THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION – A
federal constitutional law
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION 7
Pre-Engineers 7
The Engineer’s Case 8
Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 8
Reactions to the Engineers Case 9
Victoria v Commonwealth (1971) 122 CLR 353 (as per Windeyer J) 10
RTE Latham, “The Law and the Commonwealth” 10
Literalism and Legalism 10
Swearing in of Sir Owen Dixon as Chief Justice (1952) 11
Retirement of Sir Garfield Barwick as Chief Justice (1981) 11
Judith Shklar, Legalism: Law, Morals, and Political Trials 11
The Intention of the Framers 12
Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 – Convention Debates Impermissible 12
Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (Transcript of Argument HCA) 13
Cole v Whitfield (1988) 165 CLR 360 – Convention Debates Allowed 13
Greg Craven, “Original Intent and the Australian Constitution – Coming Soon to a Court Near You?” (1990) 13
Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation” (1997) 14
Originalism and Other ‘isms’ 15
Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation” (1997) 15
Greg Craven, Conversations with the Constitution (2004) 16
Andrew Inglis Clark, Studies in Australian Constitutional Law 17
Brownlee v The Queen (2001) 207 CLR 278 17
Eastman v The Queen (2000) 203 CLR 1 18
Re Wakim; Ex parte McNally (Cross-vesting Case) (1999) 198 CLR 511 18
Precedent 19
THE HIGH COURT AND CHARACTERISATION 19
The Characterisation Process 19
Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 19
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 20
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 20
Trade and Commerce 20
W&A McArthur Ltd v Queensland (1920) 28 CLR 530 – Scope 21
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29 – Airline Service 21
Bank Nationalisation Case – Financial Transactions 21
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 – Power to Control Exports/Imports Within s51(i) 21
Dual Characterisation 22
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 22
Subject-Matter or Legislative Purpose? 23
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 – Activity at the Heart of the Subject Matter 23
Incidental Power 24
Incidental Power and s 51(i) 24
R v Burgess; Ex parte Henry (1936) 55 CLR 608 24
Airlines of NSW v New South Wales (No. 2) (1965) 113 CLR 54 – “Sufficiently Proximate Relationship” 25
Attorney-General (WA) v Australian National Airlines Commission (1976) 138 LR 492 26
O’Sullivan v Noarlunga Meat (1954) 92 CLR 565 – Using Implied Incidental Power to Regulate Acts Proprietary to Trade 26
INCONSISTENCY OF LAWS 27
Three Tests of Inconsistency 27
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 28
Ex parte McLean (1930) 43 CLR 472 – Rule of Conduct; Different Penalties 28
Telstra Corporation v Worthing (1997) 197 CLR 61 29
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 237 29
Ansett Transport Industries v Wardley (1980) 142 CLR 237 30
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 30
Operational Inconsistency 30
APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403 31
Express Intention Clauses 31
Wenn v Attorney-General (Vic) (1948) 77 CLR 84 31
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 32
Retroactive Laws and the Purpose of Section 109 32
Viskauskas v Niland (1983) 153 CLR 280 32
University of Wollongong v Metwally (1984) 158 CLR 447 32
THE EXTERNAL AFFAIRS POWER 33
Relations with Other Countries 33
R v Sharkey (1949) 79 CLR 121 33
Matters External to Australia 33
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 33
Horta v Commonwealth (1994) 181 CLR 183 34
XYZ v Commonwealth (2006) 227 ALR 495 34
Treaty Implementation – An Initial Approach 34
R v Burgess; Ex parte Henry (1936) 55 CLR 608 34
R v Poole; Ex parte Henry (No. 2) (1939) 61 CLR 634 35
Treaty Implementation – Modern Jurisprudence 36
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 36
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 37
Later Cases 38
Richardson v Forestry Commission (1988) 164 CLR 261 38
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 39
THE RACES POWER 40
Original Section 51(xxvi) 40
Features of s51(xxvi) 40
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 – “The People of Any Race” 41
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 – “Special Reason” 41
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 42
The Arrival of a Power to Discriminate Against Indigenous Australians? 42
Kartinyeri v Commonwealth (Hindmarsh Island Bridge case) (1998) 195 CLR 337 42
THE CORPORATIONS POWER 44
Section 51(xx) 44
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 44
Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) 124 CLR 468 45
What is a Corporation for the Purpose of s51(xx)? 46
R v Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533 46
R v FCA; Ex parte WA National Football League (Adamson’s Case) (1979) 143 CLR 190 46
State Superannuation Board of Victoria v Trade Practices Commission (1982) 150 CLR 282 46
Fencott v Muller (1983) 152 CLR 570 46
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 47
Existing Corporations Only 47
New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 47
Power with Respect to Trading Activities 48
Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169 – Protection of Corporation 48
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 49
A Return to Straightforward Characterisation 50
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 50
New South Wales v Commonwealth (Work Choices Case) (2006) 231 ALR 1 52
Work Choices (2006) and Characterisation 52
THE DEFENCE POWER 53
How is the Defence Power Different from those Considered so Far? 53
War 54
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 54
Farey v Burvett (1916) 21 CLR 433 55
Victorian Chamber of Manufacturers v Commonwealth (Women’s Employment Case) (1943) 67 CLR 347 55
Post-War: Moving Back into Peace 56
R v Foster (1949) 79 CLR 43 56
Peace 56
Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1 56
Attorney-General (Vic) v Commonwealth (Clothing Factory Case) (1935) 52 CLR 533 57
Cold War 57
Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 57
Marcus Clark & Co Ltd v Commonwealth (Capital Issues Case) (1952) 87 CLR 177 59
War on Terror 59
Thomas v Mowbray [2007] HCA 33 59
THE TAXATION POWER – WHAT IS A TAX? 61
Definition of Taxation 61
Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 - Foundation 61
Air Caledonie International v Commonwealth (1988) 165 CLR 462 – Practical Compulsion 61
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 – No need for Public Authority; but has to be for Public Purpose 62
Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 – Revenue Unimportant 62
Luton v Lessels (2002) 210 CLR 333 – Consolidated Revenue Not Necessarily = Tax 63
Things Other Than Taxes 63
Fees for Services 64
Harper v Victoria (1966) 114 CLR 361 64
Parton v Milk Board (Vic) (1949) 80 CLR 229 64
Air Caledonie International v Commonwealth (1988) 165 CLR 462 64
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 64
FISCAL FEDERALISM 65
Guarantees of Equality 65
Section 96 Grants – Overcoming s51(ii) and s99 66
Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399 66
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 HCA 66
WR Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) [1940] 61 AC 838 66
Uniform Taxation of Income 66
South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 67
Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 68
Restriction – Religion 69
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 69
FREEDOM OF INTERSTATE TRADE AND COMMERCE 69
Pre-1988: Individual Right Theory 69
Commonwealth v Bank of New South Wales (Bank Nationalisation Case) [1950] AC 235 69
A Free Trade Interpretation 70
Cole v Whitfield (1988) 165 CLR 360 70
Discriminatory Burdens of a Protectionist Kind? 71
Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 71
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 – Proportionate to Purpose? 72
EXPRESS GUARANTEES – TRIAL BY JURY AND FREEDOM OF RELIGION 73
Right to Trial by Jury 73
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 73
Kingswell v The Queen (1985) 159 CLR 264 73
Cheng v The Queen (2000) 203 CLR 248 74
Brown v The Queen (1986) 160 CLR 171 74
Cheatle v The Queen (1993) 177 CLR 541 75
Katsuno v The Queen (1999) 199 CLR 40 75
Brownlee v The Queen (2001) 207 CLR 278 75
Cheung v The Queen (2001) 209 CLR 1 75
Fittock v The Queen (2003) 217 CLR 508 75
Freedom of Religion 75
Krygger v Williams (1912) 15 CLR 366 75
Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses Case) (1943) 67 CLR 116 76
Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 76
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 77
IMPLIED FREEDOM OF POLITICAL COMMUNICATION 78
Precursors 78
R v Smithers; Ex parte Benson (1912) 78
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 78
Miller v TCN Channel Nine Pty Ltd (1986) 78
The Beginning 78
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 78
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 79
The Expansion 80
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 80
Stephens v WA Newspapers (1994) 81
Representative Democracy? 81
McGinty v Western Australia (1996) 186 CLR 140 81
The Lange Test 82
Lange v Australian Broadcasting Corporation (1977) 189 CLR 520 82
Levy v Victoria (1997) 189 CLR 579 82
Brown v Classification Review Board (Rabelais Case) (1998) 154 ALR 67 – Theft as Politics? 83
The Gleeson Court on the Implied Freedom 83
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 83
Coleman v Power (2004) 209 ALR 182 83
Mulholland v Australian Electoral Commission (2004) 209 ALR 582 84
JUDICIAL POWER AND DETENTION 84
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 84
Incompatibility 85
Kable v DPP (1996) 189 CLR 51 – An Integrated System and its Consequences 85
Fardon v Attorney-General Queensland (2004) 210 ALR 50 87
Detention Absent Criminal Guilt 87
Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 88
Detention of Non-Citizen 88
Al-Kateb v Godwin (2004) 219 CLR 562 88
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 89
Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 210 ALR 369 90
THE FEDERAL COMPACT – THE COMMONWEALTH AND THE STATES 90
The Principle 90
Melbourne Corporation v Commonwealth (1947) 74 CLR 31 90
Discrimination? Two Limbs or One? 91
Queensland v Electricity Commission v Commonwealth (1985) 159 CLR 192 91
One Limb – For One Principle? 92
Industrial Relation Laws and Structural Integrity 95
Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 95
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION
• How are the powers of the States structured in the Cth.?
- The Constitution assigns to the Cth. Parliament a specific list of powers relating to a range of subjects and purposes (s51).
- The residual are left to the states (s107) as well as concurrent power of the exclusive powers conferred on the Commonwealth.
• Initially the founders of the Constitution wanted the majority of the powers to remain with the States. However, ironically, the part of the government with the residual power is weaker.
- Since the words of s51 are so broad, they have an ever-expanding meaning as their definition is interpreted → the residual powers only get smaller.
• The Australian government combines responsible government with federalism.
• To the extent of inconsistency, Commonwealth law prevails s.109
Pre-Engineers
• The court’s approach prior to Engineers was the adoption of two doctrines:
- Implied immunity of instrumentalities
- Reserved state powers
• Implied Immunity of Instrumentalities:
- Idea that both the States and the Cth. were normally immune to each other’s laws – used to protect the States and their agencies from Cth. interference.
- Necessarily implied from the idea of federalism.
- D’Emden v Pedder (1904):
▪ As a Cth. officer, D’Emden did not have to pay the state stamp duty.
▪ Both levels of government are not allowed to tax the other, i.e. the State cannot tax the Federal level, and the Federal level cannot tax the State.
• Reserved State Powers:
- Cth. grants of power were to be interpreted so as to ensure that they did not encroach too far upon the “residual” powers of the states.
- R v Barger (1908):
▪ Cth. legislation imposed excise duties on agricultural implements. Did not apply where the goods were manufactured under conditions where the remuneration of labour was in accordance with an industrial award under the Commonwealth Conciliation and Arbitration Act.
▪ Issue: a law with respect to “taxation” under s51(ii)?
▪ HC found the law to be invalid.
▪ The power to pass the Act was to be vested either in the Parliament or in the State legislatures. Since the subject-matter (in substance, the regulation of the conditions of labour) lay within the State legislative power, it could not therefore lie within the Cth’s taxation power.
▪ Example of how s51(ii) was read down to preserve the power of the States even though it was clearly a law about tax.
▪ Dissent (Isaacs and Higgins JJ): depended on the analogy of the way in which a will is interpreted when distributing a testator’s estate. One cannot construe a will by first determining the scope of the residuary legacy and then, in light of that, by determining the content of the specific bequests. Similarly, in construing the Constitution, one must first give full effect to the specific grants of the Cth. power.
- Huddart, Parker & Co Pty Ltd v Moorehead (1909):
▪ s51(i) does not apply to intra-State trade/commerce → falls within s107 and therefore cannot be overcome by s51(xx) → restricted Cth. power.
The Engineer’s Case
Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129
• Question: is the State bound by Cth. decision? Question whether a Cth. law made under the “conciliation and arbitration” power (s51(xxxv)) could authorise the making of an award binding on State employees.
• Court found that the previous cases were not applicable as:
- Previous HC judges reached outcomes burdened with their conceptions of how they believed the Constitution works. However, words of the Constitution point in the other direction.
▪ Interpretations of the Constitution based upon “vague, individual conception[s] of the spirit of the compact” are unacceptable.
- Doctrines based on the concept of political necessity.
▪ Overarching principle guiding the court at this point: fear that the Cth. may overpower the States (based on distrust that the Cth. may abuse powers) is no reason to depart from reading the Constitution in its natural meaning.
← No need for implications based on what is seen as needed.
▪ If Parliament abuses its powers, then it is up to responsible government to fix this.
- American cases were irrelevant due to two features of the Australian political system: responsible government and indivisible sovereignty of the British Empire.
• How, then, should the Constitution be interpreted? – Looked to settled rules of construction as enunciated by the highest tribunals of the British Empire.
- The language of the Constitution should be read as a whole and in its natural sense. This is to be done in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, the statute law which preceded it.
- “Unexpressed assumptions” must give way to express provisions – speculation of the motives of the founders cannot be properly done by the Judges.
- If the legislation in question falls within the general scope of s51 powers, and if it violates no express condition or restriction by which those powers are limited, it is not for any Court to inquire further or to enlarge constructively those conditions and restrictions – the legislation will be valid.
- Possible abuse of powers is no reason for limiting the natural force of the language creating them.
- You can validly draw implications from the Constitution and they can restrict power. However, whether the restrictions are express or implied, they must be clear.
▪ There is no implication in the Constitution that the States have a reserved power to make laws in any area.
- Implications still may be made from the Constitution where necessary, but this does not mean “politically necessary”, rather “logically necessary”.
• s107 is not to be seen as reserving any power from the Cth. that falls fairly within the explicit terms of an express grant in s51 – there is no place for the doctrine of “implied prohibition”.
• Effect of the case was the chewing off of the residue and the expansion of s51 without any constraints to protect the State powers.
• HC has not departed from this case since.
Reactions to the Engineers Case
Victoria v Commonwealth (1971) 122 CLR 353 (as per Windeyer J)
• The colonies which in 1901 became states in the new Cth. were not before then sovereign bodies; they were self-governing colonies which, when the Cth. came into existence, lost some of their former powers and gained no new powers.
• The decision of the Engineers case in 1920 reflected the Constitution being read in a new light, a light reflected from events that had led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs.
• For lawyers the abandonment of the old interpretation of the limits of the constitutional powers was readily acceptable as it meant only insistence on rules of statutory interpretation to which they were well accustomed.
• The new reading which emerged did not mean that the original judges of the HC were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution. In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based upon the interpretation of a written constitution may vary and develop in response to changing circumstances.
• When the Constitution was first drafted, these doctrines were understandable. But now throughout the development of Australia’s history this may not be the case.
RTE Latham, “The Law and the Commonwealth”
(Re. Engineers case)
• No reference made to the U.S Cth. law reports even though much of our Constitution based on that system. “It cut off Australian constitutional law from American precedents, a copious source of thoroughly relevant learning, in favour of the crabbed English rules of statutory interpretation, which are one of the sorriest features of English law, and are…particularly unsuited to the interpretation of a rigid constitution.
• Irony: the majority judgement declared that the Constitution was to be interpreted by its words alone; yet the court, in reaching that very proposition, took notice of responsible government.
- The real ground of the decision is nowhere stated in the majority judgement: that the Constitution had been intended to create a nation.
- Responsible government not expressly found in the Constitution, but it is present by implication. Yet, it forms the basis of the decision.
Literalism and Legalism
• Literalism: idea that words are to be interpreted literally. They are to speak for themselves without reference to any interpretive context
• Legalism: recognises that there is a context to be recognised, but if it is not a legal context (which includes not only the constitutional text, but extends to references to authoritative legal materials), then it should be ignored.
Swearing in of Sir Owen Dixon as Chief Justice (1952)
• The Court’s sole function is only to interpret the limits of Constitutional power, and to decide whether a given measure falls within those limits. They should not be involved in determining the merits of the case.
• Close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts.
• There is no other safe guide to judicial decisions in great conflicts than strict and complete legalism.
Retirement of Sir Garfield Barwick as Chief Justice (1981)
• The Constitution has expressed itself in words, and those words bind. When a Court has to decide what the Constitution means, it has to assign a meaning to the language.
• In deciding on the extent of Cth. power, “there seems to be a growing tendency to want to put a brand on a constitutional lawyer or a judge that he either favours the Cth. or he favours the state. But the truth is that he has no choice. His task is to decide on Cth. power and after that the Constitution works itself out”.
• After the Engineers case, the way to interpret the Constitution has been to take the words and decide on the Cth. power, not being influenced by the effect the decision may have on State power. The Constitution will take care of the rest.
• The court is not advancing Cth. power; it is only brining it out.
• Critique: Ignores the idea that the meaning of the words in the Constitution changes over time. If they did not and there was only a single meaning, then why is the HC still sitting to dispute its meaning?
Judith Shklar, Legalism: Law, Morals, and Political Trials
• Problem with “strict and complete” legalism is that it denies the scope of judicial choice. It assumes that the law is just “there”, separated from morals and politics.
- A relationship exists between law and the political environment within which it functions. However, legalism is conservative in that it “relies on what appears already to have been established and accepted”. The Courts view their role to be to interpret the law, not to alter it.
- Although judges all have the same information in front of them, there are still dissents as they all bring in a personal element – personality, policy, professional ideology, etc.
- Hence, legalism may not be in play when making decisions, though it may guide how their decisions are delivered, i.e. how legal material has been used to arrive at the result. In a sense, it is used to avoid the appearance of arbitrariness in decisions.
▪ However, the perception of arbitrariness depends upon the public’s response, and judges will always be accused of “lawmaking” by those who do not approve of the decision.
The Intention of the Framers
• Idea – scope within which choice may be made: look to intent of the framers as a constraint?
• Original intent vs. progressivism:
- Originalism:
▪ Unlike in the Engineers case where the members of the HC were a part of the founders of the Constitution, later members did not have this same situation.
▪ Use by the HC of historical documents re. drafting of the Constitution.
▪ Idea of an attempt to discover the meaning of the Constitutional text, not by looking exclusively to the “intention” to be gathered from the text itself, but by looking at historical evidence.
- Progressivism:
▪ Forget about the past, what do we need it to say?
▪ Idea that the Constitution should be read in light of contemporary circumstances.
▪ Approach taken (mainly) by Deane and Kirby J.
Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 – Convention Debates Impermissible
• Use of convention debates in interpretation of the Constitution:
- What the court ultimately has to decide is the meaning of the Constitution by what has been said.
- As a matter of history, the draft bills which were prepared in the making of the Constitution may be referred to.
- Tentative drafts and expressions of opinions of members of the Conventions do not affect the construction of the final form.
• Many powers are conferred by necessary implication rather than in express words. However, the decision of whether powers are necessarily to be implied is a question of construction.
• Rules of construction:
- Same for the Constitution as for any other Statute.
- Acts of Parliament should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
- It is not for Court to decide such questions under the influence of considerations of policy, except so far as that policy may be apparent from, or at least consistent with, the language of the legislature.
- The Court merely has to ascertain from the language used what was the scheme adopted, and to give effect to it.
- If the words are doubtful, the intention of the legislature is to be gathered from other provisions of the Statute aided by a consideration of surrounding circumstances – to the history of the law, and from the instrument itself the object of the legislature.
▪ In considering the history of the law, the court may look into previous legislation, and must have regard to the historical facts surrounding the bringing the law into existence.
▪ The court is prepared to use secondary material, but not the primary material upon which the secondary material itself relied.
• Consider: some members of the HC had sat in the Engineers case – did not want to look at the convention debates as it would have been awkward hearing themselves quoted back at them?
Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (Transcript of Argument HCA)
• Confirmed the idea that convention debates are impermissible, and that the Court will not look at them.
Cole v Whitfield (1988) 165 CLR 360 – Convention Debates Allowed
• Situation: although a full record of the Convention Debates had always been available, in 1986 a fully re-edited and indexed version of the Debates had been published.
• Held: regard could be had to the history of a section of the Constitution, including the relevant Convention debates, for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement toward federation.
- But not for the purpose of substituting for the meaning of the words used the scope and effect which the founders subjectively intended the section to have. i.e. debates may be used to the extent that they assist our understanding as to the intention of the framers, but not to “fill in the gaps”.
Greg Craven, “Original Intent and the Australian Constitution – Coming Soon to a Court Near You?” (1990)
• Shades of originalism:
- Overriding:
▪ If the words do not reflect intention, then intention trumps words.
▪ Unlikely to be used.
- Moderate/modified:
▪ Where the words of the Constitution are absolutely plain and unambiguous, originalism has no role to play – the intent of the framers is conclusively conveyed by those words.
▪ In case of ambiguity, extrinsically ascertained intent is controlling.
▪ More useful in application – realistic.
▪ However, many, if not most, constitutional provisions are sufficiently ambiguous as to admit of the requisite degree of doubt (were written in broad terms) → still has “a profound tendency to dethrone the bare words of the Constitution”.
• Any debate over original intent is unlikely to be as fierce in Australia as it has been in the U.S because the originalism debate in the U.S has largely been fought over the interpretation of the Bill of Rights, with its broad, sweeping guarantees of fundamental human rights – highly emotive context.
• Basic case for original intent: words are mere tools of communication to convey intent. Naturally, words are imperfect and therefore may imperfectly convey intention.
• Reasons why original intent is more plausible in relation to the Australian Constitution than the American:
- Democratic legitimacy: delegates of the States (i.e. the Founders) elected to Convention via parliamentary system.
▪ However, it is important to remember that women and indigenous were excluded from this voting process.
- Australian Constitution not as old as the American one → records are more accessible hence we can be more comfortable in looking at intention.
▪ However, even though the Aus. Constitution is not as old, society is still significantly different.
▪ Another fault in this argument is that it seems to suggest that originalism becomes progressively less relevant.
- Better than literalism and progressivism which have only managed to make the Cth. stronger (questionable value). The HC has, in main, been extremely timid in using its powers of interpretation to “recognise” human rights but rather have mainly departed from originalism for the purpose of expanding Cth. power. Originalism will appeal to those who wish to turn back the tide of judicial interpretation favouring the enlargement of Cth. power (since Framers intended for the States to retain the majority of powers).
Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation” (1997)
• Argues that although it does not solve all problems, recourse to legislative intent at least throws some light on interpretation. Judges, after all, “must settle the dispute: they cannot wash their hands of it and leave the parties to fight it out in the street”.
• Arguments raised against originalism (in its most extreme form):
- Impossible to gather a collective legislative intention:
▪ Argument rejected. The idea behind a collective intention is not that there can exist “an ontologically queer “group mind” which somehow transcends the individual minds of the members in the group. It is simply that people collectively engaged in a co-operative enterprise can knowingly hold the same interrelated intentions with respect to it”.
- Difficult to ascertain who “the founders” whose intentions are relevant are.
▪ Goldsworthy felt that evidence of the original intention applies equally to both those who drafted and debated the Constitution, and the voters who approved it.
- Dangerous to allow the “dead hands” of the past to be used to constrain the reading of the Constitution in a manner which accords with the values and principles of today’s generation.
▪ However, he argued that it is pointless having a Constitution if people are not willing to be governed by these past ideas.
▪ Further, the law is governed by precedent anyway.
▪ A similar argument could be used by the elected representatives (who also derive their powers from the Constitution) to claim powers which were not given to them.
▪ Lastly, s128 (democratic mechanism) allows for the Constitution to be changed pursuant to a popular referendum.
- “Representative government”, as envisaged by the voting provisions in the Constitution, now must be expanded or adapted to encompass what would now be regarded as essential features of that conception, even though they would not have been so regarded in 1900.
▪ Goldsworthy was concerned that the degree of flexibility envisaged here is judicially impermissible.
Originalism and Other ‘isms’
Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation” (1997)
• It is unhelpful to refer to Constitutions as being “broad and general” and requiring flexible interpretation as there must be limits to this flexibility – judges are not entitled to amend statutes as they see fit.
• Originalism is used to apply Constitutional text to new situations, and not to tie hands behind back – “the metaphor of the ‘living tree’ does not imply that everything is subject to change: indeed, the very possibility of growth depends on the trunk and roots remaining firmly in place”.
- Any “radical tree surgery” must be authorised by s128.
- There is enormous scope for legitimate judicial creativity when the Constitution is ambiguous, vague, or internally consistent. This is evinced by the many doctrines of specific provisions which are consistent with, but not required by, the text of the Constitution.
• “Methods” by which originalism would work while giving the Constitution a flexible operation:
- Application and enactment intentions: The founders’ intentions are relevant in deciding what a constitutional provision means. But once the meaning has been determined, and the question is how to apply it, their intentions are irrelevant.
▪ This argument depends on moderate originalism, and refutes extreme originalism.
- Connotation and denotation: the connotation of a constitutional provision must stay the same, although the denotation can change. Hence, originalism does not freeze the Constitution – only the essential meaning of the words is not changed.
▪ “Connotation” = the essential meaning of the word in the Constitution.
▪ “Denotation” = the things which may fall within that essential meaning over time (allows flexibility).
▪ e.g. s51(xix) re. “aliens” = “citizens of a foreign power” – in 1900 a subject of the Crown did not fall within this meaning. However, in 1988 and 1999 after Sue v Hill, it was recognised that a British subject was an “alien”.
- Non-literal, purposive interpretation: to enable the words, look at what the underlying purpose was and not be restricted by the literal meaning of the words.
▪ e.g. the U.S Constitution provides that Congress has the power to regulate “the land and naval Forces” without a mention of air forces which were unknown when the Constitution was created. However, it is clear that the intention of the founders was to give Congress the power to regulate all military forces.
Greg Craven, Conversations with the Constitution (2004)
• Three methods of interpreting the Constitution:
- Originalism
- Literalism
- Progressivism
• Originalism:
- Charms rooted in democratic theory – Constitution written by delegates elected by the people and later passed through a referendum.
- Idea that writing is a way to convey meaning.
- “Dead hands” argument.
- Difficulty in ascertaining what the founders’ intentions were. Though, it is recognised that there are numerous debates with which to aid in the interpretation process.
- Implication that it may provide the opportunity for rights to be invented.
• Literalism:
- Appeal: simple, certain, and warranted not to provoke political/intellectual argument.
▪ Irony: achieved the highly political outcome of centralising power.
- Argument that it is the safest way to understand a document – words of a document are the best guide to its authors’ intentions → a narrow version of originalism?
- Problem: ambiguity
• Progressivism:
- Offers a way to achieve radical (or any) change to the Constitution without the need for a referendum.
- Democracy must meet the needs of contemporary demands.
- Argument: HC is not elected → on what basis is it to determine that the Constitution must be varied in the interests of the Australian people? The idea that the Constitution is only mean to be a hint to the HC is a mockery to the huge amounts of effort spent by the founders in creating it.
- Result-orientated – ultimate justification is that it produces desired constitutional outcomes, e.g. human rights. However, constitutional interpretation involves more than the ‘right’ answer; the court should be able to identify, explain and defend its method – difficult to do with progressivism → judges have tended to dress it up as some implausible literal interpretation, or even a grotesque distortion of the founders’ intentions.
• Ultimately, Craven favours originalism.
Andrew Inglis Clark, Studies in Australian Constitutional Law
• Question: was progressivism the intention of the framers?
• The Constitution was not made to serve a temporary and restricted purpose, but framed and adopted as a permanent and comprehensive code of law. “… [H]ence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and possessors of the sovereign power, who maintain the constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved”.
• Constitution came to be seen as having derived its legitimacy from popular sovereignty (people control the constitution; whether to change it or to keep it as it is). Hence, it should be read from the people, and for the people, e.g. Mabo found that racial discrimination is contrary to present standards.
• If the present possessors of sovereignty discover that the result of their making decisions in accordance with the judicial interpretation of the direct words of the Constitution is contrary to their will, they can amend the provisions via s128.
- Counter-argument that this is unlikely – the courts’ word is often final (progressivism reconcile with democracy?)
Brownlee v The Queen (2001) 207 CLR 278
(Per Kirby J)
• If Constitutional interpretation was purely a matter of searching for the “intentions” of the framers, then there would only be a single answer which would eventually emerge. However, the Constitution must be given a meaning which reflects the different needs and circumstances of society.
• Words are not necessarily confined to the meaning that would subjectively have been ascribed to them by the Parliament that enacted them – they must operate in accordance with the accepted standards of a modern democratic society.
• “…as this Court embarks on the second century of the Constitution, it may be expected that the unreliability of the past criterion, and the demonstrated ambivalence of past practice, will indicate ever more clearly the error inherent in ‘faint-hearted originalism’. It will show the need for a different principle of interpretation, one appropriate to the task of giving effect to the nation’s fundamental law”.
Eastman v The Queen (2000) 203 CLR 1
(Per McHugh J)
• Defended the view that the judges’ responsibility is to give effect to the “intention” of the text, as ascertained by traditional methods of legal interpretation.
• Quoted Scalia J who, although acknowledged that old constitutional principles may be applied to new physical realities, emphasised that “acknowledging the need for projection of old constitutional principles upon new physical realities is a far cry from saying…that the Constitution changes”.
• The intention of the Constitution should be determined objectively from the text itself.
• Although the notion of constitutional intent is “fictitious”, it serves a useful purpose: it is an essential aspect of statutory meaning, not because the judge has any confidence that legislative intent is knowable, but because the judge is ultimately required to make the choices that best express the statutory text’s meaning.
• The Engineers case emphasised the necessity to construe the words of the constitution, to be read in the light of the circumstances in which it was made with knowledge of the combined fabric of the common law and the pre-Constitution statute law.
• Even when the court sees meaning in a constitutional provision which their predecessors did not see, the search is always for the objective intention of the founders.
• The Constitution was intended to be an enduring document able to apply to emerging circumstances while retaining its essential integrity.
• The fact that the meaning attributed to a particular provision now may not be the same as the meaning understood by the makers of the Constitution does not make constitutional adjudication a web of judicial legislation.
Re Wakim; Ex parte McNally (Cross-vesting Case) (1999) 198 CLR 511
(Per McHugh J)
• The judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. Its function is to give effect to the intention of the makers of the Constitution.
• Decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society.
• The intention of the founders can only be deduced from the words that they used in the historical context in which they used them.
• Many words of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use is that the makers intended that they should apply to whatever facts and circumstances succeeding generations thought they covered.
Precedent
• Issues:
- How useful are past interpretations as a guide/constraint upon judicial choice?
- Is the judges’ duty precedent/constitution?
- When to depart from precedent?
• Rules of precedent are not rules of law, but only rules of practice.
• The HC has made it clear that it is not bound by its own decisions.
THE HIGH COURT AND CHARACTERISATION
The Characterisation Process
• “Characterisation” = the process of determining whether a law falls within a s51 head of power.
- Done by ascertaining the subject matter or the purpose of the law.
• Foundation view of characterisation: “to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former” (United States v Butler 297 US 1 (1936)).
• Two step process: 1) Constitutional interpretation: interpret the limits of the subject-matter. 2) Characterisation: characterise the law, i.e. determine whether the challenged law lies within those limits.
- However, this is a very superficial relationship → order ultimately reversed.
- Relationship superficial as, ultimately, judges need to make a decision.
• Heads of power under s 51 are plenary in nature → to be interpreted broadly.
Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1
(As per Dixon J)
• The terms of the Constitution are broad and general, intended to apply to the varying conditions which the development of the community must involve → the Court should lean to a broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.
• Once, then, Parliament passes a law which is within the provision of the Constitution, that is all characterisation involves – there only needs to be a sufficient connection. It is not up to the Court to determine what is done with that power.
• Re. words “with respect to”:
- Not “on these topics” which is much more direct
- A broader and looser question, likened to “can fairly be described as”.
- In answering this question, the Court does not demand to be satisfied that the challenged law is a law “with respect to” the relevant topic, but only that it can fairly be described in that way – is there a sufficient connection between the law and a head of power?
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
(As per McHugh J)
• Steps in characterisation:
- First, the character of the law must be determined
▪ Done by reference to the rights, powers, liabilities, duties and privileges which it creates
- Secondly, a judgement must be made as to whether the law so characterised so operates that it can be said to be connected to a head of power conferred by s51.
▪ The practical, as well as legal, operation of the law must be examined.
- If a connection exists between the law and a s51 head of power, the law will be ‘with respect to’ that head of power unless the connection is ‘so insubstantial, tenuous or distant’ that it cannot be sensibly be described as a law ‘with respect to’ the head of power.
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
• General principles to be applied in construction:
- The constitutional text is to be construed “with all the generality which the words used admit”.
- When the validity of legislation is in question the task is to consider whether it “answers the description, and to disregard purpose or object”
- The character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates.
- The practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power.
- In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in s51, it will be valid notwithstanding that there is no independent connection between the two.
- If a sufficient connection with the head of power does not exist, the justice and wisdom of the two, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice.
Trade and Commerce
s51(i): “Trade and commerce with other countries, and among the States”.
Limits of s51(i)
• The language of the placita – ‘among the States’:
- Does not mention intrastate trade and commerce
- Acts proprietary to trade ≠ trade and commerce.
• Effect of s92 (James v Commonwealth):
- Guarantees that interstate trade and commerce be absolutely free.
- Anything that restricts the freedom will be invalidated.
W&A McArthur Ltd v Queensland (1920) 28 CLR 530 – Scope
• Provides a list which sets out (not exclusively) what is considered to be “trade and commerce”: “the mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery…”
• Does not cover:
- Manufacture and production of goods
- Consumption
• However, the power appears to be quite broad.
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29 – Airline Service
• Facts: The Cth. Act authorised the Australian National Airlines Commission to operate an airline service interstate (and also to operate within any Territory).
• Found: The creation and operation of the airline service was valid: the power to legislate with respect to interstate trade and commerce could be used by the Cth. to establish its own government-owned instrumentality to engage in such trade and commerce.
• Held:
- Limits of s51(i):
▪ Does not cover intrastate trade and commerce.
▪ The Australian Constitution has refused to adopt the “commingling” doctrine, i.e. the idea that interstate and intrastate trade are so commercially interdependent that governmental power to regulate the former must necessarily extend to the latter.
▪ s51(i) must be read in light of s92 which provides that “trade, commerce, and intercourse among the States…shall be absolutely free”.
Bank Nationalisation Case – Financial Transactions
• Financial transactions are within the ambit of s51(i).
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 – Power to Control Exports/Imports Within s51(i)
• Facts: Under the Customs Act, Cth. prohibited exports. The operation of the plaintiff companies produced zircon and rutile concentrates, which they sought export approval for. They were informed that no decision on their application would be made until a recommendation had been made by the Minister for the Environment who was to ensure that environmental issues would be taken into account before making a decision. The validity of the prohibition was challenged. Argument raised by the plaintiff was that this was not a law subject to s51(i) as it was an environmental issue.
• Held:
- The power conferred by s51(i) enables Parliament to prohibit, regulate and control the importation and exportation of goods, matters which lie at the heart of trade and commerce with other countries.
This necessarily comprehends the power to select and identify the persons who engage in, and the goods which may become the subject of, that activity. The means and criteria by which this choice is to be made are for Parliament to decide and it does not follow that the selection must be made by reference to considerations of trading policy.
Dual Characterisation
• Deals with instances of two possible characterisations: one in accord with a grant of power, one not.
• Approach of assuming that each statute must possess only one subject-matter (its “pith and substance”) has been discredited.
- Approach was used in R v Barger where the law was held to be invalid as, although there was a tax involved, the Court found that it was actually about industrial relations conditions.
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1
• Facts: Law provided for the assessment of income taxation and could be used to induce superannuation funds to invest in Cth. bonds by exempting them from income tax if they did so and by subjecting them to a special rate of tax if they did not.
• Issue: Law validly enacted under Cth.’s taxation power in s51(ii)? Argument that it was a law re. investment of money.
• Found: Law valid.
• Held:
- If a law is characterised as one with respect to a head of Cth. power, it does not matter that it also affects a matter not included in the heads of Cth. power.
- In characterising a law the focus should be on its direct legal operation, as ascertained from its text and from the legal rights and liabilities affected thereby.
▪ It is irrelevant to inquire into the ultimate indirect consequences of the operation of the law.
▪ However, this does not mean that one should look merely at the topic for why the law was passed – need to look beyond the form of the law and look to its substance to see if it falls within s51. The topic the law has been placed under may be helpful in doing so.
- Error of confusing the distinction between form and substance with the distinction between the major and minor importance which a reading of the Act suggests that those who passed it may have attributed to the various aspects of its operation.
Subject-Matter or Legislative Purpose?
• Subject-matter grants of power:
- Most provisions in s51 stated in terms of subject-matter.
- Examples given of “subject-matter” powers were those described ‘by reference to a class of legal, commercial, economic or social transaction or activity; or by specifying some class of public service; or undertaking or operation; or by naming a recognised category of legislation” (Stenhouse v Coleman, as per Dixon J).
- Subject-matter can be intangible
- Test: sufficient connection between law and head of power
- As long as the subject-matter of the law is located within the ambit of the constitutional grant of power, the way that Parliament deals with that subject-matter, and its purpose in doing so, are judicially irrelevant.
• Purposive powers:
- s51(vi) (defence) and s51(xxix) (external affairs) to be set apart as the Cth. was given those powers to advance the interests of the Cth.
▪ Defence power expands and contracts according to context (with respect to national security needed), e.g. in times of peace the power contracts.
▪ External affairs power does not have as much elasticity, but broadly interpreted to give effect to the policy of the time.
- Test: proportionality – is the law reasonably appropriate and adapted to the purpose of the grant of power?
▪ The purpose must be collected from the instrument in question the facts to which it applies, and the circumstances which it called forth.
• The purpose of a statute may also be used in the process of statutory construction whereby the legal scope and operation of the law is determined as a precursor to the process of characterisation.
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 – Activity at the Heart of the Subject Matter
• Facts: (See above, under ‘Trade and Commerce’)
• Found: Plaintiff failed as the law was dealing with the regulation of exports (at the heart of the subject-matter), albeit the selection was made with reference to criteria having little relevance to trade and commerce. Deals with subject-matter power → only need sufficient connection.
• Held:
- It is enough to say that the law deals with the permitted topic; it does not cease to deal with that topic because factors extraneous to the topic may be taken into account in its application.
- Confirms Fairfax: do not be confused – look to the rights/obligations created, which will guide you towards the substance.
- The Cth. can, in dealing with matters falling within the subject-matter of a power given by s51, make laws which have a consequential and indirect effect on matters standing outside the power – it is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Cth. has no power to legislate.
▪ Demonstrates that s51(i) can be used to regulate things which are outside of “trade and commerce” quite easily – can be used to control acts proprietary to trade.
Incidental Power
• Express distinguished from implied:
- Express = provided by s51(xxxix) which gives power to legislate with respect to “matters incidental to the execution of any power vested by this Constitution…”
▪ Operates not only in respect of the legislative powers granted y the Constitution, but also in respect of the executive and judicial powers so granted.
- Implied = necessary to give effect to the main grant in s51 (extra power) → just within power (D’Emden v Pedder; Grannall v Marrickville Margarine Pty Ltd).
▪ Need for a “sufficient connection” between the matter sought to be regulated with the main grant of power.
• May be used to cover acts proprietary to trade (re. s51(i)).
• NB. In an exam, when incidental powers are called upon, give a one line explanation as to what it is and then cite a case.
