes this could be arbitral, too.
- Enforceability of decisions often decisive (when otherwise equivocal) (P794).
! A. In this case, the commissions functions have many aspects of judicial power: it decides
controversies based on existing facts and law (set out in the Act), the remedies is provides make its
functions closely analogous to those of a court in decided criminal or civil cases.
- Including direct (mechanical) enforceability (registration and enforcement provisions): A
registration of a determination is compulsory and under s 25ZAB the automatic effect of
registration is, subject to review, to make the determination binding upon the parties and
enforceable as an order of the Federal Court. Nothing that the Federal Court does gives a
determination the effect of an order! It is the determination of the Commission which is
enforceable and it is not significant that the mechanism for enforcement is provided by
the federal court (P795).
- *However, if it were not for the enforceability of the determinations, the power would NOT
BE JUDICIAL: so these above indicia CAN be exercised by an arbitral tribunal.
# This is because, under s 25Z(2), its determination would not be binding or conclusive
between any of the parties and would be unenforceable (P795) (Reinforces that
enforceability is the critical factor in determining whether power is judicial here).
- Possibility of review not conclusive: the existence or exercise of a right of appeal from a
decision made in the exercise of judicial power does not convert that decision into one of an
administrative kind
! Conclusion: the ss combine to make a determination of the commission binding, authoritative and
enforceable, and those ss were therefore invalid.

Attorney-General v Alinta [2008] HCA 2
! No enforceability of a determination (although it could be enforced by a court) suggests non-judicial.
! This is so even if the panel has the power to declare whether something is against existing law (CF
Precision Data)
! The Takeovers Panel established under the Corporations Act had the power to declare whether takeover
circumstances were unacceptable (s 657A(1)), particularly if they constitute a contravention of a
provision of chapter 6, 6A, 6B or 6C (s 657A (2b)) so the panel has the power to declare whether the
takeover is unacceptable based on existing law this looks judicial in nature (different from
Precision Data).
! Panel was also to take into regard certain factors and only make a declaration if not against public
interest (policy considerations).
! The Full Federal Court held that s 657A (2b) was invalid because it purported to confer on the Panel the
judicial power of the commonwealth.

Issue: is the Takeovers Panel established under the Corporations Act (clearly administrative body)
exercising judicial power when it makes a finding of unacceptable circumstances on the basis of a
contravention of Ch 6-6C?

Decision: valid. The powers of the panel are administrative and not judicial because creating new rights and

Reasoning: Hayne J
! The panel is creating new rights and obligations (non-judicial):
- If a contravention of the Act is found, there is a distinct and additional layer of matters to which
the Panel must give attention before making a declaration: whether contravention
unacceptable, whether an order would be in the public interest having regards to relevant
policy considerations, whether any other matters which the panel MUST have regard to are
satisfied, and whether there are any other matters the panel thinks are relevant.
- The requirement that the Panel take into account any policy considerations that it considers
relevant in making declaration coupled with the obligation to have regard to the matters identified
in s 657A(3)(a) and the power to have regard to other matters it considers relevant reinforce
Anesti 41
the view that the Panels task is better described as the creating of new rights and obligations
rather than the quelling of a controversy about contravention of the Corporations Act.
! Panels orders are NOT directly binding (non-judicial):
- Panel can make remedial orders, but cannot order person to comply with the allegedly
breached provisions of the act.
- The orders the Panel can make are unenforceable. If an order is contravened, that is an
offence under the Act, and a court can (separately) make an order of compliance.
- Statutory limitation to bring court proceedings during the bid period did not indicate that
enforcement of statute transferred to the Panel.
- Distinguishes from Brandy: in Brandy, the HREOCs determination itself was binding and in
no sense became the determination of the Federal Court. In this case, the binding effect of the
orders is determined by the court, which decides whether orders should be made under s 657G
to secure compliance or to decide whether there has been an offence under s 657F by
contravening order made by panel. IE the court makes its own determinations.
! Panels orders open to challenge:
- Although the Corporations Act gives an order of the Panel the force of law and makes
contravention of the Panels order an offence, an order of the Panel is open to challenge and
furthermore open to collateral challenge in other judicial proceedings where it is relevant
! The panel therefore does not exercise the judicial power of the Cth.

Reasoning Crennan and Kiefel JJ:
! Judicial power: resolving a dispute about existing rights and obligations by determining what they are,
rather then what rights and obligations should be created
! However, there is some necessary crossover (distinguish Precision): It is not uncommon for a
tribunal to find it necessary to form an opinion as to the existence of the legal rights of the parties as a
step in arriving at its ultimate decision.
! Policy factors suggest non-judicial: the point is that the public interest is to be taken into account
in making the decision. This implies a process where the Panel weighs the contravention and its
effects with other considerations in order to determine what is required. Policy considerations are more
often regarded as applying to a non-judicial process in decision making
- The considerations relevant to the Panels decision point to a non-judicial function being
! Non-enforceability:
- Although the orders that the Panel can make are similar to orders a court can make, The fact
that both the Court and the Panel can make orders in the same terms does not mean that
they involve the exercise of judicial power. The orders which the panel may make include
those which may direct a person to do or not to do an act. Many non-judicial bodies make orders
of this kind, in order to regulate the future rights of parties
- Its orders, whilst remedial in effect, do not require a party to make good a legal obligation or
correct a contravention of the Chapters. The Panel is expressly denied the power to do so.

Anesti 42


Boilermakers Limb 1: Is this an attempt to confer judicial power on a non-judicial body?
DETENTION OF PERSONS BY THE EXECUTIVE: does this infringe separation of powers because the
executive is exercising punitive orders of detention?

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
! Detention is judicial-power and, if a non-judicial body does it, will offend Boilermakers L1
! But there are some exceptions (mental illness, quarantine, and detaining reasonably detaining alien)
! *DISTINGUISHED: Lim says that detention is prima-facie punitive and therefore judicial power; whereas
Al-Kateb says that whether detention is punitive (and therefore judicial power) is a matter for further

! Migration Act ss 54L and 54N provided for detention of a designated person (boat people) until they
were removed or given an entry permit.
! S 54Q: 273 days maximum period after making application
! S 54P(2): removal of designated persons within two months if no application made
! S 54P(1): removal as soon as practicable once request for removal made

Issue: is Cth III executive exercising judicial power through these provisions (legislation conferring power

Held: valid

Reasoning (Brennan, Deane, Dawson JJ):
! The judgement and punishment of criminal guilt is normally an exclusively judicial function
- Chapter III then precludes parliament from investing this function in the executive
- Whether a law adjudges and punishes criminal guilt is about substance not form.
! The involuntary detention of a citizen 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 (P828)
- *But this is subject to qualification:
- EG. The detention of someone (by the executive) accused of a crime so that they will be dealt
with by the courts. This is not seen as punitive or judicial in character
- EG. Quarantine powers and mental illness = non-punitive
! Another exception: the legislative power conferred by s 51(xix) of the Constitution encompasses the
conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for
the purposes of expulsion or deportation as an incident of executive power to deport aliens (P829)
- *But must be reasonable: Such limited authority to detain an alien in custody can be conferred
on the Executive without infringement of CHIII, so long as limited to what is reasonably capable
of being seen as necessary for the purposes of deportation or processing application (if not, then
punitive and impermissible exercise of judicial power). ! REJECTED IN AL-KATEB
! Application: Are the provisions valid laws with respect to that executive power?
- R. The provisions will be valid laws if the detention which they require and authorize is limited
to what is reasonably capable of being seen as necessary for the purposes of deportation
or necessary to enable an application for an entry permit to be made and considered (P829)
- Application: Valid
# *It is not enough that the total period of detention is set (273 days), or that the person is
to be removed as soon as practicable: this does not make detention reasonably
necessary in the sense above (P830).
# S 54P(1) saves the provision: with Div 4B, the alien is always able to leave detention if
they choose to go back to where they came from.
# Therefore, provisions do not exceed what is reasonably capable of being seen as
necessary for the purposes of deportation or for the making and consideration of an
entry application (P830)
- C. The powers of detention in ss 54L and 54N are therefore incidents of executive powers of
exclusion, admission and deportation of aliens and are not! judicial power of the Cth.
! NB. If [similar provisions] are not so capable of being viewed in this way, they will be invalid and
considered punitive in nature, and contravene Chap IIIs insistence that only designated courts can
Anesti 43
exercise judicial power. (P830)

Al Kateb v Godwin (2004) 219 CLR 563
! Changes the principle that needs to be applied for the determination of whether a law to detain an
individual is judicial from Hayne J; there is no starting presumption that the power to detain is
judicial; the key question is whether law is punitive or not. If law is about detaining someone for
punitive purpose, is judicial power. If law detains person for non-punitive purpose, may not be
judicial power.
! Power to detain not exclusively judicial power; executive can exercise power to detain for a non-
punitive purpose, but NOT for a punitive purpose. ATP: the limits of the executives non-punitive detention
power how far can they go?
Facts: Al Kateb was detained pursuant to the mandatory detention policy in the Migration Act. His
application for a visa failed, so he applied to be removed pursuant to the Migration Act, but no country would
take him. It still remained possible that another country would take him. So, he was detained indefinitely.

! S 196(1) provided that an unlawful non-citizen must be kept in detention until they are either removed,
deported, or granted a visa
! s 198 (1) states that as soon as reasonably practicable an unlawful non-citizen who asks to be removed
must be so removed.

Issue: is s 196(1) invalid because it involves an exercise of judicial power (detention that could essentially
go on forever)?

Decision: 4:3 valid.

I. Does detention contravene the first limb of Boilermakers?

Reasoning Hayne J:
! Dismisses Lim: that test relates to the head of power issue and does answer the Ch III question.
! R. To determine whether detention infringes the first limb of the Boilermakers principle, the
question to ask is whether the detention is punitive or not (shift from Lim)
- NB. The bare fact of detention is not punitive
! A. The laws were not punitive:
- (1) Immigration detention is not detention for an offence
- *Purpose determinative: immigration detention to exclude person from community for purpose
of investigating and determining visa applications (not punitive purpose)
- Not enough that effect of indefinite detention might be punitive
- Indefinite detention not punitive: if that is the result, it comes about because the non-citizen
came to or remained in this country without permission.
- Only in the most general sense would it be said that preventing a non-citizen making landfall in
Australia is punitive. Segregating those who make landfall, without the permission to do so, is
not readily seen as bearing a substantially different character (P838)
! *NB. [The immunity from detention is qualified; and those qualifications can be determined by
reference to the purpose of detention, gleaned from the content of the heads of power which
support the law and those heads of power would support a law directed at excluding a non-
citizen from the Australian community, by preventing entry to Australia or, after entry, by
segregating that person from the community].
! In this case the continued exclusion of such persons from the Australian community in accordance with
the regime established by the Migration Act does not impinge upon the separation of powers
required by the constitution (P839)
*NB. CF Hayne, Heydon, Callinan JJ: A punitive/non-punitive distinction cannot be the basis upon which
the Ch III limitations respecting administrative detention are enlivene: focusing attention on whether
detention is penal or punitive in character is apt to mislead.

Reasoning Callinan J and Gummow J: also held that detention was not punitive (P839)

Reasoning McHugh J (majority):
! The words of the statute are unambiguous. They require indefinite detention of Mr Al-Kateb,
notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry
to that country ! [the words] are too clear to read them as being subject to a purposive limitation or an
intention not to affect fundamental rights (P833)
Anesti 44
! Chapter III had not been contravened, because the object of the Migration Act was protective not
punitive (P839)

Reasoning of the minority judges
*Gleeson CJ (Dissent): basic canon of statutory interpretation: suspended (not indefinite) detention
! Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or
freedoms (including personal liberty), unless intention is clearly manifested by unambiguous language.
! The period of detention under s 196 is defined by reference of whether the purpose of removal in s 198
has been fulfilled. If that condition has not been met, there is a choice of treating detention as suspended
or indefinite. Applying the canon above, the former should be preferred.

*Reasoning Kirby J (Dissent): Strong dissent, but mainly based on policy and politics
! Indefinite detention at the will of the Executive is alien to Australias constitutional arrangements.
! Espouses the principle that national courts, and especially national constitutional courts such as this,
have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious
with the basic principles of international law, including as that law states human rights and fundamental
freedoms (P835). CF McHugh J: Courts cannot read the CC by reference to the provisions of
international law that have become accepted since the CC was enacted in 1900.
! C. Court should read provisions against the literal construction: no indefinite detention

When detention by a non-judicial body will offend Boilermakers L1
Wooley (P841-842): McHugh judgement revisited the approach of the Court in Al-Kateb
! No starting presumption that detention is punitive
! Rejects Lim proportionality analysis; law not valid simply because has a legitimate end and is
reasonable adapted to that end.
! The issue of whether the law is punitive! must ultimately be determined by the laws purpose:
and so the exceptions to the immunity from detention are where the purpose of the detention in
exceptional cases is not punitive in nature.
! Consider:
- Whether detention is penal or punitive must depend on all the circumstances of the case
- The terms of the law
- The surrounding circumstances (that is, the provisions in other parts of the act with which the
specific provision must be read in conjunction).
- The mischief (problem or problems) at which the provisions are aimed
# Basic statutory interpretation: parliamentary debates okay, explanatory memoranda, purpose
section. Has there been parliamentary enquiries?
# Sometimes, detention might be protective and not punitive; if at least one of the laws purposes
is punitive, then law will not be regarded as protective.
# Law will not be regarded as punitive unless deterrence can be regarded as one of its principal
aims (that is, a deterrent to others).
# ATP: clearly helps us rule out detention for immigration; but what else?
- *Important to distinguish between purpose and effect; not enough that the effect is punitive.
# The effect on Al-Kateb was punitive; but that was not the purpose of the Act.
*In Fardon v Attorney-General, Kirby and Gummow JJ rephrase the principle as: I would prefer a
formulation of the principle derived from Ch III in terms that the exceptional cases aside, the involuntary
detention of a citizen in custody by the state is permissible only as a consequential step in the adjudication of
criminal guilty of that citizen for past acts (emphasis on whether the deprivation of liberty is for adjudication of
guilty, rather than whether for a punitive purpose).


Boilermakers Limb 1: Is this an attempt to confer judicial power on a non-judicial body?
Does this infringe separation of powers because the legislature is usurping judicial power, by
directing convictions?
! Legislative usurpation: where legislature passing a law to pre-determine the outcome in a particular case
(rare; we have to go to Sri Lanka to get an actual example, from Liyanage).
! Legislative interference: interfering with (change; cut into) judicial power
! From the principle that only Chapter III courts can exercise the judicial power of the Commonwealth it
follows that the legislature cannot itself exercise (or usurp) judicial power.

Anesti 45
Liyanage v R [1967] 1 AC 259
! Example of principle that legislature cannot usurp judicial power (blatantly pre-determine the outcome of
a case) from Sri Lankan context.
Facts: an appeal to the Privy Council from what is now the supreme court of Sri Lanka. Several men were
convicted of contravening legislation passed especially and retrospectively in order to deal with their
involvement in an abortive coup.
Legislation features: essentially changed the elements of criminal offences to absolutely ensure that certain
individuals would be convicted and increased the penalties: legalised the detention of the accused, affected
the mode of trial, the penalties for the offences, the admissibility of evidence, removed right of appeal, and
only applied (and ceased to existed after the conviction of) those committing offences on an individual day
(ad hominem).

Issue: where the provisions inconsistent with the Constitutional separation of powers (an infringement of the
judicial power of the State which cannot be reposed in anything other than the judicature)?

! GR. There exists a separation of power in the judicature that under the Constitution as it stands cannot
be usurped or infringed by the executive or the legislature.
! Test: Do the Acts of 1962 usurp or infringe that power?
- Legislature has power to make laws with regards to creating general crimes, penalties or rules of
evidence. But this legislation was aimed at particular individuals.
- Legislation ad hominem which is thus directed to the course of particular proceedings may not
always amount to an interference with the functions of the judiciary. Each case must be decided
in the light of its own facts and circumstances, including the purpose of the legislation and the
circumstances in which it was directed, and its effect on judicial discretion (P902)
- But in this case they find that it does: it was not only the likely but the intended effect of the
impugned enactments. (P902)
- These alterations [to the legislation] constituted a grave and deliberate incursion into the
judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these
particular persons on these particular charges were deprived of their normal discretion as
respects appropriate sentences (P902)
! If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and
taken out of the hands of judges (even though thats not what the legislature was trying to do here)

Nicholas v The Queen (1998) 193 CLR 173
! The principle that only chapter III courts can exercise Cth judicial powers demands that courts cannot be
unduly controlled by parliament.
! However, altering the rules of evidence alone is not the legislature usurping judicial power.
! In Ridgeway v Queen, the court held that judges had discretion to exclude evidence obtained illegally by
law enforcement officers, on policy grounds.
! S 15X of the Crimes Act altered the rules of evidence, so that courts in determining whether evidence
that narcotic goods were imported into Australia in contravention of the Customs Act 1901 (Cth) should
be admitted, must disregard the fact that an officer committed an offence in the importation of
! The section only applies to controlled operations in particular circumstances, and extends to trials that
began before part 1AM commenced: it has retrospective operation).
! Nicholas bought narcotics from an undercover police officer (the police had imported the heroin; clearly
illegal). Nicholas sought to rely on the Ridgeway principle which was more advantageous to his case
(giving the judge discretion to include evidence that the officer committed an offence), and alleged that
(1) the legislature was interfering with judicial discretion and therefore offending Boilermakers L1.

