Not every corporation that trades



S51 of the Constitution – ‘Powers of Parliament’?The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:Interstate Trade and Commerce Power - trade and commerce with other countries, and among the States;Taxation Power - taxation; but so as not to discriminate between States or parts of States;Tariffs Power - bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;Commonwealth Loan Power - borrowing money on the public credit of the Commonwealth;Communication Services - postal, telegraphic, telephonic, and other like services;Defence Power - the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;Sea Observation Power - lighthouses, lightships, beacons and buoys;Astronomy Observations Power - astronomical and meteorological observations;Quarantine Power - quarantine;Fisheries Power - fisheries in Australian waters beyond territorial limits;Statistics Power - census and statistics;Currency Power - currency, coinage, and legal tender;Banking Power - banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;Insurance Power - insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;Measurement Power - weights and measures;Instruments Power - bills of exchange and promissory notes;Bankruptcy Power - bankruptcy and insolvency;Intellectual Property Power - copyrights, patents of inventions and designs, and trade marks;Citizenship Power - naturalization and aliens;Corporations Power - foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;Marriage Power - marriage;Divorce Power - divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;Pensioners Power - invalid and oldage pensions;(xxiiiA) Pensions, Allowances and Benefits Power -? the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;Service and Execution Power - the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;Record Power - the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;‘Race’ Power - the people of any race?for whom it is deemed necessary to make special laws;Migration Power - immigration and emigration; Criminal Migration Power - the influx of criminals;External Affairs Power - external affairs;Pacific Island Power - the relations of the Commonwealth with the islands of the Pacific;Acquisition of Property Power - the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;Transport Power - the control of railways with respect to transport for the naval and military purposes of the Commonwealth;State Transport Acquisition Power - the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;Railway Construction Power - railway construction and extension in any State with the consent of that State;Conciliation and Arbitration Power - conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;Constitution Power - matters in respect of which this Constitution makes provision until the Parliament otherwise provides;Interstate Parliamentary Power - matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;Exercise of Powers of the United Kingdom - the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;Express Incidental Power - matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.Constitutional ChecklistAre we dealing with Corporations Power?Is the Company incorporated? Yes – its a Constitutional CorporationIs the Commonwealth regulating act ‘preliminary to trade’Company is incorporated but not tradingYes, per Commonwealth v TasmaniaNo, ignore.Is the company trading?Current Activities TestDetail examples of what it is tradingIs the Commonwealth Regulating trading activities?S51(xx) Strickland v Rocla Concrete PipesCan only regulate activities which are ‘trading activities’Is there sufficient connection to trading?NSW v Commonwealth (Work Choices)‘Objects of Commands Test’Can regulate internal powers and internal agreementsIncidental Scope of the Power?Has the corporation engaged in trading?No - cant held a organisation liable for conduct it has not engaged inActors Equity caseYes, comes within scope of incidental powerNSW v Commonwealth ‘enough to simply relate to the business’No – its not incorporated yetIs the Commonwealth attempting to regulate pre-incorporation?Not permissible within the scope of the s51(xx) powerNSW v Commonwealth (Incorporation Case)Cannot regulate pre-incorporationAre we dealing with Financial Powers?Are States attempting to change finances?YesS90 – Prohibits States from raising excise duties or taxes on goods.What is the scope of the power?SA v Commonwealth (First Uniform Tax Case)S90 can force states to impose income taxesVic v Commonwealth (Second Tax Case)States no longer able to raise taxes – must accept Commonwealth Grants per s96S96 makes States reliantVertical Fiscal ImbalanceWhat are the limits of s96?States are not legally bound - to accept grants under s96 – but do otherwise have no moneyOnce accepted, cant renege – once a state has accepted a grant, cant renegeIs the Commonwealth take money from the States?S81 – Appropriation powerYes, for the ‘purposes of the Commonwealth’Monies collected by the Commonwealth are held in consolidated revenueS83 – Commonwealth cannot withdraw this month exception by appropriation.Is the Commonwealth creating its own spending plans?S81 & s83 – Combet v CommonwealthCommonwealth allowed to create its own spending plans without channelling funds through States.Court cannot determine subject matter of what to spend funds on.Appropriation Act – non-justisicable.Are we dealing with the Defence Power?Is the Commonwealth imposing Military Conditions or Restrictions?YesS51(vi) – Australian Communist Party v CommonwealthCommonwealth can maintain defence preparedness;Deal with matter such as enlistment etcWhat is the extent of the power?Original Scope – Communist Party CaseOnly against ‘external aggressors’Extended Scope – Thomas v MowbrayInternal and external aggressors Includes terrorismMowbray applies a test of ‘proportionality’?Must consider the two limbsIs it being exercised during war? Yes, much greater powerIs it being exercised during peace?Yes, much less powerIt is discriminating against a State?Refer Melbourne Corporation Really depends on whether limb one or two of the defence powerAre there limits ? Thomas v Mowbray –Yes, to permit s51(vi) to extend to the protection of all persons and all property would sit uncomfortably with s119 – protection of the States from invasion and violence.Are we dealing with Inconsistent (conflict) legislation?Does a Commonwealth and State Act conflict?Yes?S109 - Commonwealth takes precedence How to interpret s109?Define law per Ex Parte McLeanIs a law ultra vires?If yes, one invalid – no inconsistency anymore.Has Commonwealth expressly provided precedence?If yes, Commonwealth wins.How long is law invalidated for?Only for period of conflict – per Commonwealth v WAWhat are the tests of Inconsistency?Simultaneous Obedience TestOne law attempts to direct what the other forbidsConferral of Rights TestState law is invalid if it alters, impairs or detracts from Commonwealth law.Cover the Field TestIf a law attempts to cover an entire field – then this proves that one is more suitable.Is the Commonwealth attempting to bind a State?YesIntergovernmental ImmunitiesState immunity from commonwealth lawsEngineers CaseRejected doctrineCannot bind states where no powerCannot be contrary to express or implied prohibitionsCannot prevent state from existing or functionWhat is the key case?Melbourne CorporationCannot discriminateDirectIndirectJustified/Rational (i.e. some virus)Establish validity of discriminationCannot affect functionCannot regulate ministers, assistants, heads of departments – which would clearly affect function.Re Australian Union CaseReformed to single limb?Contentious – Austin v CommonwealthUpheld to new single limb and rejected discrimination.New case pending in the High Court Clarke v Commissioner of TaxationIs the State attempting to bind a Commonwealth?YesCan a State law bind the Commonwealth?Cannot bind unless some capacity, necessity or express authority provided.Pirrie v McFalane rejected rule in Adelaide Steamship (which said could bind absolutely)Pirrie said State law could bind if enacted for a specific purposeUpheld in A. V HaydenCigamatic Immunity?Commonwealth v CigamaticCommonwealth stood as primary creditor over the States.Cigamatic Improved?Ex Parte Defence Housing AuthorityHCA Stated Parliaments could not legislate to affect capacity of Commonwealth‘Reverse Melbourne Corp Doctrine’Capacity? – State law singles out Commonwealth for ‘special treatment’Exercise of Capacity? Crown is bound by state law except where inconsistencyCommonwealth v BogleCommonwealth is bound where if State law doesn’t discriminate (subject to inconsistency)S109? – Inconsistency of LawsCommonwealth can pass a law which would supersede a state law – usually avoids problems.Are there any exceptions?S64 Judiciary ActProvides States have Equal rightsCommonwealth bound to same laws as private citizensMaguire v SimpsonRemoves Immunity – removes CigamaticOnly a suit – s64 refers to only a ‘suit’ – inferring not within jurisidictional confinements of a courtS52(i) – Power to create laws?Public places – R v Philips – Cth has ultimate power.Is there ***Interstate*** Trade, Commerce and Intercourse Involved?YesWhat is interstate trade?S92 – seeks to protect interstate trade against all interstate borders Stops non-fiscal intervention – Seeks to stop governments from applying quotas or standards which discriminate against interstate trade Can a burden be placed on Interstate trade?No - Cole v WhitfieldCannot discriminate against interstate trade as then one is protectionistTest?Is there interstate trade?Yes? Not limited to physical – also communication – Nationwide News v WillsDoes Government burden interstate trade?Yes – if a law imposes a burden through the simple notion of crossing a border – Nationwide NewsNo? – a law can be valid if it has been enacted for a specific and valid purpose.What are the limits?Proportional ApproachApply Nationwide News TestsWhat is the effect on interstate trade?Impediment? Then probably burden.What is the law trying to achieve?Rational? Stopping virus spreading etc – OKIs it protectionist?Anti-competitive? YesBath v Alston HoldingsAdvantageous to State over others‘Protectionist Effect’?Disability or disadvantage if the factual operation produces a resultNon-protectionist?Yes – doesn’t offend. NO? Offends per Castlemaine Tooheys LtdS117?Protection of Interstate Residents?Other?Freedom of Religion? Political Communication? Voting?Is there some External Affair involved?YesIs an External Affair Involved?Yes, Executive power vested in s61CC to ‘deal’ with other nationsWhat are ‘external affairs’?Polyukhovich v Commonwealth‘outside geographical limits of country’Victoria v Commonwealth (ILO Case)‘physically external’Has Domestic Legislation been affected?Yes, s51(xxix) – international obligations to incorporate treatiesExtraterritorial Power – s51(xxix)Territorial Boundary –NSW v Commonwealth – ‘matters or things geographically situated outside Australia’A nexus is required to Australia?Polyukhovich v Commonwealth‘genuine connection to Australia to enact laws’ Upheld in XYZ v Commonwealth‘With Respect to Other Nations’?R v Sharkey – Commonwealth ahs power to legislate with ‘respect to other nations’Required to recognise foreign laws?Vasiljkovic v Commonwealth – Yes, foreign judgments, evidence and extradition valid use of powerRevolution against government? (anti-sedition)R v Sharkey – yes, bunch of factorsAnti-terrorismAmbit of power – per Thomas v MowbrayWhat is purpose of a treaty?Signals Australia’s obligations’ to world – Toonen v AustraliaRatification means must take into account in decision making – TeohWhat are the limits on incorporating treaties? (next page)What are the limits on incorporating treaties?Not substantive rights - Cannot alter substantive rights until they are implemented in domestic law – TeohDo Mould common law – Refer Mabo which used substantially international lawCan ALL treaties be Incorporated into Domestic Law?Re burgess; Ex Parte Henry‘may well be deemed competent to legislate for carrying out of recommendations as well as draft international obligations’Not confined to ‘External aspects’ Any topic is within scope of s51(xxix) if required‘Matters of International Concern’Customary Law – laws accepted as binding by all nationsXYZ v Commonwealth – said matter would be revisitedImplementing a treaty as a ‘Matter of international concern’?Koowarta v Bjelke-PetersenImplementing is a valid exercise of external affairs powerTestsAny treaty is okSubject matter must be externalInternational concern – acceptableCommonwealth v Tasmania DamsGranted Commonwealth power to incorporate ‘all treaty obligations’ to Australia law.Confirmed in Richardson v Forestry CommissionAllow to legislate against ‘matters reasonably incidental to treaty obligations’Victoria v Commonwealth (ILO)Upheld Tasmania Dams Limitations on the Power?Yes – good faith, ‘specific principle’, must confirmRefer notes.Is there Trade and Commerce between **other Countries** OR **States**?YesWhat is the approach?S51(i) – Allows trade and commerce with other countries and among the StatesHuddart Parker Ltd v Commonwealth‘power relates exclusively to trade and commerce with another country or among the states’Direct scope of the power?S51(i) – prohibit, regulate and control the importation and exportation of goods O’Sullivan v Noarlunga Meat‘inclues a power to make provision for condition and quality’ of goods being importedMurphyores v CommonwealthNo apparent relevance on trade and commerce – rejected and power has no standing.Incidental scope of the powerWide Scope – Regulate activities within a State where such activities are linked with interstate or international trade per Fullagar J in O’Sullivan.Sufficient Connection – Power must have been exercised with ‘sufficient connection’ – Burton v HonanCannot regulate intrastate Activities – s51(i) – does not suggest authority of the Commonwealth to regulate trade and commerce occurring intrastate First time sold in a State – interstate trade and is regulated by s51(i) per Permewan Wright v TewhittAfter First Sale – Not regulated by s51What about processes that relate to Goods?Vertical Integration - Intrastate product or manufacture processes are integrated in a chain of events or transactions that lead to interstate or international export are covered.Per O’SullivanHorizontal Integration – Must be ‘inseparably connected’ such that its ‘almost impossible’ to separate them.Redfren v Dunlop RubberLimits on Power?S92 – cannot discriminate interstate tradeS98 – complementary to s51(i) on railway, shippingS99 – prohibits any preference to one state or part of a state S100 – cannot create ‘law or regulation’ which affects the rights of a stateBackground Constitutional LawLesley Zines, The High Court and the Consitution (4th Edition, Butterworths, 1997)The Nature of Constitutional LawRights – The relationship between government and those that elect themThe Powers of Separation – make, administer, and executoryJudiciary, Executory, LegislatureDisparity of the executory and constitution – i.e. there are sections of the constitution which don’t actually relate to the government.i.e. no mention of the prime ministerAllocating responsibilities and functions and describing the relationships between them and it is both prescriptive and prohibitive.It can describe what it can do and what it cannot do.Constitutional law governs the power relationship in a federation between the two levels of the Australia government the deferral or Commonwealth government and the regional “State” Governments.Territories – they are appendages of the commonwealth and are effectively mini-states. S122 of the Constitution allows the Commonwealth to legislate as it wants.Local Governments – councils which govern the function of area based municipals.Parliamentary SovereigntyAbsolute implies power to make or unmake any law – and no Court can declare law made by Parliament of no legal effect (invalid) – Courts therefore are bound to apply statutes as supreme law of Parliament.In England, if you said to a judge that a law is invalid – it would be stated as a ridiculous proposition since the parliament has enforced it. In America, if a law is contrary to the bill of rights – its invalid.The Australia context is different – on the Commonwealth/Federal level there is a constitution which provides a measuring rod for validity for the manner in which a law is passed. Whether its properly done can be measured by a section from the constitution.This modification does not allow parliament to do what it wants.On a state level – it is different. States have been developing there organic systems of government – to the extent that States parliament ‘were sovereign’ such that they were supreme and they were able to make laws about whatever they like.There are some limitations – manner and form restrictions that apply to state constitutions – where the state constitutions usually deriving from an imperial source has put limits on how