2
Week Two: Characterisation of Legislation ... 4
RESERVED POWERS DOCTRINE ... 4
DIRECT CHARACTERISATION ... 4
DUAL CHARACTERISATION ... 4
PURPOSE/POLICY ... 4
INCIDENTAL CHARACTERISATION ... 5
PROPORTIONALITY ... 6
Week Four: The Corporations Power ... 7
HUDDART PARKER TO CONCRETE PIPES ... 7
CONSITUTIONAL CORPORATIONS ... 7
INACTIVE CORPORATIONS ... 8
SCOPE OF THE CORPORATIONS POWER: THE BROAD AND NARROW VIEWS ... 8
INCIDENTAL SCOPE ... 9
NATURAL PERSONS ... 9
REGULATION OF THE CREATION OF CORPORATIONS ... 9
Week Five: The External Affairs Power ... 10
EXTRATERRITORIAL POWER ... 10
RELATIONS WITH OTHER COUNTRIES ... 11
IMPLEMENTATION OF TREATIES ... 12
IMPLEMENTATION OF INTERNATIONAL DOCUMENTS OTHER THAN TREATIES ... 13
Week Six: The Defence Power ... 14
NATURE OF THE POWER ... 14
WAR ... 15
POST WAR AND TRANSITION TO PEACE ... 16
PEACE ... 16
MILITARY JUSTICE ... 16
OSTENSIBLE PEACE – THE COMMUNIST PARTY CASE ... 17
THREAT OF WAR ... 17
TERRORISM AND NATIONAL SECURITY ... 17
Week Seven: Section 92 – Freedom of Interstate Trade, Commerce and Intercourse ... 18
HISTORY ... 18
TRADE AND COMMERCE ... 18
“INDIVIDUAL RIGHTS APPROACH” ... 18
THE TRUMPH OF THE “FREE TRADE” THEORY ... 19
WHAT IS DISCRIMINATION? ... 19
WHAT IS PROTECTIONISM? ... 19
EXPORT RESTRICTIONS ... 20
PROPORTIONATE REGULATION AS AN EXCEPTION TO BREACHES ... 20
A NEW DIRECTION? ... 20
FREEDOM OF INTERSTATE INTERCOURSE ... 20
Week Eight: The Commonwealth Executive ... 21
PERSONS WITHIN THE EXECUTIVE ... 21
SCOPE OF EXECUTIVE POWER – EXECUTION AND MAINTENACE OF THE LAWS OF THE COMMONWEALTH ... 21
SCOPE OF EXECUTIVE POWER – EXECUTION OF THE CONSTITUTION ... 22
SCOPE OF EXECUTIVE POWER – MAINTENANCE OF THE CONSTITUTION ... 22
INHERENT EXECUTIVE POWER – THE COMMON LAW ... 22
THE NATIONHOOD POWER ... 24
Week Eight: Spending Government Revenue – The Grants and Appropriations Powers ... 26
SECTION 96 GRANTS ... 26
SCOPE OF THE GRANTS POWER ... 26
THE UNIFORM TAX CASES ... 28
LIMITS TO S 96? ... 30
POWER TO SPEND APPROPRIATED MONEYS ... 32
Week Nine: Separation of Powers ... 33
JUDICIAL POWER ... 33
JUDICIAL POWER OF THE CTH ... 35
SEPARATION OF JUDICIAL POWERS (CTH) – PRINCIPLE 1: JUDICIAL POWER MAY ONLY BE EXERCISED BY CHAPTER III COURTS ... 36
EXCEPTIONS TO PRINCIPLE 1 ... 36
SEPARATION OF JUDICIAL POWERS (CTH) – PRINCIPLE 2: FEDERAL COURTS MAY NOT EXERCISE NON-JUDICIAL POWER ... 37
EXCEPTIONS TO PRINCIPLE 2 ... 37
SEPARATION OF JUDICIAL POWERS (STATE) – THE KABLE PRINCIPLE ... 39
PERSONA DESIGNATA AND STATE JUDGES ... 39
REQUIRED CHARACTERISTICS OF STATE COURTS ... 40
INVESTITURE OF JUDICIAL POWER IN NON-JUDICIAL BODIES AT THE STATE LEVEL ... 40
SEPARATION OF JUDICIAL POWER IN THE TERRITORIES ... 40
Week Ten: States in the Federation and Inconsistency ... 41
LAW FOR THE PURPOSES OF S 109 ... 41
MEANING OF INVALIDITY ... 41
TESTS FOR INCONSISTENCY ... 41
DIRECT INCONSISTENCY #1 – IMPOSSIBILITY OF SIMULTANEOUS OBEDIENCE ... 42
DIRECT INCONSISTENCY #2 – CONFERRAL OF RIGHTS ... 42
