Constitutional Law Exam Notes - StudentVIP

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CONSTITUTIONAL LAW EXAM NOTES

CONSTITUTIONAL LAW

EXAM NOTES

FEBRUARY 1, 2019

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TABLE OF CONTENTS

Week 1: Introduction to Constitutional Law ...............................................................pg.04 -06

Week 2: Interpretation and Characterisation ..............................................................pg.07 - 13

Week 3: Legislative Procedures..................................................................................pg. 14 - 20

Week 4: Representative Government ..........................................................................pg.21 - 26

Week 5: Financial and Economic Powers ...........................................................…...pg. 27 - 33

Week 6: External Affairs ...........................................................................................pg. 34 - 40

Week 7: The Executive Power ...................................................................................pg. 41 - 48

Week 8: Inconsistency & Intergovernmental Immunities .........................................pg. 49 - 56

Week 9: Constitutional Rights and Freedoms ............................................................pg. 57 - 62

Week 10: Separation of Powers ................................................................................ pg. 63 – 73

Exam Notes ................................................................................................................ pg. 74 – 74

Revision Lecture ....................................................................................................... pg. 75 – 75

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Exam Notes Exam Notes

1. Ask the question, are we talking about the State Level or the Federal Level of government?

2. Ask the question, are we talking about the Executive, Legislature, Judiciary?

3. Can Parliament make such a law? → s51 Australian Constitution (AC)

4. If there is inconsistency between the State and Federal Parliament, then Federal Parliament trumps → s109 (AC)

Interpretation:

• When interpreting the text of the constitution it is required that the natural language of the HoP is used (Engineers)

and the text is interpreted broadly especially the HoP in s51 CACA 1901 (Jumbunna, Tas Dam, Workchoices)

Characterisation:

• The law must be about the subject matter of the HoP, which can be inferred from whether the law changes the

rights and duties of the subject matter; and there must be a sufficient connection.

What the government CAN do:

• What Parliament can do is mostly highlighted in s51 & s52 CACA 1901;

• We have covered, that Parliament can make laws about:

(1) Taxation;

(2) Give Grants (s96 CACA 1901);

(3) Make appropriations (s81 & s83 CACA 1901);

(4) Make laws about spending under s51 or s52 CACA 1901;

(5) Make laws about Corporations;

(6) Make laws about external affairs (4 categories)

(7) Nationhood Power ((Power of The Parliament to deal with national affairs),

• We have covered, that The Executive has powers:

(1) Conferred by the Constitution,

(2) To carry out acts enabled by parliament through statute,

(3) Unique to The Executive (Prerogative Powers),

(4) Non-statutory/prerogative Capacities (Powers which The Executive has in common with the ordinary person),

(5) Nationhood Power (Power of The Executive to deal with national affairs),

(6) Reserve Powers (the Queen) (Power to act inconsistent with advice from ministers)

Setting up the government

• This is based on legislative procedures on how to pass laws

- How is Parliament composed,

- Who can sit in Parliament

- Who can qualify to sit in Parliament

Problem-Solving Plan

A. Who is the relevant governmental body (parliament or executive or the judiciary?)

B. Is this a power issue or composition/procedure issue?

C. If it is a Composition/Procedure Issue (See Topic 3)

D. If it is a Power Issue:

• Step1: Does the parliament or executive have the power? (Topics 4-6)

• Step 2: Even if the parliament/executive has power, are there limitations? (Topics 7 – 9)

NB: Judiciary power is usually taken as a limitation to government’s power

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Week 1 Topic 1 Introduction to Constitutional Law

Feature 1 – Written Constitution

• s58 CACA 1901 provides that when a proposed law has been passed by both Houses of the Parliament it it then

presented to the Governor‑General for the Queen’s assent (assents / withholds assent / reserves law for the Queen.

• Convention: a social practice which is ordinarily assumed to be followed

• Law: an explicit or implied practice which is enforceable and capable of sanctions if not adhered to

Feature 2 – Representative Government/ Democracy

• To be a member of the Executive branch of government a minister has to also be a member of the Legislature

• s7 CACA 1901 provides that The Senate shall be composed of senators for each State, directly chosen by the

people of the State

• s24 CACA 1901 provides that the House of Representatives shall be composed of members directly chosen by the

people of the Commonwealth

Feature 3 – Separation of Powers

Separation of Powers in Australia is demonstrated through the process of responsible government. The idea behind this is

that The Executive branch of the government is responsible to the legislature which will hold them accountable for their

actions. One way The Legislature holds the Executive accountable is by ensuring they oversee the budget and not allowing

The Executive to spend the money any which way they please.

