CONSTITUTIONAL INTERPRETATION
Literalism
Focus on the text of the Cons tu on, to the exclusion of all other considera ons Rejec on of reference to any interpre ve context words speak for themselves
Taking the words of the me and looking at the meaning plainly intended by the words Re rement of Sir Garfield Barwick as Chief Jus ce CLR v Court to decide meaning of words in which it is expressed li le room to re express
No room for Court to change the Cons tu on has to assign meaning to words You take the words, you decide on the Cth power and you do not decide on the Cth power looking over your shoulder as to what effect your decision will have on State power The Cons tu on will take care of that
Func on of the court is to give to the words their full and fair meaning and leave the Cons tu on which places the residue with the States to work itself out
Legalism
Literalism within a context of tradi onal legal principles and techniques CL statute Does not insist that interpreta ve jus ficatory reasoning be limited to only one source, but only that its sources be located within a self contained autonomous body of law
Reliance on technical legal solu ons rather than considera ons of policy
BUT any comprehensive view of the Cons tu on requires a judge to draw upon sources that cannot be confined to an autonomous discourse of purely legal considera ons
Rather just seeks to deny scope for judicial choice in what legal materials to use Judith Shklar Closed system of reasoning
Law as there as a discrete en ty discernibly different from morals and policy that has its deepest roots in the legal profession s views of its own func ons and forms the very basis of our judicial ins tu ons and procedures
Important for separa on of powers not doing the job of Judiciary by using sources outside the courtroom eg public debate interviews with Execu ve things that Parliament Execu ve will do
Swearing in of Sir Owen Dixon as Chief Jus ce CLR xi Federalism demarca on of powers between the Commonwealth and the States Court s responsibility to decide whether legisla on is within its allo ed boundaries Court s sole func on is to interpret the cons tu onal descrip on of the power
Nothing to do with merits demerits of the measures Close adherence to legal reasoning
No other safe guide to the judicial decision in conflicts than strict and complete legalism
Originalism
Cons tu on to adhere to its original intent or original understanding of its text Cole v Whi ield CLR
Re interpreted s with the aid of the Conven on Debates
Regard could be had to the history of a cons tu onal provision, including the relevant Conven on Debates for the purpose of iden fying the contemporary meaning of the language used, subject to which that language was directed and the nature of the objec ves of the movement towards federa on
BUT not to subs tute for the meaning of the words used the scope and effect if such could be established which the founding fathers subjec vely intended the sec on to have
Inten onal Originalism
A empt to establish what was, in fact, the subjec ve inten on of the framers Textual Originalism vs Inten onal Originalism
COURT PREFERS TEXTUAL ORIGINALISM, NOT INTENTIONAL ORIGINALISM
Stanley Fish IO cannot provide us with any prac cal guidance on how to interpret but merely is a common sense explana on of what interpreta on is i e what it really is
Greg Craven Inten on should overcome deficient words
Words are servants of inten on not the other way around
NSW v Commonwealth Work Choices Case CLR
Impossible to dis ll any conclusion about what the framers intended pursuing a mirage
Burton v Honan CLR
Dixon J Everything that is incidental to the main purpose of a power is contained within the power itself so that it extends to ma ers that are necessary for the reasonable fulfilment of the legisla ve power over the subject ma er in accordance withquando lex aliquid concedit, concedere videtur et illud sine quo res ipsa valere non potest
Parliament may in the exercise of any of the substan ve powers given by s make all laws which are directed to the end of those powers and which are reasonably incidental to their complete fulfilment Largely ques ons of degree but in considering them sight must not be lost of the fact that once the subject ma er is fairly within the province of the Cth legislature, the jus ce and wisdom of the provisions that it makes in the exercise of its powers over the subject ma er are ma ers en rely for the legislature and not for the judiciary Issue to be determined is reasonable connec on, not jus ce, fairness, morality or propriety of impugned provision
APPLICABLE TEST
The test for whether a provision may be supported as an exercise of the Cth s implied incidental power not very clear In some cases, the relevant factor appears to be that the provision in ques on the one whose cons tu onality is in doubt is reasonably appropriate and adapted to the effectua on of the purpose of a Cth law that is in power