Incidental Power and s 51(i)
• Issue of horizontal integration: how far can the Cth. go in interfering with intrastate trade?
R v Burgess; Ex parte Henry (1936) 55 CLR 608
• Facts: Air Navigation Act authorised the making of regulations “for the control of air navigation in the Cth. and the territories”. The validity of the Act was challenged. Argument: In order to have effective control over interstate traffic, there must be control over intrastate traffic. The Cth. has power under s51(i) to make regulations in relation to aircraft engaged in interstate trade and commerce and, in order to ensure the safety of interstate commerce the Cth. can make its air-navigation regulations applicable also to aircraft flying intrastate.
• Found: Argument failed. s51(i) held to imply a clear distinction between interstate and intrastate trade and commerce, to which a general provision for “air navigation in the Cth.” could not conform.
• Held:
- Although foreign and interstate trade and commerce may be closely associated with intrastate trade and commerce, the power to deal with the former subject does not involve an incidental power to deal with the latter subject.
- Need for a strict observance of boundary between overseas and interstate trade (which the Cth. may regulate) and intrastate trade (which it may not).
▪ Idea that it would be a good idea to regulate the two under the same scheme is not a sufficient reason to cross these boundaries – “considerations of wisdom or expediency cannot control the natural construction of statutory language”.
- Resistance to any analogy with the U.S “commingling” doctrine.
- Did not deny that there may be occasions when parts of intrastate trade and commerce will be seen to occupy so direct and proximate a relationship to interstate trade and commerce that the agents and instruments of the former will be drawn within the ambit of Federal power, for otherwise the particular Cth. regulation would be entirely frustrated and nullified.
Airlines of NSW v New South Wales (No. 2) (1965) 113 CLR 54 – “Sufficiently Proximate Relationship”
• Facts: Cth’s air navigation regulations amended so as to apply to intrastate flights. The two relevant regulations: reg. 198 (prohibited use of aircraft for public transport unless licensed under the Cth. scheme) and reg. 199 (provided for issuing of licenses to intrastate air services after consideration to safety and efficiency factors).
• Found: Cth. regulations were valid as they were held to be necessary. Given that flying is such an unpredictable activity, the Court found that they could not just let intrastate airline activity do whatever they want. With regards to safety and efficiency, unless intrastate flights are regulated, it may affect the Cth’s power over interstate air travel. Distinguished from Burgess:
- Considerations in reg. 199.
- The intrastate commerce was going to impact on the interstate trade/commerce, and hence they were sufficiently connected. The power invoked was the power to protect Cth. power (if law not allowed, the subject of the Cth’s power would be interfered with).
▪ Does not reject the Burgess rejection of commingling.
▪ Although a similar argument was put forward in Burgess, in that case the court was not convinced – it put forward that it was a good idea, but it was not said to be a necessity.
• Held:
- In order for an incidental power to be called upon to allow the Cth. to make laws re. intrastate trade/commerce, the effect of the intrastate activities on interstate activities must be “physical interference” to the activity itself so as to warrant the making of a law which will protect against such interference.
▪ Purely commercial/economical impacts are not enough – too close to commingling.
Attorney-General (WA) v Australian National Airlines Commission (1976) 138 LR 492
• Facts: Cth. runs airline flying from Perth to Darwin. It decided to stop at Port Headland. The basis of this new flight was because it would be economical to do so – legislation made it clear that this was the motivation.
• Found: Act invalid – applying the Second Airlines Case, economic interference is not a basis for necessity. However, the law was found to be valid in terms of the territory’s power (s122) – the flights were within the territory.
O’Sullivan v Noarlunga Meat (1954) 92 CLR 565 – Using Implied Incidental Power to Regulate Acts Proprietary to Trade
• Facts: Reg. 5 of the Commerce (Meat Export) Regulations (Cth.) provided that all premises used for the slaughter, treatment and storage of meat, meat products or edible offal, for export were to be registered → dealt with acts proprietary to trade. Reg. 4B laid down elaborate health requirements which registered premises had to comply.
• Issue: How far back can the concept of trade go? And when?
• Found: Regulations valid.
• Held:
- Since the Cth. has power to regulate trade and commerce, it follows that they necessarily have the power to control and supervise the quality of what is being exported/imported. This extends to the packing, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an export market by developing/impairing it.
- Just being at the gateway may not be enough to guarantee quality → may need to go further back so as to regulate acts proprietary to trade.
- The situations when it is acceptable to go back further than the gateway to regulate acts proprietary to trade, e.g. slaughter of meat:
▪ When there is a sufficient connection between the acts and the final export of the goods, i.e. when the acts or processes can be identified as being done or carried out for export.
▪ Even at the pre-trade stage, it is possible to recognise that the meat is to be exported as opposed to being processed for home consumption (needs to be preserved for delivery) → sufficiently connected. This is only applicable to meat, and may be different in the cases of mining or wheat.
▪ What is important when determining whether the act, e.g. slaughter, is for the purposes of export is not the subjective intention of the slaughterer - it is the objective intention as ascertained from the process of the activity.
▪ Where it is unclear at the stage of production whether the final product is to be exported, there is no sufficient connection and the goods need to enter the actual stage of trade before they can be regulated.
- Demonstrates that the implied incidental power is not easily invoked – need for a strong connection.
INCONSISTENCY OF LAWS
s109: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.
• In order for s109 to apply, there must be a valid State law and a valid Cth. law. If either is invalid, then no conflict of “laws” arises.
• When a State law fails because of s109, it is not “invalid” in the positivist sense that the State Parliament lacks the power to pass it. The State law, although enacted with full validity, merely ceases to operate.
- The practical significance of this will become apparent if, at some later date, the overriding Cth. law ceases to operate.
- Once the bar to its practical operation is removed, there is no reason why it should not resume its normal legislative effect.
Three Tests of Inconsistency
• There are three broad tests for inconsistency:
- If it is impossible to obey both laws (R v Brisbane Licensing Court; Ex parte Daniel).
- If one law purports to confer a legal right, privilege or entitlement that the other law purports to take away or diminish. It will not be impossible to obey both but they are clearly inconsistent (Colvin v Bradley Brothers – in this case it was not necessarily impossible to obey both laws as the State could easily have just not employed female workers, but this would have taken away the right given by the Cth.).
- If the Cth. law evinces a legislative intention to “cover the field”, i.e. it is meant to be the only law in that area and nobody else can legislate with regards to that matter. (Clyde Engineering Co Ltd v Cowburn; Ex parte McLean; Telstra Corporation v Worthing). In such a case, there need not be any direct contradiction between the two enactments. This involves two questions:
▪ Is the Cth. law intended to be exclusive? In answering this question, the Court will look at a variety of factors, such as the subject-matter of the law and whether for the law to achieve its purpose it is necessary that it be a complete statement of the law on that topic.
▪ Does the State law operate in the same field as the Cth. law?
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
• Facts: The State law prescribed “ordinary working hours” of 44hrs/wk (with OT entitlements thereafter) while the relevant federal award fixed this at 48hrs/wk (without OT). Cowburn, relying on the State Act, worked a 44hr wk. His employer, relying on the federal award, then deducted money from his pay. By adopting a 44hr wk it was possible to comply with both laws: but the rights of the employer under the federal law were denied by the State law, while the rights of the worker under State law were denied by the federal law.
• Found: The Cth. law took priority. If it were otherwise, i.e. if the Cth. reward system was subject to the State one, then the rights/obligations of employees in Australia would be in a state of utter uncertainty and confusion as State Parliaments would be free to enact any additional complications in this area as they would like.
• Held:
- The “vital question” is: was the second Act in its true construction intended to cover the whole ground, and therefore to supersede the first?
▪ Where a competent legislature expressly or impliedly evinces its intention to cover the whole field, then inconsistency is established in giving any operative effect at all to the first Act because the second was intended to entirely exclude it.
▪ This is so even if it is possible to obey both laws.
- Where that wholesale inconstancy does not occur, but the field is partly open then it is necessary to inquire further and possibly to examine and contrast particular provisions. If one enactment makes or acts upon that which the other makes unlawful, the two are to that extent inconsistent, even though it is possible to obey both by simply not doing that which is declared to be unlawful.
- The question is whether there is inconsistency, contrariety, repugnancy between the State law and the scope and purpose of the law of the Cth.
Ex parte McLean (1930) 43 CLR 472 – Rule of Conduct; Different Penalties
• Facts: The Conciliation and Arbitration Act (Cth) held that a person in breach of an award was liable to a penalty not exceeding a max. to be fixed by the Court of Conciliation and Arbitration. The State Act fixed this penalty at a max. of ￡10. McLean was accused of not having fulfilled his contract. He argued that, because he and his employer were both bound by an award made under the Cth. Act, the State Act was thereby rendered invalid by s109.
• Found: There was an inconsistency between the two laws as the same acts or omissions were made subject to the penal sanctions of the Cth. enactment as well as to the different penal sanctions of a State enactment.
• Held:
- Where both a Cth. and State Act are on the same subject and prescribe what the rule of conduct shall be they are inconsistent notwithstanding that the rule of conduct which each prescribes is identical. This is settled, at least when they inflict different penalties. The reason for this inconsistency comes from the fact that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter.
- This test is open to manipulation – it is based on intention: if it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be established in imposing the same duties or in inflicting different penalties.
Telstra Corporation v Worthing (1997) 197 CLR 61
• Facts: Worthing made a claim in respect of injuries he sustained while working for Telstra. The injuries were not compensable under the State legislation. One of the injuries was covered by Cth. legislation.
• Found: Because the compensation available under that Act was different from that available under the State Act, the State Act would have the effect of qualifying or impairing the Cth Act, and to some extent directly negating it → inconsistency under test 2 (and perhaps test 1).
• Held:
- If the State law, by granting certain rights, would deny or vary a right, power or privilege conferred by the federal law, there would be inconsistency notwithstanding that the subject-matters of the two laws are not co-incident.
- The three tests are not interdependent; so if test 2 is satisfied, then even if test 3 is not, then the law will still be invalid.
- Demonstrates that it is important not to go straight to test 3 – you also need to consider tests 1 and 2 as well.
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 237
• Facts: A license for a new commercial radio station had been given under a Cth. Act on the condition that two antennae were erected.
• Found:
- Test 1: Although the Cth Act held that any person who fails to comply with the conditions would be guilty of an offence, it stopped short of requiring a licensee to disobey the State law. If, in order to fulfil the conditions a person had to break a State law, then that person would simply not get the licence → no inconsistency.
- Test 2: A license condition requiring the company to erect the two antennae was construed short of giving an authority to do so→ no inconsistency as the State law has not negated any right.
- Test 3: The two laws were directed to different purposes (one to the technical requirements of broadcasting, and the other to the environment), and therefore occupied different fields → no inconsistency.
• Held:
- It is erroneous to construct a general offence-creating provision as conferring authority to do the many and diverse things which fall within its scope if the doing of those things is prohibited by other laws. The better construction is to read the provision as not applying to a failure to comply with a condition where compliance is impossible without contravening another law.
Ansett Transport Industries v Wardley (1980) 142 CLR 237
• Facts: Wardley tried to become the first female commercial airline pilot. By way of explanation of the decision not to employ her, the GM of Ansett employed a policy of employing men as pilots. The Victorian State legislation made sex discrimination in employment/dismissal unlawful → the Board ordered that Ansett employ her. Ansett argued that this Act was inconsistent with a Cth. Act which provided that Ansett could dismiss pilots of less than 6 months’ service by giving seven days’ notice in writing.
• Found: No inconsistency as the laws occupied different fields – the Cth. law was concerned with regulating industrial matters, and its terms were to be construed accordingly; they were not to be regarded as trespassing upon alien areas remote from its purpose and subject matter, including sex discrimination. There was nothing in the Cth. law to indicate that it should stand inviolate, unresponsive to a general law applicable to the community at large. Further, the Cth. Act did not confer an absolute right of dismissal – it merely set out the procedures to be followed in a case where there is a right of dismissal under the general law.
• Held:
- Whatever rights are conferred, if they are not intended to be absolute, they are to be conferred against the backdrop of other State/Cth. laws (similar to in Coffs Harbour).
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
• Facts: Gouldron, took out life insurance with AMP and sought to vary the policy in such a way so that AMP would waive the payment of premiums during the period of disablement if he got hurt. The change was refused because of his blindness. The Anti-Discrimination Act (NSW) made it unlawful to refuse to provide services to a person due to their disability. The Life Insurance Act (Cth.) provided that “A company shall not issue any policy unless the rate of premium chargeable …is a rate which…is suitable for the class of policy to which that policy belongs”.
• Found: The State law was inconsistent with the Cth. law. The Life Insurance Act was meant to operate without being burdened by discrimination issues (it already took discrimination into account, and was meant to discriminate) → meant to cover the field.
• Held:
- A State law is rendered inconsistent if it would alter, impair or detract from the operation of a Cth. law – operational inconsistency.
Operational Inconsistency
• Compared with the “cover the field” test:
- Potentially farther reaching: may arise even when the two laws are addressed to completely different fields.
- Potentially narrower: what it would render inoperative is not the whole of the State law, but only those particular applications of it which impact on the Cth. law.
APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403
• Facts: State regulation prohibited any advertisement for legal services referring to personal injury. The alleged “impairment” was of Cth. laws establishing rights to compensation for victims of personal injury and of laws establishing rights of appearance in federal courts.
• Found: Inconsistency not found as a basis for striking out the State Act – can be explained under test 2 or 3.
- Gleeson CJ and Heydon J:
▪ Keen to distinguish Goulden – discrimination is the essence of life insurance. However, the State law was enacted at a time when restricting lawyers from advertising was generally accepted. Also, preventing advertising will not hinder the operation of the lawyers’ duties nor the rights given by the federal laws.
- Kirby J (dissent):
▪ The Cth. Acts were aimed at providing people who suffered personal injury with a remedy. Unless persons affected may be informed about the existence of such rights, and how they may go about enforcing them, the rights in many cases will be entirely theoretical.
▪ Act (in prohibiting advertising) will prevent the public from knowing of these rights – operational inconsistency.
• Held:
- A slight or marginal or insignificant impact of a State law upon a federal law will not give rise to a constitutional inconsistency. The impact must be one of some significance and such as would have the effect, if the State law were valid, of precluding, overriding or rendering ineffective an actual exercise of federal jurisdiction.
Express Intention Clauses
• Cth. can avoid the result of the courts misconstruing their intent and striking out State laws by expressing their intent to not cover the field. Such a declaration will be accepted by the HC as a virtually conclusive indication.
- Though there may be doubt whether it can “cover the field” by an express provision declaring its legislative intention to do so.
Wenn v Attorney-General (Vic) (1948) 77 CLR 84
• Facts: Cth. Act made no provision for preference to ex-service personnel in promotions, while the State Act did provide for such preference. The Cth. Act expressed an intention to cover the field (s24).
• Found: State Act overridden by the Cth. Act.
- Although no direct inconsistency, State Act found to be inconsistent through the operation of s24.
- Dixon J: although s24 useful, still up to the court to determine any inconsistencies.
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453
• Upheld Wenn.
• Cth’s attempt to create runway. Local government unhappy → Cth. passed Act which evinced an intention to cover the field (even mentioned laws which are not to apply).
• Result: criticisms of Ebett remain valid ones but are not to be addressed. If Cth. expresses their intention, the Cth. does cover the field and any State law inconsistent is rendered inoperative.
Retroactive Laws and the Purpose of Section 109
Viskauskas v Niland (1983) 153 CLR 280
• Facts: Cth. passed Racial Discrimination Act in 1975. State passed similar legislation in 1977. Republican charged under State Act for rejecting to provide services to Aboriginals. He argues that the State Act is inconsistent.
• Found: Cth. meant to cover the field → State Act inoperative.
• Cth. then passed the RDA Amendment 1984 stating that the Cth. Act was not meant to cover the field (after the case was determined).
University of Wollongong v Metwally (1984) 158 CLR 447
• Facts: Case occurred during the time of Viskauskas. Metwally was a student at the uni who felt that he had been discriminated against.
• Issue: Can the Cth. retrospectively evince an intention to cover/not cover the field?
• Found: 4:3 decision against Metwally – Cth. cannot evince an intention to retrospectively cover the field:
- Gibbs CJ: idea of respect for judicial determinations → will not let Cth. intervene by overturning something that they had already made a decision on.
- Deane J: once intention has been determined, it is a fact and it is not for the Cth. to switch s109 on and off as it sees fit (not for Cth. to reverse court’s judgement).
- Minority: argued that the Cth. retrospectively altering their intention is no different from Parliament passing retrospective legislation.
• Held:
- Parliament can enact retrospective legislation. However, the objection is if they change their expression of intention (which had already been decided on) retrospectively.
• NB. Despite this judgement, Metwally can still take the uni to court using Cth. legislation.
THE EXTERNAL AFFAIRS POWER
s51(xxix): “External affairs”
• Mere externality is enough to invoke this power (XYZ v Cth).
• Re. treaties:
- Any treaty with any subject matter has the potential to enliven the power (Tasmanian Dam and Industrial Relations Act case).
- The law must be reasonably capable of being considered appropriate and adapted to implementing the treaty (Tasmanian Dam and Industrial Relations Act case).
- Partial implementation of a treaty is acceptable unless the result is that the law does not reflect the purpose of the treaty (Tasmanian Dam and Industrial Relations Act case).
- The view of an international concern without a need for a treaty has been argued over. No case has accepted a law on the basis of such a concern without a treaty, but it has not been rejected either (Koowarta).
- Situation re. recommendations inclusive (Burgess and Industrial Relations Act case).
Relations with Other Countries
R v Sharkey (1949) 79 CLR 121
• Facts: S was a communist charged with expressing “seditious intentions” (as defined in the Crimes Act) towards the British Empire.
• Found: Law valid as one with respect to “external affairs”
• Held:
- “External affairs” designed to be as broad as possible.
- The relations of the Cth. with all countries outside Australia including other Dominions of the Crown are matters which fall directly within the subject of external affairs.
Matters External to Australia
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501
• Issue: Whether in 1988, the Cth. Parliament could legislate to identify as “war crimes” certain crimes committed in Europe during WWII using s51(xxix). Will the legislation be valid merely on the basis that it deals with something external?
• Brennan finds the Act outside of the power – wants further requirement. Could Aust make a law incriminating littering on the streets of Paris? Brannan thinks that there needs to be some sort of nexus. This is a minority objection to the view that mere physical externality is enough.
• P.901 Nexus argument
• Nexus argument: Justice Toohey was satisfied since Aust. was involved in war. Mason also found nexus simply that it is not the duty of the court to second guess parliament’s finding of a nexus.
• Majority (Mason CJ, Deane, Dawson and McHugh JJ) found that the Act was in power: the mere fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia enough.
• Reasoning:
- Do not want to restrict meaning – Constitution to be interpreted with a broader meaning (liberal meaning).
- ‘anything, any person external to Australia is enough…”
- If mere externality is not enough, there would be a gap between Cth. and State powers:
▪ However, Brennan argues that when governments cannot legislate on you, it means that citizens get a break (i.e. individual liberty).
- No requirement found of an Australian connection (as wanted by Brennan) – no such qualification to provide a check on the Cth’s power.
- P.903 universal jurisdiction
Horta v Commonwealth (1994) 181 CLR 183
• Facts: Challenge to legislation passed pursuant to a treaty between Australia and Indonesia based on international law.
• Found: Court did not have to look at the treaty; the fact that the matter was external to Australia was enough – Court’s position unchanged since 1991.
• P.902 “regardless of the mere fact external to Australia…or whether one or additional factors is necessary…obvious and substantial nexus…”
• Question of whether mere externality is enough was left open unanimously as in this case the matter was connected to Australia.
XYZ v Commonwealth (2006) 227 ALR 495
• Facts: Relevant legislation prohibited child sex offences overseas. XYZ committed child sex offences in Thailand. He argued that the Cth. does not have the power to pass a law criminalising conduct occurring in another country.