• Our System: Responsible Government (Westminster System)

• There are two aspects of responsible government.

o Collective Responsibility: The executive as a group is responsible to the legislature.

o Individual Responsibility: The ministers in the executive are responsible to the legislature.

• s81 CACA 1901 states that All revenue and money raised or received by The Executive goes into the Consolidated

Revenue Fund and then is set aside for purposes of the Commonwealth.

• s83 CACA 1901 provides that The Executive government cannot appropriate money unless it is done so by law

which s83 provides the parliament the power to make appropriation bills.

Feature 4 – Federalism

The idea of federalism is that there are multiple levels of government but there is a centralised government overseeing all to

provide uniformity between each of the states.

In a Federal Government there are different levels of government. There are:

• Federal Government (Commonwealth) – central government of Australia

• State Government – NSW, VIC, TAS, SA, WA, QLD

• Territory Government – ACT, DARWIN

Feature 5 – Bicameralism

Bicameralism means that the structure of the Legislature is made up of 2 levels.

• Federal level: House of Reps and Senate.

• Victoria: Legislative Assembly and Legislative Council

Feature 6 – Parliamentary Sovereignty

Parliamentary Sovereignty is the idea that Parliament makes the laws and no one stop them. Dicey described parliamentary

sovereignty in two distinct ways:

The Australian system differs slightly from the UK system by:

Absolute Parliamentary Sovereignty (UK):

• Parliament is not bound by any constraints except for parliamentary sovereignty itself

Partial Parliamentary Sovereignty(Aus Fed):

• Parliament is only bound by the Constitution, besides that can enact any law they want.

• s51 & s52 Australian Constitution provide the legislation which advise us that the legislature operates within the

confounds of Parliamentary Sovereignty as they are ‘subject to the constitution’.

Feature 7 - Rule of Law

The ‘Rule of Law’ is the idea that a system is governed by laws, not just the whims of the people in power.

Dicey encompassed three key criteria when discussing ‘The Rule of Law’:

1. Non-arbitrariness: No person can be punished or made to suffer except for a distinct breach of a law.

2. Equality: All persons are subject to the ordinary laws

3. Judge made: Rights under the constitution are the result of judicial decisions not general constitutional principles.

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High Court Original jurisdiction

As per s75 CACA 1901 the High Court has original jurisdiction in all matters:

• in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

• in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

Feature 8: Judicial Review and Consequences of Invalidity

Judicial review is the power that permits a court to review and determine the constitutionality of legislative and executive or

administrative action. For example, it enables the High Court to strike down a Commonwealth or State law if it offends or is

not supported by the Australian Constitution. It is consistent with the view that the High Court is the ultimate guardian of the

Australian Constitution. The power to exercise judicial review, and in particular the ability to invalidate unconstitutional

legislation, makes the High Court a powerful institution in our system of government.

• Legislative Judicial Review → reviewing legislation

• Administrative Judicial Review → reviewing acts of the government

If a judge deems a statute/legislation invalid it is regarded as ‘Invalid ab initio’ which means it was never a law in the first

place; treating the statute as if it never happened.

Colonial and State Constitutions

• Australian Constitutions Act (No.2) 1850 (Imp) – Allowed colonies to make their own constitutions.

• Colonial Laws Validity Act (Imp) – They had plenary power to legislate subject to:

• Repugnancy Constraint: Cannot legislate against British laws extending to the colonies (s2, s3 CLVA)

Independence

Australia Acts 1986

S1 - terminate UK parliament power to legislate over states,

S2 - states have extraterritorial power

S3(1) - terminated CLVA

(2) - state power to repeal / amend UK laws.

S11 - Stopped all appeals to the Privy Council

S12 - repeals s 4 of Statute of Westminster, UK cannot pass legislation even if Cth request.

S15 - entrenches Australia Act and Statute of Westminster – must be requested by parliaments of all States.

1. What is the difference between a direct democracy and a representative democracy?

A direct democracy is a government / nation whereby every decision which is made is confirmed by members voting on

the outcome and then the majority vote wins the decision; this is contrasted to a representative democracy whereby the

people vote for a members of the government, and the person with the most votes, holds the power to make the decision

on behalf of the people.

