Essays:Federalism One of the fundamental features of Australian constitutionalism is federalism. The concept of federalism is identified by the concept that the powers of government is distributed between two levels. Firstly, central government (federal) takes care of whole territory and population of the sovereignty and secondly, local government or the state takes care of particular areas.

In Australia, the distribution of legislative powers between the commonwealth and the states is vastly different from the original distribution of powers enshrined in the federal constitution adopted on January 1 1901The distribitution of federal powers is in large part set out in s 51 of the constitution that gives particular enumerated powers for the commonwealth to make laws.

The structure of our federal system is structured between legislature and executives at both levels.

A discussion of federalism begins with the Engineers case.Prior to Engineers case High Court had developed two doctrines that had a restrictive effect on the scope of federal constitutional powers. The first, was the doctrine of implied intergovernmental immunity and therefore the constitution ought to be interpreted in a way that ensured that the commonwealth was immune from the operation of the legislation of the states and vice versa. As demonstrated in Demden v pedder. Implied intergovernmental immunity was the belief that the federal and state levels were sovereign in the separate areas described by their respective constitutions. The second restriction on the scope of federal constitutional powers was based on the Doctrine of reserved powers. These reserved powers of Commonwealth stated that it could not exercise its legislative power in a way that interfered with the residual or reserved powers of the states falling outside the list of enumerated powers.

However, although Australian federalism has a strong focus on the powers of the commonwealth over the states the high court has recognized the principle in Melbourne Corporation v Commonwealth that provides a degree of protection of the states against the commonwealth. The Melbourne corporation doctrine states that the commonwealth cannot impose special burdens or disabilities on a state or states to function as a government.

It is also a basic principle of federalism the commonwealths powers do not operate automatically to reserve any subject matter for legislation of the commonwealth as illustrated in Pirrie v McFarlane.The engineers case is significant because the majority rejected the doctrines of state reserved powers and implied intergovernmental immunity. Majority noted that there was nothing in the text of the constitution that indicated any limitation on the power of the commonwealth to exercise their power under s 51 xxxv.

From there,Federal legislative supremacy is reinforced by the presence of s 109 which states that state laws are inoperative insofar as they are inconsistent with federal laws. Two types of legislative power:

1. Concurrent state law can operate in a field left vacant by federal law.

2. exclusive powers

Furthermore, It is important to note that several of commonwealths defence and taxation powers have reinforced the subjection of the states.

Pirrie v McFARLANE commonwealth does not automatically have jurisdiction if nothing explicit.

Pirrie v. McFarlane commonwealth has exclusive powers to make laws with respect to matters relating to naval or military defence.

Certain areas give commonwealth exclusive power that gives it special immunity from the operation of state laws.

However, there are also several areas where the commonwealths legislative powers contain limitations. i.e. s 51 (i) trade and commerce between states and other countries.

PARLIAMENTARY SUPREMACY

Parliamentary Supremacy is the power to make or unmake any law within that sphere of competence. This doctrine, and its operation within the Australian states is considered at the federal level in Kartinyer .

Parliamentary supremacy is not absolute because the exercise of legislative power can be checked by the will of the people expressed in elections.

CONSTITUTIONAL INTERPRETATION

Australian Constitutional interpretation is characterized by several different approaches. Most discussions regarding interpretation of the Australian constitution begins with the principle set out in Engineers case. The principle in engineers states that the words of the constitution are to be given their natural and ordinary meaning.

A majority of the high court held that the constitution should be interpreted in accordance with the ordinary principles of statutory interpretation , rather than be consistent with any implied doctrines.

A closer analysis of what is meant by the natural and ordinary meaning as set out in Engineers forces an examination of what the constructors of the constitution intended to be the natural and ordinary meaning. This requires a historical analysis of the context in which they used the words.

An ambulatory approach to the constitution suggests that the constitution has an original or essential meaning which is fixed by history and interpretions should have regard to that historical context and contemporary circumstances Street v Queensland. This approach of examining the meaning of the terms as they were given at the construction of the constitution was given further support in Union Label Case.

The principle from Cheatle v the queen requires that the constitution should be interpreted in accordance with contemporary values. This requires an identification of those values.

Furthermore, the high court has traditionally expressed a preference for a broad interpretation of commonwealth constitutional powers Jumbunna Coal mine.

