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LWB242 Constitutional Law

Cases Coleman v Power.....................................................................................................................84 Commonwealth v Tasmania (The Tasmanian Dam case) (1983) 158 CLR 1......................31 Fardon v A-G (Qld) (2005) 223 CLR 575.............................................................................105 Ha v State of New South Wales (1997) 189 CLR 465............................................................98 NSW v Commonwealth (the Workchoices case) (2006) 229 CLR 1......................................14 Ruddock v Vadarlis (2001) 183 ALR 1...................................................................................72 The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129................................................................................................................8 Wurridjal v Commonwealth of Australia [2009] HCA 2.......................................................48

Index
Introduction, History & Interpretation........................................................................................4 Separation and Division of Powers.........................................................................................4 Introduction to the Commonwealth Constitution...................................................................5 Interpretation...........................................................................................................................6 Commonwealth Law.................................................................................................................10 (1) Does the Commonwealth have a head of power?...........................................................10 Corporations Power (s 51 (xx)).........................................................................................10 (1) Section.....................................................................................................................10 (2) Is the corporation a Foreign, Trading or Financial Corporation?...........................10 (2) Scope of power........................................................................................................13 Trade and Commerce Power.............................................................................................19 (1) Is it Trade and Commerce.......................................................................................19 (2A) With other Countries............................................................................................20 (2B) With other States..................................................................................................20 (3) Characterisation/Scope............................................................................................20 Taxation...........................................................................................................................22 (1) Is it a tax?................................................................................................................22 (2) Does not Discriminates between States..................................................................25 (3) Laws imposing taxation may only do that..............................................................25 (4) Must originate in the House of Representatives......................................................26 Grants to States.................................................................................................................27 (1) Power.......................................................................................................................27 (2) Case Law.................................................................................................................27 Appropriations..................................................................................................................27 (1) Power to appropriate...............................................................................................27 (2) Is it a commonwealth purpose?...............................................................................27 (3) Legislative Restrictions...........................................................................................27 External Affairs Power.....................................................................................................28 (1) Section.....................................................................................................................28 (2) Treaty Aspects.........................................................................................................28 (3) Non-Treaty Aspects................................................................................................30 Race Power.......................................................................................................................33 Naturalisation & Aliens....................................................................................................35 (1) Definition................................................................................................................35 1

(2) Scope.......................................................................................................................35 (3) Is birth in Australia sufficient?................................................................................35 (4) non-citizen British migrants...................................................................................36 Defence.............................................................................................................................37 (1) Power.......................................................................................................................37 (2) Subject Matter / Is it for a defence purpose?...........................................................37 (3) Limits......................................................................................................................41 Inherent Nationhood Power..............................................................................................42 (1) What is it?................................................................................................................42 (2) Scope.......................................................................................................................42 (2) restrictions only on Commonwealth Legislative power?................................................44 (i) Restrictions on Fiscal Policy........................................................................................44 s 99: Prohibition of preference to states in laws of trade, commerce or taxation.........44 Tax on Property of State or Commonwealth................................................................45 (ii) Acquisition on Just Terms...........................................................................................46 (iii) Federal Separation of Powers....................................................................................57 (a) Sources of the Idea..................................................................................................57 (b) Definition of legislative, executive & judicial power.............................................58 (A) Judicial power only exercised by judicial bodies (courts under s 71)....................60 (B) Limits on powers given to Federal Courts..............................................................65 (C) Can the Commonwealth Parliament regulate the exercise of judicial power.........68 (3) Executive and Responsible Government.........................................................................71 (a) Who are the Executive?...........................................................................................71 (b) Unwritten Conventions & Responsible Government..............................................72 *(c)* Sources of Executive Power................................................................................74 Limitation applicable to Commonwealth and States................................................................79 (i) Freedom of Interstate Trade and Commerce................................................................79 (ii) Discrimination on the basis of out-of-state residence.................................................82 (iii) Free Intercourse.........................................................................................................84 (iv) Implied Guarantee of Political Speech.......................................................................85 (v) Implied freedom of movement and association..........................................................86 (vi) Implied right of legal equality?..................................................................................86 State Laws.................................................................................................................................96 Introduction...........................................................................................................................96 State Constitutions............................................................................................................96 Judicial Intervention in the Legislative Process................................................................97 (1) Is it within the States Legislative Power?......................................................................99 (A) No Manner & Form Provisions..................................................................................99 (i) General Rule.............................................................................................................99 (ii) Restricted by peace, welfare and good government?...........................................99 (iii) Amendment of State Constitution..........................................................................99 (iv) Separation of powers..............................................................................................99 (2) Restriction on Legislative Power..................................................................................100 (i) ** See uniform restrictions!.......................................................................................100 (ii) Excise Duties.............................................................................................................100 (1) The Section............................................................................................................100 (1A) Development......................................................................................................100 (2) The Law.................................................................................................................100 (3) Conclusion.............................................................................................................100 (ii) State Separation of Powers.......................................................................................104 Intergovernmental Relations...................................................................................................115 Inconsistency between Cth and State Acts.........................................................................115 2

(1) Section.......................................................................................................................115 (2) Are there Commonwealth and State Laws................................................................115 (3) Are the laws inconsistent?.........................................................................................115 (a) Are the laws mutually contradictory?....................................................................115 (b) Does one law confer and the other take it away?..................................................116 (c) Does the Commonwealth law cover the field?......................................................116 (3) Effect on State Law...................................................................................................118 Implied Immunities.............................................................................................................119 (1) Introduction...............................................................................................................119 (2) Clear cases where no implied immunity...................................................................119 (3A) Implied Immunities Restrictions on Cth Laws....................................................119 (3B) Implied Immunities Restrictions on State Laws..................................................120

Introduction, History & Interpretation


Separation and Division of Powers
Purpose The purpose of the separation powers is to vest seperat powers in different organs of government, to provide checks and balances on the exercise of power by the respective organs of government (Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1). In R v Davidson, Kitto J stated that the separation of powers is necessary for the protection of individual liberty of the citizen. Does Australia have a true separation of powers? The different organs of government are governed by separate chapters of the Constitution: Chapter 1: The Parliament Chapter 2: The Executive Government Chapter 3: The Judicature However, Australia do not have a true separation of powers because the executive must be members of the legislature. Legislature The method of government is representative government, whereby the people choose their representatives for the House of Representatives and Senate (Lange v ABC). Executive The Executive is governed by the doctrine of responsible government. The doctrine of responsible government describes the system whereby the executives are responsible to the legislature, who are in turn are responsible to the people. Key features: Judiciary Central to the judiciary, is the doctrine of judicial review, whereby the constitutional validity of all government action is subject to the review of the courts. Marbury v Madison: 4 the Executive acts on the advice of the Ministers, who are members of Parliament; the Ministers are responsible to the Legislature and ultimately responsible to the people at elections; the Executive is dependent upon the Legislature for its funds; decisions of Commonwealth officers are susceptible to judicial review.

A government act repugnant to the constitution is void Where an act is in conflict to the constitution, the judicature must recognise the constitutions supremacy. The constitution binds the courts as well as the legislature The courts role is to construe the law. Federalism Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248: The constitution was designed for the states to unite in one indissoluble commonwealth. The constitution is not an ordinary statute, it fulfils the objectives of the federal compact.

Introduction to the Commonwealth Constitution


Motives for federation: Free trade Common defence and external affairs policy Basic Elements The Constitution of the Commonwealth of Australia is technically s 9 of the Commonwealth of Australia Constitution Act (Imp). Sections 1-8 are generally referred to as the covering clauses to distinguish them from the sections of the Constitution itself. The Commonwealth Constitution established the institutions of a national government and outlined their powers: (see Chapters I-III, which establish the legislative, executive, and judicial arms of government respectively). The colonies became States in the federation and retained their existing Constitutions and governmental arrangements, but these were modified by and subject to the Commonwealth Constitution ( ee ss 106-108). US Influence Division of legislative powers between the commonwealth and state, with the commonwealths government with an enumerated list of legislative powers and states have the residue (ss 51, 52, 107 & 109)

Separation of powers UK Influence Monarch retained (ss 1 & 61), but with power delegated to the GovernerGeneral (s 2); Doctrine of cabinet government (s 64); No bill of rights, but some rights entrenched: o S 80 right to trial by jury o S 92 freedom of interstate travel o S 116 Religion o s 117 descrimination based on being from a certain state Division of Legislative Power Grants of legislative power to the commonwealth is under s 51 & 52. The States retain their ability to make laws for the peace, welfare and good 5

government from pre-federation under (s 107), provided that those are not vested exclusively in the commonwealth parliament. Constitutionality of Commonwealth Statutes 1. Grant of power; 2. No Prohibition (see s 80, 92, 99, 114 & 116 as well as inbuilt limitations in ss 51 (ii), (xiii), (xiv) and (xxxi); Constitutionality of State Statutes 1. Peace, welfare and good government of the state? 2. Check the following: a. Does it infringe the prohibitions of the commonwealth constitution (ss 92 & 117); b. Does it infringe a prohibition applying specifically to the states (ss 114 or 115); c. Does it relate to a topic which is reserved for the commonwealth government (s 52 & 90) d. Is it contrary to a binding manner and form provision e. If it purports to apply outside the state, whether there is a sufficient connection to the state; f. Whether it is inconsistent with commonwealth law.

Interpretation
The constitution is to be interpreted in accordance to its own term construed in their natural sense (Engineers Case). Recourse may be had to the history of a section (e.g. convention debates) to inform the contemporary meaning of the words, but not for the purpose of substituting the meaning of the words originally that were originally intended (Cole v Whitfield). The court may only look at probabilities and expediencies if the language of the constitution is ambiguous (Engineers Case). Change over time Words have a fixed connotation {criteria}, but the denotation may change over time {what is included} (Street v Queensland Bar Association). In Brownlee v The Queen, Kirby J advocated the adoption of a flexible approach to interpretation, whereby expressions are given contemporary meaning. However McHugh in Eastman v The Queen, supported an approach that placed greater importance on the objective intention of the text. Is a law valid? A law will be valid where there is a power to legislate and there is not a relevant restriction provision which would make the law invalid (Engineers Case). Once it is shown that an institution has the power to make the law, the onus is on the party asserting that the law was unconstitutional to show the relevant restrictive provision (Engineers Case). Once the limits have been defined by ordinary statutory interpretation, there is no 6

scope for the court to narrow the limits as prescribed by the natural meaning, because of fear that those powers may be abused (Engineers Case) {this is refered
to as the doctrine of implied prohibition, which is not to be used because it relies on necessity in the political sense, which is inherently incapable of consistent application}.

The commonwealth can make a law that affects the states (Engineers Case). Theory Factors that can be taken into account: 1. Literal meaning 2. Extrinsic evidence of framers intention 3. Judicial creativity Ways to keep the constitution flexible (Jeffrey Goldsworth): That although the law is determined by the intentions of the law makers, judges are free to determin how the law applies in a certain circumstance, independent of what the law makers would have intended it to be; The denotation may change, but the connotation cannot. The denotation is all the things in the world that something refers to, whereas the connotation is the criteria that define what is included in the term, and therefore determines the denotation. Non-literal, purposive interpretation whereby the words convey a more general meaning which is expanded later (in the examples due to technological change). E.g. ability to inspect bankers books being expanded to microfilm.

The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129 Issue: Interpretation + Commonwealth power vis-a-vis industrial disputes (Const s 51 (xxxv)) Facts: There was an industrial dispute between the Amalgamates Society of Engineers and the Adelaide Steamship Co Ltd along with 843 others, including a Western Australian Minister. Outcome: The commonwealth did have the power to legislate Law: Knox CJ, Isaacs & Richard Starke JJ There has been a lack of a clear underlying principle of interpretation of the constitution and has often rested on implication drawn from necessity, being the personal opinion of the judge declaring it. It is the duty of the judicature to give effect to the constitution according to its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed. Cannot rely on the rules of interpretation in the US to determine primary issues of statutory interpretation in relation to the Australian Constitution. The constitution should be interpreted by reference to the words of the instrument in its natural sense. When determining whether a piece of legislation is constitutionally valid, the court must examine the constitution, particularly the affirmative powers, conferring the legislative powers, as well as the restrictive provisions. o If this yields a valid law, a judge is not to inquire further or enlarge constructively those conditions and restrictions. The doctrine of implied prohibition is not to be used because it relies on necessity in the political sense, which is inherently incapable of consistent application. Once the limits have been defined by ordinary statutory interpretation, there is no scope for the court to narrow the limits as prescribed by the natural meaning, because of fear that those powers may be abused. The constitution binds the crown and its subjects. Where a body can point to a power to enact a certain law, those who assert that there is a restriction are required to point to authority in the constitution to do so. Held that the commonwealth may make laws binding on states under s 51 (xxxv) of the constitution if such legislation applies to them. Where the industrial dispute would be an industrial dispute as between an employee and private employer rather than the state, the term industrial dispute still applies.

Higgins J: There is no indication in s 51 (xxxv) of the constitution that the legislative powers of the Commonwealth stoped short at State activities. 8

Industrial dispute has the same meaning regardless of who the employer is. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to bey that meaning, even if we think the result to be inconvenient or impolitic or improbable. Words limiting the power are not to be read into the statue if it can be construed without a limitation. Furthermore, where the drafters intended to limit the commonwealths power to exclude states in s 51, they expressly did so. Only where there is ambiguity, may the court look at probabilities and expediencies The fact that the states are not named is irrelevant. Overruled Railway Servants Case

Duffy J Constructed an argument that although Western Australia is within the territory of Australia, for all purposes but the constitution, the state (Western Australia) is territory of that state and that state alone. Therefore, the Commonwealth cannot make laws enforceable against the states because it conflicts with the principal that states make laws within its territory and that territory alone.

Commonwealth Law
(1) Does the Commonwealth have a head of power?
Characterisation of laws is a two-step process (Re Dingjan; Ex parte Wagner). (1) determine the character of the law; (2) can this law be said to be within a head of power. A law may relate to multiple heads of power, and may effect areas not forming part of the Commonwealths legislative power (Fairfax v FCT).

Corporations Power (s 51 (xx))

(1) Section
s 51 (xx) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

(2) Is the corporation a Foreign, Trading or Financial Corporation?


(i) Foreign Corporation Here, <foreign corporation> was formed outside the limits of the commonwealth, meaning it satisfies the first limb of s 52 (xx) (Incorporation Case {New South Wales v Commonwealth (1990) 169 CLR 482 at 4978 per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ.}). (ii) Trading or Financial Corporation The commonwealth does not have the power to legislate with respect to incorporation itself (New South Wales v Commonwealth (the incorporation case)). Definitions Trading: It has been stated that buying and selling are the very heart of trading (R v Trade Practices Tribunal, ex parte St George County Council (1974) 130 CLR 533 at 570 per Stephen J). The activity of borrowing in order to lend at interest are activities that give a financial corporation its character (Re Ku-Ring-Gai Co-Operative Building Society (No 2) (1978) 22 ALR 621 {whether the Trade Practices Act 1974 (Cth) applied to
the Ku-Ring-Gai and Dee Why Co-operative Building Societies, which were set up to provide low interest loans to their members for housing, but with only the ancillary objective of making a profit from providing this finance. They were held to be financial corporations}).

Financial:

This was extended in State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 {Mason, Murphy and Deane JJ)}, where financial corporation included a corporation who deals in finance for commercial purposes, whether by way of making loans, entering into 10

hire purchase agreements or providing credit in other forms.. The court held that this activity need not be the predominant activity, but must still be substantial { A State
Superannuation Board that invested money and loaned money to members, was held to be a financial corporation.}

Is it a trading or financial corporation? It is not settled as to what test should be applied to determine whether the corporation is a trading or financial corporation. The two competing tests: the purposes and activities tests were first discussed in R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533. There, the court adopted the purposes test {St George County Council
bought and sold electricity and electrical appliances. Held, by a majority, St George County Council was not a trading corporation but a public utility supplying goods and services to the public.}.

However, in Adamsons Case {R v Judges of the Federal Court of Australia; Ex


parte Western Australian. National Football League (Adamsons case) (1979) 143 CLR 190}, the court applied the activities test. The better view may be that where

there are some activities, the activities test is to be applies, but if not, the purpose test should be applied. However, both views will be considered. The tests apply to the characterisation of trading and financial corporations ((State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282{The State Superannuation Board, which provided superannuation benefits to
retired public servants, invested moneys for financial gain and loaned moneys to members. Held, by a majority (Mason, Murphy and Deane JJ), to be a financial corporation. Activities test is applicable to trading and financial corporations. The majority stated that a corporation which engages in financial activities to facilitate its primary function is still a financial corporation a corporation which engages in trading or financial does not cease to engage in those functions because they are entered into in the course of or for the purpose of carrying on a primary or dominant undertaking not described by reference to trade.}).

Activities Test The activities test examines whether the current activities of the corporation involve trading or finance (Adamsons Case {The football
association was engaged in promoting sport, charging transfer fees for the movement of players and charging entrance fees for matches. Held, the football association was a trading corporation, with the majority applying the current activities approach}).

However, each judge of the majority differed on the degree to which the corporation must engage in the trading or financial activity: Barwick CJ required the activities to be a substantial function of the corporation; Mason J (Jacobs J agreeing) required the activities to be not so slight as to be incidental to some other activity. (in obiter states that schools, churches and charitable organisations are not trading corporations as their fund-raising are not significant as a proportion of the overall activities of those bodies) Murphy required the activities not to be insubstantial.

Mason Js approach seems to have attracted the most support from subsequent cases. 11

Application Hughes v Western Australian Cricket Association (1986) 69 ALR 660: WACA was a trading corporation; Subiaco Cricket Club Inc was not, despite some bar trade, because that trade was quite insubstantial in the context of its overall activities.

Quickenden v OConnor (2001) 109 FCR 243: Held, the University of Western Australia was a trading corporation. per Carr J at least 28% of the universitys revenue came from trading activities and this pointed to substantial trading activities that formed a significant proportion of the universitys overall activities. E v Australian Red Cross Society (1991) 27 FCR 310: Held, the Australian Red Cross Society and the New South Wales Division of the Society of the Prince Alfred Hospital were s 51(xx) corporations. However, neither the Red Cross nor the Hospital provided blood transfusions in trade and commerce. Australian Workers Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268: Held, the Etheridge Shire Council was not a trading corporation.

Here, on the activities test, <corporation> is [likely OR not likely] to be considered a [Trading/Financial] corporation, because _________. Purpose Test The purpose test considers the purpose for which the corporation was established (R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 {St George County Council bought and sold
electricity and electrical appliances. Held, by a majority, St George County Council was not a trading corporation but a public utility supplying goods and services to the public.}).

This was applied to a local council in R v Trade Practices Tribunal. The purpose test was also applied to a shelf company which was established with the objects appropriate to a trading or financial corpoation, finding that the corporation fell within s 51 (xx) (Fencott v Muller (1983) 152 CLR 570 {The court had to determine whether the TPA
applied to a shelf company. They examined the constitution of the corporation, finding that its objects included engaging in trading or financial activities}).

NB: reform of Corporations Law does not require a constitution guidance is needed from HC on this. Tasmanian Dams Case: The Hydro-Electric Commissions aim was to build a dam and generate electricity to be sold to customers. Held vy Mason, Murphy, Brennan & Deane JJ that it was a trading corporation. Here, the purpose test is likely to result in <corporation> being held 12

[to be OR not to be] a trading or financial corporation. (iii) Conclusion Thus, the better view is that <corporation> [is OR is not] a Trading/Financial Corporation.

(2) Scope of power


Development of Scope The sections initial interpretation was that in Huddart v Parker in 1909, where the power was construed narrowly. Higgins J in Huddart, construed it narrowly to prevent the Commonwealths accretion of power over a possibly limitless subject matter. Issacs J, in dissent, took a wide view of the section, relying on ordinary principles of construction to find that a law with respect to such a corporation drew the head of power {dismissed any notion that it was not within the power if it concerned dealings with outside people.}. Such a finding was in conflict with the interpretational approach advanced in the later Engineers Case. As such, in 1971, the Concrete Pipes Case {Strickland v Rocla Concrete Pipes Ltd}, overturned Huddart v Parker, holding that laws that regulated competition fell within s 51 (xx) because they regulated trade, but refused to define an outer limit. The scope of this limit was not decided in the following cases of Actors Equity or Tasmania Dams. In Actors Equity, laws protecting the corporation are valid. Gibbs CJ & Wilson J adopted a narrow view requiring the law to be related to their trading and financial activities, whereas Mason, Aickin & Murphy JJ adopted a wide view, with Stephen and Brennan J not expressing a clear opinion. Similarly, in Tasmania Dams, the doctrine was extended to activities done in relation to trading or financial activities. In 1995, the case of Re Dingjan; Ex parte Wagner was considered. There, the Industrial Relations Act that allowed variation of contracts that related to constitutional corporations, was held to be invalid by a 4:3 majority. The Majority, particularly Toohey J, required the corporations characterisation as trading as financial to be a significant in the way the law operated upon it {this required the law to have a beneficial or detrimental
effect on their trading or financial activities some doubt as to whether this would apply to the internal dealings of corporations}. However, the minority of Mason

CJ and Guadron and Deane J upheld the wide view. Current Test In 2006, the High Court concluded that the wide view was correct in the Workchoices Case. The High Court, with the exception of Kirby J, adopted similar reasoning to the dissenting judgment of Guadron J in Re Dingjan, holding that s 51 (xx) must be construed without regard to notions of federal balance. As such the court held that there was no need to limit the scope of s 51 (xx) by reference to the trading or financial, or by s 51 (xxxv) {Industrial arbitration and
conciliation power held that because it did not contain a positive prohibition, like except for state banking, it did not interfere with this power }. Consequently, laws that effect the

rights and obligations of corporations fall within s 51 (xx). 13

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NSW v Commonwealth (the Workchoices case) (2006) 229 CLR 1


Facts: The Federal Government passed legislation that reformed industrial relations laws and took over what had been the legislative domain of the states. The legislation only applied to relevant employers which were defined to include corporations, all employers in Victoria (had referred that power) and all employers in the relevant territories. Outcome: The legislation was constitutionally valid and the powers were within the corporations power. Law: Gleeson CJ, Gommow, Hayne, Heydon and CrennanJJ: Introduction/History o In Victoria v Commonwealth (Industrial Relations Act Case), it was conceded that the act fell within the corporations power. Part VIB of workchoices was similar to that act. A law may be based on more than one of the powers in s 51 S 51 (xx) o Arguments NSW argued that (xx) only applied to the corporations external relations and thus not IR; that (xx) requires something more than imposing obligations or giving rights to the corporation; that (xx) should be read down by (xxxv). CTH: that laws concerning rights and obligations of corporations fall under s 51 (xx)

o Discussion of Huddart, Parker where in 1908, the HCA interpreted (xx) restrictively in accordance with the doctrint of reserved state powers, which reserved that states powers to exclusively determine the laws governing its own internal trade. o Determining whether a activity is external or internal to a company would be a difficult measure of whether legislation fell within the corporations power a distinction based on internal/external, as Griffith CJ did in Huddart v Parker, does not stem from the terms of the constitution, but rather from an a priori assumption about the division of power. o The convention debates reveal very little about what the drafters intended s 51 (xx) encompass; o The argument that (xx) is confined to making laws with respect to trading activities of Australian trading corporations and the financial activities of Australian financial corporations is wrong because it would cause difficulty with Foreign corporations which because of from their point of view they were conducting foreign acivities and the legislative power vis--vis foreign corporations would be greater than of Australian corporations o Talking about Gaudron J in Re Dingjan: Laws regulation the activities, functions, relationship and the business of a constitutional corporation, and law creating rights, and privileges belonging to such a corporation, [imposing[ obligations on it and, in respect to those matters, [regulating] the conduct of those through whom it acts including its employees, and regulating 15

those whose conduct is or is capable of affecting its activities, functions, relationship or business would, on this test, be properly characterised as laws with respect to constitutional corporations. o Need to limit s 51 (xx) If there is no implied federal-state balance, the bare fact of s 51 (xx) does not lead to any need to limit (xx) S 51 (xx) and other powers should not be given meaning according to examples of extreme cases (producing inconvenient or absurd results) of its possible application to future law From an examination of the text rather than a view of states rights formed independently of the text f the constitution, there is no necessity to imply a reciprocal doctrine of non-interference Similarly, there is no need to find a doctrine of reserved powers from the text of the constitution The distinction between internal and external relationship of corporations is unhelpful With regard to the plaintiffs proposition of the distinctive character or discriminatory operation laws that regulate rights and obligations of corporations is a law with respect to corporations

o Conclusion

Relationship between s 51 (xx) and (xxxv) o NSW and the AQU argued that the cth power in (xxxv) meant that (xx) should be read narrowly, excluding IR o This argument is erroneous for a number of reasons (xxxv) does not cover IR, just Industrial disputes; and the act does not merely concern disputes, but sets minimum conditions, which are independent of resolving disputes An act may fall under multiple heads of power, and it is wrong to hold a law invalid because it does not fall within one of the heads

o Once legislative subject matter is established, it is irrelevant to inquire into the motives for its exercise. o A law within the legislative power of the commonwealth does not cease to be valid because it affects subject-matter outside the power; However, where there is a positive prohibition or restriction, this may be of general application; for example in Bourke v State Bank of NSW, it was found that the restriction other than State banking is of general application to s 51. S 51 (xxxv) does not contain any positive prohibition or restriction and therefore s 51 (xx) is not subject to any such restriction

o Latham CJ in Pidoto v Victoria, held that (xxxv) is a positive provision conferring a specific power and did not contain a negitive restriction. As such, it was incorrect to interpret this provision as restricting the power to deal with Industrial matters to only be where (xxxv) allowed if this was so, the cth 16

could not regulate such matters when it came to inter-state trade or with respect to the public service o There is no principle that parliament may not do indirectly what they cannot do directly Particular conclusions o Part 7 of the act, which prescribes minimum entitlements of employment, is valid because it imposes obligations on relevant employers (constitutional corporations) to give certain employment conditions. o pt 8 & 10, Divs 1 and 2 of pt12 and pt 23 deals with terms and coditions od employment to be provided by constitutional corporations; for the same reasons as part 7, the parts are valid. o Part 9 industrial action the conduct of employees or organisations of employees which is directed at an employee (constitutional corporation) as this gives constitutional corporations rights, the part properly falls within the corporations power. o Item 4 of schl 4 to the amending Act and Schl 8 to the new act Transitional provisions The law is in respect of constitutional corporations and is therefore valid o Part VIAAA Small business with less than 15 employees need not pay redundancy packages although it was repealed, it was valid under the corporations power o Ss 365 & 366 prohibited content in AWAs and establishing a civil penalty this was valid under (xx) as an AWA only applied to employers who were constitutional corporations o Ss 637 & 643 valid for the same reasons o Div 5 of pt 15 rights to enter premises the fact that the law applies to protect the premises occupied or controlled by a constitutional corporation means that the law was valid under 51 (xx) o Etc. o S51 (xx) & (xxxv) The transitional provisions fall within s 51 (xxxv) S 122 of the constitution Territories o The challenges to validity of the application to employer who carries on activities in a territory failed the act was valid. o The main arguments were focused on the possible application to employers whose activity in territories were insignificant Other Challenges o S 16 was not a bare attempt to limit the power of the states it merely set out that the law was to set out the whole law on this issue and the areas that are not legislated are meant to be unregulated: this was valid. o S 117 did not limit the states ability to operate as a government o The ability to make regulation was valid 17

Interpretation o Interpretation cannot be based soley upon the collective intent of the founders of the constitution. o When you do look at intention of the founders, it is in the resolution of competing interpretations of the constitution based on the text itself. o The failure of referendums to give the commonwealth additional powers in the relevant areas, lends no assistance in the resolution of these matters.