2. When referring to government who are we referring to?

If we are referring to all three bodies which make up the government we are referring then to:

• The Legislature; - The Legislature makes the laws

• The Executive; - The Executive administers the laws to ensure they are followed

• The Judicature – The Judicature decides if the laws have been broken

3. What happens when the senate does not pass the budget?

When ‘The Senate’ does not pass the budget, they are breaking convention and not law as this is a standardised

approved process whereby the budget is usually approved by both parties to ensure the government (The Executive) is

able to function. If the budget is not passed then the government cannot use the funds available in the treasury

otherwise they will be in breach of s83 Australian Constitution which states that money can only be appropriated by

law. ???

4. Can the Governor-General remove the Prime Minister?

According to s64 of the Australian Constitution, the Governor-General has the powers vested in the constitution to

remove the sitting Prime Minister as seen in the 1975 Whitlam Scenario where the Senate did not approve the Budget

5. What is Legislative Judicial Review and how is it contrasted to Administrative Judicial Review?

Legislative Judicial Review is a process by which the courts review legislation enacted by the Legislative Branch of

government (Parliament) and decide as to whether the legislation is valid according to the constitutional requirements,

whereas, Administrative Judicial Review is a process by which the courts review actions of the Executive Branch of

government and decide whether those actions are valid under the laws of the constitution.

• The power to carry out Administrative Judicial Review, s75 Australian Constitution

• The power to carry out Legislative Judicial Review, it is not clear (s71 or 51 or 52)

6. Is it part of the Australian Law that judges decide whether a piece of legislation is constitutional?

Yes, according to Justice Fullagar in Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262, he states

that ‘in our system the principle of Marbury v Madison [i.e. allowing judicial review] is axiomatic.

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Week 2 Topic 2: Interpretation & Characterisation

Interpretation and Characterisation

• Interpretation: Meaning of words in the constitution or statute.

• Characterisation: What is a law/statute about?

• Where the constitution talks about legislative/parliamentary powers (especially s51 and s52), follow the following

steps:

1. Constitutional interpretation

2. Statutory interpretation

3. Characterisation – linking 2 and 3.

NB: Some provisions just need constitutional interpretation (i.e. those that do not refer to laws/statutes)

s79. Number of judges

• Parliament can stipulate that they would like ‘n’ number of judges to exercise federal jurisdiction in any court in

Australia

s28. Duration of House of Representatives

• Once the House of Representatives has been formed, the same members may remain in power for a period of 3

years

• Once formed, the HOR cannot be in power for a period longer than 3 years

• The exception to this is the power that the Governor-General has to remove members from the House of

Representatives at any moment in time, from formation of the HOR.

s59. Disallowance by the Queen

• Once the GG assents to a law, the Queen may disallow the law as long as it is within one year of the law being

assented to by the GG

• Disallowance of the law must be made by the GG by speech or message to both houses of parliament or by

Proclamation

• Once the disallowance has been made aware to both houses of parliament or by proclamation, then as of that day

the law shall be annulled.

s92. Trade within the Commonwealth to be free

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.

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Practical Characterisation

S51 CACA 1901 provides a valid head of power for which parliament my enact laws from. IF the law is not related to a

HOP then, at the Federal level, the law is invalid

S51 CACA 1901 -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;

(ii) taxation; but so as not to discriminate between States or parts of States;

(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the

Commonwealth;

(iv) borrowing money on the public credit of the Commonwealth;

(v) postal, telegraphic, telephonic, and other like services;

(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to

execute and maintain the laws of the Commonwealth;

(vii) lighthouses, lightships, beacons and buoys;

(viii) astronomical and meteorological observations;

(ix) quarantine;

(x) fisheries in Australian waters beyond territorial limits;

(xi) census and statistics;

(xii) currency, coinage, and legal tender;

(xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the

incorporation of banks, and the issue of paper money;

(xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;

(xv) weights and measures;

(xvi) bills of exchange and promissory notes;

(xvii) bankruptcy and insolvency;

(xviii) copyrights, patents of inventions and designs, and trade marks;

(xix) naturalization and aliens;

(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

(xxi) marriage;

(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of

infants;

(xxiii) invalid and old-age pensions;

(xxiiiA) the provision of maternity allowances, widows' pensions, child endowment, unemployment,

pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of

civil conscription), benefits to students and family allowances;

(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of

the courts of the States;

(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial

proceedings of the States;

(xxvi) the people of any race for whom it is deemed necessary to make special laws;

(xxvii) immigration and emigration;

(xxviii) the influx of criminals;

(xxix) external affairs;

(xxx) the relations of the Commonwealth with the islands of the Pacific;

(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the

Parliament has power to make laws;

(xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth;

(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the

Commonwealth and the State;

(xxxiv) railway construction and extension in any State with the consent of that State;

(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of

any one State;

(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides;

(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States,

but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards

adopt the law;

(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States

directly concerned, of any power which can at the establishment of this Constitution be exercised only by the

Parliament of the United Kingdom or by the Federal Council of Australasia;

(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House

thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer

of the Commonwealth.

