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LAWS2150 Final Notes
PROBLEM NOTES ... 1
RACES POWER ... 1
TAXATION POWER ... 3
GRANTS POWER ... 6
INCONSISTENCY OF LAWS ... 7
THE FEDERAL COMPACT: MELB CORPS ... 9
FREEDOM OF INTERSTATE T&C ... 11
TRIAL BY JURY ... 13
FREEDOM OF RELIGION... 14
IMPLIED FREEDOM OF POLITICAL COMMS .... 16
JUDICIAL POWER AND DETENTION ... 18
EXTERNAL AFFAIRS POWER ... 21
TRADE AND COMMERCE POWER ... 23
CORPORATIONS POWER ... 25
ESSAY NOTES ... 31
FUNDAMENTALS OF CONSTITUTIONAL LAW . 34 Implied Immunity of Instrumentalities and Reserved State Powers Doctrine ... 34
Engineer’s Case ... 36
CONSTITUTIONAL INTERPRETATION ... 38
Doctrine of Precedent ... 38
The Jumbunna Principle ... 41
Judicial Reasoning ... 42
Approaches to Interpretation ... 46
CORPORATIONS POWER ... 57
Scope ... 57
Work Choices (Reasoning and Criticism) .... 60
RACES POWER ... 63
Races Case Summaries ... 65
TAXATION POWER ... 69
Tax Case Summaries ... 70
GRANTS POWER ... 74
Grants Case Summaries ... 77
INCONSISTENCY OF LAWS ... 78
TRIAL BY JURY ... 83
Trial by Jury Case Summaries ... 86
FREEDOM OF RELIGION... 88
Freedom of Religion Case Summaries ... 90
FREEDOM OF INTERSTATE T&C ... 92
Interstate T&C Case Summaries ... 94
IMPLIED FREEDOM OF POLITICAL COMMUNICATION ... 98
Implied Freedom Case Summaries ... 100
JUDICIAL POWER AND DETENTION ... 115
KEY CONSTITUTIONAL PRINCIPLES ... 125
The Federal Balance ... 125
The Federal Compact ... 126
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PROBLEM NOTES
RACES POWER
s 51(xxvi) gives the Commonwealth the power to make laws with respect to ‘the people of any race, for whom it is deemed necessary to make special laws’.
1. Characterisation
a. Characterisation of the act is to be done with reference to the rights, powers, liabilities, duties and privileges (Grain Pool, Bank Nationalisation)
b. This is done by considering legal and practical operation of the act (Dingjan, Bank Nationalisation, Fairfax)
c. An act can be dually characterised under two heads of power (Fontana Films, Fairfax, Grain Pool)
2. Is there a sufficient connection between the law and the races power?
a. Is the law with respect to the people of any ‘race’?
i. Race is not a term of art (Tasie Dams per Brennan and Deane)
ii. DICTA: There is a biological element to the concept of race (Tasie Dams per Brennan) iii. DICTA: Non-scientific factors (such as common history, religion, spiritual beliefs, culture)
are also relevant (Tasie Dams per Brennan and Deane)
iv. DICTA: Individuals or group regard themselves or are regarded by others as having a particular historical identity in terms of their colour or racial/national/ethnic origins (Tasie Dams per Brennan)
v. DICTA: Can also apply to sub-groups within a race (Tasie Dams per Deane; Kartinyeri per Gaudron, Gummow, Hayne and Kirby)
vi. Aboriginal people are a race (Tassie Dams; Kartinyeri) b. Is the law a ‘special law’ for the people of the race concerned?
i. The special quality of a law is determined by reference to its differential operation upon the people of a particular race (Native Title Act Case; Kartinyeri per Gummow and Hayne) ii. A law that applies equally for all races is not special (Koowarta) e.g. law directed toward
the elimination of all racial discrimination (Koowarta)
iii. However, a general law can be a special law where it is of special or significant importance to the people of a particular race (Tasmanian Dams; Native Title Act Case)
1. Tassie Dams: Law preventing the damage of objects that were of significance to Aboriginal cultural heritage was held to be supported by the races power
iv. Law need not directly confer a legal right/power to the race, discriminatory benefit is valid (Tasie Dams)
c. Is the law deemed necessary?