the states can legislate about certain matters such that it might require a two thirds majority to get something through etc. State Limitations – that restrict state capacity to deal with certain things. S90 of the constitution states that a certain type of tax can only be levied by the commonwealth.Rule of Law – The Constitution should be supreme - “supremacy of the constitution” -rather than the supremacy of parliament.Constitutional ConventionsWhen it is necessary to go beyond the written constitution?Chapter 2 – the executive power of the commonwealth is vested in the queen and the governor general. This infers that the Governor General passes all laws in Australia and this power is vested in the Ministers of the parliament.The governor general can appoint officers to represent their power.The word “cabinet” and “prime minister” is not contained within the constitution – thus, the constitution is a “framework” of constitutional conventions – which are rules of practice and rules of principles which have developed over time and they are inherited from England.Conventions – rules which are not usually judicially enforceable, and not always created by parliament they are “customs or practices” usually followed by those in government.Reserve Powers of the Governor GeneralAll major executive decisions are made in the name of the Governor General as authorised by the Queen. Thus, the governor general is required to follow the advice of their ministers – the reserve power of the governor general and in a referendum the Governor General would be able to stop such a notion.Goff Whitlam – the senate continuously blocked the budget as the government did have power. And the Governor General dismissed the entire government.CharacterisationS51 and 52 of the Constitution assign board legislative powers relating to a range of subjects and purposes. Definition – If a law can be described as a law on or ‘with respect to’ the subject matter of the Commonwealths head of power, it is within power. But if it lacks that connection, it is ultra vires, or beyond power.Exclusive Powers – Those legislative powers that the Commonwealth holds exclusively. Such as s51 (defence, administration of judicial process etc)Such as s52 – power to make laws with respect to the seat of government, Commonwealth places or the public service.Concurrent Powers – These are legislative powers that the Commonwealth has over topics that are also available for the States to control.i.e. s51 (xxi) – Commonwealth has power over marriage and divorce which is held concurrently with the States to control.Residual Powers – Refers to those topics remaining to the states after the Commonwealths enumerated powers are accounted for. Includes roads, transport, land, education and so forth.Early Approaches to Characterisation of PowerTaxation Power - S51(ii) states that the Parliament shall have power with respect to ‘taxation; but so as not to discriminate between States and parts of the States’.No Discrimination between States - This confers the Commonwealth with a broad ranging power over the taxation subject to a limitation regarding discrimination between states.Reserved Power Doctrine for the StatesInitially, the High Court held that when interpreting the scope of Commonwealth Powers – an assumption was to be adopted that certain subject matters were strictly reserved for the State parliament’s exclusive power.R v Barger - Court held that in interpreting the scope of Commonwealth powers, the court should be influenced by an assumption that certain subject matters of legislation were reserved for the state parliaments’ exclusive power. Barger held that the character of a Commonwealth Act should depend on the character of the legislation rather than its form. Majority: Purpose of the Act was to regulate intrastate employment conditions rather than raising money by imposing a tax. Decision also indicated that Commonwealth laws were incapable of dual characterisation.Minority: Court must give effect to the specific grants of Commonwealth power, and then work out the states residue by referring t what legislative scope remains.‘the trust test as to whether an Act is a taxing Act, and so within Federal Power … is this: is the money demanded as a contribution to revenue, irrespective of any legality or illegality’Current Approaches to Characterisation of PowerOverturned Reversed Powers Doctrine - The High Court has since overturned the Reserved Powers Doctrine and interpreted the Commonwealths legislative power with a broad ranging construction.Amalgamated Society of Engineers v. Adelaide Steamship Co.In the Engineers case, the Court ruled that Judges should primarily interpret the Constitution according to its express words. Implied meanings only to be construed where such a meaning was necessarily or logically implied from the Constitution’s text.Judges should not overlay the Constitution with implications which they feel should be there. Decision: The doctrine of State reserved powers was set aside and a literal approach to interpretation was adopted.This lead to an expansionist view and a broader interpretation of Commonwealth legislative power. Fairfax v. Federal Commissioner of Taxation –Rejected the Bargers case for sole characterization test.Key Point:What is the obligation imposed by the law?Kitto J – determination of whether a law is supported by Federal Power:‘Can the law properly be described as a law “with respect to” a power or powers? Is the law sufficiently connected or incidental to the power invoked to support it?’The characterisation of a law will be determined by the nature of the obligation, right or privilege the law regulates, changes or abolishes.Outcome:Approach to characterization - focuses solely on the direct legal effect of the law, rather than its economic or social consequences or purposes.Dual Characterization – Dual or Multiple characterization is permissible, provided that one of its characters is within a Commonwealth head of power – it does not matter if others are not.NSW v Commonwealth [2006] HCA 52 – Rejection of Sole Characterizations‘a law may be characterized as a law with respect to more than one of the subject-matters set out in s51. To describe a law as ‘really’, ‘truly’ or ‘properly’ characterized as a law with respect to one subject-matter, rather than another, bespeaks fundamental constitutional error.’The Incidental Scope of PowerIncidental Powers – If a law cannot be characterised as being ‘with respect to’ the heart or core of a topic, it may still be constitutional valid if it comes within the incidental scope of the Head of Power.There must be a ‘sufficient connection’ with the subject matter of the power and regulating it must be ‘reasonably necessary’Heads of Power s51 – There are s39 subsections to s51 – each which describes a head of power through which Parliament has the power to make laws.Primary Heads of Power S51(i) – Interstate Trade and Commerce PowerS51(xx) – The Corporations PowerS51(xxix) – External Affairs PowerS51(ii) – The Taxation PowerExpress Incidental Power – This is conferred in s51(xxxix) which grants a general power to legislate on ‘matters incidental to the execution of any power’ contained within the Parliament, executive or judiciary Grannal v Marrackville Margarine Pty Ltd (1955) 93 CLR 55‘Every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.’Implied Incidental Power – Each of the other heads of power in s51 carries an ‘implied incidental power’ to deal with matters that are ancillary or incidental to the express subject matter. If the matter is deemed ancillary or incidental to the core purpose of the legislative power – then it is an implied incidental power.Cunliffe v Commonwealth (1994) 182 CLR 272‘the core and incidental aspects of a power are not separated the power is an entirety’Proportionality TestsProportionality – The reasonableness of the relationship between a stated objective and the respective methods which are used to achieve such an objective – that is, a sufficient connection between the means and the end.A degree of reasonableness or proportionality - The reasonableness, appropriateness and proportionality of the law to achieves the laws objective.When it is permissible to consider the proportionality in characterisation of a law?Characterisation of purpose powersExamination of a law to determine its sufficient connection to a Commonwealth head of powerDetermining the proportionality -Leask v Commonwealth (1996) 187 CLR 579Determined that proportionality tests can be relevant in establishing whether a Commonwealth law has ‘sufficient connection’ to a head of power:Sufficient Connection – ‘If there is a sufficient connection between a subject of federal power and the subject matter of a federal law, it matters not that the federal law is harsh, oppressive or inappropriate or that it is disproportionate or ill adapted to obtain the legislative purpose. As soon as it can be seen that the ‘subject matter is fairly within the province of the Federal legislature – the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary.’Determining Connection – ‘If the dominant subject matter of an impugned law is not itself a head of federal power, but that law has ostensibly been passed to achieve some purpose falling within a subject of Commonwealth power, the sub-test of proportionality may sometimes prove helpful in determining whether the subject matter of the impugned law is sufficiently connection to the subject of the federal power’Proportionality and purposive powers Specific Subject Matter – Most Commonwealth Heads of Power are expressed to apply to a specific subject matter such as ‘trade and commerce’, or ‘social services’.Specific Purpose – Some heads of power are purposive as they specifically illustrate a definitive purpose. For purposive powers, a concept of ‘proportionality’ tests the validity of the impugned Act.These include:S51(vi) - The defence powerCommunist Party v Commonwealth (1951) 83 CLR 1Commonwealth attempted to enact the Communist Party Dissolution Act 1950 (Commonwealth) by asserting it was ‘for the defence of Australia’Decision: The law was disproportionate (excessive) to the purpose of the defence power.PURPOSE: The HCA stated the ‘central purpose’ of the defence power is the ‘protection of the Commonwealth from external enemies’ This has since been rejected in Thomas v Mowbray [2006] where the HCA ruled it will also cover ‘internal threats’ and responses to terrorism.S51(xxxix) – The general incidental powerS51(xxix) – The external affairs powerInterrelationship between Heads of PowerPrimary Rule – One head of power cannot be read to limit the scope of another head of power.NSW v Commonwealth (Workchoices Case) [2006] HCA 52Cannot use the mere existence of another power over industrial disputes [s51(xxxv)] in order to limit the full use of the corporations power – it is not a cut back.Secondary Rule – Restrictions expressed in one head of power may operate to restrict the scope of other heads of power.P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382The Commonwealth acquired property under the Defence Power [s51(vi)] to meet the needs of returning servicemen, Commonwealth had to pay ‘just terms’ to meet the limitation in s51(xxxi)Decision: S51(xxxi) requires that acquisition of property is on just terms – this limitation can restrict the scope of other Heads of Power.Trade and Commerce Power – s51(i) ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to ... Trade and Commerce with other countries and among the States’Broad Approach - Huddart Parker Ltd v Commonwealth (1931) 444 CLR 942The High Court interpreted the words ‘trade and commerce’ in Huddart Parker Ltd v Commonwealth (1931) 444 CLR 942 in the confinements of s51(i) and s92. Dixon J stated‘the power relates exclusively to trade and commerce with another country or among the states, the movement of commodities between states or between this country and another country must be an operation which comes directly within the power and is under its immediate and full control’ Direct Scope of the PowerS51(i) enables the Parliament to prohibit, regulate and control the importation and exportation of goods – a core aspect of international relations with other countries.O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565HCA first suggested that even if the Commonwealth has no direct power in respect to an industry, it can still imposition conditions on trade and commerce ‘it is undeniable that the power with respect to trade and commerce with other countries includes a power to make provision for the condition and quality of meat or of any other commodity to be exported’Murphyores Pty Ltd v Commonwealth (1976) 136 CLR 1 – Court rejected a proposal (and supported Noarluna Meats) that the imposition of a condition which has no apparent relevance to trade and commerce on exportation was against the trade and commerce power with other countries.Incidental scope of the powerDefinition - The Commonwealth can regulate a wide range of incidental activities concerned with the trade and commerce power.Intrastate Activities - The Commonwealth can regulate activities which are carried out within a State where such activities are linked with interstate or international trade as stated by Fullagar J in O’Sullivan‘the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export’Power must have exercised with sufficient connection with the head of power and such a connection is a ‘question of degree’ per Burton v Honan (1952) 86 CLR 169.Cannot regulate intrastate activities - s51(i) does not suggest authority of the Commonwealth to regulate trade and commerce occurring intrastate – the language of the section referring to ‘other Countries and among the States’Importation into a State – Commodities first sold in a State after importation is treated as interstate trade and is regulated by s51(i) per Permewan Wright Consolidated Pty Ltd v Tewhitt (1979) 145 CLR 1.After the First Sale – Commodities subsequently sold after the first post-sale importation are not regulated by s51(i) and fall outside the ambit of the jurisdiction of s51(i).Vertical Integration –Fullagar J suggested in O’Sullivan that intrastate product or manufacture processes are integrated in a chain of events or transactions that lead to interstate or international export. This infers that the Commonwealth can regulate ‘vertical integration’ activities such as those preceding or following the goods.Horizontal Integration – Where transactions or activities are in the same industry – there can be horizontal scope of s51(i) in trade or commerce – per the comments by Dixon CJ in Wragg’s case.Inseparably connectedIn some circumstances, interstate and intrastate aspects of transactions are so connected that it is impossible to separate them for the purposes of the legislature. In this special circumstances, s51(i) allows the Commonwealth to regulate intrastate as well as interstate trade.Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194Background: Tyre suppliers refused to supply Redfern with tyres at the wholesale price while they discounted retail prices – Redfern sued in Cth legislation. Dunlop argued it was an excess of power to regulate trade. Decision: HCA rejected Dunlop argument and stated that 51(i) could regulate intrastate trade arrangements when they were ‘inseparably connected’.Summary Direct and Incidental ScopePermitted - Commonwealth is able to use s51(i) to regulate interstate activities when those activities are ‘inseparable from interstate and international trade’‘infringe on the physical safety of interstate and international trade’Not Permitted – Commonwealth cannot use s51(i) to regulate intrastate transport where such regulation is merely to promote economic profitability for the interstate activity.Limits on Power – s51(i) is read most comfortably with s92 which provides that trade, commerce and intercourse among states shall be absolutely free.S92 - does not prohibit Commonwealth from regulating interstate trade – rather it only prohibits discriminatory, protectionist burdens on trade and commerce.S98 – states that the Commonwealths power to make laws with respect to trade and commerce ‘extends to navigation and shipping and to railways the property of any State’. This is not an independent and autonomous section but rather one which acts complementary to s51(i) such that the Commonwealth cannot regulate trade and commerce entirely within a particular State.S99 – Prohibits the Commonwealth from providing ‘a law or regulation of trade, commerce or revenue’ any preference to one state, or part of a state, over another state, or part of a state. This only applies to laws made under s51(i) where a preference or advantage is provided OR where a state or parts of a state are disadvantaged.S100 – Prohibits the Commonwealth from creating a ‘law or regulation of trade, commerce or revenue’ which affects the rights of a state or its residents through ‘the reasonable use of waters of rivers for conservation or irrigation’This limits the Commonwealths power under s51(i) and under s98. It is possible for the Commonwealth to get around this by using another head of power such as a Corporations Power or the External Affairs power per Commonewalth v Tasmania (1983) 158 CLR 1. Corporations Power – s51(XX)“The Parliament shall, subject to this constitution, have power to make laws with respect to ... foreign corporations, and trading or financial corporations, formed within the limits of the Commonwealth”Core Question:The jurisprudence on the corporations power focuses broadly upon two issues:What types of corporations may be controlled under the corporations power, andWhat aspects of a corporation activities or affairs can be regulated through the use of this power?Do the nature of corporations fall within the corporations descriptions ?What is a corporation?Corporations are artificial persons created by law and can be subject to rights and duties. They can be created –Under corporation laws;By statutes (e.g. statutory authorities and local government bodies)Under association incorporation acts (e.g. sporting clubs and charitable associations)Under royal chartersWhat kinds of corporations can be regulated using s51(xx)?Only the regulation of corporations under s51(xx) can occurThe test for determining which corporations are “constitutional corporations” and thus within the Commonwealths power, depends on which types of corporations are under consideration.What is a trading corporation?A corporation comes within this aspect of the corporations if a substantial or sufficiently significant proportion of its activities comprise trading activities.Current Activities Test – This is known as the “current activities” test – R v Judges of Federal Court & Adamson; Ex Parte Western Australian National Football Leagure and West Perth Football ClubHCA has not clarified the precise meaning of ‘substantial’ or ‘sufficient’ in this contextNot every corporation that trades will be within reach; if the trading is so slight, or trivial, or incidental to another purpose, it may not be considered ‘sufficient’. Per Mason J in AdamsonWhat is a Financial Corporation?The approach to identifying financial corporation’s is on par with the approach used for identifying trading corporations. A ‘financial corporation’ describes a corporation which engages in financial activities, that is those transactions the subject of which is financial exchange(such as borrowing, lending or investing in money, currency or funds). State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282What is a Dormant Corporation? (not currently active)Situations exists where a corporation has no activities yet, or is dormant. eg, a ‘shelf’ company is one which is formally established, but has no current trading activities. Such a legal entity can be regulated as a ‘trading’ or ‘financial’ corporation if the purposes for which it was created anticipate trading or financial activities. Fencott v Muller (1983) 152 CLR 570The majority reserved a ‘purposes’ test for shelf companies, but retained the ‘activities’ test for operating companies. What are Natural Persons connected with Constitutional Corporations?The Commonwealth can use the corporation’s power to regulate, incidentally, the behaviour of natural persons. Actors Equity v Fontana Films (1981) 150 CLR 169 Can pre-trading be regulated under the corporations power ? Justice Mason – must be something tied to a trading activityCan regulate pre-trade if it is for the purposes of trading.Fencott v Muller (1983) 152 CLR 570Decision: The Court agreed that the regulation of a natural person’s conduct was within the scope of the corporations power, as it is ‘incidental to the regulation of corporate activities’ (at 598).A corporation acts and facilities its trading through natural persons and therefore natural persons must be connected in this regard.Regulating Trading Activities of CorporationsS51(xx) of the Constitution states that:‘The parliament shall, subject to this constitution, have power to make laws with respect to ... Foreign Corporations and trading or financial corporations, formed within the limits of the Commonwealth.’The Commonwealth can use the core of the corporations power to regulate and control the trading activities of trading corporations. The core power of s 51(xx) would allow the Commonwealth Parliament to regulate the “trading activities of trading corporation”. Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.Facts: Rocla made an agreement to reduce competition between concrete pipe manufacturers, regarding [intra-state] trade carried out exclusively in Qld and refuse to release details. Rocla argued that if the agreements related only to intrastate trade activities, it was beyond the scope of the Commonwealth to regulate them, on the authority of Huddart Parker.Decision: Held: HCA unanimous: overruling Huddart Parker; Barwick?CJ said (at 489) reliance on the old reserved powers doctrine had “emasculate[d] the legislative power given by s?51(xx)”.The laws in Huddart Parker dealt with the very “heart of the purpose for which the corporation was formed?…” i.e. a law controlling a corporation's trading activities was clearly a law with respect to s?51(xx). Commonwealth could not be prevented from regulating constitutional corporations on the basis that “their trading activities in intrastate trade was a matter for the State legislation exclusively?…” (at 488). Key: Court gave a wider reading to the scope of the corps power, they found the TPA 1965 (Commonwealth) reached out to corps beyond those listed in s?51(xx). Regulating Acts Preliminary to Trade The commonwealth can use the Corporations Power to pass a law that regulates the activities of constitutional corporations done preliminary to or for the purposes of trading activities which occur monwealth v Tasmania (1883) 158 CLR 1Decision: HCA upheld the ‘broad view’ Mason J put forth in Actors EquityS51(xx) supported laws regulating any activities of trading corporations and there did not need to be a ‘nexus’ with trading activities at all.Key: The Commonwealth can regulate the trading activities of trading corporations (and the financial activities of financial corporations) in addition to activities done for the purposes of trade.Broad View – Three Justices approved a Broad View of the core s51(xx) power while three approved a Narrow View. The Broad View has now been accepted per the NSW v Commonwealth (Work Choices Case) [2006] HCA 52Note: This is NOT PRE-INCORPORATION, PRE-TRADERefer Below for Pre-IncorporationRegulating matters with sufficient connectionThe NSW v Commonwealth (Work Choices case) upheld the broad interpretation of the direct scope of s51(xx). If a law is ‘with respect to’ two subject matters, one a topic within s51 and the other not, it is valid even if there is no independent connection between the two fields; a multiple characterisation approach.NSW v Commonwealth (Work Choices case) [2006] HCA 52Held: The HCA “rejected the distinctive power test” – looked at s51(xxxv) and found no “positive prohibition or restriction” and therefore the section was not meant to be prohibitive in this regard.‘Object of Command’ testSection 51 (xxx) does not include positive prohibition or restriction insufficient evidence of intention of the section to be prohibitive of regulation making power.If the act directs an objection – as long as its direction to a constitutional corporation, it falls within the power. This includes things which include internal powers – thus, employee agreements etc – is within the scope.Legal Impact of the CaseLegislative power of s51(xx) extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations (Pacific Coal)However, this does not put in issue what the characteristics of corporations covered s51(xx)What is a trading or financial corporation?Must apply the ‘activities test’Two Recent CasesAWU v Etheridge Shire Council (2008)Aboriginal Legal Service of Western Australia v Lawrence (No 2) (2008)Incidental Scope of the PowerThe scope of the corporations power may be extended through the use of the incidental scope of the powerJudicial opinion can vary greatly – in interpreting the required reasonable connection because matters of incidental powers are largely a subjective question of degree.Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169Held: Was this within the incidental scope of the Corporations Power?Majority found s45D(5) was not supported by the Corporations power and was invalid.Brennan J - ‘the corporations power does not support a law which makes an organisation liable for conduct which it has not engaged and which it has not counselled, aided or abetted’.NSW v Commonwealth (Work Choices case) [2006] HCA 52Interpretation of the Incidental Scope of Power‘To come within the incidental scope of corporations power, provisions must simply relate to the business of a constitutional corporation, it need to have any effect, beneficial or detrimental upon the business of a constitutional corporation.’It is sufficient if the law operates on persons who are acting in the course of their business relationship with a constitutional corp. Key: It is enough if they are engaging in business with constitutional corporation, they don’t have to be carrying out constitutional corporation’s activities.Can Pre-Incorporation be Regulated? (PRE-INCORPORATION)NO!! - Corporation’s power cannot be used to regulate the incorporation of corporations.The text of s51(xx) permits the Commonwealth to regulate ‘trading and financial corporation’s formed within the limits of the Commonwealth’.Key: It is enough if they are engaging in business with Constitutional Corporations, they don’t have to be carrying out constitutional corporation’s activities.To come within the incidental scope of corporations power, provisions must simply relate to the business of a constitutional corporation, it need to have any effect, beneficial or detrimental upon the business of a constitutional corporation.BUT It does not confer power to control the formation of corporations.NSW v Commonwealth (Incorporation Case)Commonwealth sought to pass a range of laws which would have controlled the formation, management and winding up of corporations.Key: The High Court found that the words ‘formed’ limited the use of corporations power to legislation with respect to corporations which already existed in Australia under another law – thus corporations power could in no way be used to regulate the formation of corporations.Does the Commonwealth law direct only to Constitutional Corporations?Yes – Commonwealth law is valid under the scope of s51(xx) applying the object of command test – regardless of the activities of a constitutional corporation – the law is directed towards the majorities conclusion in Workchoices.Is the Commonwealth Law directed towards someone or some person and not towards a constitutional corporation?Commonwealth law will be valid under the incidental scope of s51(xx) if law operates on persons who are acting in the course of their business relationship with a constitutional corporation as per majority in Workchoices.Financial PowersThe Commonwealth can use its financial powers in order to achieve ends and purposes that may lie outside what it would otherwise be able to do under its given list of heads of power in s51 and s52. S90 – This section prohibits the States from raising excise duties or taxes on goods within their respective states. S96 – Grants Power - This section was included in order to protect the States from financial collapse after the Federation.Primary Use – The primary purpose of s96 is to grant the Commonwealth the power to provide funds to the States and to appropriate and spend this revenue (per s81 and s83)States are Reliant – ‘Vertical Fiscal Imbalance’ - The Commonwealth is in the advantageous position such that the States are reliant on the Commonwealth for the appropriate redistribution of revenue.Scope of the PowerSouth Australia v. Commonwealth (First Uniform Tax case) (1942) 65 CLR 373Facts: States were imposing income taxes in addition to the Commonwealth taxes during the war. The Commonwealth requested the States stop this and accept compensation for lost revenue through financial assistance under s96.States Rejected this.Parliament then passed Four Acts challenged as constituting a legislative scheme to deprive States of ability to levy income-tax.Majority:Each Act to be considered separately;Each Act valid in its own right;Purpose of scheme did not make it invalid;Grant Act valid because States not legally forced to accept grounds in return for giving up own IT; only economically and politically influenced to do so;Tax Act valid under s 51(ii); large amount of tax no bar;Transfer Act and Priority Act valid under defence power (s 51 (vi)).Victoria v. Commonwealth (the Second Uniform Tax case) (1957) 99 CLR 5Facts: The States assumed once the war finished the Commonwealth would provide the opportunity to resume imposing income tax. The Commonwealth did not and wanted to collect high income taxes and reimburse the states through s96 grants.Decision:The Scheme was upheld and the HCA upheld the view that the Commonwealths power to make grants to the States on the basis that the States did not collect income taxes.Key: The decision was based on the fact that the ‘uniform taxation system has become very much a recognized part of the Australian fiscal system’ and therefore it was too late to reverse the trend of s96 grant interpretationsAlso, the First Tax Case was ‘a decision resting in an essential degree on the scope of the defense power in time of war’. Limits on the Power of s96There are very few limits of s96 – despite Dixon CJ raising the possible that intergovernmental immunity principles could limit s96 in the Second Uniform Tax case.States are not legally bound – The States are not bound to accept grants of financial assistance from the Government but evidently – they are required to do so politically.Once accepted, cant renege – Once a State has accepted financial assistance from a grant, they must accept the consequences of the grant.Apart from these non-descript limitations – there is nothing overtly limiting in the grants power.Appropriations and Spending PowersS81 – The commonweal can appropriate monies ‘for the purposes of the Commonwealth.’Can go beyond - The Commonwealth can spend revenues encompassed within the ambit of s51 and in some cases even beyond the legislative boundaries of this section.Consolidated Revenue - S81 – All monies collected by the government are held in Consolidated RevenueCannot Withdraw - S83 – Monies cannot be withdrawn from the Consolidated Revenue except by appropriation and via the Approach Acts. This ensures Parliament controls the revenue gathered and limits misuse.Spending on Commonwealth PurposesThe High Court has found that appropriations statutes almost always are valid. This is based on two cases, where the ratio was:The Commonwealth is free to determine who and where it can appropriate money per s81 and s83 which allow the Commonwealth to create its own spending plans without the need to channel funds through bet v. Commonwealth (2005) 224 CLR 494Decision: Commonwealth spending was valid as it was not for the Court to determine a connection between the subject matter of the appropriation of funds and the outcome.UPHELD: Pape v Commonwealth (2009) - $900 to Tax Payers.The Appropriation Act can in no way be legally challenged – it is non-justiciable.Victoria v Commonwealth and Hayden (the AAP case) (1975) 338 Facts: Government planed to bypass the States and directly fund 35 regional councils.Decision: The appropriation was valid on a broad interpretation of s81 and the words ‘purposes of the Commonwealth’Jacobs J stated ‘s81 appropriations were non-justiciable as they concerned a matter internal to the government’ and therefore they simply identified the utility of the money.External Affairs PowerThere are four key aspects of the External Affairs Power:Extraterritorial reach of the powerRelations with other countriesImplementation of treatiesMatters of International ConcernThe Executive and ParliamentExecutive Power S61CC – The Australian Government deals with other nations (i.e. joining treaties and the like) under its Executive Power per s61CC. This evidently includes the entering of obligations under International Law.Enact Domestic Legislation s51(xxix) – In order for the International obligations to be fulfilled, the Commonwealth Parliament must incorporate provisions of the international treaties into Commonwealth Legislation. It is empowered to do this via s51(xxix) What are “external affairs”?In s 51(xxix) the words used are “external affairs” but this is not a defined in any manner. Points to Note: What, if any, is the distinction between the two?Foreign Affairs – dealings with international relations with other countries, diplomacy etcExternal Affairs – relationships in the Commonwealth were not considered ‘foreign affairs’ – as Commonwealth states were part of the ‘genus’ – so external depicted relationships with other countries and the like.Polyukhovich v Commonwealth (1991) 172 CLR 501HCA stated ‘a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs’Victoria v Commonwealth (ILO case) (1996) Affirmed Polyukhovich ‘The power extends to places, persons, matters or things physically external to Australia. The word ‘affairs’ is imprecise, but is wide enough to cover places, persons, matters or things. The word ‘external’ is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs’.’ Extraterritorial Power – a nexus required?If Parliament attempts to legislate for matters ‘beyond its borders’ – such an act is said to be an exercise of extraterritorial power. What is a ‘territorial boundary’ ?NSW v Commonwealth (1975) - HCA found that in international law the territorial border of Australia was (generally) the low water mark.The territorial sea (that area between the low water mark and 3 miles offshore) and the continental shelf were therefore outside Australian borders. Whole Court found that s?51(xxix) permitted the Commonwealth to exercise power with regard to ‘matters or things geographically situated outside Australia’ (Mason?J at?471)How is it determined if this power has been validly exercised?A nexus required?Polyukovich v Commonwealth (1991) 172 CLR 501Majority: s?51(xxix) gave the Commonwealth plenary extraterritorial power and there was no nexus requirement. Gaudron?J: a nexus was necessary, but the very decision of the Commonwealth to legislate upon a matter was conclusive evidence of such a nexus. Brennan & Toohey?J narrower interpretation, Commonwealth only has power over matters with a genuine connection to Australia.The requirement was satisfied in this case due to Australia's involvement in World War II.Brennan?J (dissent) found a lack of sufficient nexus, thus concluded the law was invalidXYZ v. Commonwealth [2006] HCA 25 Facts: The Crimes Act 1914 (Commonwealth), was amended by the Crimes (Child Sex Tourism) Amendment Act 1994 to prohibit certain sexual crimes, committed by Australians, outside Australia.XYZ, an Australian, was charged with sexual activities with a child whilst in Thailand.XYZ argued that Polyukhovich was wrongly decided, and that s 51(xxix) is only a power to make laws with respect to relations between Australia and other countries.Is mere geographical externality sufficient?Held: A majority found for the Commonwealth, but note the point where the Justices diverged;Gleeson CJ confirmed that the external affairs power includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. This ‘represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct’Callinan and Heydon JJ (in dissent) rejected the ‘mere externality’ test, pointing to weaknesses in textural analysis, and calling for the overruling of earlier cases that relied on the reasoning of the majority in Polyukhovich’s case. This suggests that the nexus requirement may be revisited.Legislate with respect to ‘Relations with Other Nations’The Commonwealth is able to use the external affairs power to legislate with respect to ‘relations with foreign nations’. In R v Sharkey – Latham CJ stated ‘The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth. The prevention and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other Dominion may reasonably be thought by Parliament to constitute an element in the preservation of friendly relations with other Dominions.’Recognize foreign laws – In Vasiljkovic v Commonwealth [2006] HCA 40, the Court recognized foreign judgements, foreign evidence or extradition laws would be supported under this aspect of the external affairs power.Anti-sedition (revolution against government) - R?v Sharkey (1949) the creation of the offence of `sedition', which prohibited the excitement of disaffectation against the governments of the UK or any of the King's Dominions, was a valid exercise of the EA power.urging another person to overthrow by force or violence: ? the Constitution; ? the Government of the Commonwealth, a state or a territory; or ? the lawful authority of the government of the Commonwealth urging another person to interfere by force or violence with lawful processes for an election of members of a House of Parliament; urging a group … … to use force or violence against another group … where that use of force or violence would threaten the peace, order and good government of the Commonwealth;urging another person to engage in conduct intended to assist, by any means whatever, an organisation or country that is at war with the Commonwealth (whether declared or undeclared);urging another person to engage in conduct intended to assist, by any means whatever, an organisation or country that is engaged in armed hostilities with the Australian Defence Force. Anti-terrorism – Would probably also been encompassed within the ambit of the power as seen in Thomas v Mowbray [2007] HCA 33. This includes acts done within Australia or beyond its territory and against any member of the United Nations.Matters of International Concern or Customary Law (next page)Matters of International Concern or Customary Law (refer also next page – treaties)The external affairs power also provides the Commonwealth which the power to legislate on ‘matters of international concern’ or to ‘give full effect to rules of customary international law’ Customary Laws - customary laws are accepted by many nations as legally binding and therefore they become ‘customary’In XYZ v Commonwealth – Callinan and Heydon JJ – Suggested that there would be great complexity in the Commonwealth determining whether a matter is of ‘international concern’ and how to determine the level of scope for such a concern.Kirby J gave a lengthly discussion on the topic – but concluded it was ‘still undeveloped’ and would be ‘revisited’.Full Power to Legislate – Without further authority, it infers that the even if there is no treaty in place, and the matter is not extraterritorial – nor affecting relations with another nation – the Commonwealth may still be able to regulate a topic or issue if it is deemed to be ‘of international concern’.REFER TO Incorporate all International Treaties into Domestic Law? (page after next) – **** Koowarta v Bjelke-Petersen******** Tasmanian Dams Case ****3. What is the effect of international treaties on Australian law? When Aust becomes a party to a treaty , Australia is bound in international law to obey the terms of that treaty and is accountable to other nations.But a treaty is not enforceable in Australian domestic law unless it is specifically incorporated into law by an Act of Parliament.Why enter treaties?The Commonwealth Executive has inherent prerogative power (arguably under s 61 CC) to enter into a treaty.Ratification has a number of consequences. Bound to International Law - It signals that Australia is bound in international law to follow that treaty's provisions. Thus, the Commonwealth government alone is responsible for any violation of a treaty, even breach arises from the actions of a State government –(Toonen v Australia 1994).Ratification may render administrative decision-makers liable to take those treaty provisions into account when making decisions - Teoh (1995)It gives the Commonwealth Parl’t power to legislate to implement that treaty.What are the limits of incorporation of treaties into domestic law?Treaty must be bona fideThe need for a treaty ‘obligation’The specificity principleThe conformity principleUnincorporated Treaties In Australia, unincorporated treaties have procedural effects in Australian Law but theyCannot alter substantive rights and duties until they are implemented into domestic Australian law - per Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 In Re Minister for Immigration and Ethnic Affairs v Lam (2003) 214 CLR 1 – the HCA has suggested Teoh is vulnerable should it appear before the HCA again.Teoh does not confer substantive (determinative) effect on the provisions of unincorporated treatiesAn unincorporated treaty may still have some impact on Australian domestic law. It can have an effect on a judge's interpretation; eg, it is a common law rule that act should interpret statutes in a way that conforms to Australia's international law obligations.Australia's international law obligations have also been used to apply or mould the common law eg Mabo v Queensland (No?2) (1992)Incorporate all International Treaties into Domestic Law?S51(xxix) provides the Commonwealth with the power to incorporate all its international treaty obligations into domestic law (including recommendations)Re Burgess; ex Parte Henry (1936) 55 CLR 608The Commonwealth has the constitutional power to incorporate the Convention for the Regulation of Aerial Navigation dealing with an international topic.Implementing RECOMMENDATIONS - ‘It is not to be assumed that the legislative power over `external affairs' is limited to the execution of treaties or conventions; and?… the Parliament may well be deemed competent to legislate for the carrying out of `recommendations' as well as the `draft international conventions' resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations.’Not confined to ‘External Aspects’The external affairs power is not confined to ‘external’ aspects of the other heads of power enumerated in s51, nor is it limited to topics of ‘international concern’ or having ‘international character’.Any Topic – Any topic that the Commonwealth has entered into via a treaty becomes an ‘external affair’ regardless if it would otherwise be a topic on which the Commonwealth would lack power.Example – The Commonwealth can make laws with respect to air navigation or environmental conservation or employment conditions.Key Cases – MATTER OF INTERNATIONAL CONCERNKoowarta v Bjelke-Petersen (1982) 153 CLR 168Decision:Act Not Valid under ‘Races’ Power s51(xxvi) - The Racial Discrimination Act 1975 was not valid under the ‘Races’ power; s 51 (xxvi), since the Act applied to all races, and not to one particular race (per Gibbs CJ, Stephen, Aickin, Wilson & Brennan JJ; Mason J not deciding)Act Valid under s51(xxix) - The Act was however valid under s 51 (xxix), as implementing a treaty [that dealt with a topic of international concern] (per Stephen)] is a valid exercise of the 'external affairs' power (Mason, Murphy & Brennan JJ)Any Treaty Obligation - Commonwealth had power to implement any treaty obligation, regardless of its subject matter, under s?51(xxix)Subject Matter must be External - Commonwealth could only implement a treaty under s?51(xxix) when its subject matter was itself an `external affair', - it concerned ET matters or relations with other nations. This Act did not concern such matters.International Concern - Commonwealth under s?51(xxix) could implement a treaty when it related to a matter of `international concern‘. The various UN and international actions regarding racial discrimination showed the topic as such a subject monwealth vs Tasmania (Tasmanian Dams case) (1983) 158 CLR 1Decision: A clear majority of Mason, Murphy, Deane and Brennan?JJ confirmed that s?51(xxix) granted the Commonwealth the legislative power to incorporate all of its treaty obligations into Australian law. The Commonwealth was authorised to enact a law to implement the UNESCO Convention for the Protection of the World Cultural and Natural Heritage 1972 to stop the construction of a dam by the Tasmanian govt in a protected area.The thin majority in Tasmanian Dams in favour of the broad interpretation of the scope of s?51(xxix) in Koowarta was converted into unanimous acceptance in Richardson v Forestry Commission (1988) 164 CLR 261.Broad Interpretation – Richardson v Forestry Commission (1988) 164 CLR 261 The thin majority in Tasmanian Dams was in favour the broad interpretation of the scope of s51(xxix) – and this was unanimously accepted in Richardson v Forestry Commission (1988) 164 CLR 261.In this case, HCA found that external affairs powers will uphold laws which are structured to remove Australia’s ‘reasonably apprehended’ obligations under a treaty.Key – Commonwealth is able to legislate on matters which are ‘reasonably incidental’ to treaty obligations.Victoria v Commonwealth (ILO case) (1996) 187 CLR 416The Majority view from the Tasmanian Dams case was upheld in relation to a Commonwealth industrial relations law which was implemented on the basis of an International Labour Organization standard.What limitations apply to the use of External Affairs Power?The Commonwealth is permitted to implement all of its treaty obligations, whatever their topic or subject matter. There are some exceptions:Express and Implied Limitations - S51(xxix) is subject to all related express and implied constitutional guarantees and limitations.Good Faith – The Commonwealth is bound to only implement treaties that have been entered into in ‘good faith’ and as such, they are bona fide and not implemented in order to gain a legislative power over an area that the Commonwealth would otherwise not have power.Affirmed in Tasmanian DamsSpecific Principle – In the Victoria v Commonwealth (ILO Case) the HCA inferred that ‘obligations’ in a treaty must adhere to the ‘specificity principle’ – that is, Is the treaty reasonable specific as to what the treaty parties are required to do in order to meet the treaty standards?If the treaty is relied upon to enact the external affairs power – any laws enacted must conform to the treaty being enacted.‘When a treaty is relied on under s?51(xxix) to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. The law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states.’Must Conform -Must Conform - The Commonwealths implementing legislation must confirm to the requirements of the treaty. i.e. the Commonwealth cannot pass a law which relates to anything at all under this external affairs power – only that which conforms a treaty being passed.Cannot Undermine – The legislation cannot undermine the core purpose of the treaty as then it will not be considered to be conforming with the treaty and will consequently be invalid. Partial Implementation – Partial implementation of a treaty may be permitted but it will not be if there is a sufficiency deficiency which takes the legislation outside the scope of the relevant treaty.In Victoria v Commonwealth (ILO) the conformity aspect was specified as‘it is for the legislature to choose the means by which it carries into, or gives effect to the treaty, provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’Defense PowerDefinition – The Defence Power – s51(vi) - even in times of peace, enables the Commonwealth to Maintain Defence Preparedness; andDeal with matters ‘such as the enlistment (compulsory or voluntary) and training and equipment of men and woman in navy, armgy and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications’Per Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1What is the extent of the power?Original Scope - Communist Party Case The HCA originally adopted a narrow view of the defence power as the national defence against an external aggression from other nations.External Aggressors – The HCA classified as an ‘extra-Australia nation’ which are at war or which have the possibility to be at war with Australia.Extended Scope - Thomas v Mowbray [2007] HCA 33The scope of the defence power has now been extended to not only include the threat of an external aggressor, but also against the threat of terrorism. S119 – read with s51(vi) - provides that the Commonwealth can protect a State against ‘domestic violence’ on the ‘application of the State’.Terrorism – The HCA noted that as evidenced by the September 11 attacks in New York – a terrorist organisation is capable of causing serious destruction on a level similar to that of military action.Applied a Test of Proportionality – In order to determine whether there is a sufficient connection between a law and s51(vi) – the Majority affirmed a test of proportionality [at 19] – must consider:Must consider the two limbs (refer below)The test is designed to safeguard against the abuse of legislative power by ensuring that the law is ‘appropriate and reasonably adapted to its end’ Is there a conflict with State Immunity?Refer State Immunities section – it is interferes with an essential function of the State – there is a serious capacity to stop the provision of State services.Is this valid ? Melbourne Coporation DoctrineAn elastic power?Dependent on the Facts - The defence power has been termed an ‘elastic power which waxes and wanes and ebbs and flows’ by Dixon J in Stenhouse v Colemen (1944) 64 CLR 457 – since its application is highly dependent on the perceived necessity for its enforcement and defence of the Commonwealth. Based on per Thomas v Mowbray [2007] HCA 33Strategic and international political assessmentsProbability of external aggressionProbability of internal aggressionExtreme Hostilities – The HCA indicated Farey v Burvett (1916) 21 CLR 433 that during extreme hostilities it will defer judgement to the Parliament [at 488-49]Defence