LAWS2150

Federal Constitutional Law Exam Notes

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Contents

Precedent and overruling – High Court is better than everyone else, can contradict itself ................................. 4

Reading down and severance ........................................................................................................................ 4

How to interpret the Constitution ............................................................................................................................. 5

Pre-Engineers – hey, Cth, leave those States alone ......................................................................................... 5

Implied immunity of instrumentalities doctrine ................................................................................... 5

Reserved state powers doctrine ........................................................................................................... 5

Engineers Case – Cth law is superior to State law ........................................................................................... 6

Jumbunna principle – interpret Constitution as broadly as possible ................................................................. 6

Judicial methodology – how judges approach the Constitution ....................................................................... 7

Legalism / literalism .......................................................................................................................... 7

Originalism........................................................................................................................................ 7

Textualism ........................................................................................................................................ 8

Incremental accommodation .............................................................................................................. 8

Characterisation – how to ascertain subject-matter of a challenged law ...................................................................... 9

Approach to characterisation ........................................................................................................................ 10

Dual characterisation ................................................................................................................................... 10

Interaction between heads of power .............................................................................................................. 11

Subject matter v purpose powers ................................................................................................................... 12

Subject matter powers ....................................................................................................................... 12

Purpose powers ................................................................................................................................ 13

Inconsistency of laws .............................................................................................................................................. 14

What is a ‘law’ for purposes of s 109? ........................................................................................................... 14

Meaning of ‘invalid’ = inoperative, never existed, nice try States ................................................................... 14

Tests for inconsistency ................................................................................................................................. 14

1. Impossible to obey both laws ......................................................................................................... 14

2. One law purports to confer a legal right, privilege or entitlement that the other purports to diminish 15

3. Commonwealth law evinces an intention to ‘cover the field’ [indirect inconsistency] ....................... 15

Clearing the field .......................................................................................................................................... 16

Overlap of tests – all tests lead to same result ................................................................................................ 16

Manufacturing inconsistency – allowed ........................................................................................................ 17

Inferring implied intention ................................................................................................................ 17

External affairs power ............................................................................................................................................ 18

Relations with other countries ...................................................................................................................... 18

Matters external to Australia – ‘extraterritorial power’ .................................................................................. 19

Implementation of treaties – becomes a purposive power #scandal ................................................................ 20

Requirements for valid implementation of treaty ................................................................................ 21

Customary international law ........................................................................................................................ 21

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Trade and commerce power (the worst of all the powers) ........................................................................................ 22

‘With other countries and among the States’ – interstate vs intrastate distinction ............................................ 22

Incidental aspect of power ............................................................................................................................ 23

Corporations power ................................................................................................................................................ 24

Which corporations can be regulated? ........................................................................................................... 25

Foreign corporations ......................................................................................................................... 25

Trading corporations......................................................................................................................... 25

Financial corporations ...................................................................................................................... 26

Inactive corporations ........................................................................................................................ 26

Scope of power – what aspects or activities can be regulated? ........................................................................ 27

Development of broad and narrow views ........................................................................................... 27

Can incorporation be regulated? (No.) .......................................................................................................... 28

Races power ........................................................................................................................................................... 29

Special law – law can’t just be about race and apply to everybody, has to specify races ................................... 29

Particular race .............................................................................................................................................. 29

Necessary – political value judgment for Parliament to make ......................................................................... 30

Law might not have to benefit the race to be supported by races power .......................................................... 30

Defence power ....................................................................................................................................................... 31

Judicial/substantial deference (what judges can consider re defence power cases) .......................................... 31

War – scope of power is extremely broad ...................................................................................................... 32

Post-war – scope limited to what is necessary to deal with consequences of war ............................................. 32

Peacetime – needs to be a significant connection between law and defence .................................................... 32

Cold War – Community Party Case ............................................................................................................. 33

Terrorism – enough to enliven defence power apparently .............................................................................. 33

Taxation power ...................................................................................................................................................... 34

Definition of tax ........................................................................................................................................... 34

Fees for services – not a tax .......................................................................................................................... 36

Early cases ........................................................................................................................................ 36

Modern cases .................................................................................................................................... 36

Grants power / giving money to pleb States ............................................................................................................ 37

Early cases – very wide scope established ...................................................................................................... 37

Uniform Tax Cases – Cth can still do whatever the hell it wants .................................................................... 38

Scope (broad) and limitations (not many) ..................................................................................................... 39

Express guarantees in the Constitution – trial by jury ............................................................................................... 40

Section 80 only applies where there is trial on indictment provided for by Parliament .................................... 40

Section 80 only applies to offences against the Cth ........................................................................................ 41

What are the requirements of s 80 when it applies? ........................................................................................ 41

Express guarantees in the Constitution – freedom of religion ................................................................................... 42

‘Religion’ pretty much means what you think it means .................................................................................. 42

