Treaty implementation



Contents TOC \o "1-3" \h \z \u Treaty implementation PAGEREF _Toc243034871 \h 2Characterisation PAGEREF _Toc243034872 \h 3Trade and commerce (i) PAGEREF _Toc243034873 \h 3Taxation (ii) PAGEREF _Toc243034874 \h 4Defence (vi) PAGEREF _Toc243034875 \h 5External affairs (xxix) PAGEREF _Toc243034876 \h 5Corporations (xx) PAGEREF _Toc243034877 \h 6Workchoices Case: PAGEREF _Toc243034878 \h 7Nationhood (xxxix) PAGEREF _Toc243034879 \h 7Dual characterisation PAGEREF _Toc243034880 \h 9Legislative procedures PAGEREF _Toc243034881 \h 10Special Provisions (State) PAGEREF _Toc243034882 \h 10Restrictive procedures PAGEREF _Toc243034883 \h 10Altering the constitution - s 128 PAGEREF _Toc243034884 \h 12States PAGEREF _Toc243034885 \h 13Rights PAGEREF _Toc243034886 \h 15Express rights Just terms for the acquisition of property PAGEREF _Toc243034887 \h 15Right to trial by jury PAGEREF _Toc243034888 \h 15S116 – Religious Freedom (restriction on Cth only) PAGEREF _Toc243034889 \h 15Implied Rights PAGEREF _Toc243034890 \h 16Implied right to political communication PAGEREF _Toc243034891 \h 16Inconsistencies between Commonwealth and State legislation PAGEREF _Toc243034892 \h 17Tests of inconsistency PAGEREF _Toc243034893 \h 17Separation of Powers PAGEREF _Toc243034894 \h 20States PAGEREF _Toc243034895 \h 20Commonwealth PAGEREF _Toc243034896 \h 21Delegation of legislative power PAGEREF _Toc243034897 \h 22States PAGEREF _Toc243034898 \h 22Treaty implementationFor a treaty to be valid:It must be enacted ‘bona fide’ (in good faith):Never successfully argued in HC – would only operate when there is a treaty drawn up in questionable circumstances that is clearly a grab for legislative power, almost impossible to prove.Therefore it cannot be a device to attract legislative power (Deane J in Tasmania Dam), or it is not bona fideThere is, however, a presumption of genuineness, this requirement (bona fide) is a ‘frail shield’ [Gibbs CJ in Koowarta] Executive secrecy and role of HC [mason j in Tasmania Dams] cf TooheyThe specificity principle must applySimilar to proportionality, not as extensive.There is a need for an obligation, not simply an “aspirational target”International concern?Absence of obligation (thread running through judgements – Obiter Dicta only, even if there is no Intl obligation, if a matter is of sufficient intl concern, the external affairs program can be enlivened – i.e. Pape)Presence of international instrumentEffect on relations with other countriesSignificant number of justices from both sides of the political spectrum that dislike the idea this head of power can be enlivened by international concern.Conform to Australian lawsLaw must be reasonably capable of being considered appropriate and adapted to implement the treaty (legislative end in this case the implementation of the treaty)” 4 International Concern.CharacterisationTo determine if there is a sufficient connection between the impugned law and the head of power, ask:What is the law about? What is it’s legal operation? Practical operation?Is this a law “with respect to” a head of power? (below)If so, is the law with respect toPurposive power:Consider purposeIs the use of this power proportionate?The Leask, the test is ‘appropriate and adapted’ or ‘reasonably appropriate’. This case also asks whether the law goes further than is necessary to achieve that purpose.Non-purposive power (defence or external affairs (treaty enactment)):Core of power?Purpose is irrelevant for a non-purposive head of power where you are in the core of the powerIncidental range?Purpose should be considered in the incidental range of the power, as should proportionality of the proposed actThe dominant test is if the law in question is a reasonable and appropriate means of furthering an object or purpose in the power (R v Burgess).Other tests are the ‘reasonably necessary’ test or ‘reasonable fulfillment of the purpose’.Justice Mason preferred a 'proportionality' test that took into account the adverse effects of incidental laws.‘[E]verylegislative power carries with it authority to legislate in relation to …matters …the control of which is …necessary to effectuate its main purpose, and thus carries with it power to make laws …affecting many matters …incidental …to the subject matter’: Grannallv Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 77If in incidental range also consider:Proportionality - Leask stated - not relevant to the characterisation except where the court is balancing between a head of power and a constitutional limitation on the power.Brennan CJ in this same case said that where there is a challenge to a non-purposive law on the ground that there is not a sufficient connection, proportionality is a concept used to ascertain whether an Act achieves an effect or purpose within power.Trade and commerce (i)Enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51(i) is very broad.The words "trade" and "commerce" in s51(i) also occur in Section 92 of the Constitution, where the expression used is "trade, commerce, and intercourse"."Trade" and "commerce" have been broadly construed. The early case of W & A McArthur Ltd v Queensland held that the words extended to "the mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery".In Australian National Airways Pty Ltd v Commonwealth (ANA Case), the High Court held that the Commonwealth could