Kirby J (dissenting): Interaction between (xx) and (xxxv) o S 51 (xxxv) provided a safeguard on the legislative power of the commonwealth with respect to labour law. o The fact that earlier cases were not based on the corporations power was evidence that it was not a valid head of power o S 51 (xx) does not sustain a law which, properly characterised, is one with respect to the subject matter of s 51 (xxxv), that is, the prevention and settlement of interstate industrial disputes o S51 (xx) does not extend to a power that in truth deals with industrial disputes Federalism o In my view, the use of s 51 (xx) exhibited in the Amending Act carries with it, if valid, a very large risk of destabilising the federal character of the Australian Constitution o the outcome of the proposition that s 51 (xx) and (xxxv) should be read together is in accordance with the constitutions structure and design o Did not want to concentrate power in one body Conclusion o Some parts of the Ammending Act can be considered for the prevention of industrial disputes namely pts 7, 10, 12, 15, 16 & 23 o It would not be proper to sever the invalid parts of the legislation because key provisions of an integreated legislative measure would be severed. As such, it is not legitimate to sever. o The limits of s 51(xx) is found in the provisions and structure of the constitution and in its implications. o The act was invalid in its entirety. Callinan J (dissenting):

18

Trade and Commerce Power


s 51 (i) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) trade and commerce with other countries, and among the States;

(1) Is it Trade and Commerce


buying and selling are the very heart of trading (R v Trade Practices Tribunal, ex parte St George County Council (1974) 130 CLR 533 at 570 per Stephen J.) (i) Trade Includes: Transport or delivery: The act of transporting or delivering for reward (ANA v Commonwealth (1945) 71 CLR 29 at 81 per Dixon J { [a] law
authorizing the government to conduct a transport service for inter-State trade, whether a monopoly or not, appears to me to answer the description, a law with respect to trade and commerce amongst the States.}).

Activities preliminary to Trade: The activities preliminary to trade fall within the scope of T&C (W&A McArthur v Qld (1920) 28 CLR 530 at 546-7 per
Knox CJ, Isaacs and Starke JJ { all the commercial arrangements of which transportation is the direct and necessary result form part of trade and commerce. The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls trade and commerce.}).

Intangibles: Trade and commerce covers intangibles (Bank of NSW v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1 at 381-382 per
Dixon J: "It [trade and commerce] covers intangibles as well as the movement of goods and persons ... supply of gas ... transmission of electric current ... visual signals ... transportation, traffic, movement ... communication ...".).

Is profit essential? The motive of profit is not essential (R v Trade Practices Tribunal, ex parte St George County Council (1974) 130 CLR 533). Are Professionals engaged in Trade or Commerce? It is unclear whether a professional is engaged in trade or commerce. In R v Small Claims Tribunal; Ex parte Gibson [1973] Qd R 490 the court held that a dentist was not. However in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 an engineer was held to be engaging in trade & commerce. Goldfarb v Virginia State Bar, 421 US 773 (1975) lawyers engaged in trade or commerce?

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(2A) With other Countries


The power given by s 51(i) enables the Commonwealth to prohibit, regulate and control the importation and exportation of goods for any purpose (Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 {prohibition of sand mining challenged that could deny on any grounds therefore environmental reasons are valid}).

(2B) With other States


Delivery/movement across boarders If the law applies to transport, anything that crosses a border is interstate trade and commerce. Movement of intangibles (like credit) across borders is interstate trade and commerce (Bank of NSW v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1) Contract If the law applies to the making of a contract (rather than the delivery) the contract must (expressly or by necessary implication) contemplate delivery across a border (W & A McArthur v Qld (1920) 28 CLR 530 {k between 2
people in different states contract did not expressly or implicitly contemplate deliver across boarders}).

Business in multiple states A business in two States is not necessarily doing trade and commerce among the States (Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1).

(3) Characterisation/Scope
(i) Heart of the Power Prohibiting a part of trade and commerce, or only allowing on certain conditions (even if reasons for the law have nothing to do with trade and commerce) fall within the power (Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1) Regulating trade and commerce internationally or between states is permitted, including: who can be employed (Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492); conditions of work (R v Wright; Ex parte Waterside Workers Federation of Australia (1955) 93 CLR 528 {international}; R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 {interstate}).

Protecting interstate or overseas trade and commerce is within the power. Commonwealth participating in interstate or overseas trade and commerce, including creating a corporation to do so (Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 545; Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46).

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(ii) Ancillary The regulation of production or manufacture may be within the scope if it is incedental to the regulation of trade and commerce, despite it being wholly within a state (Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77 per Dixon CJ, McTiernan, Webb and Kitto JJ).. Affirming this, Fullagar J in Noarlunga Meat, held that ... all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth. {O'Sullivan v Noarlunga Meat Ltd (No. 1) (1954) 92 CLR 565 per Fullagar
J: ... all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth. Such matters include not only grade and quality of goods but packing, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an export market by developing it or impairing it. It seems clear enough that the objectives for which the power is conferred may be impossible of achievement by means of a mere prescription of standards for export and the institution of a system of inspection at the point of export. It may very reasonably be thought necessary to go further back, and even to enter the factory or the field or the mine. How far back the Commonwealth may constitutionally go is a question which need not now be considered, and which must in any case depend on the particular circumstances attending the production or manufacture of particular commodities. But I would think it safe to say that the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export.}

Extent? It is difficult to define the outer limits of the power where the law regulates inter and intra state T & C. In Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 the High Court held that the Australian Indsutries Preservation Act could apply where there was a mingling of inter and intra state trade, but not where there was solely intrastate trade. In Swift v Boyd Parkinson (1962) 108 CLR 189 the High Court held legislation relating to poultry killing and processing because about 5% were for export, to be valid, but found that the commonwealth did not intend to over-ride QLD legislation for the 95% of production. In Airlines of New South Wales Pty Ltd v New South Wales (No 2), the court held that regulations relating to airlines were valid even with respect to intra state flights because it may have an impact on international and intrastate trade and commerce because they had become inseperable {e.g. safety}.

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Taxation
51. The Parliament [has] power, subject to this Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to:- (ii) taxation; but so as not to discriminate between States or parts of States;

(1) Is it a tax?
a tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered (Matthews v Chicory Marketing Board (1938) 60 CLR 263 {Victorian legislation
authorised an agency to make a levy on the producers of chicory. The money raised was used to meet industry needs such as payment of expenses, repayment of borrowings, effecting insurance and improving the quality of chicory. Held, the legislation imposed taxation upon chicory and was an excise duty.}).

However, the definition in Matthews is not exhaustive (Air Caledonie International v Commonwealth (1988) 165 CLR 462 {An immigration clearance fee
was imposed on all people entering Australia (amendment to the Migration Act). The Commonwealth argued that it was a fee for service. Held, the Act imposed a tax because Australian citizens had a right to enter Australia anyway, they received nothing in return for the fee, so it was a tax rather than a fee for service.}

A tax may merely be the extraction of money even if it is not done by a public authority for a public purpose (Air Caledonie International v Commonwealth (1988) 165 CLR 462). Elements 1. a compulsory exaction; a. The extraction will be compulsory if a person has no choice but to pay the charge (Victoria v Commonwealth (the Pay-Roll Tax case) (1971) 122 CLR 353). b. If one person is practically compelled to pay a tax imposed on another, that will satisfy the compulsion element (MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622). 2. of money; a. The extraction need not be money (Air Caledonie International v Commonwealth (1988) 165 CLR 462). b. The charge will be compulsory even if the statutory scheme offers an alternative to payment where the payment is a burden which the taxpayer would naturally seek to avoid (AttorneyGeneral (NSW) v Homebush Flour Mills (1937) 56 CLR 390 {The Flour Acquisition Act 1931 (NSW) required flour millers to sell their
flour to the government and either be compensated for it, or buy it back for a higher amount. The millers were required to store the flour until it was sold by the government. Held, if the millers did not buy their flour back, they would go out of business. This practical compulsion to pay the difference meant that it was a tax: When the desired contributions are obtained not by direct
command but by exposing the intended contributor, if he does not pay, to worse burdens or consequences which he will naturally seek to avoid, the payment becomes an exaction. The fact that no legal obligation to pay is imposed enforceable by direct legal remedies, civil or criminal, will not, in my opinion, prevent the exaction fulfilling the description of a tax; because in truth it is exacted by means of sanctions designed to that end, sanctions consisting in the detriments arising from the adoption by the taxpayer of the alternative left open by the legislation.}).

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3. by a public authority; a. Public authority includes a statutory board (Matthews v Chicory Marketing Board (1938) 60 CLR 263). b. Public authority includes anyone who is undertaking a public task (Air Caledonie International v Commonwealth (1988) 165 CLR 462); i. Also Australian Tape Manufacturers Association v Commonwealth (1993) 176 CLR 480 { The Copyright
Amendment Act 1989 (Cth) imposed a royalty charge on the sale of blank audio tapes. The purpose of the scheme was to compensate record companies and performers for losses suffered as a result of unauthorised duplication of sound recordings. The proceeds of the levy were payable to a collecting society, a company limited by guarantee, which in turn would dispense the proceeds to copyright owners. Held it was a TAX. The fact that the body is performing a public function is the important factor. The majority go as far as to day there is no requirement that it be levied by a public authority};

4. for public purposes; a. A tax is usually imposed to raise revenue (Airservices Australia v Canadian Airlines International {Compass went into liquidation.
Had not paid charges. Civil Aviation Act 1988 (Cth) allowed for a lien to be executed on aircraft until charges paid. Compass was leasing a Canadian Airlines plane. Held, as a tax is generally imposed to raise revenue, this was not a tax. The charge would have had to be devoted to building up consolidated revenue.}).

b. An objective of raising revenue is not a universal determinant, but its absence is a significant factor (Airservices Australia v Canadian Airlines International). c. Rasing revenue may be secondary or a means to achieve another purpose (Norther Suburbs General Cemetery Reserve Trust v Commonwealth {A traing scheme imposed on employers, where
if they didnt spend a certain amount on training, the shortfall was payable to the Cth}; Fairfax v Federal Commissioner of Taxation {Superannuation tax break where specified amounts were invested in public securities; held that it was still a law with respect to taxation}).

d. Payment of the money into consolidated revenue, creates a presumption that it is for a public purpose (Luton v Lessels (2002) 210 CLR 333 {Constitutional validity of the Child Support
(Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) was challenged. Held, while even though the money raised was paid into the Consolidated Revenue Fund, the legislation had neither the purpose nor the effect of raising revenue for the Commonwealth. Rather, the legislation created an obligation in the form of a debt payable by the liable parent to the eligible carer, and the creation of a legal obligation, enforceable by private action, to pay for the support of a child, is not taxation (at 344 per Gleeson CJ; see also Kirby J at 370-1).}).

e. A legislative solution to a problem may be characterised as an activity for a public purpose (Australian Tape Manufacturers Association v Commonwealth {Majority thought that if you were
solving a problem, this constituted a public purpose. Whereas, the minority asserted that the extraction must be fore the purpose of raising revenue, which

23

ordinarily would be added to consolidated revenue}).

5. not a payment for services rendered. a. Fees for services rendered are not taxes (Harper v Victoria (1966) 114 CLR 361 {owners of eggs in Victoria were required to pay a
fee to a government agency to pay for grading, testing and marking of eggs. Held, the fee was to defray the costs of the service rendered. Therefore, not a tax}; Cf Parton v Milk Board (Vic) (1949) 80 CLR 229. {The Milk Board Act 1933 (Vic) provided for the establishment of a Milk Board, which promoted milk consumption, licensed dairies, and paid for various administrative expenses. The Act provided for the imposition, by the Board, of a milk levy by dairymen, who distributed the milk. The milk levy was onetenth of a penny per gallon of milk sold or distributed. Held, as the fee payable was closely linked to the quantity of the milk sold and not as payment for the services provided to the dairymen, the fee was a tax and not a marketing levy.}).

b. The fact that a public authoritys activities are beneficial to an industry, does not constitute a service if there the authority does not perform a particular service for a particular person or class of person (Parton v Milk Board (Vic)). c. There must be a relationship or connection between the fee and the service provided. Otherwise, the fee is a tax (Air Caledonie International v Commonwealth).). i. The services must be rendered at the direction or request of the person required to make the payment (Air Caledonie International v Commonwealth). ii. The money extraction must be related to the value of what is acquired (Air Caledonie International v Commonwealth; Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 {Plaintiff challenged the validity of legislation that set up a training
scheme. Employers were required to expend money on workforce training and if they did not spend the required amount they were required to pay the shortfall to the Commonwealth. The money collected was then to be expended by the States or Territories on facilities and services relating to workforce training. Held, the training guarantee levy was a tax and not a fee for services rendered as the legislation did not connect the charges made with the benefit provided.}).

d. The fact that the extraction is defined as a fee for services is not decisive (Air Caledonie International v Commonwealth). e. This is an example of special types of extraction that are not taxes even if all other positive attributes are satisfied {e.g. use of property, fee for a privilege or fine are other examples} (Air Caledonie International v Commonwealth). 6. Not a fee for licence; a. Statutory licence fees are not regarded as taxes as long as the fee is reasonably related to the value of the privilege provided or the cost of providing the privilege (Harper v Minister for Fisheries (1989) 168 CLR 314 {Tasmanian law prohibited abalone
fishing without a license, for which a fee was payable. Held, this was akin to a profit a prendre (right of access), or a right to acquire property, or part of a

24

system for preserving a limited resource, not a tax. But, a fee aimed at preserving a natural resource may be a tax, if there is no discernible relationship between the fee and the value of what is acquired.}).

7. Not an arbitrary exaction; a. A tax must not be an arbitrary extraction (MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 {A
scheme was established to deal with tax avoidance. If company tax was not paid, shares could be sold and assets stripped from the company. This scheme relied on a certificate of tax liability issued by the Commissioner of Taxation. This certificate, which stated that company tax was due and payable and remained unpaid, was conclusive evidence of the matter stated in the certificate for the purpose of the assessment of the recoupment tax. Held, this was an arbitrary exaction as there was no opportunity to challenge the certificate.}).

8. Not a penalty a. Penalties included in tax legislation are distinguished from taxing provisions because the penalties operate only where there has been a failure to discharge antecedent obligations on the part of the person on whom the exaction falls (Re Dymond (1959) 101 CLR 11 {Section 46 of the Sales Tax Assessment Act (No 1)
1930 (Cth) imposed additional taxes on people who did not furnish tax returns Held, this exaction was punitive, and only indirectly fiscal. It was a sanction, not to raise revenue. Not a tax. }).

b. Provisions for the recovery of tax or amounts in lieu of tax probably come within the incidental power (Collector of Customs (NSW) v Southern Shipping Co Ltd (1962) 107 CLR 279).

(2) Does not Discriminates between States


The power does not extend to taxes that discriminate between states or part thereof (s 51 (ii)). See restriction on law making power.

(3) Laws imposing taxation may only do that


A law imposing taxation may only deal with the imposition of taxation; any other law has no effect (s 55).
55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. The purpose of s 55 is to prevent the tacking of extraneous matter to a tax bill and the tacking together of tax Bills of different kinds and unlimited number in one measure (Osborne v Commonwealth (1911) 12 CLR 321 at 342).

A narrow view was initially adopted in Re Dymond that drew a distinction between laws which imposed taxation, those which dealt with the imposition of taxation although not actually imposing it, and those which were with respect to taxation but dealt with broader aspect. However, a wider view was adopted in 2004, which held that in addition to laws that actually imposed a tax, laws that dealt with the collection, assessment and recover of the tax was a law dealing with the imposition of taxation for the purposes of s 55 (Permanent Trustee Australia Ltd v Commissioner of State 25

Revenue (2004) 220 CLR 388 {The

appellant entered into an instrument of lease regarding the development of a hotel at Tullamarine Airport. The airport was a Commonwealth place, for the purposes of s 52(i) of the Commonwealth Constitution. The respondent made an assessment to stamp duty in respect of the instrument of lease, purportedly under the Stamps Act 1958 (Vic), as applied to the airport by the Commonwealth Places (Mirror Taxes) Act 1998 (Cth). In this respect, the Treasurer of Victoria had modified the application of the Stamps Act, under s 8(2) of the Commonwealth Places (Mirror Taxes) Act. The appellant brought a proceeding in the Supreme Court of Victoria, objecting to the assessment. The grounds of the objection included that the Commonwealth Places (Mirror Taxes) Act was constitutionally invalid as a result of ss 55. The proceeding was removed into the High Court, where a case was stated for the consideration of the Full Court. Held, the Commonwealth Places (Mirror Taxes) Act was not invalid

on the ground that, contrary to s 55 of the Constitution, it imposed taxation and dealt with a subject matter or subject-matters other than the imposition of taxation. The Act, by applying state taxation laws to Commonwealth places, dealt with one subject of taxation only, in conformity with s 55.}).

Thus laws which are incidental to the imposition of tax on one subject do not contravene s 55. Effect on Law: In Air Caledonie v Cth, , the Court held that the amending act that imposed the tax was invalid rather than the Migration Act.

(4) Must originate in the House of Representatives


A law dealing with appropriation and taxation must originate in the House of Representatives (s 53). The Senate may remit legislation to the lower house {for them to ammend}, but may not amend the legislation themselves (s 53). S 53: Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate The Senate may not amend proposed laws imposing taxation [but it may remit it to the House].

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Grants to States
s96 During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

(1) Power
Section 96 of the Constitution allows the Commonwealth to make grants to the states on such terms and conditions as the Parliament thinks fit.

(2) Case Law


The Federal Roads Case upheld a grant conditional upon the states supplementing the funds to construct certain roads. In the two Uniform Taxd Cases, the high court read s 96 to allow the Commonwealth to tie absolutely any condition to a state grant, whether or not they had a relevant head of power. The High Court held that the condition could induce the state to exercise powers or not, provided it didnt amount to coercion. (3) Conclusion Here, the conditional grant is clearly within the power conferred by s 96.

Appropriations
81. 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.

(1) Power to appropriate


s 81 allows the commonwealth parliament to appropriate money for the purposes of the commonwealth.

(2) Is it a commonwealth purpose?


The appropriations power was initially read down to restrict the commonwealth to appropriate money only within the 4 corners of the constitution (Pharmaceutical Benefits Case). However in the AAP Case, a wide view was adopted which give the commonwealth the power to make appropriate on almost any subject matter. This approach was affirmed in Davis v Commonwealth, where the court held that appropriation acts were generally not justiciable.

(3) Legislative Restrictions


An appropriation law may only deal with appropriation; any other law has no effect (s 54). A law dealing with appropriation must originate in the House of Representatives (s 53). The Senate may remit legislation to the lower house {for them to ammend}, but may not amend the legislation themselves (s 53). 27

External Affairs Power

(1) Section
s 51 (xxix) gives the Commonwealth the power to make laws with respect to external affairs. s 51. The Parliament shall, subject to this Constitution, have external affairs.
power to make laws for the peace, order, and good government of the Commonwealth with respect to (xxix)

(2) Treaty Aspects


Treaties are agreements between or amoung states governed by international law, imposing obligations under international law. (i) Entry into a treaty The Commonwealth has international legal personality (not states), which is exercised by the Executive exercising its prerogative powers under ss 2, 61. The Commonwealth may enter into a treaty on any subject matter. Entry into a treaty may occur through 3 ways: Signature the courtry has authenticated the text, but did not agree; Accession consent without having signed the treaty; and Ratification consent and signing.

{Reforms in 1996 to treaty making so Parliament and States can participate more} (ii) Effect of a treaty on domestic law The treaty has no direct effect until legislation is passed to implement the treaty (Bradley v Cth). However, indirect effects may be seen through: Interpretation of statutes to comply with international law (Polites v Cth); Interpretation & development of common law (Mabo (No 2)); Creation of legitimate expectation in admin law (MIEA v Teoh) {but executive can negate this}.

(iii) Scope of Power (a) subject matter Provided that it is a bona fide international convention, the subject matter of the treaty is irrelevant in determining whether the Commonwealth has a power under s 51(xxix) (Tasmanian Dams Case). The limitation as to the bona fide nature of the treaty is rarely going to be in question, due to the difficulty of showing a lack of good faith on the part of the Governor-General and/or the international community / UN (Koowarta per Gibbs CJ). 28

(b) Obligation? The law is not settled as to whether the treaty must impose an obligation upon Australia. The requirement of an obligation is not required where the treaty confers benefits to Australia (Airlines of NSW v NSW (No 2)). The test appears to be whether the international community sees the treaty, as a matter of fact, as imposing an obligation on Australia, now or in the future, by examining the importance by which the international community place on it (Qld v Cth (Rainforest Case) {concerned the world heritage listing of Qld rain forests. The court held that the
forests inclusion on the heritage listing indicated that the international community placed great emphasis on the issue}; Richardson {encompasses reasonable expectations of future obligations}).

