LAWS2011:
FEDERAL CONSTITUTIONAL LAW
S1 2016
1. Introduction and Constitutional Interpretation Principles 1
Federalism 1
Interpretation of Commonwealth Powers 1
Principles of Constitutional Interpretation 1
Purposive/Non-purposive Power 2
Characterisation (of Legislation) 3
Constitutional Limitations 3
Implied incidental power 3
Severance / Reading down 4
Steps for Problem Question 4
2. Trade and Commerce Power 5
Meaning of ‘trade’ and ‘commerce’ and s 51(i) Constitution 5
Scope of laws made under the trade and commerce power 5
Extension and restriction of the scope of s 51(i) power 6
United States Commerce Clause 10
3. Inconsistency 12
Direct and Indirect Inconsistency 12
Cover the field test 13
Implications of Inconsistency 16
Operational Inconsistency 16
4. External Affairs Power 17
Geographical Externality 17
Matters of International Concern 17
Implementation of Treaties and Conventions 17
5. Corporations Power 20
Evolution to Work Choices 20
Scope of the Corporations Power 20
Holding or Subsidiary Companies 21
6. Freedom of Interstate Commerce 22
Evolutionary Interpretation of s 92 Constitution 22
Current test of ‘discriminatory protectionism’ 22
Application of s 92 to wagering activities on the Internet 24
7. Excise and Taxation Power 25
Excise Power 25
Taxation Power 25
What is a tax? 26
Laws with respect to taxation: s 51(ii) issue 27
Limitations on the tax power: discrimination and preference 27
8. Grants Power 28
Types of Grants 28
Scope of the s 96 Power 28
‘Schemes’ and Circuitous Devices 29
9. Defence Power 30
Nature and Characteristics of the Defence Power 30
Anti-Terrorism and National Security 31
Doctrine from the Communist Party Case 31
10. Implied Freedom of Political Communication 33
Scope of the implication 33
Current test: McCloy 34
11. Intergovernmental Immunities 35
Melbourne Corporation Principle 35
3. Inconsistency
Issues of inconsistency arise in Australia’s constitutional system as a consequence to the sharing of legislative powers between the Commonwealth and the states. s109 Constitution addresses these issues s 109 Constitution: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (s122 for territories)
• s109 only operates if both the Cth and State law are valid and operative. Therefore, unless clear on the facts, any inconsistency issue begins with determining the validity of the laws
• Where the head of power is an exclusive power, only the Cth may legislate: Worthing
• Federalism confirms the legislative supremacy of the Federal over State: Engineers Case
• “law”
• Refers to State or Federal Acts, statutory rules and regulations made by delegated legislative power (subordinate or delegated legislation, regulations, awards of industrial arbitral bodies)
• Does not refer to Common law - automatically abrogated by statute
• “invalid”
• inoperative; cannot create or affect legal rights and obligations. But the law is not repealed nor made unconstitutional or ultra vires
• If the Cth law is repealed or amended so that the inconsistency is removed, the relevant provisions of the state act revives
• “to the extent of the consistency”
• only part of the state law which is inconsistent with the Cth law is invalid. Principles of reading down/severance apply; in the context of making the relevant state law inoperative
Direct and Indirect Inconsistency
Inconsistency can be either direct and/or indirect. Forms recognised by HC so far; not necessarily exhaustive
1. Direct inconsistency (can arise in two ways)
a) Impossibility of obedience (“simultaneous obedience” test)
• Where simultaneous obedience to two laws is impossible: Ex parte Daniell 1920 (referendum/
senate election case)
• If there is a way to obey one of the laws, it is NOT an impossibility of obedience.
ii) In Daniell, if voting at the state level was optional, would not satisfy this category
iii) In Cowburn, state law stipulated lower hour working week than Cth law. No impossibility of obedience because Cth law did not mandate full wages only if 48 hour week is worked.
Therefore, employer could obey both laws by paying full wages for 44 hours of work iv) In Bradley Bros, no impossibility of obedience because Cth award did not require
employment of women on milling machines, merely conferred a right. Employer can obey both laws by only employing men
b) Denial of rights (“conferred rights” test)
• Where one law removes, alters or detracts from a right, immunity or privilege conferred by another law
• Irrelevant which law takes away the right, state law always rendered invalid as per s109: [as in the case from the employer’s perspective (diminished right to expect 48hrs of work) – Cowburn]
• In Bradley Bros, Cth award stated females could work in industries covered by award, including milling machines. NSW Act took away this right by making it an offence to employ females on milling machines.
Page of 12 35
2. Indirect inconsistency (covering the field)
• Where the Cth has legislated in a field with the intention of exhaustively covering that field, either expressly or impliedly, any state legislation that enters that field is inconsistent: Cowburn
Cover the field test
The test of indirect inconsistency was first formulated by Isaac J in determining inconsistency in the context of federal awards in Cowburn at 489-490 and further developed by Dixon J in Ex parte McLean. It requires implementation of the following three steps:
1. Finding of the ‘field’ or subject matter regulated by the Cth Act a) Depends on the characterisation of the respective laws
• The characterisation process is a general constitutional law issue not confined to s109
• HC generally prefers to examine only the law’s direct legal operation through its textual terms and provisions to ascertain what rights, duties and obligations are created
• However, especially where State legislation and ss 90 and 92 Constitution are involved, HC may look at the legislation’s practical effect
• The wider the definition of the Cth field, the more restrictive it will be wrt. state laws b) Examples from Case law
• No HC guidance on whether to adopt a liberal/narrow interpretation of Cth field. Enables enormous judicial discretion; maximum scope for advocacy
• O’Sullivan:
• Cth legislation set out licensing regime for slaughter houses for export to maintain hygiene and quality. State set up licensing regime, focused on ‘fit and proper’ persons and suitable location of abattoirs
• Fullagar J: Cth and State laws regulated the same subject matter – use of premises for slaughtering stock for export; the Cth Act intended to cover that field impliedly; the State Act attempted to enter that field; therefore, laws was inconsistent and State Act was invalid as per s109.
• However, McTiernan, Webb and Taylor JJ interpreted regulation as requiring registration of premises as a condition of export permit grant, not as regulating the slaughter of meat;
therefore, in dissent, held no inconsistency as laws are regulating different matters.
• Similarly, could argue Cth law regulated hygiene and quality and state law legislated for appropriate person and location; therefore, no inconsistency as again, different fields
• Wardley (Stephen J):
• Found no question of inconsistency to arise in this case because the Cth and State law regulated different subject matters
• Agreements (Cth award) are narrowly confined to employment relationships between the parties in a particular industry, and does not advert itself to general social policy questions the subject of state legislation
• The two laws should be “construed in the limited context of the respective Acts” (Collins 1957) – if you can show qualitative difference b/w Cth award and state act, likely State law operates in different field; can operate together, therefore no inconsistency
2. Determination from the Cth Act an intention to exhaustively or completely cover the field (O’Sullivan, Fullagar J, 592)
a) Express Intention to cover the field
• Inclusion in the act of a clause expressly excluding the operation of state legislation i) “The provisions … shall apply to the exclusion of any provisions … made or filed
before or after the commencement of this section” Wenn’s case
ii) “A license is authorised … in spite of a law of the State of NSW” Botany Municipal Council
iii) “Native Title is not able to be extinguished contrary to this Act” – Native Title Case Page of 13 35