First limb of s 116 – establishment ................................................................................................................ 42

Third limb of s 116 – laws ‘for’ prohibiting free exercise of any religion ......................................................... 42

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Freedom of interstate trade and commerce .............................................................................................................. 43

History of s 92 .............................................................................................................................................. 43

Individual rights theory was cool for a while ................................................................................................. 43

Cole v Whitfield – High Court likes free trade interpretation better ................................................................ 44

Developments/complications arising after Cole v Whitfield .......................................................................... 45

Meaning of 'protectionist’ .................................................................................................................. 45

Exception – proportionate regulation ................................................................................................. 46

More betting cases ............................................................................................................................ 46

Implied freedom of political communication ........................................................................................................... 47

First limb .......................................................................................................................................... 47

Second limb ...................................................................................................................................... 48

Implications in the Constitution ................................................................................................................... 49

Beginnings of implied freedom of political communication ........................................................................... 49

Development of freedom .............................................................................................................................. 50

Implied freedom confirmed – Lange v ABC .................................................................................................. 51

Politics of protest – cases that helped to clarify Lange application .................................................................. 51

Modern cases – some surprising things have satisfied second limb of Lange ................................................... 52

Judicial power and detention .................................................................................................................................. 53

Incompatibility doctrine – State courts given Cth power can’t have incompatible functions ............................ 54

Preventive detention – you can keep them locked up longer, but just be subtle about it ................................... 55

Protective detention – sorry Stolen generation apparently what they did was fine ........................................... 56

Immigration detention – we are constitutionally allowed to be really, really shitty to refugees ........................ 56

Control orders – restricting freedom without criminal conviction ................................................................... 58

Melbourne Corporation principle – Cth has to let States do their thing ..................................................................... 59

Originally High Court thought there were two limbs to principle ................................................................... 60

Scandal, now High Court thinks there’s only one limb .................................................................................. 61

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Precedent and overruling – High Court is better than everyone else, can contradict itself

High Court not necessarily bound by its own decisions, despite doctrine of precedent (called “apex” court) Privy Council never adopted practice of binding itself and High Court followed this practice

o UK House of Lords decided in 1861 it was to bind itself– reversed in 1966 Practice Statement Engine-Drivers’ Case (1913) 17 CLR 261

o Following PC case Read v Bishop of Lincoln, HC held: “primary duty of even that august tribunal, to consider for itself at instance of every suitor before it, what is law by which he is bound.”

o Prior decision does not constitute law, just a judicial declaration of law: duty of Court to overrule “where prior decision is manifestly wrong, irrespective of consequence”

o A previous declaration of law might be wrong, unless from higher court, and as every court must examine reasons for following a decision, where law appears unsound they are bound to give effect to their own view of the law or else judges become legislators

High Court approaches overruling in two stages (never about showing original decision was just wrong): 1. Whether question of overruling will be entertained at all (since Evda Nominees v Victoria, High

Court requires a party be granted leave before challenging correctness of prior decision) 2. Whether it should be overturned

Cases where decisions overruled listed in John v Federal Commissioner of Taxation (1989) 166 CLR 417: o Earlier decision did not rest upon a principle carefully worked out in significant succession of cases o Difference between reasons of justices constituting the majority in an earlier decision o Earlier decisions achieved no useful result; on the contrary, led to considerable inconvenience o Earlier decisions weren’t independently acted on in a manner that discouraged reconsideration

Overruling “requires evaluation of factors which may weigh for and against overruling. That evaluation will be informed by a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not be taken lightly… no Justice of the Court is entitled to ignore the previous decisions and reasoning of the Court and arrive at his or her own judgment as though the pages of the law reports were blank…” – Wurridjal v Commonwealth (2009) 237 CLR 309 [not always necessary to make a finding that prior decision was erroneous in order to justify overruling it].

There are “weighty statements of authority which support the proposition that, in matters of fundamental constitutional importance, the members of this Court are obliged to adhere to what they see as the

requirement of the Constitution of which the Court is both a creature and custodian”, and overrule

previous decisions – Stevens v Head (1993) 176 CLR 433 “Constitution may be rigid but that does not imply or require rigidity on the part of the Court in adherence

to prior decisions… to depart from them is a grave matter and a heavy responsibility. But convinced of their error, the duty to express what is the proper construction is paramount” – Qld v Cth (Second Territory Senators Case) (1977) 139 CLR 585

Kirby J in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28: x Normal for judges to follow previous majority rulings on the Constitution, “if only to avoid the spectacle” of

overruling decisions on identical questions on the basis of nothing more than retirement of a member of past majority and replacement of a new Justice with a different view

x “Opinionative character of constitutional doctrine”; what matters is “conclusion of a majority of this Court… Reason, history, principle, words, adverse risks and legal precedent, bend in the wind of transient majorities.”