• Found: Court splits on issue 5:2
- Majority confirms earlier cases by saying that mere externality is enough and they upheld the law on that basis. However, Kirby (in majority) keeps the question open.
- Callinan and Heydon (minority):
▪ Extraterritoriality of states needs to be considered. Mere externality is not enough.
▪ If mere externality is enough, it leads to bizarre situations where acts would be criminalised which are not criminalised domestically.
Treaty Implementation – An Initial Approach
• s51(xxix) authorises laws within Australia to implement the provisions of an international treaty.
• Universal jurisdiction?
• Can the Commonwealth make international law?
R v Burgess; Ex parte Henry (1936) 55 CLR 608
• Was the legislative implementation of a treaty permitted by s51(xxix)?
- Everyone said yes, but the threshold was different.
- Evatt and McTiernan JJ:
▪ Gave the widest reading of the power (concurred with by Latham CJ): Parliament can legislate not only with regards to obligations under the treaty, but also any recommendations or draft international conventions. P.905
▪ Limits P.906 “bona fide…not a mere device”.
▪ Their reasoning for this is that there is no restriction imposed upon the Cth. to enter into international treaties.
- Dixon J:
▪ The treaty needs to be in reference to some matter “indisputably international in character” and the obligations imposed must be of a nature affecting the conduct of Australian citizens.
▪ Rationale so as to prevent Cth from acquiring vast amounts of power which are not regarding external affairs but are merely domestic in nature.
- Starke J:
▪ Test similar to Dixon’s, though may be a little less restrictive – “the laws will be within power only if the matter is “of sufficient international significance to make it a legitimate subject for international co-operation and agreement””.
• What relationship needed to exist between the treaty and the legislation?
- Evatt and McTiernan JJ p.906:
▪ The laws or regulations which are passed by the Cth. should represent the fulfilment, so far as that is possible in the case of laws operating locally, of all the obligations assumed under the convention (quite restrictive).
▪ Reasoning: since Cth. power arises from the purpose of implementing a convention, the resulting legislation must be confined to that purpose in order to be valid.
▪ This requirement does not necessarily preclude the exercise of wide powers and discretions by the Parliament or the Executive, for the international convention may itself contemplate that such powers and discretions should be exercisable by the appropriate authority of each party to the convention. Everything must depend upon the terms of the convention, and upon the rights and duties it confers and imposes.
- Starke J:
▪ Much more flexible/ more latitutde – “All means which are appropriate, and are adopted to the enforcement of a convention and are not prohibited or repugnant to or inconsistent with it, are within power. The power must be construed liberally”.
• The current situation is the view expressed by Evatt and McTiernan JJ (flexible approach to the first question, and restrictive to the second).
• 3:2 split on regulations was not within the power.
• There is a lack of conformity of the international law with the domestic law. External affairs is seen as a subject matter power and the treaty implementation is a purpose power and proportionality becomes important. If there is a lack of conformity, there is invalidity.
• Understanding judicial choice and subjectivity in this question.
R v Poole; Ex parte Henry (No. 2) (1939) 61 CLR 634
• Facts: Under Cth. legislation, planes must fly at a height above 2,300ft over any part of the airport (except during lift-off/landing). The treaty forbade flying below 700m (= 2296ft 7 inches) over only the neutral zone of the airport. The validity of the legislation was challenged.
• Found: Validity of the legislation was upheld as the wider Australian prohibition was “a not improper method” of ensuring strict obedience to the Convention rule. The difference in height was only a matter of conversion, and the added area was necessarily ancillary to the landing proper area”.
• Shows that domestic regulations do not have to exactly adhere to the treaty – there is still some flexibility allowed in fulfilling the obligations (though the flexibility is not as broad as that stated by Starke J).
Treaty Implementation – Modern Jurisprudence
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
• Facts: Racial Discrimination Act was enacted to implement Australia’s obligations under the 1966 International Convention on the Elimination of All Forms of Racial Discrimination.
• Result: 4:3 (narrow) decision that the Act was valid on the ground that it is nowadays “undoubted” that the suppression of racial discrimination is of international concern – unsatisfactory, considering the importance of such legislation? Stephen swing vote.
• Minority (Gibbs CJ, Aickin and Wilson JJ): agreed with Dixon J’s requirement that the treaty needed to be “indisputably international in character”.
- Gibbs’ major concern was that a liberal approach would open up the door for legislature to legislate on matters not otherwise within their power → eating into the powers of the State and destroying the federal balance achieved by the Constitution.
▪ However, he makes it clear that he is not taking a pre-Engineers position, i.e. that of reserved state powers. The problem in taking into account of a Federal balance in construing the words “external affairs” in s59.
■ Break down by legal test: (1) Federalism balance (2) Power and overreach- executive power
- Discussion that “bona fides” may not be a restriction of power: afraid that two countries may have an agreement to form an international treaty when there is a matter that their legislatures want to legislate on. However, the court thought that courts will be able to assess the bona fides of the Cth. → Gibbs dismisses this as being unrealistic.
- The fact that other countries are concerned with racial discrimination does not make racial discrimination an international affair – “a matter does not become an external affair simply because Australia has entered into an agreement with other nations with regard to it”. If the subject matter affects relations with other countries, it may be an external affair. But racial discrimination does not fall within this category (as per Gibbs) → But if the existence of a treaty is not enough, what is?
• Mason, Murphy, and Brennan JJ (majority): saw no limitation as was proposed by Starke and Dixon JJ in R v Burgess:
- Murphy J found there to be no problem with the legislation dealing with internal, as well as external, affairs.
• Stephen J (majority) held that what was required was that the treaty be a matter of “international concern”.
- An examination of subject-matter, circumstances and parties will be relevant whenever a purported exercise of s51(xxix) power is challenged. It is not enough that the challenged law gives effect to treaty obligations.
- A subject-matter of international concern necessarily possesses the capacity to affect a country’s relations with other nations and this quality itself is enough to make it a subject-matter a part of a nation’s “external affairs”.
▪ This may include “conduct on the part of a nation, or of its nationals, which affects other nations and its relationship with them”.
- That a consequence would seem to be an intrusion by the Cth. into areas previously the exclusive concern of the States does not mean that there has been some alteration of the original federal pattern of distribution of legislative powers – all that has occurred is a growth in the content of “external affairs”.
- There is no actual need for a treaty if international concern is present – although a treaty would indicate that there is such a concern, there is no formal requirement that there be one → unsatisfactorily loose test?
▪ The others feel that a treaty is a treaty.
▪ The view of an international concern without a need for a treaty has been argued over. No case has accepted a law on the basis of such a concern without a treaty, but it has not been rejected either → Must address this issue in exams.
• Stephen: subject matter must be one of international concern rather than domestic concern. Middle ground. “International concern as an independent basis ‘
▪ Majority argues that the mere fact of entering bona fide into an international treaty is of international concern. So to look for international concern is redundant.
• The “lowest common denominator” of the four majority judgements: the implementation of a treaty is valid under s51(xxix) at least when the subject is of “international concern”. However, since this test was relied on only by Stephen J, this case may stand for nothing more than its result.
• The majority had it’s own reservations to a narrow view being taken- This global environment calls for a need, it speaks to human rights in domestic settings, if Aust is going to be a participant in the global environment, it must give effect to be a credible participant in international affairs.
• Consequence: Is the HC going to say Cth has no power to make laws on racial discrimination.
• Legal Doctrine: mere bona fide into a treaty will give validity. Majority sees no need for further requirements than bona fide. (Minority- Gibbs Aiken and Dawson): if the subject matter is an external affair and the subject matter of the treaty is an external affair, that makes the law valid.
• P.910 Gibbs: “the fact that many nations are concerned that other nations should eliminate racial discrimination…does not mean the domestic… become inverted into international affairs.”
• P.911 “as with slavery and genocide…relevant to international…”
• Murphy: Globalisation dooms domestic and international differences.
• Stephen: subject matter must be one of international concern rather than domestic concern. Middle ground. “International concern as an independent basis ‘
• Majority argues that the mere fact of entering bona fide into an international treaty is of international concern. So to look for international concern is redundant.
• Ratio: leaves the law in an uncertain situation.
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
• Facts: Government had taken action under the World Heritage Properties Conservation Act (Cth) to stop the damming of the Franklin river system in Tasmania. s6 of the Act provided that a proclamation may be made in relation to an identified property that is/not in any State and is either: suitable for inclusion in the World Heritage List, the protection of which is a matter of international obligation/giving effect to a treaty. Under s9 of the Act, it would be unlawful for a person to do any act that damages/destroys the proclaimed property.
• Found: Since it was accepted that the Tasmanian wilderness was a part of world heritage, its preservation, as well as being an internal affair, was also a part of Australia’s external affairs. However, the dissenting judges felt that the building of a dam in Tasmania was no of “international concern”, and hence not an external affair.
• The majority of judges applied the “international concern” test.
• Minority (Gibbs CJ, Wilson and Dawson JJ): settled for the “lowest common denominator” test proposed by Stephen J in Koowarta – “international concern”.
- Whether a matter is of international concern depends on the extent to which it is regarded by the nations of the world as a proper subject for international action, and on the extent to which it will affect Australia’s relations with other countries (Gibbs CJ).
• Majority (Mason, Murphy, Brennan and Deane JJ):
- Mason, Brennan and Deane JJ accepted that the mere existence of an international obligation was enough to attract the external affairs power.
- Mason J rejected the test of “international concern” as being “too elusive” and as yielding “no acceptable criteria or guidelines”.
▪ If a topic becomes the subject of international cooperation or an international convention, it is necessarily international in nature.
▪ The decision as to whether the subject-matter of a convention is of international concern is a question for the executive and legislature to decide, not the court to second guess what is of international concern (not judiciable issue for court).
- Murphy J did not reject the test of “international concern” but treated it as only one of several different criteria, any one of which was sufficient to attract a power under s51(xxix).
▪ The fact that a subject becomes part of external affairs does not mean that the subject becomes a separate plenary head of legislative power. If the only basis upon which a subject becomes a part of external affairs is a treaty, then the legislative power is confined to what may reasonably be regarded as appropriate for the implementation of the provisions of the treaty.
▪ Recommendations from international bodies may be sufficient (following McTiernan J in Burgess case)
▪ Partial implementation of a treaty may be sufficient but there is a threshold e.g. can’t have inconsistent provisions. (p.915)
- Deane J: (p.917)
▪ Test of proportionality: the law needs to be capable of being reasonably considered to be appropriate and adapted to the purpose of implementing the treaty.
▪ Rejected the idea that a law under s51(xxix) must, as a condition of its validity, carry into effect the whole treaty or completely discharge all the obligations. It is competent for the Parliament partly to carry a treaty into effect. On the other hand, if the relevant law “partially” implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterised as a law with respect to external affairs.
• The case seems to establish that any treaty is enough to enliven the “external affairs” power but only if the law can be reasonably capable of being considered appropriate and adapted to implementing the treaty → throws open a whole wealth of power for the Cth.
• Doctrinal limitations:
■ Bona fide requirement
■ Test of proportionality (conformity)
Later Cases
Richardson v Forestry Commission (1988) 164 CLR 261
• Facts: Cth. Act established a Commission to investigate whether the Lemonthyme and Southern Forest areas in Tasmania could qualify to be nominated as a world heritage area under the 1972 Convention for the Protection of the World Cultural and Natural Heritage. During the period of investigation, the Act prohibited works from occurring within the areas, including forestry operations and the construction of roads.
• Found: Majority (Mason CJ, Wilson, Dawson, Brennan and Toohey JJ) found the Act to be valid.
• Held:
- Dawson J:
▪ It is enough to attract legislative power if, even though there is no treaty, a subject-matter is of sufficient international concern.
← Although he did not accept the view that, subject to express constitutional prohibitions, any matters covered by a bona fide international treaty are, by their very inclusion in the treaty, bought within the ambit of the external affairs power, he felt in this case he was bound by precent.
- Deane and Gaudron JJ (dissent):
▪ Adopted a ‘proportionality’ test.
▪ Found that because the Act may be viewed as affording general environmental protection rather than protection of the qualities and features which may be of outstanding universal value, it was not reasonably capable of being viewed as appropriate or adapted to the circumstances.
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416
• Facts: The Industrial Relations Reform Act enshrined a range of workers’ rights. It’s claim to validity depended primarily on the external affairs power since the new provisions extended to workers were said to implement the requirements of various Conventions and Recommendations adopted by the General Conference of the International Labour Organisation.
• Result: Certain elements of the legislation could not be supported as “appropriate and adapted” to the purpose of implementing the relevant Conventions.
• Re. history of the provision, or the idea of earlier judges that the external powers section should not be given such a broad meaning:
- Power continually grows in meaning as society continues to evolve.
- Envisioned earlier on that “external affairs” is a growing and expanding power, and that it will continue to grow.
- This power is different from those other ones mentioned in s51 in that s51(xxix) adopts a purposive approach, while the other powers deal more with subject-matter.
• Court rejected the “lowest common denominator” approach of Stephens J in Koowarta and instead adopted the broader view that the existence of any treaty is enough to enliven the power.
- The intrusion of Cth. law into a field that has hitherto been the preserve of State law is not a reason to deny validity to the Cth. law provided it is, in truth, a law with respect to foreign affairs.
• Although any treaty with any subject matter has the potential to enliven the power, not all treaties will due to the second test of “reasonable proportionality”: the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty. If the treaty is stated in too broad terms, then it will be difficult to apply this test.
- The test will be easier to apply with regards to treaties cases than in defence cases (what is proportional?)
• Re. Recommendations (p.925):
- Felt that the recommendations, at most, may act as an aid in coming to an answer/explaining whether there is “reasonable proportionality” between the law and treaty.
- However, does not go so far as to say that recommendations in treaties will be implemented (as per Evatt and McTiernan JJ in r v Burgess) → inconclusive.
- Dicta
• Re. partial implementation (p.924):
- Accepted its use.
- However, there is a danger that if only certain parts of the law are implemented, it may not reflect the purpose of the treaty – a law will be held to be invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention → depends on how interdependent the provisions of the legislature are.
• This case is strong authority.
What impact does the globalisation of domestic affairs affect the interpretation of the constitution in relation to external affairs powers? When domestic affairs are increasingly being internationalised? What was envisioned in the 1980s?
XYZ case (Supplementary material)
- Contestation of ambiguity. May be possible to adopt minority view.
THE RACES POWER
Chapter 21 p.987
s51(xxvi): ”The people of any race for whom it is deemed necessary to make special laws”.
Original Section 51(xxvi)
• Aboriginals excluded.
• Otherwise, Cth. given power to make “special laws” for “the people of any race”.
• Over 90% vote for “yes” in 1967 referendum to remove the exemption → changes made with the view of creating beneficial laws for the Indigenous peoples.
• Very uncommon in the 21st century that it gives power to discriminate based on race. Far more common to feature in constitutions is the equality of races.
Features of s51(xxvi)
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 – “The People of Any Race”
• Facts: (See above, “The External Affairs Power”)
• Result: Racial Discrimination Act found not to fall within the races power as it protected all races and not any one particular race, and thus was not a “special law” for “the people of any race”.
• Held:
- The power contained in s51(xxvi) is activated when Parliament discerns circumstances which in its view give rise to a necessity to make a special law. That necessity can arise only from circumstances considered to be compelling in relation to a selection of the community.
- s51(xxvi) may be used to validly make laws which might discriminate against, as well as in favour of, the people of a particular race.
- Law needs to be more than a general power – needs to be special to a particular race.
▪ A law which applies equally to the people of all races is not a special law for the people of any one race.
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 – “Special Reason”
• Facts: Cth. argued that provisions of the World Heritage Properties Conservation Act (Cth) sought to protect the site on the basis that they were special to the Aboriginals in the area.
• Issue: Is this law necessarily for a “special reason”?
• Result:
- Minority (Gibbs CJ, Wilson and Dawson JJ):
▪ Not special as the site was significant to a large range of people.
▪ Aboriginals have no special rights or privileges, and no special obligations, in relation to the site. Nor do they have a greater right of access to the site than anyone else→ a narrow way of determining special significance?
- Majority (Mason, Murphy, Brennan and Deane JJ):
▪ Even though the site had outstanding universal significance (world heritage), it also has a special significance for the Aboriginal race.
• Held:
- A power to legislate “with respect to” the people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of particular significance to that spiritual and cultural heritage.
- “Race” is to be used in its popular meaning – there is no need for scientific proof of a biological element.
- Idea of duality: universality does not rob something of also being of a special significance to people of a particular race – does not matter if other people will also benefit.
- s51(xxvi) does not require a law to be “special” in its terms; it suffices that it is general in its operation.
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373
• Facts: In response to Mabo, the Native Title Act was enacted to provide for the determination of future claims to native title, and also for the validation of extinguishments of native title occurring after the Racial Discrimination Act came into force. WA challenged the Cth’s response.
• Found: Validity of the Act was upheld under s51(xxvi) – it was “special” in that it conferred uniquely on the Aboriginal holders of native title a benefit protective of their native title.
• Held:
- Whether a law is “necessary” is a decision to be made by the Parliament (evokes an evaluation of the needs of the people of a race or of the threats/problems that confronted them). But the question of whether the law is “special” is one that the courts can make.
- The special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race. It appears when the law confers a right/benefit or imposes an obligation/disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race.
The Arrival of a Power to Discriminate Against Indigenous Australians?
Kartinyeri v Commonwealth (Hindmarsh Island Bridge case) (1998) 195 CLR 337
• Facts: After hearing reasons why a site should be protected, the Minister made a decision to protect the site under the Heritage Protection Act (Cth). Cth. enacts the Bridge Act after a long argument which prevents the tribal women from objecting to the building of the bridge as it takes the relevant site out of the operation of the Heritage Protection Act (and hence precludes any further possible claim that the area had secret/sacred significance for them).
• Issue: Can a law which discriminates against (as opposed to for) Indigenous Australians be valid?
- Issue remains unresolved, with the court divided 2:2:2:
▪ Gummow and Hayne JJ: the power could be used to withdraw a statutory benefit granted to Aboriginal people (and in that sense to impose a disadvantage).
▪ Kirby J: the power is confined to laws for the benefit of the relevant race.
▪ Gaudron: while developing her own approach, conceded that in practice it might yield the same result as that of Kirby J.
▪ Brennan CJ and McHugh J declined to consider the scope of the power.
• Cth. argument: there are no limits to the races power so long as the law affixes a consequence based upon race. It was not for the HC to examine the positive/negative impact of the law.
• Result: Act found to be valid in a 5:1 decision (Kirby J dissenting).
• Brennan CJ and McHugh J (majority):
- Since parliament has the power to make the Act, it also has the power to partially repeal it (re. Heritage Protection Act) → Bridge Act valid – parliamentary supremacy angle.
- Sums up majority argument which undermines Kirby’s dissent.
- s51(xxiv) is otherwise avoided.
• Gummow and Hayne JJ (majority):
- Agree with Brennan CJ and McHugh J re. Parliamentary supremacy.
- Hint that statutory windback would be a different question if statutory power is used to remove non-statutory (i.e. common law) rights.
▪ What the Parliament may enact it may repeal.
← Significant as in some circumstances, the power of the Cth. may not be available in this regard.
- If there is a “manifest abuse” of Parliament’s power of judgement re. what is “deemed necessary”, the law will not be permissible.
- Suggestion that the court, in carrying out its functions, must keep in mind the underlying assumption of the rule of law.
• Gaudron J (majority):
- Even though the question of necessity is one for Parliament, s51(xxvi) may only be exercised if there is some material upon which Parliament might reasonably form a judgement that there is a difference necessitating some special legislative measure:
▪ There must be a difference between a particular race and other people.
▪ The law has to be reasonably capable of being viewed as appropriate and adapted to the differences asserted (reasonable proportionality).
- This is how to prevent the Cth. from making laws which are manifestly discriminatory.
