LAWS5011: FEDERAL CONSTITUTIONAL LAW
INTRODUCTION 8
Introduction 8
Constitution s. 109 8
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (141-155) 8
Victoria v Commonwealth (1971) 122 CLR 353 (395-87) 9
Legalism and Literalism 10
Jumbunna Coal Mine NL v Victorian Coal Miner’s Association (1908) 6 CLR 309 (367-8) 11
CONSTITUTIONAL INTERPRETATION AND CHARACTERISATION 12
Use of Historical Methods 12
Original Intent 12
Textualism 13
Incremental Accommodation 13
Characterisation 14
S. 51 Constitution 14
Dual Characterisation 15
Interaction Between Heads of Power 15
NSW v Commonwealth (Work Choices) (2006) 229 CLR 1 (96-8) 16
Eastman v The Queen (2000) 203 CLR 1 (96-8) 16
Street v Queensland Bar Association (1989) 168 CLR 461 (537-8) 17
Bank of NSW v Commonwealth (1948) 76 CLR 1 (182-187) 17
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 (3-13) 18 NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1 (203, 72) 18 Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 (430-7) 19 Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 169 (190-5) 19
Pidoto v Victoria (1943) 68 CLR 87 (101) 19
NSW v Commonwealth (Work Choices) (2006) 229 CLR 1 (205-8, 127-8) 20
CHARACTERISATION 21
Characterisation 21
Acts Interpretation Act s 15A 24
Stenhouse v Coleman (1944) 69 CLR 457 (471) 25
Re F; Ex Parte F (1986) 161 CLR 376 (387-90) 26
Re Dignan; Ex Parte Wagner (1995) 183 CLR 323 (368-90) 27
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 (491-2) 27 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 (70) 29
D’Emden v Pedder (1904) 1 CLR 91 (109-10) 29
Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 (77) 30
Burton v Honan (1952) 86 CLR 169 (177-9) 30
Nationwide New Pty Ltd v Wills (1992) 177 CLR 1 (27-33, 87-89) 31
Leask v Commonwealth (1996) 187 CLR 579 (599-606, 634-35) 33
Victoria v Commonwealth (1996) 187 CLR 416 (502) 35
NSW v Commonwealth (Work Choices) (2006) 229 CLR 1 (240-241) 36
Bell Group NV (in liq) v Western Australia (2016) 331 ALR 408 (426-7) 36
TRADE AND COMMERCE POWER 38
Trade and Commerce Power 38
W & A McArthur Ltd v Queensland (1920) 28 CLR 530 (546-7) 39
Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 (80-1) 40
R v Burgess; ex parte Henry (1936) 55 CLR 608 (627, 629) 40
Wragg v NSW (1953) 88 CLR 353 (385-6) 41
Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 (113-17) 42
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 (595-8) 43
Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 (508-511) 44
Pape v Commissioner of Taxation (2009) 238 CLR 1 (150-53) 46
FREEDOM OF INTERSTATE TRADE, COMMERCE 47
Freedom of Interstate Trade, Commerce and Intercourse 47
Constitution s 92 47
James v Commonwealth [1936] AC 578 [597] 47
James v Cowan (130) 43 CLR 386 48
O Gilpin Ltd v Commissioner for Road Transport & Tramways (NSW) (1935) 52 CLR 189 48
Cole v Whitfield (1988) 165 CLR 360 (383-409) 49
Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 (424-32) 51
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 (464-74) 52
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 (473-80) 53
Betfair Pty Ltd v Racing NSW (2012) 249 CLR 217 (266-71) 55
Sportsbet v NSW (2012) 249 CLR 298 (314-321) 56
Nationwide News Pty Ltd v Willis (1992) 177 CLR 1 (55-60) 56
AMS v AIF (1999) 199 CLR 160 (175-79) 57
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 (352-4) 58
Gerner v Victoria [2020] HCA 48 59
Palmer v Western Australia [2021] HCA 60
Inconsistency 62
Constitution s 109 62
Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 63 Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 63
Victoria v Commonwealth (1937) 58 CLR 618 [630] 63
Re Macks; Ex parte Saint (2000) 204 CLR 158 64
Telstra Corporation Ltd v Worthing (1997) 197 CLR 61 (76-6) 65
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 (425) 66
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 (479-90) 67
Ex Parte McLean (1930) 43 CLR 472 (483) 68
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 69
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 (56-8) 70 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 (246) 71
Commonwealth v Western Australia (1999) 196 CLR 392 (417) 72
Momcilovic v The Queen (2011) 245 CLR 1 (119-21) 73
Commonwealth v Australian Capital Territory (2013) 250 CLR 441 (467-9) 75
West v Commissioner for Taxation (NSW) (1937) 56 CLR 657 (707) 77
Wenn v Attorney-General (Vic) (1948) 77 CLR 84 (110-1) 77
Airlines of New South Wales Pty Ltd v NSW (No 2) (1965) 113 CLR 54 (118-9) 78 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 (465) 79 Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595 (624-9) 80 NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1 (164-168) 80 R v Credit Tribunal; Ex Parte General Motors Acceptance Corporation (1977) 137 CLR 545 (563-4) 82