This element is related to that of specificity. If the treaty is too broad, this is not indicative of an obligation (IR Act Case).
Development

R v Burgess; Ex parte Henry: Regulation of air navigation o Evatt & McTiernan JJ advance the wide view any bone fide + may also include draft treaties o Latham CJ does not seem to rule wide view out power could extend to any subject mater but not expressly adoptin o Dixon & Starke JJ favour the narrow view sufficient or undisputable international nature Koowarta v Bjelke-Petersen: Concerned the Racial Discrimination Act there was an international convention on the irradiation of all forms of racial discrimination. o Mason, Murphy & Brennan JJ adopt wide view - any bona fide o Stephen J adopts the intermediate test of international concern the subject matter must be of intentational concern o Gibbs CJ, Aickin & Wilson JJ dissent, adopt narrow view reqd relationship of relations with countries Tasmanian Dams o Mason, Murphy, Brennan & Deane JJ adopt the wide view any bona fide international convention would be covered. o Gibbs CJ, Wilson & Dawson JJ dissenting, reluctantly adopt international concern test adopted the intermediate view Tas Dams followed in: o Richardson v Forestry Commission all judges accept tasmainian dams cases (some reluctantly) o Vict v Cth (IR Act Case) construed with all the generality that the words permitted

(iv) Limits (a) Express constitutional limits s 51 (xxix) is subject to the express constitutional limits and to the implied limitations in Melbourne Corporation v Commonwealth {Discriminatory interference with States}. (b) Conformity It is now clear that the implementing law must sufficiently conform to the terms of the treaty (Tas Dams). The better view appears to be that to be that the law must be 29

reasonably appropriate and adapted to the implementation of the treaty, and not be inconsistent with it. (IR Act Case). However, there is some judicial support for the test to be whether the law was reasonably proportionate to the implementation of the treaty (per Deane J in Tas Dams).
Cases adopting the liberal view: R v Poole; Ex parte Henry (No 2) - Airlines of NSW (No 2) adopted liberal view neither inappropriate or inconsistent - Tas Dam Case must look at whether appropriate and adapted to meet purpose - Richardson continued the liberal view much had to be left to the judgment of parliament Rainforest Case - IR Act Case clearly adopts the liberal view

(c) Partial Implementation Generally, partial implementation is permitted (Seas & Submergerd Lands Act Case). However, where the deficiency is so substantial as to deny the character of the law as one implementing the convention, or when coupled with other law, it becomes inconsistent with the convention, the deficiency will be fatal to the laws validity. (d) Specificity The law must implement a specific course that the treaty requires to be adopted, not merely one of multiple means that the may achieve an ideal (IR Act Case at CLR 486). However, the imprecise nature of international law causes problems in this respect and the court is unlikely to enforce this requirement too strictly (IR Act Case).

(3) Non-Treaty Aspects


(i) Customary International Law Customary International law regulates relations between countries in the absence of treaties. The implementation of Customary International law is within the scope of s 51 (xxix) (Tasmanian Dams). Recent Cases considered customary international law Brennan & Toohey JJ in Polyukhovich v Commonwealth, held that customary international law did not impose an obligation to prosecute axis war criminals {therefore no head of power}. The Court in the IR Act Case held that there was no right to strike under customary international law. (ii) Persons, things & circumstances internal to Australia s 51 (xxix) extends to persons, things & circumstances internal to Australia to the extent that it covers: Matters concerning relations with other countries, such as sedition 30

against other governments; Matters concerning foreign nationals, residents or entitites within Australia (e.g regulating their transactions with Australia and Australians).

(iii) Persons, things & circumstances geographically external to Australia It appears that mere geographical externality is sufficient to bring it within a head of power (Polyukhovich v Commonwealth {war crimes committed in Europe in WWII}). Cases Applying this Principle Horta v Commonwealth: question relating to implementing a treaty with Indonesia about East Temor, but not required as it was geographically external; XYZ v Commonwealth: Law applying to child sex tourism overseas.

(iv) Recommendations of International Bodies It is not clear whether the implementation of recommendations of international bodies fall within s 51 (xxix). There is dicta that suggest that these can bring legislation within the scope of s 51 (xxix), however there is not an authoritative case (See Burgess, Tas Dams, Polyukovich). However, where the recommendation is related to a treaty, it is highly likely that this will be brought within the scope of s 51 (xxix) (IR Act Case). {note: ILO Recommendations are never stand-alone recommendations linked with treaty} Limits? It is unclear whether the implementation of recommendations are tied to another test requiring either some conformity, or international concern. (v) Matters of International Concern The Court in Tasmanian Dams held that matters of international concern fell within the scope of s 51, however only Murphy J was the only justice to hold that it could be sustained independent of a treaty (xxix). However such a proposition was criticised by Callinan & Heydon (dissenting) in XYZ v Commonwealth, who suggested that international concern in the absence of a treaty would not be sufficient. What is sufficient international concern? Brennan J in Polyukovich, sought to impose a qualification that the standard must be broadly adhered to internationally. {In my opinion, the court would be likely to impose a reasonably rigorous test}

31

Commonwealth v Tasmania (The Tasmanian Dam case) (1983) 158 CLR 1. Facts: Tasmania authorised the construction of a dam. The commonwealth enacted a number of pieces of legislation that made it illegal to construct the dam. They sought a declaration that the building of the dam was illegal and Tasmania sought a declaration that the Commonwealth acts were invalid. Outcome: Law: Per Butterworths student companion: There was a sufficient international treaty to attract the commonwealths power The World Heritage (Western Tasmania Wilderness) Regulations 1983 were invalid as they went beyond what was reasonable and appropriate measuees to implement the convention; There is no persuasive reason for thinking that the international character of the subject matter or the existence of international concern is confined to that part of the treaty which imposes an obligation on Australia: per Mason J at CLR 123 Implicit in the requirement that a law be capable of being reasonable considered to e appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a needed for there to be reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it. : per Deane J at CLR 260 Furthermore, the Cth could legislate under the corporations power as tth HydroElectric commission was a trading corporation

32

Race Power
s 51 (xxvi) allows the Commonwealth to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. S 51. The Parliament [has] powerto make laws with respect to (XXVI) the people of any race other than the aboriginal race in any State for whom it is deemed necessary to make special laws. (i) People of any Race Race is not precisely defined, however it includes a biological element. People identify themselves and are identified others as a race by reference to: common history; religion; spiritual beliefs; culture; biological origins; physical similarities.

(per Brennan J in Tasmanian Dams Case). (ii) Special laws To be a special law, the law cannot apply equally to all races (Koowarta {A general prohibition of racial discrimination is not a special law}). However, despite the conferral of a general benefit, if the law provides a benefit of special significance to a certain race, it will be considered a special law (Tasmanian Dams {protection of aboriginal sites confers a benefit to mankind generally, but especially to aboriginals}). It is not fatal that only a segment of the race benefit (NT Act Case {Native title only effects some Aboriginal or Torres Strait Islanders, but still valid}). Nor is it fatal if the law is for an identifiable sub-group of people of a particular race (Kartinyeri {It did not matter that a Bridge Act affected an area associated with a particular group of Aboriginal people}). Examples The special law may be one that protects the cultural heritage of a particular race (Tasmanian Dams {protection of aboriginal sites of archaeological significance}). The Native Title Act 1993 is a special law because the benefit is confered on Aboriginal and Torres Strait Islanders (Native Title Act Case). (iii) Deemed Necessary As a general rule, the judgment as to necessity is for the parliament to decide. In Kartinyeri, Gaudron J held that the parliament must have some material that might reasonably allow them to form a political judgment that there is a difference requiring the law. Whereas, Gummow & Hayne JJ suggested that the court will find the law invalid under this power where there is a manifest abuse. It is unclear to what each of these tests overlap, however it appears that only in 33

extreme cases will the court find a law invalid under this element. (iv) Beneficial or Detrimental? This section was originally intended to permit discriminatory laws, however the intention behind the 1967 amendment was clearly to allow the Commonwealth to make laws only for the benefit of the Aboriginal race. There was general agreement in Koowarta and Tasmaninan Dams, that the power allowed the commonwealth to enact detrimental laws. In Kartinyeri, the court was called upon to decide whether an act that removed Aboriginal and Torres Strait Islander land from Herritage protection was invalid because it was detrimental to Aboriginal people. A 5:1 majority held the laws to be invalid, but for different reasons. Brennan CJ and McHugh J found no need to decide whether the power extended to detrimental laws, as they held that the power to make laws carried with it the power to repeal laws; Gummow & Hayne JJ held that the race power extended to beneficial or detrimental laws, subject to review on the grounds of manifest abuse; Guadron J held that the law must be reasonably capable of being views as appropriate and adapted to a relevant difference. However Gaudron came to the same conclusion as the CJ, that the power to enact, carried with it the power to repeal. {also held that the power does not currently allow laws detrimental to Aboriginal Australian there is no relevant difference that would allow a detrimental law be considered reasonably appropriate and addapted}
Kirby J (dissenting): the power does not authorise laws detrimental to Aboriginal people. The repeal principle must give way to the requirements of the power. The 1997 Act is invalid. logic: if there was an act that was beneficial, the parliament couldnt amend it to the detriment of those people.

apply 3 different tests!

34

Naturalisation & Aliens


S 51(xix) gives the commonwealth the power to make laws with respect to naturalisation and aliens. S 51. The Parliament [has] powerto make laws with respect to (xix) Naturalization and aliens.

(1) Definition
Naturalisation is the process whereby an alien or non-citizen becomes an Australian citizen. {alien is now synonymous with non-citizen} Parliament has the power to determine who is an alien, but cannot stray beyond a person who could not possibly be considered to be an alien in the ordinary sense of the word. In Nolan v MIEA, the court held alien to include people born outside of Australia whose parents were not Australian citizens, and who had not become an Australian citizen. Alien extends to a person who ceased to be a citizen through denaturalisation (Nolan v MIEA). {The definition of alien may change over time to correspond with modern conceptions of the word} Prior to 1949, there was no separate Australian citizenship, naturalisation meant becoming a British subject. The Citizenship Act 1948 (Cth) {now see Australian Citizenship Act 2007 (Cth)}, established an Australian nationality, and thus, separate citizenship. The Act refered to Australian citizen and British subject {british subject was
removed in 1987; citizenship was extended to include any British subject ordinarily resident in Australia for 5 years by 1949}

(2) Scope
The scope extends to the ability to impose burdens, obligations & disqualifications which are not imposed on others. The scope includes the power of deportation, which is relied on by the Migration Act 1958 (Cth).

(3) Is birth in Australia sufficient?


Although Australia had traditionally determined citizenship by birth within Australia, in 1986, an amendment to s 10 of the citizenship Act deemed a person to be an Australian citizen if: (a) (b) a parent of the person was an Australian citizen at the date of the persons birth; or the person has been an ordinarily resident in Australia throughout the period of 10 years commencing on their day of birth.

The amendment was upheld in Singh v Commonwealth, meaning that birth in Australia does not necessarily equate to citizenship (Signh v Commonwealth { S born in Australia in 1998 to Indian parents whose visas had expired. S was not yet 35

10 years old. Minister trying to deport parents & children; Held 5:2, s 10 valid, S an alien and deportable. Majority held upheld the general rule that the parliament ca define alien, to the extent that it is not inconsistent with its ordinary meaning}). The principle in Singh applies even to the extent that a person may be stateless (Koroitamana v Commonwealth).

(4) non-citizen British migrants


Although initially uncertain, it was held in Shaw v MIMA (2003), that a nonnaturalized British citizen who entered Australia in 1974 was an alien and therefore deportable. The majority held that the relevant date was January 26 1949 {Majority of 4:3; minority suggested the relevant date was 3 March 1986}. {This affirmed the previous decision of Nolan v MIEA; Cf Re Patterson; Ex parte Taylor (2001), which reversed Nolan}

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Defence

(1) Power
{state words} S 51. The Parliament [has] power to make laws with respect to (vi) The naval and military defence of the Commonwealth and of the several states, and the control of the forces to execute and maintain the laws of the Commonwealth The defence power is not exclusive to the Commonwealth (Carter v Egg & Egg Pump Marketing Board). {States can help the Cth} However, the states cannot raise forces.

(2) Subject Matter / Is it for a defence purpose?


The defence power is a purposive power, meaning that the law must be for a defence purpose or need (Stenhouse v Coleman (1944) per Dixon J) {held that the distribution of bread during WWII fell within the defence power.}). Judicial Notice? Will the court take into account evidence? Although the court usually only takes judicial notice {confined to taking notice to facts that are in common knowledge}, with respect to the defence power, the court is willing to take evidence (Stenhouse v Coleman; ACP v Commonwealth). Subject Matter Because of the purposive nature of the defence power, the permissible subject matter is not constant. Laws directly related to defence are always within power (ACP v Commonwealth per Fullagar J). Laws which deal with secondary aspects of the power, that is economic and social regulation, may be valid depending on the defence situation at the time passed (ACP v Commonwealth per Fullagar J). As such, the scope of the power will depend on the classification of the defence situation, which is usually divided into 5 categories: (i) Profound Peace When: Profound peace is characterised by the absence of tensions. The secondary aspects of the power are the narrowest at this time. In Commonwealth v Australian Shipping Board, the court held that in profound peace, the defence power did not permit the Commonwealth to engage in commerce {there, not being able to enter into an outside contract to supply a council with turboalternators}. {The Commonwealth argued that they defence power supported
such contracts because it was enabled the production to be kept running for possible future needs.}

{compare with the Clothing Factory Case below!}

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(ii) Uneasy Peace The power in uneasy peace is slightly wider. In A-G (Victoria) v Commonwealth (Clothing Factory Case) (1935), the Commonwealths clothing factory used to manufacture naval and military equipment and uniforms engaged in trade during peace time. The Court upheld these actions as valid, distinguishing the Shipping Board Case, on a number of issues, but primarily that the climate was not as peaceful. Other important factors in were that: Exactly the same equipment was used to trade as for military production; A more detailed defence was put forward that stated that the reason for trading was to maintain efficient and trained staff; The commercial supply was subsidiary to the main purpose of keeping the factory in a prepared state.

{compare/conclude which is more likely to apply given the different circumstances} (iii) War Preparedness War preparedness is characterised by a deteriorating situation. Under this state, certain economic and social controls are allowed. In ACP v Commonwealth, in times of war preparedness, a law which allowed the Commonwealth to sieze the property of the ACP and declare bodies and persons as unlawful was held as invalid {only Latham J dissented}. The law must be reasonably appropriate and adapted (ACP v Commonwealth). In Marcus Clarke & Co v Commonwealth (Capital Issues Case) (1952), the court held that the Treasurer could validly refuse consent for a company to raise loans and share capital. A decisive factor in this case was that free capital raisings could potentially crowd-out government capital raisings to fund the war.
Australian Communist Party Case (1951) Facts Attempt to outlaw the communist party of Australia Communist party Dissolution Act- Cold War was in development and the communist party had taken over China Menzies Govt decided that the CP needed to go Claimed that the communist party could endanger Australia as a nation Declared that the communist party had a revolutionary and violent nature, asserted its connection with the world wide communist movement Declared the party unlawful and dissolved it and forfeited its property In regard to other related associations they became unlawful if the G-G said that they were unlawful. The G-G could form an opinion that an association was sympathetic to the party and would dissolve the association and its property forfeited (they had 28 days to appeal) A person could be labelled someone who was prejudicial to the security of Australia and

38

you couldnt hold office of Cth or an industrial occupation (most blue collar occupations were covered) The Act reversed the onus of proof making someone prove that they werent communists (issues with civil liabilities) Held: (Dixon, McTiernan, Williams, Fullagar, Kitto) 1. The Act was NOT shown to be a law for the defence of the Cth in the peace time context of the Act There was a suggestion by the Court that a law like this could be valid during war-time. (Dixon J) Draw authority over an immense field and most due to very nature ample discretion of war and organising resources, controlling economy 2. The validity of the Act did not depend on the allegation in the preamble The legislation in question purported to assign its connection with the defence power to what the Parl said in the preamble and also as to the opinion of the Executive. There was a Legislative and Executive usurpation of the judicial role. Judicial disgust at Cth trying to write itself into power 3. Neither the legislatures preamble or the G-Gs opinion barred the HC from inquiring into the constitutionality of the legislatures and G-Gs actions Fundamental ground for invalidity - you had here a legislative and executive trying to take over the role of the court because the legislation purported to establish the connection with defence by the preamble and the opinion of the executive and the court reiterated that there is right of judicial review. Fullagar J said that the validity of a law does not depend on the opinion of the law-maker or the person who is to do the Act. It was felt that parliament and the legislature couldnt recite themselves into an area of power, the court always had the discretion to decide whether there was a defence need or purpose 4. If the Act had prohibited conduct then the Ct could look at that and see whether there was a defence purpose or need involved. But the Ct held that here, there was a law that didnt penalise conduct, it penalised affiliation and belief (the mere fact that a person was a member of the Communist Party). The majority of the Ct held that there must be objective criteria by which the Ct could connect the law to a defence need. Kitto J - felt the law could not be justified at any time. In times short of war-time, the Ct felt that objective criteria were needed, with which you could test the application of the power. Dixon J - if the act had forbidden a particular course of conduct or of facts so that you could see a connection between the law and defence then the act would be valid Secondary power - extends to many things not regulated in normal conditions Decision based on the defence power and judicial review but also had undercurrents of civil liabilities and rule of law You have Govt under the constitution and the rule of law underlined the constitution and it would be impossible to say that a law of this particular character that it conformed to the rule and this is an affront to the rule of law as it has no objective criteria as to the use of the power Latham CJ - dissented he said it was valid because the provisions were matters that should be left to the opinion of the parliament and the executive Webb J minority Act would be upheld if the Cth could prove what it stated in the preamble

After case, PM Menzies put proposal to people for two changes to the constitution: 1. have a Cth head of power over communism 2. voters to approve legislation as struck down by HCA both proposals defeated at referendum

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(iv) War Time During War-time, the defence power is at its widest. The law will be within the defence power where the measure {including economic} is required for the efficient prosecution of the war effort (Farey v Burvett (1916) {A law fixed a maximum price of bread}). The power has previously extended to: Limits However, the power is not unlimited. For example, in Adelaide Co of Jehovahs Witnesses v Commonwealth (1943), laws that allowed the seizure of property on premises of declared bodies and the prohibition of any doctrine advocated by those bodies, were held to be invalid. The court held that the laws were not sufficiently related to defence and went beyond what was required for the defence of the country. As such, it appears there is some test, on similar grounds to the reasonably appropriate and adapted test that might apply to the defence power. Examples of laws beyond the power: Seizure of property and prohibition of doctrines; The making of fly spray; Artificial lighting in factories; Admission to university. Price control; Employment Control; Regulation of industrial conditions; Christmas Advertising; Sale of Land and Shares; Fixing Drinking Hours; Motor Cars?

(v) Post-war transition War-time controls may remain in place for reasonable periods after the end of hostilities to facilitate the transition to peace (R v Foster; Ex parte Rural Bank of NSW (1949)). In R v Foster, the court held laws regulating the employment of women, petrol rationing and occupancy of premises invalid 3 years after the end of the war. The power does not extend to everything affected by the war {because thats basically limitless}, but areas particularly relevant to defence such as repatriation, veterans benefits and rebuilding of 40

damaged cities are within the power. Does it extend to Military Discipline? The defence power authorises military discipline laws/tribunals that are outside of the court structure created by Chapter 3 of the Constitution (Re Tracey; Re Nolan; Re Tyler {3 separate cases}). Scope of offences Although there have been narrower and wider views of the scope of the offences covered by the defence power, it appears that the better view is that the conduct will be covered by the scope of the defence power if it has the effect of maintaining service discipline, including the morale of the service (Re Colonel Aird; Ex parte Alpert (2004) {rape while on leave in Thailand was held to be within the power}; affirmed in White v Director of Military Prosecutions (2007)). National Terrorism Although the war on Terror is not a war in a traditional sense, it may still come within the defence or another power.
{look at sedition (enciting disaffection with the government and constitution), subversion (promoting overthrow), politically motivated violence}

Defence Power In Thomas v Mowbray {interim control orders to protect from terrorist acts}, the Court held that the defence power extended to: Threats from groups as well as bodies politic; Internal as well as external threats; Protection of persons and property; Threats other then conventional military force.

In the act under consideration in Thomas v Mowbray, the Court held the conception of terrorism {as the advancement of poltical,
religious or ideological cause by coercing Australian government or by intimidating the Australian public or a section of it} in the relevant act as

within the scope of the defence power. {Kirby J (dissenting) held that the act was not reasonably appropriate and adapted.} Other possible heads of power Nationhood power inherent right of self-protection, linked with the prerogative of the executive. Criminal laws under s 51 (e.g. like with respect to commonwealth places) and thin territories (s122). External affairs

(3) Limits
The defence power is subject to the constitution {i.e. acquisition on just terms, 41

interstate trade and commerce} consider the limits generally applying Specific application to defence It is unlikely that restrictions on religious freedoms will lead to invalidity (Adelaide Co of Jehovahs Witnesses v Commonwealth). S 99 is unlikely to have a large role with respect to defence. A law with respect to defence may be able to discriminate against States, despite implied federal limitations.

Inherent Nationhood Power

(1) What is it?


The nationhood power arises due to Australias status as a nation {or polity}, permitting the Commonwealth 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 (AAP Case). The power may involve legislative or executive actions. Where is it derived from? It is not entirely clear as to where the power comes from. In the Bicentennial Authority Case, the judges were divided as to the source, although all agreed that the executives power arose through s 61. Mason CJ, Deane & Gaudron JJ held there to be a sperate implied nationhood power in adition to the implication from s 51(xxxix) and 61. Wilson, Dawson & Toohey JJ held that s51 (xxxix) linked with s 61 give the power, but there was no separate power {although Toohey suggested that there was a separate implied legislative nationhood power to protext the existence of the polity}. Brennan J appears to advance that there is not a separate implied nationhood power. If there is a separate implied nationhood power, the extent of the power may be wider than if it is merely implied from s 51(xxxix) and 61.

(2) Scope
The scope of the nationhood power is imprecise and subject to variation according to the circumstances. There does not appear to be a single test, however dicta from various cases establish some guides as to the powers application. The power appears to include: scientific research, exploration, public health inquiries, the arts, culture & heritage (AAP Case). Rules Gibbs CJ in Tasmanian Dams required the issue to be sufficiently complex such that it required co-ordinated national action; mere convenience of national concern is not sufficient. Deane J in Tasmanian Dams suggested that the power be confined to areas where there was no real competition with the states. The law must be reasonably appropriate and adapted to the fulfilment of the objective that is within the nationhood power (Bicentennial Case). Positive rather than coercive laws are more likely to fall within the power 42

{permitted coercive to prevent disruption but not to bad the use of words etc application of reasonably appropriate and adapted test} (Bicentennial Case). The fact that the subject is of national concern is not sufficient. The power cannot be relied upon to overcome any of the limitations in the constitution (Tasmanian Dams per Deane J). It appears that the power will be most likely to apply where national co-ordination is the only effective way of implementing, commonwealth funding is required & there is difficulty co-ordinating the states. Cases (Not really required) The leading case is the Bicentennial Authority Case, which saw the establishment of the Australian Bicentennial Authority to co-ordinate celebrations was upheld under the nationhood power. However, laws that made it an offence to use its name or prescribed expression was held to be outside the power {primarily because it was not reasonably appropriate and adapted}. In Tasmanian Dams, Gibbs CJ, Wilson, Deane & Dawson JJ, held that the power did not apply, but discussed the scope of the power. Gibbs CJ did not see the issue as of such importance as to warrant national action, while Deane J held that the power should be confined to areas where there is no real competition with the states. In the AAP Case, the scope of the nationhood power was considered. The Commonwealth engaged in the development & delivery of welfare plans and services. Barwick CJ, Gibbs & Mason JJ held it not to be within the power, while McTiernan, Murphy & Stephen JJ did not decide the issue. However, Jacobs held that the growth of national identity was sufficient to attract the power, finding the program to be within power. Other Cases ACP v Commonwealth Suggested having this sort of implied power with respect to legislation against seditious and subversive behaviour. A-G (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) Dixon and Starke JJ suggested having this type of power.

