LAWS2150 Take-Home

LAWS2150 FEDERAL CONSTITUTIONAL LAW TAKE-HOME EXERCISE QUESTION 1: Advise the Prime Minister to what extent if any the provisions of the proposed Act are supported by the external affairs power in s 51(xxix), giving reasons for your advice. QUESTION 2: Advise the Prime Minister to what extent if any section 4 of the proposed Act (read with the other provisions of the Act as appropriate) is a valid exercise of the corporations power in s 51(xx), giving reasons for your advice. QUESTION 3: Advise the Prime Minister to what extent if any section 5 of the proposed Act is a valid exercise of the defence power in s 51(vi), giving reasons for your advice. GIANCARLO DE VERA (Z3193238) JO LENNAN SEPTEMBER 14 2010

Giancarlo de Vera (z3193238) Jo Lennan

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1. THE EXTERNAL AFFAIRS POWER - s 51(xxix)

Treaty-Making and Treaty-Implementing Power; - While it can be readily

established that under Australian law, the capacity to negotiate and accede to

international treaties is unlimited (Tasmanian Dams)1, this does not mean that mere

signing and ratification of a treaty introduces the terms of the treaty into the laws of

Australia. The rationale behind this presupposition relies upon the understanding that

treaty-making is an executive act, while the performance of treaty obligations, if they

entail alteration of the existing laws of Australia, requires legislative change by the

Parliament. Good authority for this presupposition can be found in Koowarta2 where

Stephen J noted that while treaties were contemplated as becoming law of the land at

the time of the drafting of the Constitution, “…the Constitution as finally adopted

attempted no such departure from the settled common law doctrine; the exercise of

treaty-making power was not to create municipal law”.3 The proposed Alcohol Control

Act 2010 (Cth) (hereafter referred to as the ‘Act’) represents this presupposition, and

s 51 (xxix) grants the power to the Parliament to legislate so as to give effect, within

Australia, to the terms of a treaty, in this case INCHA, irrespective of the subject matter

of the treaty (R v Burgess; Ex parte Henry;4 reaffirmed in Tasmanian Dams5). Within

this context, ss 1, 2 are supported by the external affairs power, as they are merely

descriptive and definitional in nature respectively, however ss 3,4, 5 require further

analysis into whether or not they are supported by s 51(xxix).

The Expansive View of s 51 (xxix) and Non-Obligatory Regimes; - While s 1 of the

Act is supported by s 51(xxix), this does not necessarily mean that ss 3, 4, 5, which

substantiate s 1, are also similarly supported. To determine whether or not ss 3, 4, 5 of

the Act are supported by the external affairs power, the Tasmanian Dams case6 had


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established that, as a minimal proposition about the scope o f s 51(xxix), that “…[T]he

acceptance by Australia of an obligation under the Convention suffices to establish the

power of the Commonwealth to make a law to fulfil the obligation”.7 As such, with the

express obligation under Article 3 of the INCHA providing for “Member States [to]

take all reasonable steps to discourage the harmful use of alcohol, ss 3, 4, 5 can be

argued to be supported by the external affairs power. Further, even if the sections could

be argued as unreasonable for the purposes of Article 3 of the INCHA, these sections

could be construed as benefits, evincing a new non-obligatory regime. In such a regime,

Mason J in the Tasmanian Dams case8 said s 51(xxix) could be extended to the

implementation of an international agreement which conferred a benefit on Australia.9

Murphy J in the same case, also said that s 51(xxix) “…extended to the execution of

treaties by discharging obligations or obtaining benefits” (emphasis added).10 As such,

the Parliament could legislate on any matter of international concern which might be

demonstrated by “… Other nation States generally [or] by the world’s scientific

community or a significant part of it”.11 Within this context, ss 3, 4, 5 could be

demonstrated to be of international concern, by reference not only to the international

scientific (i.e. the international medical) community’s overwhelming evidence of the

detrimental relationship between health and alcohol abuse; but also by referencing the

number of nation-states who have also ratified the INCHA as evidencing that it is an

international concern by virtue of the number of ratifications (assuming INCHA was

ratified by a majority of the Member State of WHO, which is plausible if we are to infer

that INCHA represents an international consensus on the issue of alcohol abuse). On

these grounds, the aforementioned sections can be further argued to be supported by the

external affairs power. Further authority on this proposition can be found in Richardson


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v Forestry Commission,12 with Gaudron J adopting the expansive view of the external

affairs power as expressed by Mason and Murphy JJ in Tasmanian Dams.13

The Specificity Principle; - In Victoria v Commonweath,14 Deane J was concerned

with “….Th[at] terms … do not possess the degree of precision which is desirable in a

private contract under the common law”,15 which had ultimately raised questions as to

whether or not the treaty was reasonably specific enough in respect to the obligations

owed by parties to the treaty. Thus, according to the specificity principle, in order to

have the support of s 51 (xxix), the treaty being relied upon had to “…Prescribe a

regime…that is defined with sufficient specificity” to direct the general course to be

taken by the signatory states”.16 This could form a strong argument against the

proposition that s 51 (xxix) supports ss 3, 4, 5, however further discussion is precluded

in the absence of the full text of INCHA.

2. THE CORPORATIONS POWER - s 51(xx)

Corporations Outside s 51 (xx): Narrow vs. Expansive?; - Despite the equivocation

of Brennan J’s judgments in the Tasmanian Dams case17 and the Actors Equity case18,

and the division of opinion in Re Dingjan; Ex Parte Wagner,19 the weight of judicial

authority supports an expansive reading of s 51(xx). In light of this judicial authority,

s 4 (when read alone) does appear to be a valid exercise of the corporations power.