Viskauskas v Niland (1983) 153 CLR 280 (292-3) 83
University of Wollongong v Metwally (1984) 158 CLR 447 (476-8) 84
DEFENCE POWER AND THE NATIONHOOD POWER 86
Overview of Defence Provisions from the Constitution 86
Constitution s 51(vi) 86
Constitution s 114 86
Constitution s 119 86
Constitution s 68 86
The Waxing and Waning Nature of the Defence Power 86
Polyukhovich v The Commonwealth (1991) 172 CLR 501 87
Farey v Burvett (1916) 21 CLR 433 88
Community Party Case 90
Australian Community Party v Commonwealth (1951) 83 CLR 1 (205-6, 175-85, 195-205, 252-268) 90
Anti-Terrorism 94
Revision of Nationhood Power 95
Andrews v Howell (1941) 65 CLR 255 (278) 95
Stenhouse v Coleman (1944) 69 CLR 457 (469-471) 96
Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 (215-6, 252-6) 97
Thomas v Mowbray (2007) 99
Davis v Commonwealth (1988) 166 CLR 79 (92-116) 101
Pape v Commissioner of Taxation (2009) 238 CLR 1 (24) 103
RACE POWER 105
Origins of Race Power - s 51(xxvi) 105
Commonwealth Power in Relation to Aboriginal People 105
Special Laws Deemed Necessary 106
Must the Exercise of the Power be Beneficial? 107
Wurridjal v Commonwealth (2009) 237 CLR 309 108
Koowarta v Bjelke-Peterson (1982) 153 CLR 168 (186-7) 108
Commonwealth v Tasmania (1983) 158 CLR 1 (65, 242-5) 110
Western Australia v Commonwealth (1995) 183 CLR 373 (460-2) 112
Kartinyeri v Commonwealth (1998) 195 CLR 337 (361-381) 113
EXTERNAL AFFAIRS 118
Overview of History of Drafting External Affairs Power 118
Geographic Externality - Matters External to Australia 118
Implementation of Treaties 119
International Recommendations 120
R v Sharkey (1949) 79 CLR 121 (136-7) 120
NSW v Commonwealth (1975) (Seas and Submerged Land Case) 135 CLR 337 (449-50) 120
Thomas v Mowbray (2007) 233 CLR 307 (364-5) 121
Polyukhovich v Commonwealth (1991) 172 CLR 501 (602-3) 122
Horta v Commonwealth (1994) 181 CLR 183 (194-5) 124
R v Burgess; ex parte Henry (1936) 55 CLR 608 (679-82) 125
Commonwealth v Tasmania (Tasmania Dams) (1983) 158 CLR 1 (101-2, 124-6) 127
Richardson v Forestry Commission (1988) 164 CLR 261 (320-3) 129
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 (479-88) 130
Pape v Commissioner of Taxation (2009) 238 CLR 1 (162-7) 133
Alqudsi v Commonwealth (2015) 91 NSWLR 92 134
CORPORATIONS POWER, GRANTS POWER AND APPROPRIATIONS POWER 137
What is a Trading or Financial Corporation? 137
Incorporations Case 137
R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 137
State Superannuation Board 138
Reach of the Power 138
Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 (393-5) 138 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 (484-91) 139 Communications Union v Queensland Rail (2015) 256 CLR 171 (183-198) 140 R v Federal Court of Australia; Ex Parte WA National Football League (Adamson’s Case) (1979) 143 CLR
190 142
State Superannuation Board of Victoria v Trade Practices Commission (1982) 150 CLR 282 (303-6) 143
Fencott v Muller (1983) 153 CLR 570 (589-90, 601-2) 144
Commonwealth v Tasmania (Tasmania Dam Case) (1983) 158 CLR 1 (155-7) 145 NSW v Commonwealth (Incorporation Case) (1990) 169 CLR 482 (497-506) 148 Actors and Announcers Equity Association v Fontana Films (1982) 150 CLR 169 (183) 148
Re Dingjan, ex parte Wagner (1995) 183 CLR 323 (364-9) 149
NSW v Commonwealth (Work Choices) (2006) 229 CLR 1 (104, 112-9) 151
Williams v Commonwealth (No 2) (2014) 252 CLR 416 (460-1) 155
GRANTS AND APPROPRIATIONS POWER 157
Section 96 Grants 157
s 96 Subject to Other Constitutional Provisions 158
Section 81 and the Power to Appropriate 158
The Spending Power 158 Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399 (406) 159 Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 (763) 159 W R Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) [1940] AC 838 (857-9) 160 South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 (409-29) 161 Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 (601-11) 165 Attorney-General (Vic) (ex rel Black) v Commonwealth (DOGS Case) (1981) 146 CLR 559 (592-3) 167
Pape v Commissioner of Taxation (2009) 238 CLR 1 (103) 168
Wilkie v Commonwealth [2017] HCA 30 (69-71, 86-92) 170
Williams v Commonwealth (No 1) (2012) 248 CLR 156 (228-38) 171
Williams v Commonwealth (No 2) (2014) 252 CLR 416 (467-70) 174
TAXATION AND EXCISE DUTIES 176
Taxation 176
Harper v Victoria (1966) 115 CLR 361 177
Air Caledonie International v Commonwealth (1988) 165 CLR 462 177
Air Caledonie International v Commonwealth (1988) 165 CLR 462 (466-7) 178 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 (500-7, 529-30) 179 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 (566-72) 180
