FEDERAL CONSTITUTIONAL LAW

DETAILED READING GUIDE – S1 2019

The prescribed text is George Williams, Sean Brennan & Andrew Lynch, Blackshield &
Williams Australian Constitutional Law & Theory: Commentary and Materials (7th ed,
Federation Press, 2018) (hereafter 'Casebook').

UNSW Bookshop has the Casebook available here:

https://www.bookshop.unsw.edu.au/details.cgi?ITEMNO=9781760021511

Assessment tasks and class discussion are based on the prescribed readings from the 7th
edition of the Casebook. However, we recognise some students who hold a copy of the
6th edition from the earlier, related course may face difficulties buying a fresh copy of
the 7th edition. Please be aware that you will need to consult the 7th edition to ensure
you are familiar with revised and new material that will form part of the assessable
material this semester. This is your responsibility not your teacher's.

Format of this Reading Guide and classes

Readings and Online Modules before class:

For each class, a number of compulsory readings have been set. Please make sure you
have completed these readings before class, or, where relevant before the online module.
There are a number of ‘Background Questions’ that have been designed to guide your
reading. You should be able to answer these questions comfortably before class.

In addition to the readings, there are THREE different types of Modules in Federal
Constitutional Law in 2019. Each module will have small assessment tasks woven
through it – including multiple choice quizzes and short answer questions. Completion of
these modules will contribute to 10% of your Class Participation marks (see further the
assessment breakdown):

1. TWO ONLINE MODULES: These are separate modules that are not
incorporated directly into the in-class material, but stand-alone from it. They
will have separate readings associated with them that you must complete prior
to attempting the module. To ensure the coherency of the structure of the
course, students are expected to complete these modules by the date indicated

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 in the Moodle instructions. These modules will be directly assessable in the
exam, either in the essay or problem-based question.

The online modules for this course are:

1. Grants power and fiscal federalism (TOPIC 8)
2. Inconsistency (TOPIC 11)

2. EIGHT BREAKOUTS MODULES – These are modules that might explore

and provide further context around key concepts (such as legalism, or
proportionality) or delve into a particularly key case in the course in greater
detail, exploring the socio-political background to the case and also its
implications, and looking at more depth at the approaches in the judgements.
These modules supplement the in-class topics. They must be completed,
together with the readings for the topic, prior to class, to help you prepare for
the in-class discussions.

The Breakout Modules for this course are:

1. Interpretation, Engineers and Legalism – (to be completed for TOPIC 2)
2. Tasmanian Dam Case (to be completed for TOPIC 4)
3. Communist Party Case (to be completed for TOPIC 5)
4. WorkChoices Case (to be completed for TOPIC 7)
5. Kartinyeri v Cth (to be completed for TOPIC 9)
6. Cole v Whitfield (to be completed for TOPIC 14)
7. ACTV (to be completed for TOPIC 15)
8. Proportionality (to be completed for TOPIC 16)

3. ONE REVISION MODULE (TOPIC 19): At the end of the course, we have
developed a revision module that steps through how to answer a problem-
based exam question. Students will be able to attempt to answer the question
in a structured and assisted way. This module complements the revision class,
which will provide a broader overview of the course and prepare students for
the essay-component of the exam.

In addition, you should also read the newspapers and be prepared to discuss any
constitutional issues of interest that arise as the course progresses.

In Federal Constitutional Law, it is important to be precise when referring to the

principles established by cases, including having an understanding of which judges were
involved in them. As such, it is important for you to complete the readings in the
Casebook rather than relying on short summaries of what the case might have ‘stood for’
as these will lack the detail and precision of what is required in this course. Further,
because we will frequently be referring to exactly what was said, and by whom, it is
important that you bring a copy of the Casebook to class with you.

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You should also try to read through a complete case in the course of the semester. We
will be doing this with Kartinyeri v Commonwealth (1998).

In class:

Class time will not be spent lecturing on the readings. It will be devoted to:
• A guided discussion of the more difficult concepts raised by the readings to
ensure understanding of the material;
• Critical discussion of the cases and the perspectives provided in the different
readings. The Reading Guide includes a list of ‘Discussion Questions’ that will be
a good guide to prepare for this discussion. You should have read through these
questions and be ready to contribute to the discussion. The type of critical
engagement these Discussion Questions require will be assessed in the essay-style
questions in the final examination.
• Answering problem-based questions of a similar style to those in the mid-session
assignment and final examination.