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(2) restrictions only on Commonwealth Legislative power?


(i) Restrictions on Fiscal Policy

s 99: Prohibition of preference to states in laws of trade, commerce or taxation


(1) Section s 99 prohibits the commonwealth from applying laws with respect to trade, commerce or revenue to different geographic locations. 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof. (2) Preference In the case of tax, preference is the converse of discrimination {whereas in
other situations, preferences necessarily involve discrimination, but discrimination does not necessarilty involve preference (Elliot v Commonweatlh)}

It appears that where a rule is uniform, despite its effect is not, it does not contravene s 99 (CSR v Irving {tariff exempted goods which were already subject to tarrifs the law was applicable to all States alike}). In Permeant Trustee Australia v Commissioner of State Revenue, the Court held that a law will not contravene s 99 where it is reasonably appropriate and adapted to its purpose {there, the Commonwealth passed legislation that sought
to impose the same taxes on commonwealth places, and the law of the place of the state applied. Held: [89], The essence of the notion of discrimination is said to lie in the unequal treatment of
equals or the equal treatment of those who are not equals, where the differential treatment and unequal outcome is not the product of a distinction which is appropriate and adapted to the attainment of a proper objective. [91] The differential treatment and unequal outcome that is involved here is the product of distinctions that are appropriate and adapted to a proper objective. There is no benefit or advantage enjoyed in or in relation to a Commonwealth place that is not shared by the remainder of the State in which it is located.}.

Old Cases In James v Commonwealth, an act that required licensing by a perscribed State authority, where only 4 States had prescribed authority, was held to be invalid. However, it was only those 4 states that had dried fruit industries. In Cameron v FCT, tax regulations calculated from profits on sales with differed prescribed value was held to be invalid {reason for different prescribed value was different values in each state}. In Crowe v Commonwealth, the Dried Fruits Board that had different numbers of representatives from each state was held to be valid, as it was not allowed to give preference. In Conroy v Carter, the court was split as to whether the act and regulation were contrary to s 99. There there was a levy imposed on hens, the Commonwealth could arrange for the levies to be paid to the State Egg Board, and they could garnishee levy out of the money held for the producer. (3) Between States or part thereof Dicta in Barger suggest that s 99 protects localities from discrimination. 44

In Elliot, it was held that laws that applied to wharfies only in Sydney, Melbourne, Brisbane, Newcastle & Port Adelaide, was valid as these were the main export ports, and the law gave preference to ports, not parts of states {held by a majority of Rich, Starke, McTiernan JJ and Latham CJ somewhat doubtfully; Dixon and Evatt JJ dissented}. (4) Loophole Grants under s96 or expenditure under s 83 are not subject to s 99. Thus, schemes which impose a uniform tax, but refund differentially between states is valid (Moran {tax on flour mills but refunded to states who did not have wheat growers}; Grasstree Poultry).

Tax on Property of State or Commonwealth


(1) Section A tax on Commonwealth or State property is impermissible under s114. 114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State. (2) Is it a tax on Property The Court has construed s 114 narrowly, requiring the tax to be on the ownership or holding of property (A-G (NSW) v Collector of Customs for NSW (Steel Rails Case); South Australia v Commonwealth {Must be imposed on the relationship between the property and person}). Rules A s 114 tax is not a tax on transactions (Steel Rails Case {tax on movements of goods}), or on the use of goods (South Australia v Commonwealth). However, in the case of using goods, the boundrary between taxing use and ownership is not clear, for example, car registration is not on property, but on occupation of property is. Examples: Not a tax on property o Customs duty: Steel Rails Case o Fringe benefits: Qld v Cth (1st Fringe Benefits Tax Case) o Income tax: South Australia v Cth Tax on property o Sales tax on own business forms: State Bank of NSW Case o Capital gains tax: South Australia v Cth reason is the exercise of the right of disposal

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(ii) Acquisition on Just Terms


(1) Section The commonwealth has a head of power with respect to the acquisition of property on just terms from any State of person for any purpose in respect of which the parliament has power to make laws (s 51(xxxi)). The section is a grant of power and qualification to other powers {there is a
qualification in the Engineers Case, that the words in one paragraph may limit the words in other if it would be otherwise meaning less here, the commonwealth would have the power to make laws wrt acquisition without just terms under any of the other heads of power thus it operates as a grant and restriction} (Blakeley; Schmidt).

Does this qualify powers to legislate for territories under s 122? Although it had been thought that s 122 was a separate plenary power not subject to separation of powers and just terms, the majority in Wurridjal held that the limitation applied to the territories power. (2) Acquisition It appears that there will be an acquisition when there is a compulsory acquisition and it is not in the ordinary course of collecting tax. (a) By Who? The acquisition must be under Commonwealth, not State law (Durham Holdings v NSW {NSW acquired coal leases on arbitrary grounds and no need to give just terms}). {NB: the self government acts of the territories require just terms} However, the acquisition need not be by the Commonwealth (Tooth {transfer of property between two persons}). Where the Commonwealth gets the states to acquire property to transfer to the Commonwealth, the provisions still applies because of the Acts intention to avoid the provision of just term. However, where there is an executive agreement between the Commonwealth and States, no such restriction applies (Pye v Renshaw). (b) Must be acquired by someone To be an acquisition, someone must acquire the property right. Thus, merely extinguishing a right does not fall within the ambit of the section. Extinguishing a statutory right is inherently susceptible to variation (Peverill {changing pathologist fees retrospectivel}; A-G (NT) v Chaffey {changes to work cover entitlements}). However, where the right is of a common law nature, this does not arise (Georgiardis {there was no common law right to
sue the commonwealth, however the Court held that the common law nature of the property work cover claim was of a common law nature an therefore could not be extinguished without just terms}).

If the right is expressly subject to other rights, there will be no acquisition (Telstra). Mining Leases An extinction of a mining lease on Commonwealth land is an acquisition because the commonwealth gains additional rights 46

(Newcrest). However, where the rights are off-shaw, the Commonwealth has no property, so the extinction of the mining permit is not acquired by anyone (WMC Resources). (c) Scope Taxes, penalties and forfeitures are not within the scope of acquisition (Tooth; Lawler v DPP; Theophanous v Commonwealth {MP and wife had parliamentary privileges taken away for criminal conduct}; Airservices Australia v Canadian Airlines {Air navigation fees}). Although it is suggested that wholly disproportionate acquisitions may constitute acquisitions. The acquisition of an aliens property during war time is not an acquisition under s 51 (Schmidt {it appears that the power does not extend to prerogative powers, meaning defence is not covered}). However, there may be a duty under common law to compensate for such losses to the extent that the property wasnt in imminent danger of capture during war (R v Burmah Oil). Resolution of genuine competing claims to property are not subject to the provision of just terms (Mutual Pools No 2; Nintendo; Air Services {Charge on aeroplanes were justified because it was directed at a genuine dispute of claims}). Restrictions on property An acquisition is not merely restricting what you can do with property, despite loss of value (Waterhouse v Minister for the Arts {valuable painting sold in the UK, brought back to Australia, export was prohibited.
Could still sell it, but only within Australia at a lower price than would have otherwise}).

However, where the restriction is such as it sterilises the property, an acquisition may be deemed (Tasmanian Dams Case per Deane J). (3) Property The notion of property is widely interpreted as a tangible or intangible thing the law protects as property. This includes: Land (Blakeley; Jones); Chattels and fungible goods; Interest that are not ownership, such as licences (Dalziel {the cth resumed a
car part, giving just term to the owner of the freehold and lease, but not to the holder of a licence. The holder of a licence was held to have a sufficient interest for it to be called property});

Innominate or anomalous interests (The Banking Case {The commonwealth


acquired all Australian owned shares in private banks under provision for just terms (they did not believe that they had sufficient power to acquire foreign shares), and also gave themselves the right to appoint directors. Held that the right to appoint directors acquired the overseas shareholders interest without just terms})

o Right to vote for directors. Choses in action o Property appears to encompass choses in action arising out of 47

common law rights. This was confirmed in Georgiadis, where an action against the Commonwealth by an employee, was held to be property. Intellectual property rights: Nintendo {rights to computer chips with computer programs} Mining leases (Newcrest Mining but note that the qualification wrt acquisition which results in such leases that are off-shore not applicable).

(4) Just terms A law for acquisition must be on just terms otherwise it is invalid (Banking Case). However, in certain cases where the law did not spell out just terms, the Court can read it in (Dalziel; Huon Transport). It appears that such a term will only be implied where the statute has an intent to pay something, but there are no details as to quantum. Assessment Just terms is generally considered to be the price that would be agreed on by a vendor and purchaser, where each is willing but not anxious (Nelungaloo). The provision of just terms cannot be discounted for benefits to the community, except to the extent that it protects the commonwealth funds from exploitation (Grace Brothers {allowed the back-dating of value to prior to the time of announcement, with interest added this was allowed}). Despite the discount, the Commonwealth must intend to provide just terms (McGuiness). Damages and costs do not seem to be included. Procedure The rule relating to assessment involves the rules of natural justice. The assessing (Nelungaloo). body cannot represent the Commonwealth alone

The assessing body cannot make an assessment without hearing (Apple & Pear Bd v Tonking). There is no requirement of a Chapter III court, meaning it can be treated as a admin decision, however, this allows access to appeal to a chapter III court (Nelungaloo per Dixon J). (5) State or person The requirement of just terms applies to natural persons, companies and States. {NB: Cth can merely reduce the states grants in future years} (6) purpose The acquisition must be based on two heads of power (Blakeley {purpose was to
build Commonwealth office buildings upheld on the basis that it would be valid under many heads of power, depending on the department that used it}; Jones {two cases the first held that acquiring for the ABC was no sufficient to ground it in a head of power, the second held it valid when it was for the provision of broadcasting studios and offices for the ABC}).

There may be a limitation that there must be an actual use, not just intended to 48

deprive the current owner (Clunies Ross {dicta suggested that here must be an actual planned use but only obiter as the case was decided on another issue}).

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Wurridjal v Commonwealth of Australia [2009] HCA 2 Issue: Acquisition on Just Terms Northern Territory Intervention Outcome: demurrer should succeed. Facts: The Commonwealth Parliament introduced a package of 5 bills in response to a range of problems in indigenous communities in the Northern Territory. A part of this measure was the grant of 5 year leases over certain land in favor of the commonwealth. The act provided for the provision of compensation where it was required under the constitution. Native Title in the relevant areas would be suspended but not extinguished. The plaintiffs argued that: The grant of leases to the commonwealth required compensation The removal of the permit system removed the right of exclusive possession, requiring compensation

The commonwealth argued that there was no relevant acquisition of property, and in the alternative, that the act provided for just terms. My Summary: Summary of Reasons Outcome Does s 51 (xxxi) Acquisition of property limit s 122 Just terms

French CJ

allowed

Yes

Statutory lease was an acquisition, but the permit system was not additional (permit system provided The legislation had exclusive control but lease provision for just diminished this). terms if required. This the Although legislative rights satisfied requirement. are subject to modification, this is not always the case; here, the property was virtually held in fee simple. Legislation provide The right was not identical just terms. The to a fee simple, but close drafting used was enough to be treated as such. valid. Argued that fee simple is Suggestion that sacred regulated, but statutory sights may not be able modification still attracts to be compensated (xxxi). Thus acquisition. with money Their interest was one of Virtually the same as G & H. The drafting property. was valid, but drew The 5-year lease did acquire the distinction 50

Gummow & Hayne JJ

allowed

Yes

Kirby J

Dismissed Not necessarily

Yes

on substance, but wanted full hearing, so didnt allow the demurrer

Heydon J

allowed

Yes

between compensation and just terms suggestion property the schemes that removal of sights intent was to diminish land of spiritual rights. significance may be not compensatable by money. Recognised that money may not be sufficient in certain circumstances, but here, the right to visit sacred sites was not removed and there was criminal acquisition of property sanctions for intrusions. Just terms provided. It did not matter that the right was contingent on legal action.

Crennan J

allowed

Kieffel J

allowed

The interest, created by statute with rules regulating Did not the rights, was inherently No need to consider decide susceptible to change, and was therefore not the acquisition of property Defect in pleadings Yes (but Should be treated in the that didnt argue that not quite same manner as fee simple just terms were not as clearly It was an acquisition of provided, but rather as others) property. the minister couldnt acquire. 6 justices said yes

Outcome

Allowed demurrer 6:1

Law: Per French CJ: The statutory lease constituted an acquisition of property. The acquisition was on just terms pursuant to the provisions in the act The abolition of the permit system was no additional acquisition Agreed with the orders proposed by Gummow and Hayne JJ Land rights o The relevant land was held by the Land Trust for Aboriginal Owners o The lease does not effect the Platintiffs prior rights to receive rents and other 51

income from Commonwealth and Territory uses of the land not for the purposes of the community o The Lease The lease gives the Commonwealth exclusive possession and quite enjoyment of the land. The only provision for rent is if the Constitution requires it under the compensation provisions. o Compensation Provisions The act excludes the provisions in the NT (Self-Government) Act, except to the extent that s 51 (xxxi) of the constitution requires it. Acquisition and s 122 o Although s 122 is plenary, it is still constrained by s 51 (xxxi) @ [55] & [86] o Discussed the approach of the HC wrt overruling their own decisions namely so that he could overrule Teori Tau, which held that s 122 was not limited by s 51 (xxxi) o Acknowledged that the application of s 51 (xxxi) to s 122 was not unambiguous, but the better view was that it should be limited by the requirement of just terms Acquisition of property under s 51 (xxxi) land o Discussed existing rules such as the fact that someone must acquire the right, and the guarantee does not extend to the resolution of competing claims o Cited authority for the fact that rights conferred under commonwealth laws are inherently susceptible to extinguishment or variation, and these may not fall within the scope of the guarantee. However, it is erroneous to suggest that every legislative modification to rights removes it from the ambit of s 51 (xxxi). o Rejected the claims of the Commonwealth that all the act did was adjust the rights associated with the relevant land, and was therefore not an acquisition under s 51 (xxxi) o Held that the property conferred to the land trusts were essentially an estate of fee simple but subject to certain restrictions that restricted the ownership rights close enough to fee simple as to treat it like that o An acquisition of property is no less an acquisition of property because it also has a regulatory or other public purpose. @ [103] o The grant of the lease was an acquisition, however just terms were allowed Agreeing with Heydon J Permit system o Held that the act abolishing the permit system contained similar provisions as the National Emergency Response Act {the once granting the lease}, and that there was no additional effect on the trust property by abolition of the permit system Demurrer allowed @ [115] Gummow & Hayne JJ What interest? o The rights under the land system were not congruent with fee simple, but so close as to attract the same rules. o The commonwealth argued that the fact the rights were regulated by the Act that gave the rights, amendment to the rules would not constitute acquisition of property. o Rebutted this by saying that almost all fee simple estates are subject to 52

Kirby J Kirby attempted to apply a special rule to indigenous Australians to allow them more time to polish their action, by seeking to dismiss the demurrer Serious issues arise under the constitution in this case, and warrant a full public hearing. The 5 year property leases are intended to diminish their property rights Kirby suggested that the only issue that should have been the subject of the demurrer is whether s 122 required just terms; if it didnt the demurrer should have succeeded, but if not, the issue should have gone to trial. S122 o S 51 (xxxi) limits the power to make laws wrt territories in s 122 Acquisition of the land trusts interests o Agreed with the reasons of Gummow and Hayne JJ Acquisition of Pls interests o Property? Agreed with the expansive definition of popery This definition clearly includes the estate in fee simple granted to the land trust akin to full ownership, incl exclusive possession. The 5 year leases acquire this property for a limited time The rights are considered as property as long as they are permanent, stable and capable of ongoing enjoyment, and it is irrelevant that they are personal to individuals of members of a group or community. o Acquisition? The rights are not extinguished a 5 year lease is granted and they get

regulation o Registered fee simple is not of the same character as mining leases or workers compensation that is determinable by the political will of the legislators from time to time. o There was sufficient acquistition of property Application of s 51 (xxxi) to s 122 o S 122 is merely another head of legislative power and is therefore limited by the requirement of just terms. 5 year lease o Here, the land rights are confered by the Land Rights Act, not the Native Title Act, meaning the extinguishment of native title is not an issue o Although there was scope to vary the rights under the Land Rights Act, it did not give the executive to repeal the operation of s 71 Permit Systerm o Contained similar compensation provisions as wrt the 5 year lease. Just terms o The Commonwealth are required to pay a reasonable amount to the land trust o The argument that the right to compensation is contingent failed just terms are attracted if the act attracts the operation of s 51 (xxxi) it is ok to draft the legislation like this to avoid invalidity; o Skimmed the issue of cases where monetary compensation would not be sufficient (i.e. sacred sites) held that the acquisition of the land trust did not fall within this category, meaning that it was unnecessary to determine the issue. @ [198] Demurer allowed, the plaintiff was required to pay the costs of the Commonwealth

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their full rights back at the end of the period. The Pls have sufficient claims, and the demurrer should not be allowed

Just terms o Agreed with the majority on this issue to the extent that provisions that provide for just terms if it is required are valid, as long as the measures adequately satisfy the obligation of just terms o Relied on dicta by Dixon J in Nelungaloo Pty Ltd v Commonwealth, to the effect that compensation implies pure money, whereas just terms implies fairness. o By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary, is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional "property" interests in a way that conventional "property" is rarely if ever cherished in the general Australian community. This might oblige a much more careful consultation and participation procedure, far beyond what appears to have occurred here. At [308] o a demurer is not the appropriate way to determine this issue The demurrer should be over-ruled. Heydon J Agreed with the plurality as to s 122 Recognised that in certain circumstances, that money may not adequately compensate for the loss of property, especially in relation to spiritual matters @ [314] o 3 reasons given in argument disavowed any contention that the losses were noncompensatable lack of a specific allegation that the terms of acquisition were unjust because what was acquired could not be readily replaced. There was still a restriction in s 69 that of the Land Rights Act that made entering a sacred site a criminal offence. Just terms o Plaintiffs argued that just terms were contingent because they needed to seek judgment at their own expense to establish their entitlement This was rejected o Pls sought to distinguish this case on the basis that the act purported to be free of s 50 (2) of the NT Self-Government Act because it conveyed an intention not to provide just terms but there was no pleadings to how the substitution of the compensation clauses provided for such an intention not to provide just terms o Cited authority that the law can provide money for things with no market value, and that just terms can be provided for the acquisition of native title rights o This was not an appropriate case to consider whether there had been inadequate Agreed with the majoritys orders Crennan J S 122 o Declined to answer as it was unnecessary to do so 54

Acquisition of property? o It can be accepted that the Land Trust's fee simple, granted under, and subject to, the Land Rights Act, is a formidable property interest in the Maningrida land and that its sui generis nature does not diminish the fee simple's significance. It can also be accepted that the lease operated to carve out from the Land Trust's fee simple certain of the Land Trust's rights of possession and control in respect of the Maningrida land, including the rights to deal with the land under s 19 of the Land Rights Act, without ministerial consent. @ [417] o I agree with Gummow and Hayne JJ that the Commonwealth's broad submission that the fee simple is unstable and defeasible and therefore inherently vulnerable to any statutory change in the control of the land must be rejected. However, I accept the much narrower proposition advanced by the Commonwealth, that the scheme of control of Aboriginal land in the Land Rights Act was always susceptible to an adjustment of the kind effected by the challenged provisions, in circumstances such as the existence of the present problems. o Assuming, without deciding, that s 51(xxxi) can apply to an exercise of legislative power under s 122 of the Constitution and accepting that it can apply to s 51(xxvi), for the reasons given, the challenged provisions cannot be characterised as effecting an acquisition of property within the meaning and scope of s 51(xxxi) of the Constitution. Just terms no need to decide as there was no acquisition Demurrer allowed Kiefel J whilst the interest granted under the Land Rights Act differs in some important respects from an interest in the nature of an estate in fee simple, that Act must be understood as granting rights that, for almost all practical purposes, are the equivalent of full ownership @ [450] The relevant laws constitute an acquisition of property S 122 is limited by s 51 (xxxi) Just terms o There is no problem with the method used in the legislation to provide compensation o The remaining aspect of the plaintiffs' case concerning just terms which requires consideration focuses upon the special value which particular areas may have. Sacred sites were identified in this regard. It was said that it may not be possible to attribute a market value to such sites, implying that a loss of or interference with rights exercised in relation to these places is not compensable by money. Such a proposition should not be readily accepted. o The claim as to whether just terms could be provided as stated in the claim appears to be not whether just terms can be provided, but whether the Minster should decided to acquire the land at all this falls outside of the ambit of the Pls claims o The land trust did not seek to assert that just terms were not granted, and in the face of a clear provision for reasonable compensation, there was no substantial issue to be tried. Demurrer allowed Tutorial Acquisition of property on just terms is the main issue in this case Costs since the Cth raised 52(xxxi), the cth should bear the cost for these (Kirby J 55

Dissenting) First issue o Alleged conflict between s 122 and s 51 (xxxi) whether s 51 (xxxi) applied to a territory o French, Gummow & Heydon - yes o Crennan did not answer o Kiefle was unclear Has property been acquired? o Argued was giving a 5 year lease to itself Property held by the Land Trust? Has it been taken from them? Similar to free hold but not exactly the same it is so close to it that you can apply the same principles If you are taking a lease you are taking away the owners right to immediate possession Complained that the lease had restricted each persons right to freely use the land. Rights given to them by the statue s 71 Had the rights in the statute been over-ridden by the statute? No Therefore it failed Consequences can have the rights as they did previously e.g. can freely pass through o Crennan J said that if they have the power to enact legislation, then they have the right to repeal or alter it. Are the terms just? o Heydon J assuming that the first 2 questions are satisfied, the terms are just so their outcome is irrelevant. Acknowledged that sacred sites may be a different story as it would be impossible to compensate o Terms were just because the act said: Just terms of the NT government act did not apply the act was the sole source of the acquisition If acquired, just compensation would be given Kirby J that there was a case and it should not have been thrown out on a demurrer. o 51(xxxi) does apply and property has been acquired but wanted more info on the remaining issues

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(iii) Federal Separation of Powers


Separation of powers has two effects: 1. Federal judicial power must be vested in a Chapter 3 court {or to put it in a negative way, a law that vests federal judicial power in a non-judicial body is invalid}; 2. Courts must no be given non-judical power that would make them less independent, or seem to be, of the executive.

(a) Sources of the Idea


The Australian Constitution Australia separation of powers is entrenched in the Constitution: o s 1 vests legislative power in the federal parliament; o s 61 confers executive power on the Queen, exercisable by the Governor-General. However, a full seperation of powers is not conferred as s 64 requires members of the executive council be members of parliament; o s 71 confers judicial power on the High Court and whatever other courts the Parliament creates, and those which they vest federal jurisdiction. S 72 guarantees that judges of these courts will not be removed except on the address of bothe houses, and their salary was not to be reduced {originally no retiring age, but now 70 for HC}. Although s 71 does not say that federal executive power can only be vested in those courts, s 72 would be pointless this was not implied. History The English Revolution
a. Coke CJs judgment in Prohibitions del Roy (1607) (dispute between king and judges) King cant determine legal disputes himself, but b. King dismisses Coke from bench in 1616, but c. Next King executed for treason 1649, and his 2nd son driven into exile 1688 end of divine right theory! d. Act of Settlement 1701 (most of this is who will succeed to the thrown, but includes bill of rights style provisions)- That Judges Commissions be made quamdui se bene gesserint (roughly means on good behaviour) and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them. (Effectively an afterthought to the Bill of Rights 1688, and vindication of Coke its after this that judges start to effectively defend the rights of freeborn

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Englishmen) After 1701 Judges do not feel the threat of being sacked by the king Emphasis on judicial tenure Judicial tenure is merely the mechanism for the principle that judges must be independent and impartial. Although an ad hoc judge may be ok between two private citizens, a guarantee of tenure is the only way of ensureing impartiality when the state is involved as a party before the court.

Montesquieu, LEsprit des Lois, 1748 - The Spirit of Laws


Presented as a comparative sociology of legal systems law of different countries have different spirits depending on the climate of the country. Sounds all very scientific and neutral.