Luton v Lessels (2002) 210 CLR 333 (325-5, 383-5) 181
Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97 (112-8) 183 Airservices Australian v Canadian Airlines International Ltd (2000) 202 CLR 133 (176-9, 237-41) 184
Pape v Commissioner of Taxation (2009) 238 CLR 1 (129-31) 186
Excise Duties 187
Peterswald v Bartley (1904) 1 CLR 497 (509-11) 188
Matthews v Chicory Marketing Board (Vic) (1949) 80 CLR 229 (258-60) 189
Parton v Milk Board (Vic) (1949) 80 CLR 229 (258-60) 190
Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 (258-60) 191
Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 (189, 226, 240, 190-194) 193 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 (631-5) 195 Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399 (438-41) 196 Capital Duplicators Pty Ltd v ACT (No 2) (1993) 178 CLR 561 (596) 198
Ha v New South Wales (1997) 189 CLR 465 (490-518) 199
INTERGOVERNMENTAL IMMUNITIES 202
Melbourne Corporation Doctrine 202
Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (60-83) 202
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 (217-20, 248-50) 204 Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 (271-4) 205
Re Australian Education Union (1995) 184 CLR 188 (228-33) 206
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 (500-1) 208 Austin v Commonwealth (2003) 215 CLR 185 (246-8, 261-3, 281-85) 208 Clarke v Commissioner of Taxation (2009) 240 CLR 272 (314-6, 298-300) 210
Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548 (609-11) 212 NSW v Commonwealth (Work Choices) (2006) 229 CLR 1 (172-4, 321-33) 213
Spence v Queensland [2019] HCA 15 214
Cigamatic Principle and s 117 217
Cigamatic Principle 217
Uther’s Case 217
Pirrie v McFarlane (1925) 36 CLR 170 (226-8) 219
Re Residential Tenancies Tribunal of NSW; Ex Parte Defence Housing Authority (1997) 190 CLR 110 (520-1,
528-32) 220
Henry v Boehm (1973) 128 CLR 482 (490-2, 501-2) 223
Street v Queensland Bar Association (1989) 168 CLR 461 (485-9) 224
Goryl v Greyhound Australia Pty Ltd (1984) 179 CLR 463 (485-8) 226
Sweedman v Transport Accident Commission (2006) 226 CLR 362 (408-10) 227
Spence v Queensland [2019] HCA 15 228
COMPULSORY ACQUISITION OF PROPERTY 230
Minister of the State for the Army v Dalziel (1944) 68 CLR 262 (284-6) 232
Attorney-General (Cth) v Schmidt (1961) 105 CLR 351 (371-2) 233
Nintendo Co Ltd v Centronic Systems (1994) 181 CLR 134 (160-1) 234
Mutual Pools and Staff Pty Ltd (1949) 179 CLR 155 (184-90) 235
Health Insurance Commission v Peverill (1994) 179 CLR 226 (237) 237
Georgiadis v AOTC (1994) 179 CLR 297 (303-7) 239
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 (179-81) 241 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 (633-635) 243
ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 (187-203) 245
Wurridjal v Commonwealth (2009) 237 CLR 309 (361-4) 246
J T International SA v Commonwealth (2012) 250 CLR 1 (65-73) 248
Cunningham v Commonwealth (2016) 335 ALR 363 (379) 250
Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269 (290-1) 251
Commonwealth v Tasmania (Tasmania Dams) (1983) 158 CLR 1 (290-1) 252
Wurridjal v Commonwealth (2009) 237 CLR 309 (389, 425-33) 252
IMPLIED FREEDOM OF POLITICAL COMMUNICATION 255
Freedom of Political Communication 255
Nationwide News Pty Ltd v Wills (1997) 177 CLR 1 (69-74) 257
ACTV v Commonwealth (1992) 177 CLR 106 (133-146) 258
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (556-72) 261
Levy v Victoria (1997) 189 CLR 579 (622-4) 262
Monis v The Queen (2013) 249 CLR 92 (205-216) 264
McCloy v New South Wales (2015) 257 CLR 178 (193-219) 265
Brown v Tasmania [2017] HCA 43 (73) 266
Clubb v Edwards; Preston v Avery [2019] HCA 11 271
Gerner v Victoria [2020] HCA 48 273
FREEDOM OF RELIGION 275
Freedom of Religion 275
Krygger v Williams (1912) 15 CLR 366 (369-72) 276
Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 (123-131) 276 Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120 (135-6) 278 Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 (124-134) 278 Attorney-General (Vic); Ex Rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 (653) 280
Williams v Commonwealth (No 1) (2012) 248 CLR 156 (446) 281
RACE POWER
Origins of Race Power - s 51(xxvi)
Origins of the Power
- The power was, as initially drafted, a power to make laws with respect to “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”
- Was not exercised before 1967 → Kartinyeri
- Only reference to the HCA in this era was made in passing and was unnecessary to the decision in the case → Robtelmes
- 1967, Australian people voted to delete the words in italics.