E g Wragg v NSW CLR Court per Dixon CJ holds that a legisla ve power in s enables the legislatureto include within laws made in pursuance of the powerprovisions which can only be jus fied as ancillary or incidental emphasis added
Here the relevant test appears to be
First, determine if the Cth law as a whole is in power because it is wrt the relevant subject ma er, Then decide whether impugned provision is ancillary to the effectua on of e a e
In other cases the test is different
E g Burton v Honan CLR s ofCustoms Act Cth which provided that goods
associated with a convic on for a customs offence should be forfeit to the Crown even where they had been purchased by an innocent third party was upheld on basis that it was incidental to the main purpose of the trade commerce power in s i and the customs and excise power in s
Here the relevant test iswhether the impugned provision could be said to be necessary for the reasonable fulfilment of the legisla ve power in s
HCA has not given a determinate test for deciding when a provision falls in the core and when it falls in its periphery Absent a test for conclusively dis nguishing test for incidental characterisa on breaks down
However determinate the test may be once it is decided the law falls within the periphery of the power, if the first stage of the test is indeterminate, the whole test is indeterminate
GENERAL CONSTITUTIONAL VALIDITY APPROACH
Iden fy the power s that might be invoked to support the law
a External Affairs Power Defence Power Trade and Commerce Power Corpora ons Power Race Power Taxa on Power Grants Power
Describe the ambit of the power s by reference to the relevant case law Characterise the law
a Consider what rights du es obliga ons privileges or immuni es the law creates affects or destroys b Is it a subject ma er or purposive power
i Subject Ma er Whether those rights etc are sufficiently connected to the head of power ii Purposive Reasonably appropriate and adapted to the power s invoked to support them Reach a conclusion as to the validity of the law
a A preliminary conclusion if the problem also raises ques ons about prohibi ons or limita ons on power Iden fy the prohibi ons or limita ons that might be invoked to strike down the Commonwealth law
a Inconsistency Freedom of Trade and Commerce Federal Compact Implied Freedom of Poli cal Communica on Judicial Power and Deten on
Describe the ambit of those prohibi ons or limita ons by reference to the relevant case law Characterise the law to consider whether it is struck down by the prohibi ons or limita ons
a i e Interpret the law and apply the relevant tests Reach a conclusion as to the validity of the law
Consider whether any invalidity can be cured by reading down or severance or whether the whole Act is invalid Consider whether another head of power may be available and start again at Step
a I e Dual Characterisa on is permissible
Adapted from Clarke Jennifer Patrick Keyzer James Stellios Hanks Australian Cons tu onal Law Lexis Nexis th ed
CONSTITUTIONAL VALIDITY
1. HEAD OF POWER» Identify the power(s) that might be invoked to support the law
» Describe the ambit of the power(s) by reference to the relevant case law.
» Characterise the law – Grain Pool
§ Consider what rights, duties, obligations, privileges or immunities the law creates, affects or destroys
§ Whether those rights etc are sufficiently connected to, and/or reasonably appropriate and adapted to the power(s) invoked to support them.
2. VALIDITY
» Reach a conclusion as to the validity of the law
§ A preliminary conclusion if the problem also raises questions about the applicability of prohibitions or limitations on power).
3. LIMITATIONS
» Identify the prohibitions or limitations that might be invoked to strike down the Commonwealth law.
» Describe the ambit of those prohibitions or limitations by reference to the relevant case law.
» Characterise the law to consider whether it is struck down by the prohibitions or limitations
§ Interpret the law and apply the relevant tests 4. CONCLUSION
» Reach a conclusion as to the validity of the law.
5. INVALIDITY
» Consider whether any invalidity can be cured by reading down or severance, or whether the whole Act is invalid.
6. DUAL CHARACTERISATION (Fairfax)
» Consider whether another head of power may be available and start again at Step 1.
HEADS OF POWER EXTERNAL AFFAIRS - s 51(xxix)
» RELATIONS WITH OTHER COUNTRIES - Does it regulate relations with other countries or international persons?
§ Includes relations with international organisations like United Nations - Koowarta
§ Can make laws to pursue or advance comity with foreign governments and the preservation of the integrity of foreign states – Thomas v Mowbray
» MATTERS EXTERNAL TO AUSTRALIA - Does it regulate matters external to Australia?