i. In general, this is for parliament to determine (Native Title Act Case)
1. However, the courts have left open the possibility that the Court retains some supervisory jurisdiction over manifest abuse of the races power (Native Title Act Case; Kartinyeri per Gummow, Hayne and McHugh)
Page 2 of 135 ii. Been suggested that parliament must have some material upon which it might reasonably
conclude that there is a difference (between the race at issue and other races) necessitating some special legislative measure (Kartinyeri per Gaudron)
1. Is the law reasonably appropriate and adapted to the difference?
iii. UNCLEAR whether parliament can deem a detrimental law necessary - competing dicta 1. DICTA: can use power to impose detriment (Tassie Dams per Gibbs; Native Title
Act Case; Kartinyeri per Gummow and Hayne)
2. DICTA: may discriminate against people except for Aboriginal people (Tassie Dams per Deane)
3. DICTA: benefit only for all people (Koowarta per Murphy; Kartinyeri per Kirby)
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TAXATION POWER
s 51(ii) gives the Commonwealth the power to make laws with respect to ‘taxation’
1. Characterisation
a. Characterisation of the act is to be done with reference to the rights, powers, liabilities, duties and privileges (Grain Pool, Bank Nationalisation)
b. This is done by considering legal and practical operation of the act (Dingjan, Bank Nationalisation, Fairfax)
c. An act can be dually characterised under two heads of power (Fontana Films, Fairfax, Grain Pool)
2. Is there a sufficient connection between the law and taxation power?
STEP 1: Is it a tax?
a. General principles
i. Starting point is Latham J’s definition in Matthews – that is, a tax is (1) a compulsory exaction of money by a (2) public authority for (3) public purposes, (4) enforceable by law, and is (5) not a payment for services rendered
ii. However, this definition is not exhaustive (Air Caledonie)
iii. It can be a tax if it does not meet all the positive criteria in the Mathews test (Air Caledonie; Lutton per Hayne and Gaudron JJ)
iv. Fee for service is not the only extraction that cannot be a tax, penalties, arbitrary, fines and charges for the acquisition of property may be relevant (Air Caledonie) - i.e. negative requirements
b. Positive Requirements
i. Compulsory exaction of money;
ii. By a public authority;
1. Does not have to be exacted by a public authority (Air Caledonie; Australian Tape Manufacturers per majority cf McHugh J)
2. Important to consider only if the character of the authority will be relevant and influential in deciding whether the purposes on which the moneys raised are to be expended are themselves public (Australian Tape Manufacturers)
iii. For public purposes; and
1. Does not have to be for a public purpose (Air Caledonie) a. Factors indicating for public purpose:
i. Tax paid into consolidated revenue (Australian Tape)
ii. Public interest - take money from one group and give it another (Australian Tape)
b. Factors indicating not a public purpose:
i. Payment to Cth is merely so that they act as an intermediary in the payment process (Luton)
ii. Where beneficiaries of the scheme are of a limited class (Luton) iv. Enforceable by law
Page 4 of 135 c. Negative Requirements
i. Fee for service (s 53) - 3 elements (Air Caledonie; Matthews) 1. There is a specific identifiable service
2. A fee is paid for this service
3. The fee is rendered to, or at the request of, the person required to make the payment
4. Fee is proportionate to the cost of the service a. ISSUE: Differentiated rates
b. A relationship between fee and cost can be discerned even where differentiated rates are charged to users of the same service (Air Services) c. Different tests posited for establishing required relationship between fee
and cost of services in context of a differentiated pricing scheme:
i. Gleeson CJ and Kirby J in Air Services
1. Is the objective to raise general revenue or cover the price of the services?
a. Cover the price means discernible relationship between fee and cost
b. Revenue-raising points to tax
2. Are the charges ‘reasonably related’ to the expenses?
a. If reasonably related, proportionate
3. Is there a rational basis for discrimination between users?
a. If rational basis, proportionate
ii. McHugh: ‘Is pricing structure a reasonably and appropriately adapted means of achieving a legitimate public purpose other than revenue raising which is related to the functions, powers or duties of the statutory authority?’