- This has been used on a number of occasions now, including to enact laws specifically in relation to aboriginal peoples
Original Purpose
- Argued by Sir Edmund Barton it was necessary to enable the Cth “to regulate the affairs of the people of coloured or inferior races who are in the commonwealth”
- Summarising the effect, John Quick and Robert Garran said “it enables the Parliament to deal with the people of any alien race after they have entered the Cth, to localised them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country where they came from”
Arguments Against
- Josiah Symon QC, argued “it is monstrous to put a brand on these people when you admit them. It is degrading to us and our citizenship to do such a thing. If we say they are fit to be admitted amongst us, we ought not to degrade them by putting them on a brand of inferiority”
Difficulties of the Amendment
- The public and political sentiments surrounding the referendum appear to have been benign and positively disposed towards a particular group, Aboriginal people
- The legal mechanism used to give effect to those sentiments was to bring Aboriginal people within the reach of Cth jurisdiction
- Legislative responsibility for Aboriginal people was overwhelmingly with the States
- The shift to concurrent jurisdiction was achieved by deleting the words previously excluding Aboriginal people from the scope of the other
- The 1967 referendum thus introduced “a second set of founding intentions, and as a consequence there is an acute problem with reconciling them with the original set
Commonwealth Power in Relation to Aboriginal People
Overview
- The extension of the power to Aboriginal people in 1967 with the removal of the discriminatory
reference to ‘aboriginal natives’ in s 127 Constitution (which prevented them from being counted in the census) reflected a change in attitudes
- 1967 referendum was preceded by years of community activism
Robert French, ‘The Race Power: A Constitutional Chimera”
- Pressure for change to the Constitution to give the Cth power to make laws on aboriginal issues began as early as 1910. It was called on to protect the human and civil rights [186]
- Royal Commission that “the constitution be amended so as to give the Federal Government the supreme control of all Aborigines’
- The royal commission gave consideration to these and other submissions on the race power - Its final report referred to the testimony of a great number of witnesses about the need to
give increased attention to Aborigines
- However, the cth declined to recommend it be amended to empower the Cth to make laws with respect to Aborigines
- It recognised that the effect of the treatment on the reputation of Australia furnished a powerful argument for the transfer of control to the Cth, but it considered on the whole states were better equipped
- Lobbying for constitutional change continued and was supported by activists
- Power to legislate over Aborigines was one of the propositions included in the 1944 referendum - The proposal was part of a package of fourteen propositions conducted for extension of Cth
power
- Majority of votes achieve only in SA and WA
- Report of the Joint Committee on Constitutional review 1959 did not address the race power, though recommended the repeal of s 127
- Some concern arising about possible negative implications for Cth power arising out of the express exclusion of Aborgines
- 1967 Harold Holt introduced the Constitution Alteration Bill which proposed the removal of the words
‘other than the Aboriginal race in any State’ from s 51(xxvi) and deletion of s 127 - He referred to the popular impression that the words were discriminatory
- Object of the amendment was to give the Cth power to make special laws for aborigines, which, in cooperation with the states, would secure the widest measure of agreement with respect to Aboriginal advancement
- Proposal passed by 90.8% representing the biggest majority of any referendum
- The debate leading up to the amendment was apparently informed by exclusively beneficial objectives with respect to Aboriginal people
- Mechanism for their achievement was to remove the exclusion expressly relating to aboriginal people so that they would be included in the category the people of any race
- Tension immediately arose between those beneficial objectives and the prominantly negative discrimination envisaged by the drafters of the original provision
Special Laws Deemed Necessary
Scope
- A law which applies equally to people of all races is not a ‘special law’ for the people of any one race → Koowarta
- To determine if it is special, look to form → Tasmania Dams
- It will be in its operation and not necessarily on the face of the act → Tasmania Dams
Meaning of ‘Race’ → Tasmania Dams - Brennan J
- Noted ‘race’ has a biological element, but also social and cultural elements
- The law doesn’t need to be referred to the genetic characteristics, ti can be defined through a cultural or historic belief to bring the law under the race power
- Deane J
- The people of any race are words wide enough to cover Aboriginal people collectively or identifiable racial sub-grounds among Aboroiginal people
- Adopted the current Cth definition for Aboriginal persons as ‘a person of Aboroginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal
community as Aboriginal’
Must the Exercise of the Power be Beneficial?