§ Mere externality is enough, no need for nexus to Australia – Polyukhovich; XYZ v Cth
§ Extends to places, persons, matters or things physically external to Australia – Industrial Relations Act Case
§ Cannot regulate causes that simply arise externally but only have internal effects – Heydon J in Pape
» TREATY IMPLEMENTATION - Does it implement a treaty? (Purposive – Cunliffe)
§ Must impose a specific and binding obligation, not just vague directionless aspirations/international recommendation – Heydon J in Pape; ILO Case
§ Law must be reasonable capable of being appropriate and adapted to implementing the treaty – Tasmanian Dam Case; ILO Case
§ Partial implementation is okay but cannot add additional grounds of requirements – ILO Case
» MATTERS OF INTERNATIONAL CONCERN – Currently no separate aspect of EAP based on international concern – Alquisi v Cth
GRANTS - s 96
1. No limitations on giving money per se (no need for the money to directly benefit the state treasury itself) (DOGS) 2. Grants may discriminate (see Moran)
3. Conditions
a. Conditions cannot amount to legal coercion
b. Conditions must be consistent with State constitution 4. Limitations on use of power (circuitous devices)
a. S96 must not be used as a colourable device where the real substance and purpose of the law is to effect discrimination re taxation (contra s51(ii) and s99) i. Evatt J dissent in Moran/Privy Council
b. Grants cannot be used as circuitous devices to breach an express or implied freedom in the Cth constitution (DOGS)
RACE – s 51(xxvi)
1. Is the law with respect to people of ‘any race’?a. Cannot be directed at all races - Koowarta
b. Can regulate a sub-group of a particular race – Tasmanian Dam Case; Kartinyeri 2. Is the law a ‘special’ law for the people of the race concerned?
a. Special quality = When the law confers a right or benefit, or imposes an obligation or disadvantage especially on a people of a particular race – Native Title Case b. Must be ascertained by differential operation on people of a particular race, not by reference that led to its enactment – Native Title Case
3. Is it deemed necessary by Parliament? – Native Title Case
a. Judiciary only to intervene if it is a manifest abuse of race power – Kartinyeri 4. Can it confer only a benefit or a detriment? - Kartinyeri
Thomas v Mowbray CLR
Cth presented argument that legisla on implemented obliga ons under Security Council Resolu on Kirby J Security Council Resolu ons may contain binding obliga ons on Aus as party to the Charter
BUT these resolu ons were insufficiently specific and had almost limitless reach to pursue anything
TREATY IMPLEMENTATION
R v Burgess; Ex parte Henry CLR
Henry joyrode along the perimeter of Sydney airports license suspended cos in breach of air naviga on guidelines Power to enter into interna onal trea es agreements lies with federal execu ve as part of preroga ve power Held unanimouslythat Act was valid to give effect to Conven on Rela ng to Regula on of Aerial Naviga on Latham CJ, Eva and McTiernan JJheld legisla ve implementa on of trea es valid in quite unqualified terms
Eva and McTiernan JJargued that even in the absence of binding obliga ons power was held valid to implement recommenda ons made by the Interna onal Labour Organisa on ILO widest view
Starke J dissent Should only include ma ers of sufficient interna onal significance to make it a legi mate subject of interna onal co opera on and agreement
Dixon J dissent Should only include ma ers that are indisputably interna onal in character
BUT actual regula ons held invalid because not framed in a way that adhered sufficiently to Conven on
Since Cth power arises from the purpose of implemen ng a conven on, the resul ng legisla on must be confined to that purpose in order to be valid Any departure would be completely destruc ve
It is only because and precisely as far as the Cth statute carries out the local opera on of the treaty that the Cth Parliament Execu ve can deal with it at all with the subject ma ers of the Conven on
Everything must depend on the terms of the conven on and upon the rights du es it confers imposes Starke J dissent Held that Execu ve discre on to implement the Treat as it wish should be construed broadly
Construc on of power should be broad to allow for ready applica on to various circumstances
Koowarta v Bjelke Petersen CLR
Mason, Murphy and Brennan JJ Saw no limita on as required by Starke Dixon J in Burgess
Murphy J If limited Aus would be interna onal cripple unable to par cipate fully in emerging world order Gibbs CJ, Aickin and Wilson JJ dissent Adopted limita on by Dixon J only if indisputably interna onal in character Gibbs CJ dissent Need for there to be some limita on otherwise Cth Parliament able to determine its own limits
Execu ve could make formal and informal agreements to arrogate to Parliament power to make any laws Distribu on of powers made by Cons tu on would be completely obliterated no field Cth could not invade Rejected Eva and McTiernan JJ s approach in Burgess