Reading down and severance

When a provision is unconstitutional, does not necessarily mean entire statute must fail – High Court can

preserve remainder by reading down so it does not apply where it cannot validly do so, but still operating in other cases (Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1, function conferred on “person” can’t be conferred on judge; meaning of “person” read down to exclude judge)

Where impossible, High Court can sever offending parts (only so far as still reflects Parliament’s intention – AIA 1901 (Cth) s 15A) – NSW v Cth (Work Choices Case) (2006) – s 15A can save validity of law “so long as outcome has not been changed so as to make it something different from law enacted”

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How to interpret the Constitution

Framers adopted an American model – Cth’s powers enumerated (both concurrent (s 51) and exclusive (ss 52, 90), and powers of States not expressly removed by conferral of exclusive power on Cth to ‘continue’ (s 107)

Pre-Engineers – hey, Cth, leave those States alone

Before Engineers Case, the High Court had adopted a narrow view of the ambit of Cth’s legislative powers The Constitution assigns a specific list of powers to the Cth Parliament (in s 51), and remaining powers are

left to states (declared by s 107 to “continue”) Powers presumed to be concurrent despite being explicitly assigned to Cth, and there is an assumption under

s 109 that Cth law prevails over state law in a case of conflict o Exception – Cth granted exclusive power like in s 52, depriving states of any legislative power

Wide extent of concurrent powers may imply Cth and state governments could make laws binding each

other – early on, the High Court denied this possibility, as sovereignty was a key principle of federalism, and it was thought neither level of government could tell the other what to do

Two doctrines emerged after the first three judges of the High Court were appointed in 1903, as ways of protecting the States from Commonwealth interference:

Implied immunity of instrumentalities doctrine, held both States and Cth were immune from each other’s laws

Cth and States seen as separate sovereign entities ‘within the ambit of [their] authority], subject to ‘the imperial connection and to the provisions of the Constitution’ – D’Emden v Pedder (1904) 1 CLR 91

o Cth and States were sovereign within their own spheres of authority, and thus a Cth officer was not bound by Tasmanian stamp duty law

Deakin v Webb (1904) 1 CLR 585 – Cth minister not liable to pay state income tax Municipal Council of Sydney v Cth (Municipal Rates Case) (1904) – Cth owned buildings in Sydney were

previously subject to municipal rates when owned by NSW; held rates not applicable because of express immunity from State taxation conferred by s 114 on “property of any kind belonging to the Cth”

Webb v Outtrim [1907] AC 81 – Privy Council held D’Emden and Deakin were wrongly decided, but in Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 court ruled PC lacked jurisdiction/they weren’t bound

State agencies were also protected from Cth laws – in Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association (Railway Servants’ Case) (1906) 4 CLR 488, NSW union could not be registered under Cth law as it would violate immunities

Reserved state powers doctrine, which meant Cth grants of power were to be interpreted so as to ensure they did not encroach too far upon the “residual” powers of the states

Under s 107, states have plenary legislative powers, with exception of some exclusive to Cth (s 51, s 90) Cth’s concurrent powers in s 51 were narrowly interpreted so as to not intrude on plenary legislative powers

which were seen as ‘residual’ or ‘reserved’ R v Barger (1908) 6 CLR 41:

o Challenge to s 2 of the Excuse Tarriff Act 1906 (Cth) as invalid exercise of taxation power under s 51(ii) – section gave tax breaks on agricultural machinery to workplaces with good working conditions under tax power; but was basically an exercise of workplace relations power

o Held: true ‘nature and character’ of the Act was not taxation law but law regulating labour – invalid because labour conditions within states is an internal matter, falling under reserved state powers

o [Would be decided differently today as dual characterisation is allowed]

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Engineers Case – Cth law is superior to State law

Both doctrines were abolished by the Engineers’ Case, which moved towards literalism as a method of

constitutional interpretation – Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129

x Claim by union of engineers in the Commonwealth Court of Conciliation and Arbitration for an award relating to 843 employers across Australia; in WA the employers included three governmental employers

x Issue: could a Commonwealth law under the conciliation and arbitration power could authorise the making of an award binding those three employers; can the Cth bind the state?

x Under old approach, law could not apply if government employers were regarded as state instrumentalities and if the doctrine of implied immunity of instrumentalities was good law

x However the old approach was not based on the text of the Constitution but on implications said to be necessary, which were really just the judges’ personal opinions

x To restore order, and in keeping with proper institutional function, Court had to return to literal meaning o Based on this approach, nothing in s 51(xxxv) says Cth’s industrial power can’t bind states

x Only other relevant provision is s 107 – ‘fundamental and fatal error to read s 107 as reserving any power from the Cth that falls fairly within the explicit terms of an express grant in s 51’

x While valid and binding where no relevant Cth law exists, the moment state law encounters Cth law

operating in the same field, it must yield

Shift discussed in Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353 – Windeyer J assessed reasons behind change as follows:

x States were not sovereign before 1901 in any real sense; implied doctrine doomed from the start x Strengthening of Cth legislative powers at expense of states’ powers is logical consequence of s 109 x Two doctrines discarded in Engineers were influenced by understanding of federation immediately after