- Although the power conferred by s51(xxvi) is wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to perceive of a present circumstance pertaining to Aboriginal Australians which could support a law operating to their disadvantage – given their current circumstances of serious disadvantage, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances.
- It is not an issue that the power has been limited in such regards as a plenary power to legislate carries with it the power to repeal/amend existing laws on that topic → only problem if altered law does not retain its character as a law re. a matter within Cth. leg. power.
▪ Bridge Act such an amendment → valid.
• Kirby J (dissent):
- The race power was not intended to extend to the enactment of laws detrimental to the people of any race by reference to their race:
▪ The requirements that the laws are “deemed necessary” and should be “special” were intended to be limits on power.
← No such necessity found in this case.
▪ What is deemed to be “necessary” and in a “special” form needs to be understood by reference to the changing ideals of society.
▪ Essential, in a democratic society, that the electors be involved in the law-making process → requirement that the Court, to understand the amendment made to the section via referendum, should appreciate and give weight to the purpose of the change. It should not be assumed that the amendment was made with the purpose of grouping the Aboriginals in with the other races as potential targets for detrimental or adversely discriminatory laws.
- Unworkability of the “manifest abuse” test:
▪ In practice, a law that has an adverse discriminatory effect may not at first appear to constitute a “manifest abuse” exercise of the enabling power, e.g. apartheid in South Africa.
- Relied on the “interpretive principle”: in cases of ambiguity, the Cth. should be construed in accordance with international norms declaratory of human rights.
• Argument made that a law cannot be made which applies only to a particular group in the race rejected by Gummow, Hayne, Gaudron, and Kirby J.
THE CORPORATIONS POWER
s51(xx): “Foreign corporations, and trading or financial corporations formed within the limits of the Cth.”
• A corporation is one which engages in financial/trading activities as a substantial (need to be more than incidental) part of their activities (Tasmanian Dam Case).
• Applies to existing corporations only (Incorporation Case).
• Applies to regulating laws which protect, as well as regulate, the activities of corporations (Actors Equity Case).
Section 51(xx)
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
• Australian Industries Preservation Act applied to “foreign corporations and trading or financial corporations formed within the limits of the Cth.” Certain sections prohibited such corporations from engaging in certain restrictive trade practices.
• Example of reserved States power doctrine – intrusion upon intrastate trade and commerce? (s51(i))
• 4:1 decision: legislation struck down.
- Higgins’ list of “horribles”:
▪ Fear that anywhere corporations are involved, govt. will have unlimited legislative power – corporations involved in most aspects of our lives → fear that the power will be a gateway for legislative power, allowing the Cth to invade into the area ordinarily left to the State legislatures.
- Other judges took view of reserved State powers doctrine.
• Isaacs dissented:
- Power does not deal with all corporations – deals with ones specifically named → can avoid the “horribles” in its application (has to be “foreign”/”trading”/”financial” – not mining, manufacturing etc.)
- The word “formed” indicates that the Cth. does not have the power to legislate re. any corporation – it must already be existing. It is not a power to create corporations.
- The power is really to do with external transactions between corporations and the public, not the internal structure/management of the company.
Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) 124 CLR 468
• Facts: s35 TPA made agreements between competitors restricting competition “examinable” – applies to agreements made by s51(xx) corporations.
• Found: s51(xx) available to support a law of this kind.
• Leading judgement delivered by Barwick CJ:
- Court rejected Huddart, Parker: pre-Engineers application of reserved State powers doctrine no longer relevant.
▪ Sections dealt with in that case were clearly laws regulating and controlling the trading activities of foreign corporations and trading and financial corporations formed within the limits of the Cth. → laws with respect to such corporations → decision should be overruled.
- It does not follow, though, that any law which in the range of its command on prohibition includes foreign/trading/financial corporations formed within the limits of the Cth. is necessarily a law with respect to the subject-matter of s51(xx) – the decision as to the validity of particular laws yet to be enacted must remain for the Court when called upon to pass upon them.
- Found that the laws which may be validly made under s51(xx) will cover a wide range of the activities of foreign/trading/financial corporations, and is not necessarily limited to trading activities.
- However, was not prepared to define the precise scope of corporations power – interpretation is a process of expanding application:
• Menzies was concerned with the scope of the power since it deals with people.
- Like Barwick CJ, he did not give a scope of how broad the power was.
What is a Corporation for the Purpose of s51(xx)?
R v Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533
• Court used a purposive test: purpose of the Council to provide services, not there as a trading corporation.
• The minority, however, looked at the Council’s activities – enough of activities re. trading to be classified as a law re. trading?
R v FCA; Ex parte WA National Football League (Adamson’s Case) (1979) 143 CLR 190
• Issue: were both the football club and league a trading corporation?
• Result: Court finds it to be a trading corporation.
- 4:3 application of the activities test.
- The minority support the continuation of the purposive test.
• Stephen J (dissent): felt that the purpose of the club/league was to encourage sport in the community → not a trading corporation.
• What degree of activity has to be trading? Predominant or merely substantial part? (Distinguished from “incidental”)
- Mason and Jacobs J favour “predominant”
- Murphy J and Barwick CJ favour “merely substantial”
→ Correct position unclear.
• “Trading” does not have to be for profit – what is relevant are the activities, not whether revenue is earned.
State Superannuation Board of Victoria v Trade Practices Commission (1982) 150 CLR 282
• Used the “merely substantial” activity test.
- This is now the test for “trade” and “financial” corporations.
- It does not matter if there are other activities which are more dominant – “There is nothing in Adamson which lends support for the view that the fact that a corporation carries on independent trading activities on a significant scale will not result in its being properly characterised as a trading corporation if other more extensive non-trading activities properly warrant its being also characterised as a corporation of some other type”.
Fencott v Muller (1983) 152 CLR 570
• Facts: Oakland had no current activities. It was a shelf company formed to facilitate a conveyancing transaction.
• Majority (Mason, Murphy, Brennan and Deane JJ)): When there are no activities, then the purposive test should be used.
- The company’s memorandum and articles of association (its constitution) revealed that the objects for which it was established included engaging in financial activities and carrying on a large variety of businesses, though it lay dormant after its incorporation.
• Gibbs CJ (dissent): Accepted that a purposive test may be useful in determining a company’s character when it does not have any activities to refer to. However, regards the objects clause of its memorandum of association as an inadequate and misleading guide in determining such a purpose.
- The whole of the evidence as to the intended operations of the corporation is relevant.
• Since the Corporations Act 2001 (which provided that a company need not have a constitution and may instead adopt the “replaceable rules” provided), the position of Gibbs CJ has been followed.
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
• Hydro-Electric Commission a trading corporation?
• Majority found that it is:
- Trade only needs to be a “merely substantial” part of the activities (as per Mason J).
• Gibbs CJ (dissent): argued that the Commission’s purpose is to provide electricity to keep Tasmania running (public importance).
Existing Corporations Only
New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482
• Facts: Legislative package by which the Cth. sought first to establish its national regime of corporations and securities law. The Corporations Act was based upon the assumption that s51(xx) empowered the Cth. to legislate for the incorporation of a company if the subscribers to the memorandum of an association intended that its activities would substantially be trading/financial activities.
• Result: 6:1 – Cth. cannot regulate the process of incorporation itself.
- Due to grammar of the provision (“formed” indicates corporations which have already been formed)
- Referred to the Convention Debates – nothing in s51(xx) which indicates that the Cth. was intended to be able to regulate these activities (originalism).
- Undeniable difficulty if Cth. allowed to regulate the incorporation of companies – the character of a corporation may change, so that it may be at one time a trading/financial corporation and not at another → Cth’s power would fluctuate. At the time of incorporation, there are insufficient activities to identify the true nature of the company. .
• Deane J (dissent):
- A plenary legislative power “with respect to” particular kinds of corporation extends, as a matter of mere language, to laws dealing with the incorporation of such corporations.
- Re. the word “formed”; it does not have any temporal dimension (only used to say that it must have been born within the Cth. – a geographical dimension).
- Argues that the Convention Debates are unconvincing – contrary statements in authority available.
- Rejects the idea of practical difficulty – should not stunt Cth’s power
- It would be inconvenient for the Cth. not to regulate incorporations.
• The outcome of this case was that any Cth. power to legislate for a corporations law was denied. Instead, the Cth. was driven to rely on the co-operative arrangements with the States.
Power with Respect to Trading Activities
Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169 – Protection of Corporation
• Issue: Re. validity of s45D of the TPA which prohibits boycotts (preventing a supplier of a corporation from maintaining supplies to it) of constitutional corporations by trade unions.
• Result: Act valid, though the reasons vary. The legislative purpose upheld was the protection of corporations rather than the regulation of them.
• Gibbs CJ:
- Not simply a power re. trading corporations with everything that they do – need to relate to trading/financial activities.
- Words “trading”, “financial” and “foreign” determine scope of power.
- A law which regulates conduct designed to cause, and is likely to cause, substantial loss or damage to the business of a trading corporation formed within the limits of the Cth. falls within the scope of s51(xx). A law may be one with respect to a trading corporation, although it casts obligations upon a person other than a trading corporation.
• Stephen J:
- Made no attempt to choose between the narrow view of s51(xx) (requiring some connection with the trading activities of a trading corporation) and the broad view (requiring no such connection).
- In reality, a law may cover more heads of power than is stated.
- Approach: look at the law and give it multiple characterisations. In dong so, there is no need for there to be a predominant one. As long as one of them are linked, that is fine – idea that judges need to make a choice → not required to make a decision as to the priority of competing elements (avoids subjectivity).
- The fact that only some elements in the law fall within one or more of the grants of power in s51 will be in no way fatal to its validity. So long as the elements which do not fall within any such grant of power are not of such significance that the law cannot fairly be described as one with respect to one or more of such grants of power then, however else it may be described, the law is valid.
- Law clearly about corporations as it forbids conduct which will cause substantial loss/damage to a corporation → the connection with corporations forms a crucial component of the law (not incidental) → satisfies section.
• Mason J:
- A law which protects the trading activities of trading corporations is within power and valid, so long as the law the law has a direct legal operation on the subject of the power.
▪ Prohibition valid as it protects trading activities of corporations.
- Section should not be restricted to trading activities – no such indication.
- There can not be found in the Constitution a secure footing for an implication that s51(xx) is to be read down so that it relates to “the trading activities of trading corporations” and to the financial activities of financial corporations and perhaps to the foreign aspects of foreign corporations.
- The power should be construed as a plenary power with respect to the subjects mentioned.
• Murphy J:
- Took a broader approach.
- Viewed the power to be plenary, and covered almost everything to do with corporations, including their incorporation, laws dealing with industrial relations, and laws which would not only protect corporations from others but to protect others from the corporations.
• Aikin JJ:
- Like Mason and Murphy J, viewed the power as not being confined to any nexus with “trading activities”.
• Brennan J:
- Remoteness issue resolved by imposition of a ‘discrimination’ test, requiring that the law have a particular or differential effect on constitutional corporations as opposed to other persons.
- There is no difference between two laws each of which discriminates between corporations and the public at large, one of which imposes a duty upon those corporations affecting the conduct of their trading activities, the other of which confers a protection upon those corporations in the conduct of the same activities.
- He decides on the broader ground, but does not go further than that (does not reject narrow view).
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
• Facts: Act operated to stop the damming by prohibiting certain conducts of the corporation which have been carried out ‘for the purpose of its trading activities’.
- In light of the previous case, drafters want to take the narrowest view of its scope so that the Act will not be invalid.
• Only three of the majority (Mason, Murphy, and Deane JJ) find the power to be valid on the broadest interpretation of the legislation – not going to restrict the form of the legislation → held that s51(xx) supported laws regarding any activities of trading corporations, not just their trading activities:
- Law prohibits corporations from doing things → a s51(xx) law. Since the power is one dealing with a subject-matter, a law will be valid if it has a real relationship with the subject of the power; it does not matter that the purpose of the exercise of power was to attain a goal in a field that lies outside the scope of Cth. power.
- Core objections to adoption of a limited construction (as per Mason J):
▪ Given the way the Constitution is written, it is to be interpreted in a liberal way.
▪ It is a power regarding legal persons → need to acknowledge they have a right to do a range of activities.
▪ It could not have been intended that the power be limited by reference to the foreign aspects of foreign corporations, and the financial aspects of financial corporations.
▪ There is no sound reason for denying that the power should extend to the regulation of acts undertaken by trading corporations for the purpose of engaging in their trading activities.
• Gibbs CJ and Brennan J find the legislation valid on the basis of s10(4) which specified that the activities related to trade were the ones restricted → could be upheld on the narrower view of the scope of s51(xx).
- Gibbs earlier accepted that s51(xx) at least empowers the Cth. to regulate trading activities of trading corporations.
▪ Felt that although the section deals with corporations, in substance it is not a law about corporations – did not think that building a dam for the purpose of electricity generation was for the purpose of the corporation’s trading activities.
▪ The object of the law is to protect the wilderness.
▪ This view is also taken by Wilson J, and goes against what has been established about the categorisation of the law.
- Brennan found that it extends to laws that regulate trading corporations regarding activities undertaken for the purpose of its trading activities.
→ Case ultimately upheld on this narrower view.
• Wilson and Dawson JJ (dissent):
- Favoured an ultra narrow test, requiring that a law with respect to a trading corporation must be concerned with its trading activities.
• Case inconclusive as to issue of what activities could be regulated.
A Return to Straightforward Characterisation
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
• Facts: IR Act: s127A – IRC to review unfair contracts; s127C(b) – contracts relating to the business of a s51(xx) corporation.
In this case, the constitutional corporation, which owned and operated a timber mill, was not a party to the impugned contract. Wagners were unincorporated independent contractors to company whose contract required them to deliver woodchips to the mill. Wagner sub-contracted to Dingjan (also unincorporated independent contractors) who commenced proceedings in the AIRC seeking review of sub-contract with Wagners.
• Issue: does s51(xx) allow Cth. to regulate contracts for non-corporate entities related to a s51(xx) corporation?
• Result: Section found to be invalid (4:3 split) due to an insufficient connection between the provision and s51(xx). In dissent, Mason, Deane and Gaudron supported a broad approach to s51(xx).
• Focus in all judgements not on a wider or narrower answer to the question of what activities are covered, but on whether there was the sufficient connection with “trading/financial corporations” that general principles of characterisation require.
• Dawson J:
- Took the narrowest view of s51(xx): would like focus to be on trading activities of trading corporations – endorsement of narrow view previously taken by Gibbs CJ, and the same view he took in Tasmanian Dams.
• Brennan J:
- Continues the idea of discriminatory operation: “constitutional corporations must be affected in some respect sufficiently material to give significance to their discriminatory treatment”.
- However, even if this view is taken, the law would fall since it relates to a non-corporate entity (view of discriminatory operation a direct one).
- Considered the connection between s51(xx) and the provision too remote.
• McHugh J (with whom Toohey J agreed):
- Stressed the “plenary” scope of s51(xx).
- However, a law enacted under this head of power must, in its legal or practical operation, have significance “for the activities, functions, relationships or business of the corporation” i.e. they must have “a relevance to or connection with” the corporation.
- The corporation must be more than just a reference point to take it within s51(xx).
- If the law regulates the activities, functions, relationships, or business of a s51(xx) corporation, no more is needed to bring the law within power. That is because the law is regulating the conduct of the corporation.
- It is not enough, however, that the law merely refers to the activities, functions, relationships and business – there needs to be a sufficient connection.
- A law that does no more than make some activity of a s51(xx) corporation the condition for regulating the conduct of an outsider will ordinarily not be a law with respect to those corporations. If a law regulates conduct that has no significance for s51(xx) corporations, it is not a law with respect to those corporations even if that conduct is connected to or even based on what a corporation does.
- By regulating the activities of a non-corporate entity, it may have significance to a s51(xx) corporation. This was not the case in the present situation (different from Actors Equity). On the facts, the law was too remote because it had no significance or practical connection to the constitutional corporation.
• Gaudron J (dissent, with whom Deane and Mason J agreed):
- Leading dissenting view – takes a more flexible approach as to how connections are to be made – law is valid as long as it is ‘expressed to operate on or by reference to the business functions, activities or relationships of the corporation’.
▪ No superadded requirement of “significant” or “substantial” connection.
- Found that regulating those people who are in business comes within the scope of power.
- There is a sufficiency of connection, as evinced by ‘significance’.
• The case’s ratio supports a test requiring a connection or significance (perhaps only ‘some’ significance) of the law to the activities, functions, relationships or business of a corporation → began to look away from the activities regulated by the law.
New South Wales v Commonwealth (Work Choices Case) (2006) 231 ALR 1
• Endorsement of Gaudron’s opinion in Dingjan by the majority.
• Dissenting judges:
- Kirby J: Should not put too much emphasis on Gaudron’s views (in dissent in both cases, and also taken out of context).
- Callinan J: Pointed out that Gaudron’s views in Dingjan was re. contractors and there is no indication that she had the relationship between employees in her mind (i.e. internal relations of the company).
• Distinctive character v object of command:
- Majority says there is a divide in the law.
- Not express about whether they favour the objective command approach (wider) – does the law affect the corporation in some way?
• Avoidance of ‘awkward results’:
- If applying a filter, going to lead to complications.
- Objection that things going to be unworkable in practice – going to be uncertainty.
• Real objection is that of an ‘implicit assertion’ of federal balance:
- Echo of Engineers – do not interpret Constitution based on distrust of Cth. (responsible government).
- Uncertainty as to when federal balance has been reached – understand balance is important in interpreting Constitution, but not sure how to apply it.
- Hence, any attempt to filter power rejected.
Work Choices (2006) and Characterisation
• Re. relationship between s51(xx) and s51(xxxv) (conciliation and arbitration for prevention and settlement of industrial disputes extending beyond the limits of any one State).
- Can Cth. bypass s51(xxxv) by using s51(xx)? Yes.
• Qualifying principle from Dixon CJ in Schmidt (1961):
- Where there is something express subject to a safeguard/qualification, the restriction in that section extends beyond itself and to other legislative power.
• Demonstrated in Bourke v State Bank of NSW (1990):
- Re. banking other than state banking – express qualification → cannot rely on other sections to get around it.
- Majority tried to talk simply about “prohibition” (reliance on Gleeson in Pacific Coal), i.e. you can always do things indirectly. However, you cannot do so when you are prohibited to do so directly.
• Kirby J criticises this:
- A narrower reading of Schmidt than intended as that case talks about guarantees and safeguards as well as prohibitions.
- Rejects what Gleeson said in Pacific Coal.
- Said powers are limited.
- s51(xxxv) becomes redundant if another provision is able to just get around it – contains safeguards not to be undermined by other powers.
• Not demonstrated in respect of s51(xxxv) in Pidoto v Victoria (1943):
- Gives precedent in support of majority.
- Cth. given enormous powers to legislate in wartime.
- Defence power not limited.
- However, minority argued that this case was decided at a time (war) when the power was largely expanded → not applicable in today’s context.
- Latham in Pidoto: s51(xxxv) cannot impose restriction beyond its grant of power.
• Majority’s argument weak? Precedents relied on not strong authority?
• The connection need simply be sufficient – but while extreme examples or distorting possibilities may be relevant, should the degree of connection vary in light of the impact upon other grants of power?
• Although s51(xxxv) contains restrictions, majority found that it does not prohibit Cth. from relying on other heads of power.
• Each section is to be read separately on its own terms – orthodox view adopted by majority.
THE DEFENCE POWER
s51(vi): “The naval and military defence of the Cth. and of the several States, and the control of forces to execute and maintain the laws of the Cth.”
How is the Defence Power Different from those Considered so Far?
• The principles from Andrews v Howell (1941) and Stenhouse v Coleman (1944):
- Elusiveness of other facts and the court’s role: the executive and legislature may have confidential facts that cannot be disclosed to courts but will be essential in determining proportionality of legislation.