INDIRECT INCONSISTENCY – COVERING THE FIELD ... 43
INCONSISTENT CRIMINAL LAWS ... 45
Week Ten: Intergovernmental Immunities ... 46
EARLY LAW: DOCTRINE OF IMPLIED IMMUNITIES ... 46
ENGINEERS CASE: ABANDONMENT OF IMPLIED IMMUNITIES ... 46
COMMONWEALTH LEGISLATIVE POWER OVER THE STATES ... 47
DISCRIMINATORY LAWS ... 47
PROHIBITION ON THE IMPAIRMENT OR CURTAILMENT OF A STATE’S CAPACITY TO FUNCTION AS A GOVERNMENT ... 48
AUSTIN V COMMONWEALTH – REFORMULATION OF THE TEST FOR STATE IMMUNITY? ... 49
Week Eleven: Express Rights/Limits on Power ... 50
ACQUISITION OF PROPERTY ON JUST TERMS ... 50
What is property? ... 50
Acquisition of property ... 50
“Just terms” ... 52
Acquisition “for the purposes of the Commonwealth” ... 52
Exceptions to s 51(xxxi) ... 53
Application of s 51(xxxi) within the territories ... 53
FREEDOM OF RELIGION ... 54
Definition of “religion” ... 54
Establishment of a religion ... 54
Laws “for” prohibiting the free exercise of any religion ... 55
Requirement of religious tests as a qualification for any office or public trust under the Commonwealth .. 55
DISCRIMINATION ON THE BASIS OF INTERSTATE RESIDENCE ... 56
Exceptions to s 117 ... 56
Week Twelve: Implied Political Rights and Freedoms ... 58
IMPLIED FREEDOM OF POLITICAL COMMUNICATION ... 58
Source of the freedom ... 58
Scope of the power ... 59
Operation of the freedom ... 62
Nature of the freedom ... 62
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Week Two: Characterisation of Legislation
Federal laws require a head of power to be valid.
RESERVED POWERS DOCTRINE
Very narrow view of characterisation à some powers are reserved for the states. Cth laws read narrowly to ensure the preservation of unimpeded state regulation.
R v Barger (1908) à Cth laws are incapable of ‘dual characterisation’ (could not be about more than one subject matter).
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineer’s case) (1920) à heads of power are to be interpreted in accordance with the natural meanings of the words, and implied limitations should not be read into heads of powers unless such an implication logically flowed from the words. This case signalled the demise of the reserved powers doctrine.
DIRECT CHARACTERISATION
What is the law in question?
Is the law a ‘law with respect to ‘ s 51?
Fairfax v Federal Commissioner of Taxation (1965) à Is the law, in its real substance, a law with respect to one or more of the heads of power? Characterisation concerns subject matter, by reference to the rights, duties, powers and privileges which it changes, regulates or abolishes.
Australia v Commonwealth (First Uniform Tax case) (1942) à What does the law do in the way of changing or creating or destroying duties or rights or powers?
Murphyores (1976) à consider the direct, rather than consequential effect of the law.
DUAL CHARACTERISATION
A law can be a law with respect to more than one subject matter, as long as one of its characters is within a head of power.
PURPOSE/POLICY
Purpose or motivation behind a law generally irrelevant.
Murphyores Incorporated Pty Ltd v Commonwealth (1976) à considered the direct legal effect of the law, didn’t matter that the provisions were being manipulated for another purpose.
INCIDENTAL CHARACTERISATION
Law may be characterised as an incidental exercise of power of its subject matter is reasonably connected to a matter within a head of power.
Conferred by s 51(xxxix) à a legislative power with respect to matters incidental to the execution of any power vested by the Constitution in the parliament’ will be valid.
Grannall v Marrackville Margarine Pty Ltd à each legislative power carries with it an authority to legislate in relation to acts, matters and things which are necessary to effectuate its main purpose.
Core cannot be separated from incidental aspect. The power is in its entirety.
Tests:
1) Does the provision deal with a matter that directly affects the subject matter of a head of power?
2) Is it conducive to it or is it an appropriate means or reasonably necessary to the effectuation of a purpose within that power?
Although, the tests of ‘reasonableness’, ‘appropriateness’, ‘necessary’ are inexact (Actors equity).
s 51(i) à trade and commerce
W & A McArthur Ltd v Queensland (1920) à power includes all commercial dealings with goods and services, such as commercial arrangements, mutual communings,
negotiations, bargaining, transport and delivery.
O’Sullivan v Noarlunga Meats (1954) à the power under this section extends to the supervision and control of all acts and processes which can be identified as being done or carried out for export. Where intrastate activities are steps in a process which leads in virtually all circumstances towards international or interstate trade, it is likely that the Cth can control these activities under its incidental power.
Swift Australian Co Pty Ltd v Boyd-Parkinson (1962) à compare to O’Sullivan. The slaughter of poultry for export regulated by Cth legislation while QLD act intended to regulate other forms of poultry processing. Both laws valid = needed to obtain both types of license.
Airlines of NSW Pty Ltd v NSW (No 2) (1965) à intrastate trade can be regulated where such regulation is necessary to ensure against physical interference with international or interstate trade. Court drew a distinction between physical integration of intrastate and other trade, which may be controlled by the Cth, and economic integration, which may not.
s 51(ii) à taxation
Griffin v Constantine (1954) à re higher tax on potable spirits. Question is of the proximity of the subject matter of the law to the tax power.
Victoria v Commonwealth (Second Uniform Tax case) (1957) à re requirement of paying Cth income tax debt before paying any state debt. Held to be ‘beyond any true
conception of what is incidental to a legislative power’.
s 51(xx) à corporations
Workchoices à ‘capable of affecting’. Limited to contractors engaged in the course of providing services to a constitutional corporation.
s 51(vi) à defence
Australian Communist Party case à Fullagar J’s “secondary aspect” – Matters incidental to the execution of the power to deal with the emergency.
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PROPORTIONALITY
Reasonable relationship or balance between an end and the means used to achieve that end. Is the law appropriate and adapted to the purpose of the power? (J Kirk, ‘ Constitutional Guarantees, and the Concept of Proportionality’)
Leask v Commonwealth (1996) à proportionality is a relevant issue only with regards to direct or incidental characterisation under purposive heads of power.
Purposive power = head of power that described a specific purpose, rather than an activity, type or person or category of legislation or object.
Court looks at the purpose evinced from the face of the ‘instrument in question, the facts to which it applies, and the circumstances which called it forth’.
s 51(vi) à defence
Law must be reasonably adapted for the purpose of the military and naval defence of the nation.
Australian Communist Party v Commonwealth (Communist Party case) (1951) à restriction of proprietary and civil rights of communists disproportionate to defence of the nation.
Conceded that the law may have been permissible if Australia was on a war footing, as the defence power expands and contracts according to the actual risk of enemy attack. I.e.
proportionality will depend on factual circumstances.
Thomas v Mowbry (2007) à power can be used to authorise measures to combat terrorism, as defined, a home and abroad.
s 51(xxix) à external
affairs
When the Cth uses this power for the purpose of incorporating a treaty into Australian law, the legislation must be appropriate and adapted to the provisions of that treaty.
ILO à conformity principle: does the law select means which are reasonably capable of being considered appropriate and adapted to achieving the purpose of giving effect to the treaty?
s 61 à nationhood
Expenditure must derive from character and status as a polity or deduced from existence of the Cth as a national government (Victoria v Commonwealth and Hayden (AAP case) (1975)).
Coercive powers generally do not fall under the nationhood power (Davis v Commonwealth (1988)), but may do so (R v Hughes).
s 51(xxvi) à race
Kartinyeri v Commonwealth (1998) à Gaudron and Kirby JJ indicated that this power has a purposive element, stated that the laws had to be necessary and therefore appropriate and adapted to the needs of a particular race. Gummow and Hayne JJ disagreed, stated that laws merely had to fall short of a manifest abuse of power.
Incidental power and proportionality
Proportionality is relevant but not determinative of a law being found to be incidentally characterised.
Nationwide News v Wells (1992) à Mason J “even if the purpose of a law is to achieve an end within a power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within that power, i.e. unless it is capable of being considered to be reasonably proportionate to the pursuit of that end.
Leask à court conceded that proportionality could be a relevant factor in deciding whether a law had a sufficient connection to a Cth power so as to constitute an incidental exercise of that power.
Week Four: The Corporations Power
s 51(xx) à The Parliament shall, subject to this Constitution, have power to make laws with respect to … Foreign Corporations, and trading or financial corporations, formed within the limits of the
Commonwealth”.
HUDDART PARKER TO CONCRETE PIPES
Huddart Parker and Co Pty Ltd v Moorehead (1909) à the corporations power should not be interpreted so as to invade the field of state law over domestic trade. Griffiths CJ argued that the power only
permitted the Cth to legislate to control the legal capacity of corporations to legitimately enter a field or area of operation, and it did not permit the Cth to control the operations of the corporation once the activities were within a corporation’s legitimate capacity.
Reserved state powers doctrine rejected in Engineers case.
Strickland c Rocla Concrete Pipes Ltd (1971) à unanimously overturned Huddart Parker, felt that the laws at issue in that case dealt with the very “heart and purpose for which the corporation was formed”. Made it clear that the power allows the Cth to regulate the trading activities of a trading corporation.
CONSITUTIONAL CORPORATIONS
Foreign corporations
Any entity formed under the law of a foreign country and accorded a corporate legal personality by foreign or Australian law.
Trading corporations
R v Trade Practices Tribunal; Ex parte St George County Council (1974) à Menzies and Gibbs JJ used the “purpose test” – “it is necessary to determine the true character of the corporation upon a consideration of all the circumstances that throw light on the purpose for which it was formed”. Barwick CJ and Stephen J used the “activities test” – test of identifying a trading corporation is to inquire as to whether its predominant and characteristic activity is that of trading in goods and services.
R v Judges of Federal Court and Adamson; Ex pare Western Australian National Football League and West Perth Football Club (1979) à found that St George County Council was wrongly decided. When determining if a corporation is a trading corporation, the prime consideration is the activities or functions of that corporation.
Trading corporation is one engaged in substantial trading activity (Barwick CJ).
Corporation could be identified as a trading corporation “so long as trading is not
insubstantial” (Murphy J). Trading activities must for a “sufficiently significant proportion”
of the corporation’s overall activities (Mason J).
Commonwealth v Tasmania (Tasmanian Dams case) (1983) à majority held that the HEC was a trading corporation because its trade in electricity made up a “sufficiently
significant proportion” of its overall activities. Held that Adamson is to be followed.
Thus, apply the activities test: A corporation is identifiable as a trading corporation if a substantial or sufficiently significant proportion of its activities constitute trade.
Financial corporations
Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) à financial activities =
“transactions in which the subject of the transaction is finance”.
State Superannuation Board v Trade Practices Commission (1982) à applied the current activities test from Adamson and found that the Board’s financial activities were
substantial enough to warrant its classification as a financial corporation.
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INACTIVE CORPORATIONS
Fencott v Muller à activities test clearly inappropriate for a company that does not engage in much activity, if any. Majority resorted to the purpose test in characterising shelf companies – decided on the basis that trading and financial activities were specified as objects within the corporation’s capacities.
Minority applied a “subjective intentions” test: did the directors intend for their shelf company to engage in substantial trading and/or financial activities?
SCOPE OF THE CORPORATIONS POWER: THE BROAD AND NARROW VIEWS
Two interpretations of the power emerged from Concrete Pipes:
Narrow view à the aspects or activities of a corporation which may be regulated by the Cth must relate to those characteristics that bring a corporation within the reach of the power. The law must therefore have a sufficient connection to the trading activities of trading corporations and the financial activities of financial corporations.
Broad view à the scope of the power is plenary. As long as the corporation satisfied the tests for
identification as a “foreign, trading or financial corporation formed within the limits of the Commonwealth”, all of its activities may be regulated.
Actors and Announcer Equity Association v Fontana Films Pty Ltd (1982) à Gibbs CJ and Wilson J found that the power could only support those laws which deal with the trading activities of trading corporations and the financial activities of financial corporations (narrow view). Mason, Aickin and Murphy JJ concluded that the power would support laws which directly regulate any of a constitutional corporation’s activates (broad view).
Tasmanian Dams case à endorsed the broad view. Held that there did not need to be a nexus with trading activities at all once the law properly targeted the correct type of corporation. Majority also held that the power would support a law that regulated the activities of constitutional corporations done preliminary to, preparatory to, or for the purpose of, later trading activities.
New South Wales v Commonwealth (Work Choices case) (2006) à narrow view held by the minority focused on the “distinctive character test”: the fact that the corporation is a foreign, trading or financial corporation should be significant in the way in which the law relates to it if the law is to be valid.
Broad view endorsed by the majority described as the “object of command test”: that a constitutional corporation is an object of command of a law, permitting or prohibiting a trading or financial corporation from engaging in conduct or forming relationships.
Object of command:
Re Pacific Coal Pty Ltd (2000) à “regulation of the activities, functions, relationships and the business of a corporation described in that subsection, the creation of rights, and privileges belonging to such a
corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.
INCIDENTAL SCOPE
If the court can establish a reasonable connection between a law’s direct operation and the subject matter which is within power, the law is valid as an exercise of incidental power.
Actor’s Equity à law was about trade unions, had only a remote connection with corporations (Mason J).
Section was “reasonably incidental” to the corporations power because it required the trade union to take steps to prevent its members from conduct likely to cause harm to a constitutional corporation’s business (Gibbs CJ, Wilson J).
Fencott v Muller à four judges held that the imposition of duties on natural persons was valid under the power as the regulation was “incidental to the regulation of corporate activities”.
Re Dingan; Ex parte Wager (1995) à A law must operate so as to have some definite significance for a constitutional corporation, in that it must normally cause some beneficial or detrimental effect on such a corporation. A law will fall outside the power if it operated so as to have no effect, either beneficial or detrimental, on a constitutional corporation.
NATURAL PERSONS
Natural persons can be regulated under the corporations power.
Fencott v Muller; Work Choices à will often occur as an exercise of incidental power, but Actor’s Equity à may be an exercise of direct power.
REGULATION OF THE CREATION OF CORPORATIONS
Huddart Parker à parliament does not have the power to create corporations under the power.
New South Wales v Commonwealth (Incorporation case) (1990) à majority held that the words “trading and financial corporations formed within the limits of the Commonwealth” must be read in the past tense.
The word “formed” thus limits the use of the corporations power to legislate with respect to corporations already formed in Australia under some other law.
