FEDERAL CONSTITUTIONAL LAW – SUMMARY NOTES
Overall Scaffold ...2
Constitutional Principles ...3
Trade And Commerce ...4
Corporations Power ...6
Freedom Of Interstate Trade ...8
Taxation ...9
Grants And Excise ...11
Defence Power ...12
Implied Freedom Of Political Communication ...14
Intergovernmental Immunities ...16
CONSTITUTIONAL PRINCIPLES
Interpretation
- Giving definition to relevant head of power
- Must be interpreted with all generality the text will permit: Grain Pool - Consider whether purposive or non-purposive
o Non-purposive: only has to relate to relevant subject matter
o Purposive: in addition to being with respect to stated subject matter, must be exercised pursuant to specific purpose stated in Cst
- Subject matters which Cth may legislate on under s 51 are not exclusive, but concurrent powers with the States: Actors and Announcers Equity v Fontana
o Except for the powers which the Cst exclusively vests in the Cth (none in s 51, but see s 90), states have plenary legislative power
Characterisation
- Determining if legislation falls within the scope of the power’s subject matter o Subject matter determined by reference to ‘the rights, duties, powers and
privileges which the law changes, regulates or abolishes’: Fairfax
- Practical as well as legal operation of law needs to be considered to determine if there is sufficient connection with head of power: Grain Pool
- Principle of dual characterisation: Fairfax
o So long as one of the possible and plausible characterisations of law is with respect to the head of power, that is sufficient
o Even if other plausible characterisations are outside cst power
o No longer necessary to determine by dominant characterisation approach
Reading down / Severance
- If law is prima facie unconstitutional, use procedures of reading down and severance - ‘Undistributed expression’ – any phrase that includes both constitutional and
constitutional subject matter or subject matter that is within power and matter that isn’t: R v Burgess
- Reading down
o If ambiguous, read meaning down to bring within power: Industrial Relations
o Must still make sense in context of Act and cannot be contrary to Parliamentary intention
o Can be enforced to extent it does not exceed power: Interpretation Act s 15A - Severance
o If not able to read down, sever invalid parts -
o Must be consistent with Parliamentary intention: Work Choices
TRADE AND COMMERCE
s 51(i): Parliament shall, subject to Cst, have power to make laws with respect to “trade and commerce with other countries and among the states”
Is it ‘trade and commerce’?
- Determine if interstate / international TC or intrastate / partially intrastate TC
- Given ordinary meaning as understood by business / commercial people: McArthur - Includes transportation, traffic, movement of goods and persons, transfer, interchange,
communication (telephone, broadcasting, transmission of intelligence), supply of gas and electricity: Bank Nationalisation
- Non-purposive power: Murphyores
o Enough that law deals with TC, not relevant that extraneous matters ma be taken into account
Incidental power to trade and commerce
- Where any power or control is expressly granted, there is included in grant every power or control the denial of which would render the grant ineffective: D’Emden
Scenario A: Can Cth regulate intrastate TC to give effect to interstate TC?
- Cannot except comingling theory excepting cases of impossibility: R v Burgess - Exception to inter/intra divide where physical protection of interstate TC requires
power to regulate intrastate TC e.g. consistent rules for licensing aircrafts: Airlines - Not enough that intrastate activities will have merely prejudicial effect on intrastate
TC e.g. economic efficiency, mere loss of profit: Airlines
o Cannot be just to “conduce efficiency, competitiveness and profitability of interstate TC”: Western Airlines
o BUT Mason J’s dicta in Western Airlines + Court’s recent shift to account for practical operation of the law suggests economic considerations might be considered today
Scenario B: Can Cth regulate matters antecedent or subsequent to interstate TC?
- Test for matters antecedent to TC: Noarlunga Meat o 1. Beneficially or adversely affects export grade
▪ Includes grade and quality, handling, packing, get-up, description, labelling and anything considered reaosably likely to affect an export market by developing it or impairing it
o 2. Objective identification of a process in the trade of ‘production for export’
e.g. slaughtering livestock for exports
▪ Emphasised this limit: Fullager J in Noarlunga Meat (No 2) - Matters subsequent for TC
o Can control subsequent conduct to import if necessary to make import regulative effective: Smithers
▪ e.g. can impose penalty for dealing illegal narcotics after import
Mixed Production Scenarios
- Cth can regulate production of commodity when only a portion of goods in the production process are to be exported interstate, even if they are produced in same process as goods for home consumption: Swift
o Need to look at practical considerations i.e. not feasible to separate products o Owen J judgement here not quite authoritative but lower courts found
- If a contract is in relation to intrastate TC, a Cth regulation can apply to it, even if contract also deals with intrastate TC: Redfern v Dunlop
US Jurisprudence (for comparison / counterpoint to Aus)
- Australian cases have directly referenced US cases to justify limited position - Substantial effects test: intrastate commerce may be regulated if the activity being
regulated has a substantial effect on interstate/foreign commerce - Distilled test for commerce power after Lopez:
o 1. Did congress have a rational basis for finding that the regulated activity affects interstate or foreign commerce?
o 2. If so, were the means chosen to regulate the activity reasonable and appropriate?
o 3. Does the subject matter have some connection to commercial activity or some sort of economic enterprise, broadly defined?
- Morrison: Confirmed Lopez test – third step was way to limit the power o Dissent said limitation was artificial, should just be substantial effect test - Congress may regulate commerce but cannot compel people to engage it: Sebelius
e.g. compulsory health insurance
o Minority disagreed – every person needs medical treatment, not compulsion
