Characterise (State)
Plenary legislative power: Q is it a law with respect to peace, welfare, and good governing of state (s5 Constitution Act 1902 NSW)
o However see s 106 - States constitutions are “ subject to this Constitution”
Does it bind the Cth? Is there a Cigamatic issue?
o Where the law alters or impairs the capacities or functions of the executive, the law will be invalid as it is beyond the legislative power of a State.
Trade & Commerce Power s51(i) (Subject Matter)
STEP 1: Is it a Cth law within the main head of power? Characterise
- Sufficient Connection test: Can’t be insubstantial, tenuous or distant (Dixon in Melbourne Corp (1947)
- Engineers: look at the literal meaning of the words in the power
- Does not matter if the outcome is different to the head of power Murphyores
- HC definition: The term is not confined to transporting goods across borders. It includes ‘all the commercial arrangements of which transportation is the direct and necessary result’, such as negotiations, transport and delivery W & A McArthur Ltd (1920)
o Permits Cth to partake as well as regulate ANA Case 1945 o Transportation = T&C ANA Case
- Section 51(i) supports the Commonwealth prohibiting exports as this concerns ‘trade and commerce with other countries’ (Noarlunga Meat).
- Where there is a power to prohibit trade, there is also a power to allow it subject to a condition (Noarlunga Meat).
STEP 2: Prohibition - Intra-State
- Clear Distinction – no comingling
o S51(i) omits ‘within a State’: HCA takes this omission seriously AG (WA) v ANAC 1976
o HCA held has to be a clear distinction between what is inter and intra state commerce – no comingling R v Burgess (1936)
o Incidental power cannot be used to obliterate that distinction Dixon CJ in Wragg 1953
“S51: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
(i) Trade and commerce with other countries, and among the States.
Step 3: Incidental Power
When does incidental power allow Cth to legislate Intra-State?
- Test: Is prohibiting the intrastate sale necessary for the safety of interstate and overseas trade; is it necessary to protect ‘the very activity’ of interstate and overseas trade (Second Airlines Case), and thus within the incidental power of s 51(i)?
o if a law is necessary for the safety of interstate trade and commerce (e.g. air
navigation) it will be valid as being incidental to interstate trade and commerce, but not if its sole justification is profitability (AG (WA) (1976) + Kitto J Second Airlines Case (1965)
Activities Preliminary to Trade
- Interstate trade & commerce begins when the goods are moved across state lines (after production or manufacture is complete) Beal v Marrickville Margarine 1966
- the incidental power can reach behind trading activities to the regulation of earlier steps such as production and manufacture O’Sullivan v Noarlunga Meat Ltd (1954)
o Regulating the manufacture of good for trade is permissible where manufacture is conditioned by the good’s overseas or inter-state trade destination (Noarlunga Meat)
STEP 3: acknowledge Murphy’s dissent in A-G (WA) (1976)
Advocated broader interpretation, supports argument that incidental power should cover economic issues.
He considered that maintaining the division between intra-state and interstate trade and commerce - ‘It is also well settled that, in the exercise of the trade and commerce power, the Parliament
can validly regulate the conduct of persons employed in those activities which form part of trade and commerce with other countries and among the States. A ship journeying for reward is in commerce; those who co-operate in the journeying of the ship are in commerce and the wages of those persons and the conditions of their employment relate to that commerce.’
STEP 4: Prohibitions
- Any other reasons this law is invalid?
- Does a subject of the Queen have an immunity from the law under s117 (discrimination as resident of a State)
- Is it a scheme to breach s51(xxxi) just terms - s116 freedom of communication
- s90 excise
- s92 freedom of interstate trade
STEP 5: Can it be severed or read down
- Where different constructions are available, that construction which would avoid, rather than lead to, a conclusion of constitutional invalidity is to be selected Work Choices
o However courts cannot change the law: “relatively few and specific” not when the
“resulting invalidation is substantial and would strike down key provisions” Kirby Work Choices
- Severance is inappropriate if it results in residue provisions that P never would have intended HCA in Bell Group v WA (2016)
STEP6: acknowledge relevance of T&C Power?
- The trade and commerce power is only really relevant now when the bodies involved in trade and commerce are not trading or financial corporations under s 51(xx) of the Constitution. If they are partnerships or natural persons or other unincorporated bodies, then the trade and commerce power might still be relevant.
- Heydon J Pape: the trade and commerce power compels the distinction between inter-state trade and intra-state trade and that it ‘does not permit an argument that trade and
commerce in Australia is one indivisible whole’ (payments were focused on trade and commerce in general)
Freedom of Inter-State Trade s92 (Limitation)
Inter-State Trade & Commerce
STEP 1: Is the law contrary to the guarantee of freedom of inter-course between the States?