use s51(i) to establish its own government-owned instrumentality in the form of the Trans Australia Airlines, which had been established by the Australian National Airlines Commission, but could not prevent private sector competition.S92Section 92 states that "trade, commerce, and intercourse among the States... shall be absolutely free".In the case of James v Commonwealth, the High Court decided that this requirement restricted the Commonwealth Parliament as well as State governments. This impacted on the Parliament's ability to exercise powers under subsection s51(i), regarding "trade and commerce with other countries, and among the States".Taxation (ii)Section 51(ii) allows the Commonwealth to enact laws implementing:“Taxation, but so not as to discriminate between States or parts of states.”Air Caledonie International v Commonwealth defined whether a fee was a tax considering whether it was:CompulsoryNeed not impact on the taxpayer directly – if one person is compelled to pay a tax imposed on another person, this will sufficiently satisfy the ‘compulsion’ element (MacCormick v Federal Commissioner of Taxation (1984))Exacted by a public authority (i.e. commonwealth itself) for public purposes (consolidated revenue (s 81))Enforceable by lawFee for services rendered – a fee or charge exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment (Air Caledonie)The non-discrimination limitation repeats the more general prohibition found in Section 99 that the Commonwealth cannot discriminate between states in laws on trade, commerce, or revenue.The broad power in s51(ii) to impose 'taxation' must be read subject to the start of s51 which grants the powers 'subject to this constitution'. S51(ii) must be considered in combination with s90.Section 90 gives the Commonwealth the exclusive (as opposed to concurrent with the States) power to impose 'duties of customs and of excise'. Any state taxing law on this power will be unconstitutional.The definition of customs and excise is one that is lNB: Section 114 provides that the Commonwealth cannot tax state property, nor States tax Commonwealth property without consent of the other.Defence (vi)Is a purposive head of power, therefore proportionality and purpose of legislation seeking to rely on it is relevant.Applies to Internal defence: Thomas v MowbrayDuring World War 1 and World War 2 the power was held to apply very broadly, even to domestic issues. For example, it was used in 1942 to support the Commonwealth taking away income tax powers from the states. This was upheld in the First Uniform Income Tax Case. After the war the Commonwealth redesigned the scheme to rely on Section 96 tiered grants, which demonstrates that perhaps the Commonwealth felt the scheme would not be upheld based on the defence power during peace time.Seen to wax and wane (increase and decrease in application) in times of war and peace. Less relevant now: Thomas v MowbrayHowever, the defence power does have limitations. The defence power was one of the powers relied on to support the Communist Party Dissolution Act, which attempted to dissolve the Communist Party of Australia. In the Communist Party Case, the High Court held that the Cold War, or the Korean War, did not justify this use of the defence power.Section 114 of the Australian Constitution provides that "a state shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force...". As a result, the power in section 51(vi) is generally exclusive to the Commonwealth.Section 119 of the Australian Constitution compliments section 114 by placing an obligation on the Commonwealth to exercise the power granted in section 51(vi). Section 119 provides that "the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence."External affairs (xxix)The Constitution gives the Commonwealth Parliament power over "external affairs". Originally this power had little content, because Australia's foreign relations were managed by the United Kingdom. As Australia gained in independence and international personality, so did the significance of this power.The High Court has held that the power covers the regulation of conduct that takes place outside Australia. In particular, it was held sufficient to criminalise as war crimes conduct in Europe during World War II conducted by Australian citizens resident in Australia (Polyukhovich v Commonwealth).The power has also been held to extend to the implementation of international treaties, even if the subject matter of the treaty is otherwise not within Commonwealth power.In Koowarta v Bjelke-Petersen, the High Court found that the Commonwealth had the power to implement the United Nations Convention on the Elimination of All Forms of Racial Discrimination in the form of the Racial Discrimination Act.In Commonwealth v Tasmania (Tasmania Dams), the High Court has upheld Commonwealth legislation forbidding the Tasmanian government from proceeding with a dam that would have submerged an area of Tasmanian government-owned land that had been declared a World Heritage Area under the World Heritage Convention to which Australia is a party.NB: Land use is otherwise a State responsibility.More recently, the external affairs power has been used to remove the States' power to criminalise male homosexual activity. This followed an adverse report by the Human Rights Committee on Tasmanian provisions. The Human Rights Committee