But theres one radical bit there is one country that has as the spirit of its law the spirit of liberty, and we need not go far in search of it England Next chapter is headed Of the Constitution of England, but its an idealised England In every government there are three sorts of power: the legislative; the judiciary power, and the executive power of the state. always excepted as a good description of government

If someone can exercise 2 of these powers or, worse, 3, they can rob people of their liberty. So to preserve the liberty of the subject the 3 powers must be exercised by different people (and from the Chap heading its implied that this happens in England.)

Actually in England exec and legislative power overlapped (responsible government, valid to delegate law-making power to the exec), but exec power could be controlled by the legislature, the judiciary had gtee of tenure, and the judiciary subjected the exec to the rule of law. Maybe these were the more important things?

US Constitution
All derived from a literal reading of Montesquieu built into the US const. Art 1, s 1: All legislative powers herein granted shall be vested in a Congress of the United States Art 2, s 1: The executive power shall be vested in a President of the United States of America [an elected King for a fixed term!?] The presidents advisory body is not binding. Art 3, s 1: The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. USSC has held that this embodies an enforceable separation of powers early limits even on delegating leg power to exec, but not so strict now

(b) Definition of legislative, executive & judicial power


Judicial power involves a decision as to the pre-existing rights of parties to a dispute, based on pre-existing law (WWF v Alexander, Rola per Rich J, Tas Breweries per Kitto J, Ranger Uranium). Compare this to making a new rule for the future (an award), this is like legislation, which is non-judicial (Boilermakers; Luton v Lessels). Distinguishing from Executive power Although some executive decisions are virtually arbitrary {e.g. where to build a school}, executive officers often have to apply law to facts to determine a persons entitlement {e.g. do they qualify for welfare or for a licence}. 58

Although this may seem like a judicial task, there is no dispute. Appeals of Executive Decisions Law vs Policy If the decision is based on the application of law, rather than policy ground, the body deciding appeal/review may be a court (K Generation {SA Liquor Licensing Court}). If it is a court, it is protected by the seperation of powers, including judicial tenure. Is it an appeal, or is the body acting as the original decision maker? The body may take on a non-judicial role (review board, tribunal, Panel, etc), but if it does, it exercises its power in place of the original decision maker, and is not technically an appeal. The power can often be either given to a judicial or non-judicial body, but once it is given to that kind of body, they are expected to act like such a body {e.g. judicial acts judicially, whereas the non-judicial would act as an original decision maker (Non-court bodies still have a duty to act
judicially (not judge in own cause, hear both parties), therefore called quasi-judicial (quasi = as if..), but still part of the executive govt)}.

Review of procedure If a person seek a review on procedural grounds, this is reserved for judicial bodies.

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(A) Judicial power only exercised by judicial bodies (courts under s 71)
(1) The Principle Federal judicial power only to be exercised by Chapter III courts {laws giving judicial power to non-judicial bodies is invalid}.
71 Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. 72 Judges' appointment, tenure, and remuneration The Justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor-General in Council; (ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehavior or incapacity; [and theres now a retiring age of 70]

(2) Is the Body a s 71 {Ch III} Court? A s 71 court is a Federal Court created by the Commonwealth parliament that has s 72 tenure, or a State or territory court who have something akin to s 72 tenure (Bradley). i.e. do they have: Tenure? Wages that cannot be reduced.

If not a Ch III court, are they exercising judicial power? If yes, they should be exercising judical power, thus the problem is likely to be their exercise of non-judicial power (3) Are they exercising judicial power? (a) the principle There is no clear definition of judicial power (R v Davidson). However, it usually involves legally enforceable decisions as to ore-existing rights of parties to a dispute (Huddart-Parker v Moorehead {principle state but not
applied Comptroller of Customs had the power to demand answers to questions, but this was valid as it was only preliminary to court action }). {Cf making a new rule e.g.

an award (Boilermakers)} A decision may be non-judicial even if it appears to be judicial if the outcome is not legally enforceable i.e. they need a court to enforce or punish (Tas Breweries). History: Cases establishing principle In the Wheat Case (1915) {issue was that only 7 year terms}, the court held that the doctrine applied to the Inter-state commission, despite s 101 of the Constitution giving them adjudication powers. The court 60

held that the Commission could only exercise powers of adjudication if it was incidental and ancillary to executive functions. In WWF v Alexander, the Court of Conciliation and Arbitration had judges with 7 year appointments. The court had the power to make awards and impose penalties for breach. The Court held that the C of C & A couldnt impose penalties because they were not tenured. (b) Clear Cases of judicial power Only a s 71 court can exercise the following function which is clearly judicial: adjudgment and punishment of criminal guilt (WWF v Alexander, Industrial Lighting (1943) {closed business for not complying}); ordering involuntary detention? {see below} Dicta in Thomas v Mowbray, suggest that the power to make control orders limiting the persons travel and communication are a judicial function {Crennan & Gummow JJ in obiter suggested that that preventative
detention, possibly even by court and a fortiori by executive, might be unconstitutional? };

Holding an Act invalid (Wheat case) Declaration that dismissal of worker is contrary to award (R v Austin ex p Farmers & Graziers (1964)) {but making new rules is nonjudicial (Re Ranger Uranium), and seeking distinction/interpretation from the commissioner for future decisions (Re Cram; R v Hegarty).}

Granting injunctions against breaches of an Act (Mikasa v Festival Stores (1972)) Committing for contempt for breach of an injunction (Boilermakers) Orders for recovery of possession of land (Silk Bros v SEC (1943))

(A) Involuntary Detention (i) General Rule Generally, involuntary detention exists exclusively as an incident of the judicial function of adjudging and punishing legal guilt (Lim v Commonwealth). (ii) Exceptions The executive do have some powers to detain: (a) prior to trial, subject to bail (b) for mental illness (c) for infectious disease (d) illegal aliens for the purpose of deportation In Ak Kateb v Goodwin and MIMIA v Al Khafaji, the court held that an act that allowed indefinite dentention of aliens was valid, provided that the Commonwealth had an eventual purpose of removal {Dissents by Gleeson CJ, Gummow & Kirby JJ; 61

McHugh observed the need for a bill of rights}. In Behrooz v Secretary of DIMIA [2004] HCA 36, an escapee of Woomera argued that the conditions of detention were so harsh that it was not authorized by the act, and/or amounted to punishment, and was therefore constitutional. The court held that although the act didnt authorize inhumane treatment, the detention was still valid and there were other remedies apart from escaping. {half successful action in S v Seretary, DIMIA, but failed because had been moved to mental institution by the time of appeal} (e) for childrens own safety (R v Kruger {stolen generations}). (iii) Court Review In Lim v Commonwealth, s 54R of the Migration Act, which purported to prohibit the court from ordering the release of a person, was held to be invalid as it attempted to remove ultra vires executive action from the control of he High Court {because
although they may have the power in some situations, there may be others where they are detaining the person unjustifiably}.

This basically provides a constitutional right to habeas corpus. (B) Parliament Exercising Judicial Power The parliament cannot exercise judicial power by: A Bill of Attainder {providing that a specific person shall be executed or exciled}; A Bill of Pains and Penalties {a penalty imposed on a specific person, which is usually done by courts} (Polyukhovich {that act was held to be valid as it applied to a class of persons (war criminals), not to a specific person}). Enacting a law preventing appeal against imprisonment (Lim v Commonwealth); Trying to declare facts to put an act within the Commonwealths constitutional power (ACP Case). (c) Unclear Cases - Factors (i) Power to enforce The power to enforce or punish is strong indicia of judicial power (Tas Breweries). (ii) public and economic policy Where the body is required to consider economic or policy matters, this indicates a non-judicial function (Tas Breweries; Precision Data v Wills; A-G v Alinta {These all concerned takeover panels}). This is justified by the fact that the body is truly making an ad hoc rule. 62

(iii) Rights granted by statute? Apart from traditional rights, where rights are granted by statute, they can be taken away by statute (R v Quinn; Ex Parte Cons Foods). However, if they are a property right, this is subject to just terms under s 51 (xxxi). (iv) Chameleon Principle Some powers can be exercised either judicially or non-judicially, however it must be exercised either judicially or non-judicially depending on the type of body the power is given to (Shell v FCT; R v Hegarty). (v) Name of body / process The name of the body or process sought can be influential in determining whether the function is judicial (BIO v FCT). The use of the word appeal indicates a judicial function (Bio v FCT), however is not decisive, as a non-judicial function may still be called an appeal (Shell v FCT). If the act makes a decision conclusive, this is indicia of a judicial function (BIO v FCT; Cf Shell v FCT). {this is because conclusive means that it cant be altered by the body that handed it down or another court at the same level it does not prevent appeals} (vi) Processes A non-judicial body may have the trappings of a court i.e. adversarial hearings, right to counsel, etc without being a court (Shell v FCT). Registrars & Masters In Harris v Caladine (1991), the Court allowed the Registrar of the Federal Family Court to make some judicial-type orders, provided that they were appealable to the court. Cf: In R v Davison (1954), it was held that a registrar could not exercise a judicial power, despite the fact that it would have been valid if it was a purely administrative body {historical exception strikes
again Registrar given power to make bankruptcy orders by Cth Act could not exercise judicial power because these orders always made by judges If a purely administrative body would have been valid}.

Cases held to be non-judicial Courts marital A military courts system is permissible {non-independent judges} (Tracey; Re Colonel Aird; White v Director of Military Prosecutions). The new military court system is being challenged because the independent judges conflict with the Governor-Generals control of the armed forces (see the upcoming judgment of Lane v Morrison). Parliamentary trials for contempt 63

In R v Richards; Ex parte Fitzpatrick & Browne, the court permitted parliamentary trials for contempt. Public Service disciplinary tribunals Public service disciplinary tribunals have been permitted provided that it only related to employment {i.e. demotion, docking pay, etc.}, not to criminal sanctions (R v White; Ex Parte Byrnes).

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(B) Limits on powers given to Federal Courts


(1) Is the court a Federal Court? Here, the Court was set up by the Commonwealth Parliament and has judicial tenure. consider only if there is a Chapter III court. (2) Are they given powers which are not federal judicial power? The Federal Judicial powers are found in s 75 & 76 of the Constitution. Neither the States nor the Commonwealth can vest Federal Courts with State law (Re Wakim; Ex parte McNally {the High Court held that it was unconstitutional for a state to
vest jurisdiction in Federal Courts because s 77 of the Constitution of Australia is an exhaustive prescription of who can assign Federal Courts jurisdiction.}).

The word matter in ss 75 &76, restricts Federal Judicial powers to justiciable issues between parties {does not extend to advisory opinions} (Re Judiciary and Navigation Acts).
s 75 Original jurisdiction of High Court In all matters: (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have (does have) original jurisdiction. s 76 Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this 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 the laws of different States.

(3) Are the powers judicial or non-judicial {This is the reverse limb of the separation of powers} History
Traditional version - fed courts must not exercise non-judicial power, except if it is auxiliary or incidental to judicial power. Developed in:

dicta in Peacock v NM&G Co-op (1943) (facts: but courts power to vary contracts
valid by analogy with Money-Lenders Acts) one of the parties challenged this as a non-judicial power. Stated the rule for the first time.

Queen Vic Mem Hosp v Thornton (1953) (court given complete discrn to review
employers decisions, on same grounds as eer not such a problem these days see Bayer case on slide 9) held that this was a clear ground for it being non-judicial and it was invalid

Boilermakers (1956-7) Court of C & A (given life tenure after Alexander) issuing
injunctions not to breach awards, as well as making them (which is non-judicial, as an award lays down a new rule to be obeyed in the future)

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o Boilermakers succeeded in holding this to be invalid


o judicial bodies shouldnt excercis non-judicial powers

o Boilermakers rule not as well justified as 1st principle (argt in Bmakers


mainly based on symmetry, and importance of s of p said merely to be federalism rather than protection of rights!) Barwick CJ hinted ready to overrule it in a case or 2.

o What is the policy behind not letting Judicial bodies to make non-judicial
decisions? Not as well justified as preventing Exec from exercising judicial power. boilermakers base it on symmetry

But now perhaps Grollo (next slide) has offered a more principled
basis for same or similar rule?

Current Position There appears to be different rules for conferring non-judicial powers upon courts and judges. {but note suggestion that Boilermakers fits within Grollo} In Boilermakers, the Court held that courts should not exercise non-judicial powers that arent incidental to their judicial function {held that the Court of
Conciliation and Arbitration could not validly make awards and make injunctions to prevent breach}.

In Grollo v Palmer, the court held that non-judicial functions could be conferred on judges as persona designata if 2 conditions are met: 1. A non-judicial function that is not incidental to the judicial powers, cannot be confered upon a judge without their consent; and 2. No function can be conferred that is incompatible with: a. The Judges performance of their judicial powers; or b. The judiciarys discharge of its responsibilities as an institution exercising judicial power. It has been suggested that the second condition may arise when: Performance of judicial functions are hindered by the non-judicial functions; The performance of non-judicial functions may compromise the capacity of the Judge to perform judicial functions with integrity {objective test}; The non-judicial function might diminish the public confidence in the integrity of the judiciary or in the capacity of a single judge. In Grollo, the power to issue phone-tap warrants was held to be a nonjudicial function, but each judge voluntarily accepted the power. In Wilson, a Federal Court Judge was appointed to report on an inquiry into the Hindmarsh Bridge. The fact that the Judge was required to report to the minister may indicate to the public that the judge was part of, or subsevient to the executive. Exception/qualification: Chameleon Principle Where the court could be exercising a function that could be described as 66

Application of Grollo

either judicial or non-judicial, they are expected to exercise it judicially (Bayer v Bayer Pharma {appeal from Registrar of Trade Mark to Court was ok
although the appeal may be the wrong word, it is still a judicial function even though the registrar may be acting in an executive function}).

(4) Can the Courts have a discretionary power? Whether the court may exercise discretionary powers is dependent on the words of the Act conferring the power (Builders Labourors Case {that allowed an organization to be deregistered if its rules were oppressive or tyrannical it was held that this was too vague, and it convereged on public policy}; ARU Case {The discretion was open where oppressive, unreasonable or unjust this was held to be valid}). {i.e. if justice or reasonableness are included, it will likely to be judicial} Where the court has discretion as to remedies, they must exercise the discretion judicially (Cominos {family law}, Talga v MBC {varying contracts under the Banking Act}). Application - Thomas v Mowbray The Applicant argued that the courts power to grant a control order or not was too broad, and required the making of future predictions. The Court held that this remained a judicial function as the court used clear legal criteria to come to their decision {court could make control order (prohibiting person
from going to certain places, communicating with certain people, etc) where satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act .and that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public}.

(5) Severance? Where a body with s 72 tenure has a mixture of powers, the court looks at the bodys primary function, and declares the other function as invalid.

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(C) Can the Commonwealth Parliament regulate the exercise of judicial power
(1) General Approach It is clear that the Parliament can enact laws which are incidental to the execution of judicial power (Nicholas v R). As such, laws have been held valid, when they relate to: (2) Limits In Nicholas, Guardron J held that a court could not be asked to operate contrary to its essential character as a judicial body and therefore must ensure: equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute. reverse burden of proof for defences (Milicevic v Campbell (1975)) admissibility of evidence (Rodway v The Queen (1990)), even directing courts to ignore complicity of police in a controlled operation to catch drug dealers (Nicholas v R [1998] HC 9).

The statement in Nicholas was affirmed in Bass v Permanent Trustee, but has not been used to invalidate a law. Application The Nicholas test was relied upon when seeking to undermine the Act in Thomas v Mowbray, where the Court found that the powers confered upon the Court to make ex parte orders were valid provided that a prompt contested hearing was contemplated. 68

Regulation of specific sections of the Constitution s 73 appellate jurisdiction of the High Court The Parliament can prescribe exceptions and regulations on the appellate jurisdiction of the High Court to hear appeals from judgments, decrees, orders and sentences, except in relation to appeals from supreme courts where an appeal lay to the Privy Council at the start of 1901 S 75 (v) Jurisdiction over Commonwealth officers The Parliament cannot limit the scope that the High Court has under s 75 (v) to order writs against an officer of the commonwealth (R v CC&AC ex p AEU (1967) 118 CLR 2). In Abebe v Commonwealth, the act gave jurisdiction to the FCA but limited the grounds for appeal to the High Court. This was held to be invalid as it limited the HCs jurisdiction. {although they can restrict the power of other courts but somewhat useless as the HC has power, so they will just transfer it to that court.} Privative Clauses (not reviewable?): In Plaintiff S157 v Commonwealth, the court held that an act that purported to make decisions unreviewable by any court would be invalid if it included decisions made by jurisdictional error. However, the court read the section down, so as to mean a bad decision was not a decision at all, meaning that the law would not apply to them. { Cth had amended
Migration Act to provide many decisions under the Act unreviewable in any court (s 474) (this sort of sec known as a privative clause), but also 35-day time limit for challenging them in the HCA (s 486A) !}

{this interpretation both implies a gurantee of admin law rights under s 75, but the interpretation also has effects in state law} (3) Vesting Federal Power in State Courts When vesting Federal Judicial Power in State Courts, the Commonwealth must generally take the courts as they find them (Le Mesurier v Connor). In Russell v Russell, the court held that the Commonwealth could require the justices not to wear robes, but could not require that they sit in a closed court {the distinction was that the robes were a mere regulation}. HCF v Cth (1982) State rules provided that Master exercised some of power of the Court held that if State law has given judicial power to non-judicial officer, Cth can pick that up as part of courts power. [and then this free-er attitude applied to Registrars powers in federal courts, in Harris v Caladine, podcast 3] And of course the Grollo/Kable and Nicholas requirements would also apply

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Magistrates Courts Because Magistrates have some judicial and some executive functions {e.g. committal hearings}, the Commonwealth must be careful when they vest non-judicial power in those courts, and ensure that they abide by the Grollo principle as well as the Melbourne Corporation principle. In ODonoghue v Ireland, the Extradition act that stated that a Magistrate shall conduct proceedings, was held not to breach the Grollo principle, but merely grants a power.

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(3) Executive and Responsible Government (a) Who are the Executive?
Term often is interchanged with The Crown or The Government or The State Different meanings when used in different settings. See Sue v Hill (1999) H C Pages 497-503 on meaning of The Crown Context here is the Executive government comprising of the Queen, GovernorGeneral and Governors, Ministers and Departments and agencies of government. o Queen Constitutional Monarchy with the Queen playing a limited but continuing constitutional role. Numerous references to the Queen in the text of the Constitutions of the Commonwealth and States indicates the role of conventions. The sole role for the Queen is to appoint (and dismiss) the Governor or Governor-General on the advice of her Australian Ministers. Current role Does the Queen have any influence in Aus? In constitutional terms the answer is yes. But unwritten custom has meant that the Royal Family plays a constrained role. P599 of B&W letter to queen about Whitlams dismissal Queen rejected any involvement in 1975 constitutional crisis sort out your own problems! Continual role is through the formal appointment of the GG.

o Governor-General and Governers Initially the Governor of New South Wales held extensive legislative and executive power. role diminished in line with self government States Modern foundation for Queensland Governor in Australia Act 1986 ss 7(1), (2) and (10) and Constitution Act 1867 and Chapter 3 Queensland Constitution 2001 ss28 41. Governor post-Australia Act is a local and independent office from the British Government. Australia Act was key to this position. Queen Acts on Premiers Advice Governor-General provided for by Section 2 Commonwealth Constitution. Section 61 provides executive power is exercisable by the Governor-General. Convention dictates that the power is used only on the advice of Ministers (Reserve powers exception). 71

Commonwealth

Const places a seemingly large power over the running these are, by convention, only used on the advice of the Ministers.

o Prime Minister, Premier and Ministers The Prime Minister does not rate a mention in the Commonwealth Constitution. The modern Queensland Constitution 2001 acknowledges the Premier. Section 64 Commonwealth Constitution provides for Ministers and Departments they form federal executive council must also be drawn from the federal parliament S65 number; s 66 pay Important issues of how system actually works left to the conventions how to become, and responsibility left to the working of the political system QLD const provides more detail, but the vital aspects are still left to conventions. Executive Council s.62, 63, 64; Commonwealth Constitution, Chapter 3, Part 4, Queensland Constitution. Consists of Governor-General/Governor sitting with Ministers. Mechanism that converts political decisions of Cabinet and Ministers to legal decisions. See FAI Insurance v Winneke (1982) 151 CLR 342. is not a deliberative body, but is a formal body to convert political decisions to legal ones

o Executive Council

Summary o Aim of government exercising political and legal power, separate from legislative and judiciary o Combination of offices o Written Constitutions provide a bare framework with actual workings found in the conventions.

(b) Unwritten Conventions & Responsible Government


The notion of responsible government underpins the conventsion associated with our legal system. {Underpins the conventions. See pages 563-571 of Blackshield and Williams. two articles and case
extracts deal with the concept of responsible government non-elected components have an entirely constrained role and should act in accordance with the advice of the elected representatives.}

1. Non-elected elements have highly constrained role 2. Ministers drawn from Parliament and responsible to Parliament 3. Responsibility is collective (the Ministry as a whole) and individual 4. Parliament to scrutinise and hold Ministers to account. Diceys description of the unwritten constitution: The other set of rules consist of conventions, understandings, habits or practices which, though they may regulate the conduct of officials, are not in reality laws at all, since 72

they are not enforced by the Courts. This portion of Constitutional Law may, for the sake of distinction, be termed the conventions of the Constitution or constitutional morality.

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*(c)* Sources of Executive Power


Section 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. The executives power must have a justification in law. The power is limited. The Executive cannot dispense its officials from obeying the law (A v Hayden (1984) HCA {A training exercise by a spy agency went wrong, resulting in offences under Victorian Criminal law. The Executive argued that they could authorise breaches of law without statutory justification. Held that it is fundamental that the executive has no power to authorise breach of the law.}). Remedies available if the exercise is outside what is authorised by law. From s 61, there appears to be 3 separate powers under which the Executive can act: 1. Prerogative; 2. Nationhood; 3. Power conferred by statute. (1) Prerogative The prerogative is limited and cannot be expanded. It is not a species of the royal prerogative, but is part of a power conferred in a federal compact between 3 arms of government (Ruddock v Vadarlis). It is split between the Commonwealth and the States (AG NSW v Butterworth). The power can be diminished by legislation, but it must be a comprehensive legislative scheme (Ruddock v Vadarlis). The power to protect boarders falls within this power (Ruddock v Vadarlis). (2) Nationhood The nationhood power is implied by the words maintenance of the constitution in s 61, and Australia status as a nation state (Tampa Case; Bicentennial Authority Case). French J, in the Tampa Case, suggested that the power extends to the protection and advancement of Australia. {Deeply unsatisfactory in terms of control of executive action.} (3) Statutory Power Executive power may be conferred by statute under s 61. This provides a very large scope for the executive, especially in relation to the making of subordinate legislation. As such, parliamentary oversight is critical {role of special purpose legislative committees review the subordinate legislation both upper and lower houses have the power to over-ride the subordinate legislation}. In Dignans Case, the High Court did not constrain the executives ability to gain de facto legislative power. There, the executive were given broad powers to make regulation with respect to a waterfront dispute. {Dixon J stated that the seperation between the legislature and executive is relatively weak.} 74

Mechanisms have since emerged to qualify executive power {administrative law, Ombudsmen, Human Righs Commission}. Ruddock v Vadarlis (2001) 183 ALR 1 Facts: A boat was sinking in the Indean ocean with boat people on board. The Australian authorities requested that the MV Tampa rescue the boat people. The Tampa initially headed towards Indonesia, but ended up heading to Christmas Island. Australian authorities refused the tamper permission to enter Australian territorial waters and the Defence force boarded the Tampa. Mr Vadarlis, a civil liberties lawyer brought the action based on the fact that the Defence force boarded without any legal authority and sought an order of release similar to that of habeas corpus. Vadarlis further argued that the Commonwealth had no lawful authority to expel the rescuees from Australian waters; The crown argued it was within their prerogative powers. Law: Per headnote: Beaumont and French JJ upheld the appeal stating that it was within the Commonwealths powers. o Action was within the scope of executive power Black CJ dissented. Was there lawful authority for the executive action taken? o A nation State has a sovereign power to exclude illegally entering aliens. o There is not general principle of law that allows the executive apart from under statute to subject anyone in Australia, citizen or non-citizen to detention o It may be accepted that ancillary powers of detention and expulsion must travel with a power to exclude [b]ut on the view I take, the undoubted power of the executive to protect Australias boarders against the entry of unlawful non-citizens in times of peace derives only from statute. Sources of Executive Power o Executive power is derived from s 61 o Prerogative power S 61 includes power accorded to the Crown at common law. The view that the crown can refuse an alien admission cannot be supported by Musgrove. Analysed commentary (custom had meant that to exclude aliens, the crown sought legislation to do so thereby it did not fall within the prerogative) and concluded that the power to exclude aliens did not fall within executive power. The proposition that there is a broad prerogative power to expel or detain in times of peace is not good law in Australia @ [28] 75 Per Black CJ (Dissenting):

o s 61

does s 61 give a broader power than the prerogative at CL? According to English constitutional principles, new prerogative powers cannot be created. Distinguished cases of national interested (nationhood power) such as the bicentennial case and that used to set up the CSIRO with the power to deport and other coercive measures.

