Purposive/Non-Purposive Powers distinction

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Constitutional Interpretation

 R v Burah (L Selborne): Where a question arises as to whether any legislation has exceeded the power granted, the courts must determine the question by looking at the terms of the instrument which affirmatively created the power, and those which negatively restrict it.

 Defined the dominant interpretational approach: Strict legalism, textualism, and reference to context when there was any degree of ambiguity.

o If still unclear, refer to originalism (intention of the original framers) o If still unclear, refer to contemporary meaning, comparative arguments,

international law, historical approaches, etc.

Techniques of Constitutional Interpretation Interpretation/Characterisation distinction

1. Characterisation: Determining subject matter of statute to see if it comes under the relevant head of power

a. Subject matter determined by reference to rights, duties, powers and privileges which the law changes, regulates or abolishes: Fairfax, Grainpool

b. Example: Is this statute within trade and commerce?

2. Interpretation: Looking at the text of the Constitution

Purposive/Non-Purposive Powers distinction

 Some s 51 head of powers have a purpose, and some do not

 Example: Defence power ‘to execute and maintain the laws of Cth, and defence’

 Example: Constitution does not make taxation purposive

Reading down and severance

 Reading down: If it is ambiguous as to whether the statute is within power, court will ‘read down’ so that within power

 Severance: If it is clearly out of power and cannot be read down, cut it out

o What is left must make sense and cannot fundamentally alter the statute’s meaning (still reflects Parliament’s intention): Section 15A Acts Interpretation Act 1901

Practical operation

 Grain Pool: Look at the practical, as well as legal, operation of the law to determine if there is sufficient connect to the head of power

Dual Characterisation

 Sections of Income Tax Act introduced to encourage to investment in government bonds.

While there was no head of power for this, it was accepted as a law of taxation.

 As the power was non-purposive, it does not matter that the purpose is not revenue raising – as long as the subject matter affects revenue raising.

Engineers (1920) 28 CLR 129 (Knox CJ, Isaacs, Rich and Starke JJ): 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 which preceded it, and then lucet ipsa per se [the thing reveals itself].

Fairfax: As long as one of the characterisations of the law fits under the head of power.

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Section 51(i): Trade and Commerce

 If it is not a law in those matters, it is prima facie invalid

Interpretation

 Includes all the commercial dealing and accessory methods developed to initiate, continue and effectuate the movements of persons and things across States.

 It was what ordinary people think about T&C that determines the term

 A law authorising the government to conduct a transport service for the inter-State trade is a law with respect to trade and commerce amongst the States.

o Thus, the transport of passengers not be engaged in commerce is still within power.

 Monopoly provision: Parliament has the power to prohibit, not just regulate, T&C, but cannot prevent people from engaging in T&C.

o Read down? No, clear intention to monopolise.

o Sever? Severability clauses establish a presumption in favour of the independence of the various provisions of an enactment, unless there is some positive indication of interdependence from the text, context, content or subject matter.

 Thus, Part IV which provided for a monopoly over these airline services was severable, supported by the arrangement and text of the act.

 A law which absolutely or conditionally prohibits exportation of goods is a law that operates on that topic. It is not a law which ceases to deal with that topic because it confers a

discretion, unlimited in scope, to permit exportation of particular goods.

Purposive/Non-Purposive Powers distinction

 The export of minerals without the written approval of the Minerals was prohibited

 The power was used for environmental purposes extraneous to ‘trade and commerce’, but was nevertheless valid because it operated on licences to export which is within T&C.

Section 51(i), Constitution: P shall, subject to C, have power to make laws for peace, order and good government with respect to: … trade and commerce

W & A McArthur Ltd v Queensland (1920) 28 CLR 530 (Knox CJ, Isaacs and Starke JJ): “Trade and commerce” include all commercial arrangements of which transportation is the direct and necessary result, e.g. negotiations, correspondence, bargain, transport and delivery.