Issue: Whether s 15X was invalid because it was a legislative usurpation of judicial power by defining what
the courts can and cant accept as evidence, and therefore

Decision: 5:2 s 15X is valid. Kirby and McHugh JJ dissenting.

Reasoning Brennan CJ:
! (1) The legislature cannot direct judicial power but it can prescribe a courts procedure
- A law that purports to direct the manner in which judicial power should be exercised is
constitutionally invalid!
- However, a law which merely prescribes a courts practice or procedure does not direct
Anesti 46
the exercise of the judicial power in finding facts, applying law or exercising an available
discretion (P909)
- The judicial power is defined by the jurisdiction referred to it and the implied power to do what is
necessary to exercise that jurisdiction, subject to overriding legislative provisions regarding that
practice or procedure.
- The rules of evidence have traditionally been recognised as being an appropriate subject of
statutory prescription. A law prescribing a rule of evidence does not impair the curial
function of finding facts, applying the law or exercising any available discretion in making the
judgement or order which is the end and purpose of the exercise of judicial power (P910)
- ATP: there is significant scope for the legislature to change rules of evidence without interfering
with the judiciarys power. CF: Haynes suggestion
- The procedure for determining the admission of evidence of illegal importation is affected, but
the judicial function of fact finding is unchanged and the judicial power to be exercised in
determining guilt remains unaffected (P911)
- "NB. Hayne J reasoning below
! (2) Was the application of s 15X only to identifiable cases offending Boilermakers L1?
- IE. Was this a Liyanage type case?
- Here, law could apply only to the finite number of cases in which the authorised controlled
operation for illegal importation of narcotic goods had occurred; the accused argues that s 15X
targets a limited group of offenders and by removing the Ridgeway obstacle to admission of
evidence tries to secure their conviction (interfering with legislature).
- Distinguishes Liyanage: that principle applies only to legislation properly seen as being
directed ad hominem (at particular people for a particular offence).This legislation was
completely different: Pt 1AB is directed to all cases of alleged offences against s 233B of the
Customs Act and associated offences, whether committed before or after Pt 1AB commenced
- It is erroneous to suggest that Div 3 seeks to secure the conviction of those charged! it
remains for the court in each case in which an alleged offender is charged ! to determine
whether the elements of the offence charged have been proved (P912).
! (3) Did part undermine integrity of the courts processes and public confidence in administration
of justice?
- " ATP: Paula suggests not running this argument; scope of (1) and (2)
- Court outright rejects this argument; the public confidence in the judiciary should not be a basis
for determining Constitutional validity; To hold that a courts opinion as to the effect of a law on
the public perception of the court is a criterion of the constitutional validity of the law, would be to
assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative
power (P913).
- It is the faithful adherence of the courts to the laws of parliament, however undesirable the
courts may think them to be, which guarantee public confidence in the integrity of the judicial
process and the protection of the courts repute. Therefore, once parliament has enacted s 15X,
it is the courts duty to apply it.
- NB difference here with persona designata exception in Boilermakers
Toohey, Gaudron, Gummow, Hayne JJ all held it valid also in separate judgements

*NB Reasoning Hayne J:
! Distinction between legislation dealing with questions of evidence and procedure and dealing with guilty
or innocence is concerned with substance not form, and is not always easy to draw.
! !EXAM. It is possible to imagine changes to evidence or procedure which would be so radical and so
pointed in their application to identified and identifiable cases then pending in the courts that
they could be seen, in substance, to deal with ultimate issues of guilt or innocence (EG. Liyanage,
might be of that kind) and therefore offend Boilermakers L1.
! !EXAM: Use (1) and (2) argument reasoning from majority; then draw on Hayne J to indicate that there
may be limits to the extent that the legislature can determine those rules of evidence and procedure.
! *Remember to always indicate that reasoning is coming from the majority, an individual judge, a
dissenting judge and accordingly the relative weight you think should be afforded to that proposition
and why.


Federalism aspect:
Anesti 47
(1) Chapter III Federal courts may not exercise judicial power that is not the judicial power of the
Wakim: Ch III courts cannot exercise non-federal (IE state) judicial power.

Separation of powers aspect:
(2) Chapter III courts cannot exercise forms of power that are non-judicial (or incidental thereto).
Thomas: Ch III courts cannot exercise non-judicial powers
NB. Incidental to non-judicial power includes court rules made by the court

Boilermakers Limb 2: Is this an attempt to confer power that is non-judicial on a chapter III court?
(1) Is a Chapter III court attempting to exercise power that is not FEDERAL Ch III power (state

Re Wakim; Ex Parte McNally (1999) 198 CLR 511
! Chapter III courts can only exercise Chapter III Cth judicial power, not the power of the states.
Facts: Under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (and partner legislation in all states),
there was an agreement that state and federal courts could hear each others matters. This enhanced the
efficiency of the judicial process. Conferring federal jurisdiction on state courts is fine due to s 77(iii) of the
CC. The issue was the provision referring state jurisdiction on the federal courts. This decision is
universally regarded as a terrible decision; what you do with ten years of the Federal Court decisions and
compensation paid?

Issue: can Commonwealth courts exercise the judicial powers of the states?

Decision: invalid for Boilermakers L2.

Reasoning McHugh J
! While it may be convenient for litigants to have federal courts that can hear all matters, the function of
the High Court is to give effect to the intentions of the drafters of the Constitution (P868).
! Ch III negative implication: By granting power to the Parliament of the Commonwealth to create
federal courts and by expressly stating the matters in respect of which the Parliament may confer
jurisdiction on those courts, Ch III impliedly forbids the conferring of any other jurisdiction on those
courts by the Commonwealth or the States (P868)
- The express statement of those matters would be pointless if the Parliament or the States
could disregard them (P868)
- Furthermore, it would be an extraordinary Constitutional result if the power to create a federal
court conferred by s 71 allowed the Cth to create courts that were curial vessels into which
could be poured unlimited jurisdiction by any polity except their creator (P869).
! Furthermore, you cannot be selective with which negative implications from Ch III you are willing to
accept: if the states can confer judicial power on federal courts, they can also confer non-judicial powers
on them, which we already know Ch III impliedly forbids (869).

Reasoning Gummow, Hayne JJ (Gleeson CJ and Gaudron J concurring):
! Affirming Boilermakers: Chap III is an exhaustive statement of the manner in which judicial power of
the Cth is or may be vested.
! The immediate question is whether the Cth parliament has any power to either consent to States
conferring jurisdiction on federal courts or itself to confer State judicial power on federal courts.
! If there is no such Cth power, regardless of whether states can give jurisdiction; the Cth cant take it.
! No source of such a power, including the implied nationhood power (P867). The legislation is invalid.

Reasoning Gleeson CJ
! The plaintiffs argued that Ch III does not limit the conferring of judicial power upon the federal judicature
by State Parliaments, with the consent of the Parliament of the Commonwealth (P868).
! Such legislation would expose the fragility of the concept of delimitation regarded by the majority in Re
Judiciary and Navigation Acts as underpinning the separation of powers (P868)

Reasoning Kirby J, Dissent (note his much more pragmatic approach):
! Differs in mode of constitutional interpretation: not about giving effect to the framers subjective
intention, but to allow the Constitution to meet the contemporary governmental needs of Australians.
Rigid and impractical outcomes are justified only by the clearest constitutional language which compel
them (P869).
! There is no reason of constitutional principle or policy to forbid the cross-vesting legislation.
Anesti 48
- A negative implication will only arise where it is manifest from the language used in the
provisions within Ch III or is logically or practically necessary for the preservation of the integrity
and structure of the Judicature envisaged in that Chapter (P870)
- The need for a system such as the cross-vesting legislation within the Australian Commonwealth
can scarcely be doubted
! No implied exclusion of the conferral of state jurisdiction
- On the contrary, the constitutional text expressly contemplates various forms of inter-
governmental co-operation ! This, then, is the constitutional setting in which the suggested
negative implications of Ch III must be evaluated (P870).
- There is no reason to then suggest that inter-jurisdictional jurisdiction in the judiciary was
- I acknowledge that statements exist which suggest that Ch III is an exhaustive and exclusive
statement of the judicial power that may be conferred upon a federal court from whatever
source. However, such statements were not essential to the decisions in question (P870) so
he is saying that the idea that Ch III is exhaustive is dicta only and not binding!
- It is unnecessary and undesirable to read such restrictions into the constitutional text (P871).
! Source of the federal parliament to consent conferral of state jurisdiction on federal courts:
- The combined power afforded by Constitution to federal parliament to create federal courts (s
71), and the express and implied power (s 51(xxxix) matters incidental)
- It is within that incidental power for the parliament to consent to the conferral of jurisdiction by
the legislature of another polity, at least when it is a state.
- The source of the judicial power in question lies outside the grant of judicial power to the federal
Parliament. But the consent to its exercise is reasonably incidental to that grant. It is reasonably
necessary an convenient for, and conducive to, the proper performance by the federal
Judicature of its functions as such (P872)
- Also the implied nationhood power

Boilermakers Limb 2: Is this an attempt to confer power that is non-judicial on a chapter III court?
Has a Ch III court been conferred with powers that appear to be non-judicial (ie control orders)?

Thomas v Mowbray [2007] HCA 33
! Div 104 of the Criminal Code (Cth): a court can make decision to impose control order if on the balance
of probabilities! each of the obligations, prohibitions and restrictions to be imposed! is reasonably
necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a
terrorist act
! NB. The control orders are made in open court, subject to the power to close the court under its
general powers, the rules of evidence apply, and the burden of proof is on the person seeking the
order, the subject is able to respond, the court has discretion as to what order will be made, and there
is an appeals process.
! Mowbray FM makes an (ex parte) interim control order against Thomas: placing upon him obligations
(5am curfew, report to police etc).
! Thomas challenges the validity of Div 104 of the Criminal Code on the basis that
(1) No head of power: Court rejects this s 51(vi)
(2) That it was inconsistent with Ch III of the Constitution because
(a) Power to make interim control order not a valid judicial power and
(b) Even if the power was judicial, the manner in which it was to be exercised was not judicial

Issue: was the making of control orders under the Criminal Code (Cth) judicial or non-judicial power?

Decision: judicial power
Reasoning Gleeson CJ:
! (a) Thomas argued that power to make ICO not judicial because court involved in creating new
rights and obligations on the basis of what person might do in future, rather than on the basis of
existing facts. Court says this can still be judicial.
- Principle: When power is not peculiarly power of the executive, legislature or judiciary, it is up to
the legislature to decide where it is vested (Boilermakers). If parliament decides to confer a
power on the judicial branch of government! the power should be exercised judicially and with
the independence and impartiality that characterise the judicial branch of government.
- A. The power to restrict or interfere with a persons liberty on the basis of what that person
might do in the future is not a non judicial power peculiar to the legislature or executive [15]
- Gleeson notes that there are many examples of the judiciary exercising the preventive justice
Anesti 49
sort of power in the ICO: for instance, in bail and apprehended violence orders.
- NB. To decide that these preventative justice powers are not exclusively within the province of
the executive would be contrary to our legal history and would not advance human rights (that
is, do you really think it is a better idea to afford this sort of power solely to the executive?)
! (b) Thomas argues restriction of liberty is penal in character. This power exists only as an
incident of the exclusively judicial function of adjudging and punishing criminal guilt
- This is a case about restrictions of liberty, not about detention.
- It is not correct to say that courts can only restrain liberty as an incident of adjudging and
punishing criminal guilt.
- NB. The courts powers to constrain liberty, outside of the context of adjudging and punishing
criminal guilt, is carefully confined: but here it is okay.
! (c) Thomas argues that the criteria that had to be applied to the court in determining whether to
make an ICO were not judicial. Court rejects this.
- Reasonably necessary that a terrorist act will be prevented. The judgement to be made is
complex (has the person the skills and resources to plan a terrorist act, and whether an order
would actually assist in preventing it). But the criteria of reasonableness is a common judicial
criteria across many bodies of law, and not too vague for proper judicial decision-making.
- There is nothing special about the subject of terrorism that renders it impossible for the
court to apply the reasonably necessary test here.
# NB. Gummow and Crennan JJ support.
! (d) Thomas argues that the laws required the court to act in a manner inconsistent with Ch III.
- The manner to exercise the power given to the court was not inconsistent with the
essential nature of a court or judicial power: rules of evidence apply, burden of proof on
appellant, involves cross-examination, the outcome of each case to be determined on its
individual merits, ordinary appeals process; and under the Act an *obligation to take account of
personal circumstances of persons to be affected by a control order (particularly soft)
# *NB. Giving attention to the particular circumstances of individual cases is a
characteristic that sometimes distinguishes judicial from administrative action.
# There is nothing to suggest that the issuing court is to act as a mere instrument of
government policy.
- NB. "See Crennan and Gummow JJ below on repugnancy in another fact set.

Gummow and Crennan JJ:
! R. Courts cannot make political assessments:
- A. But no violence is done to Ch III by the Criminal Code - the issuing court is concerned with a
matter arising under a law which was preceded by a political assessment on terrorism
(legislative; executive), but is not itself making or challenging that assessment.
! R. Legislation which requires a court exercising federal jurisdiction to depart to a significant
degree from the methods and standards which have HISTORICALLY characterised judicial
activities in the past may be repugnant to Ch III
- A. However, courts have indeed historically used preventative measures to protect the public
peace by means of court order (falling short of detention in the custody of the state).
- " EXAM: Can you launch this argument by distinguishing the facts in your scenario?
- " NB How we have support for this general proposition across the judgments, including
Kirby J.

*Kirby J (dissent):
! (i) The power being invested is not judicial power:
- Prediction of future is non-judicial: asks the courts to make a choice as to which deprivations of
liberty they think is necessary for the future protection of the public.
# ATP: Paula finds this unpersuasive; the Act provides for many points of consideration
that draws on the past conduct of the person subject to the ICO.
! (ii) Even if the power is judicial the legislation is incompatible with the way in which judicial
power can be exercised under Ch III of the Constitution. Offending features:
- Orders are ex parte
- Insufficient notice of confirmation hearing (48 hours)
- AFP can withhold evidence on national security grounds (uniform minimisation of rights; subject
of order may not be informed of particular evidence raised against them)
- ATP: Lack of alternative special advocate present in other systems?

Note: After this case, there is no prohibition on judges making determinations about the future
activities of someone. There was some suggestion after Kable that this might not be the case. In Fardon
Anesti 50
that was backed away from in state courts and in this case in federal courts. But if you have a determination
as to existing rights and responsibilities, it is almost always judicial. This is a very important element of
judicial power.

A person who happens to be a chapter III judge can be appointed to perform non-judicial functions provided
that the appointed addressed to judge in personal capacity and not to the court of which the person is a

Hilton: established doctrine
Grollo: affirms doctrine and elaborates the limit on PD re: constitutional compatibility
Wilson: further elucidates concept of compatibility

- (1) Is the power conferred on judge in his or her personal capacity (not member of court)?
# Use reasoning from Hilton and elsewhere
- (2) Is judges consent required?
# See Grollo
- (3) Is the conferral of power on the judge as PD compatible with the Constitution?
# Use the three tests of compatibility from Grollo
! "EXAM Clearly state principles; play with facts.
! "EXAM NB. Court (Gummow J) in Wainohu expressing extreme scepticism towards PD doctrine in light
of the separation of powers; but also *flag that Wainohu was about state courts.