Doctrine of bona fide entry into trea es would be a frail shield for Execu ve and only in rare cases Narrower interpreta on of EAP would be more consistent with the federal principle upon which the Cons tu on is based and more calculated to carry out the true object and purpose of the EAP
Laws would only be valid if it can properly be described as an external affair and it gives effect to treaty Any subject ma er may cons tute an external affair provided that the manner in which it is treated is in some way as it involves some rela onship with other countries or with persons or things outside Australia Ma er does not become external affair simply because Aus has entered into agreement with other na ons Stephen J Thought there should be some limita on but thought Mason etc too narrow
Held that what was really required was that the treaty be on a ma er of interna onal concern Agreed with Mason etc that racial discrimina on was a ma er of interna onal concern
A subject ma er of interna onal concern necessarily possesses the capacity to affect a country s rela ons with other na ons and this quality is itself enough to make it a part of a na on s external affairs Even in the absence of a treaty, an interna onal concern to which Australian in its interna onal rela ons might consider it necessary prudent to respond by appropriate legisla on within Australia such as the concern being part of customary interna onal law, might be enough to bring it within the EAP
Was adverted to in future cases but never formed the basis for a decision
Result No majority view on test but four judges the minority and Stephen J held that external affairs power was not unqualified in sense that it did not extend to implementa on of all trea es
Difference between judges a ributable to different concep ons of the extent to which the need to reserve some power to the States over purely domes c affairs may be factored into interpreta on of s xxxix and to varying levels of concern about the extent to which an expansive interpreta on of the external affairs power might lead to destruc on of federal balance per Gibbs CJ at
Ma ers of Interna onal Concern Alqudsi v Commonwealth NSWLR
Leeming and McCallum JA There is no separate aspect of the external affairs power based on interna onal concern
DEFENCE POWER s vi
T e Pa a e a b ec C a e e a e a f e eace de a d d e e f
e C ea e ec e a a a d a defe ce f e C ea a d f e e e a S a e a d e c f e f ce e ec e a d a a e a f e C ea
The defence power waxes and wanes
Global war Measures that parliament can enact may extend into virtually every aspect of Australian life and may involve far greater control and co ordina on of the na onal economy than is normally possible
Peace Scope of the defence power will be much more limited
Although the power is elas c it does not immediately snap back at the end of a war to its limited peace scope Transi on may jus fy a con nua on of some war me measure and new measures may be necessary
Andrew v Howell CLR
Dixon J Unlike some other powers its applica on depends upon facts, and as those facts change, so may its actual opera on as a power enabling the legislature to make a par cular law Whether it will suffice to authorise a given measure will depend upon the nature and dimensions of the conflict that calls it forth upon the actual and apprehended dangers exigencies and course of the war and upon the ma ers that are incident there to
Stenhouse v Coleman CLR
Dixon J Limita ons on material that a court can take into account when considering validity of law under defence Cannot be publicly canvassed without prejudicing the conduct of the war or perilling na onal interest Facts that Court must depend upon ma ers of general public knowledge
Ques on is one of law and not of fact and a presump on seldom provides a solu on just a step in legal reasoning Court does not subs tute that for the Execu ve its own opinion of the appropriateness sufficiency of the means to promote the desired end BUT the Court must form and act upon a judgment upon the ques on whether the legisla on, be it direct subordinate, is a true exercise of power in rela on to defence
Purpose must be collected from relevant instrument, facts to which it applies and its surrounding circumstances One difficulty is that the elas c applica on may mean that the necessity jus fica on for which would be conceded during the emergency which called them forth may con nue unrevoked when the emergency has passed
APPLICABLE TEST
STEP The defence power is elas c
It is a fixed concept with a changing context Depends on defence needs Andrew v Howell; Stenhouse v Coleman
STEP The defence power is a purpose power
Authorises Cth to legislate not so much on a specified subject ma er but for a specific purpose
Purpose collected from relevant instrument, facts to which it applies and its circumstances Stenhouse v Coleman A law is jus fied because it is or reasonably may be conducive to a defence purpose
Affirmed inPolyukhovich
The relevant ques on of characterisa on is one of propor onality reasonably appropriate and adapted
Will support if it is reasonably capable of being seen as appropriate and adapted to the purposes of defence