Bank Nationalisation Case (Dixon J): Embraced a wide concept of T&C, including transportation, traffic, movement, transfer, interchange, and communication.

Airlines Case (1945) 71 CLR 29: If not all inter-State transportation, all carriage for rewards of goods or persons between States is within the legislative power, whatever the reason or purpose for which the goods or persons are in transit.

Murphyores Inc Pty Ltd v Cth (1976) 136 CLR 1: The T&C power is non-purposive.

Murphyores Inc Pty Ltd v Cth (1976) 136 CLR 1 (Mason J): The power conferred by s 51(i) enables the Parliament to prohibit, regulate and control the importation and exportation of goods. It necessarily comprehends the power to select and identify the persons who engage in, and the goods which may become the subject of, that activity.

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Incidental Power

 Nationwide News (Mason J): Appropriate to effectuate its main purpose.

Trade and Commerce

Interstate v Intrastate

 Unlicensed pilot prosecuted for flying within NSW in contravention of ref 6 of Air Navigation Regulations Cth which prohibit an unlicenced person from flying an aircraft ‘within the limits of the Cth’.

 Maintenance of inter/intrastate divide:

o Latham CJ: Although foreign and inter-State trade and commerce may be closely associated with intra-State trade and commerce, the court has uniformly held that the distinction drawn by the Constitution must be fully recognized, and that the power to deal with the former subject does not involve an incidental power to deal with the latter subject.

o Dixon J: The express limitation of the subject matter of the power to commerce with other countries and among the States compels a distinction however artificial it may appear and whatever interdependence may be discovered between the branches into which the Constitution divides trade and commerce.

 6(1) of Air Navigation Regulation (Cth) expressly made Cth regulations applicable to intrastate air navigation

 Kitto J: A federal law which provides a method of controlling regular public transport services by air with regard only to the safety, regularity and efficiency of air navigation is a law which operates to protect against real possibilities of physical interference with the actual carrying on air navigations as in within the federal power.

o Expressly rejected economic factors; rejected limitless US ‘substantial effect’ test

 Barwick CJ: It is within the competence of the Commonwealth under s 51(i) to make laws to secure and promote the safety of the air, including the efficiency and regularity of inter- State and foreign air operations, as a means of protecting and fostering inter-State and foreign trade and commerce.

o Licensing, as itself a safety procedure as well as being a means of ensuring

observance of other safety measures, can validly include in its operation intra-State commercial air transport operations and operators.

o The economic stimulation or authorization of intra-State commercial air services is not in any sense a safety measure

D’Emden v Peder: Every legislative head of power carries with it authority to legislate in relation to acts, matter or things, the control of which is found necessary to effectuate its main purpose.

R v Burgess, ex parte Henry (1936) 55 CLR 608 (Latham J): If interstate and intrastate trade are so commingled that impossible to regulate the INTER without regulating some aspect of the INTRA, the power to reach it.

Airlines of New South Wales Pty Ltd v New South Wales (No. 2) (1965) 113 CLR 54: Expansion of power but strictly limited to safety, regularity and efficiency.

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 S 19B: Authorised the Commission to operate air services between places in the one state (INTRA state) where this was done for ‘efficient, competitive and profitable conduct of the business of the Commission in respect of its function’ of conducting interstate services and services for territories.

 Mason CJ: There is some degree of support for an expansion of the incidental power to cover economic factors. The argument that there is no practical consequences would indicate that the legal reasoning behind the limitation is somewhat flawed. In addition, the modern interpretation involves looking at not just the legal effect of the statute but also the practical effect (Grain Pool Case), so it is more likely that economic factors would be taken into account.

o The distinction is artifial and there is no practical difference between the physical and economic

 Mason, “The Australian Constitution: 1901-1988” (1988) 62 ALJ 752: High Court has applied a narrow and formalistic construction to the trade and commerce power.

o Although the Court’s formal distinction between interstate and intrastate trade might well have been appropriate in an era of localised economies, there is a question whether it is appropriate today.