1901, and change in Engineers reflected growing sense of nationhood (Australia was now one country, and national laws could meet national needs

x Interpretation not just a matter of strict legal technique, but varies and develops ‘in response to changing circumstances’ in the manner of common law development – original judges were not wrong

Jumbunna principle – interpret Constitution as broadly as possible

Take broadest interpretation as possible; Constitution is to be enduring and adapt to changing times, and its meaning must be capable of changing over time – Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309

x When faced with ambiguity, the default position of the court is to fall to the widest interpretation of the grant of Cth power, unless there is something in the context or the rest of the Constitution to indicate a narrower interpretation will best carry out its object and purpose

x “where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the

context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out

its object and purpose.” x “must be remembered that we are interpreting a Constitution BROAD AND GENERAL IN ITS TERMS,

intended to apply to the varying conditions which the development of our community must involve”

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Judicial methodology – how judges approach the Constitution

Judicial interpretation of Constitution has long lasting consequences – also invalidating laws contradicts express wishes of elected representatives of the Australian people, so must be justified

Constitution s 76(i) and Judiciary Act 1903 (Cth) s 30(a) give High Court power to interpret Constitution – but this can be exceeded, so Court’s method of interpretation needs to be neutral and based entirely on law

The more it appears the Court is simply giving effect to choices of Constitution’s framers, the more legitimate the exercise of their powers will be

Ideally court should adopt one method, for consistency about judgments

Legalism / literalism

Dixon CJ in 1952: “there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.”

Engineers saw a triumph of legalism as most legitimate method – a literal interpretation of the text of the Constitution, within a context of traditional legal principles and techniques, and circumstances of its writing

Legalism is broader than literalism – o Can be applied to all adjudicative functions not just constitutional interpretations o Makes used of legal materials other than text like pre-existing common law and statute (AIA)

Barwick CJ in 1981 – judge’s task is “to decide on Cth power and after that the Constitution works itself out” o Legislature used specific words, those words cannot be “side-stepped” and Court’s job is just to say

what the words mean “and there are quite distinct and understandable rules by which courts interpret statutory provisions” – “in the case of the Constitution, it is not, but even to a great degree. There is no room for the Court to change the Constitution.”

Judicial choice – legal materials don’t have predetermined correct answer, best decision will be that which proceed from attempt to discover intention of framers, or the meaning which their words had for them

ISSUE – legalism can be an impossible ideal, so better to acknowledge reality of judicial choice than hiding behind

a cloud of legalistic choice. To that end, three methods have emerged over the last century – originalism,

textualism and incremental accommodation.

Originalism – giving effect to original meaning of Constitution as understood in 1900

Tasmania v Cth and Victoria (1904) 1 CLR 329 – early High Court reluctant to accept extrinsic evidence of framers’ actual intentions over words of Constitution itself

o Expressly rejected reference to Convention debates o Did allow reference to earlier drafts of the Constitution to shed light on intention

Bizarre situation of allowing some historical materials but not all (debates) continued until Cole v Whitfield where debates were used to identify ‘the contemporary [i.e. historical] meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged’, but ‘not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the section to have’

Originalism endorses reference to historical materials as a guide to meaning text would have had to

‘literate and informed’ readers of the constitution in 1900 (textual originalism) not to subjective intention of framers (intentional originalism)

Confirmed in NSW v Cth (Work Choices Case) (2006) 229 CLR 1 – ‘To pursue the identification of what is said to be the framers’ intention, much more often than not, is to pursue a mirage’ (at 96)

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Textualism – giving effect to plain/ordinary meaning of words in Constitution, ignoring subjective intention

Eastman v The Queen (2000) 203 CLR 1 per McHugh J

Relevant intention of provisions is expressed in the Constitution itself – not in the subjective intentions of the framers. Intention is determined objectively

Commitment to discerning intention of framers = dead hand constitutionalism Our Constitution is general and abstract = allows for infusion with current understanding of those concepts

and purpose – intended to be an enduring document To deny that events following Federation can be used to see more than framers saw is “to leave us slaves to

the mental images…of the founding fathers and their 1901 audience, a prospect which they almost certainly did not intend”

Application and meaning of provision may be informed by contemporary circumstances

Incremental accommodation – giving effect to modern meaning of Constitution, by considering changing social values, technological change and/or new legal institutions

Not so radical to interpret constitution without reference to historical meanings, purely in modern context Dawson J in Street v Queensland Bar Association – connotations are fixed, but denotations can change Early proponent of approach was Deane J, who as Constitution as a ‘living tree’, the meaning of which

changes as social values change Kirby J then adopted this approach (not endorsed by other judges)

o Words must be given their contemporary meaning, i.e. the meaning they have today (Brownlee v Queen (2001) 207 CLR 278, 320-22)

o ‘Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights’ (Kartinyeri v Commonwealth (1998) 195 CLR 337, 417)