STEP The condi ons that determine the scope of the power are its factual condi ons
Can be internal or external condi ons will normally be ma ers of common knowledge Stenhouse v Coleman Kind of facts which the Courts take judicial no ce of can draw from personal knowledge w o evidence Is there an exis ng or poten al threat to Australia s security
Is it grave enough to allow the Cth to assume control of the greater part of human and material resources of the na on which at another me would be unwarranted Stenhouse v Coleman
STEP Is there a state of war or na onal emergency
WAR Scope of defence power during war is extremely wide overrides all constraints Farey v Burve
Will be within ambit of power if the real substance and purpose is such that the legisla on is capable of even incidentally aiding effectua on of the defence power Women s Employment Case
State of War creates a situa on that is abnormal temporary BUT legisla on can only be valid if it falls within the ambit of an enumerated power and if its enlarged opera on does not extend beyond what is reasonably required to cope with such abnormal and temporary condi ons Women s Employment Case POST WAR Can be used post war to deal with consequences of war R v Foster
BUT Court must be able to see with reasonable clearness how it is incidental to DP
CORPORATIONS POWER s xx
T e Pa a e a b ec C a e e a e a f e eace de a d d e e f
e C ea e ec f e c a a d ad fi a c a c a f ed e f
e C ea
Huddart Parker Co Pty Ltd v Moorehead CLR
Formed within the limits of Cth power extends only to corpora ons already exis ng NOT a power to create Challenge to ss and of theAustralian Industries Preserva on Act Cth
Provisions prohibited foreign corpora ons and trading or financial corpora ons formed within the limits of the Cth cons tu onal corpora ons from engaging in certain restric ve trade prac ces
Provisions unremarkable except that there was no obvious head of power that allowed Cth to regulate domes c i e intrastate ac vi es of corpora ons in this way
Four judge majority decided that corpora ons power should be narrowly construed in context of federal
Cons tu on that le regula on of intrastate trade to States, and therefore that challenged provisions were invalid Griffith CJ, Barton and O Connor JJdecided case on basis of reserved State powers doctrine
Higgins J suppor ng majority decided case consequen ally on basis of list of horribles Isaacs J dissentedon grounds that key to understanding this head of power is two ques ons
What types of corpora on may be regulated under this power What ac vi es of corpora ons may be regulated
Stricklands v Rocla Concrete Pipes Ltd Concrete Pipes Case CLR
Overrules Huddart Parker as being incorrectly decided on basis of defunct reserved State powers doctrine Not only was the court s reasoning in Huddart Parker wrong but the decision was wrong too they dealt with the very heart of the purpose for which a corpora on is formed Agreements to restrict trade or endeavouring to monopolize it are ac vi es in trade that are squarely within the scope of s xx However it does not follow that any law which in the range of its command prohibi on includes foreign corpora ons or trading or financial corpora ons formed within the limits of C th is necessarily a law under s
xx or that any law addressed specifically to such corpora ons is such a law
The laws considered in Huddart Parker were valid because they were regula ng and controlling the trading ac vi es of trading corpora ons
Focused on Cth restric ng trading prac ces
Provisions required all corpora ons i e not just trading and financial corpora ons to provide par culars of an compe ve agreements to Cth Commissioner of Trade Prac ces
Case raised squarely ques on whether Cth could regulate intrastate trading ac vi es of trading corpora ons Follows here that yes the making of such an agreement in the course of trade is a trading ac vity
Such a law is a law regula ng and controlling the trading ac vi es of such corpora ons
Doesn t resolve everything about corpora ons power Can use corpora ons power to target a cons tu onal corpora on and regulate at least some of its ac vi es, and at least the trading ac vi es of trading corpora ons Start of new approach to corpora ons power Cth could regulate all trading ac vi es of trading corpora ons
A en on swings to ques on of What is a cons tu onal corpora on Case fails to answer Isaacs J s ques ons in Huddart i e
Which corpora ons fall under the ambit of this power
Which of their ac vi es are covered apart from the trade prac ces inConcrete Pipes Case established that trading ac vi es of trading corpora ons could be regulated under s xx , but did not limit power to regula on of such ac vi es
APPLICABLE TEST
STEP Is there a pre exis ng corpora on
Power extends only to corpora ons already exis ng NOT a power to create Incorpora ons Case
STEP Is the en ty being regulated a cons tu onal corpora on
Is it a corpora on Does it have a separate legal personality Queensland Rail Is it a trading corpora on financial corpora on or foreign corpora on
Foreign Must be formed outside limits of Commonwealth Incorpora on Case