Given the weight of the judicial authority for an expansive reading of s 51(xx), the issue

that arises when considering whether or not s 4 is a valid exercise of the corporations

power relates to the extent of which the corporations power has reach over

constitutional corporations outside s 51(xx), especially when s 4 is read in conjunction

with ss 1,2 of the Act. On the one hand, s 51 (xx) will support legislation which imposes

obligations on corporations or individuals who stand outside the direct reach of


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s 51(xx), where those obligations are part of a “regulatory scheme” aimed at controlling

or protecting corporations: this was the case in the Actors Equity case20 where Gibbs CJ

said “…A law may be one in respect to a trading corporation although it casts

obligations upon a person other than a trading corporation”.21

“Regulatory Schemes” and Sufficient Connection; - Within this context, with the

objects of the Act expressly enumerated in s 1, there is no contest to the proposition that

the Act, and indeed s 4, aims to be part of a “regulatory scheme” that curtails alcohol

consumption, and in this sense one could argue that s 4 is a valid exercise of s 51(xx).

However, the issue then becomes one of degree and judicial assessment: in Re Dingjan;

Ex Parte Wagner,22 it was held by McHugh that “…If a law regulates conduct that has

no significance for a s 51 (xx) corporation, it is not a law with respect to those

corporations, even if that conduct is connected to, or even based on, what a corporation

does”. 23 Hence s 4 could also be argued to not be a valid exercise of the corporations

power even if it could be established that s 4 aims to be, or is part of, a “regulatory

scheme”, as it is irrelevant to the degree to which the legislation is sufficiently

connected to the conduct of corporations outside of s 51(xx) – an approach encouraged

by the High Court in Re Dingjan, to sidestep the expansive and narrow dichotomy.

Brennan J, the Concrete Pipes legacy and Workchoices; - In this light, while the

judicial authority seems to be supporting an expansive reading of the corporations

power, Brennan J had cautioned against an expansive reading of s 51 (xx), as a direct

reaction against the finding in the Concrete Pipes case,24 through his decisions right

through Actors Equity25 and Re Dingjan.26 From this, we can only reflect little more

than a difference in emphasis or value judgments; and as such, the answer to whether or

not s 4 is a valid exercise of s 51(xx) has not been tested definitively, but will most


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likely be considered to be a valid exercise of the corporations power in the future, given

Brennan J’s judicial activism (or rather restraint) and Gaudron’s approach to the issue of

business activities in the Workchoices case.27

3. THE DEFENCE POWER - s 51(vi)

Expansive in Peacetime? ;- In the Communist Party case28 Dixon CJ conceded the

“necessities” of war would expand the defence power to give the Commonwealth

‘authority over an immense field”; but those “…necessities cannot exist in the same

form in periods of ostensible peace”.29 With such a clear declaration of reservation, it

can be strongly argued that s 5 of the Act is not a valid exercise of the defence power on

the assumption the proposed Act was introduced in peacetime. This conclusion

embodies the idea that the “…constitutional validity of a law cannot be made to depend

upon the opinion of the Parliament, the government or any other person that the law or

act is within or relates to the subject matter of the legislative power”.30

s 51 (vi) and changes in the international strategic situation; - However, the Capital

Issues case,31 could be seen as demonstrating the capacity of the defence power to

respond in times of peace to changes in the international strategic situation, at least

where those changes are sufficiently “notorious”, and as bearing out Fullgar J’s

prediction in the Communist Party case that the second aspect of the defence power

could be invoked “…Upon circumstances which fall short of an immediate

apprehension of war”. 32 In these circumstances s 5 would be a valid exercise of s 51

(vi), but the facts do not indicate wartime. However, irrespective of the above

discussion, legislation under s 51(vi) must be proportionate, to which the provisions of

s 5 most likely cannot be argued to achieve s 51(vi)’s objective.


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Endnotes

1 Commonwealth v Tasmania (Tasmanian Dams case) (1983) 158 CLR 1, 303. 2 Koowarta v Bjelke-Peterson (1982) 153 CLR 168. 3 Ibid, 211-12. 4 (1936) 55 CLR 608, 681-2. 5 (1983) 158 CLR 1, 218-19. 6 Commonwealth v Tasmania (Tasmanian Dams case) (1983) 158 CLR 1. 7 Ibid, 218-19. 8 Commonwealth v Tasmania (Tasmanian Dams case) (1983) 158 CLR 1. 9 Ibid, 123-4, 130 10 Ibid, 170. 11 Ibid, 171. 12 (1988) 164 CLR 261. 13 Ibid, 243. 14 (1996) 187 CLR 416. 15 Ibid, 261-62. 16 Ibid, 486. 17 Commonwealth v Tasmania (Tasmanian Dams case) (1983) 158 CLR 1. 18 Actors and Announcers Equity of Australia v Fontana Films Pty Ltd (Actors Equity case) (1982) 150 CLR 169. 19 (1995) 128 ALR 81. 20 (1982) 150 CLR 169. 21 Ibid, 183. See also 194-5 (Stephen J), 201 (Mason J), 212 (Murphy J), 220, 222 (Brennan J). 22 (1995) 128 ALR 81. 23 Ibid, 115. 24 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468. 25 (1982) 150 CLR 169 26 (1995) 128 ALR 81. 27 New South Wales v Commonwealth (2006) 229 CLR 1 28 Australian Communist Party v Commonwealth (1951) 83 CLR 1. 29 Ibid, 268. 30 Zines L, The High Court and the Constititution, 3rd ed, Butterworths, Sydney, 1992, 185. 31 Marcus Clarke & Co Ltd v Commonwealth (1952) 87 CLR 177 32 Ibid, 254.

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