Table&of&Contents&
SUMMARY:& 4!
INTERPRETATION,&LEGALISM&AND&ENGINEERS& 5!
Pre$Engineers:& 5!
Implied!immunities!doctrine:! 5!
Reserved!state!powers:! 5!
Methods&of&interpretation:& 5!
Legalism:! 6!
Discussion!of!Engineers:! 9!
The!Jumbunna!principle:! 9!
CHARACTERISATION& 10!
Constitutional&interpretation:& 10!
General!approach:! 10!
Dual!characterization:! 11!
Interaction!between!heads!of!power:! 13!
Characterisation:& 14!
Subject!matter!powers:! 15!
Purpose!powers!(defence!and!treaty!implementation):! 17!
Reflections&on&characterisation& 17!
Essay&plan:& 18!
EXTERNAL&AFFAIRS&POWER& 19!
Relations&with&other&countries:& 19!
Matters&geographically&external&to&Australia& 20!
Implementation&of&treaties& 22!
Reflections&on&the&external&affairs&power:& 26!
Essay&plan:& 27!
DEFENCE&POWER& 27!
War& 28!
Post$war& 30!
Peace& 30!
Cold&war&(The*Communist*Party*Case)& 31!
Terrorism&and&national&security& 34!
Reflections&on&the&defence&power:& 35!
Essay&plan:& 36!
TRADE&AND&COMMERCE&POWER& 36!
Trade&and&commerce:& 37!
Core!aspect:! 37!
Incidental!aspect:! 38!
‘With&other&countries&and&among&states’:& 39!
Core!aspect:! 39!
Incidental!aspect!(intrastate):! 40!
Reflections&on&the&trade&and&commerce&power:& 42!
CORPORATIONS&POWER& 42!
Scope&of&the&corporations&power:& 43!
Which!corporations!come!under!s!51(xx)?! 43!
What!aspects/activities!of!these!corporations!come!under!s!51(xx)?! 44!
Application&cases:& 45!
Reflections&on&the&corporations&power:& 50!
TAXATION&POWER& 50!
Background&of&the&Cth&tax&system:& 51!
What&is&a&tax?& 52!
Exaction!by!a!public!authority!for!a!public!purpose:! 53!
Fee!for!services:! 55!
Reflections&on&the&tax&power:& 57!
GRANTS&POWER& 57!
General&theme&–&the&promotion&of&Cth&power&at&the&expense&of&state&power& 58!
The&early&cases:& 58!
The&uniform&tax&cases:& 59!
Limits&on&the&power:& 61!
Reflections&on&the&grants&power:& 62!
RACES&POWER& 62!
History&of&the&race&power:& 63!
‘Special&laws’&deemed&‘necessary’&for&people&of&any&race:& 64!
Native&title?& 65!
‘For&the&benefit&of&any&race’:& 65!
Reflections&on&the&race&power:& 67!
FEDERAL&COMPACT& 67!
Historical&context:& 67!
How&implied& 68!
TwoTstatements:! 69!
One!statement!(authoritative):! 72!
Reflections&on&the&federal&compact:& 76!
S&92& 76!
History&of&s&92:& 77!
Framers’!intention!preT1901:! 77!
HCA’s!interpretation!postT1901:! 78!
Application&cases:& 78!
Reflections&on&s&92:& 83!
IMPLIED&FREEDOM&OF&POLITICAL&COMMUNICATION& 83!
How&implied:& 84!
Development&of&IFPC:& 84!
Development!of!the!IFPC!test:! 85!
Application&cases:& 85!
Reflections&on&the&IFPC:& 92!
Essay&plans:& 93!
JUDICIAL&POWER&AND&DETENTION& 95!
Judicial&Power:& 95!
The!Boilermakers!limitation!(federal!level):! 96!
The!Kable2limitation:! 96!
Judicial&Detention:& 101!
The!Kable!principle2(state!detention):! 101!
The!Chu2Keng2Lim!principle!(federal!detention):! 101!
INCONSISTENCY& 105!
Direct&inconsistency:& 106!
The!‘simultaneous!obedience!test:! 106!
The!‘conferral!of!rights’!test:! 106!
Indirect&inconsistency:& 107!
The!‘cover!the!field’!test:! 107!
Overlap&of&tests:& 108!
Operational&inconsistency:& 110!
Reflections&on&inconsistency:& 111!
SUMMARY:
Commonwealth State
First enquiry: is the POWER to pass the law?