Boilermakers Limb 2: Is this an attempt to confer power that is non-judicial on a chapter III court?
Persona Designata Exception: power can be conferred on a judge in their personal capacity, as long
as it is not of a nature that is inconsistent with their role as a Ch III judge

Hilton v Wells (1985) 157 CLR 57
! Authority for PD doctrine; can be used to determine whether PD issue exists
Facts: Federal Court judge was given the non-judicial power to issue telephone interception warrants (a
power not judicial nor ancillary nor incidental thereto) in the Telecommunications Interception Act 1979 (Cth)

! Power to issue warrant non-judicial power
! Power to issue such warrants has been conferred on judges of a Ch III court
! Was the conferral of non-judicial power on a Ch III court a breach of the second limb of the Boilermakers

Decision: (3:2) valid

Reasoning majority (Gibbs CJ, Wilson and Dawson JJ)
! Confirm PD principle: There is no necessary constitutional impediment which prevents [Parliament]
from conferring non-judicial power on a particular individual who happens to be a member of a court
! (1) Question of statutory construction to determine whether power being conferred on the particular
individual as PD, or the judge as a member of the court
- Presumption with terms: where the power is conferred on a court, there will ordinarily be a
strong presumption that the court as such is intended. Where the power is conferred on a judge,
rather than on a court, it will be a question whether the distinction was deliberate, and whether
the reference to judge rather than to court indicates that the power was intended to be
invested in the judge as an individual, who, because he is a judge, possesses the necessary
qualifications to exercise it (P876-7).
- Nature of the power relevant: If the power is judicial, it is likely that it is intended to be
exercisable by the judge (as a judge of the court). If purely administrative, and not incidental to
the exercise of judicial power, likely intended to be exercised by the judge as a designated
person (P877)
! A. Power conferred on judge as PD
- *Relevant factor: FCA Act and FCA rules that would apply to a judge of the court, do not apply
to issuance of warrants

Anesti 51
Mason and Deane JJ (dissent):
! Endorsed the persona designata doctrine, but held that test should be applied strictly: in this case the
function was imposed upon the judges as a function to be performed by them, as judges.
! *Relevant factor: Act imposed role on all judges of the Court. Lack of consent suggests function not PD.
- NB: This decision was criticised by Zines as reducing the Boilermakers principle to the barest
formality. Legislature picked up on these concerns and amended the act (see Grollo).

Grollo v Palmer (1995) 184 CLR 348
! There are limits to the PD doctrine
! Majority: a non-judicial function can only be invested in the judiciary with
- (1) consent and
- (2) if not incompatible with persona designatas judicial functions or responsibilities of the judiciary
(practicability; integrity; public confidence in judicial integrity)
! McHugh J: incompatibility rests heavily on public perception of judicial impartiality and independence
! Same legislation as Hilton v Wells, concerning power conferred on judges to issue telecommunications
warrants on any federal judge who consented to be appointed as an eligible judge.
! NB: the legislature has amended the legislation in light of the minority concerns from Hilton; have
installed a consent provision, and the Act now only refers to eligible judges; the judges are invited to
take on role of issuing phone warrants (30/35 agreed to be eligible judges).

! Power to issue warrant non-judicial power
! Power to issue such warrants has been conferred on judges of a Ch III court
! Was the conferral of non-judicial power on a Ch III court a breach of the second limb of the Boilermakers

Decision: (5:1) valid (McHugh J dissenting). Court affirmed that the power to issue warrants was
administrative, not judicial, but held the provisions valid pursuant to the persona designata doctrine 5:1.

Reasoning Brennan CJ, Deane, Dawson, Toohey JJ:
! Confirm PD principle, but with safeguards
! (1) No non-judicial function that is not incidental to a judicial function can be conferred without the
judges CONSENT
! (2) No function can be conferred that is INCOMPATIBLE either with the judges performance of his or
her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution
exercising judicial power (the incompatibility condition).
- Incompatibility means three things:
# (A) So permanent and complete a commitment to non-judicial functions that
performance of judicial functions is not practicable (IE. time-consuming, burdensome)
# (B) Non-judicial functions are such a capacity to perform judicial functions with integrity
is compromised (IE. Is or appears to be biased)
# (C) Non-judicial functions such that public confidence in judiciary as an institution or
judge is compromised
# "EXAM: Note that in Totani HCA (French CJ) expresses extreme suspicion towards
usefulness of public confidence to mediate real or apparent impartiality.
! BIAS RE: TYPE (2) INCOMPATIBILITY? The appellants argue that the judge may become biased,
because a judge may have made a decision on an administrative matter and then subsequently sit on
the hearing of the related case (and has to keep his role in issuing a warrant secret)
- The argument can be met by the adoption of an appropriate practice. A judge who has issued a
warrant in a particular matter can ensure that he or she does not sit on any case to which the
warrant relates (P879)
- NB Gummow J. Expresses disagreement with the majority on whether a judge should be
precluded from sitting on a case where their issue of an interception warrant is relevant (P881).
! PUBLIC CONFIDENCE RE: TYPE (3) INCOMPATIBILITY? The appellants also argue that the judiciary
engaging in administrative decisions undermines public confidence in judicial independence
- There is a major difference between judicial activities and decision-making in relation to
application for warrants: hear applications ex-parte, secrecy, *no reasons ("Wainohu), decision
to issue warrant is for all practical purposes an unreviewable in camera exercise of executive
- Furthermore, involving judges would in turn preserve public confidence in judiciary (CF
Anesti 52
- *It is precisely because of the clandestine nature of the interception warrants and the necessity
to use them in todays continuing battle against serious crime that an independent and impartial
authority (the judiciary) be authorised to make them.
- The professional experience and cast of mind of a judge is a desirable guarantee that the
appropriate balance will be kept between the law enforcement agencies on the one hand and
criminal suspects or suspected sources of information about crime on the other!
# "Kirby dissent in Wilson
! C. The power conferred under the amendment is not incompatible with judges status and independence
or exercise of power, and not inconsistent with maintenance of public confidence in the judiciary.

McHugh J (dissent): agrees with PD principles but test for public confidence is lower:
! In determining whether incompatibility exists, the appearance of independence and impartiality is as
important as its existence. (P881). The persona designata exception to the boilermakers rule must
therefore give way when the exercise of non-judicial functions! would give rise to a reasonable doubt
as to the [judges] impartiality.
! Application: incompatibility, because public confidence in judiciary is likely to be jeopardised
- (2) MANNER in which the power is exercised (+):
# Broad discretion (likely to assist)
# Authorisation ex parte and secretive
# No records, no reasons, no disclosure of judges ID, no judicial review
# McHugh believes that these features undermine public confidence (unlike the majority,
who believe that entrusting this power in the judiciary enhances public confidence)
because they put the judge in the uniform of the constable.
# Public confidence in the judiciary is contingent upon public perception of impartiality and
independence, diminished by these features (P883).
! C. The cumulative effect of the various features of the Act which render the role of judges as persona
designata incompatible with the concurrent exercise of federal judicial power.
- NB. Distinguishes the persona designata functions imposed by this act and judges being
members of other quasi-judicial bodies (EG. AAT and President of the AIRC - those bodies
involve open processes and are representative, and fall within the persona designata
exception) and with issuing search warrants (because they are brought to persons attention;
challengeable; does not involve the judge in investigative process; made on reasonable
grounds) (P884-5)

Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1
! Function of reporting inconsistent with judicial function; too closely related to the executive.
! Matthews J of the federal court given the power to conduct an inquiry into the aboriginal heritage issues
on Hindmarsh Island and produce a report, per Aboriginal and Torres Strait Islander Heritage Protection
Act 1984 (Cth).
! That report is a condition precedent to the minister declaring land protected/unprotected for the purposes
of developing land.
! The report covers interest affected by grant or refusal, indigenous significance of area, extent of area
that should be protected.

Issue: whether performance of the function of reporting to the Minister under s 10 is a function which is
constitutionally compatible with the holding of office as a judge appointed under CC Ch III (P885)
Given that:
! The power to make the report is not judicial power, and the
! Power to make the report has been conferred on a judge of a Ch III court, then
! Was the conferral of non-judicial power on a judge of a Ch III court a breach of the 2
limb of the
Boilermakers doctrine?

Decision: incompatible.

Reasoning Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ
! R: If an appointment to non-judicial office or performance of non-judicial function prejudices [the
capacity of the judge to perform their judicial duty independently] it is incompatible with the office and
function of a Ch III judge. And that is inconsistent with s 72 of the Constitution (P888)
! Majority Grotto incompatibility: does the function make exercise of judicial power (1) not
practicable? Undermine (2) integrity of judicial function? Undermine (3) public confidence in integrity?
Anesti 53
- I. would public confidence in judiciary be undermined by Mathews J acting as reporter?
- TO ANSWER: look at powers and functions conferred; not just a matter of form but look at the
circumstances in which the purported functions to be performed (think about the text in that
context; how is it really going to operate?)
! R. Three further questions for determining type (3) incompatibility of a non-judicial power
! "EXAM: ask all three questions (if you get a yes, incompatible; breach if BM L2)
- (1) Is the function an integral part of, or is closely connected with, the functions of the
Legislature or the Executive Government?
# No? No incompatibility arises.
- (2) Next, an answer must be given to the question whether the function is required to be
performed independently of any instruction, advice or wish of the Legislature or the Executive
government (other than a law)?! (P888)
# No? Breach of separation, incapable of repair by a judge.
# Yes? A further question arises!
- (3) If the function is one which must be performed independently of any non-judicial instruction,
advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III
judge to be exercised on political grounds that is, on grounds that are not confined by factors
expressly or impliedly prescribed by law? (P889)
# Yes? Pointing towards incompatibility
# NB. Relevant whether function is to be performed judicially (without bias; procedural)
# If the job is to be performed free of judicial manner, it is unlikely that the performance of
the function will be performed free of political influence or without the prospect of
exercising a political discretion (P889)
- To answer, also ask: is the person required to act in accordance with obligations of procedural
fairness? (Not determinative)
- EG. No incompatibility under this test for a judge who conducts a royal commission, a judge who
is a presidential member of the administrative appeals tribunal.
! A. Incompatibility
- (1) The function of the reporter under s 10 is an integral part of the Ministers exercise of power.
- (2) The performance of such a function by a judge places the judge firmly in the echelon of
# Liable to removal by the Minister before the report is made.
# No immunity when acting as a reporter
# Judge is like a ministerial advisor (P889).
# Assessing political or commercial interests of those affected by declaration (a political
# Reporter may be asked by minister to furnish legal advice
# The Act does not require the reporter to disregard ministerial instruction, advice or wish
in preparing the report. The report may be prepared so as to accord with ministerial
policy (P889).
# Although required to provide a hearing, not significant
- (3) If the Minister has no policy instruction, the reporter himself must make political decisions
(e.g. the extent of the area that should be protected).
# Not relevant: that Matthews would have conducted herself well, or that it was long-
standing practice of asking judges to do these kinds of roles
! C. BREACH & READ DOWN: The separation of the Ch II judge acting as a reporter for the Minister has
been breached, and the function of reporting is therefore incompatible with the holding of office as a Ch
III Judge and therefore the Act must be read down so the Minister could not nominate the judge as
a reporter and the judge could not accept (P890)

Kirby J (dissenting):
! Agrees with principles, but (CF majority) says can take into account long-standing practice in order to
determine incompatibility in regards to type (3) public confidence incompatibility.
! Different interpretation of ministers role under the Act: the whole process of preparing the report is done
by a reporter acting alone, and does not act like a Ministerial advisor.
! She is appointed because of her independence, skill and neutrality. Having such an independent person
appointed to this role enhances public confidence ("Grollo majority)

Anesti 54

CH III also places limits on state courts
! Although State Constitutions do not contemplate the separation of powers in the same manner that the
Commonwealth Constitution does, the separation of powers doctrine of the Commonwealth Constitution
places some limitations on State courts.
! R. State courts that can be conferred with federal jurisdiction (ie Supreme Court of Victoria) cannot be
vested with power that might undermine the role of those courts as repositories for federal judicial
power (Kable, McHugh J)
- IE. If a state court is vested with non-judicial functions, those non-judicial functions cannot be of a
nature that might lead an ordinary reasonable member of the public to conclude that the Court was
not independent of the executive government of a state (Kable, McHugh J)
- Kable: Incident of contravention
# Legislation directed at individual mentioned by name, onus of proof lowered to more likely than
not much lower than reasonable doubt usual in criminal law, can make interim detention
orders from which there is no right to appeal, almost negates rules of evidence, applications and
hearings can be ex parte, court is determining future rights and obligations.
- Wainohu
- Totani

! NB. When linking cases above, note the big difference with Cth courts; Paula says you cannot use
these cases wholesale for Ch III courts, but you can make some intelligent comments in reflection

Kable v DPP (NSW) (1996) 189 CLR 1
! The separation of judicial power in Ch III of the Cth Constitution places limitations on the legislative
competence of state legislatures with respect to state courts vested with federal jurisdiction.
! Namely, states cannot legislate in a way that would undermine the appearance of judicial independence
and impartiality (functioning as a de facto SoP)

! The Community Protection Act 1994 (NSW) specified that a court can make an order for a specified
person to be detained if it appears they will commit a serious act of violence.
! S 7: Supreme Court could make an interim detention order for 3 months, which could be extended; there
was no right of appeal against an interim detention order.
! It was aimed specifically at Gregory Wayne Kable (specified in s 3: convicted murderer soon to be
released from prison who was a feared threat to targeted people) who had been imprisoned via an order
made under the Act and, if the Act was found invalid, would have legal rights against the State in tort.

Issue: Are the laws constitutionally invalid on the basis of incompatibility with Ch III of the Federal

Decision: the Act was invalid (4:2)


McHugh J:
! There is nothing about SoP in the Vic state constitution that precludes parliament from vesting state
courts with other kinds of powers or vice versa (CF Cth, Boilermakers 2).
! But Cth Constitution does place some limits on state courts vested with federal jurisdiction:
- The Constitution restricts state courts by requiring and implying the continued existence of state
courts with the Supreme Court at the head of that system in ss 77 and 73 (P1128):
- !(Jump) State courts are therefore part of an integrated court system of State and federal
courts, and organs for the exercise of federal judicial power as well as State judicial power. *(NB
Common point on which judges agree)
- Therefore, no State or federal parliament can legislate in a way that might undermine the role of
those courts as repositories for federal judicial power. Thus, neither the parliament of NSW
nor the Parliament of the Cth can invest functions in the Supreme Court of New South
Wales that are incompatible with the exercise of federal judicial power (P1130)
! What does incompatibility mean?
- Undermining public confidence in judiciary: While nothing in Ch III prevents a state from
conferring non-judicial functions on a state supreme court in respect of non-federal matters,
those non-judicial functions cannot be of a nature that might lead an ordinary reasonable
Anesti 55
member of the public to conclude that the Court was not independent of the executive
government of a state (P1131)
- That is, State courts must be independent and appear to be independent of their own
States legislature and executive government as well as the federal legislature and
government (P1130)
- EG. Cannot pass laws giving State Supreme Court to determine government budget, because it
would undermined the appearance of judicial independence of a state court invested with federal
jurisdiction (P1131).
- *SUPREME COURT IDENTITY: In the case of the Supreme Court in particular, although non-
judicial functions may be vested in it, they cannot be so extensive or of such a nature that the
Supreme Court would lose its identity as a court (P1131).
- PERSONA DESIGNATA: This principle would also apply to any judges appointed to other
positions in their persona designata: State judges would be subject to the same restrictions as
federal judges (P1131)
! Therefore, although NSW has no entrenched doctrine of SoP and although the Cth doctrine of
SoP cannot apply to the state, in some situations the effect of Ch III of the Constitution may lead
to the same result as if the State had an enforceable doctrine of SoP.
! A. The legislation undermines public confidence in impartiality of the Supreme Court because:
- Ad hominem: it is directed squarely at an individual who is mentioned by name
- Future rights: object to detain Kable not for what he has done, but what gov fears he might do,
making the Supreme Court an instrument of legislative plan (P1134)..
- Low threshold for detention: Only criteria for detention is that the court be satisfied on
reasonable grounds that the appellant is more likely than not to commit violence (onus lower
than usual for penal detention - beyond reasonable doubt)
- Ex parte applications and hearings
- Also provides for the making of interim detention orders from which there is no right to appeal
- Goes a long way to negating the rules of evidence
- SC. The Act is thus far removed from the ordinary incidents of the judicial process. It
invests the Supreme Court with a jurisdiction that is purely executive in power (P1134).
Ordinary reasonable members of the public might reasonably have seen the [State] Act as
making the Supreme Court a party to and responsible for implementing the political decision
of the executive government ! [thus] public confidence in the impartial administration of the
judicial functions of the Supreme Court must inevitably be impaired. The Act therefore
infringed Ch III of the Constitution and was and is invalid (P1134-5)
! NB. Court acknowledges on P1133 that NSW parliament had the constitutional power to pass legislation
providing for the imprisonment of a particular individual regardless of the particular machinery (Minister,
public servant, tribunal) but the issue here was that the Act and its procedures compromised the
institutional impartiality of the Supreme Court (by essentially turning it into a executive instrument)
" See also other judges and commentary in CB

Dawson J (dissent):
! The Boilermakers rules drawn from the Cth constitution have no application to the judicature of a state
! Ch III is careful to omit any reference to state courts invested with federal jurisdiction under s 77(iii) and
that is because under State constitutions what is impermissible under Ch III is permissible.
! State courts must only meet the definition of a court; beyond this, the Cth must take courts as it
finds them (no definition; but consider French J in Totani)

Brennan CJ:
! No functions that are not judicial can be conferred by the Cth parliament on a state court; effectively
securing the separation of the state courts from the legislative and executive branches of the Cth, NOT
the state legislature or executive.

South Australia v Totani [2010] HCA 39
! Builds on Kable; identifies the source of the doctrine; and see in particular French J test
! SA anti-bikie laws are constitutionally invalid, as they are repugnant to the institutional integrity of a
state court in Ch III of the Cth Constitution
! Impartiality and independence is relevant; testing impartiality against public confidence a point of
dispute amongst court

! SA enacts Serious and Organised Crime (Control) Act 2008
! S 10(1): AG can make declaration in relation to organisation on two criteria; if AG satisfied that (a
Anesti 56
significant number or some influential) members associate for purposes of serious criminal activity OR
organisation represents a risk to public safety and order in this state.
- No reasons required
- S 10(3): AG may consider any information suggesting a link between the organisation and
serious criminal activity
! The declaration does not make an organisation or membership unlawful, but the Commissioner of Police
is given the power to seek a control order from the Magistrates Court of SA against the person the
basis of their connection with the declared organisation
- S 14(1): In that instance, the Court MUST make a control order if satisfied that the individual is a
member of a declared organisation.
# NB. Definition of member is broad; but note how Heydon J characterises the definition
- That control order MUST prohibit a person from associating with other members of declared
organisations and possessing articles of a kind whose possession without lawful excuse is an
offence under the Summary Offences Act (which itself has only lenient punishments)
! Finks subject of AG declaration; and a control order made against a specific individual

Issue: does s 14(1) of the SOCC Act impair the institutional integrity of the Magistrates Court of South
Australia, contrary to the requirements of Chapter III of the Constitution?

Decision: laws unconstitutional and appeal dismissed 6:1 (Heydon dissenting)

French CJ:
! The text and structure of Ch III of the Constitution postulate an integrated Australian court system for the
exercise of the judicial power of the Cth, with no distinction between State courts and federal courts
created by parliament with regards to the judicial power of the Cth. Therefore:
(1) TEST: State legislature cannot confer upon a court of a state a function which substantially
impairs its institutional integrity and is therefore incompatible with its role as a repository of
federal jurisdiction
(2) State legislation impairs the institutional integrity of a court if it confers upon it a function repugnant
or incompatible with the exercise of the judicial power of the Cth.
(3) The institutional integrity of a court requires both the reality and appearance of independence
and impartiality
a. Resonate with McHughs incompatibility in Kable, until!
b. However, public confidence is not the barometer of impartiality: It is not necessary!
to mediate the constitutional assumption of actual or apparent independence and impartiality
through its effect upon public confidence of the courts; a difficult criterion (P6)
i. NB. What are the implications for the persona designata doctrine?
c. NB. Parliament (state or Cth) may pass a law requiring a court exercising federal jurisdiction
to make specified orders if some conditions are met, even if satisfaction of such conditions
depends on decisions of executive government; but not to make laws that (either in reality or
appearance) subject courts to executive direction in the content of judicial decisions (P6)
(4) The principles underlying the majority judgments in Kable and further expounded in the decisions of
this court which have followed after Kable to do not constitute a[n exhaustive] codification of the
limits of state legislative power with respect to state courts. Each case in which the Kable doctrine
is invoked with require consideration of the impugned legislation!
(5) The risk of finding that a law is inconsistent with the limitations imposed by Ch III, protective of the
institutional integrity of the courts, is particularly significant where the law impairs the reality or
appearance of the decisional independence of the court.
! A. Does s 14(1) require the Magistrates Court of SA to do something which is not consistent with
the assumption of independence and impartiality of courts underlying Ch III of the Constitution?
- Removal of the courts discretion: the court must make a control order
- The court does not assess whether the person subject of the CO has committed a crime
- The court does not review evidence regarding criminal conduct underlying the declaration
- In making a CO the Court is involved in a serious infringement on individual and others conduct
- Not relevant (not enough) re impairs institutional integrity:
# That legislation provides for an adjudicative process
# That Court needs to be satisfied that a declaration exists and that a person is a member
of the organisation
# That the defendant may challenge the declaration
# Discretion afforded to court in regards to the content of the order
- *NB Heydon and Kiefel disagreement about the extent of the discretion
# Balance of probability standard used: not determinative or even marginally relevant
Anesti 57
- Section 14(1) represents a substantial recruitment of the judicial function of the MC to an
essentially executive process. It gives the neutral colour of judicial decision to what will be,
for the most part in most cases, the result of executive action to apply special restraints to
particular individuals identified by the executive as meriting application for a control order (that
is, to implement decisions of the executive in a manner incompatible with/repugnant to the
Courts institutional integrity) (P8)
! C. In the exercise of the function conferred by s 14(1), the SAMC loses one of its essential
characteristics as a court, namely the appearance of independence of impartiality. S 14(1) is therefore

Hayne J: " Use to illustrate the differences between the legislation here and that in Thomas
! A particularly relevant factor re incompatibility of 14(1): The court must make the order without any
inquiry for itself about what the subject of the order has done/may do, or what the executive has decided
about what the subject has done/may do, upon executive application
a. CF. Thomas v Mowbray: Act required court to make order only if satisfied obligations
reasonably necessary; the particular subject must have engaged in particular past
conduct, or order have identified consequence.
! The legislation here was different:
- Control order imposed without judicial (or exec) determination that defendant has or will engage
in criminal conduct; simply that the organisation to which he belongs is a declared one.
- Control order will preclude association with others for who has been no judicial determination
! C. S 14(1) permits the Executive to enlist the MC to create new norms of behaviour for those particular
members identified by the Executive as meriting application for a control order! not for what they have
done or may do, but because the Executive chosen them. That function is repugnant to the institutional
integrity of the Court that is required to perform it. S 1491) is invalid.

Heydon J (dissent):
! NB. The MCs contention that the MC is required to issue a control order without inquiring into what the
defendant has done is flawed: they inquire into at least one thing the defendant has done become a
member of a declared organisation (criminal gang) (P15).
! Furthermore, while the court is under a duty to make a control order against a member, this duty is
negated by the discretion given in the form of the court order through the concluding words of s
14(5)(b)(i) (must prohibit association except as may be specified in the order). It is then open to the MC
to conclude that no prohibition on a defendants freedom of association! is warranted if there is
negligible risk of serious criminal activity per s 14(6), taking into account the defendants history of past
behaviour amongst other factors.
! NB. Kiefel J: disagrees strongly with Heydon J: The matters in s 14(6) could not be applied to alter or
negate the prohibition required by s 14(5)(b)! and could only apply to further prohibitions sought by the
Commissioner of police.

Wainohu v New South Wales [2011] HCA 24
! Again building on Kable, but here question of PD
! Bringing the Kable doctrine principles (significant impairment of constitutional integrity of court) into the
context of persona designata, in a way slightly different to (but still resonating with the overarching
question of) French CJ in Totani.
! The absence of the judge having to give reasons was critical
! "EXAM: Court provides different set of principles when dealing with persona designata in state
court; and do not replace the persona designata currently in place for Ch III courts; but Paula
flags that in light of these principles (placing emphasis on the Gaudron J majority judgment from
Wilson), it may be time for the Court to revisit the persona designata doctrine for Ch III courts.

! Crimes (Criminal Organisation Control) Act 2009 (NSW): Similar regime to that in Totani
! First (declaration) stage (s 13):
- Except that a declaration of an organisation by an eligible judge of the Supreme Court (not the
executive) at the first stage: the court therefore deal with the issue as one of the judge acting as
PD (*Unclear from French CJ and Kiefel J in the first stage)
- *Procedures for making declaration included s 13(2): judge not required to provide any
grounds or reasons for making the declaration (unless requested to do so by Ombudsman)
! Second (control order) stage: Supreme Court may make a control order against a member of the
declared organisation

Anesti 58
Issue: is the Act constitutionally invalid for conferring on judge of Supreme Court functions not consistent
with Ch III?

"EXAM Reasoning (Gummow, Hayne, Crennan and Bell JJ):
! Appointment of judicial officer persona designata
! Adopt Gaudron J (NOT majority) dicta from Wilson about persona designata:
- First, pubic confidence in judicial office depends on their acting openly, impartially and
in accordance with fair and proper procedures for the purpose of determining the matter
in issue! and on the reputation of the courts for acting in accordance with that process
- Second, exercise of power carried out independently and in public resulting in a report or
other outcome which can be assessed according to its own terms will not be one that
causes concern to the reputation of the judiciary
- Third, there may be some functions that do not satisfy these criteria but which can still be
justified because they have been historically exercise by judges in their personal capacity
- NB. The principle in Kable and Wilson applies throughout the Court hierarchy, because the
Constitution does not permit of different grades or qualities of justice (P23).
! Application:
- The first two principles are decisive.
- Here, no obligation to give grounds or reasons under s 13(2) for making a declaration.
- Therefore, no possibility for judicial review.
- Provision therefore utilises confidence in impartial, reasoned and public decision-making of
eligible judges in the daily performance of their offices as members of the Supreme Court to
support inscrutable decision-making under s 9 and s 12
- C. This is incompatible with the institutional integrity of the Supreme Court
# NB. To reach this conclusion here were drawing on the French CJ overarching question
in Totani; but Paula flags that here the integrity of the court is being undermined for
lack of option of judicial review, not by undermining the perception of impartiality that
was the issue in Totani)

Reasoning (French CJ, Kiefel J):
*NB. Paula expressing doubt over using this judgment; do not deal with issue as a PD one
! R. A state legislature, [because there is no state Constitutional SoP], can confer administrative
functions on a court of the state or on judges of the court.
- BUT: It cannot confer administrative functions on a court which are incompatible with the
courts essential or defining characteristics as a court and thereby with its place in the
national integrated system for which Ch III of the Constitution provides. Nor, as is explained in
these reasons, can a state legislature confer upon judges of a State court administrative
functions which substantially impair its essential and defining characteristics as a court.
! A. This Act effects such an impairment
- It provides that the Supreme Courts jurisdiction to make control orders against members of an
organisation will be enlivened by a decision of a judge of the Court, after an adversarial
proceeding, on complex and important matters of fact, for which the Act provides no reasons
need to be given.
- Act creates impression of connection between non-judicial function and following exercise of
judicial power which may affect perceptions of the judge, and the court of which she is a
member, to the detriment of the court.
! The essential characteristics of a court: public explanation of reasons for final decisions as an
incident of the judicial process and at the heart of the judicial function: the judicial ascertainment of
facts, identification of the rules of law, the application of those rules to the facts and the exercise of any
relevant judicial discretion (P11).
! The functions of the eligible judge under the Act
- Principal function of eligible judge is to hear and determine applications for Pt 2 declarations:
# Proceedings adversarial
# Involving determination of issues of law and fact
# Lengthy public hearings
# Rules of evidence do not apply
# Judge not required to provide reasons for decisions
# No right of revocation of declaration unless judge dead or absent
# No appeal against judges decision (apart for jurisdictional error)
- The Act creates a connection between the non-judicial function conferred upon an
eligible judge by Pt 2 of the Act and the exercise of jurisdiction by the Supreme Court
Anesti 59
under Pt 3 of the Act. This has the consequence that a judge of the Court performs a function
integral to the exercise of jurisdiction by the Court, but lacks the duty to provide reasons for that
decision. The appearance of a judge making a declaration is thereby created whilst the giving of
reasons, a hallmark of the office is denied. These features cannot but affect perceptions of
the role of a judge of the court, to the detriment of the court.

Anesti 60



Commonwealth Constitution
! 51 (ii): placita for taxation, but not so as to discriminate between States or parts of states (*not Cth exclusive)
! 53: Laws appropriating money or imposing tax cannot originate in the Senate. Senate also cannot amend laws, but
can return bills to House of Reps requesting they amend House of Reps then have discretion as to whether to
amend or not.
! 54: Appropriation bills must deal only with appropriation, not other things.
! 55: Laws imposing tax must deal only with taxation and only with one subject matter of taxation
! 56: Bills for appropriation of revenue or moneys can only be passed if the purpose of the appropriation has been
recommended by the GG to the house in the same session.
! Ch IV: Finance and Trade (85-105A)
- 90: takes away the states ability to gain revenue from duties of customs and excise
- 92: trade and commerce absolutely free between states
- 96: Allows Commonwealth to distribute money to the states on such terms and considerations as the
parliament thinks fit. IE. We are going to give you this money, if you do THIS with it
- s 99. Cth shall not, by any law or regulation of trade, give preference to one State or part thereof (*different
from grants power)
- s 114: Cth cannot tax State property and vice versa

The history on the s 96 grants power
! There are hardly any limitations on the s 96 legislative grants power: on such terms and conditions as
the Cth parliament thinks fit.
- Current practise is that members of the executive are permitted to negotiate the terms of these
agreements, rather than the conditions having to be expressly included in the statute.
- Courts have not squarely tackled the question of whether this is appropriate practise
! In reality, states are heavily dependant on Commonwealth for revenue; through s 96 of the Constitution
- Which is why most modern challenges to Cth grants are usually by third parties, not states
! History: Cth during WWII wanted to increase income taxes to fund the war; and so used s 96 to pass
legislation effectively imposing a uniform system of income tax across Australia, so that the Cth became
the sole collector;
- The uniform tax scheme comprised of four Acts, listed in the First Uniform Tax Case below
- All of these Acts were held valid by the High Court in First Uniform Tax Case
! There can be specific and general grants

South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case)
! NB. Court assesses the validity of each Act separately (rather than as a scheme)
! Few limits on s 96 grants power; and discrimination is not one of them

What we learn about s 96:
! Does not matter if Cth creates the need for the grant under s 96
! A grant law cannot coerce states to abandon or deprive states of their power, but it can provide an
inducement for states to abstain from exercising their powers
! This is so even if the conditions are such that states in effect have no choice but to accept the
inducement (temptation is not coercion), or the Cth creates the need for a grant.
! There is no prohibition against state-based discrimination under s 96 (Court affirming the Moran case);
however, note the PC warning that s 96 not be used in a colourable way
! In 1942 during WWII, the Commonwealth government needed extra revenue for the war effort. At the
time, income taxes were levied at both a state and federal level. The Commonwealth government
wanted to become the sole income tax collector, with grants given back to the states to compensate for
the lost revenue. As s 51(ii) only allows the Commonwealth to impose federal taxation for federal
purposes, it could not cover the field of taxation with any law. Nevertheless, the Commonwealth
introduced a uniform income tax through an intricate scheme comprising of 4 pieces of legislation.

! The Income Tax Act 1942: Imposed a tax on incomes that was slightly higher than the existing tax paid
by both State and Commonwealth combined.
- This made it politically impossible for states to impose their own income taxes
Anesti 61
! The States Grants Act 1942: Provided a grant for each state equal to what it would have raised on its
own income tax, on the condition that it did not raise its own income tax.
- Asked the States to vacate the field; by offering money in form of grant for doing so
! S 221 of the Income Tax Assessment Act 1942: Required taxpayers to meet their Commonwealth tax
liabilities before state tax liabilities, so if one couldnt be paid, State would miss out.
! The Income Tax (Wartime Arrangements) Act 1942 required that the states transfer to the
Commonwealth all state staff, offices, furniture and records used to collect income tax.
- This was not part of Second Uniform Tax Case

Decision: valid.

