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CONSTITUTIONAL LAW

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TABLE OF CONTENTS

INTRODUCTION & BACKGROUND ................................................................................................................................... 4

LEGISLATIVE POWER: FEDERAL DIVISION OF LEGISLATIVE POWER ...................................................................... 5 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers) .................................................... 5

S 51(XXIX) EXTERNAL AFFAIRS POWER ........................................................................................................................ 7 Koowarta v Bjelke-Petersen (1982) CLR 168 ......................................................................................................... 7 Tasmanian Dams Case (1983) 158 CLR 1 ............................................................................................................. 8 Victoria v. Commonwealth Industrial Relations Act Case (1996) 187 CLR 416 .................................................... 10

GEOGRAPHIC EXTERNALITY AND OTHER ASPECTS OF S 51(XXIX) ............................................................... 12 Horta v Cth (1994) 181 CLR 183 ........................................................................................................................... 12 XYZ v Cth (2006) 227 CLR 532 ............................................................................................................................ 13

S 51(XX) CORPORATIONS POWER ................................................................................................................................ 14 Work Choices ........................................................................................................................................................ 14

STATE CONSTITUTIONS AND STATE LEGISLATIVE POWER ..................................................................................... 17 McCawley v R (1920) ............................................................................................................................................ 18

S 109 INCONSISTENCY OF STATE AND FEDERAL LEGISLATION ............................................................................. 20 R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 ................................................................... 20 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 .................................................................................... 20 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 ............................................................................................... 20 Telstra v Worthing (1999) 197 CLR 61 .................................................................................................................. 20 Ex Parte McLsean (1930) 43 CLR 472 ................................................................................................................. 21 Ansett Transport Industries (Operations) Pty Ltd v Wardley ................................................................................. 22 TA Robinson & Sons Pty Ltd v Taylor (1957) 97 CLR 177 .................................................................................. 22 OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 ........................................................................................... 23 Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 .............................................. 23 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 ................................................................... 23 Western Australia v Commonwealth (Native Title Case) (1995) 183 CLR 373 ..................................................... 24 Botany Municipal Council v Federal Airport Corporation (1992) 175 CLR 453 ..................................................... 24

LIMITS ON LEGISLATIVE POWER FROM FEDERALISM: IMPLIED INTERGOVERNMENTAL IMMUNITIES ............. 25 Engineers' Case (1920) 28 CLR 129 ..................................................................................................................... 25 Melbourne Corporation (State Banking Case) ...................................................................................................... 25 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 ....................................................... 25 Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 ..................................................................... 26 Victoria v. Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 ................................................. 27 Austin v Commonwealth (Judges Superannuation Case) (2003) 215 CLR 185 .................................................. 28

CLASS 12 - FEDERAL EXECUTIVE POWER: NATURE AND LIMITS ........................................................................... 31 1 THE NATURE OF COMMONWEALTH EXECUTIVE POWER: INTRODUCTION ................................................ 31 2 EXECUTIVE POWER: APPROPRIATION AND EXPENDITURE ......................................................................... 32

Pharmaceutical Benefits Case .............................................................................................................................. 32 Pape v Commissioner of Taxation ........................................................................................................................ 32 Davis ..................................................................................................................................................................... 35

THE FEDERAL DIVISION OF JUDICIAL POWER AND THE SEPARATION OF POWERS ........................................... 36

INTRODUCTION TO CHAPTER III AND BOILERMAKERS DOCTRINE ........................................................................ 36 Boilermakers: R v Kirby; Ex Parte Boilermakers Society of Australia (1956) 94 CLR 254 .................................... 37

BOILERMAKERS LIMB 1 ............................................................................................................................................. 38 Precision Data Holdings v Wills (1991) 173 CLR 167 ........................................................................................... 38 Brandy v HREOC (1995) 183 CLR 245 ................................................................................................................. 39 Attorney-General v Alinta [2008] HCA 2 ................................................................................................................ 40

PART I: EXECUTIVE DETENTION AND JUDICIAL POWER .................................................................................. 42 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ............................................................................... 42 Al Kateb v Godwin (2004) 219 CLR 563 ............................................................................................................... 43

PART II: THE LEGISLATIVE USURPATION OF JUDICIAL POWER ..................................................................... 44 Liyanage v R [1967] 1 AC 259 .............................................................................................................................. 45 Nicholas v The Queen (1998) 193 CLR 173 ......................................................................................................... 45

BOILERMAKERS LIMB 2 ............................................................................................................................................. 46 Re Wakim; Ex Parte McNally (1999) 198 CLR 511 ............................................................................................... 47 Thomas v Mowbray [2007] HCA 33 ...................................................................................................................... 48

PERSONA DESIGNATA EXCEPTION ..................................................................................................................... 50

Hilton v Wells (1985) 157 CLR 57 ......................................................................................................................... 50 Grollo v Palmer (1995) 184 CLR 348 .................................................................................................................... 51 Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 .................................................................................... 52

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PREVENTATIVE DETENTION AND STATE COURTS AND THE SEPARATION OF POWERS ............................... 54 Kable v DPP (NSW) (1996) 189 CLR 1 ................................................................................................................ 54 South Australia v Totani [2010] HCA 39 ................................................................................................................ 55 Wainohu v New South Wales [2011] HCA 24 ....................................................................................................... 57

FEDERALISM AND ECONOMIC UNION .......................................................................................................................... 60 THE GRANTS POWER (S 96) AND FEDERAL/STATE FINANCIAL RELATIONS ..................................................... 60

South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case) ................................................ 60 Victoria v Commonwealth (1957) 99 CLR 575 (Second Uniform Tax Case) ....................................................... 61 Attorney General (Vic (Ex Rel Black) v Commonwealth (1981) 146 CLR 559 (DOGS Case) .............................. 62 Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 .............................. 63 WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales [1940] AC 838 ............................ 63 ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 (9 December 2009) .................................................... 64

CLASS 19: STATE POWER TO IMPOSE TAXATION INTRODUCTION AND THE PROHIBITION ON THE STATE IMPOSITION OF EXCISE DUTIES (S 90) ................................................................................................................... 66

Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (for noting only) ........................................................... 66 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 ......................................................................................... 67 Ha v New South Wales (1997) 189 CLR 465 ....................................................................................................... 69

CLASS 21 FREEDOM OF INTERSTATE TRADE: S92 .............................................................................................. 72 Cole v Whitfield (1988) 165 CLR 360 ................................................................................................................... 72 Castlemaine Tooheys Ltd v South Australia (1990) .............................................................................................. 74 Betfair Pty Limited v Western Australia [2008] HCA 11 ........................................................................................ 75

REPRESENTATION AND RIGHTS ................................................................................................................................... 76 CLASS 22 VOTING RIGHTS ....................................................................................................................................... 77

McGinty v Western Australia (1996) 186 CLR 140 ............................................................................................... 77 Roach v Electoral Commissioner [2007] HCA 43 (26 September 2007) ............................................................... 79 Rowe v Electoral Commissioner [2010] HCA 46 ................................................................................................... 81

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INTRODUCTION & BACKGROUND What does the Constitution do? Establishes key government institutions Grants powers and functions to those institutions Imposes limits on those institutions What does the Constitution include? Chapter I Parliament: describes the upper and lower houses of Commonwealth parliament, but is silent

on many of their conventions Chapter II Executive: the Executive includes the Queen, GG, Federal Executive Council, Public

Servants, Ministers (PM, cabinet), statutory authorities, ASIO/ASIS; etc. Chapter III Judiciary: establishing the High Court and outlining its original (s 75) and appellate

jurisdiction (s 73). Chapter IV Finance and Trade Chapter V States What fundamental concepts and ideas underlie the Constitution? Separation of powers (reflected in the structure of the Constitutions first three chapters) Rule of law Federalism What is federalism? Federalism is a two-tiered system of government in which power is divided between central and

state/regional governments. Australias system can be described as centralised federalism, as the States (then colonies) become

State governments (retaining their own identity) while establishing an additional federal government. This is different from decentralised federalism where a unitary state breaks down into multiple independent governments whilst retaining some federal level of organisation.

In centralising federalism, there is often a concern over retaining power. As a result, much of the Commonwealth Constitution is focused on making arrangements for power sharing between the Commonwealth and state governments.