Enumerated heads of power – characterisation of laws:
•! External affairs power – s 51(xxix)
•! Trade and commerce power – s 5(i)
•! Corporations power – s 51(xx)
•! Races power – s 51(xxvi)
•! Defence power – s 51(vi)
•! Taxation power – s 51(ii)
o! *Note: the taxation power has internal/specific limitations
•! Grants power – s 96
Plenary power – no characterisation required:
•! s 5 of the Constitution Act 1902 (NSW)
•! ss 106-7 of the Constitution (saving provisions)
Second enquiry: does the law breach any constitutional PROHIBITION?
Implied immunities: Cth’s ability to bind the state (Melbourne Corporation Principle)
s 92 of the Constitution
Freedom of interstate trade and commerce Implied freedom of political communication
Boilermakers’ limitation and detention Kable limitation and detention
s 109 – state laws inoperative to the extent of inconsistency with federal laws (rationale for having this at the end of the inquiry is because there must be two valid laws prior to this step).
INTERPRETATION, LEGALISM AND ENGINEERS
Pre-Engineers:
-! In the recent years, the approach to reading Cth constitutional powers has shifted to being expansive and broadly, as evidenced by The Engineers Case, but this was not how it had historically been. Two doctrines were thought to protect the states from Cth interference:
o! Implied immunities doctrine (implied immunity of instrumentalities) o! Reserved state powers (arising from s 107 of the C*)
Implied immunities doctrine:
-! The implied intergovernmental immunities doctrine asserted that state and federal governments are immune from each other’s laws. They are two separate entities who operate within the ambit of their own authorities.
o! D’Emden v Pedder (1904) held that state law and procedures could not apply to Cth officers.
!! Cth legislation therefore does not bind State government officials and vice versa unless expressly provided for in Constitution or necessarily implied
!! “When a state attempts to give its legislative and executive authority an operation which would fetter, control or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is invalid and inoperative”.
o! Deakin v Webb (1904) which found that a Cth cabinet minister was not liable to State income tax.
o! The Railways Servants Case (1906) held that state agencies were immune from Cth laws.
-! This was primarily because reciprocal immunity was thought to be ‘necessarily implied’ in the very idea of federalism.
Reserved state powers:
-! It had been held that powers not within s 51 of the C* were ‘reserved’ for the State for their control.
o! The grant of law making was narrowly construed, with the remainder afforded to the states.
o! s 107 of the C* protects state reserved powers which was held to indicate that laws not expressly mentioned in the C* continue as part of the State’s powers.
-! For example, the Cth had no power to enact legislation regulating intrastate trade practices as it does not fall within s 51(xx) of the C*. Huddart Parker v Moorehead.
R v Barger (1908) 6 CLR 41
Facts s 2 of the Excise Tariff Act 1906 (Cth) imposed excise duties at scheduled rates on various agricultural implements. The section provided that the excise did not apply to goods
manufactured under conditions where the remuneration of labour was ‘declared by resolution of both houses of parliament to be fair and reasonable’.
Issue Whether s 2 was a law with respect to taxation under s 51(ii) or with respect to labour (which is under the state’s jurisdiction)
Decision By 3:2 (Isaacs and Higgins JJ dissenting) s 2 could not be supported by s 51(ii).
Held Griffith, Barton, O’Connor JJ:
•! Power to pass such an Act is vested either in the Parliament or in the State legislatures.
•! The exclusive power of the Parliament to impose duties of Excise cannot be construed as depriving the States of the exclusive power to make such enactments as we have
suggested above.
Methods of interpretation:
-! Textualism:
o! Can mean textual originalism or literalism.
o! Textual originalism: the interpreter begins by an inspection of the language for ‘the intention expressed in the statute itself’ with reference to ‘how the words would have been understood by literate and informed persons at the time of their utterance and publication’.
o! Literalism: encompasses many different degrees of literalism:
!! Strict literalism: where the words are examined in ‘the context of the C* as a whole and nothing more’
!! A version where searches for meaning outside the text by reference to the wider history of the provision is allowed in ‘very limited occasions’.
o! Disadvantage: this approach has never truly been advocated as it cannot apply to conditions and circumstances that could not have been foreseen by its authors. Sir Anthony Mason.
o! Currently, it is not used as a singular approach/an approach in and of itself. It is instead often used as the first step in the legalistic approach.