For example, extension of s 51(v) o R v Brislan; Ex parte Williams (1935) 54 CLR 262: extended to radio o Jones v Commonwealth (No 2) (1965) 112 CLR 206: extended to TV o Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595: extended to

telecommunications regulations

Result – High Court has never settled on a single, preferred approach to constitutional interpretation (Callinan J in Work Choices Case) – any one of originalism, textualism or incremental accommodation can be used alone or in combination

Morally defensible combination of democratic methods might look like:

1. A judge should attempt, at least in the first instance, to give effect to the original meaning of the Constitution as manifest in the constitutional text

2. To ascertain the original meaning, regard may be had to historical materials such as the Convention debates, earlier drafts, and other materials that help us to understand what the words of the Constitution meant at the time they were enacted

3. Where the original meaning is not clear, either because it is ambiguous in itself, or because its application to changing circumstances is uncertain, recourse to constitutional policy arguments is justified, since judges cannot abdicate responsibility to give a decision

4. Constitutional policy arguments necessarily take into account changing social values, technological and legal change, and the likely consequences of the competing interpretations contended for

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Characterisation – how to ascertain subject-matter of a challenged law

Characterisation: process of determining whether a Cth law comes within the scope of legislative powers conferred upon the Cth parliament by the Constitution (Richardson v Forestry Commission (1988), Cth v Tasmania (1983))

1. Identify heads of power that could reasonably be invoked to support a Cth law 2. Determine scope of the head of power – how has this power been interpreted by the High Court/what

limits have been applied to its interpretation? 3. Can the law be characterised as fitting within the head of power?

a. Non-purposive or subject matter powers – test from Tasmanian Dam Case (1983): it is a law “with respect to” the head of power?

i. Look to rights, duties, obligations and privileges it changes, regulates or abolishes ii. Must be sufficient connection between law and subject matter (Tasmanian Dam Case)

iii. “The connection must be substantial, not merely tenuous” (Re Dingjan (1995)) b. Purposive powers (creation of treaties and defence power) – test from Richardson v Forestry

Commission: is this reasonably appropriate to fulfil the stated objective/purpose? i. Purpose is “not… underlying motive but to the end or object legislation serves”

(Cunliffe) ii. Law made in the exercise of a purposive constitutional power will be valid if

reasonably capable of being regarded as appropriate and adapted to the object, which gives the law its character as a law with respect to the relevant head of power

c. Implied incidental powers i. Attached to every express grant of power is an implied grant wide enough to make the

express grant effective (D’Emden v Pedder) ii. Test: is the incidental power necessary for reasonable fulfilment of that head of power?

(Marrickville Margarine) iii. Incidental power must be reasonably proportionate/reasonably and appropriately

adapted to pursuit of whatever end power has (Nationwide News (1992)) 4. Are there any constitutional limitations?

a. Judicial independence – does this law conform to the separation of judicial powers? i. Courts have exclusive power to determine criminal guilt (Chu Kheng Lim)

ii. Cth has power to decide when federal offences are to be tried summarily or on indictment, and thus whether there is trial by jury (McHugh v The Queen (2000))

iii. Right to trial by jury cannot be waived by accused (Brown v The Queen (1986)) iv. At least ten jurors (Brownlee v The Queen (2001)) v. Unanimous verdict (Cheatle v The Queen (1993))

b. Freedom of political communication i. Does law burden communication on governmental/political matters?

ii. Is law reasonably appropriate and adapted to serve a legitimate end? c. Discrimination between states – Cth can’t discriminate against states by singling one out as

subject of legislation; or threaten continued existence of a state/interfere with its government’s ability to function

d. Freedom of religion (s 116) – Cth can’t force adherence to a particular religion, or burden it e. Trade amongst trades must be free (s 92) f. State law can’t be inconsistent with Cth law (s 109) g. Acquisition of property – must be on just terms

5. If not constitutional – can law be read down or severed to preserve validity a. Rare to read legislation down; usually only occurs where there was an error in writing legislation b. Severance only an option if rest of the Act is unaffected – if unconstitutional section is not

severable, whole Act must be scrapped

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Approach to characterisation

Judicial approach to characterisation used to be based on ‘pith and substance’ of relevant law (term originating from Privy Council) but term was rejected in Bank of NSW v Cth (Bank Nationalisation Case) (1948) 76 CLR 1

x Banking Act 1947 (Cth) challenged – ultimately found to be supported by Cth head of power but invalid because it breached s 92 freedom and s 51(xxxi) duty to not acquire property except on just terms

x Latham CJ rejected usefulness of ‘pith and substance’ test – argued it made more sense in its original Canadian context where powers of federal and state parliaments were both enumerated, not helpful here

x Judgment of Dixon J foreshadowed today’s approach: 1. Work out the scope of the head of power (cited Jumbunna Coal, held Court should lean to

broader interpretation unless context or Constitution suggests otherwise) 2. Work out whether the Act is within this scope