Before the 1967 Referendum
- Clear the legislation enacted might affect the selected racial group either benignly or adversely - Brennan and Deane JJ in Tasmania Dams → often read as supporting view of Murphy J in Koowarta
that the 1967 referendum did so in such a way that the power can only be used for their benefit - Chu Kheng Lim → Gaudron J remarked Murphy J’s approach “has much to commend it” [56]
For the Benefit of a Race?
- Kruger → Gaudron J found it ”arguable that the power only authorised laws for the benefit of the people of a race for whom it is deemed necessary to make special laws”
- Brennan CJ and Gummow J expressed no opinion on the issue, but permitted the existence of the power permits some kind of differential treatment
- Brennan CJ stressed he was speaking “without attempting to ascertain the operation of these paragraphs”
- Gummow J observed that that the power had permitted detrimental as well as beneficial legislation “at least in its original form” [155]
- Issue arose again in Kartinyeri but remained again unresolved
Further Notes
- A benefit only interpretation confined to Indigenous people would bring its own interpretive difficulties - French has asked whether the issue of benefit is a justiciable one and whether a court can
carry out the “holistic assessment of balancing factors” which might be necessary - It may be difficult to ascribe to such a law a singular character - beneficial or not
- For example, the Native Title Act → the removal of CL defeasibility by executive of legislative
action. However, the other features were adverse to Indigenous property rights and favourable to non-indigenous interests, such as the validation of so called ‘past accounts[
- Wurridjal v Commonwealth (2009) 237 CLR 309
- More recent case that dealt with Aboriginal land issues
- Cth enacted wide ranging measures on the basis conditions in Aboriginal Communities in the NT constituted an emergency
- The intervention included temporary seizure of control over township land owned by Aboriginal groups by way of a compulsory lease in favour of the Cth
- This was unsuccessfully challenged by Aboroginal Plaintiffs
- The case concerned the interpretation and applicability of the ‘just terms’ guarantee for the acquisition of property under s 51(xxxi)
- LIttle mention of the races power and many of the measures introduced have since been maintained
- The diverse reasoning in Kartinyeri means the case is inconclusive as to a benefit-only interpretation - Proposed Amendment
- Recommended the repeal of s 51(xxvi) and replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander people, as well as a new sevction contraining a prohibition of racial discrimination
Koowarta v Bjelke-Peterson (1982) 153 CLR 168 (186-7)
Facts - In the late 1970’s a Cth agency purchased a pastoral property with the intention of transferring it to an Aboriginal group from Far North Queensland, Winychanam people, of whom the plaintiff, John Koowarta, was a member
- The transfer was blocked by the QLD government on the basis of a cabinet
resolution which stated it did not view favorably the proposals to acquire large areas of additional freehold or leasehold land for the development by Aboriginal groups in isolation
- Koowarta sued on the basis that the refusal of consent to the transfer breached s 9 and 12 of the Racial Discimination Act and the QLD government responded by challenging the constitutional validity of that act
- S 9 → made unlawful acts based on race that nullified or impaired the enjoyment of human rights
- S 12 → extended this general prohibition on racial discrmination on dealings with land
- Cth also argued that the Act was valid under s 51(xxvi)
Reasoning - HCA held that the Racial Discmination Act was valid as a law with respect to
‘external affairs’ under s 51(xxix)
- Five judges, with Murphy J dissenting and Mason J not deciding, rejected the argument it was valid under the Race Power
Gibbs CJ
- It would be a mistake to suppose that s 51(xxvi) was included in the Constitution
only for the purpose of enabling the Parliament to make laws for the special protection of people of particular races [186]
- Quick & Garran, Annotated Constitution of the Australian Cth
- By ‘sub-sec xxvi the Federal Parliament will have power to pass special and dismcinationg laws relating to the people of any race’
- Such laws might validly discriminate against, as well as in favour of, the people of a particular race
- Professor Sawyer, ‘The Australian Constitution and the Australian Aborigine’
- S 51(xxvi) was intended to enable the Cth to pass the sort of laws which before 1900 had been passed by many States concerning [many minorities’.