Power in PeacetimeThe power has two limbs per the Communist Case – Primary Limb – This limb can be exercised by Parliament in times of war and of peace.Secondary Limb – This limb can only be exercised when Australia is involved in war.Immense Field – Exercise Secondary Limb - Exercise over the second limb would provide the Commonwealth with extreme power and ‘authority over an immense field’ Exercise Primary Limb - The primary limb which ‘cannot exist in the same form [as the secondary limb] in times of otensible peace’ per Fullagar J Primary Limb – The primary limb which is exercisable in peacetime – per R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 – allows the establishment and enforcement of a code of military law.This infers that it the defense power can be exercised toA statutory compulsion to render military service – Krygger v Williams (1912) 15 CLR 366Legislative Control of Commodities in order to facilitate Australian Military needs – Logan Downs Pty Ltd v Cmr of Taxation (1965) 112 CLR 177 Maintenance of discipline in armed forces – Re Tyler; Ex parte Foley (1994) 181 CLR 18Secondary Limb (next page)Secondary Limb Apprehension of War - The secondary limb can only be enacted as the risk or probability of an ‘immediate apprehension of war’ becomes evident Per Communist CasePer Marcus Clark & Co Ltd v Commonwealth 87 CLR 177Infinite Range of Matters – The exercise of the secondary limb allows Parliament to have unprecedented control of matters which are incidental to war per the Communist Case.General Legislative Power – During a war, the Defence Power is basically a ‘general legislative power’ per the Communist Case at 485 per Dixon J.This includes Parliament control of:Price of All Goods and Services sold in Australia – Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 335Manpower Controls – the ability to control employment of labour in Australia generally per Reid v Sinderberry (1944) 68 CLR 504.State Taxation – All staff, facilities and records of the States for collections of income Taxes per South Australia v Commonwealth (Uniform Tax Case 1) (1942) 65 CLR 373Power is not ‘unlimited’Thomas v Mowbray – S119 – read with s51(vi) - provides that the Commonwealth can protect a State against ‘domestic violence’ on the ‘application of the State’.The power is not unlimited – to permit s51(vi) to extend to the protection of all persons and all property would sit uncomfortably with s119.Per R v Foster; Ex parte Rural Bank of NSW (1949) 79 CLR 43Regulation of womens employment, rationing of petrol and control of residential accommodation – is no longer exercisable under the defence power.Separation of Powers Pure Doctrine of Separation of Powers The 3 functions of Government must be clearly and institutionally separated – none should pass into the realm of another function of Government according to the pure doctrine.These three arms of Government are:The LegislatureThe Legislature should be responsible to legislate.Efficient and responsible government demands some delegation of legislative power to the executive.The ExecutiveThe Executive should administer and create laws.Parliament cannot abdicate (divest itself of) legislative power, and therefore cannot delegate ALL its law making power on a topicThe JudiciaryThe judiciary should rule on and adjudicate on the law.This limits the other branches applying adverse political pressure on the judiciary and ensure that it resolves litigation and disputes in an impartial manner.Legislative & Executive Totally Separate?In Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 280 the HCA found an Act which allowed regulations to be made by the Government were a valid delegation of legislative power.The Judicial Power of the CommonwealthChapter III of the Commonwealth Constitution requires the separation of federal judicial power from the exercise of federal legislative or executive power.Requirements:Parliament must be able to disallow lawsThe power to generate by-laws must be reasonably specific and it cannot be too vague or generalParliament cannot delegate all power to a subordinate body – thereby ‘abdicating’ its responsibilities to make appropriate laws.Purpose:This guarantees impartiality and ensures that public confidence is satisfied in the federal judicial system.Federal judicial power can only be exercise by the respective authorised Courts referred to as Chapter III Courts.Federal Courts are able to exercise non-judicial power, subject to any relevant notable exceptions.Definition of Judicial PowerThe definition of judicial power is that the judiciary has the power to conclusively decide controversies over existing laws, the High Court has resisted delivering a precise or definitive explanation:the power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. Griffith?CJ in Huddart Parker and Co v Moorehead (1909) 8 CLR 330Some examples of judicial functions are the powers of a deciding body to interpret the law, to hear and determine complaints, to grant injunctions and declarations, to find guilt, to penalise offenders, to order compliance with determinations, to detain punitively, and to punish for contempt of court. Determining whether Judicial or ExecutiveWhether a decision is encompassed within the ambit of the executive or the judicial depends on the wideness of the discretion. The wider the discretion conferred upon the decision maker, the more likely the functions are administrative and policy based, rather than judicial in nature;Wideness of Discretion – Executive Power - The wider the discretion – the more likely it is to be a executive power.Judicial Power - The more directive a discretion is – the more likely it is to be a judicial power.R v Trade Practices Tribunal; ex parte Tasmanian Breweries P/L (1970) 123 CLR 361.Final and Binding – Executive Power - Administrative tribunals may come to findings of fact and law, but may not be considered final and conclusive as a hearing de novo is usually available; Rola Company (Australia) P/L v Commonwealth (1944) 69 CLR 185, and Luton v Lessels (2002) 210 CLR 333. Enforcement of administrative decisions may occur by pursuing enforcement proceedings in a court.Judicial Power - Where the decision is about existing rights and is final and binding (even if subject to appeal) it is more likely to be treated as judicial in nature.Judicial findings are binding and enforceable on the parties while decisions of non-judicial bodies may not be strictly enforceable (even if the parties may treat them as such). Key Case - Brandy v Human Rights and Equal Opportunity Commission (HREOC) (1995) 183 CLR 245 Facts: Amendments to the Racial Discrimination Act 1975 (Commonwealth) in 1992 authorised the HREOC to register its decisions with the Federal Court.Held: The HREOC determinations had many characteristics of judicial power, but prior to 1992, they were unenforceable and thus ‘non-judicial’.By providing a method for making decisions enforceable by the Fed Court, they took on a judicial character. The amendments were invalid for breach of separation of power principles. ‘The enforceability of decisions given in the exercise of judicial power is unequivocally judicial’ - Deane, Dawson, Gaudron and McHugh?JJ at?268Creation of New Rights Executive Power – The creation of new rights and duties is a characteristic of non-judicial decisions.New rights were created in Waterside Woerkers Federation v JW Alexender (1918) 25 CLR 434 so this was an executive power.Judicial Power – Judicial decisions comment, and base their reasoning on, existing rights and obligations demonstrated from past conduct.The Boilermaker PrinciplesDoctrine of Separation of Federal judicial power has two complementary principles – The Commonwealth Parliament may confer federal judicial power only the Courts described in s71 of ConstitutionThe Courts include:High Court (it is referred to as the Supreme Court)Original Jurisdiction – s75 – five matters which can go straight to the High CourtS75(5) – Order against an officer of the Commonwealth – can go directly to the High Court. Court of Appeal for State and Federal Matters – s71Federal Magistrate CourtFederal CourtFederal Family CourtKey Case - NSW v Commonwealth (The Wheat Case) (1915) 20 CLR 54 – (subsequently upheld in Waterside Workers Federation v JW Alexander (1918) 25 CLR 434.)Held: the Commonwealth could confer judicial power only on the courts listed in Ch?III. s?71 states ‘the judicial power of the Commonwealth shall be vested in … the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.’As the Interstate Commission was not one of the three types of court listed, it could not exercise federal judicial power. Waterside Workers Federation v JW Alexander (1918) 25 CLR 434Held: Commonwealth Court of Conciliation and Arbitration was held to not be a Chapter?III court because its President did not have life tenure, as per [then] s 72. Consequently, the Court's judicial powers of enforcing awards were invalidly conferred.Introduction of Tenure: All Judges, including High Court justices, now sit until seventy years of age when they must retire.The Commonwealth Parliament may not confer non-judicial power on those Chapter III courts.Only Commonwealth Courts have the power to enforce federal judicial power Commonwealth Court cannot mix it with judicial power. To preserve the absolute independence of commonwealth Courts – they must remain independent.Key Case – R v Kirby; Ex parte Boilermakers Society of Australia (the Boilermakers case) (1956) 94 CLR 254Facts: Members of the Court of Conciliation & Arbitration reconstituted after the Waterside Workers Federation v JW Alexander case to ensure that all members had life tenure. The Statute still conferred a mixture of judicial and non-judicial powers to the Court.Decision: Invalid power. Vesting judicial power in the a body vested with non-judicial powers is unconstitutional. The Court of Arbitration was an ‘arbitral tribunal’ and therefore non-judicial – its judicial powers were therefore conferred invalidly. State CourtsThe Commonwealth can vest State Courts with federal jurisdiction under s77 of the Constitution.HOWEVER, States are not permitted to vest state judicial power in Federal Courts per Re Wakin; Ex Parte McNally (1999) 198 CLR 511Exceptions to the Second Limb (next page)Exceptions to the Second LimbIncidental Powers – Federal Courts may exercise non-judicial power which are incidental to the effective exercise of their judicial function.Distributive and Allied Employees Association (1976) 135 CLR 195**Persona Designata Exception**Rule - Federal Judges cannot carry out non-judicial functions however they can carry out non-judicial functions in their personal, not official, promise of integrity and independence - the conferral may be incompatible with the holding of federal judicial office, and be found unconstitutional for breach of Boilermakers’ principles. Hilton v Well (1985) 157 CLR 57Facts: A Federal Court judge issued warrants from interception of telephone communications and it was appealed against for its validity.Decision: Power to issue warrants was valid for three reasons:When a non-judicial power is granted to a judge, it is more likely to be conferred on them in a personal capacityThe act states that the power to issue warrants is conferred ona judge of the Federal Court not the neither CourtThe issuing of the warrant is not enforced under the Federal Court Act.Limitations on Persona Designata Key Case - Grollo v Playmer (1995) 184 CLR 348Facts: Issuing of warrants by Judges under the Telecommunications (Interception) Act 1979 CommonwealthDecision: – The issuing of interception warrants by federal judges in their personal capacity was not invalid for incompatibility with their judicial functions.“It is an eligible Judge's function of deciding independently of the applicant agency [such as the police] whether an interception warrant should issue that separates the eligible Judge from the executive function of law enforcement” at 3672 limitations upon persona designateThe judge must consent to the conferral of non-judicial functionThe function cannot be incompatible with the judicial function2 Key Limitations from Grollo v PlaymerPrior Consent – clearest way for it to be shown a function is conferred on a judge in their personal capacity was to require that judges prior consentIncompatibility – Legislation must confer a function compatible with the proper performance of a judges judicial function and cannot be incompatible.Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (the Hindmarsh Island case) (1996) 189 CLR 1 – Majority envisaged three possible scenarios in which the conferral of a judicial power could be incompatible.**Strict 3 Tier Test**Establish whether the non-judicial function is closely connected with the functions of the legislature or the executive.If no, there is no incompatibility.If yes – then two more questions arise:If the function must be performed in a manner dependent upon the advice of the executive or the legislature – it is incompatible.If performed independently – determine whether the function involves the exercise of discretion on political grounds or whether a judicial manner of performance is required.If political discretion IS required – function is incompatible.Chapter III Individual RightsOne of the most important rationales for the Doctrine of Separation of Judicial Power is fair and proper administration of justice and ensuring that the executive and the legislature are abiding by the constitution.The incompatibility concept lead to an argument that Chapter III Rights could lead to a source of individual rights such as the right to legal equality.Legislative Usurpation ?Interfere with judicial process – If the legislature attempts to interfere with the judicial process – this is a breach of the separation of powers doctrine.Bill of Attainder – Is a law directed at punishing an individual without the usual judicial safeguards and is treated as a legislative pronouncement of guilt and is unconstitutional as it is in the exclusive jurisdiction of the judiciary.Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1Passing Legislation with retrospective intent – If Parliament attempts to determine the outcome of an individual case by passing legislation with retrospective effect – this is definitively within the realm of legislative ursurpation.Per Liyanage v The Queen [1967] 1 AC 259Power to Detain?Punitive Intent - If the legislature confers the executive with the power to detain people for the punitive (corrective) purposes – this is a judicial power not available to the executive and is unconstitutional.Non-Punitive – Some non-punitive forms of detention by the executive have been held not to contravene separation principles. Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1Does Chapter III Confer Legal Equality?No - In Leeth v Commonwealth (1992) 174 CLR 455 the High Court did not uphold an implied right of equality being source through Chapter III.The HCA did suggest there may be rights of procedural equality – it is not possible to confer substantive rights of equality or protection from discriminatory – are provided by the constitution. Fair Trial Implied?No – in Dietrich v R (1992) 177 CLR 292 the HCA ultimately rejected a constitutional right to a ‘fair trial’ or ‘due process’ even though some Justices considered it (Deane J at 326).In Dietrich v R – the HCA stated that any miscarriage of justice is derived at common law – not from a constitutional guarantee.Separation of Judicial Power in States State ConstitutionsNo Separation of Power - State Constitutions are highly elastic and are open to amendment – this is primarily due to the fact that they do not contain the strict doctrine of separation of power.Per Building Construction Employees and Builders Labourers Federation of NSW v. Minister for Industrial Relations (1986) 7 NSWLR 372Victorian Constitution in City of Collingwood v State of Victoria (No 2) [1994] 1 VR 652Plenary Power – After the Union Steamship case, State parliament were ruled to have plenary power – that is, a complete power of a governing body.Limits - Certain limits on State legislative powers are imposed by the Commonwealth Constitution through s52, 90 and 119.Do the Boilermaker Principles Apply to States?The Constitution makes no definitive mention of judicial power of states or territories – thus an assumption was made that: The Constitution enforced no limits on state or territorial powers such that judicial power can be vested in non-judicial bodies. State Courts can be vested with judicial and non-judicial powers.Key Case – Kable v DPP (NSW) (1996) 189 CLR 151Facts: NSW Parliament passed the Community Protection Act 1994. S3 of the Act applied orders for detention to a specific person ‘Gregory Wayne Kable’S5 provided that NSW Supreme Court could make orders to detain Kable if:that he was more likely than not to commit a serious act of violencethat it was appropriate to detain him in order to protect a person or the community generally.Decision:Kalbe based argument on three things:Separation of Powers principle –Decision: No Separation of Powers applied in the NSW ConstitutionRight to liberty and continuing detention without proof -Decision: Court agreed it was a breach of human rights but NSW Parliament had the power to do this.