-! Legalism
o! Looks at the text (textual originalism), context and legal history.
o! Using legal documents, not politics or policies, to allow the meaning to shine through.
o! Refer below – has been adopted and affirmed in Engineers.
-! Originalism
o! Originalism places emphasis on the original meaning of the C*’s words. This can either be the original public meaning (textual originalism) or the original subjective meaning
(intentional originalism).
o! Out of these two originalist methods, textual originalism is preferred in Australia.
-! Purposive
o! Looks to fulfil the aim for which the law was originally created.
!! Placed emphasis on the objective purpose of the legislation in constitutional interpretation.
!! By fulfilling the purpose, it can then guide human behaviour over periods of social change, respond to modern needs and guide future development of the law.
!! Takes into account historical and contemporary contexts.
o! Advantage:
!! Highly adaptable to the changing needs of society.
o! Disadvantage:
!! Could create inconsistencies in the our c*al system as decisions made in a later point in time may be different to when it was first made.
!! Can be difficult to ascertain what community values are acceptable in each relevant context.
-! Preferred approach?
o! Currently, legalism is the dominant approach.
o! However, personally, may find that the legalist approach combined with purposive interpretation may be the most appropriate. This allows the C* to be interpreted with
consistency through objective measures given through legalism. However, it also allows the C* to be responsive to future generations and values.
o! Interpretative method is particularly important in the Australian c*al system as c*al questions have wide repercussions on government decision-making, power and individual rights. And there is no other method for protecting individual rights given our absence of a c*ally entrenched Bill of Rights.
Legalism:
-! Legalism is the dominant approach to interpretation in the HCA as reaffirmed by Dixon J when he was sworn in and in Engineers.
o! This overthrew the ‘implied immunities’ doctrine and the reserved state powers doctrine that was previously preferred by Griffith CJ as these were taken extraneously from the C*.
-! Dangers of judicial review that is too heavy-handed:
o! Judicial activism: judicial members are not elected and they should not be able to impose their personal views through the bench.
o! The judiciary is not equipped to make political decisions, only legal decisions.
o! May overstep the boundaries and infringe the separation of powers.
!! Legalism: judges need to adhere to the law and the text of the law. Strict interpretation of the law maintains public confidence. Perhaps, our c*al system requires legalism to maintain public confidence.
!! Realism: the strict boundary is a fiction anyway. Judges ultimately make a choice that reflects their own values and their surrounding circumstances regardless. Mason J.
Swearing in of Sir Owen Dixon as Chief Justice
•! Federalism casts a responsibility on the court to decide whether legislation is within the boundaries of allotted powers.
•! Marked the point from which the HCA’s institutional legitimacy came to be conclusively associated in the public mind with adherence to a ‘strict and complete’ legalism (which Dixon claimed to be the best guide to judicial decision-making)
o! There have been repeated attempts to break the stronghold of legalism over Australian constitutional culture, but this ideology still exerts a strong influence.
Retirement of Sir Garfield Barwick as Chief Justice
•! The Court’s talk is to say what the words mean. There is no room for the Court to change the Constitution.
•! The Court is not advancing Cth power, but is only making it plain.
•! Rejects of the majority in Engineers. The words are to speak for themselves (pure literalist approach) Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 Facts Arose from a claim by a union of Engineers in the Cth Court of Conciliation and Arbitration
for an award relating to 843 employers across Australia. In WA, the employers included 3 governmental employers.
Issue Whether a Cth law made under ‘conciliation and arbitration’ power (s 51(xxxv)) of the C*
could authorise the making of an award binding those three employers.
Decision The Cth has power under s 51(xxxv) to make laws binding on the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond limits of any one State. The exercise in this case fell within the power, based on the plain/literal meaning of the part.
Held •! Overturned two constitutional implications that were applied to the original bench to limit the Cth powers:
o! The implied immunity of instrumentalism o! Reserved State powers
•! The doctrine of ‘implied prohibition’ finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their express or necessarily implied meaning.
•! Overturned many historical cases, but reaffirmed the decision of D’Emder but through reliance on s 109 of the C*.
Knox CJ, Isaacs, Rich and Starke JJ:
•! Rejected the previous doctrines that limited the scope of Cth legislative power.
o! Found that it was lacking in principle, and not based on the text of the C* but rather draws implications based on the personal opinions of judges.
•! Insisted that ‘the one clear line of judicial inquiry as to the meaning of the C* must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law and the statute law that preceded it’.
