Table of Contents
Interpretation, Legalism, and Engineers ... 3-9 Characterisation ... 10-14 External Affairs ... 15-23 The Defence Power ... 24-28 Trade and Commerce Power ... 29-32 Corporations Power ... 33-39 Taxation and Grants Powers ... 40-46 Races Power ... 47-49 Inconsistency ... 50-57 Federal Compact – Melbourne Corporation Principle ... 58-62 Freedom of Interstate Trade and Commerce ... 63-67 Freedom of Political Communication A ... 68-71 Freedom of Political Communication B ... 71-75 Judicial Power and Detention A ... 76-80 Judicial Power and Detention B ... 80-88 Revision Class ... 89-9
Characterisation
What is
characterisation?
• Two intersecting conceptual fields:
– The scope of the power (what type of legislation does the Constitution empower the Cth Parliament to pass?) and the subject-matter of the law (what is the law about?)
– Defining scope of power is matter of constitutional interpretation; ascertaining subject-matter of law is what is properly called characterisation
• The characterisation process:
– Judicial prudence (‘one case at a time’) counsels against broad statement of scope of power
– Court does not, for example, set out in one decision to give a comprehensive definition of what kinds of
corporation fall within s 51(xx). As it said in Work Choices (2006) at 75: ‘Any debate about those questions must await a case in which they properly arise.’
– Rather, Court begins by ascertaining character of law and then decides whether the law thus characterised is within power
– This approach results in case-by-case development of scope of various heads of power, and allows for adjustment in conceptual understanding of the scope of Cth’s powers over time
– Once the Court decides that the impugned Cth law is within power, the law will be valid unless it is contrary to an express or implied prohibition elsewhere in Constitution (e.g. s 92)
– A valid Cth law will override a valid State law that is inconsistent with it (s 109) The general
approach
• General approach to interpreting heads of power is to give each head a broad meaning compatible with notion that Constitution is meant to endure over time (Engineers; R v Public Vehicles Licensing Appeal Tribunal; Jumbunna Coal)
• Illustration from Bank of NSW v Cth (Bank Nationalisation case) (1948) 76 CLR 1:
– Was a law that effectively closed down private banks a law within banking power in s 51(xiii)?
– Latham CJ in High Court rejects usefulness of ‘pith and substance’ test
– Makes more sense in original Canadian context where powers of federal and state parliaments both enumerated – less helpful where only federal parliament’s powers enumerated, as in Australia
– Majority finds portions of Banking Act 1947 invalid, not for falling outside banking power, but for violating duty not to acquire property except on just terms (s 51(xxxi)) and for violation of s 92
– Dixon J’s judgment foreshadows modern approach: citing Jumbunna Coal, holds that Court should ‘lean to the broader interpretation’ of a particular head of power unless the context or the Constitution suggests otherwise (at 332)
Corporations Power
Corporations power: the early approach
• First sixty years, corporations power jurisprudence dominated by decision in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330:
– Challenge to ss 5 and 8 of the Australian Industries Preservation Act 1906 (Cth)
– Provisions prohibited foreign corporations and trading or financial corporations formed within the limits of the Cth (‘constitutional corporations’) from engaging in certain restrictive trade practices
– Provisions unremarkable, except that there was no obvious head of power that allowed Cth to regulate domestic (i.e. intrastate) activities of corporations in this way
– Company and manager fined for refusing to answer questions relating to suspected offences – Constitutional validity of fines challenged under s 51(xx)
– Four-judge majority decided that corporations power should be narrowly construed in context of federal
Constitution that left regulation of intrastate trade to States, and therefore that challenged provisions were invalid – Three of majority judges (Griffith CJ and Barton and O’Connor JJ) decided case on basis of reserved State powers
doctrine
– Higgins J, supporting majority, decided case consequentially, on basis of list of ‘horribles’
– Isaacs J dissented on grounds that key to understanding this head of power is two questions: (1) What types of corporation may be regulated under this power? (2) What activities of corporations may be regulated?
The start of the new approach
• Huddart Parker eventually overruled in Concrete Pipes case (1971):
– Challenge to s 35 and ss 41-43 of Trade Practices Act 1965 (Cth)
– Provisions required all corporations (i.e. not just trading and financial corporations) to provide particulars of anti- competitive agreements to Cth Commissioner of Trade Practices
– Rocla Concrete Pipes Ltd charged under Act for entering into anti-competitive agreement w.r.t. concrete pipe manufacture, even though its trading activities were restricted to Queensland
– So case raised squarely question whether Cth could regulate intrastate trading activities of trading corporations – Unanimous High Court overruled Huddart Parker as being incorrectly decided on basis of defunct reserved State
powers doctrine
– But declared challenged provisions invalid on different ground, i.e. that Trade Practices Act was not restricted, as it should have been, to constitutional corporations
– Case is nevertheless start of new approach to corporations power because clear that Cth could henceforth regulate all trading activities of trading corporations
Topic 19：Revision Class B
Comparing limits on power
Section 92 (all laws) Section 116 (Cth laws only)
IFPC (all laws) Chu Kheng Lim (Cth laws only)
Burden? Law must burden interstate trade and commerce as a threshold to this inquiry. If no burden, inquiry ends. If burden, continue to next stage.
There must be a burden on the free exercise of religion, but this is not really seen as a separate stage but rather as part of inquiry into whether the law is ‘for’ prohibiting the free exercise of religion.
Law must burden implied freedom of political
communication in its terms, operation or effect. If so, move to next stage. If not, inquiry ends.
Equivalent idea here is to ascertain whether law provides for detention without order of Ch III Court made after adjudication of criminal guilt. If so, move to next stage. If not, inquiry ends.
.
Legitimate purpose?
Purpose of law must not be to confer unfair competitive advantage on intrastate trade (discriminatory protectionism). If so, law is invalid. If not, but its effect is to confer such an
advantage, proceed to justification stage.
Law must not be ‘for’ the prohibition of the free exercise of religion. If it does have such a purpose, law is invalid. If it does not have such a purpose, inquiry ends (except on Gaudron J’s approach in Kruger).
This is conceived as a compatibility test: i.e.
compatibility of ends with constitutionally prescribed system of representative and responsible government.
Purpose of law must not be punitive. If it is punitive, the law is invalid for violation of Ch III. If the purpose is not punitive, inquiry ends on McHugh J’s approach, but continues to justification stage on Gummow J’s approach.
Justification? Proportionality test to justify a law that has a legitimate purpose but a discriminatory protectionist effect. If purpose is discriminatory
protectionism, can’t be justified as justification stage assumes existence of a legitimate purpose.
No such stage except possibly on Gaudron J’s approach in Kruger.
Three-stage proportionality test as set out in McCloy:
suitable, necessary and adequate in its balance.
Suitability is about means-end rationality, necessity about availability of alternative means, and ‘adequate in its balance’ amounts to a test for strict proportionality.
No such stage on McHugh J’s
approach. On Gummow J’s approach, a law that provides for executive
detention must be reasonably necessary to give effect its non-punitive purpose.
It is invalid once it is shown to be disproportional to that purpose.