In Newcrest Mining v The commonwealth as well as Kartinyeri Kirby J suggests the approach to interpret the an ambiguous provision of the constitution in accordance with principles of fundamental rights and international standards. Although this was rejected by Callinan in Western Australia v WardWhile the majority judgments in the engineers case emphasized the primary importance of the express language of the constitution, the necessary role of implication is significant in constitutional interpretation West v Commissioner of Taxation. However it ought to be briefly noted that the use of implication in constitutional interpretation comes from the necessarily implied meaning.Examples of implied rights:

Implied rights and freedoms within the Australian constitution demonstrate the importance of the instrument of implication in Constitutional interpretation. Implied freedom of political communication governmental matters lange. Implied doctrine of separation of powers, that the role of the judiciary should be kept separate from the role of the parliament.

There is also an implication from Chapter 3 of the constitution that a body exercising a judicial power must do so in a manner that is consistent with traditional notions of what constitutes judicial process, a right to due processS 80 is a literal approach

RIGHTS One of the reasons for the exclusion of a bill of rights in the Australian constitution that individual rights were on the whole best left to the protection of the common law and the supremacy of the parliament Kruger v commonwealth. However, the Australian Constitution contains few express human rights guarantees. Essentially, it is a document designed to govern the distribution of legislative power between the States and the Commonwealth.

The inclusion of a Bill of Rights was debated in the years leading up to Federation, including at the 1897-1898 Constitutional Conventions but was specifically rejected. To a large extent, the Convention delegates believed that the constitutional entrenchment of the doctrines of responsible parliamentary government and separation of powers would itself provide the best protection for human rights. There was also, however, a fear that express provisions to protect human rights, such as an equal protection clause, would prevent the operation of existing racially discriminatory laws aimed at Aboriginal people and the Chinese immigrants who came to Australia to work in the goldfields.

The Constitution does contain a small number of individual rights. The Australian constitution has few instances where it contains express protections of an individuals rights or freedoms:

S 51 xxxi

S 80

S 92

S 116

And

S 117

However, since 1992 the court has developed a jurisprudence of implied rights and freedoms most dramatically in its decisions in Australian Capital television v commonwealth and nationwide news v wills in which the court found that the commonwealth constitution, particularly those that describe representative government confer an implied freedom to discuss political and governmental affairs.

In a series of decisions commencing with Polyhukovich v commonwealth and chu kheng lim high court judges recognized certain due process limitations flow from the separation of judical power effect by Ch III of the constitution.TheyAustralia is one of the few countries that does not contain a bill of rights. It is important to note the distinction between:

1. constitutional protection

2. statute basedIn a constitutional bill of rights such as those in Canada and the United States the charter or bill of rights is contained with the constitution. This is significant because in such circumstances the rights are constitutionally protected aand cannot be overridden by statute. However, in a statute based system such rights may be overridden either by the constitution or by express or implied limitation of other statutes.

There is a common claim that the protection of an individuals rights in a constitution does not have practical application. Such critiques point to historical and social examples such as the discrimination of African Americans and the resistance to the civil rights movement.

However, I would argue that the constitutional protection of rights and freedoms has an ideological purpose. It says that we as a community or nation, recognize and preserve the ability to give an individual the protection and standing they are entitled to as a human being and are dignified with universal rights.

In the absence of a Bill of Rights, any human rights protected under the common law may be overridden by an ordinary act of Parliament.

However, this is not to suggest that a bill of rights would entrench rights into a constitution. For example, section 1 of the Canadian charter of rights and freedoms states that the following provisions are only subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Several High Court decisions illustrate the significant limitations of the role that the Australian judiciary currently plays in ensuring the protection of fundamental human rights and freedoms. High Court decisions concerning issues such as immigration, racial discrimination and the indefinite detention of habitual criminal offenders have revealed significant deficiencies in the protection of human rights within Australia. These decisions regarding

rights protection within Australia provide the background for discussing the need for a national Bill of Rights.

IMMIGRATION CASEShe most controversial of these cases was the majority decisions of the High Court in Al-Kateb v Godwin and Minister for Immigration and Multicultural Affairs v Al Khafaji37. These appeals challenged the legality of the detention of two unlawful non-citizens under sections 189, 196 and 198 of the Migration Act 1958 (Cth) in circumstances where they were likely to be detained indefinitely for the foreseeable future. The High Court, by a 4:3 majority, upheld the legality of the detention.RACIAL CASES

The Hindmarsh Island Bridge Case raises the possibility that section 51(xxvi) provides the Commonwealth Government with direct constitutional authority to enact legislation directly discriminating against or disadvantaging a particular race. The case provides an example of a legal ambiguity that could be easily clarified by reference to an Australian Bill of Rights that includes equal protection as one of its fundamental aims.