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Fed Con 2019 – Term breakdown of topics
Week Class Topic Online module
1 (18-24 Feb) 1A TOPIC 1: Introduction
1B TOPIC 2: Interpretation, Legalism and Engineers Online
Breakout
Tutorial
2 (25 Feb-3 2A TOPIC 3: Characterisation
March) 2B TOPIC 4: External Affairs Online
Breakout
Tutorial
3 (4-10 March) 3A TOPIC 5: Defence Power Online
Breakout
Tutorial
3B TOPIC 6: Trade & Commerce Power
4 (11-17 March) 4A TOPIC 7: The Corporations Power Online
Breakout
Tutorial
4B TOPIC 8: Taxation & Grants Power Grants Power
Online Module
5 (18-24 March) 5A TOPIC 9: The Races Power Online
Breakout
Tutorial
5B TOPIC 10: Critical Judgments Project
6 (25-31 March) 6A READING WEEK
6B
TOPIC 11: Inconsistency Inconsistency
Online Module
(Wholly online,
no class)
7 (1-7 April) 7A TOPIC 12: Revision Class A
7B TOPIC 13: Federal Compact – Melbourne
Corporation Principle
8 (8-14 April) 8A TOPIC 14: Freedom of Interstate Trade and Online
Commerce Breakout
Tutorial
8B TOPIC 15: Freedom of Political Communication Online
A Breakout
Tutorial
9 (15-18 April) 9A TOPIC 16: Freedom of Political Communication Online
(Friday classes B Breakout
rescheduled) Tutorial
9B TOPIC 17: Judicial Power and Detention A
10 (23-28 April) 10A TOPIC 18: Judicial Power and Detention B
(Mon and Thurs 10B TOPIC 19: Revision Class B Online Revision
classes Tutorial
rescheduled)
Monday 29 April 11A Catch up classes (as required due to
rescheduling)

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TOPIC 1: INTRODUCTION
FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW

This class serves as a general introduction to the course. You will be asked to connect
some of what you have already learned in Public Law to the specific concerns of Federal
Constitutional Law. The class will also set out what is expected of you during the term,
the teaching format, the method of assessment, and the use of online resources.

Reading:
The Constitution
Read the Australian Constitution in Blackshield & Williams 7th ed pp. 1436-53
(Appendix 1)

Discussion Questions:
• What is/are the purpose(s) of a Constitution?
• Must Constitutions be written? What are the differences in the operation of
written v unwritten constitutional systems?
• What do you already know about the Commonwealth Constitution?
• What is/are the purpose(s) of the Commonwealth Constitution?
• What rights are protected in the Constitution?
• Have a look at the news and be prepared to discuss some topical constitutional
issues.

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TOPIC 2: INTERPRETATION, LEGALISM AND ENGINEERS

Federal Constitutional Law is about how the Australian Constitution has been applied
since its adoption in 1900 to resolve disputes over the limits of the federal government's
powers, with implications both for the states and for individuals. You could think of Fed
Con as a course in statutory interpretation to that extent. But things are not that simple.
For starters, the Constitution is no ordinary statute but the foundation stone of a legal and
political system. Over the years, the development of Australian constitutional law has
interacted with the life of the nation in complex ways, both influencing and being
influenced in turn by the cut-and-thrust of federal and state politics. This suggests that the
Constitution needs to be interpreted in ways that are faithful to its original meaning but at
the same time flexible enough to take account of changing circumstances. In this topic
you will learn about the doctrines and methods that the High Court has developed to get
this balance right. Two of the key moments were the 1920 Engineers Case and Sir Owen
Dixon’s 1952 swearing-in speech as Chief Justice. In Engineers, the High Court
dramatically changed the way the Constitution was interpreted and, in so doing, the
trajectory of Australian federalism. Sir Owen Dixon's swearing-in speech, for its part,
marked the point from which the High Court's institutional legitimacy came to be
conclusively associated in the public mind with its adherence to a 'strict and complete
legalism'. While repeated attempts have been made to break legalism's hold on Australian
constitutional culture, this ideology still exerts a powerful influence.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 170-73 (5.1-5.7), 188-208 (5.38-5.74) [if
pressed for time, skim 5.39-5.46], 274-75 (7.8-7.16), 280-82 (7.31-7.36), 286-94
(7.42-7.49).
6TH EDITION: 170-173; 188-207; 242-243; 253-261
• Complete the breakout online tutorial accessible by clicking on the link on
Moodle (this should take about one and a half hours)

Relationship between breakout tutorial and in-class discussion:

• The breakout tutorial covers the Engineers case, the various meanings of legalism
(particularly as invoked in Dixon CJ's swearing-in speech and in Mason CJ's
critique of the Court's reasoning methods), the use of historical materials in Cole v
Whitfield, methods of constitutional interpretation and the Jumbunna principle
• All of these issues will be discussed in class on the assumption that you have a
fairly developed understanding of them from the readings and from the work you
put into the online tutorial
• Note that there are no readings for the Jumbunna principle beyond the extract
provided in the online tutorial, but you may want to consult pp. 182-86 of the
textbook if you have the time

Background Questions – to guide reading:

• What is the Jumbunna principle?
• What were the doctrines of reserved State powers and implied immunity of

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 instrumentalities?
• What general approach to constitutional interpretation was adopted by the High
Court in the Engineers Case?
• Why did that approach result in the demise of the reserved State powers doctrine?
• What is originalism? Consider the differences between intentional originalism,
textual originalism and incremental accommodation.
• What is ‘strict and complete legalism’? How does it differ, if at all, from a
literalist approach to interpretation?
• What is a ‘purposive’ and a ‘progressive’ approach to constitutional
interpretation?