 Economic considerations provided a realistic causal link between intrastate commerce and interstate commerce

 The national power to regulate the price of milk moving interstate … extends to such control over intrastate transactions … as is necessary and appropriate to make the regulation of the interstate commerce effective.

Production Cases (T&C v Matters Antecedent or Subsequent)

 The defendant was charged with contravening the Metropolitan and Export Abattoirs Act 1936 (SA), s 52A, which prohibited the use of premises for the purpose of slaughtering stock for export without a licence from the Minister. The defendant did not hold a State licence, but the abattoir was registered under the Commerce (Meat Export) Regulations (Cth).

o Reg 4B: Prohibited export unless under registered premises

 At point of export -> therefore valid

o Reg 5: Premises used for slaughter, treatment and storage of meat to be registered

 Not at point of export -> valid?

 Fullagar J: Two-part test:

1. Subject matter beneficially or adversely affects the export trade point

2. The identification in the trade, objectively, of a process in the particular trade of production for export, e.g. slaughtering livestock for export

Minister for Justice (W.A.) (ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission (1976) 138 CLR 492: Economic efficiency is not sufficient; limited to physical necessity (as too broad; fear of US scenario)

United States v Wrightwood Dairy Co (1942) 315 US 110: Power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.

O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565: The power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export.

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 Identify that there is a special process in place in that trade for export, and it is acknowledged as such

 Generally, people produce good with aim of exporting and recognised in community

o The power with respect to trade and commerce with other countries includes a power to make provision for the condition and quality of meat or of any other commodity to be exported.

 Such matters include not only grade and quality of goods but packing, get- up, description, labelling, handling, and anything that may reasonably be considered likely to affect an export market by developing it or impairing it.

Mixed Production Scenarios

 So only way to get out of Cth regulation: Don’t export at all

 The Australian Industries Preservation Act 1906 (Cth), s 4 made it an offence for any person to enter into a contract in relation to trade or commerce with other countries or among the States which was (inter alia) in restraint of trade, and declared such contract to be void. The question here was whether s 4 could validly apply to a contract in restraint of trade which dealt with intrastate trade as well as interstate trade.

 Test: Distinguished from Swift as not a production scenario. Distinguished from Airlines as not a transport case, but still a Inter/Intra case. Apply the commingling theory, influenced by the practical approach in Swift.

 Menzies J: the constitutional distinction between overseas and inter-State trade and other trade would enable a person engaged in trade to make arrangements relating to his intra- State trade free from control under Commonwealth legislation but it does not enable such a person, by making arrangements relating to trade generally, to put those arrangements beyond Cth control if they do relate to inter-state or overseas trade.

Subsequent to T&C

 In order to make effective prohibition on importation, need to be able to penalise Swift Australian Co (Pty) Ltd v Boyd Parkinson (1962) 108 CLR 189 (Owen J): If the slaughter, treatment, storage or packing of meat for export is carried on in the same establishment as the slaughter of meat for home consumption, it may well be necessary that the whole of the

operations carried on in the establishment should be governed by the set of regulations which are directed to the preparation of meat for export lest the condition or quality of meat which finally goes into export be prejudicially affected by the conditions under which the slaughter of meat for the home market takes place.

Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 (Menzies J): The Commonwealth's power over trade and commerce extends only to intrastate trade and commerce that is inseparably connected with interstate trade and commerce.

R v Smithers, ex parte McMillan (1982) 152 CLR 477, 485: Penalisation of profit from selling drugs incidental to the enforcement of the prohibition against importation which itself falls fairly and squarely within the power.

Purposive/Non-Purposive Powers distinction

Contents

Constitutional Interpretation

Techniques of Constitutional Interpretation Interpretation/Characterisation distinction

Purposive/Non-Purposive Powers distinction

Reading down and severance

Practical operation

Dual Characterisation

Section 51(i): Trade and Commerce

Interpretation

Purposive/Non-Purposive Powers distinction

Incidental Power

Trade and Commerce