Section 51(xxvi) of the Constitution is an example of a provision that has

24often been cited as providing a measure of constitutional protection to rights but which, in reality, does not necessarily do so. Depending on the way section 51(xxvi) is interpreted by the High Court in the future, it is possible that it permits the federal Parliament to enact discriminatory laws to disadvantage a particular racial group and provides direct constitutional authority to override anti-discrimination legislation.

INDEFINITE DETENTION OF HABITUAL CRIMINAL OFFENDERS

Fardon v attorney These advantages are criticized and countered by critics of a national Bill of Rights. They argue that the current Australian political system provides the best guarantee for human rights, through traditions such as responsible parliamentary government, separation of powers, free and regular elections, federalism and an independent judiciary. They suggest that the adoption of a Bill of Rights is inconsistent with the principle of parliamentary sovereignty because it would transfer power from elected parliamentarians to unelected judges by giving an unrepresentative judiciary the ability to invalidate legislation adopted by the peoples own parliamentary representatives. They argue that giving judges this type of power over central social issues would politicize the courts, diminish respect for the judiciary by allowing activist judges to flourish and result in judges being appointed primarily on political rather than legal merits.

It is important to make the distinction between two common forms of bill of rights:

Constitutional Law Problem Solving Typology

1. Identify the power(s) the Commonwealth might invoke to support the law.

2. Describe the ambit of the power(s) by reference to the relevant case law.

3. Characterise the law consider what rights, duties, obligations, privileges or immunities the law creates, affects or destroys and whether those rights etc are sufficiently connected or reasonably appropriate and adapted to the power(s) invoked to support them.

4. Reach a conclusion as to the validity of the law and advise the client.

5. Identify the prohibitions or limitations that might be invoked to strike down the law.

6. Describe the ambit of those prohibitions or limitations by reference to the relevant case law.

7. Characterise the law to consider whether it is struck down by the prohibitions or limitations (ie. Interpret the law and apply the relevant tests)

8. Reach a conclusion as to the validity of the law and advise the client. CHARACTERISATION In the Engineers case the high court said that the words of the constitution are to be given their natural and ordinary meaning. Although the High court stressed the importance of the express language of the constitution in the Engineers case, implications have a role in the interpretation of the constitution West v commissioner. A valid law must be capable of being characterized as being within a Commonwealth head of power Fairfax v federal commissionaer of taxation. The question whether a law may be described as being with respect to a head of power is one of degree. It must be demonstrated that the law in question is sufficiently connected or incidental to the power or powers invoked to support it order for it to be valid Re Dingjan

An ambulatory approach to the construction of the constitution is that the language has an original or essential meaning which is fixed by history Union lable case.

In the engineers case Knox CJ, Isaacs , Rich and Starke JJ said that the constitution should be read naturally in the light of the circumstances in which was made, with knowledge of the combined fabric of the common law and the statute which preceded it.

The high court recognizes that interpretations of the constitution must be adapted to accord with contemporary standards cheatle v the queen

Jumbunna v Victorian always take the wide or broad approach.

Melbourne Corporation doctrineThe constitution predicates their continued existence as independent states. The fundamental purpose of the constitution and its very frame reveal an intention that the power of the commonwealth to affect the states by its legislation must be subject to limitation:

1.a general law made under a head of power will be invalid it would prevent a state from continuing to exist and function as such

2. if it discriminates against the states in that it imposes a special burden or disbility.

Melbourne Corp doctrine further established in Austin that says really only one limitation and that is an assessment of the impact of particular laws by such critera as special burden and curtailment of capacity to function as governments.

The federal legislative supremacy established by engineers doesnt say that states cant enter federal fields but only that their laws may be overridden by virtue of the operation of s 109 in the event of a clash.

Pirrie v McFarlane driving case.. commonwealth enjoys exclusive power that gives it special immunity from the operation of state laws.

STATES

Existence of the states are confirmed in s 106.

The states enjoy general legislative power to make laws for the peace welfare and good government of the respective state. The meaning of the phrase was considered in union steamship describes a plenary power, or not subject to limitation.

Section 2(1) of the Australia Act states that legislative powers of parliaments of states include full power to make laws for the peace order and good government of that state that have extra-territorial operation.

There must be a connection between the state and the matter regulated Pearce v Florenca Pearce v Florenca

TERRITORIES

requires a sufficient connection Section 122 provides: the parliament may make laws for the government of any territory surrendered by any state to an and accepted by the commonwealth, and may allow the representation of such territory in either the house of the parliament to the extent and on the terms which it thinks fit.

The conclusion that s 122 is plenary has been supported on two principal grounds:

1. Spratt v hermes say s 122 gives to the parliament legislative power of a different order to those given by s 51. The power is not only plenary but is unlimted by reference to subject matter.