Dual characterisation

In R v Barger, court had searched for ‘true character’ of law and gave it a single characterisation on that basis – indicative of early approach to characterisation

But following rejection of ‘pith and substance’ approach, possible to see that a law may be characterised in two or more ways, one of which may be outside power

Dixon J formulated principle of dual characterisation in Melbourne Corporation v Cth (1947) 74 CLR 31: ‘Speaking generally, once it appears that a federal law has an actual and immediate operation within a field assigned to the Cth as a subject of legislative power, that is enough. It will be held to fall within power unless some further reason appears for excluding it. That it discloses another purpose and that the purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate [it].’

Principle of dual characterisation illustrated by Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 –

as long as a law can be fairly characterised as being a law with respect to a Cth power, doesn’t matter if it can also be characterised as some other matter not within power

x Income Tax and Social Services Contribution Assessment Act 1961 (Cth) s 11 denied exemption in investment income of superannuation fund unless certain amount invested in ‘public securities’ like Cth or State bonds, debentures, stock or other securities – appellant sought to characterise this law as regulating investment of superannuation funds

x HELD it was enough that the law could be characterised as dealing with taxation – focus will be on

direct effect of the law, rather than its effects/consequences o “the question is always one of subject matter, to be determined by reference solely to the operation

which the enactment has if it be valid, that is to say by reference to the nature of the rights,

duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the

true nature and character of the legislation: is it in its real substance a law upon, ‘with respect to’, one or more of the enumerated subjects, or is there no more in it in relation to those subjects

than an interference so incidental as not in truth to affect its character?” x Crucial issue was that the obligation that was imposed was the taxation obligation (satisfying direct

characterisation test) whereas it could not be said that superannuation fund managers were obliged by law to invest in public securities

Herald & Weekly Times Ltd v Cth (1966) 115 CLR 418 affirmed approach taken in Fairfax

x S 81 of Act authorised conditions to be satisfied before granting of TV licence – ownership or control of commercial TV licences limited, and (1) a person couldn’t hold more than 5% shareholding in more than two licences and (3) couldn’t be a director of more than 2 companies controlling 3 or more licences

x Argued this was beyond the scope of s 51(v) x HELD High Court is not overly concerned with the policy the law embodies, but only with whether it

can fairly be described as a law ‘with respect to’ a specified subject matter

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Policy behind law and its indirect consequences are generally irrelevant in characterisation – Murphyores Inc Pty Ltd v Cth (1976) 136 CLR 1 (affirmed Fairfax and Herald)

x Customs (Prohibited Exports) Regulations, enacted under the Customs Act 1901 (Cth) prohibited export of zircon and rutile concentrates without written approval from Minister

x Murphyores sought approval but were told no decision would be made until environmental impact study finished, as required by Environmental Protection (Impact of Proposals) Act 1974 (Cth), sought an injunction to prevent study from proceeding, anticipating study would show request would be detrimental, and declaration that Minister couldn’t take into account “non-Cth” considerations like environment

x HELD Minister could exercise an unfettered discretion in deciding whether or not to permit mineral exports o An unqualified prohibition against participation in an activity is within constitutional power, a

qualified or conditional prohibition can also be within power o Imposing conditional prohibition, no less a law about trade and commerce (Mason J) o Barger no longer good law, overruled by Fairfax

Identifying the one true character of a statute, to the exclusion of all others, is not necessary – NSW v Cth (Work Choices case) (2006) 229 CLR 1 per Kirby J: “inevitably, reasonable minds can differ. Of their nature, there will often be more than one single available answer.”

Policy for rejected single character test – Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169

x Stephen J: to recognise that a law may possess a number of quite disparate characters is to accept reality – few laws involve only one element, and accepting dual characterisation disposes of need to rely upon what may prove to be quite subjective reasons for selecting a particular description only

x Once recognised a law can possess several distinct characters, the fact that only some elements fall with one or more grants of power in s 51 or elsewhere will not invalidate it

x So long as the remaining elements (which don’t fall within s 51) are not of such significance that the law cannot be fairly described as one with regard to one or more such grants of power, law will be valid

Interaction between heads of power

One head of power cannot be used to ‘read down’ another – principle developed from Engineers Fact that a broad reading of external affairs power absorbs entire scope of another power (s 51xxx) doesn’t

refute that reading Section 51(xxxv) can’t be read down so as to prevent Cth from regulating industrial relations under

defence power (Pidoto v Victoria (1943) 68 CLR 87) or corporations power (Work Choices (2006)) Principle subject to an exception – where head of power contains an express limitation on Cth power

o As banking power expressly excludes state banking, once law characterised as dealing with banking it will be outside power if it deals with state banking (Bourke v State Bank of NSW) (1990) 170 CLR 276))

o Can be understood as an exception to dual characterisation – where ‘the second subject-matter w.r.t. which the law can be characterised is not only outside power but is the subject of a positive prohibition or restriction’, the law will be outside power (Bourke at 285)