If there was a prerogative power, did the Migration Act 1958 (cth) abolish it? o where a statue, expressly or by necessary implication, purports to regulate wholly the area of a particular prerogative power or right, the exercise of the power or right is governed by the provisions of the statute, which are to prevail in that respect. @ 33 o The relevant test is whether the statute has the same area of operation as the prerogative. o Reasons for the Migration act excluding the prerogative: Act recognised that it was in accordance with its obligations under the convention relating to the status of refugees allowing the executive to breach this would not conform with Australias treaty obligations or the intention of parliament The Act makes reference to determining what is in Australias national interest, which would exclude the exercise of the prerogative and the executives view of national interest.

o The Border Protection Legislation Amendment Act 1999 set out a comprehensive regime for the control of Aus waters o @ 61: There cannot be a parallel power of the executive in this field that would allow the executive to exercise its powers in an unregulated fashion. Detention o The fact that the boat people were able to go back to where they came from did not prevent their detention they may still be restrained in their current situation o The captain of the Tampa would not leave for safety reasons with the rescuees still on board Dismissed appeal Dismissed Cross appeal agreeing with French J Agreed with reasons and orders of French J but added further reasoning Considered in detail the courts ability to issue a writ of Habeas Corpus The executive power of the Comonweatlh source and general character o The powers of the commonwealth are conferred by s 61 and not otherwise o S 61 is the primary source of executive power 76

Beaumont J:

French J (leading judgment)

o S61 is limited in that it is not allowed to act inconsistently with the distribution of powers and the limits on power provided in the constitution o The power extends to those enjoyed by the crown under common law o S 61 confers on the Commonwealth all the prerogative powers of the crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself. o Maintenance of the constitution imports the idea of Australia as a nation o The power under s 61 extends to the protection and advancement of Australia o The power conferred by s 61 is not a species of the royal prerogative it is dependant on construction of the constitution and its inherent limits brought about by federalism and separation of powers. Extent that executive power is subject to parliamentary control o Executive power can be abrogated, modified or regulated by the laws of the Commonwealth @ 181 o Prerogative power will not be abrogated by legislation except by its express words or necessary implication o Essentially there is a presumption that the parliament does not intend to abrogate any prerogative rights o Close examination is required to a contention that legislation covers the field and is therefore not within the prerogative power. Executive power the gate keeping function is there a prerogative right to exclude? o Sought to distinguish the cases relied upon by Black CJ (e.g. Ex parte Leong Kum) on the basis that these cases turned on the existence of a statutory permission or enter the colony. o The executive could not act on all the powers in s 51 of the Const o @ 192: However, they may act on those which are seen as central to the expression of Australias status and sovereignty as a nation. This includes: naturalisation and aliens s 51 (xix) immigration and emigration s 51 (xxvii) influx of criminals s 51 (xxviii)

o Australias status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not. @ 192 o The decision as to whether the exercise of the power is good or bad is not one for the courts o Absent of statutory extinguishment, the executive may decide who comes into this country. @ 193 o Did not find it necessary to determine the scope of the power it may fluctuate with that of the defence power Was the power abrogated by statute 77

o It is necessary to see whether the abrogation of the executive power under s 61 occurred through necessary implication by the covering of the field by the Migration Act o The relevant test is whether the act evidences a clear and unambiguous intent to deprive the executive of the relevant power o @202: In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away. Detention attributable to the Cth? o There was not detention because what was done was within power

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Limitation applicable to Commonwealth and States


(i) Freedom of Interstate Trade and Commerce
s 92 of the Constitution of Australia On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

(1) Inherent Limitation The words of s 92 cannot be given their literal meaning because to do so would be in contradiction with s 51 (i) and would lead to irrational results { e.g laws prohibiting
inter-state drug trafficking could not be passed; trucks on interstate journeys would not be subject to traffic rules}.

As such, rules as to what would restrict were formulated. (2) History: Before Cole v Whitfield Prior to the decision of Cole v Whitfield, adopted the individual rights theory of s 92, that conferred upon traders, rights of protection. In the Bank Nationalisation Case, the court that: Reasonable regulation (not prohibition) was compatible with s 92; and S 92 was violated when law directly or immediately restricts trade, rather than an indirect or consequential impairment.
Only discuss if required (1) Was the regulation reasonable?

This test was the focus of the case law until Cole v Whitfield.

If some aspect of interstate trade (for example, road transport) was made subject to licensing requirements, the granting of any wide discretion to the licensing authority would violate s 92 of the Constitution (Hughes and Vale Pty Ltd v New South Wales (No 1) (1954) 93 CLR 1). The imposition of a tax at a reasonable rate, so as to recover the cost of road repairs, was reasonable regulation (Armstrong v Victoria (No 2) (1957) 99 CLR 28). State consumer protection laws were reasonable regulation (Samuels v Readers Digest Association Pty Ltd (1969) 120 CLR 1). Commonwealth trade practices laws were reasonable regulation (Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617). However, when the High Court had to decide whether laws imposing agricultural marketing schemes were "reasonable", it was obviously open to differing views depending on the Judge's political instincts, and the Court split widely in many cases in the early 1980's (Uebergang v Australian Wheat Board (1980) 145 CLR 266; Australian Coarse Grains Pool Pty Ltd v Barley Marketing Board (1985) 157 CLR 605).

(2) Did it directly restrict trade?

79

Under Dixon CJ, the High Court tended to interpret whether a law directly interfered with interstate trade by looking at the text of the law to see whether it took a fact or event or thing itself forming part of trade, commerce or intercourse and proceeded by reference thereto ... to impose a restriction, a burden or a liability, without considering economic effects. This became known as the criterion of operation test (Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1). However, Barwick CJ preferred to look as well at economic effects on trade, and persuaded a majority of the High Court to take that approach (North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559).

(3) Cole v Whitfield onward Views that s 92 was meant to prevent laws giving favour to particular states led to the decision of Cole v Whitfield. In Cole v Whitfield, the High Court held that s 92 guaranteed interstate trade and commerce against discriminatory burdens of a protectionist kind. (1) Does it discriminate against interstate trade or commerce? A law may be discriminatory on its face, or by its factual operation (Cole v Whitfield). Therefore, it is necessary to examine: 1. Whether the law on its face is discriminatory; 2. Where the law is not on its face discriminatory, whether its application imposes a burden of a discriminatory kind. Application to Commonwealth Laws Commonwealth laws under s 51(i) will not ordinarily be discriminatory if they apply to all transactions of a given kind within the reach of Parliament, although it may (Cole v Whitfield). (2) Is the burden of a protectionist kind? Whether the burden is of a protectionist kind is a matter of degree. Where the law is in the pursuit of an object that is not protectionist (e.g. prescribing quality standards), it will generally not impose a protectionist burden. However, where the pursuance of the nonprotectionist object is to an extent that causes it to be characterised as protectionist, s 92 will apply (Cole v Whitfield). As such, the court applies a test similar to whether the law was reasonably appropriate and adapted to its purpose (Castlemaine Tooheys v SA). Levelling the playing field is not permitted (Bath v Alston Holdings). Application: Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411: fee only charged if goods obtained from another state breach of s 92. Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436: All brewers except those in SA used non-refillable bottles, while those in SA used refillable bottles. An amendment was made to 80

increase the 5 refund on return to 15, in addition to certain exemptions made to the SA brewer, which placed SA brewers in a better position. The court held that the laws were not reasonably adapted or appropriate to conserve energy or prevent litter. Barley v Marketing Board (NSW) v Norman (1990) 171 CLR 182: Marketing scheme which compulsorily acquired barley from NSW producers was held to be valid because the purchasers were free to purchase either states barley, just from different people. Betfair Pty Limited v Western Australia [2008] HCA 11: WA act that purported to restrict a gambling over the internet (namely from Betfair, operating in Tasmania). The court held that the restriction was not reasonably appropriate and adapted to the protection of the integrity of the racing industry. Unchartered Waters *Benefits to a states own traders Queensland mandates alcohol in petrol; Preference given to locals in tendering process; States granting tax concessions to attract business

*Discretionary licensing schemes; see Hughes and Vale Pty Ltd v New South Wales (No 1) (1954) 93 CLR 1. {under old reasonable regulation test, the law would either be invalid as it could be used for protectionist purposes, or valid, subject to admin law rules that would prevent favoring locals} Cole v Whitfield: Facts & Applicaion In the exercise of power given by s 9 of the Fisheries Act 1959 (Tas), the Governor of Tasmania made regulations prohibiting the possession or control of undersized fish. Regulation 31(1)(d) of the Sea Fisheries Regulations 1962 (Tas) declared that no person shall take, buy, sell, offer or expose for sale, or have in his possession, or under his control, a male crayfish below 11 cm in size, or a female crayfish below 10.5 cm, whether or not the fish was taken in the State fishing waters. Whitfield managed a crayfish farming business in Tasmania that purchased and sold live crayfish. Whitfield bought some live crayfish from a South Australian fishing business. All were above the minimum size prescribed by South Australian legislation but below that prescribed in the Tasmanian regulations. Whitfield was subsequently charged with the possession of undersized crayfish. Whitfield sought to rely on s 92 of the Constitution. Held: 81

o On the facts of the case, the limitation on the size of crayfish sold or possessed in Tasmania was a discriminatory burden on interstate trade and commerce in crayfish, but no discriminatory protectionist purpose appeared on the face of the law because: prohibitions applied alike to Tasmanian and imported crayfish and the object of the law was protection and conservation; it was a necessary means of enforcement as only random inspections were possible and it was not feasible to distinguish between Tasmanian and imported crayfish.

o o o o o

Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 Facts Law requiring retailer to have license calculated as 25% of product sold, except that which was purchased from Victorian suppliers. The Defendant was unlicenced and purchased tabacco from Queensland When charged, used s 92 as a defense. Law A 4:3 majority held that the act breached s 92 because it imposed the license fee solely with reference to the state the tabacco was purchased from. This constituted a burden of a protectionist kind.

(ii) Discrimination on the basis of out-of-state residence


(1) Section s 117 provides that A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. (2) Application This section applies to Commonwealth and State laws, but there have been no cases concerning Commonwealth Laws. s 117 means that State laws cannot subject an Australian citizen who resides in another state to a disability or discrimination that are not equally applicable to residence of their own state What it does not do: It does not apply to corporations (Ceil Comfort Insulation v ARM Equipment Finance). It is not a general prohibition on discrimination It does not prevent discrimination between people living in major cities or rural areas 82

It des not prevent discrimination on the basis of former residence in another state (Lee Fay {The relevant WA law discriminated against the Chinese, but allowed certain privileges to Chinese born in WA, but not to those born in other states}).

(3) Subject of the Queen Since the aliens cases and the creation of a separate Australian citizenship, it is unclear to what extent this will be interpreted as an Australian Citizen. (4) Resident of a State Residendency may be long-term or short-term (Davies and Jones). In Commissioner of Taxation v Parks, a law that imposed differential tax rates applied to a sailor who merely had a home base in another state. (5) Does it discriminate? In Street, the relevant test was stated: does a state law subject the complainant, resident in another State, to a disability or disadvantage compared to a hypothetical or notional person who is identical in all respects to the complainant except that (s)he resides in the first state? {in street, it was held that bar admission rules demanding intent to reside in Qld were invalid} The court is to look at the practical effect; they are not to invent abstract possibilities {e.g. that some SA residents may have a Victorian degree} (that was used to deny discrimination in Boehm). Examples In Goryl v Greyhound Ausralia, s 117 was breached where a Qld act purported to apply NSW law to NSW residents who were victims of motor vehicle accidents {which had lower premiums and lower damages}, while applying the Queensland common law to Queensland victims {higher premiums and higher damages}. In Sweedman v Transport Accident Commission, s 117 was held not to have been breached where the Victorian act allowed The Transport Accident Commission to sue the driver of the car registered in another state {NSW}. It was held that it was quite likely that some NSW residents would have a car registered in Vic In Re Loubie, Dowsett J held that the reverse onus of proof required when a NSW resident sought bail, was a breach of s 117. In Ceil Comfort Insulation v ARM Equipment Finance, it was held that a rule allowing the Court to order the plaintiff to give security for the defendants costs if the plaintiff does not reside in the state, breaches s 117 {but there, it was a corporation}. (6) Limitations to qualification In Street, the Court unanimously held that the prohibition was not absolute, and it not extend to residence requirements for voting and to qualify for State social welfare. However, the test was not clear: it ranged from necessary implication to appropriate and adapted. In Gorgyl v Greyhound Australia, McHugh suggested that A &A test was too weak, meaning that the applicable test should be that of necessary implication. However, in Sweedman v Transport Accident Commission, the court refered to the exception in terms of the A & A test and proportionality. 83

(7) Effect Strictly speaking, a law that breaches s 117 is not invalid, it is merely pro tanto inoperative {i.e. it does not apply to any other person}. {This seems to be taking it to far, the better position would be to find it invalid to the extent that it discriminates against residents of other states}

(iii) Free Intercourse


(1) General Rule The freedom of intercourse provision in s 92, protects the right to travel and communicate between states. The guarantee does not guarantee free travel with Australia, only movement between states (Gratwick v Johnson). There is no requirement that the law restricting intercourse be protectionist (Cole v Whitfield). In R v Smithers; ex parte Benson, a law that prevented persons who had served more than 12 months in jail in the past 3 years from entering NSW was held to be invalid. In Gratwick v Johnson, it was held that the defence power was still subject to freedom of intercourse in s 92. (2) Limitations? It is clear that a law that directly restricts interstate intercourse is invalid. However, where the restriction is of indirect effect, it appears that the law will not breach s 92 if it is reasonably appropriate and adapted or reasonably required (AMS v AIF). Cases In Nationwide News, Brennan CJ suggested that a law that directly effected interstate intercourse was invalid, but if it had an indirect effect, the law must be reasonably appropriate and adapted. In AMS v AIF, it was held that the law must restrict interstate intercourse no more than is reasonably required {injunction restraining a parent from taking a child out of state}. In APLA v Legal Services Commissioner, the court upheld a law that restricted advertising of legal services {whether internal or interstate}, because it was not protectionist and the restriction on interstate intercourse was no greater than reasonably applied.

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(iv) Implied Guarantee of Political Speech


(1) How? The implied guarantee of political speech is derived from the text and structure of the constitution, particularly ss 7 & 24 {Cf other views that suggested that it was implied by the nature of representative and responsible government}. History Australian Capital Television Pty Ltd v Commonwealth In Australian Capital Television, the High Court 6:1 held that the system of representative democracy implied a guarantee of freedom of communication on political matters. However, the HC appeared to warrant laws that restricted such speech if the laws were required by a legitimate interest. There, amendments to the Broadcasting Act banned electronic broadcasting of political advertisements during elections, and made it compulsory for broadcasters to give free air time for advertising {allocations to be made by the Australian Broadcasting Tribunal}. Mason CJ, Deane, Toohey & Guadron JJ held the act totally invalid. McHugh and Brennan JJ held the act partly invalid {McHugh said it was
invalid for everything except territories; while Brennan J held that only its application to states were invalid.}

Nationwide News Pty Ltd v Wills In Nationwide News, the Court affirmed Australian Capital Television, holding that a law that was reasonably appropriate and adapted to a legitimate purpose would not be invalid. There, a section of Industrial Relations Act 1988 made it an offence by writing or speech to use words calculated to bring the Industrial Relations Commission or any of its members into disrepute. 3 judges held the law was invalid for lack of a head of power, while the other 4 held that the law infringed the implied guarantee because the law prevented criticism even if it was justifiable and reasonable. Defamation In Theophanous v Herald & Weekly Times Ltd, the Court held the implied guarantee as a defence to defamation, because the common law and statute must conform to the guarantee. In Stephens v West Australian Newspapers, Theophanous was affirmed, and the principle was extended to state politics. In Lange v ABC, the Court held that the law of defamation effectively burdened the freedom of political communication, and the law of qualified privilege, as traditionally understood, did not qualify that burden consistently with the freedom Current Position: The law of defamation has developed to conform to the guarantee, so that there is a reformulated defence of qualified privilege. Thus, to be effective, the conduct of the publisher must be reasonable and the publication must not be actuated by malice. 85

(2) Scope of Limitation The implied guarantee protects the freedom of communication on matters of government and politics, but is not absolute (Lange v ABC). The Guarantee applies to State political matters (Stephens v West Australian Newspapers Ltd). The test laid down in Lange and modified in Coleman v Power, contains 2 limbs: 1st Limb: Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

2nd Limb: If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the mainteance of the system of government prescribed by the Constitution? Application in future cases In Levy v Victoria, while holding that the guarantee extends to conduct, the Court held that a law that prohibited a person entering a hunting area without authority was valid because the regulations were reasonably appropriate and adapted to securing the legitimate end of public safety. In Roberts v Bass, the publication of defamatory how-to-vote cards was held to be ok, because attempting to damage another candidates election prospects is central to the democratic process and not improper. In Coleman v Power, the majority of the Court held that the guarantee protected a person charged under the Vagrants, Gaming and Other Offences Act, for using abusive or insulting words during a protest.

(v) Implied freedom of movement and association


There are dicta to suggest that there is an implied freedom of movement and association. In Kruger v Commonwealth, Toohey, Guardron & McHugh were in favor of such a right. However, in Mulholland v AEC, Gummow, Hayne & Heydon held that freedom of political association would only be protected if it was related to freedom of political speech. But McHugh & Kirby were in favour.

(vi) Implied right of legal equality?


An implied right of legal equality was rejected by the whole court except Toohey J in Kruger v Commonwealth.

86

Coleman v Power Facts: Coleman was protesting in a public place and insulted a police officer, by calling him corrupt. He was subsequently charged with using insulting words contrary to s 7 (1)(d) of Vagrants, Gaming and Other Offences Act 1931 (Qld). That section stated, Any person who, in any public place (d) uses any threatening, abusive or insulting words to any person Shall be liable to a penalty of $100 or to imprisonment for 6 months. Outcome: Law: Held 4:3 that Colemans words were protected by the guarantee; s 7 (1)(d) was valid, but read down. The minority read the guarantee very narrowly. Per Gleeson CJ {dissent} Equated breach of the peace with violent responses to behaviour, noting that certain behavior of the kind in s 7 (1)(d) should be stopped even though it might not provoke violence from people around them because of fear or self-control. This, in addition to the legislative history which removed the requirement for an actual or intended breach of the peace, means that there can be no inference that the act must be likely to breach the peace. Discussed what was disorderly generally not given a wide meaning it must be sufficiently serious to warrant criminal law. The proper interpretation of s 7 (1)(d) is that it must be more than derogatory, it must be of such a nature, taking into account the circumstances, that it is contrary to contemporary standards of public good order, going beyond what is simply an ecercise of freedom to express opinions on controversial issues. @ 26 o It is impossible to state comprehensively and precisely the circumstances in which the use of defamatory language in a public place will involve such a disturbance of public order, or such an affront to contemporary standards of behaviour, as to constitute the offence of using insulting words to a person. An intention, or likelihood, of provoking violence may be one such circumstance. The deliberate inflicting of serious and public offence or humiliation may be another. Intimidation and bullying may constitute forms of disorder just as serious as the provocation of physical violence. But where there is no threat to the peace, and no victimisation, then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute. However, the degree of personal affront involved in the language, and the circumstances, may be significant. At [15] p 26 the fact that the person was a police officer may be relevant, although not decisive it may in practical terms, eliminate any likelihood of breach of the peace or vicimisation. Calling a police officer corrupt may entitle a magistrate to deem this as a contravention of public order Did s 7 (1)(d) breach the implied guarantee of free political speech? o The majority of argument concerned whether the section was reasonably appropriate and adapted to its object. o Stated that many of the prohibited actions in s 7 (1)(d) could be encountered within the bounds of political discussion, especially if it was interpreted widely. 87

o the Court will not strike down a law restricting conduct which may incidentally burden freedom of political speech simply because it can be shown that some more limited restriction could suffice to achieve a legitimate purpose. @ p 32 at [31] use the reasonably appropriate and adapted test o gave the example of if racist language was used against an immigrant, supposedly discussing the immigration policy of the government. o The legislation is valid, as it was reasonably appropriate and adapted to its purpose. Legislation valid. Both parties acknowledged that s 7 (1)(d) had the capacity to burden political freedom, but the issue was whether the act was reasonably appropriate and adapted. Held that the appeal must be allowed. o It was relevant that there was no defense. o Under the Constitution, a law that, without qualification, makes it an offence to utter insulting words in or near a public place cannot validly apply to insulting words that are uttered in the course of making statements concerning political or governmental matters. What does insulting mean? o It is not broadly interpreted discussion of case law o There must be a direct personal effect on the persons who heard them. o Could not see a reason to further limit the ordinary meaning of insulting: The provision imposed its own limitations: the insulting words had to be directed to a person and they had to be used in or near a public place. Accordingly, if the words were used in or near a public place and were calculated to hurt the personal feelings of a person and did affect the feelings of that person, they were insulting words for the purpose of s 7(1)(d). @ [64] Per McHugh J

o The words do not need to be said to the person directly, provided that there content could reasonably be seen to be directed at him or her. o There is no requirement of liklihood of breaching the peace. Defenses to the use of insulting words o Unlike other laws such as defamation where truth, qualified privilege, etc is a defense, there is no such defense here. Subject to the const, the words constituted a breach Issued that dont need to be considered o The implied freedom can apply to restrict state laws o The relevant subjects of political and governmental communication include activities of the executive arm of the government 88

o Whether the words were political communication this was conceded Criticism of the reasonably appropriate and adapted test discussed differing views and the possibility that the reasonably A & A test provides poor predictive power but these arguments are dismissed later in his judgment Is the section compatible with the freedom of communication? o freedom of political communication under the Constitution arises only by necessary implication from the system of representative and responsible government set up by the Constitution. @ [89] o the freedoms application is limited to what is necessary for effective operation of a responsible government. o Inserted in a manner instead of the fulfillment of o a law that burdens communications on political or governmental matters in the sense I have explained will be invalid unless it seeks to achieve an end in a manner that is consistent with the system of representative government enshrined in the Constitution. o A law will not be reasonably appropriate and adapted when communication on political matters is no longer free this does not mean free of all restrictions. o The freedom is not absolute or equivalent to a license. o Laws about political communication may be regulated in a way that enhances or protects the communication of those matters. o laws that burden such a communication by seeking to achieve a social objective unrelated to the system of representative and responsible government will be invalid, pro tanto, unless the objective of the law can be restrictively interpreted in a way that is compatible with the constitutional freedom. Thus, a law that sought to ban all political communications in the interest of national security would be invalid unless it could be demonstrated that at the time such a prohibition was the only way that the system of representative government could be protected. went on to say that for such a complete restriction, the system would have to be under such a threat that such a ban would be the only way to protect the system. o Although defamation laws burden the freedom, it is reasonably appropriate and adapted for a legitimate purpose. o Conclusion as to the case Although other parts of s 7 (1)(d) may be reasonably A &A, an unqualified prohibition of insulting was not.

Consequences of invalidity o The proper interpretation of the Acts Interpretation Act was that the law should be held to be valid to the extent that it penalizes the use of insulting words concerning politics and government. it should be read down.