was established under the International Covenant on Civil and Political Rights, to which Australia is a party. Rather than challenge the resulting Commonwealth Human Rights (Sexual Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation in question.Although it would appear that there is an open-ended potential for the Commonwealth to encroach on areas of traditional State competence through the external affairs power, to date it has been used with some discretion, if only because the use of the power in this way inevitably causes considerable political controversy.Corporations (xx)The words of s 51(20) are construed literally: New South Wales v Commonwealth The corporations power allows the Commonwealth to legislate on "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". Although the width of the expression "trading or financial corporations" has never been authoritatively settled, it appears that it covers at least all commercial enterprises carried out under the corporate form.As corporations have come to dominate the economy, the practical scope the corporations power has increased.the power conferred by s 51xx extends to regulation the activities of a corporation described in that sub section the creation of rights and privileges, the imposition of obligations on it and the regulation of the conduct of those through whom it acts its employees and shareholders and also the regulation of those whose conduct is or is capable of affecting its activities functions relationships or business” – Gaudron J in Re Pacific Coal; Ex parte Construction, Forestry, Mining and Energy Union (CFMEU Case, 2000)NSW v Commonwealth (Incoporation Case)Affirmed the view from Huddart that the corporations power was confined to making laws with respect to companies that had commenced trading and could not be interpreted so as to support laws providing for the formation of companies.Post Workchoices: The cth can regulate all activities of a constitutional corporation, its employees, its shareholders and others that allow the corporation to act. Also allows the corporation to regulate conduct which is capable of effecting the corporation (things that effect the business or function of a constitutional corporation).Re Dingjan; ex parte WagnerIf a law regulates the activities, functions, relationships or business of a s 51(xx) corporation, no more is needed to bring the law within s 51(xx).Further, if …a law regulates the conduct of those who control, work for, or hold shares or office in those corporations, it is unlikely that any further fact will be needed to bring the law within the reach of s 51(xx).So, where a law seeks to regulate the conduct of persons other than s 51(xx) corporations or the employees, officers or shareholders of those corporations, the law will generally not be authorised by s 51(xx) unless it does more than operate by reference to the activities, functions, relationships or business of such corporations.A law operating on the conduct of outsiders will not be within the power conferred by s 51(xx) unless that conduct has significance for [the corporation]. In most cases, that will mean that the conduct must have some beneficial or detrimental effect on [the corporation] or [on its] officers, employees or shareholders.’Workchoices Case:Rationale:Is the act supported by the corporations power?Section 51(20) gives the Commonwealth Parliament the power to make laws with respect to:foreign corporations; andtrading or financial corporations formed within the limits of the CommonwealthEmployer means ‘a constitutional corporation, so far as it employs, or usually employs, an individual’from Workplace Relations Act 1996(Cth) s 6(1)(a)In relation to trading corporations, current jurisprudence permits the enactment of laws with respect totrading activitiesnon-trading activities undertaken for the purpose of tradeeg, Actors and Announcers Equity Association v Fontana Films Pty LtdEmployment relationship could be characterised as one that involves the supply and acquisition of labourJudgment suggests that, henceforth, it may be a sufficient basis of validity that Federal legislation be specifically addressed to constitutional corporations.Therefore, if the act has expressed that the legislation is addressed only to “constitutional corporations” it can fall within this head of power.Nationhood (xxxix)Drawing on the cases discussed above, the following observations may be made on the scope of the executive power: the words, 'execution and maintenance of the Constitution and the laws of the Commonwealth' in section 61 are no longer words of limitation; it contains those common law Crown prerogatives (eg, treaty-making; declaring war) that vest in the right of the Commonwealth rather than in the States; it allows the Commonwealth to engage in activities peculiarly adapted to the government of a nation which cannot otherwise be carried out (including, for example, celebrations of the bicentenary, establishing the CSIRO and promulgating flags and other national symbols); and it includes the power to enter into contracts and commercial arrangements without the sanction of the Parliament. However, section 61: does not extend beyond those responsibilities allocated to the Executive of the Commonwealth by the Constitution; is subject to express constitutional limitations; and it may be limited by laws enacted by