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Subject matter v purpose powers

High Court distinguishes between two different types of heads of power – those where a law purporting to fall within their scope must have the required subject matter, and those where the law must have the required purpose

Subject matter powers

Heads of power – trade and commerce; corporations; races; taxation; grants; external affairs (re external matters and foreign relations)

Test for characterisation: sufficient connection – law does not have to fall directly on the power (core) but must merely be ‘sufficiently connected’ to it

o Flows from ‘make laws with respect to’ Test from Re Dingjan; Ex parte Wagner (1995) 183 CLR 323

1. Define subject matter of law by reference to the ‘rights, powers, liabilities, duties and privileges which it creates’ – purely legal test that does not concern itself with motive underlying law or any attempt to discern ‘true character’

2. Decide whether law so characterised is ‘sufficiently connected’ to head of power – involves ‘questions of degree’ (Burton v Honan (1952) 86 CLR 169) where Court is essentially making a discretionary judgment about closeness of connection between law and head of power

Incidental powers o There will be cases where law is clearly within power because it creates, changes or destroys rights,

duties, powers and privileges within conceptual field demarcated by head of power (Grain Pool) o In some cases, sufficient connection may be established by showing law falls within Cth’s

‘implied incidental power’ re that head of power – that which is incidental to its proper exercise (Grannall v Marrackville Margarine Pty Ltd (1955) 93 CLR 55)

o Separate to express incidental power that supports exercise of legislative/executive/judicial power o Court has sometimes used ‘appropriate and adapted’ or ‘reasonably necessary’ tests – modern

tendency is to avoid such language for subject matter powers (Leask v Cth), although inevitably requires consideration of purpose

Grainpool of Western Australia v Cth (2000) 202 CLR 479, concerning whether Cth laws regulating development of new varieties of plans fell within s 51(xviii) power on copyrights, patents, and trademarks, summarised law on

characterisation in form of five principles:

1. Construe constitutional text ‘with all the generality which the words used admit’ (citing R v Public Licensing Appeal Tribunal (Tas) (1964) 113 CLR 207 at 225-26)

2. Determine character of law by reference to rights, powers, liabilities, duties and privileges which it creates 3. Examine practical and legal operation of law to determine if there is sufficient connection between law and

head of power (Re v Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-69 and Leask v Cth (1996) 187 CLR 579 at 601 -02, 621, 633-34)

4. Disregard fact that law may be characterised in another way that can’t be brought under head of power, even if no ‘independent connection’ between the two subject matters (Re F; Ex parte F (1986) 161 CLR 376 at 388 per Mason & Deane JJ)

5. If a sufficient connection with head of power exists, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice (Leask at 602)

These principles do not displace detailed rules of characterisation with respect to each head of power

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Inconsistency of laws

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.”

When central and regional governments share legislative powers concurrently, there may be areas where inconsistencies between the laws occur – especially in Australia as very few Cth powers are exclusive (s 52)

What is a ‘law’ for purposes of s 109?

For section 109 to apply, there must be a valid State law and a valid Commonwealth law Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 – s 109 “applies only in cases where,

apart from the operation of the section, both the Commonwealth and the State laws which are in question would be valid. If either is invalid ab initio by reason of lack of power, no question can arise under the section.”

Law Not a law

Acts of Parliament Common law Subordinate or delegated legislation, such as regulations, statutory rules, and industrial awards – because they are made under the authority of the primary Act (Ex parte McLean (1930))

Administrative orders made under the authority of Cth laws will not override State laws (in Airlines of NSW v NSW (No 1) (1964), administrative directions like air navigation orders did not amount to ‘laws of the Commonwealth’)

Laws of the territories – this is covered by s 122

Meaning of ‘invalid’ = inoperative, never existed, nice try States

High Court has found ‘invalid’ to mean ‘inoperative’ – if found inconsistent, State law ceases to operate Some laws struck down for inconsistency may ‘revive’ if relevant Cth law is repealed – no need to re-enact Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557

o “‘invalid’ in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed, the State law would again become operative… the word ‘invalid’ should be interpreted as meaning ‘inoperative’.”

o This is why s 109 says ‘will prevail’ – because Cth law has “superior authority and takes effect to the exclusion of the inconsistent State law”

Inconsistent provisions in a State Act can be severed for inconsistency – but if not severable, the whole Act is deemed inoperative ab initio such as in Wenn v Attorney-General for Victoria (1948) 77 CLR 84

Tests for inconsistency

1. Impossible to obey both laws

Laws will be inconsistent where it is impossible to obey both at the same time Earliest interpretations of s 109 limited inconsistency to situations where it was impossible to obey both laws