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Week 3 Topic 3 Legislative Procedures Legislative Procedures

1. Standard Procedures→ standard process to pass laws through parliament

2. Alternative Procedures→ used in deadlocks to pass laws where both houses disagree

3. Special Procedures → not optional & used for money bills

4. Restrictive Procedures (Manner and form requirements) → not optional & used for harder than normal to pass law

Distinction between Federal & State

The distinction between the legislative powers at the Commonwealth level and at the State level are that at the Federal Level

the legislative powers are enumerated (can only pass laws when the new law shows a connection to the specific legislative

power i.e. ss51,52,96 etc), whereas, at the State level the legislative powers are plenary (at first instance can make any law

which is not blocked by a restriction)

• The Federal Parliament can make laws in relation to Concurrent powers (s51) and Exclusive Powers (s52) in the

Federal Constitution

• The State Parliament can make laws in relation to any subject matter except for: Extraterritoriality; Freedom of

Political Communication; Intergovernmental Immunity; exclusive powers of the Commonwealth (s52); concurrent

powers if exercised by the Commonwealth (s109)

Question: Section 51(v) allows the Cth parliament to make laws about the post. Without knowledge about what laws have

been passed so far, which parliaments can make laws about the post?

Answer: If we don’t know what laws have been passed, then both State and Commonwealth can make laws about the post

until there is an inconsistency

Question: This time the Cth made laws that set up Australia Post. Can the State make laws that contradict those regulations?

Answer: No, the State cannot make laws which contradict the Commonwealth regulations due to s109 CACA 1901

Question: Section 51(xvii) provides that the Cth parliament can make laws with regards to bankruptcy. The Cth parliament

makes laws about the bankruptcy of corporations only. Can the state make laws about the bankruptcy of individuals?

Answer: Yes, the State can make laws about the bankruptcy of individuals as they are residual powers left over from s51

(xvii) and the laws would not contradict each other.

Question: The State wants to make laws about the method by which people eat hotdogs.

Answer: As this power is not in the Federal constitution, this is a power that only the State has to legislate on

• Simple: More than 50% of people present in the house vote yes

• Absolute: More than 50% of all members of the house vote yes (don’t turn up = vote no)

• Special majority: Any number above 50% (although usually its 2/3 or ¾) vote yes

Courts stated that the role of the court was not to provide the injunction to stop Parliament from making unconstitutional

laws, but once the law was established to then pass judgement as to whether the law was valid or not. In this case the courts

found they could only pass judgements on s57 CACA 1901 after the dissolution has taken place: Cormack v Cope 1974

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Week 4 Topic 4: Representative Government The representative nature of parliament

s7 CACA 1901 states that the Senate shall be composed of senators for each State, directly chosen by the people of the State,

voting, until the Parliament otherwise provides, as one electorate” (doesn’t mention Territories)

S24 CACA 1901 states that the House of Representatives shall be composed of members directly chosen by the people of

the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators

S122 CACA 1901 allows the Parliament to make laws for the territories, and may allow the representation of such territory

in either House of the Parliament to the extent and on the terms which it thinks fit.

• The Commonwealth Parliament can make any laws for the territories and can be an alternative to s51

Territorial Senators Case

• In 1922 the Commonwealth Parliament started to allow senators from the territories to sit in The Senate.

Originally, these senators did not have voting rights, but in 1974 they allowed 2 senators from each territory to sit

in The Senate and also have voting rights. The issue was that s7 CACA 1901 states The Senate will be composed

of Senators from each state and not inclusive of senators from the territories. This issue was rejected

Mason J in the majority

• Majority argued that despite s7 stating that senators shall represent the states, s122 added to s7; and s122 allows

any representation that Parliament sees fit in either house of Parliament.

• Where Stephen says that you read s122 in light of s7, Mason J says that you read s7 in light of s122

• The first argument Mason J argues that if the constitution is interpreted in the way of Stephen J then the meaning

of ‘representation’ simply means that Senators from territories in The Senate are just observers and do not get a

vote which does not align with the original meaning of the word ‘representation’.