Such laws were designed to “localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came”
- However, it is clear that under s 51(xxvi) in its present form, the Parliament has power to make laws prohibiting discmination against people of the Aboroginal race by reason of their race [186]
- Ss 9 and 12 are not directed to the protection of people of the Aboroginal race - They prohibit discrimination generally on the gorund of race, that is, they protect the
persons of any race from discriminatory action by reason of their race
- It is true in some contexts ‘any’ can be understood as having the effect as ‘all’ but it would be self-contradictory to say that a law which applies to the people of all races is a special law’ [187]
- It is not possible to construed (xxvi) as if it read simply ‘the people of all races’
- Parliament may deem it necessary to make special laws for the people of a particular race, no matter what the race. [187]
- The opinion of Parliament that it is necessary to make a special law need not be evidenced by an express declaration to that effect; it may appear from the law itself [187]
- However, a law which applies equally to the people of all races is not a special law for the people of any one race’
Wilson J
- If the Act can apply with respect to people of any race at all who may happen to be the victims of discrimination on account of their race, then it is not a special law [244]
- It is then a general law directed to the elimination of racial discrimination in the community
- The power in s 51(xxvi) is activated when the Parliament discerns circumstances which in its view give rise to a necessity to make a special law
Principle - Racial Dsicrimination Act protected all races and not any one particular race, and thus was not a ‘special law’ for the ‘people of any race’
- It is clear that under s 51(xxvi) in its present form, the Parliament has power to make laws prohibiting discmination against people of the Aboroginal race by reason of
their race
- However, a law which applies equally to the people of all races is not a special law for the people of any one race’
Commonwealth v Tasmania (Tasmania dams) (1983) 158 CLR 1 (65, 242-5)
Facts - Concerned the validity of the World Heritage Properties Conservation Act
- The cth sought to rely on a wide range of powers in s 51 to prevent the Tasmanian Hydro-Electric Commission from constructing a dam in areas excited, or later to be excised, from National parks
- For ss 6 and 9 of the Act, the Cth claimed legislative power under external affairs and nationhood powers
- For ss 7, 10 under the corporations power - For ss 8 and 11, under the race power
- The subject area was said to be part of the cultural heritage because it contains significant Aboriginal Archeological sites
- It is alleged the former cave was an immensely rich archeological site
- The Commonwealth asserted the proposed inundation would result in the loss and destruction of irreplaceable evidence concerning the occupation and settlement of an entire river system and that the flooding of the sites would destroy their universal cultural and historical value
Reasoning - Mason, Murphy, Brennan and Deane JJ held the use of s 51(xxvi) was valid - Gibbs CJ, Wilson and Dawson JJ dissented
- However, deane J also held that s 11 amounted to an ‘acquisition of property’
without just terms contrary to s 51(xxxi), thus joining Gibb CJ, Wilson and Dawson JJ holding ss 8 and 11 were invalid
Brennan J
- The passing of the RDA manifested the Parliament’s intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws [242]
- Where Parliament seeks to confer a discriminatory benefit on the people of the Aboriginal race, s 51(xxvi) does not place a limitation upon the nature of the benefits which a valid law may confer, and none should be implied [242]
- It is sufficient that the discriminatory benefit is found in the special importance or significance which the people of a race attach to the rights, powers or privileges generally conferred [242]
- Race is not a precise concept [243]
- “The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins”
[244]
- The kinds of benefits that laws might properly confer upon peoples as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. [244]
- Their genetic inheritance is fixed at birth, the historic, religious, spiritual and cultural heritage are acquired and are susceptible to the influences for which a law may provide [244]
- A law which, on its face, does not discriminate in favour of the people of a race, may nevertheless be valid if it discriminates in favour of those people by its operation upon the subject matter to which it relates [244]-[245]
- The characterisation of a law requires that the operation of the law be ascertained by reference to its terms and their application to the circumstances in which the law operates [245]
- “I would not construe par (xxvi) as requiring the law to be ‘special’ on its terms; it suffices that it is special in its operation”
Deane J
- The power conferred by s 51(xxvi) remains a general power to pass laws discriminating against, or benefiting the people of any race [272]
- Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race
- This could be read as consistent with the view in Koowarta that the power may be exercised for or against the interests of the particular race, but also might be read as asserting that contained within the general power to legislate for the benefit or detriment of particular races, since the 1967 there is now a power relating to Aborigines which can only be used for their benefit
- A special law which protects the persons or the property or the activities of Aboriginal people is not only a law with respect to people of the Aboriginal race - The reference to ‘people of any race’ includes all that goes to make up the
personality and identity of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage [276]
- A power to legislate with respect to the people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of particular significance to that spiritual and cultural heritage
Gibbs CJ (dissenting)
- A law will be special if it has some special connection with the people of a race; it will not answer that description if it applies equally to people of all races [110]
- What is more important, members of the Aboriginal race have no special rights or privileges, and no special obligations in relation to a site to which s 11 applies. They have no greater right of access to the site than anyone else, and they are affected by the prohibitions contained in s 11 in the same way as other people [110]
- S 8 and 11 confer no rights and impose no duties on members of the Aboriginal race as such, or on other persons in relation to their dealings with members of the Aboroginal Race. The sections are not a law with respect to people of the Aboriginal race [111]
- If this view were wrong, the validity of the law would depend on whether any of the sites is of particular significance
- That would be a mixed question of law and fact
- The law would not be a special law because the site contained relics and artefacts from prehistoric times → such relics are of significance to all mankind; a law for their protection is not a special law for the people of any one race
Principle - A law which, on its face, does not discriminate in favour of the people of a race, may nevertheless be valid if it discriminates in favour of those people by its operation upon the subject matter to which it relates [244]-[245]