In Australia, the power of the states is plenary: ss 106 and 107 of the Constitution provide that States have all the powers they had before federation, unless the Constitution takes that power away or gives it exclusively to the Commonwealth.

Australias Commonwealth government does not have plenary power: its power is limited to those given in the Constitution. Those powers can be concurrent or exclusive powers.

A power will be an exclusive power of the Commonwealth (and thus outside the power of the States) if:

- Taken away from States (s 114) - Explicitly exclusive to Cth - Implicitly exclusive to Cth (e.g. s 122, s 51(iv))

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LEGISLATIVE POWER: FEDERAL DIVISION OF LEGISLATIVE POWER

The Heads of Federal Legislative Power The Commonwealths legislative power is not plenary. In order to make a law, the power to make the

law must be identified in the Commonwealth Constitution. Section 51 lists 40 matters with respect to the Cth parliament can exercise legislative power: also

known as placita (or individually, as a placitum). These powers, per the wording of s 51 itself, are subject to the rest of the Constitution. Therefore,

while the powers in s 51 might appear quite broad on their face, they are often interpreted more narrowly so that they fit with the rest of the Constitution.

How to determine whether a law is with respect to a head of Commonwealth legislative power:

(1) Interpret the power: the head of power, independent of the particular law. (2) Characterise the law: to determine whether it is with respect to the head of power as

interpreted. Before the Engineers case, the Court used several guiding principles to aid them in this process:

Reserved State Powers Doctrine Principle of Constitutional interpretation: if a Cth legislative head of power could be interpreted broadly or

narrowly, the narrow meaning was to be adopted to prevent Cth legislation intruding on State legislative power (areas traditionally reserved for the states).

Rationale: in a federal system, it was necessary to protect the states and their interests Doctrine of Immunity of Instrumentalities Mutual and reciprocal implied prohibition on the use of Cth and State powers (Cth and State executive and

instrumentalities were immune from each others laws). Underlying rationale: The implied immunity of instrumentalities doctrine asserted that, given two levels of

government in the same geographical territory, the governments must normally be immune from each others laws. This was not because the Constitution said so but because this was implied in the very idea of federalism.

When a state attempts to give its legislative or executive authority to an operation which would fetter, control, or interfere with the free exercise of the legislative/executive power of the Cth, the attempt (unless expressly authorized b the Constitution) is to that extent invalid and inoperative.

E.g. Cth and its officers exempt from stamp duty legislation, and States and instrumentalities protected from Cth industrial relations legislation.

However, Engineers overturned these doctrines: and emphasised that the approach is about

interpreting the power.

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers) Authority for: Overturns reserved state powers and implied immunity of instrumentalities doctrines Facts:

Engineers union lodged claims against employers throughout Australia, demanding an increase in wages and improved conditions for engineers. These employers including WA government enterprises.

The society began proceedings in the Commonwealth Arbitration Court. The jurisdiction of this court was provided by the Conciliation and Arbitration Act 1904 (Cth). This Commonwealth law gave the Court jurisdiction to prevent and settle all industrial disputes extending beyond the limits of any one state.

The Constitutional provision purportedly authorising the Cth Act was s 51(xxxv). The WA government argued that the Cth did not have the power to make laws binding on the

states with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one state, basing their arguments on the reserved state powers doctrine and the doctrine of immunity of instrumentalities (not that the law was invalid; but that it could not apply to the states).

Issue: Could an industrial award, made under the Commonwealth Conciliation and arbitration Act 1904 (Cth) enacted pursuant to the conciliation and arbitration power in s 51(xxxv) of the Constitution, validly apply to and bind the State? Held: states, and persons natural or artificial representing States, when parties to industrial disputes are subject to Cth legislation under s 51(xxxv), if such legislation on its true construction applies to them. Here it applied to them.

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Reasoning: There is no basis for the doctrine of immunity of instrumentalities or the reserved state powers doctrine

in the Constitution. The Act was Constitutional in its application to the states. S 51(xxxv) is general enough to extend to all industrial disputes extending beyond the limits of any one

State. There was nothing in those words to exempt industrial disputes in which states are concerned. There is no other limitation of this power in the Constitution (including s 107, which merely preserves

state powers; it is a fundamental error to read s 107 as reserving any power from the Cth that falls squarely within an express grant in s 51 of the Constitution).

The doctrine of implied prohibition finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning.

In cases of conflict between legislation, we give the Cth legislation supremacy (s 109). Principles of interpretation Rejecting doctrine of political necessity: too vulnerable to the passions and biases of judges. Ordinary rule of statutory interpretation: golden rule (plain meaning but in the context of the text as a

whole) without speculating on the intentions or motives of the drafters (literalist); with knowledge of the combined fabric of the common law and the statute law which preceded it (slightly different from pure literalism; although still a literalist approach in focusing closely on the text).

Courts approach to interpretation o (1) Go to the power first, and interpret the words (in this case s 51(xxxv) literal interpretation -

words general enough to cover the state, nothing there to create an exemption for states) o (2) Anything else in the text (Constitution subject to this Constitution)? No (including s 107). o (3) Any other implied limitations?

Rejects doctrines above. Effects of the case: a big step towards the dominance of the Cth in the federal relationship: the laws made by the Cth will now apply to states, so long as it can find a basis for that power in the Constitution (IE s 51). Furthermore, consider the combination of this case with s 109; and the Cths economic powers in s 96). As for interpretation of Constitution, moving away from originalism and intentionalism, towards a literalist approach: Mason Court later finds that a literalist approach does not prevent the making of implications. Current approach? Consider French J: no formula for truth, harmony, simplicity (a combination of approaches suffices).

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S 51(XXIX) EXTERNAL AFFAIRS POWER External affairs power, in light of Koowarta and Cth v Tasmania (Tasmanian Dam Case), enables the

Cth Parliament to legislate in respect of matters which are often regarded as falling within the domain of state parliaments.

What the power is used for: (1) To implement treaties; (2) Matters outside of treaties, including relations with other countries/people in other countries; (3) All matters geographically external to Australia (e.g. XYZ); (4) Matters of *international concern (controversial: curbed from Tasmanian Dams; XYZ &

Polyukovich). Using s 51(xxix) to enter treaties:

The states, lacking full international personality, cannot enter into treaties. Executive decides to make/enter treaties, and the parliament can then integrate them into Australian

law; although, the power of parliament to carry treaties into effect is not necessarily as wide as the executive power to make them.

If the subject matter of the treaty corresponds with a subject of federal power, no problem arises; it is only when there is no such clear correspondence that the scope of the external affairs power becomes important.

Koowarta v Bjelke-Petersen (1982) CLR 168 Facts: In 1976, Koowarta (indigenous group) tries to buy a cattle station covering part of their homeland, using funds from the Aboriginal Land Fund Commission. Qld government blocks the purchase: was policy of government under Bjelke-Petersen (Qld Premier) that Aboriginal people should not be able to acquire large areas of land (through Minister of Lands). Koowarta makes HREOC complaint arguing that blocking the sale against Racial Discrimination Act (successful); Qld government appeals to Supreme Court, arguing that the Racial Discrimination Act was not a valid law, for falling outside of any of the s 51 placita. Issue: Are ss 9 and 12 of the Act laws with respect to external affairs and so within the power conferred on the

parliament by s 51(xxix) of the Constitution? Whether under s 51(xxix) the Parliament can enact laws for the execution of any treaty to which it is a

party, whatever its subject matter, and in particular for the execution of a treaty dealing with matters that are purely domestic and in themselves involve no relationship with other countries or their inhabitants.

Decision (4:3): Validity of provisions upheld (Mason, Murphy, Brennan) Mason J S 51(xxix) includes power to make laws in regards to any treaty entered by Australia, made bona fide. Dicta: includes power to enter CIL into Australian domestic law, and matters of international concern. No requirement that the subject matter of treaty must be indisputably a matter of international affairs (c.f.

minority). Favours a liberal construction; and not too concerned with the federal balance. Murphy J: For s 51(xxix) to be used to give effect to a treaty, it requires a necessary and sufficient condition in

regards to external affairs; but implementation of a treaty alone is sufficient to enliven the power (regardless of whether the subject matter is also an internal affair).