the Commonwealthis not a power to actually make laws, only to maintain and execute the law (administer)Does the wording of s61 ‘maintenance of this Constitution’ creates the nationhood power: Barton’s case and AAPLegislation has to satisfy the test:Is the enterprise or activity peculiarly adapted to the government of the nation/ Determine if the Cth has the power to make law/policy decision under s.61 using the "peculiarily adapted test" (Mason J, AAP case)Does the topic of the impugned legislation (e.g. the Australian Bicentennial Authority Act) fall peculiarly within the responsibilities of the Commonwealth Executive Government e.g. ‘fostering and protecting the nation’ etc?Asked another way: Could the enterprise/activity be carried on in some other way? A good answer would mention Brennan J’s examples (from Davis v The Commonwealth) of national initiatives in science, literature and the arts and say that this is similar.This is really just a subset of the first question, is the legislation peculiarly within the responsibilities of the Commonwealth Government?'And,If the answer to that question is yes, then the Commonwealth Legislature has the power to enact legislation on that topic pursuant to s 51(xxxix) provided that the legislation satisfies a proportionality test. That is, the use of the word ‘incidental’ on para (xxxix) imports the notion of proportionality (think: incidental range).The ‘power’ (or responsibility) is ‘vested by the Constitution in the Government of the Commonwealth’ (i.e. Commonwealth Executive), and hence the Commonwealth Legislature can legislate on ‘matters incidental’ to that.Dual characterisationCommonwealth law can be with respect to more than one head of powerThomas v Mowbray - anti terrorism legislation re (a) defence power; (b) referral powerPowers are not mutually exclusiveE.g. corporations power and pl(xiii) (“banking power”); A law can fall outside one head of power but still fall within another, Heads of power are read separately and are not read down by reference to anotherE.g. pl(i) (“trade and commerce head of power” as it interacts with intra state commerce) and corporations power: see Strickland v Rocla concrete pipes ltd (1971) (concrete pipes case – p 42)Huddart Parker v Moorehead – post engineer’s – the approach initially used in Huddart was considered wrongThe correct way -> cth can regulate trading/financial/foreign corp. Within a stateGive words plain and ordinary meaning – full scope + focus on textThe fact that regulating a corporation within a state falls outside another power is irrelevant as it falls within the corporations power (XX, 20), because each is read separately and not read down because of anotherException to reading down a power - where there is an express limitationi.e. banking, (xiii, 13) -> commonwealth cannot use another power to override an express limitatione.g. State Banks commonwealth could not regulate a state bank using the corporations powerLegislative proceduresSpecial Provisions (State)Cannot be presented (“not lawful”) to Governor for assent unless passed by assembly and council AND approved by majority of electors voting at referendum: s 18(1B)Cannot be presented for assent unless passed on third reading by special majority (3/5ths of whole number of members of the Assembly and Council respectively): s 18(2)Restrictive proceduresThe ground rule (default position) is that any Vic law including the Constitution can be amended by simple majority unlessa restrictive procedure (RP) andthat RP is made binding by s 6 of the AA.Default Position: STATE PARLIAMENTS ALWAYS EXERCISE PLENARY LEGISLATIVE POWER AND CANNOT BIND THEMSELVES & THEREBY RESTRICT THAT POWER. Step 1: Is the restrictive procedure “self entrenched”?Where is the restrictive procedure? Is it “self entrenched”? Yes? Why?i.e. Because the opening words don’t just entrench section 1 (the offence provision), but they entrench the restrictive procedure itself (i.e. the words “Section 1 and this section cannot be repealed etc.).Why is “self entrenchment” important? If restrictive procedure isn’t self entrenched then Parliament can simply amend section by way of simple majority procedure & then section (per Kirby’s dissent in Marquet).Could argue (if section wasn’t self entrenched), that Repeal Act is effective to repeal s?2 of the Act & that s 2 having been repealed, the Repeal Act is also effective to repeal s 1. Probably self entrenched, move on…Step 2: Go to s 6 of the Australia Act 1986 and ask (if yes, go on, if no Default Position): Is the restrictive procedure contained in section 2 of the Act a valid “manner and form” provision in the terms of section 6 of the Australia Act?Basic test is that the restrictive procedure mustn’t be so onerous that it amounts to a derogation or renunciation of the Parliament’s power. That would be undemocratic.Special majorities are probably O.K. provided they don’t get up to absurd percentages (e.g. 90%, or even 100%).70% is on borderline, although it is only 70% of the Assembly (presumably a simple majority of the Upper House [the Legislative Council] would be sufficient).In Ranasinghe (South African Common Law), Privy Council found that a 2/3rd’s (66.66%) special majority was O.K so 70% is probably all right.