1. Considerations: Purpose, mandate of body, adapted to objective
5. Examples
a. Tax: Payment to fund run by govt agency requiring contribution from every dairyman and every owner of a milk depot (Parton)
b. Tax: Immigration fee was payable by both citizens and non-citizens (Air Services)
c. Fee: Payment for grading, testing and stamping eggs (Harper)
d. Fee: Charges imposed on aircraft operators to recoup cost of providing services re air traffic, rescue (Air Services)
ii. Penalty
1. Imposes a liability to pay pursuant to a breach of some prohibition/duty (Northern Suburbs)
2. Factors against characterisation as penalty (Northern Suburbs) a. Law does not mandate or proscribe conduct of any kind b. Does not make it an offence to fail to do something
Page 5 of 135 c. Does not provide for recovery of civil penalties for failure to carry out a
requirement iii. Arbitrary
1. Liability can only be imposed for a taxation by reference to ascertainable criteria (MacCormick)
iv. A fine
v. A charge for the acquisition of property
STEP 2: What are the consequences?
d. General principles
i. Laws imposing taxation must deal with this subject only and they are invalid insofar as they deal with other subjects (s55)
ii. Laws imposing taxation shall deal with one subject of taxation only (s55) iii. **Note on application
1. Where Act has both tax and non-tax - Invalid
2. Where Act deals with tax and things other than tax - Parts that deal with other things are invalid/risk that one statute dealing with 2 taxations would be contrary to s 55
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GRANTS POWER
s 96 gives the Parliament the right to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit – (originally intended as a temporary provision,
Not a head of power, but a source of power; analysis is slightly different 1. STEP 1: Outline the scope of the power
a. Extremely broad – terms and conditions of a grant may go beyond s 51 heads of power
i. can operate to discriminate between States (Latham CJ in Moran, affrmd Privy Ccl) – despite the Melbourne Corps Principle (as per Dixon J in Second Uniform Tax Case) ii. can use State as a conduit or agency to distribute money to private persons, so long as
money is placed in the hands of the state (Ibid, Dixon CJ in Second UTC) terms and conditions of a grant may go beyond s 51 heads of power
2. STEP 2: Characterise the legislation in question
a. Characterisation of the act is to be done with reference to the rights, powers, liabilities, duties and privileges (Grain Pool, Bank Nationalisation)
b. This is done by considering legal and practical operation of the act (Dingjan, Bank Nationalisation, Fairfax)
c. When considering a legislator scheme wrt tax and grants, assess each act individually, rather than looking at the cumulative or consequential effect of the scheme (Latham CJ in First UTC)
3. STEP 3: Do any Limitations on the power apply in the circumstances?
a. Terms and conditions cannot be coercive (demand obedience) – they cannot compel States to surrender a power, or prohibit an exercise of power
i. While the freedom of a State to accept or reject a grant may be politically restricted in reality, it must remain unrestricted in a legal sense (Wilson J in DOGS Case)
ii. BUT a grant may induce an action with an attractive offer – this is not a compulsion (Latham CJ in First UTC)
b. Subject to freedom of religion under s 116, which limits all provisions of the constitution (DOGS Case)
c. Subject to limitation in s 51(xxxi): acquisition of property on just terms (PJ Magennis) [F: Cth could not enter agreement with States to acquire land on terms that were not just]
4. Court is NOT concerned with wisdom or expedience of the policy (Wilson J in DOGS Case)