Discussion Questions:
• Should the Constitution be interpreted by reference to settled rules of statutory
construction?
• What do you think is the underlying motivation for the decision in Engineers?
• If Latham, Windeyer and Gageler are correct in describing the decision as a
political one, is it legitimate for the High Court to adopt this approach to
constitutional interpretation?
• In Engineers, what did the High Court regard as the proper relationship between
the courts and the legislature/executive? Do you agree with this approach?
• What are the arguments in support of an originalist interpretation of the
Commonwealth Constitution? Are you persuaded by them?
• What are the arguments for and against a purposive / progressive approach to
interpretation
• Why are the methods the High Court uses to interpret the Constitution important?
• How would you approach constitutional interpretation?

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TOPIC 3: CHARACTERISATION

The division of legislative power in the Australian Constitution is effected by designating

enumerated legislative powers to the Commonwealth Parliament in sections 51, 52 and
122 of the Constitution, and leaving the residue legislative power to the States. These
enumerated powers are known as ‘heads of power’, and every Commonwealth law must
be characterised as being ‘with respect to’ at least one of these powers. In this class
students will be introduced to the High Court’s general approach to determining
characterisation, before turning in the next classes to discuss the Court’s specific
approach to characterisation under some of the heads of power.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 844-69

6TH EDITION: 760-788

Background Questions:
• What is the High Court’s current approach to characterisation?
• What are the differences in approaches to characterisation between subject-matter
and purposive powers?
• Which powers are subject matter powers and which are purposive powers?
• What approach does the High Court take to the relationship between the heads of
power?
• What test of connection is applied to the incidental powers?

Discussion Questions:
• What is the purpose of characterisation?
• What do you think is the likely result of the High Court’s current approach to
characterisation for the operation of the Australian federal system?
• What is the function of the implied incidental power?
• How acceptable is the role of proportionality in the characterisation process?

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TOPIC 4: THE EXTERNAL AFFAIRS POWER

This class introduces our first head of power, the external affairs power. In it, we will see
how, as with so many other powers, the High Court's preferred interpretive approach has
tended towards expanding the Commonwealth's legislative powers beyond the initially
envisaged limits. We will also see how the general principles of characterisation find
more determinate application in relation to this particular head of power.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 980-1011 [if pressed for time, skim
pages 987-994 [21.36-21.51], 1008-1011 [21.82-21.90]
6TH EDITION: 896-929
• Complete the breakout module, accessible by clicking the link on Moodle (this
should take about one and a half hours)

Relationship between breakout module and in-class discussion:

• Before commencing the breakout module, you should complete the readings set
for this class.
• The breakout module provides a broader contextual examination of
the Tasmanian Dam Case and the implication this has had on the external affairs
power and the development of federal environmental law. It will also provide you
with some revision of the key legal strands of reasoning that the majority
develops in the case.
• The Tasmanian Dam Case will be discussed in class on the basis that you have
developed some understanding of the social, political, international and legal
background and consequences of the decision, as well as a strong understanding
of the legal reasoning of the case.

After class optional exercise:

• Consolidate your knowledge by having a go at the past exam question provided
on Moodle.
• Compare your answer to the model answer provided on Moodle.

Background Questions:
• What are the different aspects of the external affairs power? Are they subject
matter powers or purposive?
• After the cases of Horta v Commonwealth (1994), XYZ v Commonwealth (2006)
and Pape v Commissioner of Taxation (2009), is mere externality enough to
activate the external affairs power?
• In what circumstances has the High Court upheld legislation on the basis it
sufficiently affects Australia’s relations with other countries?
• What are the two issues that the Court considers in relation to the treaty
implementation aspect of the external affairs power?

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 • What three approaches to the Commonwealth’s legislative power to implement
treaties did the Court adopt in Koowarta v Bjelke-Petersen (1982)?
• What approach was adopted in Tasmania v Commonwealth (1983) (Tasmanian
Dam Case?
• How did the Court subsequently elaborate upon the approach taken in Tasmanian
Dam Case in Victoria v Commonwealth (Industrial Relations Case) (1996))?
• After Pape v Commissioner of Taxation (2009), does the external affairs power
extend to the power to implement international recommendations?
• Is partial implementation of a treaty permissible?

Discussion Questions:
• By reference to Brennan J’s judgment in Polyukhovich v Commonwealth (1991),
consider whether there should be limits on the geographically external aspect of
the power.
• In the early case of R v Burgess; Ex parte Henry (1936), what are the judges’
concerns about the legislative implementation aspect of the external affairs
power? Are these legitimate concerns that should affect the Court’s approach to
interpretation?
• Was the result in Tasmania v Commonwealth (1983) the final blow to real
federalism?