Western Australia v Commonwealth (1995) 183 CLR 373 (460-2)
Facts - Validity of the Native Title Act was upheld under s 51(xxvi)
- IN response to Mabo (No 2) the act provided for the determination of claims of native title, the validation of extinguishments of native title occurring between the RDA, the rules for development on native title land or waters, the Cth criteria for compatible state and territory legislation and the establishment of national standards for extinguishment
- The last point was expressed in s 11 of the Act, which the HCA said protected native title by reducing its defeasibility at common law to unilateral extinguishment or impairment by executive and legislative action
- Challenge by WA to this act, on a number of grounds
- WA had enacted their own legislation in response to Mabo which was much more restrictive of Native Title than the Cth Act
Reasoning Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ
- Races power, unlike the aliens power or the corporations power, is not expressed to be a power to make laws simply with respect to persons of a designated character, it must be deemed necessary that special laws be made for the people of any race [460]
- If the requirement that a law under the power be special were held to evoke a judicial evaluation of the needs of the people or of threats and problems confronting them to determine whether the law was necessary, this would require the court to form a political judgment [460]
- That judgement is for parliament
- The removal of the common law general defeasibility of native title is sufficient to demonstrate parliament could properly have deemed the act
‘necessary
- Special qualifies law → it does not relate to necessity
- The special quality of a law must be ascertained by reference to its
differential operation upon the people of a particular race, not by reference
to the circumstances which led the Parliament to deem it necessary to enact the law [460]-[461]
- A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race [461]
- The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race [461]
- On that basis, the Native Title Act is ‘special’ in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title a benefit protective of their native title
- Emphatic that a law may be special, even when it confers a benefit generally, provided the benefit is of special significance to the people of a particular race
- This perhaps calls into question the swift dismissal of the plaintiff’s argument about racial discirmination in Koowarta, based on the racers power, and the persuasiveness of Brennan J’s attempt in Tasmanian Dams to distinguish the legislation in Koowarta
Principle - Necessity
- It is a question for Parliament to decide whether a law is necessary, expressing reticence about making a political value judgment about the needs of a race
- Special
- Means whether the law has a differential operation upon the people of a particular race, ie, whether it confers a right to benefit or imposes an obligation or disadvantage
- A law might be special even if the benefit is general to all race, BUT if it has special significance or importance to a particular race it will be enough for it to be special
Kartinyeri v Commonwealth (1998) 195 CLR 337 (361-381)
Facts - Hindmarsh Island, situated in the Murray River delta in SA had traditionally bene connected to the mainland only by a cable drawn ferry
- During the 1980’s, there was a steady development of the island foreshores of marina berths and supporting commercial services
- In 1989, a condition of planning approval for a further marina development proposed the island be linked to the mainland by a bridge, constructed by a private company but vested in the local council
- The development was opposed on environmental grounds, and also on Aboriginal heritage grounds, since the island and channel area which it was located was part of the traditional home of the Ngarrindjeri people
- The Minister for Aboriginal and Torres Strait Islander affairs was asked to exercise his powers under the Aboroginal and Torres Strait Islander Heritage Protection Act,
which empowers him to make emergency and other declarations for an in relation to the protection and preservation of significant aboriginal areas
- He was informed the island was used for women’s business, and it could not be disclosed to the men, nor to other men
- On that basis he made a declaration under s 9 of the Act and appointed Cheryl Saunders to report to him under s 10 of the Act to enable him to consider whether to make a declaration
- She was given extensive evidence of the alleged womens business which she collected and presented in sealed envelopes
- Some witnesses, including Ngarrindjeri women claimed it was fabricated - Both the declaration and report were quashed aushed in the federal court - Held the submissions had not adequately identified the affected area or issues for
purposes of the declaration and the minister had not discharged his statutory duties - Royal Commission by SA → declared it had been fabricated
- Further procedural issues arose
- This included changing of minister's, and witnesses withdrawing claims because the new minister was to review the submissions himself - Hindmarsh Island Bridge Act was enacted to preclude the possibility of further
proceedings, the only substantive provision was s 4
- It was intended to preclude possible claims there was significance to the women
- The Cth argued there are no limits to the power so long as the law affixes a consequence based on race
Reasoning - Challenge failed by 5:1, Kirby J dissenting (Callinan J recused himself)
Kirby J (dissenting)
- “Once the true scope of the legislative powers conferred by s 51 is perceived, it is clear that the power which supports a valid Act supports an Act repealing it” [356]
- The 1984 Act was valid, hence it followed a later modification of its operation must also be valid
- They said they did not need to address the scope of the power
- They “thought it not only unnecessary but misleading to do so” since the issue could arise if one of two false assumptions were made [358]
- Either that the power to make a law does not extend to its repeal - Or that a repealing act may not possess the same character as the law
repealed
- Also relied on the interpretive principle, namely that in cases of ambiguity the constitution, like statutory enactments, should be construed in accordance with the international law, and particularly with international norms declaratory of human rights
- Kirby accepted that the race power could only be used for the benefit of a race
Other Judges
- Did address the scope of the races power
- P’s had argued the people of any race require the legislation for all people of the relevant race, so the power could not be used to single out some Aboriginal people from others
- Rejected, holding it can support a law with respect to the sub groups of a particular race
- Plaintiff’s had argued the power is confined to laws which benefit the people of the relevant race
- The court did not settle this issue
- Gummow and Hayne JJ → held the power could be used to withdraw a statutory benefit granted to Aboriginal people
- Gaudron J → she found it impossible to assign to s 51(xxvi) a differential operation for Aboriginal peoples, as compared with its operation for peoples of other races.