– in R v Brisbane Licensing Court; Ex parte Daniell (1920) a state referendum on liquor trading hours was fixed by State law for the same day as a federal Senate election, and Cth law provided that a State referendum could not be held that day

Test arose in McBain v Victoria (2000) 99 FCR 116 – s 8 of the Infertility Treatment Act 1995 (Vic), which compelled discrimination on the basis of marital status in relation to access to a service, was deemed inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) which prohibited such discrimination, and thus inoperative

o Impossible for a provider of IVF to obey both Acts Australian Boot Trade Employees Federation v Whybrow (1910) – Cth prescribed higher minimum wage

than state law in sector; not inconsistent because it was possible to obey both by paying higher wage Where Cth and State laws prohibit same conduct, with different penalties, Cth prevails – Ex parte McLean But where same conduct gives rise to separate offences under Cth and State law, both valid – McWaters v

Day (1989) (soldier driving under the influence, convicted under both State driving law and Cth military law)

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2. One law purports to confer a legal right, privilege or entitlement that the other purports to diminish

“one 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 with disobeying the statute which conferred it” – Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

o State law prescribed ‘ordinary working hours’ of 44 hours a week with overtime thereafter; Cth law prescribed 48 – Cowburn worked 44 hours, employer who relied on federal award deducted his pay

o Two laws will be inconsistent with each other under s 109 when state law alters, impairs or detracts In Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151, a Cth provision affirmed that employers in certain

industries could employ women to work on certain machines and State provision made it an offence to do so In Mabo, plaintiffs argued that Queensland Act purporting to extinguish any traditional land rights they

might have had was inconsistent with the Racial Discrimination Act 1975 (Cth) because of a diminution of rights – State law limited their human rights while Cth law operated to preserve them, thus inconsistent

3. Commonwealth law evinces an intention to ‘cover the field’ [indirect inconsistency]

If Cth legislature expressly or impliedly evinces its intention to cover the whole field, it is a conclusive test of inconsistency where State tries to enter to any extent upon the same field – Clyde Engineering Co Ltd v Cowburn

Three steps outlined by Isaacs J in Clyde Engineering to be followed:

1. Identify the field that the Cth law deals with

Process of identification of subject matter similar to characterisation – what is the law about? In O’Sullivan v Noarlunga Meat (1954), Cth and State legislation defined licensing of premises for

slaughtering of stock for export, thus overlapped – Cth law dealt with matters of hygiene and production quality, and State law with identity of proprietor (‘fit and proper persons’) and location of abattoir

Airlines of NSW v NSW (No 2) – both Cth law and State law set licence conditions for operating commercial aircraft but found not to overlap because different considerations set for grant of licence in each case (air safety and facilitation of competition in air industry)

2. Decide whether field covered by State law overlaps with that field [if no overlap of fields, then no indirect inconsistency will be found]

In Ansett Transport Industries v Wardley – did State law on discrimination encroach on Cth award regulating conditions of dismissal? Clear overlap between the two areas, but majority held the two laws dealt with separate fields of dismissal procedure and substantive grounds for dismissal

In Commercial Radio Coffs Harbour v Fuller, radio station argued that having been granted a licence under Cth law, its broadcasting activities could not be restricted by State law; held that Cth did not ‘purport to state exclusively or exhaustively the law with which the operation of a commercial broadcasting station must comply’, but merely ban broadcasting without a licence

In Australian Mutual Provident Society v Goulden, AMP refused to vary policy to permit waiver of premium payments in event of total disability; Life Insurance Act 1945 (Cth) found to cover field of insurance to the exclusion of Anti-Discrimination Act 1977 (NSW) prohibiting discrimination

3. If so, decide whether Cth intended to cover the field to the exclusion of State law

Intention to cover field can be express or implied Express intention may be to cover the field, or to leave it open for State laws Wenn v Attorney General for Victoria – Victorian Act expressly provided for preferential treatment for

returned servicemen in employment promotion while post WWII Cth statute was silent except for an express intention that its provisions were to override inconsistent state law; held because of this clause, its silence was deliberate and it intended to override State law

A clause in Cth law expressing intention to cover the field fails where Cth has no power over issue in question – Airlines of NSW Pty Ltd v NSW (No 2) (1965)

Three steps endorsed in Ex parte McLean (1930) 43 CLR 472

x S 44 of C and A Act 1904 (Cth) held that a person in breach of an award was liable to a penalty set by Court of C and A or a conciliation commissioner; while s 4 of Masters and Servants Act 1902 (NSW) held any person neglecting to fulfil a contract of service was liable to a penalty not exceeding £10

x Alleged McLean neglected to fulfil due to incompetence; McLean argued NSW law was inconsistent x Held that inconsistency in this case ‘depends upon the intention of the paramount legislature to express by its

enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed’