ACL FINAL EXAM NOTES
Table of Contents
General Structure of Exam Response ... 1
How to answer a problem ... 2
Step 1: Characterisation ... 2
Step 2: Limits ... 5
Step 3: Where there is a State law, is it inconsistent with a Cth law? ... 9
HOP ... 10
Corporations Power (s 51(xx)) ... 10
Defence Power ... 15
External Affairs Power ... 19
Executive / Nationhood Power ... 23
LIMITATIONS ... 26
Separation of judicial power – Cth and State ... 26
THE SEPARATION OF STATE JUDICIAL POWER – KABLE PRINCIPLE ... 31
Protective Detention ... 35
Preventative Detention ... 35
Control Orders ... 35
Immigration Detention... 35
Intergovernmental immunities ... 36
MELBOURNCE CORPORTATION PRINCIPLE - ... 36
CIGAMATIC PRINCIPLE - ... 40
Acquisition of property on just terms ... 42
Freedom of religion ... 49
Trial by jury ... 52
Implied freedom of political communication ... 53
INCONSISTENCY... 60
Inconsistency of laws s 109 ... 60
General Structure of Exam Response
1. Write a separate response for each Part (corresponding to a specific client/plaintiff – e.g. Part 1 Advise ‘X’
2. Divide up the issues in a logical order – e.g. (use this structure in exam) I) Validity of Cth law – Corporations power
II) Limitation - Freedom of political communication III) Inconsistency of State law
3. For each issue you should ensure that you cover these fundamental elements common to all legal problem solving: (don’t use these subheadings in exam, just go through the steps)
i) Facts - in Constitutional Law these can include clauses within legislation as well as material facts ii) Rule(s) - cite the relevant section of the constitution, and the caselaw interpreting the Constitution iii) Application (of rule(s) to facts) – apply the legal principles (constitutional clauses, as interpreted by
the High Court in the cases we have considered) to the relevant facts for each issue iv) Conclusion - explain the most ‘probable’ or ‘likely’ outcome.
NOTE: each question will only need one HOP (most likely) – so only use one HOP per question
How to answer a problem
Remember – we want to know whether the law is constitutionally valid
1. Characterise the law (i.e., what head of power might the law be connected to? If more than one head of power may be argued then discuss each one)
i. Is it a subject matter or purposive power?
ii. Cite and apply the relevant test to the law at issue iii. Can the implied incidental power be used?
2. Are there any constitutional limitations?
i. Separation of judicial power ii. Intergovernmental immunities iii. Acquisition of property on just terms iv. Freedom of religion
v. Trial by jury
vi. Implied freedom of political communication 3. Is there a State law, and is it inconsistent?
i. Is the Cth law valid? Note: If already examined this in a previous part, no need to rewrite, just refer back to earlier analysis.
ii. Is the State law valid?
iii. Are there any constitutional limits?
iv. Is the State law inconsistent with the Cth law?
Step 1: Characterisation
• Subject matter powers are given a broad interpretation (Bank Nationalisation Case and Murphyores (1976)), applying the ‘sufficient connection’ test.
o TEST - If it’s a subject matter power, does the Cth Act have a sufficient connection to the subject matter (i.e. corporations,)? (Kitto J in Fairfax “Is it in real substance a law upon, “with respect to”, one or more of the enumerated subjects”) –
o Dual characterisation - a law may have multiple subjects and be attached to multiple heads of power.
This is basically the gist of Kitto J’s findings in Fairfax v Cmr of Tax (1965).
o Kitto J found that it is a question of the ‘true nature and character of the legislation; is it in its real substance a law with respect to, one or more enumerated subjects, or is there no more in it in relation to any of those subjects than an inference so incidental as not in truth to affect its character?’
Characterisation – subject matter power
• If there is no sufficient connection but by invoking the implied incidental power it can be brought within the subject matter, we must apply the proportionality test (asking whether the law is “appropriate and adapted” to its purpose (D’Emden v Pedder (1904)): R v Burgess (1936)).
o With respect to the trade and commerce power, for instance, the implied incidental power can be invoked to regulate steps preparatory or ancillary to trade and commerce like manufacturing:
Grannall v Marrickville Margarine (1955) (including penalties (Burton v Honan (1952)), or permit regulation of intrastate trade and commerce where it is sufficiently integrated (beyond merely in an economic or commercial sense) with interstate or foreign trade and commerce: O’Sullivan v Noarlunga Meat (1954).
o note: the trade and commerce power is not examinable, but you can refer to these cases to support an argument involving the implied incidental power being used for an examinable head of power
o With respect to the corporations power, the implied incidental power was found to authorise a law which didn’t directly regulate a corporation but it permitted a person who had suffered a loss because of a corporation’s misleading or deceptive conduct to recover that loss from any natural person involved in that deception: Fencott v Miller (1983).
▪ In order to regulate misleading or deceptive conduct by a corporation, the Cth also has to allow individuals sue for losses as a result of that misleading and deceptive conduct
o The difference between the express and implied incidental power is that the implied incidental power from D’Emden v Pedder (1904) is used to interpret the head of power and the express incidental power (s. 51 (xxxix) is used to interpret an executive exercise of power under the head of power.
Characterisation – purposive power
• If its a purpose power, again we use the proportionality test (ie is it appropriate and adapted). This is a test of proportionality between the legislation and the purpose of defence or external affairs or the nationhood power – not necessarily the head of power. Different in each case:
o External affairs, very broad approach (for treaty implementation and international legal matters, Seas and Submerged Lands Case (1975)), compliant with the ‘spirit’ (Tasmanian Dam); the treaty must be reasonably specific as to what States must do, and the implementing law must conform to the
requirements of the treaty (ILO case).
o Defence power, a power that is applied differentially according to the context – war, peace,
transitional period; there must be a threat to the Cth and the States; In the absence of war involving a threat to Australia, the Court has limited its use (Communist Party Case (1951)); however, in the case of terrorism, counter-terrorism laws may be appropriate and adapted to the purpose of defending Australia and the law (Thomas v Mowbray (2007)).
o Nationhood power – a broad power in terms of potential subjects to which it could be applied, but a narrow interpretive approach – must be for the benefit of the nation, and not a punitive or coercive purpose: First Pharmaceutical Benefits Case; Davis v Cth (1988); Pape v Cth (2009).
Specific heads of power Defence (s. 51(vi)):
• ´Purposive power, so test is whether the law is capable of being reasonably considered to be appropriate and adapted to the purpose of defence.
• ´What is for the purpose of defence will vary according to the circumstances, especially whether or not Australia is at war (Polyukhovich (1991)).
• ´In times of war it is a plenary type power, ‘bounded only by the requirements of self-preservation’ (Farey v Burvett (1916)).
• ´It is interpreted more narrowly in times of peace. Thus, ‘the dissolution as unlawful of voluntary and
corporate associations’, due to their political leanings, would not lie within the defence power; nor could it be brought within power by Parliament’s declaring it so (lighthouse principle) (Communist Party case (1951))
o In the Communist Party Case, the defence power was not successful in authorising a law that tried to dissolve the communist party due to their political association and political leanings. The lighthouse principle states that it doesn’t become a matter relevant to defence just because parliament says we need it to defend the nation. But in Thomas v Mowbray (2007), we see that the power could be used to defend against a purely internal threat like terrorism within the nation. Although that was not a threat in body politics, it is a threat towards people. Thus, it could come within the scope of the defence power.
• ´However, the power can apply to defence against internal threats that are directed at people rather than the body politic, such as those posed by terrorist offences (Thomas v Mowbray (2007)).
External Affairs (s. 51 (xxix)):
• ´Sufficient connection test (for matters of mere geographic externality - test: does the law exhibit ‘the mere fact of externality’ (Horta v Cth (1994))?
Proportionality test (purposive test) - (for matters of ‘international externality’ - relationships, treaties, international concerns – R v Burgess; Ex parte Henry (1936);
• ´The domestic law must be appropriate and adapted to implementing the treaty… its ‘purpose’, not
‘precise words’: R v Poole; Ex parte Henry (1939). Thus:
o ´the treaty must set out what State parties must do with some degree of specificity (specificity principle), and
o ´the law must conform in a reasonably proportional way to the purpose or object of the treaty obligation (conformity principle) (ILO case (1996))
When asking whether the law is appropriate and adapted to implementing the treaty, you are comparing the specific treaty obligations/requirements with the domestic law which implements them. The treaty specifically states that it’s obligation is to INSERT FACTS. The law is doing INSERT to implementing the treaty. Thus, it is/is not proportional by being appropriate and adapted to that treaty obligation.
o If the law specifically states what’s outlined in the treaty, then it will likely be proportionate o If the law is much broader than what it needs to be, then maybe it won’t be proportionate
• ´Limits: Cannot be used as a ‘sham’ to attract legislative power, nor to evade domestic constitutional law (ILO case (1996)).
Corporations Power s. 51(xx):
• NOTE: only talk about this HOP if the LEGISLATION refers to corporations (not just the facts).
• ´Subject matter power, thus we apply the sufficient connection test.
• First requirement: that the law deals with constitutional corporations: foreign, trading or financial corporations (the latter two formed within the Cth. In relation to trading and financial corporations, it would only apply to corporate entities whose trading or financial activities respectively form a significant and substantial, although not a predominant, part of the business (Adamson’s Case (1979); Tasmanian Dams (1983)). This could include sporting clubs, charities (Red Cross Case (1991)), and universities (Quickenden v O’Connor). For companies that have yet to begin to operate, such as shelf companies, we look to the purposes (for what purposes they were created, rather than current activities) of the corporation (Fencott v Muller (1983). It would not include public entities that run at a loss (AWU v Etheridge Shire Council (2008) or that are funded wholly by the state (ALSWA v Lawrence (2008)).
o trading corporations: look for whether or not the corporation is involved in selling goods or services o finance corporations: look for whether the corporation is providing finance e.g. loans, securities
• Second requirement: does this law in what it regulates fall within the scope of the power. After Work Choices case (2006), s51(xx) provides near plenary power - there will be such a connection where the law regulates:
o ´the activities, functions, relationships and the business of constitutional corporations;
o ´the creation of rights, and privileges belonging to such a corporation;
o ´the imposition of obligations on it;
o ´the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions,
relationships or business; note that this latter point may more accurately be construed as part of the implied incidental power as it is not directly related to it and more ancillary.
• In Work Choices, laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations (i.e. internal relationships within a corporation), were held to be within power.
Nationhood (ss. 61 and s. 51 (xxxix)):
• NOTE: only use this power if the question specifically refers to the NATION and something benefit the economy or the nation – something of value for the whole society.
• ´The power may only be exercised for the benefit of the people or nation? (Davis (1988)).
• ´A purposive power, so the test is whether the law is appropriate and adapted to a purpose which is of benefit to the people or nation.
• ´Laws potentially constituting a ‘benefit to the nation’ may include:
o ´National scheme for free medicine (First Pharmaceutical Benefits case (1945))
o ´Establishing regional social development councils to support social welfare activities through an Australian Assistance Plan (The AAP case (1975))
o ´Preserving the environment through World Heritage listing (Tasmanian Dam case (1983)) o ´Commemoration of Australia’s Bicentenary (Davis v Cth (1988))
o ´Provision for a tax bonus to stimulate the economy during a fiscal emergency (Pape v Commissioner of Taxation (2009).
• ´Could apply to legislation concerning ‘physical property or artistic, intellectual, scientific or sporting
achievement or endeavour’, things that are ‘part of the heritage distinctive of the Australian nation’, worthy of
‘protection, preservation or promotion’: Tasmanian Dam case (1983) per Deane J 252
• ´Needs to be peculiarly adapted to the Cth as a national polity, so may not apply to benefits which could readily be provided by the States (Pape). → the idea that only the national government could do it
• ´It would not authorise laws which are coercive, punitive or penal in purpose (First Pharmaceutical Benefits case, Tasmanian Dam case)).
o If its main purpose is of benefit to the nation and it just so happens to incidentally provide for some sanction, it may still come under the nationhood power.
Step 2: Limits
• ´Separation of judicial power (Cth level -Boilermakers’ principle, State level- Kable principle)
• ´Intergovernmental immunities (Cth law affects the state- Melbourne Corporation principle; State law affects Cth- Cigamatic principle)
• ´Trial by jury
• ´Freedom of religion
• ´Acquisition on just terms
• ´Implied freedom of political communication
Separation of Judicial power
1. Judicial power of the Cth may only be exercised by Ch III Courts (Wheat Case, Alexander’s Case) 2. Ch III Courts may only exercise judicial power (and ancillary non-judicial powers) (Boilermakers Case) Applying these principles requires consideration of:
• ´Whether judicial power is being exercised – thus, the definition of ‘judicial power’;
• So what is judicial power?
1. Binding and authoritative determination (enforceable, albeit subject to appeal) 2. Of a controversy(must be a ‘matter’; no advisory opinions)
3. Involving existing rights and duties between parties(as opposed to new rights and duties)
• ´Whether the same body (e.g. Court, tribunal, authority, commission) also exercises non-judicial functions, such as determining policy, setting industry standards, drafting recommendations, etc.;
• ´Whether the requirements of judicial office under Ch III, such as if a judge is involved, whether they have been given tenure to age 70 years, are complied with.
o E.g. of judicial power being exercised– if the commission is going to hear any breaches of the act Judicial power – exception to boilermakers principle that a Ch III Court and judges cannot exercise non- judicial power – persona designata
An appointment to a position of persona designata will be valid if:
1. The judge is appointed in their personal or individual capacity, rather than institutional capacity; and 2. No non-judicial function that is not incidental to a judicial function can be conferred without the judge’s
consent; and
3. No function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.
Persona designata appointments where judges are appointed in non-judicial capacity include:
- Royal commissions or any commissions of inquiry - Cases involving telephone intercepting warrants
However, will only be valid it their functions are not incompatible with judicial functions.