Brennan J: If Australia accepts a treaty obligation with respect to an aspect of Australias internal legal order, the

subject of the obligation thereby becomes (if it was not previously) an external affair, and a law with respect to that subject is a law with respect to external affairs.

*But only obligations; does not include CIL norms, benefits, general aspirations rather than binding obs. Stephen J: *TEST: subject matter of treaty must be of international concern. Middle ground: this is not as broad as the other majority judges, but not as narrow as the indisputably

international test. The case therefore turned on Stephens judgment.

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A. - Looks to post-war history on racial discrimination, UN action (revealing the conduct of other

states); sufficient to show the matter is of international concern. - And suggests that if Australia failed to take steps to tackle racial discrimination, it would affect

Australias relations with other states. There exists a treaty obligation, on a subject of major importance in international relationships, which

calls for domestic complementation within Australia. This is itself, without more, suffices to bring the Racial Discrimination Act within the terms of s 51(xxix).

Gibbs CJ, Aickin and Wilson (dissent): The external affairs power must not be read too widely, but subject to federal balance in the CC Therefore, any treaty passed subject to the s 51(xxix) power has to meet an additional test and be

indisputable international in character; in this case, the subject matter of racial discrimination has to be indisputably international in character. It is not.

Gibbs CJ (dissent): External affairs means matters concerning other countries. Concerned with scope of power: reading the power widely would allow the executive to itself

determine the scope of legislative power and arrogate to the Parliament power to make laws on any subject whatsoever; if s 51 (xxix) empowers the parliament to legislate to give effect to every international agreement which the executive may choose to make. The distribution of powers made by the Constitution could in time be completely obliterated; federalism would be destroyed.

While unlikely that an international agreement would be entered into as a mere device; this doesnt remove the concern.

Therefore, Gibbs prefers a narrower reading of s 51(xxix); only confers power to legislate on matters which are themselves an external affair (relationship with other countries, or things or persons outside Australia).

- A. It is not enough that other countries may be interested in Australias stance on racial discrimination.

- C. ss 9 and 12 were not within the legislative power conferred by s 51(xxix) under this narrow reading. If Cth wants to fulfil international obligations, will require cooperation between Cth and the States; and if she wants to combat racial discrimination, she can still do so within the power conferred by s 51(xxvi).

Tasmanian Dams Case (1983) 158 CLR 1 How to interpret the external affairs power (building on Koowarta) Principles to be applied in characterisation when using the external affairs power for treaty implementation Facts: Australia enters World Heritage Convention Tasmanian premier submits to Cth some parks to be nominated as WHO listed sites. Tasmanian parliament later passed law authorizing construction of dam on Gordon River in South

Western Tasmania (near the parks) Election and new Hawke Cth government. Cth policy to prevent building dam: enacts World Heritage

Properties Conservation Act 1983 (Cth) essentially making the dam unlawful. Cth applies for an injunction under the Act to prevent the dam being built. Relevant legislation: World Heritage Properties Conservation Act 1983 (Cth) S 9: (a)-(g) prohibits certain acts on certain property; s 9(1)(h) is a catch all clause, drawing in any

other acts prescribed for that paragraph (in delegated legislation); s (9)(2) another catchall, saying anything that damages or destroys a property is also unlawful, even if not caught under s 9(1). S (9)(3)

S 6(3) GG is allowed to choose which properties to which s 9 applies; with two statutory preconditions: (1) the property is or is likely to be destroyed and (2) must be a property within (6)(1) (territories) or (2) in a state, provided that certain criteria are satisfied and importantly (6)(2)(a) any property that the Cth has recommended to be listed as a WH site and (b) a property to which Australia has international obligations (c) giving effect to a treaty (d) property to which is an international concern (*essentially trying to satisfy every interpretation in Koowarta).

World Heritage Convention Ratified by Australia in 1974. Article 5(a) through (e) introduce broad concepts but no clear obligations. Article 6, however, introduces international obligations to cooperate with the international community to

protect WH sites.

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Article 34 contained a federal clause: (a) the obligations of the federal or central government shall be the same as for those States Parties which are not federal States (Cth bound by promise?); (b) where the implementation power is afforded to states under their Constitutional system, the Cth is bound to provide a recommendation to the states for their adoption.

Arguments: Tas: the legislation is not Constitutionally valid, because it is not in respect to s 51(xxix) external affairs. Cth: Act was valid per s 51(xxix) because it gave effect to an international obligation under the WHC Decision: (4:3) WHA authorised under the external affairs power; the provision banning the construction of the dams was valid (although other parts of the Act were invalid). Some of the provisions are valid: Mason, Murphy, Brennan and Deane JJ Some of the provisions are invalid: Gibbs CJ, Wilson and Dawson JJ (And Brennan and Deane JJ).

APPROACH TO REPLICATE FOR ASSIGNMENT/EXAM: (1) Interpretation of the power

(2) Characterisation of the law with respect to the power LOOK AT J HYPOTHETICAL.

Reasoning: MASON J: Entering treaty is enough: the existence of international character or international concern is

established by entry by Australia into the convention or treaty, sufficient to enliven s 51(xxix). S 51 (xxix) was framed as an enduring power in broad and general terms enabling the parliament to

legislate with respect to all aspects of Australias participation in international affairs and of its relationship with other countries in a changing world (including a proliferation of external affairs)

There is no reason to limit the s 51(xxix) to the implementation of an obligation. *GIBBS CJ (DISSENT) The power to implement treaty obligations under s 51(xxix) should be read subject to the federal nature

of the constitution, and construed narrowly to avoid upsetting the federal balance at the will of the Cth executive.

TEST: whether a matter is of international concern depends on the extent to which it is regarded by the nations of the world as a proper subject for international action, and the extent to which it will affects Australias relations with other countries (P340); admittedly to be applied with some difficulty (Stephen J approach in Koowarta)

Application. The convention does not place any obligation on the Cth to enact legislation for the protection of any part of the national heritage within Australia, and of course the recommendation does not purport to do so; and relations with other countries are not likely to be affected by whatever action Australia takes to protect parks. Therefore s 51(xxix) power has not been attracted.

***Slight shift from Koowarta: note how has moved closer to the Stephens J test in Koowarta; Gibbs previously said indisputably international in character: so out of Koowarta, Gibbs CJ is willing to take the Stephens J test.

MURPHY J Anything goes: willing for the power to extend to the implementation of a recommendation of

international organisations into Australian domestic law. The s 51(xxix) placitum flexible; capable of expansion; permits the parliament to legislate on a range of

matters; Australias external affairs, as a matter of practicality, are not limited to relations with other states, but include internal matters.

*NICE BIG LIBERAL TEST (OBITER): To be a law with respect to external affairs it is sufficient that it (a) implements any international law, or (b) implements any treaty or convention whether general (multilateral) or particular or (c) implements any recommendation or request of the UN organization or subsidiaries or (d) fosters (or inhibits) relations between Australia or political entities, bodies ore persons within Australia and other nation states, entities, groups or person external to Australia or (e) deals with circumstances or things outside Australia or (f) deals with circumstances or things inside of Australia of international concern.

Brennan J: external affairs power available for the implementation of treaty obligations. If they are implementing something other than an obligation, the international concern test must be met. Deane J: all about the obligations (doesnt talk about international concern).

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Decision: Clear majority that 6(1), (2)(b) and (3) valid (Majority) Minority in dissent about s 6. S 9; only s 9(1)(h) valid (Mason, Murphy, Deane and Brennan); 9(2) also ends up invalid (Only

supporters are Mason, Murphy, Deane JJ the other 4 judges find invalid). But s 9(1)(h) is enough; GG just needs to prescribe acts as Interpretation stage: Implementation of treaty obligations (LCD). Characterisation stage: they need to give effect to the treaty (Mason, Murphy, Deane J) but per Deane

will need to be proportionate. Characterisation and the external affairs power: test for determining whether a law with respect to s 51(xxix) external affairs

*Special test: only for dealing with treaty implementation aspect of s 51(xxix) Mason J: the law must conform to the treaty and carry its provisions into effect. Parliament cannot

legislate beyond the treaty or inconsistently with it (EG if Austrlaia signs the Save the Whales Convention it cannot legislate freely on whales, nor legislate to kill whales).