- Focused on the requirement a racially discriminative law must be deemed necessary and held that although the court could not pre- empt this judgment of necessity, it could determine whether such a judgment was ‘reasonable’
- The justiciable question she identified was whether discriminatory enactment was ‘appropriate and adapted to a relevant difference’
Gaudron J
- Whatever the international standards and community values in 1967 and whatever the intention of those voting in the 1967 referendum, the bare deletion of an exception or limitation on power is not, in my view, capable of effecting a curtailment of power. [363]
- On the contrary, the consequence of an amendment of that kind is to augment power.
- There a two matters with respect to s 51(xxvi) which are beyond controversy [363]
- The debates of the conventions reveal an understanding it would authorise laws which discriminated against people
- The second is it does not simply confer power to legislate with respect to people of any race. It confers power to legislate with respect to the people of any race for whom it is deemed necessary to make special laws
- No doubt the Parliament might legislate in any way it chooses so long as the question differentiated in some way with respect to the people of a particular race - The criterion for an exercise of power under the power is that it be deemed
necessary - not expedient or appropriate [365]
- Clearly, it is for the Parliament to deem it necessary to make a law of that kind [365]
- To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or in their circumstance
- Once it is accepted that the power conferred may only be exercised if there is some material upon which the Parliament might reasonably form a judgment that there is a difference necessitating some special legislative measure, two things follow: [365]
- The section does not authorise special laws affecting rights and
obligations in areas in which there is no relevant difference between the people of the race and people of other races [366]
- There must be some matter or circumstances upon which the parliament might reasonably form the judgment that there is some different which necessitates some special law, which must be capable of being
appropriate and adapted to the circumstance [366]
- Although the power is wide enough to authorise laws which operate either to advantage or disadvantage people, it is difficult to conceive of circumstances in which a law presently operating to the disadvantage would be valid [367]
- Prima facie, the circumstances which presently pertain to Aboriginal Australian’s are circumstances of serious disadvantage, which
disadvantages include their material circumstances and vulnerability of their culture
- And prima facie, at least, only laws directed to remedying their
disadvantage could reasonably viewed as appropriate and adapted to their different circumstances
- Notwithstanding that it would be difficult to enact a valid disadvantageous law, it could still be validity enacted under the section [367]-[368]
- The test is not whether it is a beneficial law, rather whether the law in question is reasonably capable of being viewed as appropriate and adapted to the real and relevant difference which parliament might reasonably judge to exist.
Hayne and Gummow JJ
- A law will only be deemed valid if it (i) is deemed necessary (ii) that special laws (iii) be made for the people of any race [378]
- Deemed necessary is for the parliament
- Nevertheless, it may be that the character of a law based on the power will be denied to a law enacted in manifest abuse of that power of judgment - The requirement the Bridge Act be ‘special’ does not relate to the matter of
necessity [379]
- The presence of the special quality is to be “ascertained by reference to its differential operation upon the people of a particular race”
- Differential operation is that which gives to any law based on the power its character as a special law
- Once it is accepted, as it has been, a law may make provision for some only of a particular race, it follows a valid law may operate differentially between members of that race
- The Bridge act imposes a disadvantage, which is supported by s 51(xxvi)
- As a matter of construction, the legislative intention to interfere with a fundamental common law right, freedom and immunities must be clearly manifested by
unmistakable and unambiguous language [381]
- Courts exercising judicial power determine whether the legislature and executive act within their constitutional powers [381]
- The occasion has yet to arise for consideration of all that may follow from Dixon J’s statement in Communist Party Case “is an instrument framed in accordance with any traditional conceptions, to some of which it gives effect, as, for example, separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption”
Principle - Two requirements of s 51(xxvi) per Gaudron J
- The section does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race and people of other races [366]
- There must be some matter or circumstances upon which the parliament might reasonably form the judgment that there is some different which necessitates some special law, which must be capable of being appropriate and adapted to the circumstance [366]
- Still quite undecided on advantageous/disadvantageous distinction