- Elasticity: the power waxes and wanes. At the height of global war, measures that Parliament can enact may extend into virtually every aspect of Australian life. But, although the power is elastic, it does not immediately snap back at the end of a period of international conflict – continuation of some wartime measures – “The existence and character of hostilities or a threat of hostilities, against the Cth. are facts which will determine the extent of the operation of the power” (Andrews v Howell).
- Purpose: a purposive power, though different from ‘external affairs’ power in that it is harder to apply the proportionality test to (no treaty) → court can only determine proportionality of law with reference to defence – hard for court to challenge executive’s decision as to what is necessary.
- Judicial notice of facts: a lot of facts will be just common knowledge (e.g. the fact that a nation is at war) → no evidence needed to prove.
War
• The sweep of the Cth. regulatory control during WWII under the National Security Act 1939 cf. Starke J
- e.g. drinking hours and employment of women in areas previously held by men.
- Starke J rejected the power as being a purposive one (Women’s Employment Case) → often in minority and found powers often to be invalid.
• Defence power not without limits:
- Laws passed under the defence power are subject to Constitutional guarantees (Minister for the Army v Dalziel).
- Attempt to regulate the working conditions of state public servants engaged in routine administrative work that had nothing to do with the war effort disallowed (Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria)
- Attempt to regulate admission into universities disallowed (University of Sydney; Ex parte Drummond).
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501
• Facts: Polyukhovich tried under the War Crimes Amendment Act which permitted the prosecution and trial in Australia of Australian residents alleged to have committed war crimes in Europe in WWII.
• Found: Legislation not supported under defence power: the means which the Act adopts to secure the future adherence to the laws and customs of war not only trample upon a principle which is of the highest importance in free society, but also select a specific group of persons out of all those who have committed war crimes → oppressive and discriminatory operation.
• Held:
- In times of peace, abridging of freedoms cannot be supported unless the Court can perceive that the abridging of the freedom in question is proportionate to the defence interest to be served.
- What is necessary and appropriate for the defence of the Cth. in times of war is different from what is necessary or appropriate in times of peace.
- The question of appropriateness and adaptation falls for determination by reference to the circumstances which engage the power.
Farey v Burvett (1916) 21 CLR 433
• Law-making power coupled with executive power via s61.
• Held (per Isaacs J):
- The defence power is virtually unlimited during a time of total war when the existence of Australia is threatened. It becomes a “paramount” source of power – overriding all constitutional restraints.
- If the measure questioned may conceivably in such circumstances even incidentally aid the effectuation of the power of defence, the Court must hold its hand and leave the rest to the judgement and wisdom and discretion of the Parliament and the Executive.
• The dicta of Isaacs were clearly too sweeping and have not met later judicial acceptance.
Victorian Chamber of Manufacturers v Commonwealth (Women’s Employment Case) (1943) 67 CLR 347
• Facts: Women’s Employment Act – purpose to encourage and regulate the employment of women for the purpose of aiding the prosecution of the present war. It was argued that even if there was authority under the defence power to deal with the employment of women, there was no authority to deal with such employment in the manner in which the legislation dealt with it because that legislation was not limited by any reference to women engaged in work which is directly associated with the war, but extends to all kinds of work which may be done by women.
• Found: Legislation had a real and substantial relation to the prosecution of the war and was calculable in an appreciable degree to it.
• Held:
- Legislation to deal with war-created problems (whether considered in relation to the general community or to the fighting services) is within the power to legislate with respect to defence.
- In order to determine whether legislation is within the defence power it is necessary to examine the substance and purpose of the legislation in order to ascertain what it is that the legislature is really doing.
- But if the real substance and purpose is such that the legislation is capable even incidentally of aiding the effectuation of the power then it is within the ambit of the power.
- It is important to bear in mind that a state of war creates a situation that is abnormal and temporary so that laws which can only be justified by the enlarged operation of the defence power which occurs in an emergency must not extend beyond what is reasonably required to cope with such abnormal and temporary conditions.
Post-War: Moving Back into Peace
R v Foster (1949) 79 CLR 43
• Facts: Challenges to the continued operation of three sets of regulations: wage-fixing, petrol rationing, and court-enforced preferential housing for ex-service personnel.
• Found: All three regulations stuck down.
• Held:
- When actual hostilities have ceased the scope of application of the defence power necessarily diminishes, but the cessation of hostilities leaves behind various matters which can legitimately be made the subject of Cth. legislation as being incidental to the execution of the defence power in the past
- The very fact that the controls or regulations have been established may create a situation which must be maintained for a reasonable time while some other legislative provision is made. But the Court must see with reasonable clearness how it is incidental the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States and unless it can do so the enactment is beyond legislative power.
Peace
• Even in times of peace, the defence power enables the Cth. to maintain ‘defence preparedness’: enlistment, training, manufacture of weapons (Communist Party Case).
• The conduct and organisation of enterprises primarily linked to defence may also involve ancillary or corollary activities less clearly related to defence.
Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1
• Found: the defence power did not extend to a statutory provision empowering the ACSB to enter into an agreement for the supply, delivery and erection of six steam turbo-alternators.
• Held:
- The defence power does not authorise the establishment of businesses for trade and wholly unconnected with any purpose of naval or military defence.
- Carrying out ordinary courses of business in peace time to cover the cost of maintenance and to provide staff with experience so that they will be maintained for the purpose of being used in defence during the time of war unwarranted by the power.
Attorney-General (Vic) v Commonwealth (Clothing Factory Case) (1935) 52 CLR 533
• Found: The Cth. could, under the defence power, establish a clothing factory to manufacture uniforms not only for the defence forces but for other bodies such as Cth. and State government departments.
• Held:
- The maintenance of a factory to make naval and military equipment is within the field of legislative power.
- The method of its internal organisation in time of peace is largely a matter for determination by those to whom is entrusted the sole responsibility for the conduct of naval and military defence.
Cold War
• A real or perceived escalation of terrorist activity within Australia might expand the defence power even in the absence of a formally declared “war”.
Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1
• Facts: Time after WWII. However, war in Korea in which Australian troops were involved. The Communists Party Dissolution Act sought to ban the Australian Communist Party:
- s4: Australian Communist Party Dissolved
- s7: penalties
- s5: Governor-General given power to prescribe other organisations affiliated with ACP or was sympathetic with its ideals → existence of organisation prejudicial to society.
- s9: declarations in relation to individuals that they were “communists” – similar to s5
Problem was that the decisions of the Governor-General were not subject to judicial review – unreviewable discretion. Also, recitals included, their intended effect to bring the legislation within s51(vi) – “it is necessary, for the security and defence of Australia…”.
• Effect of recitals:
- Contain Parliament’s reasons for passing the Act
- Are in no way decisive of the question whether the Act is valid or invalid, for that is a judicial question which only the judicature has the power to decide finally and conclusively. If any fact stated in a recital is material to the issue, the fact would need to be judicially determined or ascertained → Constitution does not allow for Parliament to conclusively “recite itself” into power.
• The “other power”:
- Combined effect of s51(xxxix) and s61: the “implied nationhood power” = the power to defend the existing system of government.
- What was said about this power can be translatable to what was said of the defence power.
- Objection the court has to the legislation is that it shuts them out of the process: “the Act would have the effect of making the conclusion of the legislature final and so the measure of the operation of its own power”.
• The defence power:
- Two aspects of s51(vi):
1) Authorises the making of laws which have, as their direct and immediate object, the naval and military defence of the Cth. and of the several States. This power is not confined to time of war.
2) Two stages:
1. The existence of war or national emergency is recognised as brining into play the secondary or extended aspect – done simply as a matter of judicial notice → expansion of defence power.
2. Enactment in question examined with regard to its character as a step to assist in dealing with the emergency. The question may turn on particular facts as distinct from the overriding general fact of war or national emergency.
▪ At the fullest extent of the defence power’s “secondary” aspect, the defence power might confer an uncontrolled discretion to determine the facts on which the exercise of the discretion depends. In this situation, the question would be: on the basis of facts of which the Court could take judicial notice, if there was a sufficiently serious national or international emergency to extend the power that far.
- Things may be made ancillary to the power if there is a direct link between the legislation and defence power – “the actual existence or occurrence of any act, matter or thing having a specific relation to the purposes of the power”, i.e. there needs to be an actual fact to link it with defence. The validity of such legislation can not be made to depend upon the opinion of the law-maker or the person who is to do the act.
▪ The recitals do not provide such a link.
- In extreme and exceptional circumstances (but only then), an extension of the operation of the defence power may support provisions which do not have a sufficient link with the defence power, and depending on nothing but the recital of facts and opinions so as to make them ancillary to defence.
▪ Such an extreme and exceptional extension may result from the necessities of war and, perhaps, the imminence of war.
▪ Not prepared to hold that nothing short of war or an immediate threat of war can bring into play a fully extended defence power. Each situation which arises must be examined as and when it arises.
- The defence power is a power concerned with protection against external enemies. If a situation is to be found which will justify the Act in question as an exercise of an extended defence power, it must be an international situation.
• Civil liberties?
- “Nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are beside the point. It is the law, and that is all” (as per Fullagar JJ).
• Although an obvious element to the decision was the separation of powers (legislature infringing on ChIII powers), the Court focused on the lack of connection to the defence power.
Marcus Clark & Co Ltd v Commonwealth (Capital Issues Case) (1952) 87 CLR 177
• Facts: Korean War escalated. Australia faced with an emergency requiring extensive defence preparation. Defence Preparation Act prefaced with a series of recitals. s4 authorised the Governor-General to “make regulations for or in relation to defence preparations”. Regulations made pursuant to s4: prohibited the borrowing of money unless accompanied by the consent of the Treasurer. The regulations provided for judicial review of the Treasurer’s decision. Marcus Clark sought to borrow money, but was refused consent. The company sought a declaration that the regulations were invalid.
• Found: Act and regulations valid.
• Held:
- Court will allow the legislation to stand when:
▪ The provisions specify a course to be pursued and considerations and purposes to be effectuated (the operation and practical consequences of which will show whether the measure does tend or might reasonably be considered to conduce to or to promote or advance the defence of the Cth.)
▪ Judicial remedies are available to ensure that the judgement/discretion of the administrative decision-maker do not go beyond what is the true scope and meaning of “defence preparations”.
War on Terror
Thomas v Mowbray [2007] HCA 33
• Facts: Thomas had been charged with three offences re. providing support to a terrorist organisation. The convictions were later quashed by an order of the Court of Appeal made on the basis that admissions, attributed to T during an interview with AFP officers should not have been admitted in trial. The COA adjourned for a further hearing the question of whether there should be a retrial. A-G then applied for an interim control order, representing that he considers that such an order would “substantially assist in preventing a terrorist act”. Mowbray made the order issuing the control order, being satisfied that “each of the obligations, prohibitions and restrictions to be imposed” was “reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act”.
• Note distinctions from Communist Party Case:
- It does confer the power on a court, and provides a means for review of the order once it is made; both because it is expressly provided, and also because the decision was made by a court (allowing for normal avenues of appeal).
- Requirement in the provisions that the order be reasonably appropriate and adaptive to protecting the public from a terrorist act.
• Issue: Can s51(vi) support terrorism offences and preventative orders?
• Result: The Anti-Terrorism Act falls within the powers of the defence power.
• Gummow and Crennan J (majority):
- Take a flexible approach – power not to be confined as you do not know what the nature of the threat may be.
- Not limited to external threats – internal threats sufficient.
- Defence power may be used to anticipate and suppress apprehended violence and disorder.
- What are protected by the defence power: both the body politic and the citizens/inhabitants of the Cth. and their property – to exclude citizens would be erroneous.
• Kirby J (dissent):
- Concern with overbroad reading of power – idea of the Constitution needing to be read in light of its history.
- Re. 1st aspect of the defence power:
▪ Assumes existence of hostilities directed against Cth. or States.
▪ Insufficient footings upon which the defence power could expand: environment where there has been no formal declaration of war; where the possibility of a terrorist attack is only that it “could” occur; terrorist attacks occurring in other countries.
▪ Not limited to defence against external enemies, though does not involve areas of civil government (“domestic violence”) – concern is defence, not security.
▪ Threat must be directed at the bodies politic, and not merely at the public, individuals, and their property (for the States to handle).
- Re. 2nd aspect of defence power:
▪ In this case, lack of constitutional fact to establish that the existence of threats to the body politic → Div 104 disproportionate.
▪ Div 104 found to have a scope broader than for the maintenance of federal laws or for the maintenance of the nation’s system of government → intrudes upon areas of civil government → large consequences for individual liberty.
- Attempt to distinguish defence from security – unconvincing?
Questioned why it has to be a Cth. issue – why could the police not deal with it? Police defend the community, the use of the defence power extends to a wider group – separating the body politic and the citizen.
• Similarity with Communist Party Case – attempt by government to deprive liberty at a time that is not total war.
THE TAXATION POWER – WHAT IS A TAX?
s51(ii): “Taxation; but so as not to discriminate between States or parts of States”
Definition of Taxation
• What is a tax helps us to determine if something falls within s51(ii).
• s53: limits the powers of the Senate – cannot propose/amend money bills. Can only pass it, ask for it to be amended, or not pass it.
• s55: tax acts are not to contain non-tax provisions. Any provision dealing with other matters “shall be of no effect”.
- Afraid that if the legislation attaches a tax into a bill, it will severely limit the Senate’s ability to amend it.
- Words used are broad enough “to allow the insertion of any provision which is fairly relevant or incidental to the imposition of a tax on one subject of taxation” (Permanent Trustee Australia Ltd v Commissioner of State Revenue).
- “It is not unlawful to include in a taxing Act provisions incidental and auxiliary to the assessment and collection of the tax” (Federal Commissioner of Taxation v Munro).
Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 - Foundation
• Classic definition (as per Latham CJ): a tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and not a payment for services rendered.
• Such a definition is not complete or exhaustive.
Air Caledonie International v Commonwealth (1988) 165 CLR 462 – Practical Compulsion
• Facts: Migration Amendment Act imposed a “fee for immigration clearance” upon international airline passengers entering Australia. The plaintiff argued that the “fee” was a “tax”, and thus s55 prevented the insertion of the provision into the Migration Act, which dealt with matters other than the “imposition of taxation”.
• Found: The “fee for immigration clearance” was a tax and hence its introduction into the Migration Act infringed s55.
• Held: Definition of tax is broader than that stated by Latham CJ:
- Other criteria of taxes: not by way of penalty, and not arbitrary.
- Definition not exhaustive:
- No reason why a tax should not take a form other than the exaction of money or why the compulsory exaction of money under statutory powers could not be properly seen as taxation notwithstanding that it was by a non-public authority or for purposes which could not properly be described as public.
- Criteria “not a payment for services rendered” should be seen as but an example of various types of exaction which may not be taxes even though the positive attributes mentioned by Latham are all present.
- A compulsory and enforceable exaction of money by a public authority for public purposes will not necessarily be precluded from being properly seen as a tax merely because it is described as a “fee for services”. If the person was required to pay the exaction is given no choice about whether or not he acquires the services and the amount of exaction has no discernible relationship with the value of what is acquired, then it is a tax: practical compulsion = legal compulsion (as in A-G (NSW) v Homebush Flour Mills Ltd (1937)).
- Although the payment of taxes are effectively for the payment of services (via provision by government), what makes a payment not a tax is the characteristic that the services are just provided for an individual specifically.
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 – No need for Public Authority; but has to be for Public Purpose
• Facts: Copyright Act provided for the payment of a “royalty” to copyright owners and in return permitted the copying of sound recordings for private and domestic use. The “royalty” was payable by the vendor of each blank tape when first sold. It was payable to a “collecting society”, a company whose members were copyright owners.
• Result: 4:3 decision – payment was imposed for a public purpose – it was in the public interest that an equitable outcome be achieved between the both parties → tax.
- Shows that the idea of a public purpose is quite broad.
• Held:
- Did away with the need for the payment to be exacted by a public authority (i.e. so it does not need to be paid into the Consolidated Revenue Fund, or raised or received by the Executive) but only with the qualification that it be raised for a public purpose.
- An expropriation from one group for the benefit of another, with a view to bringing about what is conceived to be an equitable outcome, is a tax – it is imposed in the public interest.
Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 – Revenue Unimportant
• Facts: The Training Guarantee (Administration) Act set out a minimum level of expenditure that employers should spend on employment-related training. The “shortfall” = amount that an employer was required to spent – amount actually spent. Employer was liable to pay the amount of the shortfall to the Cth.
• Result: Act valid – exaction imposed a tax rather than a penalty:
- The Act does not prescribe conduct of any kind, nor makes it an offence to fail to spend the minimum training requirement.
• Held:
- The fact that the revenue-raising burden is merely secondary to the attainment of some other object/objects (or that revenue-raising is not even an objective) is not a reason for treating the charge otherwise than as a tax.
- If a law, on its face, is one with respect to taxation, the law does not cease to have that character simply because Parliament seeks to achieve, by its enactment, a purpose not wthin Cth. legislative power.
Luton v Lessels (2002) 210 CLR 333 – Consolidated Revenue Not Necessarily = Tax
• Facts: Luton was a divorcee who was required to pay child support to his ex-wife (the mother). The Child Support Act provided that if one spouse did not want to pay child support to the other, that spouse would pay this sum to the Cth. who would then forward the money into Consolidated Revenue before paying the other spouse. Luton argued that the payment was a tax, and hence the provision was invalid under s55.
• Result: The liabilities thus created did not involve a “tax”:
- Distinguished from Australian Tape Manufacturers as in that case, the payment was for a general purpose, whereas this case involved an existing obligation and also due to the direct relationship the father has with his child.
• Held:
- In cases where payment is made into Consolidated Revenue, this is a conclusive indication that the payment is for public purposes. But this presumption is rebuttable.
▪ Not every sum that statute requires to be paid into the Consolidated Revenue Fund is a tax.
- All the features in Latham CJ’s definition of a tax are important. The presence or absence of none of them, however, is determinative of the character of the legislation said to impose a tax. It is necessary in every case to consider all the features of the legislation.
Things Other Than Taxes
• Charge for acquisition or use of property
- Fee for a privilege (Air Caledonie International v Commonwealth)
• The payment failed for a privilege as every Australian has the right to enter into the country.
• Fine or penalty imposed for certain conduct (Re Dymond)
• Fees for services (Air Caledonie International v Commonwealth)
- Payment failed to be for a service as there was no relationship between the amount paid and the service received.
Fees for Services
• Three things commonly needed to be established to sho that an exaction is a fee for services:
- A specific identifiable service
- The fee is payable by the person who receives the service
- The fee is proportionate to the cost of the service
Harper v Victoria (1966) 114 CLR 361
• Facts: Act required that all eggs sold by retail be graded and tested. Every person presenting their eggs for this purpose was to pay “such fee as may be fixed by the Board to defray the expenses incurred”.
• Found: A fee for services rendered – although the fee was compulsory in a practical way, the amount of the fee was determined by the cost to the Board of rendering those services.
Parton v Milk Board (Vic) (1949) 80 CLR 229
• Facts: Legislation required every dairyman to contribute to a fund run by a government agency. The money was to be used for governmental purposes, such as improving the quality of milk and the promotion of milk consumption.
• Found: Tax and not a fee for services – although the amount paid was correlated with production, the service rendered was the same regardless of payment.
Air Caledonie International v Commonwealth (1988) 165 CLR 462
• Result: Court rejected argument that the fee imposed was a fee for services:
- Amount needed to be paid by both non-citizens and citizens (who already have an unqualified right to enter the country).
- The moneys paid were not related to any particular services supplied to particular passengers, but were intended to provide a general off-setting of administrative costs.
• Held:
- In one sense, all taxes exacted by the government can be described as “fees for services”. However, “fees for services” refers to a fee or charge exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment.
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133
• Facts: s66 of the Civil Aviation Act empowered the CAA to impose charges upon aircraft operators to recoup the cost of providing certain services, set at a level that would defray the costs of CAA across its Australian network and include a further rate of return. s67 provided that the amount of the charge “shall not be such as to amount to taxation”. Charges were levied against Compass Airlines for services, who argued that the charges were taxes, and not fees for services, because they did not accurately reflect the actual cost to CAA of providing the services to Compass.