Reasoning Latham CJ:
! NB. The states contend that the overall legislative scheme is invalid for pursuing an unlawful object (to
exclude the states from the sphere of income tax legislation), but the Court instead prefers to look at
each Act individually to determine their validity
! (a) The Income Tax Act
- Argued: level of taxation is too high
- There is nothing preventing the Cth imposing so high a tax in relation to a particular
subject matter that there is no room for any additional State impost.
! (b) The Grants Act:
- Argued: s 96 cannot be used where the Cth itself creates the need for the grant
# A s 96 grant is valid even if the Cth creates the need for a grant.
- Argued: law invalid under s 96 because amounted to a destruction of the essential
functions/capacity of states (to tax)
# !While the general proposition that s 96 cannot be used to destroy the essential
functions of a state is true, this is not the case here:
- Coercive? The Act does not require state parliaments to abdicate their income
tax power in order to receive a grant: states cannot do this, nor can Cth.
- Deprivation? The Act does not purport to deprive the State Parliament of the
power to impose an income tax: the Cth cannot do this.
# Inducement okay: The Grants Act offers inducement to state parliaments not to
exercise a power (to tax income), the continued existence of which is recognised. The
states may or may not yield to this inducement, but there is no legal compulsion to yield.
# The Commonwealth may properly induce a State to exercise its powers! by
offering a money grant. So also the Commonwealth may properly induce a State
by the same means to abstain from exercising its powers (P447)
# This is so even if the inducement practically amounts to coercion (state cannot
politically or economically refuse). Temptation is not compulsion.
! Indirect effect of laws is irrelevant: The true nature of a law is to be ascertained based on the rights
and obligations that it creates, abolishes or regulates; not in the indirect consequential effects, and
regardless of whether those consequences could be achieved directly by the Cth legislature.
! C. Although the Commonwealth Parliament cannot validly pass laws limiting the functions of State
parliaments and vice versa the Tax Act and the Grants Act are not invalid on that ground. They do
not give any command or impose any prohibition with respect to the exercise of any State power,
legislative or other (P449)
! A s 96 Grant can discriminate between states
- Grants Act: there is no prohibition against discrimination when granting financial assistance to
states under s 96. The Grants Act draws distinctions between states, but this is valid.
- *It is different with a tax Act. However, the Income Tax Act here does not discriminate. It
imposes the same tax at the same rates upon all persons in all states throughout Australia. It
does not discriminate between States, or even refer to any state
! Implications:
- Cth can use grants to force states into a position of financial (and thus general) dependence
- The Court cannot do anything about this; it is a matter for the political arena

Starke J reasoning (dissent):
! It is beyond the Cth or States power to abolish the other; directly or indirectly, de jure or de facto.
! NB. notes on P452: how important was the fact that this was in 1942, during WIII, to the majority

Victoria v Commonwealth (1957) 99 CLR 575 (Second Uniform Tax Case)
! Give a very broad reading to s 96: the only restriction is that the grant cannot be directly coercive
Anesti 62
! Court endorsed Vic v Cth (Federal Roads Case): on acceptable features of a grant;
! (1) binds state to apply money specifically to a Cth-defined object;
! (2) the object is outside the power of the Cth;
! (3) payments are left to the discretion of the Cth Minister and
! (4) money is provided as the Cths contribution for an object for which the State will also contribute
! Grant conditions can include that the State make payments to be made to third parties
! Grants can be made for purposes other than supplementing the state treasury
! The War Act was repealed, and NSW and Vic seek to challenge the validity of the scheme.
! S 221 of the Income Tax Assessment Act 1942: required taxpayers to meet their Commonwealth tax
liabilities before state tax liabilities, so if one couldnt be paid, State would miss out.

Decision/Ratio: Scheme valid. One section of the new Act is found invalid, but this does not affect the
overall effectiveness of the scheme.

Reasoning (Dixon J) on s 96:
! S 96 susceptible of a very wide construction in which few if any restrictions can be implied (P455)
! The only restriction is that s 96 not be used coercively: it is but a power to make grants of money
and to impose conditions on the grant, there being no power of course to compel acceptance of the
grant and with it the accompanying term or condition (P455)
- It is not a power to make laws with respect to a general subject matter!
! The possibilities of s 96 are very broad: endorse holding in Moran on acceptable features of a grant:
- (1) the State is bound to apply the money specifically to an object that has been defined,
- (2) the object is outside the powers of the Commonwealth,
- (3) the payments are left to the discretion of the Commonwealth Minister,
- (4) the money is provided as the Commonwealths contribution to an object for which the State is
also to contribute funds (P456)
! S 96 allows for discrimination (reinforcing First Uniform Tax Case)

S 221(1)(a) of the Income Tax Assessment Act 1942 was Invalid: not a law with respect to s 51(ii)
! To support s 221(1)(a) it must be said that it is incidental to the s 51(ii) federal taxation power to forbid
the subjects of a State to pay the tax imposed by the State until that imposed upon them by the
Commonwealth is paid!
! A. This appears to me to go beyond any true conception of what is incidental to s 51(ii) and goes
beyond the Cths power. Therefore, s 221(1) of the Income Tax Act is invalid.

Attorney General (Vic (Ex Rel Black) v Commonwealth (1981) 146 CLR 559 (DOGS Case)
! The state can be a conduit for a grant: there is no requirement that the state should be the instigator
or even the party to initiation of the project that is funded by the s 96 grant.
! Limitation: s 96 is subject to s 116, and grants cannot establish a national religion
! Cth legislation granting financial assistance to States, paid to government and non-government schools
(including those run by religious bodies such as the Catholic Church), to finance educational
! Specifically challenged the use of s 96: because the States were required to spend the grants in certain
ways, it was argued that they were acting merely as conduits between the Cth and the schools and
received no financial assistance themselves; the law was therefore beyond s 96 power.

Issue: was the legislation a valid law with respect to s 96, given that the states were effectively conduits?

Decision: legislation valid per s 96; but subject to s 116

! *S 96 grants subject to s 116: the Cth cannot use grants to establish a state religion to infringe s 116
! While legislation virtually disregards the states, it is a valid law per s 96
- It is not necessary that the grant should benefit the State Treasure directly, or that the purpose
of the grant should be within the express legislative power of the Commonwealth, or that the
State should be the instigator or even a party to the initiation of the scheme (P463)
! The legislation does extend financial assistance to the States
- The states have assumed governmental responsibility for all primary and secondary education
within their bounds! The non-government school system affords relief directly to the state
Anesti 63
treasury! There can be no doubt that Cth grants to non-government schools within a State
must have the effect of easing the claim that such schools would otherwise make upon state
financial resources

Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735
! Even where a s 96 Grants power is used in conjunction with a general tax to effectively tax a single state
or otherwise discriminate between states in respect to taxation, it will still be a valid law.
! States cant levy an excise on flour millers, so the Commonwealth implemented a federal excise on flour
millers that went into the consolidated revenue fund. Under s 96 the Commonwealth made grants back
to the states on the condition that it was to benefit wheat growers (following Federal Roads Case, this is
a valid use of the power).
! But the grant back to Tasmania which had no wheat growers - was different. The money just went
back to the flour millers (Tasmania passed the Tax Relief Act 1938 (Tas) for the flour tax to be refunded
to taxpayers and passed on to consumers)
! The ultimate effect of the scheme was that all states except Tasmania were taxed.
! The defendant was being sued for unpaid tax and argued that the relevant legislation was invalid for
discriminating between the States in contravention of s 51(ii) of the Constitution.

Issue: 4:1 legislation valid (Evatt J dissenting)
NB. Where the majority follows the First Uniform Tax Case approach and looks at each Act
individually, Evatt J prefers to consider the scheme as a whole. This may be because they both
ultimately disagree over the purpose of and capacity of s 96.

Reasoning Latham CJ:
! The prohibition against discrimination in 51(ii) only applies to tax legislation, not grants:
- Unless the Federal taxation legislation itself discriminates between States or parts of States, it is
not rendered invalid by the condition attached to s 51(ii) (P469)
- A. The special treatment given to Tasmania does not arise from any discrimination in any law
passed by the Federal Parliament with respect to taxation. The Wheat Assistance Act is not an
Act with respect to taxation. It is an Act appropriating money! There is no provision in the
Constitution to the effect that appropriation Acts must not discriminate between States or that
Federal expenditure in the several States must be equal in any sense. (P469)
! The discrimination in favour of Tasmania really arises from the Tasmanian legislation
- S 51(ii) obviously does not apply to the Parliament of Tasmania.
- CF Evatt: It is erroneous to say that the taxation discrimination is the result of the Tas Act
! Purpose of s 96: Section 96 is a means provided by the Constitution which enables the Commonwealth
Parliament, when it thinks proper, to adjust inequalities between States which may arise from the
application of uniform non-discriminating Federal laws to States which vary in development and wealth
(IE. Where equal laws would produce unequal results) (P470)

Evatt J (dissenting):
! In my opinion there has been a very thinly disguised, almost a patent, breach of the provision against
discrimination [s 51(ii)]! which practically nullifies a great constitutional safeguard inserted to prevent
differential treatment of Commonwealth taxpayers solely by reference to their connection or relationship
to a particular State (P470-1)
! S 96 cannot be employed for the very purpose of nullifying constitutional guarantees contained
elsewhere in the constitution (P471)
! There being an infringement of s 51(ii), the Acts that making up the entire scheme are invalid.

WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales [1940] AC 838
! Privy Council appeal from above disagreeing with the majority reasoning: but hold that so long as the
laws in a scheme do not each do anything prohibited by the Constitution (IE that the tax Act does not
itself discriminate between states contra s 51(ii)) and the overall essence of the scheme is not
discriminatory or colourable, it will be valid (especially where it is being used to equalise a burden by
using a combination of powers each intra vires the CC)

Reasoning (majority):
! Contra HCA majority: analysis of scheme not individual Acts, and focus on both the substance
and effect of the Acts to determine whether they infringe the terms of s 51(ii).
- It is impossible to separate such an Appropriation or Tax Assessment Act from the Taxation Act
Anesti 64
in considering the effect of s 51(ii), or to turn a blind eye to the real substance and effect of
Acts passed by the Federal Parliament at or about the same time, if it appears clear from a
consideration of all the Commonwealth Acts that the essence of the taxation is
discriminatory (P472-3)
! The various Cth and State Acts, if considered together as part of an organic whole, contain
nothing which is prohibited in the Constitution (P473).
- S 51(ii) prohibits discrimination in taxing, but says nothing about equality or burden; while s 96 is
unrestricted by any prohibitions of discrimination: s 96 is not subject to s 51(ii).
- A. The scheme of the Acts work to impose a taxation (without discriminating between states in
taxing legislation) while also equalising the burden of the legislation by diminishing the
special burden on Tasmania (which is brought about by an exercise of s 96 power, which does
not itself prohibit discrimination).
- Nothing in s 51 prevents Cth from passing measures together with States to achieve a fair
distribution of the burden of taxation, provided always that the Act imposing taxes does not itself
discriminate in any way between States or parts of States, and the Act granting pecuniary
assistance to a particular State is in its purpose and substance unobjectionable (P473).
! Clarify that Commonwealth Parliament cannot exercise its powers under s 96 with a complete
disregard of the prohibition contained in s 51(ii), or so as altogether to nullify that constitutional
safeguard (P473)
- Cases may be imagined in which a purported exercise of the power to grant financial assistance
under s 96 would be merely colourable. Under the guise or pretence of assisting a State and
money, the real substance and purpose of an Act might simply be to effect discrimination in
regard to taxation. Such an Act might well be ultra vires the Cth parliament (P473).
- This was not the case here; there was no grounds for suggesting that the sums being paid to
Tasmania under s 14 of the Cth Wheat Industry Assistance Act were not in the nature of genuine
financial assistance to the State paid for the purpose of equalising a taxation burden on

After Moran:
There has been a shift in the HCAs approach, that it is now more likely to consider substance of law rather
than form, as can be seen through the excise cases. However, there are no really clear decisions.

ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 (9 December 2009)
! S 96 must be read subject to s 51(xxxi): a grant under s 96 which requires an acquisition of property
must be on just terms. The Cth cannot require or make the acquisition of property except on just terms.
! Cth and several state governments make National Water Initiative (NWI) agreement
! Cth passes NWC Act 2004 (Cth), which permits the Minister administering Act to award financial
assistance! to particular water resource projects and empowers the CEO of the National Water
Commission to administer that financial assistance.
! The Minister makes a Funding Agreement with NSW and the Cth/NWC in 2005:
- Provides that Cth will provide funding to NSW on the condition that NSW would convert all
bore water licenses in a particular area to more restrictive water licenses under the NSW
Water Management Act 2000.
- The Agreement also provided for ex gratia compensation to affected licence holders (*not
argued to be just terms).
! The plaintiffs were NSW farmers, now limited by the new restrictive water licenses. They challenged the
validity of the NWC Act on the basis that it contravened s 51(xxxi) acquisition of property on just terms;
the argument being that s 96 grants where they require the acquisition of property must also acquire
that property on just terms.
! IE that the Cth was effectively obtaining the farmers property (the water) through the s 96 grants power,
and therefore effectively obtaining property without just compensation to the farmers in contravention of
s 51(xxxi)

Decision/Ratio: 6:1 valid

French CJ, Gummow and Crennan JJ:
! S 96 grants must comply with s 51(xxxi):
- While the executive can enter into governmental agreements with States using joint legislative
action, the means by which it is to be achieved [must be] consistent with and not contravene the
Constitution (Mason J in R v Hughes) (P343)
Anesti 65
- It is settled since TPC v Tooth that s 51(xxxi) is not confined to the acquisition of property
by the Cth or its instrumentalities. S 51(xxxi) a very great constitutional safeguard, a
Constitutional guarantee of just terms!. and is to be given the liberal construction appropriate
to such a constitutional provision. That liberal construction involves looking beyond matters of
legal form and to the practical effect of the law in question.
! C. The legislative power conferred by s 96 and s 51(xxxvi) does not extend to the grant of
financial assistance to a State on terms and conditions requiring the State to acquire property on
other than just terms
! Nationhood power wouldnt help: If s 96 was qualified by s 51(xxxi), an agreement to facilitate such an
unauthorised grant would not be supported by s 61 (the Cth executive did not have power to enter the
Funding Agreement)
! *NB: Court then goes on to consider whether the replacement of the plaintiffs bore licenses under the
Act involved the acquisition of property other than on just terms within the meaning of s 51(xxxi); they
found that it did not, (Heydon J dissenting), mainly because they held that water was not property in
the meaning of s 51(xxxi)

! If two express limitations apply (ss 116 and s 51(xxxi)), what other express and implied limitations apply
to the s 96 grants power?
! For instance, can the Cth make a grant per s 96 that would infringe the implied freedom of political

Anesti 66

S 90 of the Constitution provides that (shortly after Federation) the Cth has exclusive power to impose
duties of excise, therefore creating a limit on state legislative power to tax.

s 90: ! the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production
or export of goods, shall become exclusive
NB. Duties of customs: tax on import or export of goods are uncontroversial
s 114: A State shall not, without the consent of the Parliament of the Commonwealth! impose any tax on property of
any kind belonging to the Commonwealth!

What is a duty of excise?

(1) A kind of tax: it is first necessary to determine whether an alleged duty of excise is a tax.
EXAM: An excise must be a tax (Harper), however courts have not always addressed this question directly,
and it is therefore useful to directly address the question of whether the charge is a duty of excise.

Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (for noting only)
! Duty of excise must be a tax: noting the flexibility of the definition in Air Caledonie
! Under Tasmanian legislation, there is a set fee payable for a license to take abalone from waters (taking
abalone without a license is prohibited).
! The plaintiff abalone farmer owes these fees, but challenges the constitutional validity of the state
regulations on the basis that they are a duty of excise made by the State, and therefore invalid under s
90 of the Constitution.

Held: the regulations were constitutionally valid

Reasoning (Brennan J):
! Substance over form: The fact that the amount payable is in the form of a license fee does not
preclude the classification of that amount as a tax.
! TEST: a tax is a compulsory exaction of money by a public authority for public purposes
enforceable by law, and! not a payment for services rendered (Latham CJ in Matthews v Chicory
Marketing Board)
- Other negative attributes: *charge for use of acquisition of property (here), fines and penalties, and
licence fees.
- ATP: if one of these negative factors is present, it is unlikely the impost/charge is a tax.
! A. A state prohibiting the public from exploiting a limited resource and awarding the right to exploit the
resource to a limited extent confers on those licensees a privilege analogous to a profit a prendre. The
fee paid to obtain that privilege is analogous to a fee paid for a profit a prendre. Such a fee, even if it
has the positive attributes of a tax listed in Air Caledonie, does not bear the character of a tax.
! C. A fee which a payable to a State or State authority which is not a tax cannot be a duty of excise.
Therefore, the amounts payable under the regulations are not duties of excise, and valid per s 90.

(2) Is that tax a duty of excise?

The big question: when is a tax on, in respect of or sufficiently connected to goods?
Peterswald 1904: excise is a tax upon goods either in relation to quantity or value when produced or
manufactured, and not in the sense of a direct or personal tax (P548), and therefore only:
! (1) Only taxes on locally produced goods,
! (2) Imposed only at the point of production or manufacture and
! (3) Only where the method of calculation is the quantity or value of the goods.

Matthews v Chicory Marketing Board 1938:
! A tax to be a duty of excise even though it bore no direct relation to the quantity or value of the
goods produced (and in obiter an excise tax can be at any stage of consumption, provided close
! (1) Tax on or connected with commodities: to be an excise the tax must be levied upon goods, but
those apparently simple words permit of much flexibility in application
Anesti 67
! (2) Dixon J there is no ground for restricting the application of the word [excise] to duties calculated
directly on the quantity or value of the goods! (P549) IE the tax on chicory, although based on the
amount planted and not necessarily produced, was still a duty of excise.
! *(3) Any stage of the chain consumed, retailed, wholesaled) BUT the tax must bear a close
relation to the production or manufacture of the goods or the sale of the goods or the consumption of
the goods but must be of such a nature as to affect them as the subjects of manufacture or production or
as articles of commerce (wound back in Parton)

Parton (1949)
! Complete switch from Peterswald - held a tax at the point of sale was an excise; but slightly winds back
Matthews excise tax when tax on goods before it reaches the consumer (sales taxes okay; not
consumption taxes)
! Levy on those distributing and selling milk, calculated on the amount of milk sold and distributed.
! I. Was this a duty of excise given that the fee was not imposed at the production and manufacture
! Dixon: The point of s 90 was to give the Commonwealth exclusive power of taxing commodities.
Therefore a tax upon a commodity at any point in the course of distribution before it reaches the
consumer produces the same effect as a tax upon its manufacture or production (P551).
! Rich and Williams JJ: a levy is a duty of excise within the meaning of s 90 of the Constitution although
it is imposed at a stage subsequent to sale by the producer or manufacturer! provided it is expected
and intended that the taxpayer will! pass on the tax to the purchaser or consumer.
! *Dixon J in obiter: would not regard something like a license fee charged to a license hotelier
where the fee is calculated by reference to the amount spent on alcohol in a previous year to a
be a duty of excise !