“Extra parliamentary” organisation or person. West Lakes. Problematic as undemocratic. Courts don’t like this sort of restrictive procedure. It is probably invalid/inoperative/not binding. “The rationale underlying the impermissibility of the “extra parliamentary” restrictive procedure in West Lakes was that it was undemocratic (hence, by comparison, the permissibility of a referendum restrictive procedure).”If special majority RP valid & extra parliamentary RP is invalid, is it binding or not?Argue toss Possibly two procedures can be severed?(no practical reason why they can’t), the first (special majority) is operative, the second, union veto is not.Finally, in West Lakes suggested RP more likely to be valid where “legislative topic which is the subject of the requirement is a fundamental constitutional provision” (textbook 330, 3/4s down page).Is subject of legislation a fundamental constitutional provision? No? less likely that procedure will be effective…and…Is the Repeal Act (or at least s 1 - the only section which really matters here) a law “respecting the constitution, powers or procedure of the Parliament”NB: Just because Act is passed not in compliance with a restrictive procedure doesn’t satisfy the requirement (doesn’t make it “a law respecting the constitution, powers or procedure of the Parliament”)The phrase “a law respecting the constitution, powers or procedure of the Parliament” is defined narrowly because RPs (particularly when about mundane things like unionism) are basically undemocratic.The main way to determine this issue is to look at the subject matter of the Repeal ActMarquet - non exhaustive definition of the phrase “a law respecting the constitution, powers or procedure of the Parliament” – constitution includes things that give representative character: Voting systems for electing MPsAbolishing house of parliamentRemoval of queen as head of stateAlter electoral districts & number of seats – MarquetMarquet held disqualification of voters did NOT pertain to representative character of parliament so RP could not be made binding by s 6 AAThe Conclusion:A negative answer to step 2 results in:? If Repeal Act does NOT meet the definition of “a law respecting the constitution, powers or procedure of the Parliament” in s 6 AA then, EVEN IF RP is valid by s 6 AA, it’s INEFFECTIVE to bind Parliament & derogate from “continuing, constituent power” of Parliament as found in s 2(2) AA. AND SO: ? Repeal Act is valid despite non- compliance with restrictive procedure, the Act is therefore repealed (s 1 Repeal Act) & Joe Builder is “off the hook”Altering the constitution - s 128Proposed amendment must be:Passed by an absolute majority of each house,OR where one house fails to pass/rejects bill, the other house may put to GG for referendum (see below, 3) Between 2-6 months latter the Bill shall be submitted in each state to the electors for a vote (referendum), in which it must be endorsed by:an overall majority of all electors in Aus (ie all states & territories) AND,Majorities in at least 4/6 states.Proviso: if amendment has effect of reducing proportional representation of any state, a majority of electors in the affected State must approve the charge.HOWEVER, If any house passes and the other does not, and 3 months later it is passed by the first house again by an absolute majority and the second again fails to pass it, the GG may submit the Bill as last proposed by the 1st house to the electors for a voteThe vote shall be taken in such manner as the parliament describes.If in a majority of the states a majority of the electors approve as well as a majority of all voters approve, it shall be presented to the GG for his/her consent. (concept of double majority).StatesWhen a question addresses states, remember:They have plenary legislative powerTheir laws are invalid to the extent of the inconsistencyMelbourne corporation principle – discrimination and curtails or diminishes the states ability to govern itselfWhen determining if a law of the commonwealth in relation to the states is invalid consider:Melbourne Corporation v CommonwealthThe principle renders constitutionally invalid any Commonwealth law that is otherwise valid under a head of power in s51 or some other part of the Constitution if it:1. Denies the existence or ability of a State to govern itself or the federal structure of the Commonwealth; and2. Singles out any one State (discrimination limb)Austin v CommonwealthCombined these tests into a single limb test, which was not made clear:If Austin has indeed ushered in a new “single test” through which to apply the Melbourne Corporation principle, the precise contours of that test are not clear. In any case, it may be overstating things to proclaim a new test; it may become clear in future cases that Austin has merely repackaged what went before it without any material alteration. This was further affirmed in Clarke v commissioner of taxation:What Brennan J said in this respect was cited in the joint judgment in Austin. It requires that attention be directed to the discriminatory character of the law as a relevant but not determinative factor in assessing whether the law trespasses beyond constitutional boundaries in its effect upon the States.