2. It is not like the sub-sections of section 51 expressed to be subject to the constitution.

However, more recent cases such as Capital Duplicators suggest an approach that considers the relationship between s 122 and other provisions of the constitution on a section by section basis. The scope of s 122 is qualified by other provisions in the constitution and it is necessary to take an approach that treats the constitution as a whole.

(S 51 I and the territories?? Because it says among the statesThe plenary power of the territories power has been completely dismantled.

The application of Chapter 3 to the territories Bernasconi says that chapter 3 doesnt apply to the territories

Spratt v Hermes was challenged in Eastman

NAALAS v Bradley- three things:

1. court of the territory may exercise the judicial power of the commonwealth prusant to investment by laws made by the parliament.

2. Implicit in the terms of Chapter III of the constitution, that a court capable of exercising the judicial power of the commonwealth be and appear to be an independent and impartial tribunal

3. Minimum requirement/characteristics of an indepenent and impartial tribunal ercising the jurisdiction of the court

The conclusion in Bradley is an implication arising that Chapter 3 of the constitution applies to the territories and that the decision in bernasconi will unlikely be upheld in the future.

TRADE, COMMERCE AND INTERCOURSE

requires SC or reasonable appropriate and adapted to Section 51 (1)

CHARACTERISATION

The character of the TAC power must be determined by reference to the rights powers, liabilities, duties and privileges which it creates and that its practical as well as legal operation must be examined to determine whether the is a sufficeitn connection between the law and the head of power in s 51 (i) Grain pool of western australi v the commonwealth.. if a connection exists between the law and the relevant head of power the law will be with respect to that head of power unless the connection is so insubstantial, tenuous, or distant that it cannot sensibly be described as a law with respect to that head of power re dingjan.

In the exercise of the TAC power the parliament can validly regulate the conduct of persons employed in those activities which form part of the trade and commerce with other countries and among the state Australian steamships v malcom.

The connection between the matter and the activity trying to be regulated must be sufficiently connected to the trade and commerce power s 51(I) OSullivan

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: trade and commerce with other countries and among the states.

The meaning of the words trade and commerce is meant to be interpreted according to its practical meaning and involves the movement of 1. Goods, 2. Peoples or 3. Intangibles McArthur.Australian national Airways and Commonwealth suggest that the meaning of the words should be construed broadly and flexibly to allow for the changing of meaning over time.

An extensive definition of TAC was provided by Dixon J in Bank of New South Wales v Commonwealth the attempt to confine the subject matter to physical thigns and persons would be quite out of keeping with all modern developments.

Prepatory to trade/ manufacturingThe opinion that TAC does not extend to include manufacturing or production has been confirmed in Grannal v Marrickville

Section 51( i) is a power with respect to trade and commerce and therefore contemplates the regulation of topics incidental to the regulation of trade. This requires a relevance to or connection with this subject Grannal The implied incidental power has enabled the federal parliament to regulate activities prepatory to trade occurring wholly within a state OSullivan v Noarlunga (meat case, regulated freezing)

The implied incidental power has enabled s 51(i) to extend to the regulation of employment relations huddart parker With other countriesSection 51(i) includes power to regulate trade and commerce with other countries. This phrase is wide enough to enable the commonwealth to prohibit, regulate and control the importation and exportation of goods for any purpose murphyores Section 51 (i) enables the regulation of a diverse and extensive range of export and import related activities. The power has authorized laws regulating charges to be paid for air flights in respect of travel to or from Australia on all sectors of flights to overseas destination r v haltonAlso supports the regulation of extraterritorial trading activies connected to overseas, trade including the conditions of sale of goods arriving in a foreign destination crowe v commonwealthINTRASTATEConsidered in isolation, an inference can be readily drawn from the language of s 51 (i) that the commonwealth has no power to regulate intrastate trade direction. However, for the commonwealth to regulate an intrastate matter within s 51(i) it is necessary for that matter to be sufficiently connected to interstate or overseas trade or commerce.

Limitations

Professions i.e. law, med not TACAn economic connection is insufficient wragg n NSW

Redfern v Dunlop commonwealth power over TAC can only extend to such intrastate TAC as is inseparably connected with inter-state TAC.

CORPORATIONS

Sufficient connection testSection 51 (XX) of the constitution provides that 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 : foreign corporations, trading, and financial corporations formed within the limitations of the commonwealth.

Foreign Corporations

Foreign corporations have been defined in obiter as corporations formed outside the limits of the commonwealth NSW v CommonwealthTrading

The word trading can be interpreted in its current and popular sense Adamsons case

Financial

The word financial can be interpreted in its current and popular sense Adamsons.