Deane J: the law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs (that is, to implementing the treaty in question). ****Note how uses the same reasonable and adapted term as Mason J, but perhaps a little more liberal capable of being considered

o ***Application: we look at the purpose of the law in question (e.g. to implement certain clauses of a convention); and then ask a question of proportionality (e.g. sheep treaty to prevent sheep disease; sheep laws to kill all sheep; disproportionate?)

o Note that Mason J does not talk about proportionality (and that proportionality is difficult when used as part of any test by the HCA).

How to tackle the process:

(1) Do the facts of this case give rise to a power under s 51(xxix)? a. Application of principles of interpretation b. Minority: (a) implementing a treaty? (b) subject matter of treaty matter of international

concern? (*Note Gibbs J narrow application; flow on effects?) Minority found in TasDams that the facts required to enliven the s 51(xxix) power were not there (unlike in Koowarta), and so the provisions were constitutionally invalid.

c. Majority: (a) implementing a treaty? If yes, its enough to enliven the s 51(xxix) power because of the treaty implementations (Gibbs and others; treaty obligations plus international concern).

(2) Are the provisions of the Act a valid implementation of the treaty obligation? a. Minority: mute (you didnt enliven the power). b. Majority

i. Mason J: Do the provisions (ss 6 and 9) give effect to the treaty? S 6(2)(b) does, and thats enough.

ii. Murphy J: everything is valid s 6 and 9 (it is all connected to the treaty) iii. Deane J: applying his test; s 9(1)(a)-(g) provisions invalid for being disproportionate

(blanket ban) not appropriate and adapted means of carrying out the treaty, because the acts are prohibited regardless of whether they are doing damage to the property; but s 9(1)(h) and s 9(2) are valid, because they both require either the GG or the Minister to give consideration to whether the act in question will damage or destroy the property (showing that the provisions will meet the purposes of the treaty); similar reasoning for 6(1) and 6(2)(b).

1. Note reference to s 15A of Cth AIA; invalid provisions can be severed, so that the valid provisions survive.

Victoria v. Commonwealth Industrial Relations Act Case (1996) 187 CLR 416 Facts: Vic, SA, WA bring proceedings against Cth seeking declarations that provisions of industrial relations legislation (implementing certain ILO IR treaty provisions into Australian law) were invalid for failing to be laws in respect to s 51(xxix); providing for the imposition of, or imposed, obligations on employers with respect to matters such as minimum wages, equal pay, termination of employment, discrimination in employment and family leave. Relevant legislation: Industrial Relations Act 1998 (Cth), as amended by Industrial Relations Reform Act 1993 (Cth), and the Industrial Relations Amendment Act 1994 (Cth).

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Reasoning: Unanimously rejected the matter of international concern test; picked up the Mason and Murphy JJ line

in Tasmanian Dams (implementation of treaties and not merely treaty obligations, suffices to enliven the s 51(xxix) power).

All six judges endorse the Deane J approach (whether the laws are capable of being considered reasonable and adapted to implementing the treaty), but Dawson J expresses doubt over the purposive test and the proportionality requirement.

Majority (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ) Treaty must define with sufficient specificity a regime, in order for a law to rely on s 51(xxix) for

support; and laws must follow this regime. - Terms of aspiration in treaties cannot enliven the legislative power conferred in s 51(xxix). - NB. This has never been used to actually invalidate a Cth law. - NB. The requirements of specificity are fairly loose; the terms of treaty are often lofty, so the

standards are different from those when determining domestic legislation. - Bona fide? - Obligations not necessary.

To be a law in respect to s 51(xxix), the means of giving effect to a treaty must be capable of being reasonably considered appropriate and adapted to that end (so that it operates in fulfilment of the treaty and thus upon a subject which is an aspect of external affairs) (Deane J test *minus the emphasis on proportionality, though they dont knock it out completely)

- *An obligation imposed by a treaty does not necessarily provide the outer limits of a law enacted to implement it

- Partial legislative implementation of a treaty: a law can still be with respect to s 51(xxix), where the remaining treaty obligations are left to states or other Cth legislative or executive action.

- While deficiency of implementation is not necessarily fatal to the validity of a law, a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the convention (you dont have to implement the entire treaty but you cant be too picky either).

Dawson J: Rejects Deane Js purposive test for legal validity of laws made under s 51(xxix) in Tasmanian Dams

unlike the majority, outright rejects proportionality. S 51(xxix) is not purposive (e.g. implement treaties, achieve international goodwill etc), but a power to

make laws with respect to particular matters whose subject matter answers to the description of external affairs.

The question is not what the law is for, but what it operates upon. Therefore agrees with the majority; but only where they do NOT rely on the Tasmanian Dams case. Decision: Div 1: could reasonably be considered appropriate and adapted to the implementation of the convention. Div 3: The Court held the validity of the provisions with respect to the external affairs power, except

those provisions including harsh just or unreasonable test as an additional ground of unlawful termination, which were found to have gone beyond the terms of the convention, but could be severed.

Div 5: supported by s 51(xxix). NOTE decision on IRC recommendations: the power of the IRC to make an order was conditional upon

the order being reasonably regarded as appropriate and adapted to giving effect to the Conventions to which they related.

Issue (1): When will a treaty give rise to a power of implementation under s 51(xxix)? Bona fide treaties. Dont necessarily need to create obligations. Cant be too aspirational or vague per Industrial Relations Has to have some specificity in terms of the regime it prescribes. Issue (2): When will a law be a valid implementation of a treaty? Deane J in VicDams as adapted in the IR Case; so that emphasis is on capable of being considered of

adapted and acceptable minus the second emphasis on proportionality in application (it may not always be helpful per the joint-majority, and Deane Js express rejection of the proportionality requirement).

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NOTE: international concern requirement can be raised as a ground to enliven the power, but very questionable (e.g. Callinan and Heydon in XYZ not supportive of international concern as a grounds).

GEOGRAPHIC EXTERNALITY AND OTHER ASPECTS OF S 51(XXIX) S 51(xxix) not confined to treaties; includes relations of the Cth with other countries outside Australia. The power extends to places, persons, matters or things physically external to Australia (Polyukovich). The external affairs power empowers the Cth to make laws with respect to matters affecting Australias

relations with other governments or persons in other countries: R V Sharkey. No sufficient nexus test for exercise of s 51(xxix) external affairs power.

- Previous requirement of a nexus (tied to the peace order and good government intro), albeit not necessarily substantial, between Australia and the external affairs which a law purports to affect before the law is supported by s 51(xxix) (Brennan CJ in War Crimes Act Case).

- Toohey J in War Crimes describes this as a matter which Parliament recognises as touching or concerning Australia in some way.

- However, since War Crimes, Brennan CJ and Toohey J changed their views to reflect that of the majority; no sufficient nexus test for exercise of s 51(xxix) external affairs power (Industrial Relations Act case).

- Victoria v Cth; geographic externality is enough the mere fact of the matter being geographically external to Australia is sufficient to enliven the s 51(xxix) external affairs power.

The external affairs power is not limited to exercise consistent with international law (Horta). XYZ: reaffirm the Tasmanian Dams line there is no need for the sufficient nexus test (four member of

the courts strongly affirm this; with Kirby expressing a little doubt).

Horta v Cth (1994) 181 CLR 183 Issues relating to Australia's recognition of the sovereignty of a foreign nation over foreign territory were generally not justiciable in Australian courts, except in cases where such recognition is granted merely as a device for gaining greater legislative power. Australias laws are still valid even if inconsistent with international obligations/international law. Parties: Horta (and others), the Commonwealth (invoking s 75(iii) HCA jurisdiction) Facts: in 1989, Australia and Indonesia entered a treaty for exploration of petroleum resources in Timor Gap, brought into Australian law by the Petroleum (Australia-Indonesia Zone of Cooperation Act 1990 (Cth) (and Consequential act). Horta, an East Timor resident (along with two others), broadly claimed that because the treaty was contrary to international law, as it breached the right of East Timor to self-determination and sovereignty over the area, then (a) the legislation was invalid in respect to the s 51 (xxix) Constitutional External affairs legislative power under which the law was made (beyond the legislative competence of parliament), and (b) that the Executive had no prerogative power to enter into the treaty (under s 61 of the Constitution). Legal issues: Whether the legislation made by the Cth is valid: whether Constitution s 51(xxix) external affairs power confines parliament to make laws only when they are consistent with Australias international obligations or with international law, and whether the executive has the power to enter treaties under s 61 that are invalid in international law (note: more comprehensive list of issues in the case itself, P442, see below). Applicable law: Commonwealth Constitution, Australia-Indonesia 1989 Petroleum Treaty, Petroleum (Australia-Indonesia Zone of Cooperation Act 1990 (Cth) (and Consequential act). Reasoning (unanimous): The question of whether or not a matter or thing is territorially outside of Australia is itself sufficient to

bring a matter under s 51(xxix) is unanswered. The enactment of the law was prima facie within the legislative power conferred by s 51(xxix) because:

- Geographic externality: The area of the Timor Gap and the exploration of petroleum resources in that area fell under the phrase. Each of those matters is geographically external to Australia.