‘The Commonwealth cannot, by the exercise of its legislative power, significantly impair, curtail or weaken the capacity of the States to exercise their constitutional powers and functions (be they legislative, executive or judicial) or significantly impair, curtail or weaken the actual exercise of those powers or functions. The Constitution assumes the existence of the States as "independent entities".’Oscar says:In my view these protected essential constitutional functions relate to the three institutional arms of government e.g. the legislature (and parliamentarians) [Clarke], the courts and the judiciary [Austin], and the executive [e.g. Ministers and upper level public servants: AEU].The Commonwealth can’t pass legislation which directly impinges on those arms’ autonomous functioning. This says nothing about the distribution of legislative functions in the Federation; it is all about the autonomy of the key institutions of the State systems of government. French CJ in Clarke, by the way, suggests that a law which discriminates against the States either in form or substance is very likely to attract the prohibition (e.g. the Queensland Electricity Commission Case), so the notion of impermissible discrimination is not dead, just reformulated, as part of one general principle.RightsExpress rightsJust terms for the acquisition of propertyS51 (xxxi) - give the Cth parliament power to take what they like from people/states, however the inclusion of ‘just terms’ is a limit on that power.Applies whenever the Cth makes a compulsory acquisition of property under the section: Johnson Fear & Kingham v Cth. The constraints under this section are not relevant where the Cth negotiates an acquisition. In this circumstance, it is assumed that the terms are just: Trade Practices Commission v Tooth & Co Ltd 1979. This section does not apply under state acquisition: Pye v Renshaw. Right to trial by juryRight to a trial by jury under S 80 – only applies to commonwealth indictable offences thoughPresuming that the accused is pleading not guiltyIf a given offence is not made triable on indictment at all, then S80 does not apply at all: R v Archdall Therefore, it is permissible that the commonwealth drafts a summary offence that is punishable by the death penalty and therefore the accused does not have the right to trial by jury – this is seen as a mockery of the constitution (Dixon J, R v Federal Court of Bankruptcy; Ex parte Lowenstein)S80 does not apply to the states: Byrnes v The Queen (1999). Brown v R – the majority of the HC held that a person charged with an indictable offence could not elect to be tried by a judge alone.S116 – Religious Freedom (restriction on Cth only)Attorney-General (Vic); Ex rel Black v Commonwealth 1981 determined that this section had no application to the states.The mere fact that a law inhibits the exercise of religion is not enough – Krygger.Kruger – majority view - for s 116 to be offended on this ground the law on its face must disclose this constitutionally obnoxious purpose.a law which made this express proscription would appear to infringe even the narrow majority test, remembering that “purpose” and “object” in this sense is not the subjective intentions of the relevant parliamentarians but the objective “purpose”/”object” as disclosed by the terms of the law.The analysis would then turn to whether the C/W’s law has another constitutional purpose and the law is reasonably appropriate and adapted to securing that purposeE.g. the C/W would presumably argue the law is necessary to allow for ease of public identification in schools as a pre-caution to prevent/preclude the identity of would-be terrorists. A law which singles out the wearing of headscarves by Muslim women for proscription – and not, for example, all head wear capable of preventing easy identification – may not be reasonably appropriate and adapted to securing this other constitutional purposeImplied RightsImplied right to political communicationImplied freedom of political communication precludes the commonwealth, State and Territory parliaments form passing laws that infringe/undermine political communication necessary for the effective operation of representative and responsible government at the federal level: LangeLange v ABCDoes impugned law violate constitutionally protected implied freedom (political freedom)?Constitutionally ‘protected’ political communication means communication on government or political matters which relates to our system of representative and responsible democracy as entranced in the constitution s 7, s 24, s 64, s 128 Note – applied broadly (might encompass unions, political parties etc)If no – no issue, legislation is constitutionalIf yes, why, how? Then ->Does the impugned law burden (as opposed to merely regulate, eg. Political ads, must indicate to viewer who has authorised and funded it, this law doesn’t burden, merely regulates) protected political communication in its terms. Operation or effect?If no, no issue, constitutionalIf yes then?Is the end (or purpose) of the impugned law legitimate? A legitimate end is an end NOT incompatible with our system of representative and responsible democracy as entrenced in the constitution, ss 7, 24, 64, 128 – public safety might be legitimate, state laws criminalizing insulting words in a public place might be legitimateIf end is illegitimate, then impugned law violates implied right -> unconstitutional.If end is legitimate then Is the impugned law proportionate with respect to its legitimate end?By proportionate, we mean ‘reasonable appropriate and adapted’ to serve its legitimate end.If no, then