The appeal should be allowed with costs. Construing s 7 (1)(d) 89

Gummow & Hayne JJ {majority}

o Construed the word insulting in light of the fact that it created a criminal offence and that it was grouped with the words threatening and abusive. The criminal nature of it, meant that it served public, not private purposes The other words may cause violence or an apprehension thereof. Also construed it narrowly because if you didnt, it would provide a much larger scope than the common law with defamation.

o Independent of the Constitution, it is likely that this construction would have been reached. o 4 factors require the confined construction it creates an offence Making criminal the use of certain kinds of words to another can be explained only be reference to the effect on, or the reaction of, the person whom the words are directed.

the description of the words as insulting the requirement that the words are used to a person the requirement that it is in a public place

o thes factors import a requirement that the insult, in the circumstances in which they are used, are provocative (254), in the sense that either they are intended to provoke unlawful physical retaliation, or they are reasonably likely to provoke unlawful physical retaliation from either the person to whom they are directed or some other who hears the words uttered. o The finding of the narrow meaning of insult is independent of the constitution. Constitution o Lange Agreed with McHugh about inserting the words in a manner o Rejected submissions that the test should be that the law is reasonably capable of being seen as appropriate and adapted. o Although indicating a tendency to find that criticisms about the police were a political matter, there was no need to decide o on a wide construction of insulting in s 7 (1)(d), this would breach the second limb of the Lange test. Conclusion o S 7 (1)(d) is not invalid o it does not suffice for the person to whom the words were used to assert that he or she was insulted by what was said. And it does not suffice to show that the words used were calculated to hurt the self-esteem of the hearer. Where, as here, the words were used to a police officer, then unless more is shown, it can be expected that the police officer will not physically retaliate. It follows that unless there is something in the surrounding circumstances (as, for example, the presence of other civilians who are affected by what is said) the bare use of 90

words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament police officers must be expected to resist the sting of insults directed to them. The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation. o The conviction should be set aside Kirby J Agreed to the reformulation of the Lange test by McHugh J Agreed with Gummow, Hayne & McHugh JJ that the test should not be whether the act was reasonably capable of being seen as appropriate and adapted. Construction of s 7 (1)(d) o You must construe the law itself before determining its constitutional validity o A construction that conforms with the constitution is to be preferred to one that does not o The ordinary methods used for determining meaning do not yield clear the meaning of insulting there is support for a wide an narrow meaning o However, the fact that there is a criminal sanction and it is for the public purposes, suggest that a restrictive meaning must be adopted. o In line with principles of statutory interpretation, insulting should not be given its widest meaning it should be read so as not to restrict communication on political matters, but also rules relating to international law and human rights o I will never cease to protest at this ungainly phrase appropriate and adapted. Just imagine what non-lawyers must make of it? It involves a ritual incantation, devoid of clear meaning. o Preferred the proportionality test but admitted that here, there was very little difference o Reading the description of civilised interchange about governmental and political matters in the reasons of Heydon J (337), I had difficulty in recognising the Australian political system as I know it. His Honours chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action. @ [238] o One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion (338). They are part and parcel of the struggle of ideas. Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for the votes of constituents and the support of their policies. It is unlikely to change. By protecting from legislative burdens governmental and political communications in Australia, the Constitution addresses the nations 91

representative government as it is practised. It does not protect only the whispered civilities of intellectual discourse. Insulting therefore requires a more limited interpretation in order for s 7(1)(d) to be read so as not to infringe the constitutional freedom defined in Lange. @ [239] o It follows that s 7(1)(d) can, and should be, construed so that it conforms to the Lange test as reformulated in this appeal. As so construed, insulting words in the context of the Act are those that go beyond words merely causing affront or hurt to personal feelings. They refer to words of an aggravated quality apt to a statute of the present type, to a requirement that the insulting words be expressed to the person insulted, and to a legislative setting concerned with public order. They are words intended, or reasonably likely, to provoke unlawful physical retaliation (373). They are words prone to arouse a physical response, or a risk thereof (374). They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be when used in such a context. @ [254] o In such communication, unless the words rise to the level of provoking or arousing physical retaliation or the risk of such (and then invite the application of the second limb of the Lange test) a measure of robust, ardent language and insult must be tolerated by the recipient. In Australia, it must be borne for the greater good of free political communication in the representative democracy established by the Constitution. @ [255] o The proper construction of s 7 (1)(d) does not breach the implied freedom o NB: Kirby states that his reasoning relies less on English Development than the joint judgment that he agrees with. This conclusion requires that the appellants conviction of an offence against s 7(1) (d) of the Act be set aside. Nevertheless, s 7(1)(d) of the Act, so interpreted, is a valid law serving a legitimate end. When confined to its true ambit as explained, it is fully compatible with the freedom of communication within the federal system of representative and responsible government protected by the Constitution. It is also compatible with international human rights law and basic common law rights. @ [261] It is correct to say that s 7(1)(d) does enact a form of criminal responsibility for defamation of a person to his or her face even though a breach of the peace may not have been intended and none in fact may occur. @ [279] held that the insult must be to a person not so as to encompass situations where a unconnected person would find it distasteful does the section satisfy the second limb of Lange o the freedom is limited and is only for what is necessary for the effective operation of government in accordance with the constitution. o A law that restricts communication in a manner that is compatible with the maintenance of representative government, will be valid. o Suggested is the law a reasonable implementation of a legitimate object rather than the reasonably appropriate and adapted test 92

Callinan J

o Many people use and resort to public places. These include people of both tender and advanced years, inarticulate people unable to make an effective response, and people of greater and lesser sensitivities. The fact that some may be robust and sufficiently restrained to ignore, or to respond but not in kind, or turn the other cheek to offensive statements, is not a reason for risking the peace, the avoidance of which is the legitimate end of the section. The Courts should not be called upon to weigh up those sensitivities, to make assumptions, for example, about the relative vulnerability of soldiers, or police officers, or tradespeople, or clergy, or mothers, or husbands, or otherwise. Who such persons are, and what they do, may be relevant to the question whether the words are insulting in fact, but have nothing to say about the construction of the section otherwise, particularly whether the notion of a need for the likelihood of the realisation of a risk should be read into it. o What the section seeks to further therefore is peaceable, civilized passage through, and assembly and discourse in public places free from threat, abuse or insult to persons there. In that sense, the section seeks itself to advance a valuable freedom. Free speech as this Court said in Lange has never been an absolute right. Various constraints upon it have always been essential for the existence of a peaceable, civilised, democratic community. o In my opinion, s 7(1)(d), understood in the sense contended for by the Attorney-General for Queensland, of an insult in a public place delivered to the person the subject of it, or to some person associated with that person, or a person who, having regard to the role or any particular position of the person insulted, might be aroused to respond, offers no realistic threat to any freedom of communication about federal political, or governmental affairs. It is no burden upon it. o In any case, the laws are well adapted to the preservation of the peace in public places in Queensland. o In short it is not at all necessary for the effective operation of the system of representative and responsible government in accordance with the Constitution that people go about insulting or abusing one another in or about public places in Queensland. The conviction was duly entered, and s 7 (1)(d) was valid. Insulting words? o There is no restriction or qualification to insult that would require it to provoke a violent reaction or breach of the peace. o Equated the word with provocative, and not necessarily physical Is s 7 (1)(d) reasonably appropriate and adapted o But the freedom is not absolute: It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. o The section does seek to serve legitimate ends peace, order and a democratic society o This is compatible with the maintenance of a system of responsible 93 Heydon J

government o It is limited geographically to conduct in or near public places. It is limited in its application only to insulting words. And it is limited in its requirement that the words be addressed to a person. Hence it leaves a very wide field for the discussion of government and political matters by non-insulting words, and it leaves a wide field for the use of insulting words (in private, or to persons other than those insulted or persons associated with them). In short, it leaves citizens free to use insults in private, and to debate in public any subject they choose so long as they abstain from insults. Even if s 7(1)(d) does create an effective burden on communication on government and political matters, that is not its purpose; it is not directed at political speech as such. Its purpose is to control the various harms which flow from that kind of contemptuous speech which is insulting. o The range of non-insulting human communication is vast and the range of non-insulting political communication is also very wide. There are almost infinite methods of conveying ideas, information and arguments on government and political matters which are not insulting. Section 7(1)(d) imposes no restrictions on subject matter, no time limitations and no area limitations on government and political communications. It does not prevent full, compelling, trenchant, robust, passionate, indecorous, acrimonious and even rancorous debate, so long as the words used are not insulting. If it can be said to burden the relevant freedom at all, that burden is very slight. o The non-existence of defenses is not fatal S 7 (1)(d) does not impact on the effective operation of the system of government under the constitution therefore valid

Tute: History o Capital Television implication had not been thought up until here counsel dreamt it up o Based on ss 7, 24, 64 & 128 To be able to chose your government, you must be able to choose gov Common Law must be subject to the Const defamation law modified to conform to const Lange said it could apply to criticism to foreign politicians under certain circumstance Two limb test o Effectively burdens o Reasonably A & A any end is legitimate if it is not the restriction of political discussion Gummow, Hayne & Kirby before you rule something as constitutionally invalid if 94 o Defamation Cases involving state politicians

there are 2 interpretations interpret the one that would conform o Read it down that the insulting words only where it is likely to insight violent actions and breach of the peace Cf McHugh Parliament used it to cover up olitical criticism looked at amendments

o When you give insulting words to a police constable, it will not be a breach of the peace because police officers are trained to deal with such situations o This section doesnt apply o Not Appropriate and Adapted McHugh J o Parliament should draft to fit const invalid o Not appropriate and Addapted. 3 in dissent o may limit in political speech o but it was reasonably appropriate & adapted Heydon said that it did not prevent all political communication only that which is not insulting

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State Laws
Introduction
State Constitutions
The colonial Constitution Acts for were originally enacted by the UK Parliament, but the states were allowed to amend or re-enact their constitutions. As such all states except WA have re-enacted its constitution. NSW: Constitution Act 1902 SA: Constitution Act 1934 Victoria: Constitution Act 1975 Tasmania: Constitution Act 1934 WA: the original Constitution Act 1890, enacted by the UK Parliament, has to be read with the Constitution Acts Amendment Act 1899.

The general amending power (and the possible limits on that power) were restated in s 5 of the Colonial Laws Validity Act 1865. Manner & Form The State Parliaments also had the power to insert new restrictions on the manner and form of amendment of particular provisions in the Constitution Acts. Rather than provisions for tabling in London and personal assent by the Queen, the manner and form restrictions inserted in modern times by State Parliaments tend to provide that a Bill must be either: passed by an absolute majority of both Houses or submitted to the electors at a referendum and passed by a majority of those voting. Otherwise a State Constitution is an ordinary Act of Parliament and can be amended by a later ordinary Act. this is a big difference between this and the Federal Constitution Therefore, we need to learn two sets of rules: ordinary sections amendable by ordinary act; sections that are entrenched by manner and form requirements.

Queensland Constitution Queensland constitution a dogs breakfast Main Constition Act 1867, which was supplemented by Constitution Act Amendment Acts and other legislation Manner and form restrictions exercised by the state parliament in 1934 and 1977 on both occasions requires a proposed amendment of the Constitution Act to be put to a referendum; Consolidation of most the different acts into Constitution of Queensland 96

2001 o It re-wrote most of the old constitutional documents in plain English o Extended the tenure of Supreme Court Justices to District Court Judges, with conditions for dismissal specified more clearly o However, as some of the older acts were protected by manner and form provisions, the government left them how they were to avoid a referendum. o These acts included as attachments to the new constitution: the eight remaining sections of the Constitution Act 1867; and the Constitution Act Amendment Act 1890; and the Constitution Act Amendment Act 1934.

Judicial Intervention in the Legislative Process


The question of validity of an Act will often arise after enactment, but can the Judiciary intervene prior to this? {this will usually be more prevalent where there are manner and form provisions in place.} Although the law has not been clear in the past, the position appears to be that the Courts do have the power, but only in exceptional circumstances (Eastgate v Rozzoli {Kirby P at 199: After the passage of legislation through the House or Houses of Parliament
and before presentation of the resulting Bill to the Governor for the Royal Assent, the courts have asserted the power to issue an injunction to restrain the officers responsible for presenting the Bill to the Governor for the Royal Assent Nevertheless, it is now settled practice in Australia that such an injunction will virtually never be issued, nor a declaration made, at that stage. It will be left to the applicant to seek relief after the Royal Assent has been given and the Bill has become law. Priestley and Handley JJA at 204: it would be essential for the plaintiff to prove, before the Court would begin to consider such an exercise of jurisdiction, that the plaintiff's basis of legal challenge to the Bill would cease to be available once the lawmaking process had been completed by the Bill being enacted into law.}).

The courts appear to only be able to intervene where the Bill is a clear breach of an express prohibition in the Constitution (Bignold v Dickson (1991) 23 NSWLR 683), or the Bill would, if enacted, take away the Plaintiffs legal basis to challenge the legislation (Eastgate v Rozzoli (1990) 20 NSWLR 186). History State Courts have generally favored judicial intervention: Taylor v Attorney-General (Qld) [1917] St R Qd 208: QLD supreme court granted injunction on referendum where it had been passed by legislative assembly, but not legislative council concluded that intervention was justified because the alternative procedure was not validly available for the passage of the proposed legislation. Ultimately went to High Court that held that the process was valid. Trethowan v Peden (1930) 31 SR (NSW) 183: SC issued an injunction to prevent the parliament from presenting two bills to the 97

governor for royal assent prohibited by a section of their constitution. Street CJ held it did not interfere with the house of parliament, but prevented a breach of the prohibition. McDonald v Cain [1953] VLR 411: injunction granted by single judge from the presentation of a bill to the Governor for royal assent, pending the Courts determination as to whether it was valid under s 60 of their constitution. SC held that s 60 did not apply to the bill. But still held that it was possible to make a declaration or injunction in appropriate circumstances. Clayton v Heffron [1961] SR (NSW) 768: NSW SC declined to issue injunction restraining a referendum where it had been passed by the legislative assembly, but blocked by the legislative council based on merits of the case, not reluctance to intervene but held there may be circumstances where there would be jurisdiction at 768 per Eveatt & Sugarman JJ stated that because the act was to replace the legislature with only one house - degree of convenience makes it necessary to determine the Acts validity & it is in the public interest to determine the validity of an act early.

However, the High Court has been reluctant to allow such intervention: Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203: HC refused to grant an injunction to prevent the presentation of a bill to the Governor that was alleged to contravene s 92 of the Federal Constitution. Dixon J distinguished the case from Trethowan v Peden because in that case it was an express prohibition, but that was not the case in this place; Dixon J indicated that he did not like judicial intervention expressly doubted Trethowan v Peden Clayton v Heffron (1960) 105 CLR 214: HC held that there was no failure to comply with certain provisions of the Constitution of NSW. However a number of judges considered whether it would have been appropriate if there was such a failure. The justices said that looking into acts prior to being passed was not an action that courts initially undertook. Cormack v Cope (1974) 131 CLR 432: Did non-compliance with SA constitution allow intervention? Again cast doubt on the appropriateness of judicial intervention. However, Barwick J suggested that it could be done in appropriate circumstances where challenge more difficult after passage, and Gibbs & Mason JJ left scope in the case of an improper double dissolution.

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(1) Is it within the States Legislative Power?


(A) No Manner & Form Provisions

(i) General Rule


The Queensland Government has the power to make laws for the peace, welfare and good government of Queensland. This is as plenary and ample as the power of the imperial parliament (Powell v Apollo Candle Co (1885) 10 App Cas 282).

(ii) Restricted by peace, welfare and good government?


Although Steet CJ in The BLF Case suggested that there is a limit the States power, allowing courts to strike down laws that do not align with peace welfare and good government, the High Court held that this was not the case, and the words peace, welfare and good government do not limit state power (Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10 {These decisions
and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words "for the peace, order and good government" are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score.}).

(iii) Amendment of State Constitution


Where there is no manner and form provisions, States can enact inconsistent legislation without first repealing the Constitution (McCawley v The King [1920] AC 691). As such, the Constitution can be amended implicitly. {Cf earlier view that the words of
the Constitution were binding until expressly amended (Cooper v Commissioner of Income Tax (Qld) (1907) 4 CLR 1304)}

(iv) Separation of powers


IF an issue consider vesting of non-judicial power in judicial bodies, below.

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(2) Restriction on Legislative Power


(i) ** See uniform restrictions! (ii) Excise Duties
90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grantbounties on the production or export of goods, shall become exclusive.

(1) The Section


Section 90 of the Constitution vests the power to impose duties of customs and of excise exclusively in the Commonwealth. However, what is meant by duties of excise is unclear.

(1A) Development
Excise Duties were initially defined to mean a tax imposed at the time of production or manufacture by reference to the value or quantity of goods (Peterswald v Bartley). The scope of excise was widened by relaxing the strict requirement that the tax be in relation to quantity or value (Matthews v Chicory Marketing Board), and including exactions at any point before it reached the consumer (Parton v Milk Board (Vic)). A judicial shift occurred in the Franchise Cases (Dennis Hotels, Dickensons Arcade and HC Sleigh), where the High Court proceeded down a line of reasoning that held a licensing fee imposed by reference to sales from a previous period was not an excise duty. Thus, the Court held that to be described as an excise duty, the exactions criterion of liability was the levys relationship to the quantity or good sold in the relevant period. After these decisions, the High Court attempted to restrict future use by constraining the operation to retail licenses (MG Kailis v WA), where the legislation operated on indistinguishable terms {especially in relation to a regulatory purpose} (Capital Duplicators).

(2) The Law


In Ha v NSW, the High Court affirmed the substance approach, rather than the criterion of liability approach adopted in the Franchise Cases. In doing so, the Court overruled the Franchise Cases, revitalising the law in Parton that a duty of excise was a tax imposed with respect to goods at any point before it reached the consumer. {See case note for Ha for further analysis.}

(3) Conclusion
Here: 1. There [is OR is not] a tax with respect to goods because _______; 2. The tax [is OR is not] imposed prior to the good reaching the customer; Thus, the tax [would OR would not] be considered an excise, and therefore a State [cannot OR can] validly exact it.

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Ha v State of New South Wales (1997) 189 CLR 465. Facts: The Business Frinchise Licences (Tobacco) Act 1987 (NSW) imposed a licence fee of $10 on retail and wholesale sale of tobacco and an additional fee calculated by reference to a prescribed percentage of the value of tobacco. The prescribed amount was increased from 30% to 100%. The applicant asserted that parts of the act were invalid because a state cannot impose an excise tax pursuant to s 90. Outcome: Law: Per My Essay In Ha v The State of New South Wales, the High Court re-established its wide interpretation of s 90. Brennan CJ, McHugh, Gummow and Kirby JJ held that a licence fee calculated on previous sales was an excise duty, through their adoption of the substance approach.1 The majority affirmed the definition of excise duty in Parton, and the view of Dixon J in Dennis Hotels that a tax applying indiscriminately to domestic and foreign goods constitutes an excise.2 In justifying this conclusion, their honours suggested that the object of uniform tariffs could not be achieved if the states had the capacity to levy taxes within their boarders.3 The majority overruled Dennis Hotels, holding that there was no special exception for tobacco and alcohol.4 . This interpretation removed $5 billion from the budgets of states, entrenching VFI. 5 Dawson, Toohey and Gaudron JJ construed duties of excise narrowly, holding that the tax must be on the production or manufacture, thereby excluding taxes that applied indiscriminately to local and foreign goods,6 thereby protecting Commonwealth tariff policy.7 Brennan CJ, McHugh, Gommow and Kirby JJ: Is local production or manufacture a discrimen of the application of a tax answering the description of a duty of excise? o The fact that the tax encompasses both imported and local tobacco does not effect s90, because the fact that a tax is neither exclusively excise or custom, but effect both imported and local, does not mean that a state can impose a law
1 2

Ha v State of New South Wales (1997) 189 CLR 465 at 498. Ha v State of New South Wales (1997) 189 CLR 465 at 490. 3 Ha v State of New South Wales (1997) 189 CLR 465 at 494. 4 In doing so, the Majority in Ha conformed with the dissenting judgment of Brennan J in Philip Morris Ltd v Commisioner of Business Franchises (Vic) (1989) 167 CLR 399 that the legislation must be on indistinguishable terms to that of Dennis Hotels. 5 Leslie Zines, Changing Attitudes to Federalism and its Purpose in Robert French, Geoffrey Lindell & Cheryl Saunders (ed), Reflections on the Australian Constitution, Federation Press, Annandale, 2003 at 103. 6 Ha v State of New South Wales (1997) 189 CLR 465 at 507. 7 Ha v State of New South Wales (1997) 189 CLR 465 at 507.

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that is both. o The principle that an inland tax on a step in production, manufacture, sale or distribution of goods is a duty of excise has been long established. p 490 o There is nothing inherently in excise that would indicate that it would only apply to goods of domestic manufacture or production. o The objective of federation to have uniform taxes could not be achieved if the states retained power to tax goods within their boarders (p 494) o S 55 calls for a classification of taxing laws by reference to the criteria of liability that they express. o States retain the ability to tax with regards to certain items, even if it effects the overall price of the products, BUT s 90 was designed to ensure uniform tariffs across states. Approaches o The respondents argument was that the criterion of liability is local production or manufacture; (p498) o If the criterion liability test was applied, the state would be permitted to tax a commodity that was both produced locally and imported provided that the tax applied indifferently between local and imports (p498) Such a situation would frustrate the intent of s 90 o The courts now look at the substance of the law to determine its meaning, resulting at the court looking at the practical effect of the law.. Are the licence fees or amounts payable merely fees for a licence to carry on business? o Discussed Dennis Hotels and Dickensons Arcade where the court held that licences to sell alcohol and tobacco were special kinds of licences; where other goods it would be considered an excise, it will be considered a fee for carrying out a business, even when it is calculated by reference to sales rather than the duration of the licence. o The majority rejected Denis Hotels and Dickensons Arcade, adopting Brennan Js approach in his dissenting judgment in Philip Moris. o Thus, Alcohol and Tobacco are not in a special class of their own. o The amount levied (between 75 &100% in the relevant periods) could not be regarded as a mere fee for a licence. o The licence fee is manifestly a revenue-raising tax imposed on the sale of tobacco during the relevant period (p 502). o So long as a State tax, albeit calculated on the value or quantity of goods sold, was properly to be characterised as a mere licence fee this court upheld the legislative power of the States to impose it. But once a State tax is imposed on the seller of goods and calculated on the value or quantity of goods sold, cannot be characterised as a mere licence fee, the application of s 90 must result in a declaration of its invalidity (p 503) cannot make decisions prospectively Dawson, Toohey & Gaudron JJ (Dissenting): 102

Duties of excise does not extend to that range of imposts which, in another context, it might embrace s 93 gives the indication that duty of excise applies to the goods produced in a state; Duties of excise have a confined meaning. It was unnecessary to extend the exclusivity beyond the duties imposed upon goods when produced or manufactured, because a tax imposed upon some later step which fell indiscriminately upon locally produced and imported goods a step in the distribution of the goods, for example would not operate to impair any policy of protection to be found in an external tariff in respect of those goods (p 507). Did not agree with Parton v Mild Board because: o There is no basis for the assumption that s 90 was intended to confer an exclusive power to impose duties of customs and excise for the purpose of giving the commonwealth real control of the taxation of commodities and thereby power to effectuate its economic policies (p507) o It is wrong 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. A tax on the cost of those goods increasing the cost of those goods without effecting a corresponding increase in the cost of imported goods of the same. Thus, a tax that falls indiscriminately upon local and imported goods does not have that effect (paraphrase from p 508) o My analysis: The restriction only applied in the pursuit of uniform tarrifs, primarily to allow Aus to have a free trade zone between states and a uniform tariff policy.

Approaches o The criterion of liability test focuses on form and ignores substance o The test focusing on substance became increasingly difficult to apply

Discussed how s 90 was designed to create an customs union, rather than an economic union Did not agree with the majority that it was illogical to conclude that a tax that applied solely to local or imported goods were unconstitutional, but those which applied to both were valid

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(ii) State Separation of Powers


(a) Introduction/General Rule Separation of powers is not entrenched in State Constitutions (The BLF Case {NSWCA held that the constitution did not entrench separation of powers within the constitution
of the State, meaning that the act was not invalid on the ground that it impaired the operation of judicial power by the courts The case surrounded a decision of a minister which was being challenged in the courts, but the legislature passed an act making the decision binding not withstanding judicial decision.}; Gilbertson v SA {PC rejection challenge of validity appeal to SC from electoral redistribution PC held that the ordinance which established the SC as a judicicature was not fundamental to the lore of SA and that the legislature may confer such powers not withstanding that they were traditionally not considered as part of the judiciarys function.}).