"*States pick up on the Dixon J obiter from Parton:
! Impose license fees calculated on previous sale of goods (backdated), to effectively tax in connection to
goods while not falling under the now broad definition of excise.
! In these cases, JJ struggling with question what is the necessary connection between tax and goods to
make it an excise?

Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529
! Parton remains good law, but *difficult to draw other principles from the mangled ratio (other than fact-
based findings)
! Broad interpretation of principle: suggests that backdated license fees are not excises (valid)*
! Narrower interpretation: backdated license fees to sell (not manufacture/distribute) goods are not
excises (valid)*
Facts: Involved an attempt by states to impose tax on sale of liquor through Licensing Act 1958. Created two
ways to get a license to sell liquor.
s 19 (1)(a) license fee: 6% of the price of alcohol purchased for sale in 12 months prior to application.
s 19 (1)(b) temporary license fee : 1L/day + 6% of value of liquor purchased for sale under the license.
NB. Distinction is (a) is backdated and (b) is prospective

Issue: did these sections impose duties of excise, in contravention of s 90 of the Constitution?

Decision/Ratio: s 19(1)(a) is not an excise (valid) whereas s 19(1)(b) imposed a duty of excise (invalid)
! Both fees not excises (valid) (Fullagar, Kitto and Taylor JJ)
! Both fees excises (invalid) (Dixon CJ, McTiernan, Windeyer JJ)
! Menzies J tiebreaker: s 19(1)(a) was a license fee, thus valid, and 19(1)(b) was an excise, thus invalid.

*Reasoning Dixon CJ (both invalid): SUBSTANCE OVER FORM
! An excise is an inland tax [ie not a custom] upon goods of a class manufactured in Australia and
abroad, imposed without regard to their place of origin (P553).
! Excise tax can be imposed in relation to production, manufacture, distribution or sale (reinforce Parton)
! *Irrelevant that licensing is a method of controlling the sale of liquor, conduct of liquor providers (*Ha)
! Focus on substance over form: the license fees are simply a tax on liquor:
- Irrelevant whether backdated or provisional.
- Whether a tax is a duty of excise must be considered by reference to its relation to the
commodity as an article of commerce. The six per cent upon the wholesale selling price of liquor
appears to me simply to be a tax upon liquor, a tax imposed on liquor on its way to the
Anesti 68
consumer by whatever channel it may proceed (P555)

Reasoning Kitto J (both valid): FORM OVER SUBSTANCE
! *Criterion of liability analysis: A tax is not a duty of excise unless the criterion of liability is the taking
of a step in a process of bringing goods into existence or to a consumable state, or passing them down
the line which reaches from the earliest stage in production to the point of receipt by the consumer
- IE. If the criterion of imposing the tax on the goods is at one of these stages, excise.
! A. The license fees were not duties of excise because the exaction is only in respect of the business
generally, and not in respect of any particular act done in the course of the business (P555)
- The fees are imposed on licenses. The liability for both ss is the acceptance of the license.
- In no case do individual purchases or sales attract a liability: if no license is renewed nothing
is paid, and if another purchases the premise they pay the fee.
- To have bearing upon quantum is a very different thing from being taxed.

Fullager J (both valid):
Three questions for a duty of excise:
(1) Must it be a tax upon goods?
a. Yes: a tax will be a tax upon goods if the person upon whom it is imposed is charged by reason
of and by reference to the fact that he is the owner, exporter, importer, manufacturer, producer,
processor, seller, purchase, hirer or consumer of particular goods (etc).
(2) Must it be imposed upon the production or manufacture of goods?
a. Yes: A. Here the tax was not imposed on the production or manufacture of goods. The fees are
quantified on the amount purchased in the relevant time period, regardless of where produced or
manufacturer. Therefore, not a duty of excise.
(3) Must it be imposed by reference to quantity or value of goods?
a. Unnecessary to answer: but suggests no

Menzies J: (a) valid (b) invalid (TEMPORAL FACTOR)
! (a) Is not a duty of excise because it is a tax upon a person seeking a license to sell liquor in the future.
It is not upon the liquor already purchased for sale (although it is calculated upon such purchases).
! (b) Is different: once a license is granted, every purchase of liquor does incur a 6% tax on purchase price
NB. Dennis Hotels has not been overruled, (and the factual scenario and fact-based findings are
therefore available in an exam for application: EG. that backdated license fees are not duties of
excises a proposition that is still good law)

Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599
! Flat fee can be an excise: fee does not need to be calculated in proportion to quantity or value of goods
! Rejects criterion of liability test from Dennis Hotels, that subsequently had been approved in Bolton
Facts: State of Victoria massively increased the tax for using a pipeline to bring gas and oil out of the sea.
The tax had been $35 per kilometre of pipeline used, but in 1983 government increased it to a $10 million flat
fee for use for two pipelines, and $40/km on a third pipeline. Hematite argued that this was an excise for the
purposes of s 90 of the Constitution because it imposed a tax upon their operation of the pipelines, and their
operation of the pipelines was a step in the production, manufacture, or distribution of petroleum products
that they sold.

Issue: was the increased tax an excise duty?

Decision/Ratio: the Act imposed an excise (4:2)

Mason J:
! Affirms Parton broad view of excise: taxes upon commodities up to the point of receipt by consumer
! Rejects criterion of liability test from Dennis Hotels: substance, not the form, of the tax matters.
! The purpose s 90: to give the Cth parliament a real control of the taxation of commodities in order to
increase competition of Australian production and manufacturing, without state intervention, drawing on
Parton (P568).
! Thus broad notion of excise: this view of s 90 provides strong support for a broad view of what
is an excise, one which embraces all taxes upon or in respect of a step in the production,
manufacture, sale or distribution of goods, for any such tax places a burden on production by
affecting the price of goods (P569)
! *EXCISE TEST: To be a tax upon or in respect of goods, it is enough that the tax is such that it
enters the cost of the goods and is therefore reflected in the prices at which the goods are
Anesti 69
subsequently sold.
- NB. This test not expressly rejected, but Ha doesnt touch it; heavily criticised.
- Arithmetical relationship between tax and value/quantity of goods produced/sold unnecessary.
- Arithmetical relationship (rather than flat fee) makes it easier to conclude that license is a tax.
- It is easier to include that the license is not a tax if it is relatively small* (Ha)
! Approach: It is necessary to examine the practical operation of a law as well as its terms in order to
ascertain whether it imposes an excise! (P570)
- A license fee (for the privilege of carrying on an occupation generally) is not an excise, so long
as it is not a tax upon or in respect of goods (P570).
- But where the license is to produce and manufacture and the terms and operation of the law
show that the license fee is worked out by reference to the quantity or value of the units
produced, then this is a tax upon goods.
- A. Features that mark the fee as an excise rather than a license:
(1) The fee is only on the trunk pipelines through which flow all the gas/oil from the bass straight
(unavoidable and specific: applies not to general profession, but just to these pipelines)
(2) The fee is payable on top of permission in addition to a permit they already have
(3) The fee is special fee of an extraordinarily large amount, and has no relation at all to the
amount paid for other pipeline operation licenses
(4) The fee is payable before an essential step in production takes place (transportation of the
hydrocarbons from their origin to the refinery) (Unavoidable)
- C. These features together indicated that the fee is not a mere fee for the privilege of carrying
on an activity; it is a tax imposed on a step in the production of refined petroleum products which
is so large that it will *inevitably increase the price of the products in the course of
distribution to the consumer!
- The fee is not an exaction imposed in respect of the plaintiffs business generally; it is an
exaction of such magnitude imposed in respect of a step in production in such circumstances
that it is explicable only on the footing that it is imposed in virtue of the quantity and value of
the hydrocarbons produced.
- To levy a tax on the operation of the pipelines is a convenient means of taxing! the only
practicable method of conveying the hydrocarbons to the next point (P570-1)
# Express reference to goods: Finally there is the fact that the Act itself discloses a
relationship with the hydrocarbons conveyed by the trunk pipelines
Deane J:
! It is an important factor that the amount of the tax does not bear any disclosed relationship to the
quantity or value of the goods manufactured or produced, and is payable regardless of that quantity or
value. However, the absence of such a relationship is not decisive.
! Its importance will vary according to the circumstances of the actual case: it is more relevant where this
charge is imposed after the production or manufacture of goods rather than at that stage.
! A. Balances the indicia: here, the absence of the disclosed relationship is outweighed by other factors:
- Magnitude of the tax
- Indirect text
- Imposed at the stage of production or manufacture of goods
- Paid before an essential step in the actual process of manufacture and production
! C. Therefore, production on the production and manufacture of goods for s 90.

Ha v New South Wales (1997) 189 CLR 465
! Dennis Hotels exception confined, Parton definition of excise upheld: duties of excise are taxes on
the production, manufacture, sale or distribution of goods whether foreign or domestic in origin. Duties of
excise are inland taxes in contradistinction from duties of custom that are taxes on the importation of
goods. Both are taxes on goods, that is! taxes on some step taken in dealing with goods.
! TEST is whether impost has no closer connection with the production or distribution [or manufacture or
sale] than that it is exacted for the privilege of engaging in the process at all (drawing on Kitto J in
Dennis Hotels)
! ***List of indicia to answer this question
! Involved a license fee on tobacco sellers: a fee of $10 per month plus a percentage (100%) of the
tobacco sold during the calendar month beginning two months before the license period. There was no
regulatory control attached to the license at all it is not linking itself to public health.
! Ha argued that inconsistent with s 90 because the license fee imposed under the Act is really an excise.
! States argued that (1) the HCA should reconsider its interpretation of s 90 and reverse the decisions
following and including Parton v Milk Board, in favour of a discrimen of liability approach and (2) that
in the alternative, the fees being charged were license fees and not a tax on tobacco sold (in line with
the Dennis Hotels principle).
Anesti 70

Decision: 4:3 laws invalid (duty of excise)

Reasoning (Brennan CJ, McHugh, Gummow, Kirby JJ):
! Majority affirm Parton definition of excise: duties of excise are taxes on the production,
manufacture, sale or distribution of goods, whether foreign or domestic origin. Duties of excise
are inland taxes in contradistinction from duties of customs which are taxes on the importation of goods.
Both are taxes on goods, that is to say, they are taxes on some step taken in dealing with goods
- NB. This flows from the purpose of s 90, to give Cth real control over taxes on goods
! Rejection formalistic criterion of liability approach: look at substance not form: When a
constitutional limitation or restriction on power is relied on to invalidate a law! its practical operation
must be examined as well as its terms in order to ensure that the limitation or restriction is not
circumvented by mere drafting devices (NB. Echoing Mason J in Hematite on purpose of s 90).
! *Alcohol and tobacco are not special in the sense that license fees to sell them that would otherwise
be regarded as a duty of excise will not be so regarded.
- *NB. However the nature of these commodities is that such licensing schemes which affect them
may be truly regulatory: so that when youre considering the regulatory mechanism or revenue-
raising purpose indicia below, you will need to consider the nature of the product as a
significant factor.
! OVERALL TEST OF NO CLOSER CONNECTION as stated by Kitto J in Dennis Hotels and explained
by Brennan J in Phillip Morris is maintained.
- QUESTION: whether impost has no closer connection with the production or distribution
[or manufacture or sale] than that it is exacted for the privilege of engaging in the process
at all? (drawing on Kitto J in Dennis Hotels)
! INDICIA: to answer this question, balance these factors in determining that a charge is an excise rather
than a license fee (none independently fatal)
- The close proximity of the relevant period to the license period
IE. Transaction with goods in prior period perceived to be a reliable forecast of transaction of
goods in the future license period: closer proximity means a closer connection
- The length of the license period
The shorter the license period, the more likely it is going to be a tax because of its regularity.
- The size of the tax imposed and the basis of the fee
The larger the fee, the more likely it is to be a tax.
NB. In Hematite, the size of the fee ($10M) was a determinative factor for Mason J
Also, as soon as the fee starting to take into account something about the quantity or value of
goods, the Court is more inclined to think this is a tax.
- *The fact that the tax may be borne only once in the course of distribution (P583)
- Regulatory mechanisms or!
NB. Looking within this Act, and also related Acts.
We license people to do things because we dont want everyone doing it for some reason. When
a license fee is therefore part of a larger regulatory scheme, the court is more inclined to think
that it is truly a licensing fee. But if the licensing statute is rather quite bare (eg there are no
other requirements or prohibitions in the licensing state), it signals to the court that the fee is
really just about taxing.
- !Revenue-raising purposes
If there is any sense that the revenue is being used not to fund the regimes operation (license
fee) but to raise revenue for other purposes (eg. Building schools, paving roads), it is more likely
to be considered a tax.
! Application: this is an excise, not a license fee.
- Fails larger test: not a mere fee for the privilege of engaging in the process of tobacco.
- Proximity of relevant period to license period (a month very close to expiration of license)
- Length of licence period one month only
- Size and basis of fee (75%-100% of value of tobacco sold, could not be for a mere licence)
- Regulatory mechanisms: minimal content in Act to regulate tobacco sales
- Revenue raising purposes: manifestly revenue-raising
- ATP: the combination of the length of the license fee and the basis for the fee was fatal
- Moreover, an amount equal to 75-100% of the value of tobacco sold during a relevant period is
levied by the act, which cannot conceivably be regarded as a mere fee for a licence required as
an element in a scheme for regulatory control of business selling tobacco! The license fee is
manifestly a revenue-raising tax imposed on the sale of tobacco during the relevant period.
- C. Therefore, the states have far overreached their entitlement to exact what might properly be
characterised as fees for licenses to carry on businesses. The imposts! are manifestly
duties of excise on the tobacco sold during the relevant periods [and] are beyond power
Anesti 71
! Court refused to give decision prospective effect only because this would not be an exercise of judicial
power (!EXAM: You would be able to say the same thing on the basis of Ch III)
! NB. Dennis Hotels has not been overruled, (and the factual scenario and fact-based findings are
therefore available in an exam for application: EG. that backdated license fees are not duties of
excises a proposition that is still good law)

Reasoning (Toohey, Gaudron, Dawson JJ) dissent:
! Argue for return to Peterswald definition and that Parton is wrong: it is plainly incorrect to assert that a
tax upon a commodity at any point in the course of distribution before it reaches the consumer has the
same effect as a tax upon its manufacture or production ! (P587)

NB. Paula dicta here the fee is a license fee, and therefore not an excise. This is not an exception to
what would otherwise be an excise de jure. Be careful when wording exam answers.

Anesti 72

s 92: "Trade, commerce and intercourse among the States! shall be absolutely free"

S 92 clearly places a limitation on both Cth and State legislative power, but before Cole v Whitfield, it
was unclear what absolutely free meant.
! Sir Robert Garran contemplated that a student of the first 50 years of case law on s 92 might
understandably close his notebook, sell his law books and resolve to take up some easy study, like
nuclear physics or higher mathematics (Cole v Whitfield, P505). Did it refer to:
! The philosophy of individualism and liberalism? (Expounded by Barwick and Dixon JJ, who assert that s
92 is about protection of the individuals' right to engage in free trade)
! Economic theory of free trade (Associated with Evatt J, who said that if the purpose of the law is to
discriminate against interstate trade, then it's invalid)
! Furthermore, the theory began to adopt a criterion of operation element, like the early excise and tax
cases, with tests that focus on the form of the law.
! Problem with these tests is that they are easily evaded through legislative drafting.
! Prevailing interpretation of yore: free from all burdens (not just financial), which would protect local
trade (eg quotas, preferential pricing etc).

The meaning of this provision changed radically in Cole v Whitfield in 1988.
! Cole v Whitfield: absolutely free means free of protectionist burdens
! Castlemaine and Betfair gloss Cole, and test what restrictions might be valid despite the s 92
guarantee (and perhaps begin to change the end part of the Cole test and reduce it to an appropriate
and adapted test).

NB. The nature of the legislation (and whether Cth and State) has a bearing on the type of discrimination
were looking for:
! Privileging intra-state over inter-state trade (a la Salmon hypothetical de facto)
! Privileging one states trade over that of others (i.e. your domestic against foreign trade)
! Privileging the trade of some states at the expense of others.