- Just because the fee affects your state more than others, does not make discriminatory Betfair No 2 (2012)
- Rights of an individual trader being impugned does not make the Act discriminatory – must focus on territory/state as a whole Sportsbet (2012)
Intercourse among the States
o ‘Intercourse among the States’ includes Nationwide News
o the geographical movement of people across State borders o the transport of goods across State borders; and
o the transmission of communications across State borders.
o Must be geographic movement for s92 to come into play Nationwide News (1992) S92 On the imposition of uniform duties of customs, trade,
commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”
o If a law is enacted for the purpose of burdening interstate intercourse, it will breach s 92 Nationwide News (1992)
Which test applies when there is both trade and commerce and intercourse?
- Gummow J: where a law relates to activities that have the character of ‘trade and commerce’ as well as ‘intercourse’ among the States, the validity of the law should be assessed by reference to the ‘trade and commerce’ character of the law. APLA v Legal Services Commissioner 2005
STEP 1: Determine if is protectionist
- Test: Whether the law burdens for a protectionist purpose Cole v Whitfield (1998
o HCA: look to the substance and practical effect of the law, rather than be concerned with its formal structure Cole
- Laws which have the real object of prescribing a standard for a product or service, or a norm of commercial conduct will not ordinarily be protectionist and will not be prohibited by s 92.
Cole
- If the qualifying condition to be exempt to a fee is a product being purchased within a State, that is protectionist and breach of s92 Bath v Alston 1988
- If the legislation has legitimate regulatory aim, must not be excessive so to be discriminatory Castlemain Tooheys 1990
STEP 2: If protectionist, determine if an exception applies
- Test: is the law pursuing a purpose other than burdening interstate intercourse and is it appropriate and adapted to that purpose? Nationwide News
o However: see AMS v AIF (1999) where the incidental restricting of people (mothers in custody of children) invalidated the Act
- Q whether the impediment is greater than is reasonably required to achieve the object of the regulations (Gleeson CJ and Heydon J APLA Ltd)
- HCA said a test of “reasonable necessary” to apply - is the form of the discriminatory law reasonably necessary for the protection or well-being of the public? Betfair (No 1) 2008
External Affairs Power s51(xxix) (Subject Matter + Purposive)
The external affairs power is both a NON-PURPOSIVE POWER and a PURPOSIVE POWER; it will depend on what aspect of the power is in question.
Section 51(xxix): The Commonwealth has power to make laws with respect to ‘external affairs’.
STEP 1: Is it a Cth law within the main head of power? Characterise
- Sufficient Connection test: Can’t be insubstantial, tenuous or distant (Dixon in Melbourne Corp (1947)
- Engineers: look at the literal meaning of the words in the power
- Does not matter if the outcome is different to the head of power Murphyores
- The EA power has been construed broadly by the HC and given quite a flexible interpretation (Tasmanian Dams Case (1983)).
1. Geographic externality: legislate on matters/affairs which are physically external to Australia (non-purposive power)
2. Relations with other states/bodies: legislate on matters/affairs regarding relationships with other nation states (purposive power)
3. Implement agreements and treaties: change Australian law so as to address matters of an international concern (purposive power)
4. Matters of international concern: change domestic law so as to implement international agreements/treaties that Australia is a party to (purposive power)
Geographically external to Australia
- The mere fact the law is in regards to acts geographically external to Australia is sufficient Polyukhovich, it does not depend on the existence of an international agreement Horta - Includes matters geographically external to Australia Seas and Submerged Lands (eg
territorial sea and continental shelf) Horta 1994 (seabeds)
- Just because issue originated outside of Australia does not engage s51(xxix), if the Act is clearly for a domestic affair Pape 2009
o the Act ‘is directed, and directed only, to providing a fiscal stimulus to the Australian economy. It is not a law with respect to any matter or thing external to Australia.’
Hayne and Kiefell JJ
- Not confined to physical/tangible. Includes conduct intending to support something in a foreign state (I.e. giving money or goods to a person in another state to commit an offence) Alqudsi 2015
-
Relations with foreign governments
- Includes external relations of Australia with other countries Thomas v Mowbray 2007 Seas and Submerged Lands 1976 Sharkey 1949 (eg saying Australian workers would welcome invading Soviet forces)
- The external affairs power may also support laws that pursue and advance comity with foreign governments and preserve the integrity of foreign states. This extends to laws preventing terrorist acts (Thomas v Mowbray).
o Extends to terrorism affecting other countries when it affects Australia’s relations Thomas v Mowbray
Kirby disagreed in his dissent because he did not consider the invalidity of the law would affect Australia’s international relations.
Polyukhovich Issue: nexus?
Brennan dissent in Polyukhovich thought there needed to be a sufficient connection “nexus”
between affair and Australia