- Substantial nexus or touching: there is an obvious and sufficient nexus between those matters and Australia. They are all matters which Parliament recognises as affecting or touching Australia.

The law was prima facie a law with respect to external affairs, regardless of whether the provisions of the Act enable the discharge of the obligations of Australia under the Treaty or give effect to provisions of the Treaty. In fact, it would be so if there were no Treaty.

There may be circumstances (though not in this case) where a law is prima facie within the legislative power conferred by s 51(xxix), but nonetheless outside the legislative powers of the Parliament by reason of some other provision of the Constitution, express or implied, to which the legislative power

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conferred by s 51(xxix) is subject. Even if the treaty were void or unlawful under international law, or if Australias entry or performance of

the Treaty involved a breach of international law obligations, the legislation would not be deprived of its character as a law with respect to external affairs with respect to s 51(xxix). Neither s 51(xxix) nor Constitution elsewhere confines that power to enactment of laws consistent with Treaties or IL.

XYZ v Cth (2006) 227 CLR 532 Court upholds geographic externality principle (Majority), but Kirby J expresses some doubt about the

principle and expresses a desire for further elaboration. He nevertheless justified validity of the Crimes Acts by holding they were made with respect to Australias external relations with other nation states and with international organisations.

Callinan and Heydon JJ held the geographic externality principle should be rejected, and the cases relying on that principle be overruled.

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S 51(XX) CORPORATIONS POWER The corporations power s 51(xx) gives the Commonwealth Parliament the power to legislate with respect to certain kinds of corporations: foreign corporations and trading and financial corporations formed within the limits of the Cth. (1) Does the law apply to this situation? (a) Which corporations: what are trading and financial corporations formed within the limits of the Cth?

(i) Foreign corporations: anything incorporated in another country or in a state (ii) Trading corporations

i. Original purpose test (St George County Council) rejected. ii. Activities test supported by majority in Adamson (1979)

1. What is trading? a. Exchange of money/goods/services. b. Activities carried on with a view to earn revenue (Adamson)

2. How much trading? The test is whether a substantial or sufficiently significant proportion of the activities of the business constitute trade (Adamsons Case)

a. Mason in Adamson: its a matter of fact and degree 3. Activities test endorsed by Tasmanian Dams majority. Mason J explicitly rejects St George test. 4. Possibly outside the scope: if the trading activities are so slight and so incidental to some other

principle activity such as religion or education in the case of a church or school, it might not be a constitutional corporation (Mason J, Adamsons case)

(iii) Financial corporations a. Similar to trading corporations: does the corporation engage in financial activities which forma

sufficiently significant or substantial amount of its overall activities? b. NB. This is not a hot issue. Corporations definition is old news.

(2) Scope of the power: is this a validly enacted law?

(b) What power does the Cth have with respect to those corporations? Broad (any activities) test was adopted by five judges in Workchoices:

(c) What power does the Cth have with respect to persons who are non-corporations? The broad test of Gaudron J in Pacific Coal adopted in WorkChoices

- The regulation of the conduct of those through whom it acts, employees and shareholders, and the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.

- Limited: must be connected in a way that is not insubstantial, tenuous or distant (quoting Dixon J, Melbourne Corporation, endorsed by HCA in Workchoices)

THE CURRENT LAW: Work Choices Case Work Choices Act goes far beyond regulating trading activities of a constitutional corporation or activities done for

the purposes of trade (only the broad view would support this). TEST: Joint judges ultimately endorsed the object of command (broad) view, by endorsing Gaudron J

approach in Pacific Coal: extends to regulation of activities, functions, relationships, and business of a corporation, rights and privileges, imposition of obligations, and to the regulation of the conduct of those through whom it acts, employees and shareholders, and the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.

Callinan J dissented and Kirby J dissented with own list of horribles, expressing concerns over federalism; were also swayed by the argument that the limitations expressly imposed on the Cth in s 51(xxxv), suggested that s 51(xx) should not be construed so as to allow the Cth to circumvent those limitations.

- Work Choices Plaintiffs: Unions and States trying to prevent the Cth using s 51(xx) to grossly overstep its traditional role in industrial relations. Relevant legislation: Workplace Relations Amendment (WorkChoices) Act 2005, amending to the Workplace Relations Act 1996. Purported to eliminate state and territory workplace relations legislation, to create a uniform industrial relations framework. Heavily relied on the s 51(xx) corporations power and, to a lesser extent, s 51(xxxv). Connected to corporations power through definition of Employer in the act, which was defined in s 6(1) to include a constitutional corporation, which was further defined in s 4 to mean a corporation to which s 51(xx) applies (foreign, trading and financial corporations formed within the limits of the Cth). Part 7: minimum entitlements, applied to employers and employees as defined in the Act. Challenges to

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what is, and is not, included in Workplace Agreements; limited role for the commissions. Part 9: imposed obligations not just on constitutional corporations, but prohibited industrial action by

anyone likely to cause damage to a Constitutional corporation (like Fontana Films; the hook is the legal or practical effect on Constitutional Corporations).

Part 15(5): OHS entry requirements; for entering workplaces where contractors were providing services to a Constitutional Corporation (so not just the CC offices, but workplaces of contractors providing services to a Constitutional Corporation; like Dingjan, there is some hook to the Constitutional Corporation, but was it enough?)

Part 16: freedom of association with unions prohibitions; again contractors of constitutional corporations. Issue: were the various provisions of the legislation supported by s 51(xx) (constitutionally valid)? Decision: provisions valid Reasoning: REJECTIONS

- Reject argument that s 51(xx) is limited to regulating the external relationships of corporations - Failed referendums to broaden the scope of the s 51(xx) corporations power by the Australian

people could not be used to determine the meaning of s 51(xx); this was the role of the Court under s 76(i)

- S 51(xxxv) conciliation and arbitration power does not limit the Cths capacity to legislate using the s 51(xx) power to legislate in regards to industrial disputes (no negative implication)

- Reject distinctive character test (the fact that the corporation is a foreign, trading or financial corporation should be significant in the way in which the law relates to it, from Dawson J in Tas Dams). It is an approach which would read the power as confined to making laws with respect to the trading activities of Australian trading corporations and the financial activities of Australian financial corporations. But that, of course, is not what s 51(xx) says.

To determine whether a law is respect to a head of power, the court looks for a sufficient connection The court adopts the test used by Gaudron J in Pacific Coal: Cths legislative power under S 51(xx)

- Extends to the regulation of the activities, functions, relationships and business of a corporation described in that subsection

- the creation of rights and privileges belonging to such a corporation - the imposition of obligations upon it, - and in respect of those matters, to the regulation of the conduct of those through whom it acts,

its employees and shareholders, also the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.

Loose standard: The connection described by the Court as not insubstantial, tenuous or distant, in order to demonstrate that the connection was sufficient (but not creating a separate test).

Limits to s 51(xx): when it comes to third parties providing services to Constitutional Corporations, the Cth can only legislate to affect your activity in the course of providing those services to constitutional corporations.

- NB. This s 51(xx) test is not a substitute for a sufficient connection, but rather just a way of getting there [178].

Application Provisions imposing obligations or privileges on constitutional corporations

- Part 7 (minimum entitlements): Is imposing an obligation on constitutional corporations (on employers to extend minimum entitlements to employees).