Cole v Whitfield (1988) 165 CLR 360
! Whether a law offends the Constitutional guarantee of free trade between the states in s 92 depends on
whether (on its face or in practical effect) the law (1) discriminates against interstate trade and
commerce and (2) that discrimination has a protectionist character.

! Whitfield was a crayfish trader in Tasmania, who was charged with the unlawful possession of
undersized crayfish under regulations to the Fisheries Act 1959 (Tas).
! The fish however had been purchased in South Australia, and under SA state laws were of lawful size
(the water is warmer in SA, so the minimum size was set higher).
! Whitfield argued that the Fisheries Act 1959 (Tas) is unconstitutional, because the disparity in laws
between states placed a burden upon his trade of crayfish and because s 92 meant completely
laissez-faire free was a breach of s 92.

Decision: legislation valid. S 92 prohibits only discriminatory burdens of a protectionist kind.

Reasoning Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ (unanimous):
! The convention debates illustrate that the purpose of s 92 was to protect inter-colonial free trade:
to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people,
goods and communications across State boundaries (P513)
! Free trade signifies an absence of protectionism of domestic industries against foreign
competition: generally laws contravene s 92 when their effect is discriminatory against interstate
trade and commerce in that protectionist sense.
- FIVE EG: (P513)
# Tariffs that increase the price of foreign goods,
# Quotas on imports (restriction on how much you can import; allowing local to dominate)
# Differential railway rates
# Subsidies on goods produced (subsidise local market to give unfair advantage)
# Discriminatory burdens on dealings with imports which, alone or in combination, make
importing and dealings with imports difficult or impossible vis--vis dealing with local
Anesti 73
! (1) Does the law in question relate to interstate trade?
! (2) Does the law impose a discriminatory burden on interstate trade?
- Concept of discrimination commonly involves the idea of a departure from the equality of
treatment of local v foreign trade
- De facto & de jure - Concept embraces factual discrimination as well as legal operation: a law
will discriminate against interstate trade or commerce if the law on its face subjects that
[interstate] trade or commerce to a disability or disadvantage or if the factual operation of the
law produces such a result ! The court looks to the practical operation of the law in order to
determine its validity (P516)
- IE. Where the local trade is not exposed to that disability or disadvantage or exposed to a lesser
! (3) Is the discriminatory burden protectionist?
- Protectionism in purpose or effect
- *(O) Cth laws enacted under s 51(i): whether discriminatory in a protectionist manner a
matter of effect and degree.
# Probably not: Such laws will commonly not appear to discriminate in a relevant sense
if they apply to all transactions of a given kind within the reach of the Parliament:
because the power is for inter-state trade (not intra-state trade), it is going to have
general operation and not interfere with free trade, at least de jure.
# *However, it is possible for a general law enacted under s 51 (i) to offend s 92 if its
effect is discriminatory and the discrimination is upon protectionist grounds de
facto (P519)
- State laws: In the case of a state law, the resolution of the case must start with a consideration
of the nature of the law impugned ! where the law in effect, if not in form, discriminates in
favour of intrastate trade, it will nevertheless offend against s 92 if the discrimination is of a
protectionist character (P519)
# Purpose matters, but not determinative: a law which has as its real object the
prescription of a standard for a product or a service or a norm of commercial conduct will
not ordinarily be grounded in protectionism and will not be prohibited by s 92:
# IE if the state can show that it is establishing rules or regulations to set standards to
make a product safe, good, responsible, the discriminatory law is likely not protectionist
in character.
# Qualification: *but such a law may still discriminate against interstate trade or
commerce in pursuit of that object in a way or to an extent which warrants
characterization of the law as protectionist, so that it will be prohibited by s 92 (P519).
# Court flags that there will be difficult situations in applying this rule (P519)
- NB. Criterion of operation test rejected.
- *Competitive or market advantage? (see below)
! ! (4) From Castlemaine

! Application to the Tasmanian legislation
- No de-jure discrimination: the legislation does not discriminate on its face.
- No de-facto discrimination:
- The question is whether the burden which the regulation imposes on interstate trade in crayfish
goes beyond the prescription of a reasonable standard to be observed in all crayfish trading and,
if so, whether the substantial effect of that regulation is to impose a burden which so
disadvantages interstate trade in crayfish as to raise a protective barrier around Tasmanian
trade in crayfish (P520)
# The limitation on size is unquestionably a burden on trade of fish bought in SA and sold
in Tas.
# But the prohibition on the sale and possession applies both to crayfish brought in from
interstate and to local crayfish: no discriminatory protectionist purpose appears on the
fact of the law.
# Although the legislation operates to protect the Tasmanian crayfish industry, it is not
a form of protection that gives the Tasmanian industry a competitive or market
advantage over imported crayfish. *Even if it did, it is a necessary means of enforcing
the prohibition against catching of under-sized crays in the Tasmanian market.
# Furthermore, the object of the prohibition is to assist in the protection of the Tasmanian
crayfish stock as a natural resource: an alternative legitimate purpose ("Picked up by
the court in Castlemaine)
Anesti 74

Castlemaine Tooheys Ltd v South Australia (1990)
! S 92 prohibition takes into account the power of the states to enact legislation for the well-being of the
people of that state: a law that (1-2) discriminates against interstate trade and commerce and is (3)
otherwise of a protectionist character will be saved if (4) it is necessary/appropriate and adapted
towards preventing harm/enhancing welfare of the people of a state (*distinguished in Betfair)
! Bond Brewing Company (NSW, WA and QLD) begins an aggressive marketing campaign, and increases
its market share in South Australia at the expense of SA beer producers.
! Shortly thereafter, a 1986 Amendment Act (and associated regulations) to the Beverage Container Act
1975 (SA) was passed. It heavily disadvantaged beer sold in non-refillable bottles because:
- (a) Refillable bottles were subject to a consumer refund of 4 cents, and non-refillable bottles
were subject to a refund of 15 cents
- (b) Retailers who stocked non-refillable bottles were obliged to pay to consumers the refund
when bottles were returned (regardless of where they were bought), and find some way of
disposing those bottles or returning them to the manufacture to get a refund. Retailers of only
refillable bottles were exempted from this obligation.
! The amendment purported to aim to reduce litter and preserving the SA energy supply.
! However, in effect it disadvantaged non-SA brewers, because most brewers outside of SA (including
Bond) used non-refillable bottles, whereas most SA brewers used refillable ones.
! Castlemaine (of NSW, QLD, WA) brought an action against SA arguing that the Amendment Act and the
regulations were void because in practical effect they breached the prohibition of s 92 by discriminating
against the interstate beer.

Issue: Is this a discriminatory burden of a protectionist kind and therefore in breach of s 92?

Held (unanimous): the SA legislation violated s 92

(1) Law relates to interstate trade
(2) The law imposes a discriminatory burden on interstate trade:
a. De facto discriminatory burden; it falls against foreign traders vis--vis local.
b. Yes; because burdens differentiating between those whose use NRB (foreign traders) and
RB (local SA producers)
(3) That burden was protectionist
a. Gives local producers a competitive advantage over foreign producers, or imposes a
disadvantage on foreign traders
b. A. It discourages stockists from stocking beer in NRB, and most non-SA beer producers
produce beer in non-refillable bottles, where local SA traders mainly use RB.
c. A. It creates a higher consumer refund price for beers in NRB (!foreign) vis--vis RB
(!Local SA) because of the 11c disparity in consumer refund.

Reasoning Mason CJ, Brennan, Deane, Dawson, Toohey JJ:
! (4) A law that places a protectionist discriminatory burden on intrastate trade will be upheld if it
is necessary or appropriate and adapted either to the protection of the community from a real
danger or threat to its welfare or to the enhancement of its welfare (P529)
- (i) Law has as its purpose the wellbeing of the people of that state: protection from
threat, or enhancement of welfare
- (ii) Means is either necessary or appropriate and adapted
# Court will question whether the legislation is appropriate and adapted (and,
therein, perhaps incidental and not disproportionate a la Tasmanian Dams
# Court willing to make assumptions: If there is other, non-discriminatory means to
achieve the same end, it suggests that the real purpose of the law protectionist (P528)
# But will be careful: The question of whether a particular legislative enactment is a
necessary or even a desirable solution to a particular problem is in large measure a
political question best left for resolution to the political process. (P529)
! I. Was the legislative regime appropriate and adapted to the protection of the environment in SA
from the litter problem and to the conservation of the states finite energy resources and its
impact on interstate trade incidental and not disproportionate to the achievement of those
objects? (P529)
! A. In this case, the legislation it beyond what is necessary to ensure return of non-refillable at
Anesti 75
same rate as refillable bottles
- Valid objects of legislation: litter control and energy resource conservation (NB. No
greenhouse gas argument here).
- But the laws were disproportionate (*"EXAM: deal with goals separately)
# Litter objective: legitimate, but a refund scheme was excessive (not appropriate
adapted, necessary, proportionate)
- No practical justification for discriminating between refillable and non refillable
bottles to prevent littering (no reason to believe there was any more litter of non-
refillable than refillable bottles)
- Fatal: There was a lesser charge that they could have made, that the
defendants admitted, which would have been sufficient to achieve [the]
purpose (SA admitted that a refunded of 6 cents per NRB for the first 12
months reduced to 4 cents thereafter would have been sufficient to achieve the
legislative purpose) (P529)
- The magnitude of the discrepancy [26 cents NRB/16.65 cents RB] indicates
that the object of fixing the 15 cents refund amount went further than ensuring
the same rate of return ! and that the object was to disadvantage the sale of
beer in non-refillable bottles as against the sale of beer in refillable bottles
- *Evidence that CUB (another interstate RB) was not disadvantaged irrelevant.
# Finite resources objective: legitimate, but scheme not appropriate and adapted
- The law was not appropriate or necessary to achieving that goal; these bottles
werent being made in SA and werent using their natural gas (illogical)!
- There were other alternative means for the state to better achieve the object of
the legislation: for instance, to prohibit the sale of beer in non-refillable bottles
produced in that state, or prevent manufacture of bottles with natural gas,
instead of a regime to subject Bond beer to serious competitive disadvantages
by reason of selling beer in NRB, even though those bottles were manufactured
outside the State and did not involve the use of SA natural gas (P531).
- Gaudron and McHugh J point out that ironically, increasing the sale of NRB from
the Bond Breweries was likely to reduce the use of natural gas in SA.
! C. Neither the need to protect the environment from the litter problem nor the need to conserve energy
resources offers an acceptable explanation or justification for the differential treatment given to the
products of the Bond brewing companies! that treatment amounted to discrimination in a protectionist
sense in relation to their interstate trade (P531-2)
! NB. One particular provision s 5b(2) allowed the minister to exempt retailers from the obligation
under s 7 to refund the 4c for refillable bottles, whereas there was no such power to exempt non-
refillable bottles. The natural effect of this discrimination was to discourage retailers from stocking the
Bond brewing companies beer in non-refillable bottles. It was a discrimination which effectively
protected the domestic brewers and their intrastate trade at the expense of the Bond brewing companies
because the retailers were under no similar obligation in relation to the refillable bottles of the domestic
brewers (P531)

Reasoning (Gaudron and McHugh J): put forward a different test of irrelevant distinction

Betfair Pty Limited v Western Australia [2008] HCA 11
! Maintains (1)-(3) of Cole, but slightly modifies point (4) as stated in Castlemaine
! (4) To be valid, a law that discriminates in a way that is protectionist must not only be reasonably
appropriated and adapted to its object, but must also be reasonably necessary (modifies
! Betfair operated a national betting exchange licensed in Tasmania and operating legally under
Tasmanian law.
! Internet-based betting exchanges operate to not bear a personal risk, unlike other forms of betting, and
also allow backbetting (betting on someone losing). They increase the likelihood of corruption as it is
easier to make a horse lose than win, and as they dont bear any personal expense Betfair have less
incentive to prevent corruption (the wellbeing of society being threatened).
! WA amends Betting Control Act 1954 (WA), to make it illegal for someone to engage with internet betting
exchanges anywhere in Australia and essentially prevent betting exchanges offering from services into
- S 24I(aa): it is an offence to use a betting exchange (criminalize, ban)
- S 24D(i): it is an offence to publish a WA race field without Ministers approval
Anesti 76
! As a point of comparison, Tasmania allowed the licensing of betting exchanges:
! Betfair argue that this is a discriminatory burden of a protectionist kind in contravention of s 92: in
practical effect, WA bookies and TAB are given a competitive market advantage over betting exchanges
operated in other states.

Issue: discriminatory burden of a protectionist kind?

Decision: legislation is not appropriate and adapted to the protection of the state, and therefore
contravenes s 92.

Reasoning Gleeson CJ, Gummow, Kirby, Hayne, Crennan, Keifel JJ (unanimous judgement):

(1)-(2): Discriminatory burden of a protectionist kind on interstate trade: removes WA as market for Betfair:
by preventing persons from using Betfair services and Betfair from engaging in WA events.
Discriminatory because treats local trading different from the foreign.
(3) Protectionist because it is providing a competitive advantage to local options for gambling.

! (4) The court narrows the test of when a law that discriminates in a protectionist way can be held valid
despite the prohibition of s 92: the court expresses doubt whether the Castlemaine emphasis on the
people of the state is still an appropriate test given the internet as a noteworthy revolution in the
Australian and legal economic milieu in which s 92 operates
! Therefore raise the bar from appropriate and adapted criterion to reasonable necessity (P363)
- A key issue whether acceptable explanation or justification for differential treatment (P364)
! A. Court find that the prohibition on betting exchanges went beyond what was necessary to
protect the state against the threat to the integrity of the betting industry and revenue raising.
- Goals: protect state against threat to integrity of betting industry, and redirect lost revenue
- Revenue raising:
# Compare to Victoria, which had reached an agreement with Betfair to redirect that
revenue lost to Betfair services back to the State
# Evidence advanced that Betfair would offer the same services to WA
# This alternative illustrates the fact that the outright ban in the WA legislation was not
reasonably necessary
- Threat to integrity of WA racing industry
# Compare to Tasmania: which had regulated rather than prohibited betting exchanges.
# It cannot be said that that taken by Western Australia is necessary for the protection of
the integrity of the racing industry of that State. In other words, the prohibitory State law
is not proportionate; it is not appropriate and adapted to the propounded legislative
- The s 27D(1) prohibition against Betfair in publishing a WA race field also burdens interstate
trade and commerce directly and indirectly, creating a competitive disadvantage to Betfair to
the advantage of other in-State operators, which answers to the description of a discriminatory
burden on interstate trade of a protectionist kind (P368).
- NB. While Betfair could technically apply for authorisation from the Minister under the WA
legislation, given the stated legislative purpose of prohibition of betting through and establishing
betting exchanges which is bound to be considered by the Minister in granting an application
under s 27D, the prospect of Betfair obtaining approval was illusory.
- Really, it seems like the court is considering the type of policy question that the court refused to
consider in Castlemaine: WA strongly contend that the only way to prevent damage to the
integrity of the racing industry is to prohibit, but court say that regulation is enough.

NB: This case is seen as a tightening of the appropriate and adapted test stated in Castlemaine. It suggests
that if there is any alternative way parliament can meet its stated aim, the law will be in contravention of s
92. The Court appears to have departed from its caution to question parliaments discretion when reviewing
the legislation as a means of pursuing the legitimate aim of legislation, ATP because the bar should be set
high for states to justify what has been shown in steps (1)-(3) to offend a s 92 Constitutional prohibition.


Anesti 77

Commonwealth Constitution contains little by way of express constitutional rights:
! 51(xxxi): acquisition of property on just terms provide compensation
! 80: right to trial by jury, only for Cth offences and trials for indictment, which is for the parliament to
decide. So Cth can effectively evade this requirement by providing that its not done on indictment.
- Cheatle: trial by jury means a unanimous verdict.
! 116: no law for the establishment of religion or requiring you have to be of a certain religion -
narrowly interpreted, see DOGS
! 117: prohibition on discrimination based on state residence test cases all about admission to
practice law
! 24: parliament is to be composed of representatives directly chosen by the people of the state.
! 41: limited right to vote in elections only applies to people who were alive at federation (from court

Implied limitations on Cth power are a more fertile ground of rights
! EG. Implied principle of representative and responsible government drawn from s 7, s 24, s 128, s 64
- Does not mean that electorates have to be completely equal (McGinty)
- Does mean that there is some concept of freedom of political communication.