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TOPIC 5: THE DEFENCE POWER

The defence power is unusual in many respects. Alone among the powers, the level of
review varies with constitutional facts. As a purpose power, the Court's methodology
resembles that utilised in the treaty implementation aspect of the External Affairs power.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 933-45, 951-72. If pressed for time skim
Brian Galligan, Politics of the High Court in [20.9]; Lynn Beaton, 'The
Importance of Women's Paid Labour: Women at Work in World War II' in
[20.1]; Victorian Chamber of Manufacturers v Commonwealth (Women's
Employment Case) (1943) 67 CLR 347 in [20.11]; [20.12] - [20 .13]; [20.20]-
[20.23].
6TH EDITION: 845-857; 863-884
• Complete the breakout module. You can access it by clicking the link on moodle
(this should take about half an hour)

Relationship between breakout module and in-class discussion:

• The breakout module provides a contextual examination of the Communist Party

Case and the implication this has had on the scope of the Defence power and rule
of law in Australia. It will provide you with some revision of the key legal strands
of reasoning that the majority develops in the case. The module also discusses the
significance of the Communist Party case in the context of the current debate on
national security and anti-terrorism legislation.
• The Communist Party Case will be discussed in class on the basis that you have
developed some understanding of the social, political, and legal background and
consequences of the decision, as well as a strong understanding of the legal
reasoning of the case

Background Questions:
• How is the defence power different from those we have considered so far? What
is the test for characterisation under the power?
• What two aspects of the defence power are drawn by Fullagar J in the Australian
Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party Case)?
• What important principle associated with the separation of powers and rule of law
was established in the Communist Party Case?
• Was proportionality relevant to the majority decision in Thomas v Mowbray?

Discussion Questions:
• Who should decide whether there is a sufficient threat to the defence of Australia
to activate the defence power?
• Does the Communist Party Case have anything to do with the protection of civil
liberties?
• How useful is section 51(vi) in supporting the Commonwealth’s anti-terrorism
laws?

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TOPIC 6: THE TRADE AND COMMERCE POWER

The express exclusion of the Commonwealth from regulating intra-state trade and
commerce has generally been respected under the trade and commerce power. However,
the 'explosion' of the reserved state powers doctrine in Engineers has progressively
allowed the Commonwealth to enter that regulatory area using the corporations
power. Litigation under the former Trade Practices Act has been particularly illustrative
of this trend. Note also the way in which litigation under that Act has helped to define
what a constitutional corporation is, even though the cases themselves are strictly
speaking not characterisation cases but cases involving the disputed application of that
Act to particular litigants.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 889-902

6TH EDITION: 802-815

Background Questions:
• What does ‘trade and commerce’ in s 51(i) refer to?
• To what extent can the interstate trade and commerce power extend to the
regulation of intrastate trade and commerce?
• Can the Commonwealth regulate production under the interstate trade and
commerce power?

Discussion Questions
• What sort of information is required to determine whether a law is supported
under the trade and commerce power?
• To what extent has the Australian approach to the trade and commerce power
differed from that taken in the United States? What effect has this had on the
federation?

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TOPIC 7: THE CORPORATIONS POWER

This topic considers how the corporations power has grown in significance over the last
century, driven by the inexorable logic of the Engineers case. The controversial Work
Choices case represents the culmination of this development.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 902-31. If pressed for time skim p.906
and [19.38]; Fencott v Muller (1983) 152 CLR 570 in [19.48]; New South Wales
v Commonwealth (Incorporation Case) (1990) 169 CLR 482 in [19.55].
6TH EDITION: 815-844
• Complete the breakout module. You can access it by clicking the link on Moodle
(this should take about one hour).

Relationship between breakout module and in-class discussion:

• The breakout module provides a broader contextual examination of the Work
Choices Case and the implication this has had on the corporations power. It will
also provide you with some revision of the key legal strands of reasoning that the
majority develops in the case.
• The Work Choices Case will be discussed in class. Students are expected to have
clear understanding of the social, political, and legal background and
consequences of the decision, as well as a strong understanding of the legal
reasoning of the case.

After class optional exercise:

• Consolidate your knowledge by having a go at the past exam question provided
• Compare your answer to the model answer provided

Background Questions:
• What are the two questions that must be answered to determine whether a
corporation is bound by a law that purports to rely on s 51(xx)?
• By reference to authority, state the current test applied by the High Court to
determine whether a corporation is a trading or financial corporation.
• What does ‘trading’ and ‘financial’ mean in s 51(xx)?
• To what extent does s 51(xx) allow the Commonwealth to regulate the
incorporation of constitutional corporations?
• Can the Commonwealth regulate any activity of a foreign, trading or financial
corporation?
• What is the High Court’s current position on whether the Commonwealth can
regulate agents of constitutional corporations (such as directors and employees)?
• What is the High Court’s current position on whether the Commonwealth can
regulate the conduct of third parties towards corporations?

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Discussion Questions
• Is a ‘percentage approach’ to the trading/financial activities for determining
whether a corporation is a ‘constitutional corporation’ helpful?
• What are the advantages and disadvantages of adopting a substantial trading
activities test to determining whether a corporation is a trading/financial
corporation?
• What is it about s 51(xx) that explains the trepidation of members of the High
Court towards its interpretation?
• Why did the minority in Work Choices say that the majority was wrong to rely
upon the quote of Gaudron J in Re Pacific Coal Pty Ltd; ex parte Construction,
Forestry, Mining and Energy Union (2000)?

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TOPIC 8: THE TAXATION AND GRANTS POWERS

Characterisation of laws under the Taxation Power reduces to the question: 'Is it a
tax?' There is a fairly straightforward set of rules governing the answering of this
question, but the power does have some challenging aspects. For one, it contains an
express internal prohibition on discrimination between states. For another, laws that
provide for tax need to be isolated from other laws by reason of s 55. This can give rise
to arguments for validity under this power being used to invalidate the rest of the
statute. Finally, the taxation power combines with the Grants Power in interesting ways.

The Grants Power in s 96 is a fairly strange animal. Commonwealth legislation enacted

under this power is not tested for sufficiency of connection with the power in the manner
of s 51 powers, but must instead be seen as setting the terms and conditions of a grant of
money to the states. There are very few restrictions on what those terms and conditions
may stipulate, other than that they may not be 'coercive', a term that is very narrowly
understood. In the result, the Commonwealth may use this power to enter into areas of
regulation, such as health and education, not otherwise obviously open to it. The only
restriction is that the policy intervention must be driven by the granting of funds.

Pre-class preparation for this topic:

• In-class preparation: Read Blackshield & Williams 7th ed pp. 1087-1100
6TH EDITION: 1010-1023
• Online tutorial preparation: Read Blackshield & Williams 7th ed pp. 1141-54
6TH EDITION: 1067-1080
• Complete online tutorial available on the link in Moodle

Relationship between the online module and the in-class discussion:

• The online module on the Grants power is not incorporated directly into the in-
class material on the taxation power, but it will inform your understanding of the
taxation power and therefore we encourage you to complete the module before
attending the class.

After class optional exercise:

• Consolidate your knowledge by having a go at the past exam question provided
• Compare your answer to the model answer provided

Background Questions:
• Why does the meaning of a ‘tax’ in the Constitution matter?
• What are the ‘positive’ and ‘negative’ characteristics of a tax?
• How is the element of compulsoriness approached by the High Court?
• On what issues did the Court split in Australian Tape Manufacturers Association
Ltd v Commonwealth (1993)?
• Does Tape Manufacturers mean that any payment to Consolidated Revenue must
be a tax?

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 • What is the test for determining whether an exaction is a fee for services or a tax?
• What are the limits on the Commonwealth’s power to attach conditions to grants
made to the States under s 96 of the Constitution?

Discussion Questions:
• Does Airservices Australia v Canadian Airlines International Ltd (1999) make the
fee for services exception more realistic in line with commercial practice, or does
it simply muddy the clear waters of Parton v Milk Board (1949) and Harper v
Victoria (1966)?
• In respect of the Uniform Tax Cases, did the Commonwealth legislative package
prevent the States from raising income tax?
• Is the reasoning in the Uniform Tax Cases persuasive? What appears to be the
basis for Dixon J’s support of the outcome in the Second Uniform Tax case?
• How has the High Court’s interpretation of the grants power shaped Australia’s
federation?

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TOPIC 9: THE RACES POWER

In its decision in Kartinyeri, the High Court declined to decide whether the Races Power
may be used exclusively for purposes of positive (i.e. affirmative) discrimination. This
has left this power stranded in the Constitution as a telling reminder of past injustices and
the need to address them, constitutionally and otherwise.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 1063-86
6TH EDITION: 986-1008
• Complete the breakout module. You can access it by clicking the link on Moodle
(this should take about one hour).

Relationship between breakout module and in-class discussion:

• The breakout module provides a broader contextual examination of the Court’s
decision in the Kartinyeri case, and the implication this has had on the
understanding of the scope of the races power. It will also provide you with an
understanding of how this decision affected the broader movement towards
constitutional recognition for Aboriginal and Torres Strait Islander peoples.
• The Kartinyeri Case will be discussed in class. Students are expected to have clear
understanding of the social, political, and legal background and consequences of
the decision, as well as a strong understanding of the legal reasoning of the case.

Background Questions:
• What mention does the Constitution make of Australia’s Indigenous peoples?
• When does a person belong to ‘the people of any race’?
• Can a law be made for some of the people of a race?
• Can a law of general application be ‘special’?
• Is s 51(xxvi) limited to beneficial laws?

Discussion Questions
• What was the purpose of s 51(xxvi) when it was enacted in 1900, and what
assumptions underpinned this purpose?
• How do concepts of parliamentary sovereignty and popular sovereignty collide in
Kirby J’s dissent in Kartinyeri v Commonwealth (1997)?
• Who decides whether a s 51(xxvi) law is ‘necessary’? Do you think this position
vests power in the right constitutional institution?

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TOPIC 10: CRITICAL JUDGMENTS EXERCISE

Consult Gabrielle Appleby & Rosalind Dixon (eds), The Critical Judgments
Project (2016) and rewrite Kartinyeri as you think it ought to have been decided.

FULL INSTRUCTIONS PROVIDED ON MOODLE

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TOPIC 11: INCONSISTENCY OF LAWS – ENTIRELY ONLINE MODULE

This topic is about the tests that the High Court has developed for determining whether a
state law that conflicts with, or otherwise overlaps with the regulatory field covered by, a
valid Commonwealth law should be declared inoperative under s 109.
Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 394-412, Skim only: 414-29
6TH EDITION: 297-210; skim only: 311-331
• Complete online tutorial (this will take approximately 2.5 hours). Please note that the
online tutorial is divided into two: one video and one online quiz. We recommend
you complete the video and then attempt the quiz, but it can also be done
simultaneously.

Any questions that you have that arise from this tutorial can be raised in TOPIC 12:
Review Class A. Please try to watch the video and then complete this quiz before that
class.

Background Questions:
• What are ‘laws’ of the State and the Commonwealth for the purposes of s 109?
• How has the High Court interpreted ‘invalid’ in s 109?
• What are the three different tests of inconsistency under s 109? How does the test
of ‘alter, impair, detract’ sit in this framework?
• What questions must be asked in the ‘covering the field test’?
• What is ‘operational inconsistency’? Is it a separate test of inconsistency?
• Can the Commonwealth manufacture inconsistency through an express provision?
What, if any, are the limits on this?
• Can the Commonwealth avoid inconsistency between a Commonwealth provision
and State laws by including an express provision to that effect? What, if any, are
the limits on this?
• What is the role of statutory interpretation in determining an inconsistency under s
109?

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TOPIC 12: REVISION CLASS A

Instructions to be provided by your teacher prior to this class.

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TOPIC 13: FEDERAL COMPACT – MELBOURNE CORP PRINCIPLE

This class looks at the general principle limiting the Commonwealth's power to interfere
with states' capacity to function as independent political entities.
Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 1158-87

6TH EDITION: 1084-1113

Background Questions:
• What is the principle voiced in Melbourne Corporation (1947)? Before Austin in
2003, how did the Court interpret the Melbourne Corporation principle?
• In Australian Education Union (1995) when did the Court hold that a
Commonwealth law about State public servants would violate the principle?
• How did the Court apply the Melbourne Corporation test in the Industrial
Relations Act Case (1996)? How was s 6 read down?
• What is the current ‘restatement’ of the Melbourne Corporation principle?

Discussion Questions:
• What is the source of the immunity of the States from Commonwealth laws?
• How can the Melbourne Corporation principle be squared with that of the
Engineers case?
• Are the distinctions drawn by the majority in Australian Education Union viable
or do you agree with Dawson J’s dissent?
• What is the continued relevance of discrimination within the restatement of the
Melbourne Corporation principle?

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TOPIC 14: FREEDOM OF INTERSTATE TRADE AND COMMERCE

Section 92 of the Constitution is quite misleadingly worded. It says interstate trade and
commerce shall be ‘absolutely free’ even though it was understood in 1900 that certain
types of interstate trade and commerce could be regulated. For over forty years, the High
Court tried to draw a boundary line between permissible and impermissible regulation,
using different theories. After the end of the Second World War, the so-called ‘individual
rights’ theory of s 92 briefly triumphed in the Bank Nationalisation Case (High Court
decision reported in (1948) 76 CLR 1) and Privy Council in [1950] AC 235). But the
stability that this case provided proved to be short lived. It took a further forty years for
the High Court to work out a predictable test in Cole v Whitfield (1988) 165 CLR 360.
To do so, as you learned in topic 2, it was forced to go back to basics: to recover the
original meaning of s 92 by using the Convention Debates as an aid to interpretation.
Since Cole, the number of cases under s 92 has significantly declined, signalling the
success of the Court’s approach. To judge by the cases, s 92 is now a provision that only
affects interstate trade in (and on) Australians’ vices: drinking beer, smoking tobacco and
gambling!

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 1266-69 (28.15-28.17), 1274-94 (28.34-
28.70)
6TH EDITION: 1198-1201; 1206-1226
• Complete breakout online tutorial accessible by clicking on the link on Moodle
(this should take about one and a half hours)

Relationship between breakout tutorial and in-class discussion:

• The online tutorial focuses on the major decision in Cole v Whitfield, but also
provides material on the Bank Nationalisation Case and post-Cole developments
• If you do the online tutorial, you should be able to participate confidently in class
discussion of all of these sub-topics

After class optional exercise:

• Consolidate your knowledge by having a go at the past exam question provided
on Moodle
• Compare your answer to the model answer provided on Moodle

Background Questions:
• What is the distinction between the ‘individual right’ and ‘free trade’ theories
underpinning the High Court’s interpretation of s 92?
• How is s 92 reconciled with s 51(i)?
• What was the High Court’s approach to the interpretation of s 92 in Cole v
Whitfield? What is was the test developed in that case?
• What did the High Court conclude about the Tasmanian regulation at issue in

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 Cole?
• How was regulatory exception in Cole developed in Castlemaine?
• On what basis did the majority and minority reasoning diverge in Bath v Alston
Holdings?
• Since Betfair I, how has the High Court formulated the regulatory exception?
• What is the relevance of ‘substitutability’ to applying s 92?
• What is the relevance of the individual trader in determining whether a provision
breaches s 92?

Discussion Questions:
• How important was s 92 to the federation movement?
• How did the High Court reach the conclusion that, despite its broad language,
there are implicit qualifications in s 92?
• Consider the ways in which the unanimous opinion in Cole v Whitfield might be
said to be reflective of some of the theories of constitutional interpretation
considered earlier in the semester.
• Why are State laws more likely to infringe s 92 than Commonwealth laws?
• What is the role of proportionality in determining whether s 92 has been
breached? To what extent does this test require the Court to engage in a subjective
evaluation of the regulatory measure?
• What was the relevance of the contemporary economic context – including the
national competition policy and the ‘information economy’ – in the majority
judgment in Betfair I? Do you think was a legitimate influence in their approach?

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TOPIC 15: IMPLIED FREEDOM OF POLITICAL COMMUNICATION - A

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 1328-29, 1331-42. Skim 1342-51.
6TH EDITION: 1259-1273; Skim only 1273-1284
• Complete breakout online tutorial accessible by clicking on the link on Moodle (this
should take about one and a half hours)

Relationship between breakout tutorial and in-class discussion:

• The online tutorial focuses on the major decision in ACTV, but also provides material
on the post-ACTV decision in Lange
• If you do the online tutorial, you should be able to participate confidently in class
discussion of all of these sub-topics

After class optional exercise:

• Consolidate your knowledge by having a go at the past exam question provided on

Moodle
• Compare your answer to the model answer provided on Moodle

Background Questions:
• What is meant by ‘representative government’, and how is it reflected in the terms
of the Constitution?
• What’s the relationship between representative government and political
communication?
• What are the different approaches apparent in the judgments in Nationwide News
and ACTV v Commonwealth to drawing an implication that protects political
communication?
• What types of matters are encompassed within the concept of ‘political and
government’ protected by the implied freedom?
• Is the freedom of political communication limited to discussions at election time?
• Is the freedom limited to discussions between electors and their elected
representatives?
• Is the freedom limited to discussions about Commonwealth matters?
• Is the freedom absolute? If not, what are the limits on the freedom that the
different judges develop (focus particularly on the two-tier test of Mason CJ in
ACTV).
• What’s the relationship between the common law and the Constitution?

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Discussion Questions:
• In the early cases on the implied freedom, Dawson J accused the majority of
betraying the principles of the Engineers Case. Was that criticism fair?
• How are rights protected in the Australian constitutional system if not in the
written text of the Constitution itself?
• The determination of whether a law violates the implied freedom requires some
sort of balancing act between the means adopted by the law against the objective
served by the law. Different approaches to this balancing exercise may lead to
different judicial views on the constitutional validity of a law. Does this
undermine the legitimacy of the implied freedom?

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TOPIC 16: IMPLIED FREEDOM OF POLITICAL COMMUNICATION – B

This topic considers the role of proportionality in the High Court’s case law on the
implied freedom of political communication. Proportionality is used in other areas of
federal constitutional law, but it has taken on a special importance in this area after the
High Court’s decision in McCloy v New South Wales (2015) 257 CLR 178. In that
decision, the Court decided that its consideration of whether the implied freedom had
been breached should be guided by a structured proportionality test like the one
developed by the Federal Constitutional Court of Germany. In this topic, you will learn
about whether proportionality is best thought of as a legal doctrine or something else, and
about the different stages of the Court's structured proportionality framework of analysis.
You will also be introduced to some of the differing views in the High Court about
whether the final stage of the framework, ‘strict proportionality’, adds rigour and
determinacy to the Court’s implied freedom of political communication analysis or
simply invites the making of a political value judgment.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 1373-1400 (29.115-29.178)
6TH EDITION: 1311-1316; 1331-1336
• Complete the breakout online tutorial accessible by clicking on the link on
Moodle

Relationship between breakout tutorial and in-class discussion:

• The online tutorial focuses on the structured proportionality framework of
analysis, as introduced in McCloy and further developed in Brown v Tasmania
• The online tutorial supplements the in-class discussion by introducing you to
complex conceptual material in an accessible video-interview format

Background Questions:
• How did the High Court consolidate the approach to drawing the implication on
which the freedom to political communication is based in Lange?
• What is the current statement of the two-step test for determining whether the
implied freedom of political communication (NB – this is often referred to as the
Lange test, but it has been modified in Coleman v Power and more recently
expanded in McCloy v New South Wales)?
• In Lange, how did the High Court apply the two-limbed test to the common law
of defamation?
• Consider the points of commonality between the judges to try to determine the
ratio of Coleman v Power.
• What types of communication fall outside of the concept of communication on
‘political and government’ matters?
• Under which step of the Lange test is the extent of the burden relevant?
• What were the constitutionally important points of distinction between the

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 legislative provisions that were struck down in Unions NSW and those that were
upheld in McCloy v New South Wales?

Discussion Questions:
• The Court is very careful to emphasise that the implied freedom is a limit on
legislative/executive power and not a source of personal rights. In practice, what
does this distinction mean?
• Does the majority joint judgment’s approach in McCloy v New South Wales
(2015) give greater clarity for applying the proportionality test? Do you agree
with the criticisms of that approach made by Gageler J?
• What is the relationship between the joint judgment’s approach to the second limb
in McCloy and Mason CJ’s two-tier test in ACTV?
• In Monis (2013), on what basis did the approach of French CJ and Hayne J differ
from Crennan, Kiefel and Bell JJ? Which approach do you prefer, and why?