***Breach of Chapter III of the Constitution*** -Decision: Court agreed that it was a breach of Chapter III as it was essential for public confidence to maintained in all Courts capable of being vested with Federal Jurisdictional power – particular State Supreme Courts.Extension of Incompatibility Doctrine in Wilson v Minister for Aboriginal Affairs caseOutcomes from Kable CaseChapter II restricts the functions that state Parliaments can confer upon State Courts that are vested with Federal JurisdictionMcHugh J Commented on the Kable case in Fardon v Attorney-General Qld (2004) 223 CLR 575Another is the circumstance dealt with in Kable: legislation that purports to confer jurisdiction on State courts but compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction invested under Ch?III impartially and competently. Subject to that proviso, when the Federal Parliament invests State courts with federal jurisdiction, it must take them as it finds themIf the Parliament:Deprives Judicial Character - Judicial Appointments that deprive a court of judicial character, this precludes federal jurisdictionPer Forge v Australian Securities and Investments Comission [2006] HCA 44Mixes Judicial Character – If Parliament provides a Court with functions that are mixed with those of the executive, it would be incompatible with federal jurisdictional functions. Degrades Judicial Appearance – If functions are conferred on a State federal court that if carried out would ‘degrade’ or ‘undermine’ the public perception of independent and impartial judicial independence – this may affect the principle.Per Re Criminal proceeds Confiscation Act 2002 [2003] WCA 249 Per Nicholas v R (1998) 193 CLR 173Future Cases & KableBarker v R (2004) 223 CLR 513 caseFacts: S13A Sentencing Act 1989 (NSW) governed the conditions upon which prisoners who had been given ‘life’ sentences could apply for parole. Under ss 13A(2), such prisoners could apply to SC for the determination of a minimum sentence. After that minimum sentence had been served, they would be able to apply for release on parole.Certain life prisoners (including Baker) were prevented from seek minimum term for his life sentence except under “special” circumstances.Decision: HCA rejected the challenge as Barker was not the sole target of the legislation. Additionally, the exercise of judicial power had not in any way been reduced by the provision.If the provisions had been in a Commonwealth law, they would not have been invalid for offence to Chapter III – therefore there is no invalidity at a State level and no Kable incompatibility. Fardon v Attorney-General (Qld) (2004) 223 CLR 575Facts: Fardon concerned the constitutional validity of s. 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). S 13(2) the court could make an order for indefinite term detention if satisfied that the person would constitute a serious danger to the community, such that they were “an unacceptable risk that the prisoner [would] re commit a serious sexual offence”Fardon, a serious sexual offender in Qld was subject to Act enabling his continued detention passed, but not referring to him by name.Decision: HC upheld the Act, and the provisions re indefinite detention in s13.States not under the same constraints – The HCA stated that a state Supreme Court is not under the same onerous constraints as federal courts and that a federal provision which may infringe Chapter III may not be invalid at a State level.The Act was not directed at a particular person – the Act was directed at all persons who are serving a period of imprisonment for “a serious sexual offence” – this was outside of scope of Kable since no person was singled out.The Act was not designed to punish the prisoner – The Act was designed to protect the community against certain classes of convicted sexual offenders who have not been rehabilitated during their period of imprisonment. This is arguable – ‘indefinite detention’ – discussed in Kirby J’s dissent:‘it is unthinkable that Kable was a stand-alone decision, concerned to state a constitutional principle limited to only one case and never to be repeated. It is sufficient to attract the Kable rule that the impugned law should apply to a small number of identifiable persons, singled out for special treatment. It could not be denied that the Act in issue in this appeal is concerned with a small, limited and defined class, identified with relative ease. To that extent, it invites Kable scrutiny …’Judicial Power Only - The determination of the section was an exercise in judicial power not in any other.The question asked to the Court was - is the Court is satisfied that "there is an unacceptable risk that the prisoner will commit a serious sexual offence" if the prisoner is released from custody?Other CasesHC recently avoided applying Kable in Gypsy Jokers and in K-Generation.Charter of Rights Some states are ensuring that they preserve the doctrine of separation of powers through parliamentary action. Victorian Charter of Human Rights and Responsibilities Act 2006 – The purpose of this act is protect some aspects of judicial independence and the public perception of judicial integrity through its articulation and protection (albeit limited) of certain human rightsStatements of Compatibility – The enactment of the Charter of Humans Rights 2006 (Vic) now means that each new Bill introduced to Parliament must have a Statement of Compatibility which definitively states whether the Bill is compliant with the Charter.Must take into Account – The executive must take into Account the Charter in all new laws and policies being considered under s38.Other Australian States are now considering similar Charters.Separation of Judicial Power in TerritoriesTerritory governments were understood as not being limited by Chapter III principles.The Commonwealth has plenary power conferred in s 122, and thus is not ‘subject to this Constitution’ as other Commonwealth powers are. The relationship between Chapter III and s 122 was disjointed, and initially thought to deny any application of Chapter III federal jurisdictional concepts to the self governing territories;Per – R v Bernasconi (1915) 19 CLR 629Attorney–General (Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529Spratt v Hermes (1965) 114 CLR 226. The powers and status of Territory courts are not established by s 71 and s 72 of the Constitution, consequently Territorial judges are not required to hold tenure until 70 years of age, see Ex Parte Eastman (1999) 200 CLR 322. Inconsistency – s109What is s109?Definition – When a law of the Commonwealth and the States conflicts, the Commonwealth law takes precedence. S109 States‘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 inconsistency, be invalid’How to interpret s109?What is a law for the purposes of s109?A law refers to Acts of Parliament, Statute and Regulations. It does not include industrial awards or agreements unless they are expressly provided for within Commonwealth Statute (i.e. Industrial Relations Act 1988 (Cth))Ex Parte McLean (193) 43 CLR 472Are valid laws in operation in both Jurisdictions?Ultra Vires – If either the Commonwealth or the State law is found to be operating in excess of its powers – ultra vires – there is no need for a test of inconsistency as one is invalid.Carter v Egg and Egg Pulp Marketing Board (Vic) 1943 66 CLR 557Has Commonwealth Statute Expressly Provided for Precedence?If Commonwealth Statute has expressly provided for precedence of Commonwealth Statute through the inclusion of a clause such as ‘an award or workplace agreement until this Act prevails over any law of a State or Territory ... to the extent of any inconsistency’ Then the State law is invalid (i.e. go back to b. Above)Per Wenn v Attorney-General (Vic) (1948) 77 CLR 84Per Western Australia v Commonwealth (Native Title) (1995) 183 CLR 373What is the effect of s109?S109 invalidates State laws only to the extent, and only for the period, that an inconsistency remains – per Commonwealth v Western Australia (1999) 196 CLR 392.If consistency is permanent – the State act becomes ‘inoperable’ per Wenn v Attorney-General (Vic) 77 CLR 84‘Restoration’ – If not permanent, or an Commonwealth Act is repealed, then the conflicting State legislation will be ‘restored’ per Western Australia v Commonwealth (Native Title).What are the tests for Inconsistency? There are three core tests for inconsistency – Simultaneous Obedience Test – A direct test – The inconsistency should be identifiable from an examination of the conflicting sections.‘Simultaneous’ – It is possible to obey both laws – but one law attempts to direct what the other forbids – inconsistency is clear.R v Licensing Court of Brisbane; Ex Parte Daniell (1920) 28 CLR 23Held: ‘There arises upon that construction a conflict, or inconsistency, between the State Act authorizing and commanding the vote on that day and the Commonwealth Act, assumedly competently made, forbidding the vote on that day.’ (at 24)S109 operates to invalidate the State law.McBain v Victoria (2000) 99 FCR 116Held: Infertility Treatment Act (Vic) required discrimination of fertility treatments on the basis of marriage. Sex Dscrimination Act (Cth) prohibited discrimination on the basis of marriage.S109 stepped in to State law. The Conferral of Rights Test – A direct test – The inconsistency should be identifiable from an examination of the conflicting sections.‘Conferral of Rights’ – A state law is invalid if it alters, impairs or detracts from the operation of a Commonwealth law per Victoria v Commonwealth (1937) 58 CLR 618Clyde Engineering v Cowburn (1926) 37 CLR 466Held: Simultaneous Obedience was possible as it was possible to work both a 48hour week (Cth requirement) and a 44 hour week (NSW requirement) but have pay docked if work 44 hours.At 478‘Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties, they also confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even if the right be one which might be waived or abandoned without disobeying the statute which conferred it’The Cover the Field Test - ‘Cover the Field’ – If a competent legislature expressly or impliedly envinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field per Clyde Engineering v Cowburn (1926) 37 CLR 466Issac J’s 3 Stage Test from CowburnTest:Identify or characterise the ‘field’ or ‘topic’ the Commonwealth law deals with Inquire if the State law attempts to regulate a section the Commonwealth coversIf the two laws coincide, it must be ascertained whether the Commonwealths intention was to ‘cover the field’.If no intention is found - no inconsistency.If intention is found between Commonwealth and State laws to cover the same field – ‘When a Federal Statue discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter’How is the field determined?There is no direct authorities on how to determine a ‘field’ – rather the discussion seems to relate to the associated subject matter and considerations of interrelatedness Ansett Transport Industries v Wardley (1980) 142 237.This infers a subjective approach – and narrow or broad interpretations are possible.Do State laws ‘encroach’ on Commonwealths ‘field’?‘Same subject matter’ – If the State law is on different ‘subject matter’ then the State law is less like to offend or ‘encroach’ on the Commonwealths. It depends on the broad or narrow interpretation of the ‘field’.Per Ansett Transport Industries v Wardley (1980) 142 237Intention if no subject matter - If the ‘subject matter’ of the field is not reviewed – the HCA goes to the ‘intention’ of the Act.How to interpretation the ‘intention’ to ‘cover the field’? (next page)How to interpret the ‘intention’ to ‘cover the field’? (next page)If the Commonwealth does not intend to ‘cover the field’ on a subject matter – there is no indirect inconsistency regardless of whether the Commonwealth and State ‘fields’ overlap.Express Intention –Exclude - A Commonwealth Law may expressly exclude a State law (as per 2. above) and therefore there is no plement – A Commonwealth Law may expressly complement a State Law and therefore both operate.R v Credit Tribunal; Ex Parte GMAC Pty Ltd (1977) 137 CLR 54Implied Intention –Implied Intention - Then the HCA has suggested that must look to:Detail of the legislative actExamine the terms and regulations of the Act to determine an intention of which field being covered.O’Suvllivan v Noarlunga Meats (1954) 92 CLR 965Subject matter of the legislationWhere the Commonwealth intends to displace State laws on certain subject matter.i.e. Workchocies CaseOperational InconsistencyExclusivity derived from an exercise of power – If a Commonwealth law does not exclusively operate in a ‘field’, but on exercise of the power it does – then s109 will ‘invalidate a State law’Commonwealth v Western Australia (1999) 196 CLR 392‘S109 operates to render a State law inoperative only to the extent of its inconsistency with a law of the Commonwealth and only for so long as the inconsistency remains.’ Thus, s109 will invalidate a State law for as long as there is conflict – when conflict stops, so does s109.Limits on Commonwealths Powers: Intergovernmental ImmunitiesCommonwealth and the StatesRegulation of Relationships - The constitution regulates relationships between regional governments and the core central government and the manner in which two federal constituents regulate each other.Conflict resolved in Commonwealths favour – s109 - If there are Commonwealth and State laws operating in the same field – s109 provides authority to the Commonwealth over and above the States.Key Issue - The key question becomes – ‘what are the rules when legislation of one federal constituent purports to bind an executive body of another government?There must be implied intergovernmental immunity in order to avoid relevant conflict.Early Solution – Both Governments were immune from each other’s legislation.D’Emden v Pedder (1904) 1 CLR 91 –Facts: Tasmanian Stamp Act made certain salary receipts subject to stamp duties. A state government officer of Tasmania was charged with failing to collect the stamp duty from a Commonwealth officer.Decision: HCA found Commonwealth officer could not be obliged to pay tax on his salary. Key – The Commonwealth and related officers are impliedly immune from State Legislation.Baxter v Commissioners of Taxation – ‘The purpose of the Constitution was the creation of a new state, the Commonwealth, intended to take its place amongst the free nations, with all such attributes of sovereignty consistent with its being still ‘under the crown’. It is essential to the attribution of sovereignty to any government that it shall not be interfered with by any external power. The only interference, there, to be permitted is that prescribed by the Constitution itself. A similar consequences follows with respect to the constituent states ... it follows that a grant of sovereign powers includes a grant of a right to disregard and treat as inoperative any attempt by any other authority to control their exercise’.***State Immunity from Commonwealth Laws***Doctrine Rejected – The doctrine of implied intergovernmental immunity was rejected by the HCA in The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers case) (1920) 28 CLR 129. Facts: Industrial proceedings issued by a trade union, the Engineers, in the Commonwealth Arbitration Court against 843 employers, including three W A govt employers.Decision: The State Government employers would have been immune from the jurisdiction of the Court established under the federal Act. The Court rejected the concept of intergovernmental immunity stating‘we therefore hold that the States, and persons natural and artificial representing States, when parties to industrial disputes in fact, are subject to Commonwealth legislation under s51(xxxv) of the Constitution, if such legislation on its true construction applies to them’Not Implied - Limitations on the scope of those heads of power would not be implied unless such implication followed necessarily or logically from the text. Power to Bind – Since the Engineers case, the Commonwealth Parliament has the power to regulate or ‘bind’ state government instrumentalities – with exceptions apply.Extent of the Power?Cannot bind states where no head of power – The Commonwealth is unable to bind States in areas where it has no head of power. Cannot be contrary to express or implied prohibitions – The Commonwealth is unable to exercise its power in a manner which would otherwise conflict with the express or implied prohibitions of Commonwealth Power Commonwealth cannot prevent a State from existing or functioning – Two specific limits derived from Melbourne Corporation v Commonwealth (the State Banking case) (1947) 74 CLR 31Cannot discriminate - The Commonwealth cannot adversely discriminate against any of the states.Cannot Affect Function – The Commonwealth cannot pass laws of ‘general application’ that fundamentally impede the States from carrying out their essential governmental functions.