§ Westminster system is built around these ‘rules’. The Constitution combines interpretation with convention to extract meaning.
o “[Constitutional Conventions] provide the flesh which clothes the dry bones of the law”-‐Sir Ivor Jennings (Legal Writer)
§ Some powers are only operable through conventionally accepted practices e.g. The appointment of a Prime Minister
§ NOT LAWS; cannot be formally enforced by a court
Identifying Type of Power
Non-‐Purposive
§ Question of subject matter determined solely on the nature of the rights, duties, powers and privileges which it confers, regulates, changes or abolishes (Fairfax v Federal Commissioner of Taxation 1965).
Purposive or Implied/Incidental Powers
§ Sufficient connection is determined by assessing the reasonableness of the law with regard to the purpose of the power.
o Consider: purpose of power, purpose of law, is the law appropriate and adept to achieving this power? (Leask v Commonwealth 1996) Changing the Constitution
§ Outlined under Chapter 8.
§ The Constitution can only be altered via the approval of the Australian people via a referendum.
§ A ‘successful’ referendum must gain a double majority (majority of voters in majority of states + overall majority)
Constitutional Interpretation
§ THE ‘GOLDEN RULE’ OF CONSTITUTIONAL INTERPRETATION: Language of the
Constitution is to be read in its ordinary and natural meaning, giving consideration to the exact language used as a whole; not to the implied meaning. [The
Engineer’s Case 1920]s
• Concerned with subject matter
Non-‐Puposive Power
• Concened with the purpose of the power
Purposive
Power • Non-‐explicit
• Arise from various Constitutional provisions
Incidental and Implied Powers
§ s109 does not limit the powers of parliament (R v Phillips 1970). It only limits the operation of State legislation to the extent and of the period that it is inconsistent with the Commonwealth legislation (Carter v Egg & Egg Pulp Marketing Board 1942)
Definitions
§ The meaning of ‘laws’ includes statutes, regulations and statutory rules (The Engineers Case 1920).
o An industrial award is a law for the purpose of s109 (Ex parte McLean 1930)
o Rules of the Court will be considered ‘laws’ (Flaherty v Girgis 1987) o Laws made under s122 will be considered ‘laws’ (Lamshed v Lake 1958)
§ What is not a law?
o Administrative decisions made by officials exercising executive power are outside the definition of laws for the purpose of s109 (Airlines of NSW Pty Ltd v NSW (no.1) 1964). i.e. air navigation orders, notice to pilots.
o Common law is not considered ‘law’ for the purpose of s109 (Fenton v Mulligan 1971)
o The Constitution itself is not a ‘law of the Commonwealth’ for the purpose of s109 (Re Colina; Ex parte Torney 1999)
Application
§ s109 only applies where two concurrent state and federal laws are:
1. Valid (Bayside City Council v Telstra Corporation Ltd 2004). If either law is invalid there is no inconsistency.
2. Operative (Butler v Attorney-General of Victoria 1961).
Is the Commonwealth Law Valid?
• Identify head of power, characterisation and limits
• Has the law been repealled? If so it is invalid and state law continues to operate
Is the State Law Valid?
• s5 NSW Constitition (power to make laws for peace, welfare and good government of NSW for all issues outside Commonwealth Constition)
• Has the law been repealled? If so it is invalid and state law continues to operate
Does Inconsistency Exist
• Use Inconsistency Tests
• If state law is invalid, it is inoperative but not repealed (Carter v Egg and Egg Plup Marketing Board 1942). If the Commonwealth law is later repealed, State law would revive (Bulter v AG 1961)
Tests for Inconsistency Direct Inconsistency Test
§ A direct inconsistency exists where two laws have contradictory provisions on the same subject matter (R v Licensing Court; Ex parte Daniell 1920)
§ Statute is inconsistent were it takes away a right conferred by that other even tough the right be one which might be waived or abandoned without disobeying the statute which conferred it. (Clyde Engineering Co Ltd v Cowburn 1962) Cover the Field Test
§ Clyde Engineering Co Ltd v Cowburn 1962
§ Was the Commonwealth Act on its true construction intended to cover the whole subject matter?
§ Commonwealth can avoid covering a ‘field’ by including express provisions (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation)
Repugnancy of Territory Law
§ s109 does not apply to territory law
§ Inconsistency regarding territory law is covered by the common law doctrine of ‘repugnancy laws’ (NT v GPAO 1999).
o Where Commonwealth law contains no express provision regarding its bearing on Territory law, it must be questioned whether it has an overriding effect
§ Commonwealth law predates Northern Territory law, and thus it is ‘subject to Commonwealth legislation’ (WA v Ward 2002).
§ ACT (SELF GOVERNMENT) ACT 1988 S28: ACT law has no effect if it is
inconsistent with the Commonwealth law, however it will be taken to be valid with such a law to the extent that it is capable of operating concurrently.
Inconsistency tests do not apply here.
The Melbourne Corporations Doctrine
§ The Commonwealth cannot impose a law that will threaten the continued existence of the States or their ability to exist as autonomous polities (Melbourne Corporation v The Commonwealth 1947)
Implied Freedoms (Including the Implied Freedom of Political Communication)
§ The Constitution is not a Bill of Rights and contains few express freedoms from legislative power.
“Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the
Determine the 'bield' or subject matter regulated
by the Commonwealth
Act
Determination as to whether the law
intended to regulate that subject matter
completely
Determination as to whether the State law interferes with
or intrudes upon the bield covered by the Commonwealth
law