• Result: The charges were fees, and not taxes:
- Not imposed to raise revenue
- Imposed to cover the cost of providing such services and facilities across the entire range of users.
- Reasonably related to the expenses incurred.
• Held:
- A direct correlation between the fees charged and services rendered is not always needed – a number of factors need to be taken into account.
- In a commercial context, notwithstanding that charges apply differently to different users and reflect neither the cost nor the value of the particular service rendered, they are properly characterised as fees for service if three conditions are met:
▪ Levied only against persons who use the services
▪ Levied against all such users
▪ There is a commercial justification for discriminating between different users
- The objective of revenue-raising is not determinant, although it will often be significant.
• NB: Harper and Parton are to be used as a basis for answering questions, but Airservices recognises that there may not always need to be a direct correlation.
FISCAL FEDERALISM
s96: “…Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit”.
Guarantees of Equality
• s51(ii): re. taxation, but not so as to discriminate against States.
- Only applies when legislature discriminates on its face – does not apply when discriminates due to different circumstances → rarely happens.
• s99: Cth. shall not by any law or regulation of trade, commerce or revenue, give preference to one State over another.
- “Preference” = giving a “tangible commercial advantage”, e.g. cash.
- Does not prohibit discrimination – does not fall within the meaning of “preference”.
• Sections easy to overcome.
Section 96 Grants – Overcoming s51(ii) and s99
Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399
• Facts: Act authorised the Cth. Parliament to make agreements with the States for the making and remaking of roads with Cth. financial support.
• Found: Act was a valid enactment – falls within what s96 permits.
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 HCA
• Facts: Act provided that a Cth. excise tax on flour to be collected from flour millers, the proceeds granted to the States under s96 on condition that the money be distributed to growers of wheat. Tasmania was a special problem because virtually no wheat was grown there. It was argued that the Act infringed s51(ii) which requires that taxation laws shall not discriminate between States or parts of States.
• Found: Cth. legislation valid.
• Held:
- s96 is not limited by any prohibition of discrimination.
- Demonstrates that States may be used as a pipeline.
- Latham CJ treated s96 as virtually unreviewable by a court and enabling the Cth., with no real restriction, to make such grants and to impose such conditions as it thinks proper.
- Passage by Latham CJ might be read as confining grants under s96 to a limited purpose, such as the redress of “a Federal disability” arising from the unequal operation of an unequally applicable law”.
WR Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) [1940] 61 AC 838
• Privy Council endorsed Latham CJ’s view, though said that caution needs to be exercised when using the section.
• A more resilent/qualified view of the role of s96 – s51(ii) should not be completely disregarded.
• Did not take the view that the Cth. Parliament can exercise its powers under s96 with a complete disregard of the prohibition contained in s51(ii), or so as altogether to nullify that constitutional safeguard.
• Imagined cases in which a purported exercise of the power to grant financial assistance under s96 would be merely colourable. Under the guise or pretence of assisting a State with money, the real substance and purpose of the Act might simply be to effect discrimination in regard to taxation. Such an Act may be thought of as being ultra vires.
• Case echoes discussion of federal balance in earlier cases.
Uniform Taxation of Income
South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373
• Cements application of the Moran case.
• Owes a lot to Engineers methodology.
• Facts: Four Cth. enactments that together established the Cth.’s monopoly over income tax:
- Income Tax Act → fixed Cth. income tax rate at a high level.
- States Grants (Income Tax Reimbursement) Act → States will get a grant from the Cth. but only if they have not imposed income taxes.
- Income Tax (War-Time Arrangements) Act → all resources used by the States in assessing/collecting income tax to be transferred to the Cth.
- Income Tax Assessment Act → Cth. taxes are to be paid before State ones.
States challenged this regime.
• Although it is obvious that these Acts were passed through as a package, the courts viewed them separately.
• Result: States failed – Acts offered an inducement to the State Parliaments not to exercise their income state powers, but there was no legal compulsion to yield.
• Held:
- Re. grant:
▪ The Cth. may properly induce a State to exercise its powers by offering a money grant. So also the Cth. may properly induce a State by the same means to abstain from exercising its powers.
▪ However, the Cth. cannot pass a law compelling a State to surrender a power or prohibiting the exercise of that power.
▪ Practical compulsion ≠ legal compulsion (unlike taxation) → Cth. entitled to make an offer of money to a State which, under the conditions which actually exist, the State cannot, on political or economic grounds, really refuse – temptation ≠ compulsion.
- Re. federal balance:
▪ Cth. legislation may be valid even though it weakens or destroys, and even if it is intended to weaken or destroy, some State activity.
← The remedy lies, if one is called for, with responsible government – it is a political question, not a legal one. This line of argument was previously brought up in Engineers and WorkChoices.
▪ Even though an indirect consequence of an Act, which consequence could not be directly achieved by the legislature, is contemplated and desired by Parliament, that fact is not relevant to the validity of the Act.
• Starke J (dissent):
- Preference to inhibit s96 so it is referable to s51(ii).
- Found that it could not have been contemplated that s96 would be used to abdicate the States’ powers of taxation – the government of Australia is a dual system and the maintenance of the States and their powers is as much the object of the Constitution as the maintenance of the Cth. and its powers.
Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575
• Facts: States Grants (Income Tax Reimbursement) Act repealed but its broad scheme repeated on a permanent basis by the States Grants (Tax Reimbursement) Act. Stated purpose altered from “for the efficient prosecution of the present war” to “for the purposes of the Cth.” The revised scheme was challenged.
• Result: Use of s96 to compensate the States for their lost income tax revenues valid.
• Court splits the litigation into two issues:
- The Grants Acts
- The Income Tax (War-Time Arrangements) Act
• Held (as per Dixon CJ):
- The power to grant financial assistance to any State upon such terms and conditions as the Parliament thinks fit is susceptible of a very wide construction in which few if any restrictions can be implied.
- After consideration of Moran’s Case, though it to be unthinkable that the Cth. could just use the States as a pipeline through which it is able to fulfil a purpose otherwise outside its powers. Also, suggested that s96 could have been conceived by the framers as having only been: 1) a transitional power 2) confined to supplementing the resources of the State by particular subventions when some special need or occasion arose, and 3) imposing terms or conditions relevant to the situation which called for special relief of assistance.
However, the existence of precedent and the fact that the court has acted on this for so long now makes it unthinkable that the operation of s96 could be limited.
- Confinements of s96:
▪ No power to compel acceptance of the grant and with it the accompanying term/condition.
▪ Limited to granting money to governments
• The effect of this and the First Uniform Tax Case is that it creates a system of State dependence on the Cth. Effectively, through granting States financial assistance using s96 and imposing conditions, the Cth. can influence the policy decisions of the States.
- Problem with vertical fiscal imbalance: responsibility with the States but the concentration of financial power with the federal government → accountability issue.
- A possible solution would be to allow the States an independent way to raise their own revenue, e.g. charge their own taxes. Right now, States have been described as being “institutionalised beggars”.
NB: *s81 of the Constitution allows all revenue or moneys in the Consolidated Revenue Fund to be appropriated “for the purposes of the Cth”
*It is important to realise that Cth. and States will use their powers to the max., but it are the Courts which help determine these powers.
Restriction – Religion
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559
• Facts: The use of s96 as a channel for Cth. funds to Church schools was challenged.
• Held:
- It is one thing to say that the Parliament, by a condition imposed under s96, could achieve a result which it lacks power to bring about by direct legislation, but quite another to say that the Parliament can frame a condition for the purpose of evading an express prohibition contained in the Constitution.
- s96 is subject to s116 of the Constitution, which provides in part: “The Commonwealth shall not make any law for establishing any religion”.
FREEDOM OF INTERSTATE TRADE AND COMMERCE
s92: “On the imposition of uniform duties of customs, trade, commerce and intercourse among the States…shall be absolutely free”.
• Issue with the word “absolutely free”.
• “Whether by means of internal carriage or ocean navigation” not a limitation (Bank Nationalisation Case).
• Section applies equally to State and Federal parliaments.
Pre-1988: Individual Right Theory
Commonwealth v Bank of New South Wales (Bank Nationalisation Case) [1950] AC 235
• Facts: Banking Act envisaged the progressive exclusion of private banks from the business of banking.
• Found: 4:2 decision that this was incompatible with the “freedom” to conduct such business interstate.
• Held:
- High Court:
▪ Freedom guaranteed by s92 a personal right attaching to the individual.
▪ The object of s92 is to enable individuals to conduct their commercial dealings and their personal intercourse with one another independently of State boundaries.
- Privy Council:
▪ Rejected the notion that the words “whether by means of internal carriage or ocean navigation” restricted the operation of s92 to such things and persons as are carried by land or sea.
▪ The business of banking is an activity of which the freedom is protected by s92.
▪ s92 guarantees the freedom of individuals – gives citizens the right to ignore, and, if necessary, to call on the judicial power to restrict, legislative or executive action which offends against the section.
▪ Recognises that the expression “free” must receive some qualification:
← Regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom.
NB. Those rules which gave executives open-ended discretion to make regulations did not fair well. Often, these laws were not invalidated, but their application to the certain cases was held inoperative.
← s92 is violated only when a legislative or executive act operates to restrict such trade, commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote.
• This case shows that the court always recognised that there was some restriction on the words “absolutely free” – reasonable regulation of trade and commerce acceptable.
A Free Trade Interpretation
Cole v Whitfield (1988) 165 CLR 360
• Facts: Tasmanian regulations prohibited any person from sale/possession of crayfish of less than a min. size of 110mm for males and 105mm for females – purpose to maintain a breeding stock. Similar restrictions were placed in SA, but given different breeding requirements a lower min. size was imposed of 98.55mm. Whitfield imported SA crayfish into Tasmania that were above the SA min. size but below the Tasmanian min. size. He was prosecuted for having undersized crayfish but pleaded that the regulation was invalid by reason of s92.
• Found: Regulation did not infringe s92 – it was not a discriminatory law of a protectionist kind:
- Applied to both inter and intrastate trade (applied to everyone as there was no way of telling if the crayfish came from Tasmania or SA) → non-discriminatory.
• From the history of Federation, it is clear that the purpose of the section was to create a free trade area throughout the Cth and to deny to the Cth and States alike a power to prevent or obstruct the free movement of people, goods and communications across the State boundaries.
- If there are limits, the legislation left it for the Courts to decide.
• Held:
- “Intercourse” (implies freedom of movement across State borders) separated from trade/commerce:
▪ Movement across State borders should be absolutely free, but trade/commerce should have some restrictions.
▪ As long as the two were coupled together, the section was always going to give a wide reading.
- Re. “absolutely free”:
▪ Does not mean freedom from all laws – it just means freedom from the types of laws which s92 prohibits.
▪ Test: a discriminatory burden of a protectionist kind.
← An example of a law which would offend this is a law in NSW saying that goods coming from the other States will incur a tariff.
← This test is more likely to hit down States than Cth. laws as Cth. laws are often directed to the regulation of all trade within the Cth’s legislative reach while State legislation often singles out interstate trade and commerce for particular treatment.
▪ Discrimination:
← A law will discriminate against interstate trade/commerce if the law on its face subjects that trade/commerce to a disability/disadvantage or if the factual operation of the law produces such a result.
← The possibility of factual discrimination by a s51(i) law applying only in respect of interstate trade/commerce may be eliminated in the context of a national scheme constituted by complementary Cth. and State law applying, by virtue of their combined operation, to all trade/commerce of the relevant kind.
▪ Protetionist:
← Whether a law is discriminatory in effect and of a protectionist character are questions raising issues of fact and degree.
← In the case of a State law, if 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.
← The kind of protectionism which offends s92 is that which confers a competitive advantage on the State relative to the other States, and not the kind which aims to protect the resources important to the industry.
← But if a law discriminates against interstate trade/commerce in pursuit of that object in a way or to an extent which warrants characterisation of the law as protectionist, it nonetheless offends s92.
- Despite the words “absolutely free”, s92 always had to fall within s51(i).
Discriminatory Burdens of a Protectionist Kind?
Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411
• Facts: Business Franchise (Tobacco) Act (Vic) provided for retain tobacconist’s licenses, including a fee of 25% of the value of tobacco sold “other than tobacco purchased in Victoria”. The exception was made because Victorian wholesalers had already paid the license fees with the added component. The scheme was designed to ensure that each lot of tobacco incurred the extra fee only once.
• Found: Majority (Mason CJ, Brennan, Deane and Gaudron JJ) found that the law infringed s92.
- If wholesalers of tobacco products in another State already pay taxes, then they would be excluded from selling into Victoria. On the other hand, if out of State wholesalers pay less taxes, the effect of the discriminatory tax will be to protect Victorian wholesalers from the competition of the wholesalers operating in the State with the lower cost structure. Either way, the operation and effect of the provisions of the Act were discriminatory against interstate trade in a protectionist sense.
• Held:
- To hold that a law which protects local goods by imposing a discriminatory tax on interstate goods is consistent with s92 because the law equalises in favour of the local goods an advantage which the interstate goods enjoy in their State of origin in the course of manufacture/distribution would be to disregard the constitutional purpose which the section is designed to serve.
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 – Proportionate to Purpose?
• Facts: Beverage Container Act (SA) intended to render the sale of beer in non-refillable bottles commercially disadvantageous. The major marketers of non-refillable bottles were three breweries producing beer in NSW, WA and Queensland.
• Found: The law, although prima facie non-discriminatory, was found to be “protectionist” – the excess imposed for using non-refillable bottles went beyond what was necessary to encourage the use of re-usable bottles. It was also known that all SA breweries used re-usable bottles.
• Held:
- If legislative measures are appropriate and adapted to the aim of the legislature, they would be consistent with s92 so long as any burden imposed on interstate was incidental and not disproportionate to their achievement.
- A law is discriminatory if:
▪ It operates by reference to a distinction which is in fact irrelevant to the object to be attained.
▪ Although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction.
▪ Although there is a relevant difference, it proceeds as though there is no such difference, unless perhaps, there is no practical basis for differentiation.
• The court may have reached a different result if even just one of the SA breweries used non-refillable bottles.
EXPRESS GUARANTEES – TRIAL BY JURY AND FREEDOM OF RELIGION
• Although they are called “express freedoms”, the more orthodox view taken by courts is that they are restraints on government power – denials of power rather than grants of rights.
Right to Trial by Jury
s80: “The trial on indictment of any offence against any law of the Cth. shall be by jury…”
Who Turns on Guarantee? Parliament
• Indictment different from being tried summarily in that the Crown will have a written accusation against you.
• Whether or not an offence is indictable depends on the Parliament – when creating offences, they can classify them as being either indictable or to be tried summarily.
• There is nothing to compel procedure by indictment (R v Archdall). Hence, Parliament can switch this section on and off through their choice of classification.
- There have been arguments saying that this interpretation is wrong as it does not provide for restrictions.
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556
• Facts: Bankruptcy Act provided that, when charged with an offence under the Act, a bankrupt would be tried summarily and, if convicted, imprisoned for up to six months.
• Dixon and Evatt JJ:
- Felt that R v Archdall was unsatisfying – that the provision could be so easily evaded by Parliament is a joke.
- Try to place a form of restriction on the power by saying that the essence of a “trial upon indictment” is that it involves “liability of the offender to a term of imprisonment or to some graver form of punishment”.
- Believe that s80 was not intended to have imposed no real restriction upon legislative power to provide what kind of tribunal shall decide the guilt or innocence on a criminal charge.
• Despite this judgement, R v Archdall still holds.
Kingswell v The Queen (1985) 159 CLR 264
• Facts: Customs Act provided that the penalties for an offence depended upon a finding by a judge, rather than a jury, as to whether or not a “commercial quantity” of narcotic goods was involved. Max. sentence varying accordingly (up to life imprisonment).
• Majority (Gibbs CJ, Wilson and Dawson JJ):
- s80 does not mean that the trial of all offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily.
- Although the way s80 has been interpreted deprives it of much substantial effect (and hence providing a reason why there should be limitations), the Court should stick by the settled approach.
• Deane J (dissent):
- s80 about procedural fairness – jury important.
- s80 must be read as an effective restraint upon Cth. legislative power.
- The concept of “trial on indictment” should carry with it the notion of the trial of a “serious offence”.
▪ “Serious offence” = not one which can appropriately be dealt with summarily.
▪ Conviction will expose the accused to grave punishment – a max. term of punishment of greater than one year.
Cheng v The Queen (2000) 203 CLR 248
• McHugh J (majority):
- s80 is not a great guarantee of trial by jury for serious matters. It guarantees trial by jury only when the trial is on indictment. Whether the offence is tried or triable on indictment depends in the first instance on Parliament’s classification of the offence.
- Danger of departing from the plain meaning of the section is that the possible qualifications which may be attached (e.g. that the crime be “serious”) is likely to be interpreted in different ways by different judges – there is need for clarity and so that there is less scope for judicial discretion.
- It would now be wrong for the court to give effect to a change of interpretation which has been rejected by the democratic process (amendment to Constitution rejected in referendum).
• Kirby J (dissent):
- In response to McHugh’s argument, argued that judges are used to drawing the line. The alternative road would be that there will be a useless section in the Constitution.
- Rejects the idea of originalism: what is relevant are today’s needs.
Effect of Guarantee?
Brown v The Queen (1986) 160 CLR 171
• Right to trial by jury cannot be waived.
- It is a constitutional guarantee for the benefit of the community as a whole, not just for the individual.
Cheatle v The Queen (1993) 177 CLR 541
• Essential characteristics of a “trial by jury” = connotation:
- Jury needs to be a body of persons representative of the wider community
- Randomly or impartially elected
- Jury unanimity
• Restrictions and qualifications of jurors may, however, vary with contemporary standards and perceptions – denotation.
Katsuno v The Queen (1999) 199 CLR 40
• Essential characteristic of a “trial by jury”: jurors are to be randomly or impartially selected.
Brownlee v The Queen (2001) 207 CLR 278
• What happens when you start with 12 jurors and then 2 are discharged and you are left with 10?
- It is not essential that there be 12 jurors – all there needs to be is unanimity
- The remaining members shall be considered to be a properly constituted jury
- Gaudron, Gummow and Hayne JJ conceded that there may be questions of degree involved though, so that it may be that in some situations, in a criminal case, the number of jurors is not to be reduced below 10.
• Sequestration (not allowing the jury to go home) is not essential.
Cheung v The Queen (2001) 209 CLR 1
• Rejected the requirement that all important factual questions determinative of criminal punishment be isolated and decided by the jury, not by the judge → determination of facts as part of the sentencing process could properly be left to the trial judge alone.
Fittock v The Queen (2003) 217 CLR 508
• Empanelling “reserve” or “additional” jurors consistent with the idea of “trial by jury” under s80.
Freedom of Religion
s116: “The Cth. 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 public office or public trust under the Cth.”
Krygger v Williams (1912) 15 CLR 366
• Facts: Defence Act introduced compulsory peace-time military training. Krygger charged with failure to render service. His defence was that attendance at drill was against his conscience and the will of God → prohibited him from the free exercise of his religion.
• Found: s116 not infringed.
• Held:
- It may be that a law requiring a man to do an act which is religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of s116 – distinction between morality and religion.
Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses Case) (1943) 67 CLR 116
• Facts: Wartime. National Security (Subversive Associations) Regulations: provided that any association whom the Governor-General declares to be prejudicial to the defence of the Cth. would be declared to be unlawful → dissolved and its property forfeited. G-G made such a declaration in relation to the Adelaide Company of Jehovah’s Witnesses Inc.
• Held:
- Scope of power:
▪ Broad view of religion and the range of activities that might be involved in its exercise: applies to all religions “true or false”, “good or bad”, and “irrespective of the proprietary of any particular religious observance”.
▪ The prohibition in s116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion.