- Parts 8, 10, 12: also impose obligations ( GDOC) - Part 9 (prohibits industrial action; gives power to IR commission to order non-employers to

cease action if causes damage to CC): must not lock out employees is an obligation; IR commission powers capable of affecting its activities, functions, relationships or business.

Other sections affected non-constitutional corporations - Part 15: ss 365 and 366 placed prohibits third parties from misrepresenting a contract between

employers constitutional corporations and employees. Valid: third-parties conduct capable of affecting activities, functions, relationships and

business of Constitutional corporations. - Part 15, Div 5: OHS entry provisions

Issue: Applied to workplaces of contractors who provides services for a CC (to third party workplace).

The CC is not under an obligation, but has a benefit under this provision Cth made concession: reading down the provision, so that it applied only to

contractors in the course of providing services to constitutional corporation [286].

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*Tying it back to Gaudron: the regulation of whose conduct is or is capable of affecting [constitutional corporations] activities, functions, relationships or business.

Read down OHS provision; too tenuous

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STATE CONSTITUTIONS AND STATE LEGISLATIVE POWER

[Dont sweat State constitutional stuff: only being read for the purpose of s109 CC] Where do states get the power to make their Constitutions? [Unresolved] Imperial power continued by ss 106 & 107? S 106 as the source? What are the legislative powers of the states?

For the peace order and good government, for Victoria in all cases whatsoever; equivalent. Per Union Steamship Co v King (1988) HCA; plenary power is conferred; for the peace, order

and good government are not words of limitation. Commonwealth Constitution, sections 52, 90, 106, 107, 108, 109, 114, 115, 117. S 52: Exclusive powers of the Parliament

- (i) seat of Cth government, and places acquired by Cth for public purpose - (ii) public service matters, transferred to Executive Cth Gov by Constitution - (iii) other matters declared by Const to be within Cth parliaments exclusive power

S 90: Cths exclusive power over bounties S 106: Saving of the State constitutions (will continue as is, unless altered by their own Constitutional

processes). S 107: Saving the power of state parliaments (will continue as is, unless altered by Constitution). S 108: Saving of state laws (continue as is, unless modified). S 109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail,

and the former shall, to the extent of the inconsistency, be invalid. S 114: States cant maintain military forces. Cth and state cant tax each others property. S 115: States cannot coin money. S 117: rights against state-based discrimination. Constitution Act 1975 (Vic), sections 8, 9, 15, 16, 18. S 8: Governor can fix places and times for parliament to meet, and discontinue or dissolve the assembly

subject to 8A (a motion of no confidence, and no motion of confidence within 8 subsequent days). S 9: Demise of the crown is not to dissolve parliament S 15: Victorian parliament has state legislative power, includes Council, Assembly, her Majesty. S 16: legislative power of parliament ( in and for Vic in all cases whatsoever). S 18: some examples of manner and form requirements

- Parliament can alter the Constitution Act by passing a bill, save for some entrenched provisions that require

- S 18(1B) - a referendum (EG composition of houses) - S 18(2) special majority (EG recognition of indigenous people) - S 18(2AA) absolute majority (EG aspects of Supreme Court)

Australia Act 1986 (Cth), sections 2, 5, 6. S 2(1): states can legislate extraterritorially for the peace order and good government of that state, and have all the powers that the UK might have had before the Act was passed, but not powers that would expand the states capacity to engage with relations with countries outside Australia. S 5: saves the status of the Constitution. S 6: manner and form requirements; states cant legislate to change constitution, powers or procedure of their parliaments unless its something required by a law made by that parliament from time to time S 7: powers and functions of Her Majesty and Governors in respect of states: does not preclude queen from exercising powers when in Australia, and advice to be given by Premiers. S 10: termination of responsibility of UK government in relation to state matters S 12: amendment to Statute to Westminster (striking out certain sections limiting state powers).

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Union Steamship Co of Australia Pty Ltd v King, Casebook 1043-1045. The power of states to make laws for the peace, welfare and good government of the state is a

plenary power (citing PC decisions): these words do not function as words of limitation. These words do not confer on the courts of a State, jurisdiction to strike down legislation on the ground

that, in the opinion of the court, the legislation does not promote or secure the peace, order and good government of the colony.

However, the court leaves open the possibility that the judiciary can restrict the exercise of legislative power when conflicting with rights rooted in democratic system of government.

However, see the textbook; it is unlikely that a fundamental rights principle will prevail as a limitation on state legislative power.

The Legal Status of the States vis--vis the Commonwealth, Casebook 1049-1057. S 106 of the CC provides that The constitution of each state shall, subject to this constitution, continue

as to the establishment of the Cth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Do states derive their powers, and not just status, from the CC? (Re: ss 106 & 107; confer or acknowledge?).

- Mixed views from HCA. - Deane J: Cth is a creature of CC, unlike the states (Commission v Cth). - Brennan CJ possible disagreeing in McGinty v WA. - Toohey J disagreeing: source was Imperial legislation, but now s 106 of the CC (McGinty v WA). - Kirby J firmly believes states derive existence and power from CC (ABC v Lenah Game Meats).

Also the possibility that the sovereignty of the people is the source of state Constitutions (like CC). What does subject to this constitution in s 106 mean? Does this mean that the Cth can affect or alter a state Constitution? In Port MacDonnel v SA, HC held that state Constitutions subject to Cth law made under s 61(xxxviii),

but not under other heads of legislative power in s 51. Also, State Constitutions are not subject to every implication to be drawn from the Cth Constitution. There is, however, ongoing disagreement about the extent to which a Cth law can affect the Constitution

of a state (see CB 1053), with Kirby suggesting in AG v Marquet that any law that does so would be a formal alteration of ss 106 and 107 of the CC, repugnant to s 128.

What is the effect of s 107 of the Constitution? Every power of the parliament of a colony which has or becomes a State shall, unless by this Const

exclusively vested in the Parliament of the Cth (e.g. 52, 90) or withdrawn from the parliament of the state (e.g 114), continue as at the establishment of the State, as the case may be.

- Some powers are not granted exclusively (a la s 52, 90, 111), but become exclusive in effect; e.g. s 115 and s 51(xii).

Preserves the plenary legislative powers of state parliaments, alongside those of Cth. Must be read alongside s 106, which in general is aimed at the Constitutions of states, which vest power

elsewhere. HCA in WA v Cth: Cth cannot pass a law inconsistent with s 107, and therefore cannot withdraw from

any state parliament a legislative power that is conferred on or confirmed to that parliament by s 107, or control content of state law (other than overriding it via s 109).

Maybe a limitation: states cannot abdicate their own powers (Kable v DPP, Brennan CJ). Australia Acts 1986 (Cth, Imp) enhanced legal independence of states. Other limits on state legislative powers State constitutions are state law, and can be changed without special procedures (McCawley). But limitations from s 6 of Australia Acts? Gives state parliament power to impose manner and form

requirements on itself, and an obligation to observe manner and form requirements in order for a law to be valid.

Manner and form requirements: a special process in order to change a state Constitution. McCawley v R (1920) Inconsistencies between state law and state constitutions. Facts: Qld Constitution provided SC judges of SC appointed for life subject to good behaviour. Industrial Arbitration Act 1916 (Qld) established court of Industrial Arbitration, and s 6(6) empowered GinC to appoint judge of SC (with same rights and powers of SC judge) for seven years, with eligibility for reappointment. Prima facie inconsistency. Issue: Was the Industrial Arbitration Act in conflict with the Constitution Act in as much as it purported to

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authorise the appointment of a judge for 7 years only? Reasoning: The state argued that The Constitution of Qld is a controlled constitution. It cannot, therefore, be altered

merely by enacting legislation inconsistent with its articles. It can only be altered by an Act which in plain and unmistakeable language refers to it; asserts the intention of the Legislature to alter it, and consequentially gives effect to that intention by its operative provisions.

However, the Constitution is neither controlled nor uncontrolled: Britain gave the states the power to figure out their own Constitutional issues.

The legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established, and none in fact exists, in such a case as it is raised in the issues now under appeal.

Decision/Ratio: The legislation was not ultra vires. The legislature fully entitled to vary the tenure of the judicial office.

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S 109 INCONSISTENCY OF STATE AND FEDERAL LEGISLATION

S 109 CC: When the law of a state is inconsistent with a law with a law of the Commonwealth, the latter shall prevail, and the former, to the extent of the inconsistency, be invalid.

(A) Preliminary issue: clearly identify laws, and what they provide. Are the state and Cth laws valid? (B) Effect of inconsistency: former, to the extent of the inconsistency, be invalid.

- Not absolutely invalid; but inoperative. - Still on the books; can be reactivated if Cth law repealed - May remain operative in areas where it is not inconsistent with federal law (Telstra v Worthing;

still applied to NSW employees, but not Federal employees). (C) Three tests for s 109 inconsistency:

- (1) Impossibility of obedience: sometimes direct inconsistency - impossible to obey both laws - (2) Denial of rights: one law confers a legal right which the other diminishes, overrides or

regulates - (3) Cover the field: Cth law demonstrates an intention to cover the field if it demonstrates an

intention to be the only law on a particular topic. 1. Impossibility of simultaneous obedience test: R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 Federal law: election must not be on same day as referendum. State law: election must be on same day as referendum. HELD: Cth and Qld laws held to be inconsistent: logically impossible to obey both laws. EXAM This test will only apply to two commands. Inconsistency was a conflict, or inconsistency, between the state Act authorising and commanding the referendum vote and the Cth Act forbidding the referendum vote on that day. Then s 109 of the Constitution enacts that in such a case the State law, to the extent of the inconsistency, is invalid. 2. Denial of rights test (rights inconsistency): Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Federal law: award working week 48 hours; employers given right (not command) dock pay of those working under. NSW state law: working week 44 hours; right to employee to receive full wage, and overtime for 44+ work. HELD: Inconsistent. The JJ used different inconsistency tests. Knox CJ and Duffy JJ held impossibility of obedience test may be insufficient in some cases. They formulated a denial of rights test: a statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute that conferred it. State law interferes with right conferred under Cth law (note Cth law starting point). Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 Federal law: Cth award gave award employers right (may) to employ females in award industries. State law: NSW Act makes it an offence (command) to employ women on milling machines. HELD: Inconsistency Latham CJ: There was a clear inconsistency, and therefore the Cth award prevails per s 109 (the right to employ females in award industries was diminished by the state law making employment of women in one of those industries an offence). *Furthermore, the application of s 109 does not depend upon any assignment of legislation to specific categories; regardless of which area of law the state and federal laws may each come from or their subject matter, inconsistency (under the denial of rights test different for cover the field test) nevertheless leads to the Cth law prevailing. Telstra v Worthing (1999) 197 CLR 61 Facts: W commences claim under NSW workers compensation legislation, that he was injured when working for Telstra. To defeat his claim, Telstra argued that the NSW Act conflicted with Cth law and, by reason of s 109 of the Constitution, was invalid to the extent of the inconsistency. Held: the NSW legislation was inconsistent with Cth legislation Reasoning:

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Federal law set out entitlements calculated in a particular way, and imposed obligation on worker to go through rehabilitation in order to receive compensation.

State law has different requirements for calculating entitlements. They both, however, deal with the same field. To the apply the state Act would qualify, impair and in some respects negate the application of

the Federal law. Therefore, there was inconsistency between the two statutes, and they were rendered invalid.

3. Covering the field test:

Three general questions: (1) What field (subject area) does the Cth law regulates, controls or deal with? (2) Does the Cth expressly or implicitly intend to cover that field completely and exhaustively? (3) Does the state law attempt to enter into or regulate the field or part of the field covered by the Cth law? NB. Does not matter if there are no conflicting rights or duties, or laws require the same thing. Cowburn: if a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent on the same field.

Ex Parte McLsean (1930) 43 CLR 472 Facts: State (NSW) law: NSW legislation created offences for employees failing work obligations. Cth law (in conjunction with award): The Cth law (Conciliation and Arbitration Act) gives the power to make awards. Act created an offence for breaching a Cth industrial award. The award stipulated that employers and shearers must comply with the Awards. The award covered Australias shearing industry (employees must shear sheep). Held: laws inconsistent. (1) Possible to obey both no impossibility of obedience inconsistency. (2) No rights inconsistency (3) Covering the field inconsistency Reasoning: Focus is on Cth intention: When a federal matter discloses an intention to completely, exhaustively or

exclusively legislate over particular conduct or matter, it is inconsistent with it for the law of a state to govern the same conduct or matter.

(a) The field covered by the Cth law was the regulation of relationships between employer and employee.

(b) The state law entered this field. (c) Intention: The Act gave full and complete efficacy and exclusive authority [over the field of

relationship between employer and employee] to the award (implicitly indicate intention). In these conditions, in so far as it affects persons bound by the award. S 4 of the Act is inconsistent with

the provisions of the Federal statute and, by virtue of s 109 of the Constitution, the latter must prevail, and the former to the extent of the inconsistency is invalid. Accordingly no offence was committed under state law.

Examples of where there would not be inconsistency: if the state law was prohibiting torture of sheep, in the context of an employment relationship (some sort of incidental effect).

Identification of the field:

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Ansett Transport Industries (Operations) Pty Ltd v Wardley Facts: W wants to become Ansetts first female pilot. State law: Vic Equal Opportunity Act made sex discrimination in employment and dismissal illegal. Cth law: However Airlines Pilots Agreement 1978 authorised employers to employ and dismiss pilots (same legal effect as industrial Award; given force of law by virtue of the Conciliation and Arbitration Act 1904 Cth). Issue: did the Cth Agreement, given power by the Cth Act, intend to cover the field of employment and dismissal so that any state legislation in that area was invalid per s 109? Held: no inconsistency Mason, Murphy and Wilson JJ: 1978 agreement did not intend to cover the field of dismissal or provide

an unqualified right to dismiss. Stephen J: held that there was no inconsistency because the Cth law (1978 Agreement) and State law

dealt with different fields or subject matters. (Stephen J): Stephens J approach: look at laws separately, characterise what they are about, and then reach

your conclusion: - The present industrial [Cth] agreement is concerned with industrial matters and its terms should

be construed accordingly; they should not be regarded as trespassing upon alien areas remote from its purpose and subject matter, whether those areas concern the nations foreign affairs or social evils such as discrimination upon the ground of sex.

The question is one of legislative intent. While the Agreement and the Act each deals with aspects of the engagement and dismissal of employees, they are essentially dissimilar both in character and in general content. - The [Vic legislation] confines itself to the matter of discrimination on the grounds of sex or marital

status, whatever other effect it may have within those areas is only incidental to its operation in proscribing sexual discrimination and in promoting equality of opportunity: at [249].

- When they are essentially disparate in character, as are the Agreement and the Act, their interaction at some point may well be shown, once they are construed and account is taken of the limited context of the respective Acts, to involve no element of inconsistency.

The Cth Act was silent on the matter of sexual discrimination because it was irrelevant to the Act. Therefore, there is no inconsistency arising under the doctrine of covering the field. Reasoning (Mason J): Direct inconsistency? The issue therefore turns upon the interpretation of the agreement and the question is whether the

provisions of the (Cth) Agreement were intended to operate, subject to, or in disregard of, the general law.

Application: the agreement should not be viewed as a general industry award which seeks to determine exhaustively the respective rights of employer and employee. Although the agreement does deal with many of the matters usually found in an award, such as pay, hours of work and leave, its emphasis on setting out in exact detail the manner and procedure governing the advancement of a pilot in terms of seniority and rights dependent thereon. - The agreement does not confer on Ansett a substantive right of dismissal; it merely assumes the

right of dismissal for which the general law provides. - The right of dismissal under general law has been altered in Victoria by a state act: restricts

employers from dismissing an employee by reason of sex (s 18(2)(b)). - The agreement is to be read in the light of this alteration in the general law. - Furthermore, Cl 6B of the Agreement does not seek to cover the field of the employers

substantive right to dismiss Cover the field: The P must demonstrate that as a matter of legislative intention the power or

discretion is to be exercise to the exclusion of what state law says upon the topic. Whose intention?: Identification is essentially a question of Cth legislative intention. However, in two circumstances, that may not be enough. (1) For instance, where Cth Act gives an arbitrator power to make awards exhaustive of matters in

dispute or concern industrial relations, it may be necessary to ascertain the arbitrators intention to decide whether the Parliaments intention has been implemented (e.g. with workplace agreements).

TA Robinson & Sons Pty Ltd v Taylor (1957) 97 CLR 177 State law: NSW Act confers long service leave right. Federal law: Cth award silent.

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Held (majority): that Cth law did not intend to cover field there is nothing to show that the Conciliation Commissioner who made the Cth award meant that his determination should cover the grounds of long service leave to the exclusion of any right arising from any other source of authority (no intention to cover the field).

Drawing an inference to determine whether the legislation intends to comprehensively cover the field: OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 Cth law: Commerce Meat Export Regulations made under Customs Act 1901: prohibited export of meat unless the slaughter was carried out in premises registered under those Cth regulations. State law: prohibited the use of premises for slaughtering stock for export without a license issued by state minister. Held: Inconsistency. The comprehensiveness of the Cth regulations demonstrated that the Cth law was intended to cover the field or subject matter of premises used for slaughtering stock for export. Reasoning (Fullagher J): There can be inconsistency under s 109, even if it is possible to obey both laws. The test for

inconsistency is that of Clyde v Cowburn. The comprehensiveness of the regulations demonstrated that the Cth law was intended to cover the

field. Impossible to deny regulations evince intention to completely cover the field of the use of premises for

the slaughter of stock for export. The extremely elaborate and detailed character of the regulations was sufficient to reach this conclusion.

Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 SA Act: gave Industrial Court power to order that a dismissed employee should be reemployed (if dismissal was harsh, unjust, unreasonable). Cth Act: regulated ABCs employment of permanent and temporary employees. Held: The SA Act was inconsistent with the Cth Act: drew inferences that the Cth intended to cover the field to the exclusion of any state law on the topic. Cth Act was very detailed about permanent employees, but not temporary employees.

- Drew an inference that Cth parliament intended the broadcasting act to completely and exhaustively cover the field in relation to permanent and temporary employees.

- The absence of detail about temporary employees, read in light of what was said about permanent employees, showed an intention to give [absolute] discretion to the ABC (subject to some oversight by board) to cover the field.

Particular provisions of the Cth Act would be clearly inconsistent with the State Act, because where the former allowed a boards review of dismissal to be final, the latter gave the industrial court the jurisdiction to reinstate an officer.

Other provisions - such as the terms of appointment expressed by s 43(6) would not stand easily alongside a jurisdiction or authority in any other body to reinstate a temporary employee.

And one Division leaves no room for the operation of a section of the SA Act, or any state law, in relation to the dismissal of officers in the service of the Commission. These provisions indicate that the Commissions power was intended to be exclusive and unqualified.

Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 State law: NSW Act prohibits handicap discrimination in services. Cth law: Life Insurance Act gives life insurance company discretion over who it insures and premiums etc. HELD: inconsistent. The Cth Act expressed legislative policy that registered insurance companies should in accordance

with their own judgement founded upon the advice of actuaries and prudent insurers determine who to insure and how.

It would alter, impair or detract from or undermine - the Cth scheme of regulation if a registered life insurance company was precluded by state legislation from classifying different risks differently, and taking into account physical impairment.

Therefore, state legislation which either absolutely or subject to qualifications makes it generally unlawful for life insurance companies to take into account such factors would be inconsistent with the general scheme of the provisions of the [Cth] Act.

Express statement of Cth legislative intention: not an unlawful limitation of state power contrary to s 107 of the Constitution

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Western Australia v Commonwealth (Native Title Case) (1995) 183 CLR 373 Commonwealth stipulates no States can legislate on extinguishment of Native Title Issue: Whether the statement Native Title is not to be extinguished contrary to this Act meant that any

state law that purported to extinguish Native Title in any way would be invalid by reason of s 109. Held: inconsistency. Important dicta However, by reason of inconsistency with a law of the Cth s 109 state law is not rendered absolutely

invalid, but remains valid but inoperative to the extent of the inconsistency so long as the inconsistency remains (state laws are not rendered invalid by the Cth law, but by the force of s 109).

If the Cth intends to make a law the exclusive and exhaustive law upon a subject within its legislative power, the intention may appear from the text or from the operation of the law. The text may reveal the intention either by implication or by express declaration.

Simply because the Cth expresses an intention to cover the field is not an attempt to cut down the legislative powers of the states.

Botany Municipal Council v Federal Airport Corporation (1992) 175 CLR 453 Covering the field by express statement; stating that person(s) is/are immune from state law Facts: Cth regulation authorising dredging in spite of state law. Commonwealth attempts to manufacture inconsistency by expressly stating in the legislation that it is intended to cover the field HELD: Valid There can be no objection to a Cth law falling within a head of Cth legislative power providing that a

person is authorized to undertake an activity despite a state law prohibiting, restricting, qualifying or regulating that activity.

Indeed, unless the law expresses itself directly in that way, there is the possibility that it may not be understood as manifesting an intention to occupy the relevant field at the exclusion of the states.

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LIMITS ON LEGISLATIVE POWER FROM FEDERALISM: IMPLIED INTERGOVERNMENTAL IMMUNITIES

BQ. If a Commonwealth law is made to apply to a state government (Crown immunity question), does

the law have the power to make a law binding the state government? TEST: two-limb from Melbourne Corporation, expanded in following cases, and then reduced to a singular test in Austin Engineers' Case (1920) 28 CLR 129 Rejected doctrine of reserved state powers; and rejected doctrine of intergovernmental immunities in its absolute. They said implications were not to be made on the basis of a vague conception of the spirit of the compact; they need to flow necessarily from the text. However, it did not rule the implications out altogether. Melbourne Corporation (State Banking Case) Source of the intergovernmental immunity doctrine; two limb approach Facts: Cth Act says banks cannot engage with state governments or state authorities without the permission of the Federal treasurer. Principle that arises: there are two classes of case where the Cth would prevent a State from continuing

to exist and function as such as is necessarily invalid, because of the text of the Constitution provides for the States to continuing to exist and functioning as a state.

TWO CLASSES (elaborations of overarching principle above): (1) Where the Cth singles out the States or agencies and imposes on them restrictions which prevent or

impede them from carrying out essential government functions (DISCRIMINATION) (2) Even where not singling out, subject to legislation which impedes or prevents them from carrying out

essential functions (STRUCTURAL INTEGRITY/IMPAIRMENT) Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 Two limb test for intergovernmental immunities is adopted and applied; elaborates on the discrimination point. Gives us discrimination principle, and also provides an exception (where discrimination logical and rational purpose). Facts: Commonwealth implemented an Act tailored towards an industrial dispute with the QEC (with ETU union), overriding Qld legislation that the ETU didnt like. The QEC run 97% of the electricity for Queensland, so they are overwhelmingly an agency of the government of Queensland. The law applied specifically (IE it named it) to an industrial dispute with the QEC, and it also applied to other disputes that may arise in the future between the QEC and unions so all disputes of the same kind in the future. The law created special procedures and rules that departed from the normal processes for resolving disputes; for instance, preventing the AIRC from dismissing the dispute. QEC and the state government claim that, while the Cth has a head of power, that power was limited by implied prohibition not to discriminate against the state. Issue: Did the Cth legislation breach an implied prohibition on Cth parliaments legislative powers against discriminating against States or their agencies? Held: (majority) the Cth Act was invalid. Mason J: Outlines principle in Melbourne Corporation: implied prohibition consists of two elements

- (1) Prohibition against discrimination involving special burdens or disabilities on states and - (2) Prohibition against laws of general application that destroy or curtail continued existence

of States or their capacity to function (P792). Firstly, prohibits discrimination against all states, or particular states. Secondly, protects legislatures as well as executive governments.

- Applies to agencies of a state as well as the state itself: the prohibition protects the exercise of functions of the State; it does not matter whether the function is carried out by a government department or an authority brought into existence to carry out the function (P972).

Discrimination is when a state is ISOLATED FROM THE GENERAL LAW - But not all isolating laws are necessarily discriminatory: A law which deprives a state of a

right, privilege or benefit not enjoyed by the others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general law. Parliament can abrogate a prerogative of a State without offending the prohibition against discrimination (P972).

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Refers to both de jure and de facto discrimination: the court must look at the actual operation of the law in the circumstances. If, as a matter of sub