****Key Case – ****Melbourne Corporation v Commonwealth (the State Banking case) (1947) 74 CLR 31Decision: HCA ruled the provision invalid.Majority stated that the law was invalid under the banking power s51(xiii)‘Any action on the part of the Commonwealth, in purported exercise of its constitutional powers, which would prevent a State from continuing to exist and function is necessarily invalid because it is inconsistent with the express provisions of the Constitution’S48 breached the ‘discriminatory’ laws as it singled out States for a special disadvantage by restricting their banking activities.Limb 1 - How is State Discrimination Recognised?The Commonwealth has two specific limits on anti-discrimination: Cannot discriminate against all states in comparison to all other entitiesCannot discriminate against one state in comparison to all other statesQueensland Electricity Commission v. Commonwealth (the QEC) case (1985) 159 CLR 192Decision: The ‘anti-discimrination’ principle was applied so as to prohibit discrimination against a single State in comparison to all states.Mason?J said the Commonwealth Act was one which impermissibly discriminated against a Qld govt agency (at 219). It singled out the agency for special disadvantage. Discrimination Elements –Types of Discrimination Direct Discrimination – Discrimination which arises when a State government or entity is explicitly treated differently than other persons or entities.Indirect Discrimination – Arises when a rule or law is applied evenly but the impact of such a rule or law is entirely disproportionate one a particular group. It is the residual effect of the decision which ‘indirectly’ impacts a particular group.Justified or Rational Discrimination – In particular circumstances, the Commonwealth is constitutionally allowed to discriminate against a particular States or a group of states such as quarantine a State to reduce disease to other states (H1N1 Virus)Establishing the Validity of Discrimination – Does it Discriminate - Determine whether the Commonwealth Law adversely discriminates against a State directly or indirectly.Rational or Justified Purpose - If it does adversely discriminate, it must fulfil a ration or justified purpose otherwise the law will be invalid.Example – Richardson v Forestry Commission (1988) 164 CLR 261Facts: Commonwealth environment protection law specified an area in the Tasmanian Crown Land for special treatment. Decision: HCA found that this was direct discrimination but valid under the s51(xxix) power for international obligations. It was not unreasonable at all but justified and rational.Limb 2 – What is the States capacity to function?Cannot Impede Performance or Function – The second limb of the Melbourne Corporation v Commonwealth (the State Banking case) (1947) 74 CLR 31 case was that the Commonwealth cannot pass laws of ‘general application’ that fundamentally impede the States from carrying out their essential governmental functions.Key Cases –Western Australia v Commonwealth (the Native Title Act case) (1995) 183 CLR 373Facts: WA challenged validity of the Native Title Act 1993 on basis it inferred with the states capacity to ‘control the use of land and deprive the States of revenue’Decision: HCA rejected this argument ‘The Act does not purport to affect the machinery of government of the State. The constitution of the three branches of government is unimpaired; the capacity of the State to engage the servants it needs is unaffected; the acquisition of goods and services is not impeded; nor is any impediment placed in the way of acquiring land needed for the discharge of the essential functions of the State save in one respect, namely, the payment of compensation’Re Australian Education Union and Australian Nursing Federation; Ex parte Victoria (AEU case) (1995) 184 CLR 188Facts: AEU had industrial proceedings before the Commonwealth Industrial Relations Commission between Victorian Government and Trade Unions of the AEU.Victoria argued that:Any orders by the Commission affecting those public servants would infringe the doctrine of implied State immunities.The immunity was necessary to preserve the States capacity to function as an independent government.Decision: HCA upheld Victorian Governments arguments – affirming that implied limitation protects the States from Commission orders seeking to fix minimum wages and working conditions. This was based on:The Commonwealth cannot interfere with State based practices on hiring or terminating peopleThe Commonwealth cannot interfere with the terms on which people are engaged on the basis on the first argument:‘Critical to a State's capacity to function as a govt is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of govt, but also to determine the terms and conditions on which those persons shall be engaged.’‘Hence, Ministers, ministerial assistants, heads of departments would clearly fall within this group’.Austin v Commonwealth (2003) 215 CLR 185Decision:CJ Gleeson stated found that the effect of the Commonwealth law was to force States to alter their judicial pension arrangements, which diminished their independent constitutional status and integrity.‘That differential treatment is constitutionally impermissible, not because of any financial burden it imposes upon the States, but because of its interference with arrangements made by the States for the remuneration of their judges. The practical manifestation of that interference is in its capacity to affect recruitment and retention of judges to perform an essential constitutional function of the State’Gaudron, Gummow and Hayne JJ rejected a separate ‘discrimination limb’ they based this on:Did not make ‘coherent use of the concept of discrimination’A close reading of the judgements in the Melbourne Corporation did not support a separate discrimination limb.They moved for a ‘one test of state immunity’ by asking the question – Does the law impair the capacity of the states or a state to function as a government?If yes, then the law is invalid and if not then it is not.***Commonwealth Immunity from State Laws***Can a State Law bind the Commonwealth?A State law cannot bind the executive unless there is some express or necessary authority provided. There must be express statutory capacity for a State Law to bind the Commonwealth.It was the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 which established that Commonwealth Laws could bind the States and it was the case of Pirrie v McFarlane which established the reciprocal rule.Pirrie v. McFalane (1925) 36 CLR 170Background - McFarlane was a officer in the Royal Australian Air Force and instructed to drive a car under orders from his superior. Arrested for driving on the road without a drivers licence.Decision – Court found that the Commonwealth Officer was bound by state traffic laws while driving in the respective state jurisdictional confinements. Knox CJ stated‘The Commonwealth Parliament has, in my opinion, undoubted power, by legislation with respect to a subject which is within the ambit of its legislative powers, to override the provisions of any State law, but in the absence of any such enactment the State law must be given its full effect’Cigamatic Immunity – Broad Commonwealth Immunity?Cigamatic immunity stemmed from the case of Commonwealth v. Cigamatic Pty Ltd – Commonwealth v. Cigamatic Pty LtdBackground - Cigamatic was an insolvent company that owed money to the Commonwealth and which the Commonwealth was a creditor only in respect to unpaid income tax. At common law, the Commonwealth was entitled to priority of all debts owed to it.Decision – The Commonwealth was successful in asserting its rights over the States and stood as the primary creditor.Improving Cigamatic – Commonwealth Immunity The Cigamatic ruling did establish a broad precedent from Commonwealth Immunity from state laws and it was clear that it needed to be reformulated. This was achieved in Re Residential Tenancies Tribunal of NSW and Henderson; Ex Parte Defence Housing Authority (1997) 190 CLR 410.Background – Henderson leased a property leased to the DHA (governed by Federal Law) and sought to inspect it per a State residential tenancies Act. DHA Refused.Decision – HCA stated State Parliaments could not legislate to affect capacity of functions of the Commonwealth. ‘The purpose in drawing a distinction between capacities of the Crown and the exercise of them is to draw a further distinction between legislation which purports to modify the nature of the executive power vested in the Crown – its capacities – and legislation which assumes those capacities and merely seeks to regulate activities in which the Crown may choose to engage in the exercise of those capacities’Reverse Melbourne Corporation Doctrine - the Commonwealth was only immune from laws that discriminated against it and laws that impaired the Commonwealths integrity or autonomy. It was termed the ‘reverse-Melbourne Corporation test’.Affect Commonwealth Capacity – ‘Capacity’ – Refers to the nature of the executive power vested in the Crown and State law cannot interfere with such capacities.i.e. a state law which singles out the Commonwealth for individual or ‘special’ treatment‘Exercise of Capacity’ –This includes activities which the Crown ‘may choose’ to engage in the exercise of power and where State Acts can regulate.State laws which DO NOT discriminate against the Commonwealth are binding and enforceable by the States.‘Affected by’ – A case of Commonwealth v Bogle suggested that the Commonwealth could be ‘affected by’ State laws, the HCA said in HendersonIt is not a matter of choice for the Commonwealth executive whether or not it is bound by the law of the land. If in regulating activities engaged in by the Crown and its subjects alike a State statute extends as a matter of Construction to the Crown in right of the Commonwealth, then that Crown is bound by the statute in the same way as the subject is bound, subject always to any inconsistency with a valid Commonwealth law’S109 Power – s109 of the Constitution allows the Government to pass a law which would supersede any state law and this is typically done to avoid any ‘reverse Melbourne Corporation Doctrine’ issues.Exceptions to Commonwealth ImmunityJudiciary Act 1903 – s64The Judiciary Act 1903 provides in s64 that the Commonwealth and the States have equal rights.It provides that the Commonwealth is bound to the same laws as private citizens per the decision in Maguire v Simpson (1977) 139 CLR 362Removes the Immunity – s64 effectively removes the immunity of the Commonwealth in the Cigamatic case – ‘as nearly as possible’Only a Suit – s64 only refers to a ‘suit’ – a Court - thereby not including jurisdictional confinements of a tribunal etcComplete Immunity ?In Cigamatic, a broad interpretation of Commonwealth immunity was discussed but Pirrie was not. In A v. Hayden – the Pirrie approach was favoured over the Cigamatic ruling:A v.Hayden (1984) 156 CLR 532Background - Spy’s of the Australian Intelligence service were prosecuted for a training raid conducted at Sheraton Hotel in 1983 illegally. They sought an injunction to prevent the release of their identities.Decision – Court refused the injunction and Cibbs CJ stated‘it is fundamental to our legal system that the executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer’State Law applies to Commonwealths servants but don’t apply to the Commonwealth itself. This was accepted in Hendersons case where Brennan CJ stated‘[t]he Crown in right of the Commonwealth cannot authorise its servants or agents to perform their functions in contravention of the criminal laws of a State and cannot confer immunity upon them if, in performing those functions, they contravene those laws. For that reason, Pirrie v. McFarlane, in my opinion, was rightly decided’Immunity under s52 of the ConstitutionS52(i) provides Commonwealth power to create laws for ‘peace, order and good government with respect to ... the seat of government of the Commonwealth and all places acquired by the Commonwealth for public purposes’If the Commonwealth has acquired a place for public purposes it has exclusive power in that place and State Laws would not operate in any manner per the R v. Philips (1970) 125 CLR 93.S92 – Freedom of interstate trade, commerce and intercourseWhat is interstate trade and commerce?Definitions – Interstate – Trading between StatesIntrastate – Trading within a single StatePurpose – The purpose of s92 was established in Cole v Whitfield (1988) 165 CLR 360 - where the Court stated that s92 prohibits legislature which imposes discriminatory protectionist burdens on interstate trade and commerce.S92 seeks to protect interstate trade – against all interstate borders and discriminatory taxes and charges and other fiscal related grounds.S92 prevents governments from interfering through non-fiscal intervention – s92 stops governments from applying quotas or standards which discriminate against interstate trade so as to protect their own intrastate trade against ‘external’ competition.***Cole v Whitfield (1988) 165 CLR 360***Background – Whitfield imported crayfish into Tasmania from South Australia. Charged with unlawful possession – argued Tasmanian law burdened freedom of interstate trade under s92Decision – HCA rejected Whitfields argument, suggesting that s92 prohibits measures that burden interstate trade and commerce and it also protects intrastate trade and commerce. They found it did burden interstate trade, but was not discriminatory or protectionist.The key statement was‘[I]f it applies to all trade and commerce, interstate and intrastate alike, it is less likely to be protectionist than if there is discrimination appearing on the face of the law. But where the law in effect discriminates in favour of intrastate trade, it will nevertheless offend s92 if the discrimination is of a protectionist character ... if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against interstate trade or commerce in pursuit of that objecting a way which warrants characterization as protectionist, it offends s92’Two Key TestsTest for Breaching s92 Interstate TradeTest for Breaching s117 Protection of Interstate ResidentsWhat are the Tests for breaching s92 Interstate Trade?Is there a burden on interstate trade? Yes - If there is a burden, establish if the burden is discriminatory on its face or in its practical effect.Intercourse of s92Intercourse is defined as being not only the physical movement of interstate goods but also communication and ideas.Includes, per Nationwide News v Wills (1992) 177 CLR 1 at 83‘movement of people, the transport of goods, transmission of communication, passage of signs and other means by which ‘interchange, converse and dealings between states in the affairs of life’ are carried on across State boundaries’Does it burden interstate intercourse?Nationwide News at 57‘If the law is enacted for some other purpose then, provided the law is appropriate and adapted to the fulfillment of that other purpose, an incidental burdening of interstate intercourse may not invalidate the law … a law may be found to be enacted for the prohibited purpose by reference to its meaning or by reference to its effect. If a law imposes a burden by reason of crossing of the border … it offends s92’Are there limits to interstate intercourse?A proportional approach is favored such that the disclose of an adverse burden on interstate intercourse is required. Generally, a law will impede s92 if it attempts to impede interstate intercourse. What is the effect on interstate intercourse?If there is some effect on interstate intercourse, a consideration of whether the impediment is ‘greater than that reasonably required to achieve the objects of the legislation’.What is the law trying to achieve?There must be some analysis of the proportionality of the law such that it must be ‘reasonably necessary’Example – stopping interstate horse travel is reasonable and proportionate to stop equine flu.Are there limits to interstate intercourse? (Nationwide News Tests – Next Page)Nationwide News at 59‘s92 does not invalidations laws that do not select a movement across a State border as a criterion of the imposition of the burden but do have the effect of burdening interstate intercourse providedThe law is enacted chiefly for a purpose other than preventing or impeding a crossing of a State borderThe imposition of the burden is appropriate and adapted to the fulfillment of the other purpose , andThe prevention or impediment to the border crossing is an incidental and necessary consequence of the laws operation. Is there discrimination such that it is protectionist?Protectionist – When a state law confers a protective competitive advantage on local industry, or when a state law removes a competitive advantage from an interstate industry.Bath v Alston Holdings (1988) 165 CLR 411Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182If a State having a scarce resource or the most inexpensive supplies of a raw material needed for a manufacturing operation prohibited the export of material from that resource or those supplies in order to confer a benefit on its domestic manufacturers as against their interstate competitors, that prohibition would discriminate against interstate trade in a protectionist sense.’Yes - If there is discrimination, establish if that discrimination has a protectionist effect. If so, the law is prima facie invalid. ‘A law will discriminate against interstate trade or commerce if the law on its face subjects that trade or commerce to a disability or disadvantage if the factual operation of the law produces such a result … look to the practical operation of the law in order to determine its validity.’Per Cole v Whitfield at 399Is there some non-protectionist purpose ?Yes - If that protectionist effect is pursuant to, or incidental to some non-protectionist purpose and the discriminatory burden is not disproportionate to achieving a legitimate objective its permissible and DOES NOT offend s92.No - It offends s92.Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436‘[t]he legislature of a State has power to enact legislation for the well-being of the people of that State. In that context, the freedom from discriminatory burdens of a protectionist kind postulated by s92 does not deny to the legislature of a State power to enact legislation for the well-being of the people of that State unless the legislation is relevantly discriminatory … the impact on interstate trade must be incidental and not disproportionate to the achievement of the legislation’What are the Tests for s117 Protection of Interstate Residents?S117 states‘A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State’S117 provides freedom from discrimination This is based upon the freedoms of residence in another State and confers protection from the imposition of disability or discriminatory State laws on interstate resident compared to intrastate residents.Individuals NOT corporations – s117 only applies to individuals and not to corporations Key Case:Street v. Queensland Bar Association (1989) 168 CLR 461Held: Court set aside a previous narrow determination of the s117 interpretation, instead stating‘A disability or discrimination is rendered illusory if the fact of residence would substantially deprive it of its onerous nature. A requirement of continuous residence for a certain period would be an example of a law whose onerous effect on –non-residents would be rendered illusory under this test.’Limits –S117s operation will not provide immunity for all State laws that disadvantage interstate residents – it is a constitutional right that State residents enjoy some autonomy as a result of their residence in their State. Examples of such rights include:Welfare benefitsFranchise and qualifications for public officeOther intrastate topicsIn Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 – a QLD peice of legislation limited damages available to a NSW resident injured from a business accident in NSW on a bus that was registered in QLD. S117 applied and the offending limiting section was ruled invalid.Individual Rights and FreedomsRight to VoteDefinition - S7 and s24 of the Constitution provide a right to vote such that they direct both houses of Parliament ‘be chosen by the people’Roach v Electoral Commissioner [2007] HCA 43 Held: HCA held that a right to vote was constitutionally entrenched in s7 and s24 and all peoples – whether prisoners or not – were allowed to vote subject to legislation.Note: HCA contended that the right to vote is not absolute and can be modified by Parliament – upholding that prisoners of more than 3 years could have this right removed.Based on a ‘rational argument’ which demonstrates that Parliament is not effecting the right to be ‘chosen by the people’.S41 – ‘no adult person who has or acquires a right to vote at elections for more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament or Commonwealth’R v Pearson; Ex parte Sipka – the HCA determined that this section does not definitively provide a right to vote in Commonwealth elections for people who already have an existing right to vote in State Elections.Freedom of Religion (next page)Freedom of ReligionDefinition – s116 states that Commonwealth‘shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’A wide range of factors have been interpreted for this section – including what constitutes a religion and what is the ‘free exercise’ of a religion.Establishment of a ReligionThere is no ‘official established’ religion in Australia and the establishment a new religion has been approached with strict narrowness by the HCA.Attorney-General (Vic) v Commonwealth (1981) 146 CLR 559 – stated the Commonwealth cannot support any one religion.Prohibiting Free ExerciseLaw cannot be anti-religious – No law can be anti-religious such that it is considered overt.Overt – The law must actually inhibit the freedom to practice religion.In Jehovah’s Witness case, Starke J stated at 155‘the liberty and freedom of religion guaranteed and protected by the constitution is subject to limitations which it is the function and the duty of Courts to expound’Freedom of Communication (next page)Freedom of CommunicationDefinition – First Touted - Freedom of express in respect of public and political affairs is implied from the Constitution for a system of representative, equal and fair government.Australian Capital Television v Commonwealth (ACTV case) (1992) 117 CLR 106**Key – Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520 at 567‘the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as it necessary to give effect to these sections.’Freedom of Political CommunicationConfers no rightsS7 and s24 confer no rights – This infers that freedom of political communication does not confer private rights as these respective sections ‘preclude the curtailment of the protected freedom by the exercise of legislative or executive power’Two Stage TestIn Lange v. ABC – a two stage test developed (at 567)Does the law burden freedom of communication about governments or political matters in operation or effect?Yes? Goto b.Is the law reasonably structured to ensure that it is consistent with the Constitution and representative of a responsible government?Consider:Merit of the law and its purpose?Objectives of what the law is attempting to limit?How is the law enforcing such limitations?If No? Infringes freedom of communication.What is ‘political speech’? (next page)What is ‘political speech’? (next page)Defined in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 124‘includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. Concept also includes discussion of political views and public conduct of persons who are engaged in activities that have become the subject of political debate ... Indeed in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices’This was restricted to some degree to Federal or Constitutional Referenda in Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520‘be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of Government’Although the Court did subsequently provide that it is open to interpretation.Entertainment – Entertainment is not considered ‘political’ – satirical commentary is considered to be protected as per the comments in the Theophanous case‘[Reasonable] insults are as much a part of communications concerning political and government matters as is irony, humour or acerbic criticism.’There are Limits to FreedomCan be expressly removed – The Freedom can be removed by laws that are design to achieve legitimate, reasonable, appropriate and purposeful objectives. If such laws are enacted do not achieve these aims – it will infringe.Coleman v Power (2004) 220 CLR 1Held: HCA found that while the law to prevent ‘insulting language in a public place’ was avlid for breaches of the peace – it went beyond what was reasonable for a ‘system of reasonable and representative government’. Manner and FormWhat is validity of law?Definition – s128 provides that ‘this constitution shall not be altered except in the following manner.’ Source of Power – The source of power to entrench State laws used to s5 of the Colonial Laws Validty Act 1865 – but it is now s6 of the Australia Acts 1986 (Cth) and (UK)What does it provide?It provides that a law made after the commencement of the Australia Acts by Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such a manner and form as may from time to time be required by a law made by that Parliament.Difference between s128 and s6 Australia Act?S128 is directed at the validity of proposed laws – the legislative power to actually enact the law.S6 – not directed at the validity of proposed laws – rather to the force and effect that laws are made by State Parliament.How are State constitutions different from the Commonwealth Constitution?Flexible – State Constitutions are flexible, and thus are not presumed to pose constraints on State legislative power Per Taylor, McCawleyPlenary Power – State parliaments have plenary power (Union Steamship)Restrictions – State legislative power has certain restrictions imposed by the CommonwealthS52, s90 and s109What is the Standard Procedure for pass of laws through Parliament?What are the respective powers in Victoria and the Commonwealth?Victoria – Victoria Constitution s15Parliament – Commonwealth Constitution s1What if bills are deadlocked?Then an ‘alternative procedure’ may be applicableVic Constitution – s65A-S65GCommonwealth Constitution – s57 What is a restrictive procedure?Definition – A special legislative procedure that restricts the enactment of legislationHow does it restrict enactment?By restricting changes to the law, a restrictive procedure ensures that particular topics can Only be amended or repealed by following a more difficult and demanding procedure – manner & form.What is the application of Manner and Form?How does s128 apply at Commonwealth Level?S128 applies to the alteration of any provisions of the Commonwealth Constitution, be they express terms or the relevant implied terms which are derived from them. Don’t Apply – They do not apply to other Commonwealth legislation ‘The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.’Requires:Absolute majority in each house Not less than two or more than six month after its passage the law shall be submitted in each State to vote for the election.How does s128 apply at State Level ? (next page)How does s128 apply at State Level ?S6 of the Australia Acts gives effect to manner and form requirements that affect the provisions in any law, not just the Constitution Act, as long as it is a law respecting ‘constitution, powers or procedure’Victorian ExampleVictorian Constitution has 3 different restrictive procedures:Referendum – the Victorian electors conduct in accordance with the Electoral Act 2002Special Majority – 3/5ths of the whole number of members of the Assembly and CouncilAbsolute Majority – The whole numbers of the members of the Assembly and the Council respectivelyWhat is the point of Restrictive Procedures?They protect certain important Acts or provisions from repeal or amended by the standard legislative procedures.ExampleS128 Commonwealth Constitution – protects laws until parliament otherwise provides’Victoria – s18 requires ‘absolute majority’ for certain parts of the ConstitutionHow does it relate to ‘Parliamentary Sovereignty’?What is a rule of Parliamentary Sovereignty?Definition – A rule that Parliament cannot bind its successors – this means that a later Parliament cannot normally be restricted by an earlier Parliaments actionsWhen will a Restrictive Procedure bind a later Parliament?Definition – A State Parliment can bind a later Parliament, but only by a mere restrictive procedure, not a complete abdication of Parliaments law making power in favour of another bodyWhat is the Restrictive Procedure is extremely onerous?If the restrictive procedure is so onerous that a later Parliament could not alter the provision at all, then the Courts will strike out the restrictive procedure as it offends ‘Parliament Sovereignty’What is ‘double entrenchment’?Definition – Restrictive procedures must entrench themselvesS128 – Protects the entire Constitution and therefore protects itself.S18 Victorian Constitution – Protects itself as well as other sections.What is a restrictive procedure is not entrenched?If a restrictive procedure was not entrenched, then it could just be amended by normal legislative procedure.Could be Impliedly Repealed per McCawleys caseWhat makes a restrictive procedure binding?Definition – Restrictive procedure undermine parliamentary sovereignty. Bind Future Parliaments - This infers must check when States can enact binding or effective restrictive procedures in order to bind future ParliamentsAG for NSW v TerthowanHeld: S7A inserted into the Constitution to safeguard the upper house – ALP threatening to abolish that house.S7A provided that house could not be abolished unlessAbolition Bill must be passed by both houses of parliament.Within 2 months Bill must be submitted for referendum (ss3)If passed at Referendum, Government can assent.Was 7A ‘double entrenched’?S7A(6) added that the same restrictive procedure had to be used in order to amend s7A itself – that is, passage by both houses and people at referendum.S7A was doubled entrenched by s7A(6)HCA said?State Parliaments did have power to enact binding restrictive procedures.Source of power – s5 Colonial Laws Validity Act.What was the Colonial Laws Validity Act? (now superseded)Definition – Imperial legislation which had paramount status in Australian States such that it could not be repealed.An inherent conflict?Imperial legislation could provide a ‘higher’ source of power which seems to conflict with sovereignty of colonial Parliaments*****How can a Restrictive Procedure Pass Today?***** (refer next page also)S6 of the Australia Act – superseded the Colonial Laws Validity Act‘a law ... respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may ... be required by a law made by that Parliament ...’So a Restrictive Procedure is valid ?S6AA – 2 conditions must be satisfied:First Law – a law passed by an earlier parliament containing a manner and form provision (the restrictive procedure)Second Law – the later law must be one respecting constitution, powers and procedures of Parliament – must conform with manner and form.Victorian ExampleS41 - Victoria constitution requires that at least one session of Parliament occurs each year. (this is the 1st law)Doubly Entrenched – s18(1B)(g) - Entrenched by the requirement that any amendment to that provision be only made by approval of both houses, and the electorate by way of referendum. (this is 2nd law)What is the meaning of ‘constitution of parliament’?Includes the composition of the Parliament & composition of the houses ‘the features that give Parliament and its house its representative character’Marquet 2004 per Gleeson CJ, Gummow and HayneWhat is the meaning of ‘powers & procedures of parliament’?A law that regulates procedures – would regulate internal proceduresA law that regulates powers – regulates Parliaments law making powers – restrict or expandAG v Marquet [2003 HCA 67]"It shall not be lawful to present to the Governor for Her Majesty's assent any Bill to amend this Act, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively." Held: s6AA was enacted in the valid exercise of power given to the Federal Parliament per s51(xxxviii)How can a manner & form restrictive procedure be identified?So Strict? Not Valid Restrictive Procedure – If the manner and form is so strict a later Parliament cannot comply with it – it amounts to an abdication of power and is not valid to restrict a later parliamenti.e. 90% of both houses must approvei.e. 80% of each house, and 95% of the electorate must approveThese are impossible to realistically ever pass given the nature of seats in each houseWhat does s6AA authorise? It provides authority for restrictive procedures to bind later State Parliaments by a primary law relating to the Commonwealth constitution, powers or procedure of Parliament.Restrictive procedure is valid if:First Law – a law passed by an earlier parliament containing a manner and form provision (the restrictive procedure)Second Law – the later law must be one respecting constitution, powers and procedures of Parliament – must conform with manner and form.Is it doubly Entrenched?Per McCawley or TrethowanDoes it require a special majority that is too onerous?King CJ and WestlakesDoes it involve Extra Parliamentary Body?If yes, is it representative?Is the later (amending law) restrictive the Commonwealth constitution, powers or procedure of Parliament? If yes, its invalid.Refer Terthowan or Marquet ................
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