unconstitutional.If yes, then constitutional.Inconsistencies between Commonwealth and State legislationWhat does ‘law’ mean for the purposes of S109 (commonwealth law prevails over an inconsistency of state legislation, rendered invalid)In order for s 109 to come into operation at all, there must be a valid State law and a valid Commonwealth law. (Carter v Egg and Egg Pulp Marketing Board (Vic)Every commonwealth Act over every State Act – Engineer’s Case (1920)In the case of industrial awards, the inconsistency is said to be between the Act authorizing the award and the state law – Ex Parte McLean (1930)Commonwealth regulations are law and a state law will be invalid if inconsistent with a regulation – O’Sullivan v Noarlunga Meat P/L 1954 Rules of law are also ‘laws’ – Flaherty v Girgis (1987)Commonwealth law enacted for a territory is also law – Lamshed v Lake (1958)Administrative orders and directions are not law – Airlines of NSW v NSW (No. 1) (1964)Commonwealth v Cigamatic P/L (1962) – HC determined that state legislation could not displace or modify a Commonwealth prerogative.Meaning of ‘invalid’More accurate to say that the inconsistent aspects become ‘inoperative’ as opposed to becoming destroyedState law will still have some legal operation. ‘It has come into existence and remains in existence even though, for the time being, or from time to time, its operative force may be suspended – Lamb v Cocaktoo Docks & Engineering Co P/L [1961]State law will revive if the Commonwealth law is repealed or otherwise disappears – Butler v Attorney-General (Vic) (1961)Tests of inconsistency3 tests, apply all – History of tests – page 50 in notesA yes to any of the tests will show that there is an inconsistency, but continue with all the tests1st Test (narrowest) “Impossibility of Simultaneous Obedience” aka “Direct Inconsistency”:R v Licensing Court of Brisbane; ex parte Danielle (1920) QLD Act providing for local referendum on day of 1917 Senate election contra Cth Act: “no referendum under laws of state shall be taken on a senate polling day”Australian Boot Trade Employers Federation v Whybrow (1910)Clyde Engineering v Cowburn – greater possibility of conflict after ‘explosion’ of reserve powers doctrine in Engineers – 2nd and 3rd tests developed2nd Test Conferral of RightsDoes one law create a right that the other takes away?Clyde Engineering v Cowburn – fixed wage for working 48 hours/week and loss of pay pro rata for working fewer hours contra forty four hours week act 1925 NSW – re any worker covered by federal award fixing longer than 44 hours must be paid the full wage for working 44 hours. Federal Award confers a right on an employer in that industry to extract 48 hours of work in exchange for the award wage, the state law purports to take that away.Colvin v Bradley – Act prohibits employment of women on milling machines; criminal offence contra Cth award inc declaration that employer may employ women, then Cth award permits women to be employed to mill, cth says that employer may employ women, State says cannot employ women – HC says state law inoperative, because cth award gives employer a right to employ women.3rd Test – ‘Covering the Field’ – value loadedClyde Engineering v Cowburn – conflict between cth and state legislation (not between awards) – Cth makes an award to exhaustively settle industrial disputes under conciliation & arbitration Act 1904 – this means the cth ‘covers the field’ and the state legislation no longer has operationClyde Engineering – 3 part test devised by Isaacs J to determine if laws are inconsistent in an indirect sense (below).What field or subject matter does the Cth law deal with/regulate?Test was fully adopted in Ex Parte McLean (1930) when Dixon J adopted itCurrent Factors (of third test)Is the legislation extremely elaborate and detailed (O’Sullivan v Noarlunga Meat Ltd)? No? Then it may not be covering the field unless it expressly says soYes? It may be covering the fieldWhat is the field or subject matter of the legislation?Identify the field, continueI.e. weights and measures – metrificiation – very unlikely that you’d be able to allow for individual states to preserve their imperial systems.I.e. External affairs power and treaty implementation e.g. abolition of racial discrimination, state legislation cannot infringe on that field, possible that both laws operate concurrently.Was it intended to cover the field exhaustively? Was it meant to be ‘the’ law on the matter?No? then it is not covering the fieldYes? continueExpress intention to cover the field: Wenn v Attorney-General (Vic)Does the state law attempt to regulate some part of that matter or to enter into the field?Yes? The state law impinges upon a subject that the commonwealth has clearly intended to prevent it from doing so in covering the field.No, may not be inconsistent refer to other factorsOperation of the 3 tests – from Clyde Engineering Co Ltd v Cowburn (affirmed in Telstra Corporation v Worthing)Where one law takes away a right or privilege conferred by the other;Where simultaneous obedience is impossible; andWhere the state law invades a field which the commonwealth law was intended to coverIn practice, the three tests overlap. For example, in Commercial Radio Coffs Harbour v Fuller (1986), the finding that there was no inconsistency depended on all three tests. Conversely, the conclusion