In McCawley, the Court held that even if there was a justicable separation of powers, the legislature could still remove the judiciarys independence by removing their tenure. (b) Exception: Vesting non-judicial powers in State Courts In Kable v DDP (NSW), the High Court held that because s 77 of the Commonwealth Constitution allowed Federal Judicial power to be vested in any Court, the institutional integrity of state courts could not be compromised by State Laws, warranting the application of the Grollo test. {but there is still no restriction on Legislature or Executive exercising judicial functions} Kable v DDP (NSW) Facts: Kable was a prisoner who had threatened to get even with informants on release. Parlt passed an Act that provided that the DPP could apply to the SC for an order for Kables {only his} further detention for a period, and then in perpetuity for a year at a time. Originally drafted to apply to anyone who would be dangerous on release, but amended to apply only to Kable, though some secs were still in general language. Act provided for Kable to be represented at hearing. DPP had b of p, but only to civil standard, not criminal. Law: HC held (4:2) that State SCs are part of the federal system because of Const ss 73 and 77 (can have fedl jurisdn, appeals go to HC) and therefore the Grollo test should apply to them (at least, per Toohey J {part of majority}, when exercising fed jurisdn, which they are any time you raise a Cth Const issue! {raising in itself makes it apply}). Held that Grollo test was breached in this case reasons included ad hominem nature of Act, imposing punishment without finding of guilt, purpose clause to provide for preventative detention of Gregory Wayne Kable not even if SC finds him to be dangerous. 104

McHugh J said Act sought to make SC the instrument of a legislative plan (but then said nobody could doubt the independence of the actual judges how can they then be said to be part of a plan), Gummow J similar, while Toohey & Gaudron JJ said Act gave court a power repugnant to judicial power isnt this much broader than the Grollo test??? Court emphasised that this was not because of some general limit on State Parlts power - Parlt could make a law directly extending an individuals sentence; they just couldnt involve the federal or State judiciary in their dirty work. court can commit various assaults on the judiciary, but it cannot assault their judicial virginity Ie, Sep of powers working only one direction - State Parlt could exercise judicial power itself, or give it to the exec, but cant give the judiciary legislative or executive power, or make them subject to the executive.

Grollo Test In Grollo v Palmer, the court held that non-judicial functions could be conferred on judges as persona designata if 2 conditions are met: 1. A non-judicial function that is not incidental to the judicial powers, cannot be confered upon a judge without their consent; and 2. No function can be conferred that is incompatible with: (a) The Judges performance of their judicial powers; or (b) The judiciarys discharge of its responsibilities as an institution exercising judicial power. It has been suggested that the second condition may arise when: Performance of judicial functions are hindered by the non-judicial functions; The performance of non-judicial functions may compromise the capacity of the Judge to perform judicial functions with integrity {objective test}; The non-judicial function might diminish the public confidence in the integrity of the judiciary or in the capacity of a single judge.

Application to State Courts Grollo applies to all State Courts (NAALAS v Bradley). Appointments of Judges State Courts need not conform with the full protections of s 72 of the Commonwealth Constitution (Bradley), however State laws cannot erode the institutional integrity of the courts (Forge v ASIC { There were
44 f/t judges on SC, supplemented by AJs. 20 appts in one year - often appointed just to hear one case. Forge didnt challenge validity of AJs appointment, but appealed on that ground after losing at 1st instance. Argument: an acting judge may want to keep the exec happy, hoping for another appointment. [Here some AJs were retired Js, some DCJs. Maybe this practice was better than if AJs apptd from practising bar]. Here, it was only existing judges or retired judges coming back to SC then going back to judicial pension.}).

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In Forge v ASIC, the Court held that the appointment of retired judges, and judges with judicial tenure as acting judges from different levels of the Court structure was valid. However, the institutional integrity of the courts will be damaged {and the act be invalid} where the appointment of an acting judge allows an informed observer to reasonably conclude that court no longer is & no longer appears to be independent & impartial. Thus, it appears that the appointment of persons {such as barristers or aspiring judges} who may have motives to satisfy the government, will breach the Grollo test. {note Kirbys dissent that the practice had altered the institution of the Court} Alternatively, the Court may interpret the law to effectively confer an option on the appointee to become tenured (Bradley). In NAALAS v Bradley, the Court held that although the Kable / Grollo principle did not import the full protections of s 72 of the Cth Constitution, act would be interpreted to protect the institutional integrity of the Courts (this allowed acting judges). In that case, an appointment of only 2 years was interpreted to ensure that for the length of his appointment, his salary couldnt be reduced. The Court seems overcome any deficiencies of temporary appointments by treating them as conferring an option to extend the appointment. Other Laws General In HA Bachrach v Qld, the Court upheld a law that altered the law, despite its effect on a case that was currently on appeal. In Re Criminal Proceeds Confiscationn Act 2002, the court held that a law which required a hearing as to a final order in the absence of a party was repugnant to judicial power {i.e. invalid}. Detention In Fardon, the High Court held an act that conferred powers on the Supreme Court to order for continued detention of certain prisoners was valid. The case was distinguished from Kable on the basis of the drafting of the Act. {Insert reasons for distinguishing Kable} (c) Laws limiting judicial power of courts {likely to be read down if excessive or breach of separation of powers} In Gypsy Jokers v Commissioner of Police, the court interpreted an act purporting to allow the Commissioner of Police to nominate information as confidential and forbidding the court to disclose such information or allow the other party to participate, so to allow the court to review the classification of confidential and that the restrictions on court procedure and publication were not directory. Facts: Corruption & Crime Commission Act 2003 (WA), s 72, allowed Commissioner Of Police to order alterations to heavily fortified premises suspected of being used by people involved in organised crime. s 76 provided for judicial review of these orders, but 106

76(2) provided that COP could identify information as confidential if its disclosure might prejudice the operations of the COP, and information so identified is for the courts use only and is not to be disclosed to any other person or publicly disclosed in any way. i.e. commissioner can present info to court and the defendants cant defend because they dont know. Compare this to the test used at common law where the court decides whether the public interest demands that the information/evidence be kept secret. Law: Despite the prima facie meaning of the Act, the court used the principle that the interpretation that is constitutionally valid should be adopted. In doing so, the High Court interpreted 76(2) in light of its place in a section creating judicial review, held that COPs grounds for claiming confidentiality could be reviewed, and that is not to be disclosed was an exhortation rather than a directive to the court, since there was no penalty. [Meaning court could refer to that evidence in their judgment?] could technically pass onto counsel on the understanding that they would not have disclosed. In K-Generation v Liquor Licensing Court [SA] [2009] HCA 4, the High Court upheld an Act that required the court to take steps to maintain confidentially and receive evidence and argument in private, despite acknowledging the laws restriction on the ability of the court to decide privilege, but not to the extent that it was instructing the court. This was held no to diminish the integrity of the Court.

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Fardon v A-G (Qld) (2005) 223 CLR 575; [2004] HCA 46. Issue: Seperation of Powers within states the extent to which Chapter 3 of the Constitution applies. Outcome: Held 6:1 (Kirby Dissenting) that the act was valid: it did not impair the institutional integrity fo the Supreme Court of Queensland so as to be incompatible with the Courts constitutional position as a potential repository of federal judicial power. Facts: Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) provided for a scheme which allowed the A-G to apply to the supreme court for the continued detention of a specific class of persons. Only applied where the court were satisfied to a high degree of probability that the offender was a serious danger to the community. The Act set out specific criteria for which the court were to consider, with the paramount consideration being the safety of the community. The claim as to invalidity was that the act is contrary to Chapter 3 of the Constitution on the grounds that the conferral of power upon the Court, as a potential repository of federal jurisdiction, is repugnant to the Courts institutional integrity. Law: Pyke: The justices in Fardon only emphasized the distinction about ad hominum application, but in Kable, they were also concerned about detaining people who hadnt committed a crime this is not good law explained in Fardon judgments that this is normal for judges to do. S77 allows the Cth to vest the power in ANY state court therefore any state court is not immune thus they must to some extent abide by the requirements set out by the grollo test and other reqments about separation of powers

Per Gleeson CJ The power to legislate for detaining mentally ill people exists, and the appeal is not based on infringement of human rights. Noted concerns about civil liberties in relation to acts such as these, where people have already served their sentence, however this is not the subject of the appeal. Pointed out the error in argument that the court shouldnt have such a power, which is subject to appeals, and that it should be an executive function, not subject to the same appeal process. o Counsel admitted that if the power was vested in a panel of psychiatrist the argument would fail it is based on the judiciary. Also noted that a judge can make a decision at sentencing about length of detention, why not towards the end of the sentence. Discussion of Kable 108

Kable established rule that because of the integrated courts system, the institutional impairment of a state court may be invalid under Ch III of the const.

The authorization given to the Supreme Court requires them to act in a manner that is consistent with their judicial character; seems to have considered: o Ad hominem application o It confers substantial discretion in between option conditional release o The onus of proof is on the A-G and the rules of evidence apply; o Stated legal criteria to which the court must have regard o Right of appeal, it is conducted in public

Unless it can be said that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court, then it is hard to see the foundation for the appellants argument. @ 592

McHugh J Pykes Comments o Massive step backwards from his position in Kable Differences between Kable and here: o not directed at a specific person, o The issue of whether there is an unacceptable risk is governed by the rules of evidence. o The court has a discretion as to the type of order o Designed to protect community, not punish the def Does the act compromise the institutional integrity of the Supreme Court of Qld? Neither Kable or the Constitution combines the state courts with the federal courts it does not follow that what the federal courts cant do, the states cant do @ 598 Separation of Powers o Generally, the separation of powers in the Constitution does not equate to the states o The const very rarely prevents the states from investing state courts with powers one circumstance is where state legislation attempts to interfere with the federal court system. Another is the scenario of Kable. Subject to those two provisos, the federal parliament must take the state courts as 109

they find them. o P599 states must take the courts as they find them o There is nothing in the constitution to prevent states from empowering non-judicial to determine criminal matters. o The fact that a state invests powers in a state court in a way that is repugnant to the judicial process will seldom compromise the institutional integrity of the court. Institutional integrity should be confined to cases where a reasonable person would think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction imparially according to federal law.

Distinguished from Kable the legislative history and act was unique as it basically resulted in the appearance of the parliament and court working together to imprison Kable Kable is unlikely to be repeated the principle is more likely to arise wrt the terms, condition and manner of appointment of state judges, or where the state judges carry out non-judicial functions

Gummow J The question in issue is not the legality of indefinite sentences, rather the restriction, if any, on State courts exercising power repugnant to their character. Discussed the issues around indefinite sentences. The repugnancy doctrine in Kable does not imply into the constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III. The Repugnancy Doctrine in Kable o Factors that Gummow appeared to rely on: The act did not prevent the application of natural justice The rules requiring a high degree of evidence and the onus on the government, are important in determining validity The court were given a list of matters to consider, including psychiatric reports The courts were required to give detailed reasons There was a right to appeal Annual review required The court may they had a choice to make the order or not 110

The act attracted application by the fact that the person was already a prisoner detained for a certain type of offence. Suggested that another factor may have changed the outcome.

o These factors supported the proposition that the Act did not impact on the institutional integrity of the court.. o The institutional integrity doctrine does not provide certainty for future cases, but that may be a strength of constitutional doctrine. @ p 618 The legislative scheme could not be attained in the exercise of federal jurisdiction by any court of a State, this circumstance itself cannot dictate a conclusion of repugnancy and incompatibility and therefore of invalidity of the Act. However, there was nothing in the act that gave the Supreme Court a function that was integral or closely connected to the executive The challenge on the validity of the Act failed as it was not shown that the Act damaged the institutional integrity of the Court.

Per Kirby Predictions of criminal dangerousness / imprisonment o Kirby outlined the inaccuracies associated with predicting criminal dangerousness o Discussed that courts generally do not punish for future acts, but will in some cases allow the executive to do so in some certain circumstances mainly nonpunitive legitimate purposes. o Held that Fardons continued imprisonment was unlawful. Kirby did not decide the issue as to whether implications as to due process from Ch III were implied upon State courts (because it was not argued), however suggested that it would have led him to conclude invalidity Critical of Kable as a weak protection against State legislation said to have intruded impermissibly into the judicial function The Kable principle o Summarised the principle from Kable: because State courts can be vested with federal jurisdiction, they must exhibit certain basic qualities that enable them to be classified as courts. o In short, State courts must remain at all times curial receptacles proper to the exercise of federal jurisdiction. o Propositions derived from Kable The circumstances to invoke the repugnancy must be extraordinary 111

It is sufficient to attract the Kable priicple that the law applies to a small number of identifiable persons, singled out for special treatment. The loss of public confidence is not a pre-condition to the Kable rule, but would be the result if the court neglected the considerations that the Kable principle defends. If the Federal courts could not do something, this is a strong indicator that Kable may be infringed.

Five reasons suggesting invalidity; These features severally authorize the Supreme Court, contrary to traditional judical process in Australia, to order: o The civil commitment of a person to a prison established for the reception of prisoners, properly so-called; o The detention of that person in prison, in the absence f a new crime, trial and conviction and on the basis of the assessment of future re-offending, not past offences; o The imprisonment of the person in circumstances that do not conform to established principles relating to civil judicial commitment for the protection of the public, as a ground of mental illness; o The imposition of additional judicial punishment on a class of prisoners selected by the legislature in a manner inconsistent with the charater of a court and with the judicial power exercised by it; and o The infliction of double punishment on a prisoner who has completed a sentence judicially imposed by reference, amongst other things, to the criterion of that persons past criminal conduct which is already the subject of final judicial orders that are (or shortly will be) spent at the time the second punishment begins.

The exceptions to civil commitment for non-punitive purposes, such as mental illness, is not closed, but are still exceptions, and there are strict safeguards on this. This conclusion was partly based on the idea that they were really being subject to continued imprisonment suggested that if it was detainment in a different facility by a different agency, it might be a different case. by Australian constitutional law, punishment as such is reserved to the judiciary for breaches of the law. An order of imprisonment as punishment can therefore only be made by a court following proof of the commission of a criminal offence, established beyond reasonable doubt (271) where the charge is contested (272), in a fair trial at which the accused is found guilty by an independent court of the offence charged. Here there has been no offence; no charge; no trial. Effectively, the presumption of innocence has been removed (273). Instead, because of a prisoners antecedents and criminal history, provision is made for a new form of additional punishment 112tilizing the courts and the corrective services system in a way that stands outside the judicial process hitherto observed in Australia. Civil commitment to prison of persons who have not been convicted of a crime is inconsistent with, and 112

repugnant to, the exercise of the judicial power as envisaged by the Constitution (274). Such an order, superimposed at the end of judicial punishment for past crimes, must be distinguished from an order imposing imprisonment for an indeterminate period also for past crimes that is part of the judicial assessment of the punishment for such crimes, determined at the time of sentencing. Acknowledged that you could look forward in the case of bail, but distinguished the act under consideration on the basis that this act dealt with potentially long periods of detention based on future predictions as opposed to bail where it is until trial. The Act is not proportional (that is, appropriate and adapted) to a legitimate nonpunitive objective (299). It conscripts judges in the imposition of effective judicial punishment in proceedings not otherwise known to the law (300). Re-affirmed the exception to mental illness

Per Hayne J Agree that the Act is valid, in accordance with the reasons of Gummow J, with one caveat Would not rule as to whether a Cth Act along these lines would be invalid. Emphasised that given that sentencing can take into account protection of the community and the potentially fine line between commitment for psychiatric illness and preventative detention.

Callinan and Heydon JJ It is ok to allow non-judicial detention in certain cases, such as infectious disease and mental illness, but these categories are not closed. Cited Kruger for the proposition that the scheme must be appropriate and adapted to a legitimate non-punitive purpose. This acts purpose was to protect the community. The act is not a bill of pains and penalties its purpose is to protect the community. The Kable principle was based on whether the function of the court could not be said to be truly judicial. Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution. Considered a range of factors similar to the other justices to maintain that the justices were acting judicially Appeal dismissed the law was valid. 113

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Intergovernmental Relations
Inconsistency between Cth and State Acts
(1) Section
Commonwealth laws prevail over state laws to the extent of their inconsistency (s 109). 109 Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

(2) Are there Commonwealth and State Laws


To invoke s 109, there must be valid Commonwealth and State Laws. Are they Laws? The relevant law may be an Act (Engineers Case) or sub-ordinate legislation (O'Sullivan v Noarlunga Meat Ltd (No. 1)). A law includes an industrial award (Ex parte McLean (1930) 42 CLR 472). Administrative decisions made under the executive power are not laws (Airlines of New South Wales Pty Ltd v New South Wales (No 1) (1964) 113 CLR 1). S 109 does not apply to the common law, because any legislation will over ride it (Felton v Mulligan (1971) 124 CLR 367 at 370 per Walsh J). Are they valid? The law must be within the power of the respective parliaments. Where the Commonwealth law is enacted under its exclusive power, but conflicts with a State law on another topic, s 109 will still apply (R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 {state act was held to be invalid with a Federal electoral law that prohibited a referendum or vote being conducted on the same day as a federal vote.}).

(3) Are the laws inconsistent?


A law can be inconsistent in one of 3 ways: 1. Mutually contradictory commands 2. One law confers a right or privilege, the other removes it 3. The Commonwealth Covers the Field

(a) Are the laws mutually contradictory?


Differences are not sufficient, they must be contradictory (McWaters v Day {QLD law was not held to be inconsistent with Commonwealth Defense force provisions held to be cumulative }). The commonwealth law invalidating a type of State law (Mabo (No 1)); 115

Commonwealth body not being subject to a state law (Telstra v Worthing); One law permits, but the other forbids (R v Brisbane Licensing Court; Ex parte Daniell {Federal law prohibiting elections on the day of a federal election}; Colvin v Bradley Bros {NSW law prevented women from working on milling machines, but this was inconsistent with the award of the industrial tribunal}); Both laws forbid something, but impose different penalties (Hume v Palmer {Offences under both Cth and State, with different sanctions State law was held to be inconsistant}; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 {punishment under state for damaging Cth property was inconsistent with the Crimes Act, because that was exhaustive}; R v Winnecke; Ex parte Gallagher (1982) 152 CLR 211 {held that the State & Cth evidence acts for respective inquiries were not necessarily inconsistent, although may be each act deals with different offences depending on whether it is a state or commonwealth inquiry}; McWaters v Day (1989) 168 CLR 289 {QLD law was not held to be inconsistent with Commonwealth Defense force provisions held to be cumulative}).

(b) Does one law confer and the other take it away?
The laws will be inconsistent where one law confers a right or privilege and the other takes it away. Industrial Award Cases In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, the High Court held that two awards were inconsistent where they prescribed different numbers of hours in the working week. In lackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253, different minimum wage legislation were held to be in direct collision {obedience to one is disobedience to the other}. Both Cth & State Require licence or permission? In Commercial Radio Coffs Harbour Ltd v Fuller, the High Court found no inconsistency were the Commonwealth requires a radio licence with certain conditions for the purpose of efficient broadcasting, and the State required permission for planning law. Each law covered a different subject matter.

(c) Does the Commonwealth law cover the field?


The State law will be inconsistent if the Federal legislature evidences an intention to cover the whole field (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Ex parte McLean (1930) 42 CLR 472). The supplementation of State law does not cover the field (Ex parte McLean). In Clyde Engineering, Isaacs J suggested that the following questions be asked to determine the issue: 1. What is the field? 116

2. 3.

Does the Commonwealth intend to cover the field, so that that Law is THE law to govern that area? Does the State law attempt to regulate that area? The Commonwealth can declare their intent to cover the field (Wenn v Attorney-General (Vic) 91948) 77 CLR 84 { held that an act covered the
field for employment for armed services even though it did not include promotion said it would apply to the exclusion of any law of a state regarding employment }), or not to (Telstra v Worthing (1999) 197 CLR 61).

Express Intention

However, the Commonwealth cannot express their intention to avoid s 109 retrospectively (University of Wollongong v Metwally (1984) 158 CLR 447). Implicit Intention {NB very subjective} An intention may be inferred by the type of law: Crimes on Commonwealth places (R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338). Listening Devices (Miller v Miller (1978) 141 CLR 269); Racial Discrimination (Viskauskas v Niland (1983) 153 CLR 280).

The width, multiplicity and detail of the Commonwealth Act can demonstrate that they intended to cover the field (O'Sullivan v Noarlunga Meat Ltd (No. 1) (1954) 92 CLR 565. {held that Cth
regulations werer intended to cover the field of premises used for slaughter of animals for export was very detailed}).

Where no intention to cover the field Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529. a state law creating long service leave valid even though long service leave not in Cth TA Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 similar to above Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237. McWaters v Day (1989) 168 CLR 289. Cth act contemplated alternative laws Swift v Boyd Parkinson (1962) 108 CLR 189. Where State law is not in the same field In the Hospital Benefits Case, the Court found no inconsistency because there was nothing preventing State governments from imposing levies). Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 545. Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47. 117

(3) Effect on State Law


If there is inconsistency, the aspects of the state law that are inconsitent become inoperative (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466). Where severance would make no sense, the law is completely invalid (Wenn v Attorney-General (Vic) 91948) 77 CLR 84). The State law will revive if the Commonwealth law is repealed (Butler v Attorney-General (Vic) (1961) 106 CLR 268).

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Implied Immunities
(1) Introduction
Although the High Court in the Engineers Case held that there were no implied immunities, exceptions to this principle have arisen.

(2) Clear cases where no implied immunity


There is no implied immunity: No protection of the State Royal Prerogative (the BLF Case); The states had an immunity from taxation apart from s 114 (Payroll Tax Case)

(3A) Implied Immunities Restrictions on Cth Laws


(a) Discrimination Against States The First Limb of Melbourne Corporation v Commonwealth (The State Banking Case), established that the Commonwealth cannot single out the states for discrimination. This was applied in QEC v Commonwealth, where it was used to invalidate a law targeted at electricity bodies run by the Queensland Government {Mason J said that a law that put States on an equal footing was permissable}. In Austin, the Commonwealth sought to extend the Superannuation surcharge to State Judges, but were worried about the impact of s 114, and therefore decided to make judges personally liable. The Court held that this as impermissible discrimination and therefore invalid. (b) Existence and Capacity of States to Function The Second limb in Melbourne Corporation provides an ultimate safeguard that the Commonwealth cannot threaten the very existence of states or the capacity to function as governments. However, this will be sparsely used. In Austin, this limb was used to hold that the Commonwealth law interfered with the States ability to employ and retain judges which was essential to their function.

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(3B) Implied Immunities Restrictions on State Laws


Restrictions on state laws are generally not such an issue because the Commonwealth can pass inconsistent laws, relying on s 109. Although a wide immunity was given to the Commonwealth in Cigamatic (protection from taxation and of their Royal prerogative), such an interpretaiont was restricted in Re Residential Tenancies Tribunal of NSW; Ex Parte Defence Housing Authority. In Re Residential Tenancies Tribunal of NSW, the High Court held that although the State could not affect the Commonwealths executive capacity under s 61, if the law applied equally {it did not discriminate against the Commonwealth} the State law can effect the exercise of the Commonwealths powers {i.e. in relation to contracts, etc}. Re Residential Tenancies Tribunal of NSW; Ex Parte Defence Housing Authority Facts: the DHA, a Cth body, sought to inhibit the Resedential tenancy tribunal of NSW from proceeding with an application for an order against DHA did the state tribunal have the authority? outcome: was said to apply there was no inconsistency it did not fall within s 64. Law: Majority o State laws cannot modify or impair Cth executive capacities, these being the rights, powers, privileges and immunities comprised in the executive power of the Cth under s 61 Con o But the activities the Cth chooses to engage in with regard to such capacities can be affected or regulated by State laws of general application Minority o McHugh J: more detailed approach that criticized the Majoritys view o Gummow J: no clear statement on the Cigamatic Case o Kirby J: Called for Cigimatic should be overruled Melbourne Corporations Case should be used state laws cant discriminate against the Cth and it could not threaten the function of the Cth.

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