• The second argument is that when looking at s121 it was available to give representation to new states and if

parliament was to provide ‘representation’ to new states it would include full representation inclusive of voting

rights, so how can the meaning of the word ‘representation’ change from s121 which provides voting rights to

s122 which provides only observer rights

Stephen J (dissenting opinion)

• stated that the intention behind s7 is to show that the Senate is a chamber only for the senators of the states.

Although s122 has the words “representation” it needs to be read in light of s7 CACA 1901 Thus, as s7 makes the

Senate a chamber composed of senators for each state it cannot then be circumvented by s122 to change the

meaning of “representation” to mean any kind of representation to include senators from territories with equal

voting rights. The Senate in terms of voting rights should only have Senators from The State. The term

‘representation must be considered in terms of the whole constitution.

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Week 5 Topic 4: Financial and Economic Powers

• Section 51 (ii) – Taxation Power → POWER TO TAX

• Section 96 – Grants Power → POWER TO GIVE A GRANT TO A STATE

• Sections 81 and 83 – The Appropriation and Spending Power → POWER TO SET MONEY ASIDE & SPEND

• Section 51(xx) – Corporations Power → POWER TO REGULATE CORPORATIONS

Taxation Power

s51(ii) CACA 1901 provides that the parliament shall have power to make laws with respect to taxation; but so as not to

discriminate between States or parts of States. Matthews v. Chicory Marketing Board (Vic) [1938] defined taxation as a

compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for

services rendered

However it was held as a non-exhaustive list in Air Caledonie.

• A tax can take a form other than the exaction of money – e.g. chicken tax on a farm

• A tax can be taken by a non-public authority – e.g. government outsourced job to private company

• A tax can be taken for purposes other than for public purpose – e.g. money used for retirement program for MP’s

• Tax cannot be arbitrary - must be based on a criteria/reason and not just a random selection: Air Caledonie.

• a tax is not a payment for services rendered to or at the direction or request of the person required to make the

payment: Air Caledonie.

• The following meet the CMB definition of tax but they are not taxes:

o charge for the acquisition or use of property – e.g. booking town hall

o a fee for a privilege – e.g. fee for driving licence

o a fine or penalty imposed for criminal conduct or breach of statutory obligation

• Just because something is called a ‘fee for services’ doesn’t mean that it is just a ‘fee for service’, it might actually

be a tax. A person needs to look at the substantive law to understand what the fee is for.

• If a person has to pay the tax and is given no choice about whether or not they acquire services then that will count

as a tax - e.g. Australians wanting to come back into country have to pay the fee (no choice)

• Cannot make an argument that everything the government provides is a service. The words "fees for services"

in s53 Constitution 1901 must be read in context as a fee exacted for particular identified services provided or

rendered individually to, or at the request or direction of, the particular person required to make the payment

Was it a tax or a fee?

If it only applied to non-Australians, then it could be argued that it was a fee for privilege of entering Australia or a licence

fee, however, the fee was charged to Non-Australians and citizens and thus it was considered a tax

s90 CACA 1901 - Exclusive power over customs, excise, and bounties

On the imposition of uniform duties of customs, the power of the Parliament to impose duties of customs and of excise, and

to grant bounties on the production or export of goods, shall become exclusive.

When is a tax arbitrary?

Deputy Federal Commissioner of Taxation v Truhold Benefit [1985] HCA

• A tax is arbitrary when there are no ascertainable criteria as to what tax should be paid and who should pay the tax

• It does not matter whether a tax seems unreasonable (e.g. 90%), it can still be a tax. It is only invalid if there are no

ascertainable criteria by which to know who is going to pay the tax and how much to pay.

Summary: What is a tax

It is:

• A compulsory acquisition of money (and potentially other goods);

• By a public authority for a public service;

• Enforceable by law

• Is not a payment for services as requested or specifically directed to the person paying.

It is not:

• A criminal penalty

• Arbitrary

NB: If there is a weird outcome from the above, then can go to Air Caledonie case to say why it should or shouldn’t be a tax

as the list is not exhaustive.