Ku-Ring-Gai says that the predmoninat activity is the activity which it was formed to undertake the borrowing of moneys to lend to its members, the lending of those moneys, the receipt of repayments and the ultimate repayment of moneys.

A corporation may be a financial corporation under the meaning of s 51 (xx) even if it is directed to activites other than the provision of finance. It need only to have financial activities State Superannuation.

The character of a corporation whether it is a trading or financial corporation is a matter that may be determined by reference to the nature of its activities either actual or intended NSW v Commonwealth

The traditional view of characterizing a corporation under s 51 (xx) is defined by reference to its purposes rather than its activities St. GCC. However, the high court has preferred a test which makes reference to the actual activities of corporations rather than the purposes for which they were incorporated. However, in Fencott v Miller the majority agreed that a test examining the purposes or intended activities could be applied in circumstances where a corporation had not yet commenced activities.

Trading activities do not need to form the predominant part of the activities of a corporation for it to be a trading corporation for the purposes of s 51(xx) State superannuation Quickenden v OConnor held that 18% of a corporations trading activities is sufficient to define a corporation for the purposes of s 51 (xx).

Section 51 (xx) does not give the federal parliament the power to incorporate companies under that power Huddart parker and therefore only gives the commonwealth power over foreign, trading or financial corporations that are already formed.

While the commonwealth does not have the power to incorporate trading or financial corporations under s 51 (xx) it may incorporate companies for purposes incidental to other heads of power Strickland

SCOPE

Once a corporation has been identified as a foreign, trading or financial corporation in accordance with the tests considered above then the commonwealths power over that corporation is plenary Tasmanian DamWork Choices Re Pacific Coal Gaudron says that s 51 (xx) allows for regulation of the activites, functions, and business of a corp, and further allows for the regulation of those whom work these corpos including employees and shareholders.

RACE POWER

S 51 (xxvI)

An aboriginal person gibbs v capewell aboriginal person has certain characteristics

small degree of aboriginal descent coupled with genuine self identification or with communal recognition

Purpose of race power is to pass laws discriminating against or benefiting the people of any race. That power has included a power to make laws benefiting the people of the aboriginal race.

Koowarta v Bjelke-Petersen the application of the race power may be benevolent or repressive, may be directed to any aspect of human activity, so long as they are with respect to the people of a race such as is described.

Characterization Three step approach:

1. koowarta v bjelke, court determines whether the commonwealth has passed a law that singles out and affects a particular race. There is also substantial judicial authority for the proposition that the races power can be used to regulate sub-groups of races Tasmanian dam

2. court ascertains whether the law under challenge is special Native title case . A special qualitiy appears when the law confers a right or benefit or impose an obligation or disadvantage especially on the people of a particular race

3. It must be deemed necessary for the race concerned kartinyeriEXTERNAL AFFAIRS

To be a law with respect to external affairs the law must be reasonably capable of being considered appropriate and adapted to

GEOGRAPHIC EXTERNALITYThe commonwealth can use section 51 (xxix) to legislate with respect to anything geographically external to Australia NSW v Commonwealth

The power extends to places, persons, matters or things physically external to Australia. The word affairs is imprecise, but it is wide enough to cover places, persons, matters or things. The word external is precise and unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase external affairs.

IMPLEMENTATION OF INTERNATIONAL OBLIGATIONS

No limit as to subject matter: R v Burgess; ex parte henry

The external affairs power an authorize the implementation of international obligations within the States Commonwealth v Tasmania and also in the territories Newcrest Mining

Allows the federal parliament to enable legislation with retrospective effect Polyukvich

The external affairs power also extends to measures to combat terrorism Thomas v Mowbray

A) Laws on their face dealing with foreign relations R v Sharkey . 1. Extradition of fugitive offenders Mcarthur v Williams 2. Exclusion or deportion of aliens Robtelmes v brennan MATTERS OF INTERNATIONAL CONCERN

Koowarta LIMITS

The external affairs power is expressed to be subject to the constitution and is accordingly subject to any express or implied limitations on the constitution. Therefore, the external affairs power is not limited by any of the other provisions such as TAC R v Burgess

The Commonwealth may not cite an international obligation as a sham or circuitous device to attract legislative power

In a number of decisions there are dicta that suggest that the Commonwealth may not enter into an international treaty merely as a device to attract jurisdiction to itself which it would not otherwise have: Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1 at 218219, 259. It has been suggested that any international treaty to which Australia is a party must be bona fide: R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642, 658, 669 and 687.

The issue was considered in Horta v The Commonwealth (1994) 181 CLR 183. In that case the Court considered the question whether the propriety of the recognition by the Executive of the sovereignty of a foreign nation over foreign territory was justiciable: at 195196. The Court remarked that this question could only be considered in circumstances where there was a sham or circuitous device to attract legislative power: at 196. As indicated above, this would be a question of fact for the Court to decide, when it is determining whether an international obligation exists.

EXECUTIVE POWER

The executive power extends to the execution and maintenance of the constitution and the laws of the commonwealth s 61. In order to assist the protection of executive aims, the federal parliament may use its power in s 51(xxxix) to make laws with respect to: matters incidental to the execution of any power vested by this constitution in the parliament or house.

It is well established that the executive power may be used to authorize legislation imposing criminal sanctions for seditious or subversive conduct.

Burns v Ransley directly asked what Australian communist party would do if attacked said they would fight against Australia. The executive power and the express incidental power authorized the federal parliament to make laws for protection against subversive activities for the purpose of preserving the constitutional power and operations of governmental agencies and the existence of government itself.

In R v Sharkey Sharkey, a member of the communist party, made comments which were published in a newspaper to the effect that if Australia was attacked by soviet union, communist party would welcome them.

Ratio: recommends a wide approach the prevention of attemps to excite hostility where obedience is necessary for the effective working of government appears to be recognized as a proper purpose of the government concerned. Considers implied powers of executive.

The idea that nationhood gives rise to certain implied powers extends beyond any power drawn from a combination of ss 61 and s 51 xxxix Australian Communist Party v The CommonwealthCase concerned banning the Australian communist party. Considers an implied power to control subversion and sedition. Judge contemplating power that goes beyond the text

Australian Assistance Plan case Mason J:

In the words of s 61 the executive power of the commonwealth extends to the execution and maintenance of this constitution, and of the laws of the commonwealth. Although the ambit of the power is not otherwise defined by Ch II it is evident that in scope it is not unlimited and that its content does not reach beyond the area of responsibilities which are ascertainable from the legislative powers, and the character and status of the commonwealth as a national government

The scope of the executive power and the question whether there is also an implied power were issues explored in davis v the commonwealth.

Davis v the commonwealth act that set up the celebration of Australias bicentary. Davis was an aboriginal who made politically charged t-shirts.

Mason CJ says there is an implied nationhood power. S 61 does confer on the exec the power to engage in enterprises and activities peculiarly adapted to the government of ta nation and which cannot otherwise be carried on for the benefit of the nation. There is a variety of enterprises or activities.. not possible to provide a set test.

But Wilson and Dawson doubted the existence of an implied nationhood power- commonwealth is confined to what is granted in the constitution.

BRENNAN J davis v commonwealth if the executive power extends to the protection of the nation against forces which would weaken it, it extends to the advancment of the nation whereby its strength is fostered

Pape v Commissioner of Taxation the executive power extends to short term fiscal measures to met adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resoucrces of the commonwealth.Implied nationhood extends to short-term fiscal measure to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of tome commonwealth government.

JUDICIAL POWER The separation of powers is reflected in the chapter divisions of the Australian Constitution, which describe the three principal institutions of the Commonwealth: the Parliament (Ch I, commencing at s 1), the Executive (Ch II, commencing at s 61) and the Judicature (Ch III, commencing at s 71). Chapter III, The Judicature,

First, only Chapter III Courts can exercise Chapter III power. Second, Chapter III courts can only exercise Chapter III power, and powers that are incidental to judicial power: New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54.

Boilermakers case says that only chapter 3 powers are reserved to chapter 3 courts, but that chapter 3 courts cannot exercise non-chapter 3 powers. Specifically, Boilermakers addressed the constitutionally validity saying that a ch III court could not exercise both judicial power of the commonwealth and arbitral power.

However, there are certain exceptions to the law that chapter 3 judges cannot operate in courts.

Delegation of judicial power

Harris v caladine two conditions:

1. the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter the judge constitute the court.. judges must continue to bear the major responsibility for the exercise of judicial power

2. the delegation must not be inconsistent with the obligation of a court to act judicialy and that the delegated action must be subject to review or appeal by a judge or judges of the court.

Personna designata principle

Another major exception to the strict separation of judicial power is the persona designata rule that Chapter III judges may be appointed to undertake Chapter II tasks in some circumstances: Hilton v Wells (1984) 157 CLR 57.

The conditions that apply to any appointment under the persona designata rule were considered in Grollo v Palmer (1995) 184 CLR 348 and in Wilson v Minister for Aboriginal

Two conditions:

1. no non-judicial function that is not incidental to a judicial function can be conferred without the judges consent

2. no function can be conferred that is incompatible either with the judges performeance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. Nicholas v Queen 1998 held by 5-2 that the commonwealth parliament can vary the burden of proof in civil and criminal matters.

Before examining the different approaches that may be taken to the definition of judicial power it is important to note that judicial power of the Commonwealth is exercised in matters. The meaning of the word matters was considered in Re Judiciary and Navigation Acts (1921

The Court held that the word matters did not extend to the delivery of advisory opinions (a proposition recently confirmed in Re Wakim; Ex parte McNally

Judicial tenure Section 71 of the Constitution gives the Federal Parliament the power to create Federal Courts and s 72 guarantees Federal judges judicial tenure. Section 72 also describes the conditions of appointment, removal and remuneration of Federal judges. It states:

Judges' appointment, tenure, and remuneration72. The Justices of the High Court and of the other courts created by the Parliament-

(i) Shall be appointed by the Governor-General in Council:

(ii) Shall not be removed except by the Governor-General in Council, 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:

(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age...

Judicial independence requires tenure and financial security.

Sir Anthony Mason has written that financial security is an indispensable condition of a strong and independent judiciary: 1990, 179. This requirement is entrenched in s 72(iii) of the Constitution. For federally-appointed judges, remuneration amounts are set by an independent tribunal, made public, and done by way of an open determination from time to time. That is, the amount of remuneration is established and applies indefinitely, not for a finite period (a situation that would create the spectre of judges tailoring their judgments to suit the government as the period of remuneration reached its conclusion).

How should judicial power be defined?

Judicial review and judicial remedies courts issuing injunctions only chapter 3 however there are exceptions In SGH Limited v Commissioner of Taxation [2002] HCA 18 at [40] [44], Gummow J remarked (in a different context but in words no less apt to an understanding of the meaning of judicial power): When work out what the const mean there is no embracing theory that emerge to explain violation no set rules!

No single correct theory there are many approaches

In the judicial power context there are 3 approaches ---

Some judicial powers are okay because of historical reasons --- criminal guilt power of the courts today it means subject of dispute

Analytical approach = central characteristics of judicial decision making Functional approachThe power to adjudicate on existing legal rights and liabilities between persons is exclusive to courts (Waterside Workers' Federation of Australia v JWAlexander Ltd (1918) 25 CLR 434 at 442, 464-465).

The power to determine criminal guilt is an exclusive power of courts (Re Tracey; ex parte Ryan (1989) 166 CLR 518 at 580; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 22) that cannot be excluded from courts (Polyhukovich v The Commonwealth (1991) 172 CLR 501).

The separation of judicial power guarantees that Ch III courts will not take instructions from the legislature regarding the manner in which their jurisdiction will be exercised, or the result of a case: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Kable v DPP (NSW) (1996) 189 CLR 51.

To that end, a Ch III court has a duty to act and to be seen to be acting impartially: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Nicholas v The Queen (1998) 193 CLR 173 at 188. In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27, Brennan, Deane and Dawson JJ said that the Parliament could not require or authorise courts exercising judicial power of the Commonwealth to exercise judicial power in a manner which is inconsistent with the essential character of a Court or with the nature of judicial power.

A binding decision Non-judicial tribunals can adjudicate disputes relating to legal rights and obligations arising from the operation of the law upon past events or conduct but the power to make a binding decision is an exclusively judicial power. The word binding has a specific meaning in this context, referring to the enforceability of the decision. The principle that only a Court exercising judicial power can make a legally enforceable decision was reconfirmed recently in Brandy v Human Rights and Equal Opportunity Commission (1995)

An authoritative, conclusive decision Judicial power is characterised by the power to make an authoritative decision on a question raised in a controversy relating to life, liberty or property. The word authoritative, like the word binding, also has a special meaning in this context, meaning conclusive. Only a court can make a conclusive determination of law: see ie. Luton v Lessels

FREEDOM OF RELIGION

Section 116 commonwealth shall not make any law for establishing any religion, or for, imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth.

What is a religion?

The leading case on the meaning of the term religion comes from the Scientology case. Mason ACJ and Brennan J said that any definition should be flexible enough to accommodate minority groups and new religious beliefs.

The critieria of religion are twofold:

1. belief in a supernatural being , thing or principle.

2. The acceptance of canons of conduct in order to give effect to that belief.

Indicia from Mason ACJ and Brennan J:

1. Particular collection of ideas and or practices involves belief in the supernatural, a reality that extends beyond what is capable of perception of the senses. If that is absent it is unlikely that one has a religion.

2. That the ideas relate to mans nature and place in the universe and his relation to things supernatural

3. The ideas are accepted by the adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significances

4. Closely knit community an identifiable group(s)

5. The adherents see themselves as part of the group.

Murphy J develops a wider test: any body which claims to be religious, and offers a way to find meaning and purpose in life is religious

Four parts of s116

1. Establishment clause- The commonwealth shall not make any laws establishing any religion. The leading case for the establishment clause is the Defence of Government Schools case. The sponsorship must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution.

2. Religious observance no high court decisions considering this clause.

3. Free exercise of any religion Krygger v Williamson. Griffith CJ interpreted the phrase as referring to prohibiting the practice of religion the doing of acts which are done in the practice of religion. The leading case of the free exercise clause is The Jehovahs witness case any body that is prejudicial to the defence of the commonwealth or the efficient prosecution of the war is hereby declared to be unlawful.

Latham cj said: protection fo any form of liberty as a social right involves the continued existence of that society

Starke J subject to limitations such as are reasonably necessary for the protection of the community and in the interest of social order

Rich J freedom of religion is not absolute. It is not subject to powers and restrictions of government essential to the preservation of the community. Freedom of religion may not be invoked to cloak and dissemble subervsive opinions or practices and operations dangerous to the commonwealth

The freedom to exercise religion in s 166 does not prevent the commonwealth from enacting a lwa which has the unintended incidental effect of limiting the capacity to observe a religion Attorney general (vic)POLITICAL COMMUNICATIONThe system of representive government created by s 7 and 24 require that members of the senate and house of representatives be directly chosen by the people gives rise to an implied freedom of political communication.

The scope or ambit of the implied doctrine of freedom of political communication depends on the activity being done in the set of circumstances.

I think.. if in writing theophanus

If freedom of communication was considered in Lange v ABC. S 7 and 24 of the constituion necessarily protect that freedom of communiction between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors and is not confined to election periods.

Levy A threshold question arises as to whether constitutional protection of freedom of political communication can go beyond words and be actions.. such as wearing symbols of dissent. Held in levy it could.Freedom of association: Mulholland. Toohey J regarded the freedom of association as an essential 3ingredient of political communication.

A majority of the court consisting of Mason CJ, Deane, Toohey and Gaudron in Theophanous held:

1. there is implied in the commonwealth a freedom to publish material:

a) discussing government and political matters; b) of and concerning members of the parliament which relates to the performance by such members of their duties as members of the parliament c) in relation to suitability of persons for office as members of the parliament

2. the publication will not be actionable under the law relating to defamation if the defendant establishes that: a) it was unaware of the falsity of the material published; b) it did not publish the material recklessly, that is not caring whether the material was true or false and c) the publication was reasonable in the circumstances

Analyse whether the rights being restricted here:.

Limitations: COLEMAN V POWER : two step approachThe majority in Coleman v Power building on Lange developed the following approach:

1. does the law effecitevly burden freedom of communication about government or political matters either in its terms operation or effect

2. if the law effectively burdens that freedom is the law reasonably appropriate and adapted to serve a legitimate end in manner which is compatible with the mainteance of the constitutionally prescribed system of representative government and the procedure prescribed.. Lange freedom of political communication is an indispensable incident of that system of representative government created by s 7 and s 24 of the constitution and shall be directly chosen by the people. It necessarily protects the freedom of political communication to the extent that people exercise a free and informed choice as electors. They do not confer personal rights on individuals.

Two conditions from lange:

1. The object of the law is compatible with the maintenance of the constitutionally prescribed system of representive and responsible government or the procedure for submtitting a proposed amendment to the constitution to the informed decision of the people which the constitution prescribes

2. Law is reasonably appropriate and adapted to achieving that end.

The following test applies from Coleman v power :

1. does the law effecitvley burden freedom of communication about government or political matters either in its terms, operation, or effect

2. if the law does effectively burden that freedom, is it reasonably appropriate and adapted to serve a legitimate end in am anner which is compalatbiel with the maintenace of the constitutionally prescribed system of representive government and the procedure prescribed by s 128.

In Kruger v the commonwealth Toohey and Gaudron each recognized an implied constitutional freedom of association. Toohey J regarded the freedom of association as an essential ingredient of political communication.

TRIAL BY JURY

S 80 Proceedings on indictment shall be by jury. A literal approach of s 80 was endorsed in R v Archdall giving regard to the meaning of indictable offences at the time of creation of the constitution. The literal approach has been criticized on many occasions .

The accused cannot waive their right to trial by jury says shall be trial by jury brown v the queen.Limits

The scope of s 80 is restricted by the fact that it applies to any law of the commonwealth and therefore a person must be charged with a commonwealth offence for s 80 to apply Snedden v CroatiaDoes not extend to courts martial Re Tyler; Ex pare foley