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TOPIC 17: JUDICIAL POWER & DETENTION – A

This class and the next deal with judicial power and detention, a very active area of the
High Court's jurisprudence on constitutional law that has many implications for
contemporary policy issues, including the treatment of asylum seekers, the impact of
counter-terrorism measures on fundamental liberal freedoms, and the long-term detention
of persons considered to be a threat to society who have not been found guilty of a
(further) criminal offence.

Both of these classes require an understanding of foundational principles relating to the

implied limitations that the Court has drawn from the separation of powers. These
foundational principles have been provided to you in a set of readings from Gabrielle
Appleby, Alexander Reilly and Laura Grenfell, Australian Public Law (3rd ed, 2018).
This revises some material you already know, and in particular, the Boilermakers Case,
which you have already covered in Principles of Public Law. You will also need to know
about the Kable case, and how the Court has approached the difficult task of determining
what is judicial power, which we consider through the case of Thomas v Mowbray.

Please complete these introductory readings in addition to the set readings prior to these
two classes. While the material is not directly assessable it is pivotal to understanding the
set material and discussion of the classes.

This first class will then consider how the High Court has developed the Kable case,
which applies to State Courts, particularly in the area of detention.

Pre-class preparation for this topic:

• Read Gabrielle Appleby, Alexander Reilly and Laura Grenfell, Australian Public
Law (3rd ed, 2018), extracts from chapters 9 and 10 (see extracts on Moodle)
• Read Blackshield & Williams 7th ed pp 676-690, 702 (from [15.126])-703
6TH EDITION: 574-589; 600-602

Background Questions:
• Revision questions:
o Where does the ‘separation of powers’ derive from?
o What are the two limbs of the Boilermakers’ principle and what are the
exceptions to them?
• Does the separation of powers apply at State level?
• State the constitutional principle derived from the majority in Kable v DPP (1996).
• Where does the incompatibility doctrine come from?
• How does an implication from Chapter III, concerned as it is with federal judicial
power, result in the invalidation of a State law in Kable v DPP (1996)?

Discussion Questions:
• Based on what constitutional text and structure did the High Court imply the

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 limits in the Kable principle? Is this reasoning consistent with the orthodox
legalism espoused by the Court in Engineers?
• Is Kable simply yet another assault on the federal structure?
• Did the Court retreat from the reasoning of Kable in the later cases of Baker and
Fardon? If so, what might explain the retreat?

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TOPIC 18: JUDICIAL POWER & DETENTION – B

This class is a continuation from the last class of your consideration of the implied
limitations that the Court has drawn from the separation of powers. In this class, we
consider how the principles derived from the separation of powers have limited the
capacity of the federal government to detain individuals. The law in relation to this topic
has been in a state of flux for over two decades. You will learn about how different
judges and courts have tried to formulate these limitations, and what this tells us about
constitutional construction with respect to these types of implied limitations.
While this topic is not examinable as part of the problem-based questions in the exam, it
will be potentially examinable in the essay component of the exam.

Pre-class preparation for this topic:

• Read Blackshield & Williams 7th ed pp. 636-38, 648-675 [if pressed for time,
skim from page 667 (end of [15.52] to the end of page 669]
6TH EDITION: 536-539; 554-574

Questions:
• What is the broad constitutional principle derived from Lim, what is its
relationship to the Boilermakers principle?
• What exceptions exist to the principle that detention can only be lawfully ordered
by a Court?
• How did the framework of exceptions help defeat the argument in Kruger v
Commonwealth (1997) that forced removal of Aboriginal children from their
families was unconstitutional?
• How is it that a person may be held in detention indefinitely, with no prospect of
release, yet this is not seen as an instance of the Executive appropriating the
judicial power of punishment?
• In Thomas v Mowbray, why did the majority find that the function conferred on
the federal judiciary to issue control orders was ‘judicial’ in character? How did
the majority address each of Thomas’ arguments that the power was non-judicial?

Discussion Questions:
• Do you think it is legitimate for a constitutional system to draw a distinction
between the government’s power to detain citizens and non-citizens?
• In Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014)
French CJ, Hayne, Crennan, Kiefel and Keane JJ signaled that the reasonableness
of administrative detention will form part of the constitutional inquiry. Does this
constitute a shift in the jurisprudence?
• Explain how Hayne J’s judgment in Thomas v Mowbray differed from the
majority position in respect of Chapter III. Which position do you find the most
persuasive – Hayne J or the majority – and why?

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TOPIC 19: REVISION CLASS

This review session has two components. The first is an in-class review of the course, and
discussion of the themes that emerge to assist students in preparing for the essay
component of the course. Students will also have an opportunity in this class to ask their
teacher questions about the material covered in the course. The second component is an
ONLINE REVISION MODULE, which will support students in answering a problem-
based question from a previous exam in a structured way.

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