Trading Financial Current Ac vi es Test Adamson s Case Substan al Significant Propor on SSB v TPC
STEP What ac vi es affairs are being regulated
Characterise the law narrowly by looking at rights it confers du es it imposes Work Choices
Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ Declared incorpora on provisions of Act invalid Power cannot be used to incorporate a corpora on, corpora on already has to be formed in respect to other legisla on before it can be regulated by Commonwealth
formed is a past par ciple used adjec vally power is one with respect to formed corpora ons Words formed within the limits of the C th exclude the process of incorpora on itself
That is it is a power over exis ng formed corpora ons not a power to form corpora ons Decision based on prac cal difficul es together with
Gramma cal analysis of phrase formed within the limits of the Commonwealth Dra ing history Conven on Debates and and dra cons tu ons and
Fact that this aspect of Huddart Parker not affected by abandonment of reserved State powers doctrine in Engineers as applied to corpora ons power in Concrete Pipes
Deane J dissent Cannot be confined to just formed corpora ons
s xx with respect to foreign corps cannot properly be confined to exclude the power to make laws defining the circumstances and establishing the procedures under and by which ar ficial en es invested with corporate personality under other systems of law may acquire or enjoy such personality under the law of this country So a law providing for the local incorpora on of foreign corps is a law within s xx Similarly problem with majority s argument concerning corps formed within the limits of the C th is that it does not dis nguish between the abstract subject ma er of the legisla ve power and its concrete instances
REACH OF THE POWER INCIDENTAL POWER
Narrow View Broad View
Cth law dealing with cons tu onal corpora ons may only regulate aspects ac vi es of corpora on that are connected to the ac vi es that iden fy it as either a trading financial corpora on
Two ques ons addi onal ques on Is it a cons tu onal corpora on Does the law also regulate trading or financial ac vi es
Probability of infringing on State power is a reason why power should be read more narrowly
Once it has been established that the law applies to cons tu onal corpora ons, then any
aspect ac vity of such a corpora on may be regulated, and there is therefore effec vely no basis for a cons tu onal challenge to the law
Collapses characterisa on ques on into single ques on Does law have as its object cons tu onal corpora ons If so all provisions are within power Will enable Cth enormous la tude to regulate areas that might have been domain of States
Ques ons of separate legal personality can corpora on be liable for employees ac ons Li ing the corporate veil to see whether they are really ac ng upon what is required of them
Actors and Announcers Equity Associa on v Fontana Films Pty Ltd
Concrete Pipes Trading ac vi es of trading corpora ons could be regulated under s xx but did not limit power Actors ques oned whether Cth law could regulate the behaviour of persons other than corpora ons Facts Sec on D b i of Trade Prac ces Act Cth prohibited secondary boyco s i e trade union ac vity aimed at persuading suppliers not to supply goods and services to a targeted company
Actors and Announcers Equity Associa on AAEA in dispute with Fontana Films Pty Ltd over closed shop arrangement i e over demand that Fontana Films employ only actors registered with it
When Fontana Films refused AAEA tried to persuade theatrical booking agents not to contribute actors to Fontana Films produc ons viola ng s D b i
Federal Court imposed restraining order against which AAEA appealed to High Court
HCA upheld s D b i on basis thatcorpora ons power could be used to regulate ac vi es of natural persons in order to protect trading corpora ons cf Brennan J discriminatory protec on
ExemplifiedFairfaxdirect characterisa on test s D b i conferred rights on trading corpora ons to resist secondary boyco s and therefore was a law w r t corpora ons even though it did not regulate the trading ac vi es of trading corpora ons per se
Decision not conclusive Gibbs CJ Wilson Jfavoured narrow vsMason Jfavoured broader view Commonwealth v Tasmania Tasmanian Dam Case CLR
Held HEC was a trading corpora on and thus in principle subject to regula on under s xx Qn Whether s xx supported regula on of HEC s ac vi es in ss of WHPC Act Cth
Sec on allowed GG to declare property threatened by development to be property to which s applies Sec on made it unlawful for trading corpora on to carry out various construc on ac vi es either at all
sub ss and or when done for the purposes of its trading ac vi es sub s
IMPLIED FREEDOM OF POLITICAL COMMUNICATION
1. Is the Law within legislative competence? (i.e. under a Cth head of power/plenary State power)2. Source of IFPC: Implied from the text and structure of the Constitution (ss 7 and 24) (Lange) 3. Nature of the Implied Freedom: Operates as a prohibition on laws rendering them invalid.