Incompatibility might arise from:
i) so permanent and complete a commitment to the performance of non-judicial functions that the further performance of substantial judicial functions is not practicable; (Grollo v Palmer (1995); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996)).:
ii) the performance of non-judicial functions of such a nature that the capacity of the judge to perform their judicial functions with integrity is compromised or impaired; or (Grollo v Palmer (1995); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996)).:
iii) the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or the capacity of the judge to act with integrity is diminished – Grollo v Palmer (1995); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996)).
Separation of Judicial power – Kable principle
• applying the separation of power to the state Courts
• There is no doctrine of the separation of powers entrenched in the State constitutions. However, because the State Courts are an integral and equal part of the judicial system set up by Ch III, it follows that no State or federal parliament can legislate in a way that might undermine the role of those Courts as repositories of federal judicial power (Kable v DPP (1996)). → It is expected that the State Courts undertake their
functions with integrity, independence and impartiality
• ´Thus, the State Courts cannot be invested, whether from Cth law or state law, with functions that are incompatible with the exercise of federal judicial power.
• ´Required characteristics of ‘institutional integrity’ of State Courts:
1) ´The reality and appearance of decisional independence and impartiality (Kable; South Australia v Totani (2010))
2) ´The application of procedural fairness (International Finance Trust Co v NSW Crime Commission (2009))
3) ´Adherence as a general rule to the open Court principle; however, there are a number of situations in which closed Court, ex parte hearings and reliance on confidential information are permissible, including where the Court retains the capacity to stay an application (Condon v Pompano (2013)) 4) ´The provision of reasons for the Courts’ decisions (Wainohu v NSW (2011))
5) ´The capacity to review a decision on the basis of jurisdictional error (Kirk v Industrial Court of NSW (2010)).
Intergovernmental immunities – Cth law affecting the state – Melbourne Corporation principle
• ´There is a presumption of Cth legislative supremacy over the States: Engineers (1920); Tas Dams (1983).
• However, the Melbourne Corporation case provides circumstances in which a Cth law will be invalid because it discriminates against, inhibnit or impair the ability of a State to function, or burdens the state in some particular way (QEC v Cth (1985)). This doctrine is premised upon ss. 107 and 108 which preserve the power of State Parliaments: per Dixon J: Melbourne Corporation case (1947). Austin v Cth (2003) formulated the new test: is there a significantly sufficient impairment of the exercise by the State of its freedom to select the manner and method for discharge of its constitutional functions?
o TIP: Look for a Cth law that seems to adversely affect the state government – e.g. if it strips one state of funding, makes the state impossible to function in a particular way, imposes some liability or limitation on the state governments ability to employ public servants etc.
o NOTE: if Cth law and no state law in Q, just the Cth law affects the state, then it is a Melbourne Corporation principle issue. However, if Cth law and a state law, then it’s an inconsistency issue.
• ´French CJ’s indicia of Melbourne Corporation interference from Clarke v Fed Cmr of Taxation (2009):
i) Singles out one or more States for special burden or disability. (e.g. the law only applies to NSW and not other states)
ii) A law of general application but still imposes a particular burden or disability on a State.
iii) Inhibits the States from exercising their constitutional powers.
iv) Inhibits the States from exercising their functions. (look at nature of capapcity and functions affected of the state government)
v) Nature of the capacity or functions affected.
vi) Subject matter of the law and its permissibility considering the head of power (e.g. Tas Dams –external affairs, and arguably, defence power).
Intergovernmental immunities – State law affecting the Cth – Cigamatic principle
• NOTE: only mention this principle if there’s a state act that seems to adversely affect the Cth government.
• ´There is a presumption of Cth legislative supremacy over the States: Engineers (1920); Tasmanian Dam (1983). However, the Cigamatic principle provides that States have no power to alter the legal
relationships existing between the Cth and its subjects. This is derived from the notion of Cth supremacy by virtue of ss 109 and 5 of the Constitution (Cth v Cigamatic (1962)).
• ´However, there is a qualification: States have no power to impair the capacities of the Cth executive (defined to mean the rights, powers, privileges and immunities of the Crown), but State law of general application may regulate the Cth's activities that it undertakes in exercise of its executive capacities (Residential Tenancies Tribunal case (1997)).
o NOTE: There’s a distinction between impairing the capacities of the Cth which is not allowed VERSUS a law which happens to regulate the Cth when exercising its capacities
• ´Thus, Cth and its officers/employees may be bound by:
o State criminal law, e.g. road licence requirements (In Pirrie v McFarlane (1925), the state law requirement to have a license to drive a car applied even to a Cth officer who was on Cth duty because it was a state criminal law of general application which did not directly impair the Cth’s executive function, it just affects cth employees when they are carrying out their duties), or
o State tenancy laws (Residential Tenancies Tribunal case – a law that applies to the Cth when it rents a property to comply with tenancy requirements isd not a law that directly affects the capacity of the Cth, it’s just a law that affects the Cth when its exercising its function).
Trial by jury – section 80
• TIP: if you see any reference to the law or an offence being INDICTABLE and it’s in the Cth statue, then that means a trial by jury must be granted and if its not then that means s 80 is being breached
• ONLY Applies to indictable offences against Cth law only, and it is for Parliament to decide whether an offence is to be tried on indictment: Kingswell v The Queen (1985); Brown v The Queen (1986).
• Where it applies, the right to trial by jury cannot be waived – Brown v The Queen (1986); Alqudsi v The Queen (2016).
• There is no requirement that the number of jurors be twelve; though there may be a point where a reduced number would no longer qualify as a jury - Brownlee v The Queen (2001).
• Jury unanimity is a requirement of all Cth offences: Cheatle v The Queen (1993 Freedom of religion – section 116
• ´Four guarantees: (BUT ONLY EXAMINING THE ONE UNDERLINED) 1. establishing any religion;
2. prohibiting the free exercise of any religion;
• ´First requirement: is there a religion?
Four indicia, per Wilson and Deane JJ in Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983):
• ´belief in the supernatural;
• ´ideas relating to an individual’s nature and place in the universe and relation to things supernatural;
• ´the existence of codes of conduct with supernatural significance; and
• ´the fact that the adherents constitute an identifiable group.
• ´Second requirement: does the law establish a religion? (non-establishment clause)
o It is not enough that the law supports or funds a religion, to establish a religion and therefore to breach this clause, the stature would have to recognise the religion as a national institution, such as a State church, official State religion, religion as a state institution (Mason and Wilson JJ, Gibbs J) or identify the religion with the civil authority so as to involve the citizen in a duty to maintain it and the
obligation of government to patronise and protect it (Barwick CJ) (DOGS case (1981).
• ´Second requirement: does the law prohibit the free exercise of any religion? (free exercise clause)
o The Courts have adopted a purpose approach in which this limb only applies to laws which directly prohibit the ‘doing of acts which are done in the practice of religion’ (Krygger v Williams (1912)), or which have an ostensible purpose of prohibiting or inhibiting religious practices (Stolen Generations case (1997)).
▪ If a law has another purpose and it incidentally restricts someones ability to practise their religious beliefs, it wont breach this clause.
o A law would not infringe the free exercise clause ‘if it is necessary to attain some overriding public purpose or to satisfy some pressing social need’ (Gaudron J in Stolen Generations case).
Acquisition of property on just terms – section 51(xxxi)
Subject matter power, so test is whether the law has a sufficient and substantial connection with an acquisition of property.
Note:
• ´Though a head of power, it also contains a limitation: the requirement of just terms.
• ´Only applies to an acquisition for a purpose in respect of which the Parliament has power to make laws.
o Must identify another HOP, and if there’s an ACQUISITION, see if it requires jus terms under this HOP 1. Is there property?
• ´‘Property’ is broadly defined and extends to ‘any tangible or intangible thing which the law protects under the name of property’(Minister of State for the Army v Dalziel (1944).
• ´It ‘extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Cth of any subject of property’ (Bank Nationalisation Case (1948).
2. Is there an acquisition?
• there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property’ (Bank Nationalisation Case; Tasmanian Dam case)
• There must be an acquisition, not merely a deprivation (Newcrest Mining v Cth (1997); JT International v Cth (2012))
o Looking at whether someone through that Cth law, has acquired a propriety interest – doesn’t have to be the Cth who acquires the propriety interest – the Cth law may allow for a third party to acquire a property interest which still requires just terms
• A vested common law chose in action (ie. Right to sue) may be an acquisition that requires just terms (Georgiadis v Australian and Overseas Telecommunications Corporation (1994), whereas a statutory right (ie. statutory right to sue) would generally not be an acquisition requiring just terms, since statutory rights are inherently susceptible to alteration or repeal (Health Insurance Commission v Peverill (1994)).
• Exceptions to where the Cth does obtain a propriety interest but isn’t required to give just terms:
o Forfeiture- a law that says if you commit a crime or fail to do something then you forfeit property (Ex parte Lawler (1994), Theophanous v Cth (2006)
o laws authorized under another head of power providing for adjustment of competing rights- e.g. the intellectual property law (Nintendo v Centronics (1994)
o and statutory liens- where statue provides that if an airline doesn’t pay its fees then its aircraft can be taken control of (Airservices Australia v Canadian Airlines International (1999).
3. Have just terms been paid?
• Two approaches
o Balancing of interests – ´Determining what is just and fair by looking at all the interests involved, i.e. the person that has lost the property, the Cth who’s got some public purpose for it, the community who might gain from the acquisition etc - consider market value (Nelungaloo v Cth (1948); or
o Fully compensating the owner of the property (Georgiadis).
• TIP: if get acquisition question and trying to work out if just terms are provided for in the statue, look at both approaches – if it just terms looking at what’s just and fair looking at all interests involved, and alternatively, it is just terms looking at whether the owner of the property whose being deprived, whether they are being fully compensated
• If the statue provides for ‘reasonable’ compensation to be determined by the Courts, that may qualify as just terms (Wurridjal v Cth (2009)
o E.g. statue could provide a process for working out what is just terms Implied freedom of political communication
• ´Restricts both federal and state legislative power
• ´Only covers communication on political or government matters, not commercial or private communications (APLA v legal Services Commissioner (2005); Clubb v Edwards (2019))
• ´Communication is broad, may include words, symbols, gestures, and via different mediums: written, verbal, signs, images, broadcasts (Levy v Victoria (1997))
• ´Communication may still constitute political communication even though it is critical, offensive, irrational, untruthful etc. (Lange v ABC (1997); Coleman v Power (2004))
• ´The law may directly or indirectly burden the freedom The implied freedom test (from Lange, McCloy & Brown) Must state which test the facts apply to, either:
1. Does the law effectively burden freedom of communication (e.g. can’t say this, can’t write that etc) about government or political matters either in its terms, operation or effect?
a. The law of * effectively burdens the freedom of communication about government/political matters in its terms/operation/effect as it insert what the law does
2. Does the law serve a purpose which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with representative and responsible government?
• Suitability: does the law have a rational connection to its purpose?
• Necessity: is the law necessary, or are there obvious and compelling alternatives which are a reasonably practicable means of achieving the same purpose with a less restrictive effect on the freedom?
• Adequacy of balance: comparing the positive effect of realizing the law’s proper purpose with the negative effect of the limits on the freedom.
Step 3: Where there is a State law, is it inconsistent with a Cth law?
• TIP: only consider inconsistency if there is a STATE LAW
• ´Per s 109 of the Constitution, where there is an inconsistency between a Cth and State law, the Cth law shall prevail to the extent of the inconsistency.
• There must be ‘significant and not trivial conflict’: Jemena Asset Management v Coinvest (2011)
• For there to be inconsistency, there must be a valid state law and a valid federal law, otherwise s 109 does not apply (may have already characterised the law in previous question, so just say as depicted above, the law of * is valid under the * power)
Step 3: Is there a State law?
What is the source of authority for the state law?
• The law of * is valid as it falls within s 5 of the NSW Constitution – ‘peace, welfare and good government’
means plenary power: Union Steamship Co of Australia Pty Ltd v King (1988).
• Almost always valid, unless it interferes with judicial power (Kable) or purports to apply to the Cth in its executive capacity (Cigamatic) or infringes the implied freedom of political communication (Brown).
Tests of Inconsistency Go through all of these tests:
1. DUAL OBEDIENCE TEST - Where it is impossible to obey both laws (must vs must not, conflict) – a form of direct inconsistency; R v Brisbane Licensing Court; Ex parte Daniell (1920)
2. CONFERRAL OF RIGHTS TEST- Where one establishes a legal right and the other takes it away – a form of direct inconsistency; Clyde Engineering Co Ltd v Cowburn (1926); Colvin v Bradley Brothers Pty Ltd (1943) 3. COVER THE FIELD TEST - Where the Cth expresses a legislative intention, express or implied, to ‘cover
the field’ (i.e. to be the sole legislator on a particular topic) – a form of indirect inconsistency: Clyde Engineering Co Ltd v Cowburn (1926); Victoria v Cth (The Kakariki) (1937); Wenn v AG (VIC) (1948).
1. What is the field of the Cth law? (what’s it regulating) 2. Does State law enter into the field?
3. Does the Cth intend to cover the field? (either expressly like “we exlucde all state law” which would be an express ibntention to cover the field OR it could be an implied one where the broad law looks like the Cth wants to cover the field and doesn’t want the State law to cover the same thing
HOP
- NOTE: if the facts give rise to more than one power, discuss both
o Dual characterisation - a law may have multiple subjects and be attached to multiple heads of power (Kitto J’s in Fairfax v Cmr of Tax (1965)).
Corporations Power (s 51(xx)) s. 51 (xx):
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Cth with respect to:
foreign corporations, and trading or financial corporations formed within the limits of the Cth
NOTE:
- only talk about this HOP if the LEGISLATION refers to corporations (not just the facts).
- PUT SIMPLY, if a law instructs a constitutional corporation to do or not do something, then it is likely to fall within s 51(xx).
- Corporations must be already formed (Incorporation Case). The Cth Parliament cannot rely on s 51(xx) to support laws with respect to the incorporation of corporations (Incorporation Case.) The words ‘formed within the limits of the Cth’ in s 51(xx) refer to corporations already formed under state laws.
STEP 1: CHARACTERISE
STATE: For PLAINTIFF to be fined, INSERT CTH ACT (the Act) must be a Valid Cth Law. This means the Act must be characterised under a head of power (HOP). As the legislation deals with INSERT it is most likely that the relevant constitutional HOP would be the Corporations Power under s51(xx). Therefore, it must be determined whether this Act can be characterised within the scope of s51(xx).
The stated purpose of this Act was to INSERT PURPOSE OF ACT. The Cth, in passing this law, was attempting to address the perceived problem within the community INSERT. This is a subject matter power, thus we apply the ‘sufficient connection’ test (Bank Nationalisation Case and Murphyores (1976)). Under this test, the Act INSERT must deal with a constitutional corporation and what it regulates must fall within the scope of power.
1. The law must deal with a constitutional corporation
STATE EITHER: TRADING CORPORATION → Section INSERT SECTION explicitly states that the act applies to all corporations involved in INSERT. Applying the current activities test to INSERT
CORPORATION IN Q, it would only apply to corporate entities whose trading activities respectively form a
significant and substantial, although not a predominant, part of the business (Adamson’s Case (1979);
Tasmanian Dams (1983)). APPLY ONE OF THE CASES:
- In Adamson Case (1979), the Court held that a football club was a trading corporation for the purposes of the Trade Practices Act 1974 based on consideration of the activities or functions of the corporations.
These included selling souvenirs and advertising, selling television and catering rights, renting premises and the provision of car parking facilities. It was said that trading was a ‘substantial’ activity, or a
‘sufficiently significant proportion’. OR
- In Tasmanian Dam Case (1983), the Court held that the Tasmanian Hydro-Electric Commission, a statutory corporation, was a trading corporation because its trade in electricity (selling electricity) made up a ‘sufficiently significant proportion’ of its overall activities, notwithstanding that it also had semi- governmental powers and functions as a public authority. OR
- In Communications, Electrical, Energy, Information, Postal, Plumbing and Allied services Union v Queensland Rail (2015), the Court considered whether the Queensland Rail Transit Authority, set up under QLD legislation specifying that it was not a body corporate, was nonetheless a trading
corporation. The Court held that the Authority was a corporation because it had the full character of a corporation including a separate right and duty bearing entity, it may own and deal with property, contract and sue; and was capable of enduring notwithstanding changes in the natural persons who control its activities. The Court also found that it was set up as a commercial business to supply labour and therefore engaged in trading activities.
Similarly, in this case, the CORPORATION IN Q is primarily concerned with SUBJECT MATTER. The CORPORATION IN Q activities and functions of INSERT FACTS demonstrates that there trading activities/functions respectively form a significant and substantial part of the business (Adamson’s Case (1979); Tasmanian Dams (1983)). Even though they are doing other activities apart of their club, the selling
of X is still a substantial part of their business. Thus, the CORPORATION IN Q can be classified as a constitutional trading corporation.
OR
FINANCIAL CORPORATION → CORPORATION IN Q can be classified as a financial corporation due to ss INSERT SECTIONS explicitly engaging in financial activities and has a financial purpose regarding INSERT SUBJECT MATTER (State Superannuation Board (1982)). Applying the current activities test to INSERT CORPORATION IN Q, it would only apply to corporate entities whose financial activities
respectively form a significant and substantial, although not a predominant, part of the business (Adamson’s Case (1979); Tasmanian Dams (1983)). 'Financial activities' are distinguished from trading activities in that the former transactions involve only money and the generation (or loss) of money, whereas the latter
concerns more the purchase or sale of goods and services (Re Ku-ring-gai Co-operative Building Society
(No 12) Ltd (1978)). In State Superannuation Board v Trade Practices Commission (1982), the Court held
that the State Superannuation Board was a financial corporation since its financial activities of providing finance such as commercial and housing loans (mortgages), were a significant and substantial part of its activities, notwithstanding that the end purpose was to provide superannuation benefits to contributors.
Similarly, in this case, the CORPORATION IN Q is primarily concerned with SUBJECT MATTER. The CORPORATION IN Q activities and functions of INSERT FACTS demonstrates that their financial activities/functions respectively form a significant and substantial part of the business (Adamson’s Case (1979) / Tasmanian Dams (1983)). Even though they are doing other activities apart of there club, the
providing finance in the form of * is still a substantial part of their business. Thus, the CORPORATION IN Q can be classified as a constitutional financial corporation.
OR
SHELF COMPANY → As CORPORATION IN Q has not yet begun to operate, we look to the purposes (for what purposes they were created, rather than current activities) of the corporation (Fencott v Muller (1983)). It would not include public entities that run at a loss (AWU v Etheridge Shire Council (2008)) or that are funded wholly by the state (ALSWA v Lawrence (2008)). In this case, the purpose of the corporation is to INSERT PURPOSE. Thus, it can be classified as a constitutional corporation. In Fencott v Muller (1983), the Oakland Nominees Pty Ltd was a ‘shelf’ company with no trading activities. Despite its lack of activities, the company was found to be a trading/financial company for the purposes for which it was created which including trading and financial interactions.
Similarly, in this case, the CORPORATION IN Q was created for the purposes of INSERT FACTS (Fencott v Muller (1983)). Thus, the CORPORATION IN Q can be classified as a constitutional corporation.
STATE:
2. The law must, in what it regulates, fall within the scope of the power.
The Corporations Power has generally been interpreted broadly as a plenary power, where a law regulating the ‘activities, functions, relationships and business’ of a constitutional corporation or creating rights, privileges or obligations of a constitutional corporation will be within s 51(xx) (Work Choices Case). In this case, the ACT/LAW IN SECTION explicitly INSERT FACTS & APPLY TO ANY OF THE
FOLLOWING:
• the regulation of the activities, functions, relationships and the business of constitutional corporations’
• the creation of rights, and privileges belonging to such a corporation;
• the imposition of obligations on it;
• the regulation of the conduct of those through whom it acts, its employees and shareholders and, also,
the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships
or business; note that this latter point may more accurately be construed as part of the implied
incidental power as it is not directly related to it and more ancillary.
• including laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations.
In Work Choices Case, laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations (i.e. internal relationships within a corporation), were held to be within the Corporations power. Similarly in this case, APPLY
FACTS. As s INSERT SECTION refers specifically to trading corporations/financial corporations and in its application to trade/finance it INSERT ITS ACTIVITIES, is a sufficiently significant proportion of its business (Adamson; Tasmanian Dam Case). Thus, the ACT/LAW IN SECTION can/can not likely be classified as being within the scope of the corporations power. Hence, it is/is not likely to be constitutionally valid under the corporations power (s 51(xx)).
USE implied incidental power as an alternative.
STATE: Alternatively, using the implied incidental power, the regulation of INSERT WHAT ITS REGULATING (E.G. CONDUCT OF EMPLOYEES) could be seen as ancillary or incidental to the trading/financial activities of a trading/financial corporation (Cth v Tasmania). To do this, we must apply the proportionality test which asks whether the law is “appropriate and adapted” to its purpose (D’Emden v Pedder (1904)): R v Burgess (1936)). With respect to the corporations power, the implied incidental power was found to authorise a law which didn’t directly regulate a corporation but it permitted a person who had suffered a loss because of a corporation’s misleading and deceptive conduct to recover that loss from any natural person involved in that deception (Fencott v Miller (1983)). Similarly, in this case, APPLY FACTS.
Alternatively, the Cth law of INSERT would likely be characterised under the implied incidental power.
Hence, it is/is not likely to be constitutionally valid (s 51(xx)).
Examples of activities WITHIN the scope of corporations power
- A law regulating restrictive trade practices between corporations (regulating corporations trading activities) (Concrete Pipes Case)
- A law that permits a person who has suffered loss because of a corporation’s misleading or deceptive conduct to recover that loss from any natural person involved in that deception is valid under
corporations power as it is “incidental to the regulation of corporate and trading activities or trading corporations” (Fencott v Muller (1983)).
- A law prohibiting a secondary boycott (conduct hindering or preventing the supply of goods or services to a corporation or the acquisition of goods or services by a third person from a corporation, where the conduct would cause damage to the business of the corporation) (Actors and Announcers Equity Association v Fontana Films Pty Ltd)
- A law prohibiting corporations for the purposes of their trading activities, from carrying out excavation
works, building, damaging buildings, damaging trees, making roads or using explosives on certain land (Tasmanian Dams)
- Comprehensive regulation of corporations’ workplace regulations (WorkChoices)
Examples of activities NOT within the scope of corporations power
- if the law is providing for the establishment of a corporate body that it will not be valid under the corporations power (Incorporations Case (1990))
o the corporations power cannot of itself authorize the payment of money by the Cth to a constitutional
corporations. Law invalid (Williams v Cth (2014))