Directly chosen by the people in ss 7 and 24 of the Constitution does not require equality of voting
power at federal elections (McKinlay).
! McTeirnan and Jacobs JJ: inequality of voting power may be one factor which means that
representatives are not directly chosen by the people.
! Mason J: perhaps conceivable that s 24 breached when so grossly disproportionate *(O)

McGinty v Western Australia (1996) 186 CLR 140
! The principle of representative and responsible government required by the text and structure of the
Constitution does not require equality of voting power [at state and federal elections; depending]: the
principles cannot rise above their source, and are only given context by reference to the specific
sections of the Constitution giving them life.
! Those particular provisions do not require equality of voting power.
! Implication: no clear view on whether s 7 and 24 require representative democracy and equality of
voting power at the Commonwealth level. However, all six judges agree that the implication in the
Cth Constitution does not apply to the states.
! ATP: can use the disagreements amongst the judgements to open up this issue again for equality of
voting power at the federal level (although were not getting state equality of voting power from the Cth
Constitution anytime soon)

! MPs challenged the Constitutional validity of new WA legislation redividing electorates on the
grounds that because both the Cth Constitution and the Constitution of WA incorporated
representative democracy, they also mandated the notion of equality of voting power, which they
alleged was infringed by these new divisions.
! IE that voters in different parts of the state would have different voting power.
! The Constitutional source of the power: ss 7 & 24 (directly chosen by the people) and s 29
(parliaments are able to determine nature of divisions)
! Trying to use bring the implied equality of voting power down to the state law.

Issues. Was the legislation invalid because of provisions relating to representative government under the
Commonwealth Constitution: (a) what is the effect of those sections and (b) do they apply to the states?

Decision/Ratio: challenge dismissed, new divisions upheld. Principle of representative and responsible
government is limited and does not extend to 1 vote, 1 value, because it can only be given context by
reference to the specific sections of the Constitution the text and structure.

Brennan CJ:
! Does not decide on question 1(a), but suggests that while the text of the Constitution can be
illuminated by reference to representative democracy, but the concept neither alters nor adds to
the text: It is logically impermissible to treat representative democracy as though it were contained in
Anesti 78
the Constitution, to attribute to the term a meaning of content derived from sources extrinsic to the
Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed
! The Cth constitution contains no implication affecting the disparities of voting power!for the election of
members of a state parliament: Ch I alongside Ch II and Ch III deals with the arms of the Cth
government, while the states are dealt with in Ch V: the structure of the constitution is opposed to the
notion that the provisions of Ch I might affect the Constitutions of the States to which Ch V is directed

Dawson J
! Q1(a): representative government as provided for by the CC is of a minimal kind, and it would
fallacious to posit a system of representative government which the Constitution does not provide and to
read the requirements of that system into the Constitution by implication.
! The CC does not contain an implication of one vote one value.
! But endorses Mason in McKinlay: could be so disproportionate that no longer chosen by the people
! Q1(b): Constitution provides for the Cth parliament; these restrictions do not apply to the states (P759).

McHugh J:
! Q1(a): no representative government
- Underlying or overarching doctrines may explain or illuminate the meaning of the text or
structure of the Constitution but such doctrines are not independent sources of the powers,
authorities, immunities or obligations conferred by the Constitution (s768).
! Implied doctrines need to be drawn from the text and structure of the Constitution:
- There is therefore no freestanding principle of representative democracy in the Constitution
- Because the principle arises by implication, it must be subject to the express terms of the
Constitution and be weighed in appropriate cases against other implications drawn from the text
and structure of the Constitution (P769)
- The judicial reasoning behind the implied principle is therefore incorrect: and judges are bound
to apply the text of the Constitution, not judicial exposition (P770)
! But if Im wrong!: (if one day the representative democracy line of reasoning is so widely followed
that it is taken to reflect the meaning of the Constitution), the principle does not require equality of
voting power.
- Equality of voting power is not a fundamental feature of the Constitution. On the contrary,
inequality of individual voting power is one of its striking features (P771)
- The principle of representative democracy, if it exists, is limited by the extent of its need: the
requirement of an equal number of voters in electoral districts is not, and never was, necessary:
and it must give way to the natural and ordinary meaning of other sections of the Constitution.
- It appears that the Australian people do not regard one vote one value as an essential
requirement of representative democracy, and it is only if the Court should therefore not seek to
substitute its view for the parliaments to hold that Australia cannot legislate inconsistently with
that element (P772).

Gummow J: [unclear]
! Tentative: Constitution provides for representative democracy, but it is left to the legislature to provide
elements of that system.
! I would accept that the variations in numbers of electors or people in single-member divisions could be
so grossly disproportionate as to deny ultimate control by popular election (P773).
! Agrees McKinlay: the point at which there ceases to be a system of representative government because
there is a failure in ultimate control by periodic popular election involves a question of degree, and is one
which cannot be determined in the abstract (P773).

Toohey J (dissenting):
! The constitutional is a living document that must be interpreted according to change. While the
essence of representative democracy remains unchanged, the method of giving expression to the
concept varies over time and according to changes in society (P760).
! Today, the expression of representative democracy encompasses equality of voting power: equality of
electoral size, with an allowable percentage variation, is now required for parliamentary elections in the
Cth (P761).
! Content of implication construed dynamically* ("ROWE)
! Q1(b) But the implication of equality of voting power at the federal level does not apply to State election
! It is not necessary to overrule McKinlay, where the parties were arguing for absolute equity based on a
focus on s 24 (P763).
! [Unlike the implied freedom of political communication], it does not follow that, in regard to the electoral
Anesti 79
process, an implication of equity in the Cth necessitates such an implication in the States (P764).
! BUT offends WA Constitution: However, the concept of representative democracy is to be found in the
Constitution of Western Australia (similarity to CC and s 73(2) directly chosen by the people) (P765),
and so also requires equality of voting power
- Historical considerations are not conclusive
- Only deviations justified on the ground of committing to better government of the whole can be
allowed; but here the legislative scheme arbitrarily distinguishes between metropolitan and
unmetropolitan areas.

CC 1 vote 1 value? State 1 vote 1 value
Brennan Doesnt deal directly - Even if yes, has no effect
on states electorates
Dawson No but maybe in extreme circumstances if
extreme malaportionment, but not in this case.
McHugh No No
Gummow No/maybe?: talks of a principle of relative parity
comes closest to adopting some kind of
principle limiting the power of the Cth to
engage in malaportionment. But not prepared
to adopt this principle, goes too far
Toohey dissent Yes there is a limit that would define how the
Cth makes up its electorates
No (from s 7 and 24; but we have
the WA Constitution)
Gaudron dissent Yes No

! S 7 &24: directly chosen by the people of the Cth; source of implied right to vote for all adults
! Roach: who has the franchise? When can the Cth limit that franchise?
! Rowe: when can the Cth limit that franchise exactly? ! Is the reason for the exception consistent
with representative democracy and are the means chosen appropriate and adapted to achieve that

Roach v Electoral Commissioner [2007] HCA 43 (26 September 2007)
! Ss 7 and 24 of the constitution confer (imply) a limited right to vote guaranteed but qualified universal
adult franchise
! But with exceptions: a limited legislative power to limit franchise (substantial reason for exclusion)
! Difference between Gleeson and the majority between substantial reason: Gleeson J requires
some rationale, but not any rationale the definition of the excluded class or group would need to have
a rational connection with (a) the identification of community membership or (b) with the capacity to
exercise free choice ! Rowe possibly brings this back together.

! Cth government amend the Electoral Act (Cth) disenfranchising all prisoners from voting. Prior to this,
the Act disenfranchised only those prisoners serving sentences of three years or more.
! The validity of the legislation was challenged on the grounds that infringed a constitutional right to vote.

! There is a limited right to vote drawn from ss 7 and 24 of the Constitution
! However, the implied freedom to vote is not absolute: it is subject to limited interference by the
! 2004 Act disenfranchising of those prisoners who were in prison for 3 or more years was upheld.
! 2006 amendment disenfranchising all prisoners was struck down. Previous Act was restored to the
statute book.

Reasoning Gleeson CJ:
! Directly chosen by the people: that term now demands universal adult suffrage.
! The legislature has a constrained power to define the exceptions: because the franchise is critical
to representative government, it cannot disenfranchise any group on a basis that does not constitute a
substantial reason for exclusion from such participation to be consistent with chosen by the people.
- An arbitrary exception would be inconsistent with choice by the people.
- But not any reason: there would need to be some rationale for the exception; the definition of
the excluded class or group would need to have a rational connection with:
Anesti 80
- (a) the identification of community membership or
- (b) capacity to exercise free choice
- EG. prisoners of certain kinds, those of unsound mind, persons committing treason
! Application:
- Lies in the combined facts of offending and imprisonment, as related to the right to
participate in political membership of the community (P371).
- Imprisonment for serious criminal offence = substantial reason:
# It is consistent with our constitutional concept of choice by the people for parliament to
treat those who have been imprisoned for serious criminal offences as having
suffered a temporary suspension of their connection with the community [tie to
(a)], reflected at the physical level in incarceration, and also reflected in temporary
deprivation of the right to participate by voting in the political life of the community, as
well as the basis of identification of those relevant prisoners (that is, sentences
exceeding three years) (P372).
# CF. The substantial reason not provided by mere fact of imprisonment
- It is only offences attracting a custodial sentences that form the basis of the exception: because
the seriousness of the offence is relevant, and custodial sentence is an (albeit imperfect)
method of determining seriousnessness.
# 2004 Act (3 or more years incarceration) valid because it is basis of identification of
those relevant prisoners (that is, sentences exceeding three years) (note that the court
is giving parliament a lot of leeway here in determining the substantial reason).
# BUT 2006 not valid: the criterion of imprisonment as the method of identifying serious
criminal conduct for the purpose of as treating such serious offenders as separate from
the community is not rational for short-term prisoners: a lot of people do not qualify
for non-custodial sentences not because they have committed a serious offence, but
because they are poor, homeless, or have mental problems. Therefore, the Amendment
Act broke the rational connection necessary to reconcile the disenfranchisement with
the constitutional imperative of choice by the people (P372)
- NB. Court here willing to look at a lot of demographic evidence to determine
who is in short term imprisonment, and saw that most of them hadnt commited
serious offences etc.
Reasoning Gummow, Kirby, Crennan JJ:
! Exclusions form the franchise must be for a substantial reason: the reason must be reasonably
appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the
constitutionally prescribed system of representative government (P373).
! Their exception uses a different test: also say there must be a substantial reason for taking away the
right: however, their definition of substantial reason seems different (even if it is the same effect in
! A substantial reason is a reason that is reasonably appropriate and adapted to serve an end
which is consistent or compatible with the maintenance of the constitutionally prescribed system
of representative government! little difference between what is conveyed by that phrase and
! The problem with the legislation in this case is that there is no substantial reason [83-85]
- 2006 Act S 93(8AA) operates without regard to the nature of the offence committed, length of
the imprisonment, or personal circumstances of the offender.
- Custodial sentencing often ordered because offenders indigent, homeless, mentally unstable
- Amendment Act does not reflect assessment of culpability other than that which can be
attributed to prisoners in general as a section of society.
- The net of disqualification is cast too wide by s 93(8AA): any term of imprisonment as a
basis for exclusion is beyond what is reasonably appropriate and adapted (or proportionate to)
representative government.

Hayne J (dissenting):
! There is no implied right to vote in the Australian constitution: nothing in the Constitution to support it
! The meaning of constitutional standards does not vary with the level of popular acceptance, based on
common understanding; political acceptance! find[s] no footing in accepted doctrines of constitutional
! NB. Takes similar position in Rowe.

Anesti 81
Rowe v Electoral Commissioner [2010] HCA 46
! Not about removing the franchise of universal adult suffrage: focus on electoral machinery.
! Electoral machinery can be held invalid if it interferes with the right to vote; by any sort of change to the
system (e.g. location, identification requirements).
! Use the French CJ test; but note that the plurality describe the mandate in different terms: at the
disproportionate stage (2) mention that the plurality see the laws as doing something different the
ends are defined differently by French CJ and the plurality, though on the facts they go through the same
analysis as French CJ. Note also to include the Gleeson J dicta from Roach into French Js overarching

! Pre-amendment seven day grace period between issuing of writs for election and closing of rolls.
! This was common practice since 1930s, and in 1983 was enumerated in statute (8 federal elections)
! Amendment to Cth Electoral Act (Cth):
o Removed 7 day grace period
o Rolls close at 8pm on day writs issued for new voters
o Rolls closed three days later after writs issued for transferring voters.
! NB. In the 2010 election: 508,000 applications for enrolment and transfer received after election
announced and rolls closed. 100,000 received in the seven day period after the rolls closed.

Issue: did the amending legislation interfere with the Constitutionally implied right to vote?

Decision: law invalid

Reasoning French CJ:
! Affirm Roach: The content of the constitutional concept of chosen by the people is now informed by
universal adult-citizen franchise: The evolution of the content is reflect in common understanding,
revealed in durable legislative development of the franchise as a reflection of public view.
! Stretches it a little further:
- An electoral law which denies enrolment and therefore denies the right to vote to any
people who are qualified to vote can only be justified if it serves the purpose of the
constitutional mandate (of direct choice by the people). If the laws adverse legal or
practical effects upon the exercise of the right to vote is disproportionate to its
advancement of the constitutional mandate, then it may be antagonistic to that mandate
[and therefore invalid].
- Not suggesting that electoral machinery can become constitutionally entrenched.
- But, where a method of choice which is long established by law affords a range of opportunities
for qualified persons to enrol and vote, a narrowing of that range of opportunities, purportedly in
the interests of better effecting choice by the people, will be tested against that objective.
- Where a law removes a legally sanctioned opportunity for enrolment, focus on the change
effected by the law: IE. If the parliament decides to change something that has become
common practice, the Court will assess that not on the basis that the laws or practises
are constitutionally entrenched; but on the basis of their subsequent effect on the right to
! TEST assimilates Gleeson CJ and Gummow, Kirby and Crennan J approaches in Roach.
- (1) There must be a substantial reason or justification for the detriment caused by the new law.
# (2) The substantial reason or justification must be that, on balance, the law is
beneficial because it contributes to the fulfilment of the constitutional mandate (direct
choice by the people)
- (3) And even if the end is acceptable, look at means; if the detriment caused by the
change in the law is in legal effect or practical operation disproportionate to the benefit
# If the law is disproportionate: the law will be inconsistent with the mandate such that the
law would lack a substantial reason for the detriment it inflicts upon the exercise of the
! Application.
! (1) Legitimate reasons: avoid fraud in voter registration and reinforcement of voters responsibility to
! (2) But disproportionate:
- No evidence that existing problem with electoral fraud, or that amendments would avert it
- The amendments merely created a smoother and more efficient system.
- At the same time, severe legal effects; diminish opportunities for enrolment existing for many
- Many people would not have their claims for enrolment or transfer processed until after the
Anesti 82
election (a significant detriment in terms of the constitutional mandate): the heavy price
imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of
the constitutional mandate was disproportionate to the benefits of a smoother and more efficient
electoral system to which the amendments were directed (P5).

Reasoning Gummow and Bell JJ:
! NB. Gummow and Bell J do not talk about the right to vote, but rather a constitutional commitment to
the people sharing in governmental power through the franchise: different to French CJ?
! Disqualification: When observe the practical effects of the legislation, they operate to achieve
disqualification in the sense used in Roach, effecting a legislative disqualification from what otherwise is
the popular choice mandated by the Constitution: at the time when the choice is to be made by the
people, persons otherwise eligible and wishing to make their choice are effectively disqualified (P6).
! Is the disqualification a rational connection?
- Has the rational connection necessary to reconcile the disqualification with the Constitutional
imperative been broken? In other words (drawing on Gummow, Kirby and Crennan JJ in
Roach) is the disqualification for a substantial reason (does not mean essential, but akin to
- Application - No: the practical operation goes beyond any advantage in preserving the integrity
of the electoral process from a hazard which is so far not materialized to any significant degree
- Personal responsibility of electors didnt offset this: common experience suggests a range of
reasons why enrolment may be untimely, apart from disregard of civic responsibility.

Dissenting J emphasize the failure of the plaintiffs to fulfil the obligation of timely enrolment.
Reasoning (Hayne J):
! No basis for specifying the maximisation of participation as an element of the system of government
prescribed by the Constitution (strong disagreement with Kiefel J).
! In any event, new cut-off dates were reasonably appropriate and adapted to preventing fraud and
encouraging timely enrolments.

Reasoning (Kiefel J):
! Examines the proportionality test being used by the Court, to give it clearer expression so that it may
be a useful tool rather than a mere statement of conclusion.
! Examines use in Germany; legislative intervention limited to its effectiveness and by its proportionality to
the interest it seeks to defend, with three sub-principles: suitability, necessity, and proportionality in the
strict sense.
! Kiefel J says it is essential that any alternative means put forward must be as practicable as the law in
question: the court must be able to conclude that an alternative measure is just as effective for the
legislative purpose as the measures employed.
! A. Such a conclusion is not possible here. There is nothing to suggest that allowing the longer period
before the closing of the Rolls would be just as effect for the purpose of encouraging compliance with
enrolment obligations (the Amendment Act is valid).