a) NOT a personal immunity from laws (Lange), BUT ‘a qualified limitation on legislative power’ (McCloy) 4. It is NOT absolute.
FEDERAL COMPACT Me b e C a Principle
T e C ea ca b e e e c e f e a e e fica a c a ea e e ca ac f
e S a e e e c e e c a e a d f c fica a c a ea e e ac a e e c e
f e e a d f c
Sovereignty has been reduced from control of an authority to right of survival bare minimum
Func on as an immunity as it demarcates a point beyond which Cth cannot go Looks like a reserva on to States Why did this shi happen
Engineers
Court saying doctrines derived by implica on derived via impermissible methodology A poli cal methodology dependent on subjec ve understandings of federa on Impermissible to base doctrines on impermissible poli cal criteria
Melb Corp
Construc ng a weaker version of this doctrine
Dixon had his own understanding of what Engineers stood for personally opposed to the idea that there were no circumstances under which you could draw implica ons from the Cons tu on There is now no assump on that the immuni es enjoyed by Cth and States from each other s laws are iden cal, i e that what the Cth can do to the States mirrors exactly what the States can do to the Cth
The implied limita on on Cth power in this respect is said to derive from the fact that t he Cons tu on assumes the con nuing existence of the States, their co existence as independent en es within the Cth, and the
func oning of their governments Clarke v Commissioner of Taxa on per French J
Irony of Doctrine Formally looks really important but prac cally it has only been successfully invoked on very rare occasions which look more like judicial self protec on rather than protec ng the states cth
THE MELBOURNE CORPORATION PRINCIPLE CLR
Imposing a special burden on States s targeted the states and said they had to bank with only CBA Dixon J Said the special law for states was the problem singled out its discriminatory quality
Substan ve worry is states poten al incapacity to func on as independent en es
Case stands for a principle but no one is en rely sure on the test for its ac va on
They know it exists but principles have to be brought down to the level of opera on and that more prac cal side is not clarified by the Court Main reason being that it is caught between formal and substan al idea Case does not stand for a clear principle, only that there is some limit on what Cth can do to States, either by singling them out specifically and placing special burdens on them, or by indirectly interfering, albeit in a law of general applica on, with their con nued existence or capacity to func on as governments
Dixon J The federal system itself is the founda on of the restraint upon the use of the power to control the States The same cons tu onal objec on applies to other powers, if under them the States are made the objects of special burdens of disabili es Not of course all powers, for some of them are concerned with the States specially or contemplate some measure in par cular rela on of a State
Drew dis nc on between Cth laws of general applica on that happen to affect State governments and laws singling out State governments and placing special burdens upon the exercise of powers or the fulfilment of func ons cons tu onally belonging to them at
Such laws, even if connected to head of Cth power, will not be valid unless Cons tu on expressly contemplates control of State ac vi es under that head of power such as s xxxiii
Considera ons underlying what Cth may do to a State and vice versa
Posi on of federal govt Cth is necessarily stronger then States supremacy to Cth Cth is a govt to which enumerated powers have been affirma vely granted
Accordingly the considera ons upon which the States tles to protec on from Cth depends arise not from the character of the powers retained by the States but from their posi on as separate governments in the system exercising independent func ons Federa on
Unless a given legisla ve power appears from its content context or subject ma er to so intend it should not be understood as authorising the Cth to make a law aimed at the restric on control of a State in the exercise of its execu ve authority
Rich J There is no general implica on but more that it is subject of provision of Cth Cons tu on itself Cons tu on expressly provides for con nued existence of the States
Any ac on by Cth which would prevent a State from con nuing to exist or func on is necessarily invalid because it would be contrary to the Cons tu on s subject to this Cons tu on
Re Australian Educa on Union Ex parte Victoria CLR
Addressed whether Cth s concilia on and arbitra on power under s xxxv and other heads of power allowed it to regulate employment rela onship between State governments and their employees
Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ Rejected earlier blanket administra ve services excep on i e view that all employees in administra ve service of State be exempt from federal regula on
Here the existence of the States their Cons tu on and capacity to func on as govts would not be impaired by the opera on of federal awards made in respect of the vast majority of the employees sought to be covered by the claimants Freedom of State govts to determine terms and condi ons of employment of employees would be restricted but that is a consequence of the applica on of arbitra on power to States Based decision on dis nc on between lower level and higher level employees , and between
determining number and iden ty of employees employed and their wages and condi ons
Lower level employees State has exclusive power to determine the number and iden ty of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the and iden ty of persons whom it wishes to dismiss with or without no ce from its employment on redundancy grounds
However federal award prescribing minimum wages and working condi ons would be valid provided it took account of any special func ons or responsibili es which a ach to the employees Such aspects are cri cal to capacity to func on as individual governments
Higher level employeeswould be exempt from federal regula on altogether at
Precludes the Commission from making an award binding the States in rela on to the terms and condi ons of employment or engagement of persons such as Ministers ministerial assistances and advisers heads of department and senior office holders parliamentary officers and judges
Commission has power to make awards binding States and agencies in rela on to min wages and working condi ons which take account of the special func ons responsibili es of broad range of employees Held that Victoria s decision to dismiss employees on the ground of redundancy not subject to federal award because Cth regula on of this issue would curtail State s capacity to func on
Dawson J dissent Found that lines drawn were very ar ficial
No readily discernible line between those aspects of the rela onship between a State and its employees which may be externally regulated without interference with the capacity of the State to func on
independently and those which may not If the determina on of the number and iden ty of persons to be employed is cri cal to the func oning of a State then so too will be the wages and condi ons of
employment for the former cannot be determined in isola on from the la er
Similarly ar ficial to draw a line between those at the higher levels of govt and those at the lower levels Victoria v Commonwealth Industrial Rela ons Act Case ! CLR
Applied first part ofRe Australian Educa on Unioncase to amendments to Industrial Rela ons Act
Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ Amending provisions must be read down wherever they appeared to apply to high level officials or to State preroga ve to dismiss employees on grounds of redundancy
Otherwise Melbourne Corpora on principle found to have no applica on
Thus provisions dealing with minimum wages found not to discriminate against States as these provisions applied generally to all employees with no differen al impact on States when actual opera on considered Class of person in respect of whom an order may be made is selected not by reference to employment by or in a State but by reference to prac cal criteria which take account of the general pa ern of industrial regula on and of the way in which the rights of wage earners are generally protected
Ques on whether provision is discriminatory to be determined from the purpose of the enactment ascertained by reference to the substance and actual opera on of the law in the circumstances it applies But same provisions read down in accordance with s A ofActs Interpreta on Actas not binding the States in respect of high level employees low level employees in so far as these provisions purported to interfere with States capacity to determine the number and iden ty of those it wished to employ or dismiss on redundancy grounds
ONE PRINCIPLE
Aus n v Commonwealth CLR
Two Cth statutes targeted high income members of cons tu onally protected superannua on funds included judges deemed them to have made contribu ons to their respec ve pension funds and then taxed them
Aus n a judge of the Supreme Court of NSW challenged law underMelbourne Corpora on principle Gaudron, Gummow and Hayne JJ Held thatthere was but one limita on on Cth legisla ve power, and that breach of this limita on depended on assessment of the impact of par cular laws by such criteria as special burden and curtailment of capacity of the States to func on as governments
To fix separately upon laws addressed to one or more of the States and upon laws of general applica on and to present the inquiry as differing in nature depending upon the form taken by laws enacted under the