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Week 6 Topic 5: External Affairs External Affairs

External Affairs are a legislative power of the federal parliament which is given effect by s51(xxix) CACA 1901

1. Matters Geographically External to Australia (Extraterritoriality)

If a matter is outside of Australia then it can be regulated for by the Federal Parliament under s51(xxix)

2. Relations with other nations

If a matter is in relations to other nations (diplomatic ties; interaction with other countries) then it can be regulated

for the Federal Parliament under by s51(xxix)

3. International concern

If a matter is of great international concern (all countries worried about and Australia needs to address as well)

then it can be regulated for by the Federal Parliament under s51(xxix)

4. Implementation of treaties

If a matter is about an agreement between different countries then it can be regulated for by the Federal Parliament

under s51(xxix)

NB: If it can be shown the law that the Federal Parliament is trying to pass is about any one of the above matters, then it will

be valid under s51(xxix)

Extraterritoriality

As per the majority decision in Polyukovich v The Commonwealth [1991], a case where a law passed to punish an

Australian citizen who committed war crimes in Ukraine during WWII; the High Court stated that the Federal Parliament

were enabled to legislate with respect to anything which is merely geographically external to Australia as part of

s51(xxix) CACA 1901 – External Affairs Power. They provided the argument that the external affairs power to be read as

broadly as possible to mean anything outside of Australia following the interpretation judgement post Engineer’s case

In Dissent however, Brennan J, argued that such a broad interpretation was to be validated, then it could lead to unrealistic

situations where the Federal Parliament could make laws which could result in absurd outcomes if they could make laws on

anything.

The majority decision in Polyukovich v The Commonwealth [1991], was further supported by the majority in XYZ v The

Commonwealth [2006]. This case involved a decision of the court as to whether Australia was able to criminalise conduct

undertaken by Australian citizens outside of the country’s borders. Here, the High Court upheld the Polyukovich decision

stating that under the Australian Constitution, the Australian government has the power to restrict activities of its citizens

and residents while abroad under its “external affairs” powers, which stem from the country’s own sovereignty as a self-

governing nation.

As it can be shown the law that the Federal Parliament is trying to pass is about extraterritoriality, then it will be valid under

s51(xxix) CACA 1901

NB: Australia can basically regulate on any external affairs matter that the parliament sees fit. If the parliament wants to

charge Swedish people eating meatballs in Sweden then the parliament can criminalise that in Australia. The Australian

government cannot go to Sweden to catch those people, but technically if they wanted to make such a law, then it would be

possible and then charge those Swedish people when they entered Australia.

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Week 7 Topic 6: The Executive Power

Topic 6 : The Executive Power

s61 CACA 1901 vests the executive power of the Commonwealth in the Queen exercisable by the Governor-General and

extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”.

Who is the Executive?

1. Queen and GG

2. Ministers (PM and Cabinet)

3. The departments and the public service

4. Statutory Authorities

List of Powers

1. Powers conferred by the Constitution (execution and maintenance of the Constitution)

2. Powers Conferred by Statute (execution and maintenance of the laws of the Cth)

3. Prerogative Powers (powers unique to The Crown that no other body can exercise)

4. Capacities common to legal persons (including ability to spend)

5. Nationhood Power (including ability to spend)

6. Reserved Powers of the Queen’s Representative

Powers conferred by the Constitution

Part of the Executive Power extends to execution and maintenance of the constitution. Execution of the constitution relates

to ‘expressly given powers’ in the constitution; and maintenance of the constitution relates to ‘National security’ issues.

Execution and maintenance of the Constitution → Expressly given powers

s64 CACA 1901 provides that the Governor-General may appoint officers to administer departments of State of the

Commonwealth and such officers shall hold office and shall be members of the Federal Executive Council.

s67 CACA provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth

shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council

or by a law of the Commonwealth to some other authority”.

s72 CACA 1901 provides that the Justices of the High Court and of the other courts created by the Parliament shall be

appointed by the Governor-General in Council and shall not be removed except by the Governor-General, on an address

from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or

incapacity;

s86 CACA 1901 provides that on the establishment of the Commonwealth, the collection and control of duties of customs

and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth

Powers conferred by the Statute

Execution and Maintenance of Laws

• Includes powers conferred by statute

• Can include power to make sub-delegated legislation (Victorian Stevedoring v Dignan)

e.g. s84 Migration Act 1958 (Cth) Minister may suspend processing of visa applications

(1) The Minister may, by legislative instrument, determine that dealing with applications for visas (including

protection visas) of a specified class is to stop until a day specified in the determination

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Week 8 Topic 7: Inconsistency & Intergovernmental Immunities

Inconsistency

1. s109 CACA 1901 – states Cth law trumps State law where there is an inconsistency. For the purposes of s109

CACA 1901 a law can be classified as a statute.