that there is an inconsistency may depend on more than one test, as was evident in the divergent reasoning employed in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980)Clearing the fieldThe Commonwealth can avoid covering a legislative "field" by passing an express provision declaring its intention not to do so. This means in practice that the Commonwealth can control the operation of s 109 in a negative way by making it clear that related State laws are to operate concurrently with the Commonwealth law. The leading case is R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977)Separation of PowersStatesNo separation of powers in the state but there are limitations on themKable v DPPWhere a state court exercises federal jurisdiction to the same quality as federal court.Doesn’t mean state justices must be appointed to the same standard as federal justices, s 72 - including Ch 3 regulations, i.e. tenure. It does mean that state legislatures cannot do certain things to the state supreme court or state courts generally. State legislatures cannot:Cannot abolish them – constitution presupposes the existence of a state court system – s 71Cannot so contaminate them that they cease to be a suitable repository of federal judicial power – this was offended in Kable (by the Kable legislation)Court can’t be conferred with the power to lock up someone even though the criteria is unrelated to a criminal offence (i.e. based on what they might do rather than what they’ve done)Legislation is directed at a single person – Gregory Wayne Kable – creates the impression that the NSW supreme court is not independent – does not deal with everyone equally – which is a basic rule of lawKable only had 1 case to successfully invoke its principleRe Criminal Proceeds Confiscation Act Ex parte applications – accused not permitted to attend the hearing where it was decided whether or not his property would be Legislation found invalid as it offended principles of natural justice, right to be heardBradley – Northern Territory caseMandatory sentencing legislationNew chief magistrate – pay fixed for 2 years only – issue of judicial independence in response to mandatory sentencing – judges salaries should be fixedLegislation was read down – really only confers power to increase pay therefore is not subject to alteration in form of lower pay with undesired judicial decisions – Kable not applicableAlso found that Kable applies to territories – consistent with equality between states and territories (i.e. Teori Tau overturn in Wurridjal)Fardon – QLDMajority - 5:1 not a violation of KableWhy is it different from Kable?Kable dealt with ad hominum legislation- addressed Kable directlyThis legislation applies to a class of people not a single personThis process is a recognisable judicial processApplication, standard of acceptable risk, evidence and standard of proof if you look at community protection act and compare with fardon legislation, the process is almost identicalKable is a decision with limited application Kable application in future will more likely apply to the appointment of judgesMinority: Kirby says Kable is broad, preventative detention is repugnant to judicial processForge v ASICActing judges – cannot be in a federal courtIt was argued that this applied to state courts aswell – failsAustralian court system is integrated, not unitaryCh 3 – state courts are courts, but they do not require s 72 standard of judicial appointmentTenure etc.To be a court – minimum standards of independence and impartialityAppointing one or several acting judges to a court does not stop the court from being impartial and independentAppointment of Forster J (the challenge in this case) to the state court does not prevent the court from its obligation of impartiality and independenceHe is the same as a judge, but only for a time period of 1 year.i.e. wage is fixed, cannot be easily removedIn extreme cases, it is possible that the abuse of this power so effects the courts that it ceases to function as a court (independent and impartial)Therefore, the executive can appoint acting judges but must be careful not to abuse this power or the court may cease to be a court in this respectMinority: Kirby dissented – held that it was already being abused – demonstrated with a graph showing that prior to 1988, no acting judges were appointedKirby said that the appoint of judges in this manner does attract Kable PCommonwealthChapter 1 of the Constitution deals with parliament, Chapter 2 with the executive and Ch 3 with the judiciary. See S1, 61, and 71 for the vesting of power with respect to these powers of government. The Cth Constitution incorporates responsible government, which links the legislature and the executive. Refer to S44, 62 and 64 for how this feature is incorporated.Boilermaker’s – page 65Delegation of legislative powerStatesIn Dignan’s Case, the question of whether Parliament could delegate its legislative power to the Executive arose. The HC said that this was possible, however it was also stated that such a delegation must:Not be so wide or so uncertain that the enactment attempting it is not a law with respect to any particular head/s of power.Parliament must retain the ability to take the power backParliament is not competent to ‘abdicate’ its powers of legislation. ................
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