2. For the purposes of s109, a law also includes industrial / employment awards: Clyde Engineering Co Ltd v

Cowburn (1926)

3. For the purposes of s109, a law does not include common law or executive/administrative orders.

4. Laws are can be directly inconsistent:

a. (Impossibility of Simultaneous Obedience) - R v Licensing Court of Brisbane (1920)

b. (Inconsistent Conferral of Rights) - Clyde Engineering v Cowburn (1926)

5. Laws can be indirectly inconsistent: Indirect consistency is when one law expressly or impliedly evinces its

intention to exhaust all rights and duties regarding a whole field and another law tries assumes to enter to any

extent upon the same field, even though there are no direct inconsistencies, Clyde Engineering v Cowburn (1926).

Three steps to establish indirect inconsistency:

a. What is the “field” that the Commonwealth Statute covers?

b. Does the State law encroach on that “field”?

c. Does the Commonwealth intend to cover the “field”? (Express or Implied intention)

• If there is an express intention to cover the field, then Law 2 is indirectly inconsistent and s109 kicks in

• If there is an implied intention to cover the field, then Law 2 is indirectly inconsistent and s109 kicks in

6. When a State law is rendered invalid, it is only the inconsistent parts which are invalidated (not void ab initio –

never made; just supressed). If the Commonwealth law is repealed or amended then the invalidated law will be

revived.

Intergovernmental Immunities

1. If Cth wants to make laws regulating state there is no general immunity for States – Engineer’s Case

2. Limitation placed on Cth Law – If the Commonwealth law creates a “special burden” or “curtails the capacity” of

the States to function as an independent governmental entity then the law is not valid law: Austin v

Commonwealth (2003)

a. → changed to single test of ‘Impairment / Curtailment’ from Melbourne Corporations case where 2 tests

to see whether a law of the Commonwealth ‘Impaired’ the State’s ability to function as a government

OR whether a law of the Commonwealth ‘discriminated’ the states against each other.

b. Now discrimination is a sub-test of the main principle ‘Impairment / Curtailment’. discriminatory laws

which are implemented in order to curtail a State’s ability to function as an independent governmental

entity is one factor of a wider principle which is, but is not limited to, legislation aimed at the destruction

of the States. Neither direct or indirect discrimination follows the laws set out by the constitution if it

shows the law placing a burden on the State to function as an independent government entity.

3. In the constitution there is no text to indicate that the governments are immune from one another - Rich J in

Melbourne Corporation.

4. However, chapter 5 of CACA 1901 provides for the existence of the States, therefore, constitution requires and

guarantees that States exist. Any power by the Federal parliament to remove the States would ultimately require

amending the constitution through means other than a referendum, which is illegal.

5. Courts listed the following factors highlighting when a law of the Commonwealth curtails or impairs the ability of

the State: Clarke v Commissioner of Taxation (2009)

a. Does the Cth law single out one or more of the States and impose a special burden or disability on them

which is not imposed on persons generally?

b. Does the operation of a Cth law of general application impose a particular burden or disability on the

States?

c. What is the effect of the Cth law upon the capacity of the States to exercise their constitutional powers?

d. What is the effect of the Cth law upon the States ability to exercise their functions?

e. What is the nature of the capacity or functions affected?

f. What is the subject matter of the law affecting the State or States and the extent to which the HoP

authorises its discriminatory applications.

6. State governments have the right to determine the number + identity + term of employment of persons they wish to

employ OR dismiss with or without notice from its employment on redundancy grounds: Re Australian Education

Union; Ex parte Victoria (1995)

a. important to the State’s ability to function as a as an independent governmental entity that they are able

to select employees at the higher levels of government + terms and conditions

14


Week 9 Topic 9: Constitutional Rights and Freedoms Just compensation for acquisition of property

What is Property

1. Any interest in property where the owner has exclusive possession for a period of time - Minister of State for the

Army v Dalziel (1944)

Acquiring Property

1. Law does not need to expressly state that property is being acquired; as long as law effectively deprives owner

from the substance of a proprietary interest, then law is said to have acquired property - Newcrest Mining (WA)

Ltd v Commonwealth (1997); JT International SA v Commonwealth of Australia (2012)

2. To count as an acquisition of property, advantages that the Commonwealth obtains from the law need to be

identified - Newcrest Mining (WA) Ltd v Commonwealth (1997); JT International SA v Commonwealth of

Australia (2012)

Just Terms

1. Payment needs to be made to the value of the property as at date of expropriation, plus any damage incurred -

Commonwealth v Huon Transport Pty Ltd (1945)

Trial by Jury - Second Express Right and Freedom in the Constitution

1. Any trial on indictment against any Commonwealth law shall be by jury in the State where the offence was

committed. If offence not in a State, then trial shall be where Parliament prescribes – s80 CACA 1901

Freedom of Religion - Third Express Right and Freedom in the Constitution

If a law breaches one of the following rules, then by virtue of s116 CACA 1901, the law shall be invalid:

1. No law establishing a religion.

a. Giving money to religious schools is not enough to establish a religion: DOGS Case

2. No law prohibiting the free exercise of any religion.

a. a law is invalid if one of the objects of the law is to prevent the free exercise of religion; and, the law is

not proportionate to some overriding community purpose: Kruger v Commonwealth (1997)

3. No law imposing religious observance.

4. No religious test for office or public trust

Interstate Discrimination - Fourth Express Right and Freedom in the Constitution

s117 CACA 1901 does not allow any laws to be made where a resident of a State is subjected to any disability or

discrimination, that would not be equally applicable to them if they were a resident in such other State

• As long as the law applies to everyone, it does not constitute discrimination: Henry v Boehm (1973)

• If the effect of the law makes it harder for a person out of State and it is okay for the person still living in the State, then

can count as Interstate Discrimination: Street v Queensland Bar Association (1989)

Implied Rights & Freedoms

1. Right: The right to x, means that the government must ensure that you have x.

2. Freedom: Freedom of x, means that the government cannot take away your ability to do x (assuming you have

such ability).

3. The implied freedom of political communication means that the government cannot stop people from

communicating about political matters where they have the ability to do so.

4. IFPC applies to citizens at all times and not just during the election period: (Lange case)

5. The Common Law must conform to the constitution and where there is an inconsistency, the Common Law must

conform + Defamation is not inconsistent with IFPC due to “qualified freedom to discuss government and politics

required by the constitution” exception (Lange case)

NB: McCloy test only used in IFPC

15


Week 10 Topic 10: Separation of Powers

NB: In a Westminster system (responsible government) the Executive and the Legislature are mixed but there is a strict

separation between the Judiciary and the other branches at the Commonwealth level.

NB: Separation of powers is seen as a limitation of governmental powers as a breach of the separation of powers invalidates

a law made by parliament or an act of the executive. An example will be where parliament makes a law or the executive

performs an act which asks the judges to perform a non-judicial act or parliament/executive tries to perform a judicial act.

NB: At the State level a separation of powers does not exist, but there is an influence.

NB: s1 Constitution vests parliamentary powers in the Parliament

NB: s61 Constitution vests executive power in the Executive

NB: s71 Constitution vests judicial power in the Judiciary

NB: s51 & s52 are elaborations about what the legislative power are

Judicial Power

s71 CACA 1901

“The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of

Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal

jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament

prescribes”.

• Judicial power is vested in High Court, Federal court and any court with federal jurisdiction

• High Court consists of a Chief Justice + at least 2 Justices decided by parliament

What is Judicial Power?

• Rule 1: Only Chapter III Courts can exercise JP

• Rule 2: Chapter III Courts cannot exercise non-JP (which is non-incidental)

• NB: Chapter III Courts = High Court + Federal Court + Any court with federal jurisdiction

Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909)

• Judicial power is the sovereign authority to decide legal controversies over rights which relate to life, liberty or

property. Exercising this power can only take place in some tribunal which has the power to give a binding and

authoritative decision (whether subject to appeal or not)

Binding and authoritative

Brandy v HREOC (1995)

Hearing de novo: fresh hearing, can hear both facts and point of law.

Appellate hearing: can only decide matters of law, not factual issues.

• If decision of A is appealed to a court, and the court can have a hearing de novo likely A is not exercising JP.

• If decision of A is appealed to a court, and the court can only have an appellate hearing likely A is exercising JP

o A binding and authoritative decision is where a decision in a lower court/tribunal is appealed to a higher

court and the higher court is only able to decide on matters of law, not factual issues (appellate hearing).

Tribunals are said to not exercise Judicial Power as when there decisions are appealed to the Supreme

Court, the Supreme Court is able to hear both matters of fact and law (de novo hearing): Brandy v

HREOC

Other Indicia

• Historical Practice

• Are the criteria for power broad and policy focused?

• Does it follow the usual court processes?

NB: indicia is a factor which indicates whether there is JP or not

Documents

Constitutional Law Exam Notes - StudentVIP