- Restrictions:
▪ The protection offered by s116 is “not absolute. It is subject to powers and restrictions of government essential to the preservation of the community. Freedom of religion may not be invoked to cloak and dissemble subversive opinions or practices and operations dangerous to the common weal”.
▪ An obligation to obey laws which apply generally to the community is not regarded as inconsistent with freedom.
Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1
• s116 applicable in the Territories?
- Tribal culture issue unresolved:
▪ 2 says it applies
▪ 2 says it does not apply
▪ 3 are non-committal
• Gaudron J:
- s116 extends to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it.
- To attract invalidity under s116, a law must have the purpose of achieving an object which s116 forbids.
- A law will not be a law for “prohibiting the free exercise of any religion”, notwithstanding that, in terms, it does just that or it operates directly with that consequence, if it is necessary to attain some overriding public purpose or to satisfy some pressing social need. Nor will it have that purpose if it is a law for some specific purpose unconnected with the free exercise of religion and only incidentally affects that freedom.
▪ Question may arise whether the interference with religious freedom effected was appropriate and adapted to the purpose of the law.
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559
• Issue: Does government funding of church schools amount to an “establishment” of religion?
• Found: Majority found no problem with providing funding to religious schools.
• Held:
- Wilson J (majority): Narrow notion of “establishment”:
▪ Requires statutory recognition of a religion as a religious institution.
▪ Involves the deliberate selection of one to be preferred from among others, resulting in a reciprocal relationship between church and state which confers and imposes rights and duties upon both parties.
▪ Identifies a relationship which goes much deeper than financial assistance, whether casual or regular, from time to time, because it is expressive of a duty to “promote religion”.
- Mason J (majority): Took an even narrower view:
▪ “By the establishment of religion is meant the erection and recognition of a State Church, or by the concession of special favours, titles and advantages to one church which are denied to others”.
▪ The concession to one church of favours, titles and advantages must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution.
- Gibbs J (majority):
▪ Establishment = conferring on a particular religion or religious body the position of a state (or national) religion or church.
- Barwick CJ (majority):
▪ Establishment of a religion involves the entrenchment of a religion as a feature of and identified with the body politic… so as to involve the citizen in a duty to maintain it and the obligation of [government] …to patronize, protect and promote the established religion”.
▪ The establishment of religion must be found to be the object of the making of the law. The law must have that objective as its express and single purpose.
- Stephen J (majority): more flexible view:
▪ Establishment = extends to the favouring of one church over another.
IMPLIED FREEDOM OF POLITICAL COMMUNICATION
• Initially, there were suggestions that the requirement of free political communication could be derived from a general conception of representative government inherent in the Constitution. What has now prevailed is a narrower rationale but also a more secure one: the freedom is derived from the text of the Constitution, particularly ss7 and 24, which provide respectively that the Senate and the House of Representatives shall be “directly chosen by the people”.
Precursors
R v Smithers; Ex parte Benson (1912)
• Implied into the Constitution freedom of movement to access seat of government. Idea that in order for the Constitution’s ideals too work, individuals must be allowed to do certain things.
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977)
• Murphy J:
- Idea that you can imply something from the concept of the Cth.
- Freedom of movement, speech, and other communication.
- System of representative government requires such freedom.
Miller v TCN Channel Nine Pty Ltd (1986)
• s92 case re. interstate intercourse
• Murphy J implied freedom of movement
• Therefore argued that Murphy J paved the way for the court in recognising the freedom of political communication, but this was shunned at the time → a difficulty for later cases to overcome when they wanted to recognise that freedom.
The Beginning
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
• In finding that s299(1)(d)(ii) (making it an offence to write or say things that will bring the IRC into disrepute), the Court made use of the doctrine of responsible government.
- However, Mason, Dawson and McHugh used s51(xxxv) (conciliation and arbitration power) → do not discuss freedom of political communication.
- Mason found that a purposive approach may be used to sustain an implied incidental power even when the section re. a subject-matter.
• Deane, Toohey, Brennan and Gaudron discussed the implied freedom of political communication:
- Deane and Toohey JJ:
▪ People’s role in system of representative government: elections and referendums
▪ This requires a freedom of political communication as so that they can have a fully informed vote. This happens on two levels:
← Voter to voter
← Voter to government
▪ “…there is to be discerned in the doctrine of representative government” – idea that an external factor is to be taken to imply something into the Constitution.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
• Facts: Political Disclosures Act which imposed prohibition on political advertising during the time of elections with certain exceptions – idea that political parties have different amounts of funding (disadvantage) and also so as to cut the dependency on funds provided by lobby groups on the part of the major parties (comes with special relationships). Exceptions to ban: policy launches, news and current affairs items, talkback radio programs, and ads for charities that did not “explicitly advocate” a vote for one candidate/party. Another exception re. “free time” for political advertising with 90% given to major parties, the non-major parties the remaining 10%.
• Although the court struck down the provision for restricting the freedom of political communication, this provision may well have given the minor parties more advertising than they normally would have had.
• Majority judges committed themselves to an implied constitutional protection for freedom of political discussion.
• Mason, Deane, Toohey, and Gaudron find the part to be completely invalid. McHugh also finds there to be partial invalidity. Brennan and Dawson are in dissent but for different reasons.
• McHugh:
- ss 7 and 24 (“directly chosen by the people”) involves a degree of choice.
• Dawson J:
- Should not be implying restrictions on powers based on distrust of government → sees majority as departing from this.
- However, does recognise that ss 7 and 24 does exist → finds a degree of reason in McHugh’s argument. Leg. which is incompatible with the choice would fall foul of the Constitution.
• Brennan J:
- Does not agree with majority as he applies a proportionality test as a tool to determine limits on power (found implied freedom).
- Whilst freedom of political discussion is important, the legislation does not achieve this.
• Since McHugh finds that the freedom comes from those two specific sections (narrower than in the previous case), he does not find that the freedom will exist outside of the election period.
The Expansion
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
• Differs from the earlier cases in that it was re. defamation. Migrant brining action for defamation – significant as use of the constitutional freedom as a response to the common law.
• Reference made to New York Times v Sullivan (1964) – an U.S case in which the 1st amendment was referred to: “Congress shall make no laws affecting free speech…” Supreme Court says this not only acts as a restraint on Cth. power, but it also gives every individual a right of free speech (i.e. a personal right able to be resorted to in a common law action) → a constitutional defence to a civil suit.
- In this case, the court is doing the same thing but without a constitutional guarantee – controversial as not only was the right implied, it would become a personal right.
• This movement of the Constitutional into the common law produces a 4:3 split.
• Majority: Mason, Toohey, Gaudron and Deane (who takes an even more extreme view).
• Mason, Toohey, Gaudron:
- Broad view of political discussion – concept not limited to matter of government.
- What political communication protected very expansive – could cover almost everything.
- For present purposes, political discussion involves discussion of political office. Discussion of details about personal history included.
- Any attempt to prescribe what political discussion is impossible.
- Approach to question of common law and constitution:
▪ If there is any inconsistency between the two, the Constitution prevails.
▪ Relationship a mutually enforcing one, but the common law cannot be inconsistent with the Constitution.
▪ This is because essentially if the whole point of the Constitutional freedom is to ensure the equality of information are to have to decide on things, there is no reason why the common law should be exempt – idea of consistency.
- Existing laws of defamation incompatible with freedom?
▪ Does common law provide sufficient justification for people to discuss/criticise people for running for office? Is defamation too restrictive on political speech on political figures?
▪ Found that laws of defamation go too far – incompatible with freedom of political communication → suggestion that implied freedom provides a “constitutional defence” to a common law action.
- How the defence works:
▪ Publisher needs to consider whether it would be reasonable to publish the information, without checking to see if they are true or not.
- Vague and ambiguous on where such a “constitutional defence” comes from.
• Deane:
- Takes an even broader view.
- Says the Constitution is not to be understood to the “dead hands” of the framers – should be responsive to needs → Hence felt that if the Constitution itself does not provide for express rights of freedom, the Court should not be stopped from implying it.
- Finds that public figures should not be able to sue for defamation – absolute suspension of operation.
- His approach later rendered the majority’s decision vulnerable as later cases thought it was confined to its facts (since the majority was an “engineered” one).
• Brennan (dissent):
- Takes a different view of the relationship – although the Constitution can amend the common law, the common law is the matrix. The Constitution can now not dictate what the common law says. The common law has a certain permanence to it which the Constitution accepts.
• McHugh (dissent):
- Adheres to what he previously said – any implied freedom has to come from ss 7 and 24, i.e. from the text itself.
- Criticism of the majority in that it is “grand theory reasoning”
- Suggesting that ss7 and 24 will necessarily shape the scope of the freedom, i.e. it will only apply during elections.
- Discusses the idea of whether representative government and representative democracy the same: finds representative democracy broader. Democracy stresses operation beyond selection of government, and also suggests the way the government should operate after it is elected.
▪ Should stick with the idea of representative government.
- Hence, finds that implied freedom provided no defence to defamation.
• Dawson took a similar view to the one he took before (similar position to McHugh).
Stephens v WA Newspapers (1994)
• Implied freedom extends to State matters.
Representative Democracy?
McGinty v Western Australia (1996) 186 CLR 140
• One vote, one value.
• Not a political speech case but the tides have been changed.
• McHugh leads the charge, speaks of the minority argument but now in a position of more authority – in the majority.
- It is not for the judiciary to decide what representative government requires – it is for the people to determine.
The Lange Test
Lange v Australian Broadcasting Corporation (1977) 189 CLR 520
• Re. the role of representative government; the nature of the freedom; when will the implication operate so as to invalidate a law; extended qualified privilege.
• Sustaining the implied freedom of speech lost ground when Mason and Deane left.
• Courts realised they needed to settle the matter before new judges were appointed which might add to the confusion.
• Common law defamation again. The ABC said they will plead the constitutional defence.
• No coherent strand of reasoning; no precedent since Deane did not really agree with the majority in Theophanous.
• The kind of freedom that is to be kept free: concerning political or government matters between electors and the elected representatives, between the electors and candidates for the election and between the electors themselves → central to the system of representative government.
• It is not a personal power; it is a provision to restrict power.
• Effect of the Constitution on the common law – it is binding.
• The common law cannot narrow beyond what the Constitution demands; the judges are not free to determine what they like.
• Back to the ground of proportionality – whether the burden infringed the section.
• The test (pg. 1326) applies to both common law and statute.
• Defamation: obviously imposes a burden on the freedom of political communication. However, re. the second test, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government?
• Extended qualified privilege (where one person passes on information to another who has an interest in the matter):
- Scope of communication the problem – not a licence to shoot your mouth off; common law now provides a defence to those people who are discussing political figures.
• This case finds the defence to be in the common law, not the Constitution.
• Freedom does not extend to instances outside of elections.
• By returning to the common law where judges are allowed to be creative, the decision is less controversial – important from a political point of view.
Levy v Victoria (1997) 189 CLR 579
• Law re. duck shooting – regulation saying people not allowed on duck shooting area – aimed at keeping away protestors.
• Court recognises that what is protected is not political “speech”, but “communication” – extends to images.
• Law found to be valid: reasonably appropriate and adaptive to achieve a legitimate end (keeps people from being shot).
- Shows question 2 of test not to be read in a restrictive fashion – compatibility can be quite loose.
Brown v Classification Review Board (Rabelais Case) (1998) 154 ALR 67 – Theft as Politics?
• Court found that the law was a legitimate means to prevent theft – concentrated on the second test.
• Problematic ground on who the law was addressed to.
• Not political communication as it does not deal with political reform – it is only about shoplifting and trying to give it some sort of legitimacy.
The Gleeson Court on the Implied Freedom
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
• Pot meat factory in Tasmania who were chopping up possums. Animal activist group sneaked into the factory and got footage of the process and was about to broadcast it. Court gave the factory an interlocutory injunction to prevent them from doing so. ABC argued that an injunction could not be granted as there is no tort of privacy, and even if there was, it was overcome by a political freedom of political communication.
• Court found that the injunction did not exist.
• Only Kirby touched upon the implied freedom. Reluctance of lower courts to touch on it.
• Callinan:
- In addressing necessity, he says re. defamation law that there is no threat to the implied freedom.
- Saying that there is too much free speech already that there is no need for the implied freedom – balance in favour of the speakers and not on those who are spoken of.
- Tying it back to originalism: how much do we care about the intentions of the original framers? He finds that we should care more than the previous cases have.
Coleman v Power (2004) 209 ALR 182
• s7(1)(d) – threatening, insulting speech. People made allegations against police and were then charged under this section. Implied freedom? Court read section down and said it did not apply to police who are used to dealing with such insults. The section only applies to criminalised, insulting speech (“fighting words”) which are likely to incite/provoke violence.
- By reading down this section, the Court’s view is that they have rendered it clean re. implied freedom.
• The issue that the Court is second-guessing the legislature on: civility of political discourse. Court offering competing visions:
- Kirby felt that Australian politics has regularly included insult and emotion → rejects the view of Heydon.
- Minority seems to require civility in public discussion, and court seems to be rejecting this.
• Criticism of the way the Lange test is structured is that it is a very neutral process. In rejecting this, the court finds that the process is not one of balancing between competing interests.
• Majority take a statutory approach.
• Rewording of the Lange test – use new test in exams.
• But uncertainty over ‘proportionality’ aspect and (for one judge) the implication itself.
• A general reluctance to use implication?
• The degrees of difference and balancing?
Mulholland v Australian Electoral Commission (2004) 209 ALR 582
• Is there a burden?
- Heydon seems to suggest that it is not even a form of political communication – it is a medium through which a vote is cast (re. ballot paper).
- Gleeson, McHugh and Kirby reject Heydon’s view.
- Can you say there is a burden on political communication when there is no right which you have that is taken away? Majority is of the view that the DLP did not have any such right.
• Is it reasonably appropriate and adaptive to serve a legitimate end in a manner compatible with representative and responsible government?
- No disagreement – all agree that it is.
• The court dismissed the case on the first question.
JUDICIAL POWER AND DETENTION
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
• The core principle: the involuntary detention of a citizen in custody may only be ordered by a court, and in consequence of a judicial finding of criminal responsibility.
• The qualifications:
- Detention in custody, pursuant to executive warrant.
- Involuntary detention in cases of mental illness or infectious disease.
• The exception for aliens:
- Lies in their vulnerability to exclusion or deportation.
- Extends to authorising the executive to restrain an alien in custody to the extent necessary to make the deportation effective.
- Authority to detain an alien in custody for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers.
• The legitimacy of non-punitive executive action:
- Cannot detain aliens in an unqualified manner – unconstitutional if merely for a punitive nature.
- Need for “reasonableness”.
Incompatibility
Prehistory
• Boilermakers (1957)
- Court insisted on (4:3 decision) the judicial powers of the Cth. being kept completely separate from the other arms of government → invalidates the Conciliation and Arbitration Court.
- Courts cannot be given non-judicial powers, and the other arms cannot be given judicial powers.
• Grollo v Palmer (1995):
- Re. permit for telephone intercepts.
- Issue how to give judges power to issue warrants? Idea of persona designata: judges allowed to issue them not I n their judicial capacity, but their personal capacity (exception to Boilermakers principle).
- But cannot use this exception in an unqualified manner → idea of incompatibility: if function incompatible with judicial functions, then not to be used.
• Wilson v Minister for ATSIA (1996)
- Applied Grollo v Palmer
- Incompatibility found
• The surprising effect on State legislative power.
Kable v DPP (1996) 189 CLR 51 – An Integrated System and its Consequences
• Kable in jail for manslaughter. Decision made by executive supported by legislature to keep him in jail past his sentence term (preventative detention).
• Arguments:
- NSW law unconstitutional as not for the “peace, welfare, and good order of the State” → rejected as the words are plenary.
- State legislative power limited by common law rights so deeply rooted that they cannot be taken away by Parliament → rejected.
- Act infringed separation of powers → court confirms no strict separation of powers at State level (Boilermakers case has no application at this level).
- Act usurped judicial power, inconsistent with separation of powers → rejected due to ultimate power of the Court.
• Idea that ChIII also applies to State Supreme Courts when they are invested with federal jurisdiction from time to time, i.e. Boilermakers applies to the State Supreme Courts when this is not incompatible with their federal jurisdiction functions.
- Idea that State courts have the right to call upon federal powers should federal matters arise.
• 4:3 decision (Majority: Toohey, Gaudron, Gummow and McHugh).
• Gaudron:
- State courts cannot be abolished as they are recognised by the Constitution in order to invest them with federal judicial power.
- State courts cannot be conferred with power which is repugnant to or incompatible with their exercise of the judicial power of the Cth.)
• McHugh:
- Invests State courts with federal judicial power – unlike view of minority.
- The legislature in this case does not seek to interfere with the State’s federal jurisdiction – it is directed to the exercise of State jurisdiction. However, the compatibility of State with federal judicial power does not depend upon intention – it depends on effect:
▪ Idea that the court does not want public confidence to be undermined – how will the public view the legislation?
▪ Idea to preserve independence of the judicial arm: needs to be protected both in actuality, but also in the eyes of the public.
- Found that “ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that [Kable] should be imprisoned without the benefit of the ordinary processes of law”.
• At the federal level, cannot give courts non-judicial function. The State Supreme Courts can exercise non-judicial power and that will not offend Kable so long as the power is not incompatible with their federal functions as recognised by the Constitution.
- In this case, such incompatibility was found.
- The rule applies regardless of whether a federal issue is raised in the case → Though, Toohey pointed out that “federal jurisdiction” involved in this very case.
• Dawson (dissent, with whom Brennan agreed with ):
- Acknowledges State courts must exist, but Cth. must take them as they find them.
- You may invest them with federal judicial functions, but they are still State courts.
- No incompatibility – no integration of systems (State and Federal systems).
- Suggestion of the idea that the words/existence of ChIII necessitates a denial of State power is viewed as an abuse.
Fardon v Attorney-General Queensland (2004) 210 ALR 50
• Re. Dangerous Prisoners (Sexual Offenders) Act 2003 which allowed a prisoner to be kept in detention if there was a serious likelihood that they would re-offend (for a sexual offence). An order for a continuing detention order was made against Fardon.
• ChIII:
◆ At the federal level, courts cannot exercise non-judicial power.
◆ However, at the State level, this is diluted to a certain extent. Courts still cannot exercise non-judicial power, but only when this is incompatible with their exercise of federal jurisdiction.
• All judges except for Gummow did not consider whether the legislation would be valid if enacted at the Cth. level (not necessary).
• Gummow:
◆ Offers an alternative to the joint judgement of Lim: says purpose is not to punish, but to protect in this case.
◆ At the federal level, legislation which tries to confer a power to detain, not as a consequence of criminal guilt, to a court that is now allowed, no matter how much it is dressed up as a process of refinement. This is because it is the outcome (deprivation of liberty) and not the means which matters.
• Kirby agrees with Gummow’s sentiments, but Hayne does not:
◆ Hayne (and Gleeson, Callinan and Heydon (majority)) does not feel the need to decide whether the Act is within power; all that needs to be decided is whether it is not incompatible with judicial power.
• McHugh:
◆ Finds that it is a judicial function, meaning that it would satisfy the stricter requirement at the federal level.
• Is the power judicial or just not incompatible with judicial power?
◆ Majority finds that it just needs to be not incompatible.
• Kirby:
◆ Objects to the narrowing of Kable, describing it as the “dog that barked once” → it arrived with a huge splash but was never applied.
◆ This should be a case to apply Kable as the circumstances are significantly similar.
◆ Re. the ‘punitive’ issue: the way in which the individual is treated does not indicate a shift in purpose.
◆ Says this sets a bad example for the Cth.
• NB. definition of what is “judicial” on pg. 663 (Huddart, Parker).
• Distinguish the Community Protection Act (NSW) – see pg. 766-7.
Detention Absent Criminal Guilt
Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1
• Stolen generation case. Law provides for Aboriginal children to be removed from their families.
• Issue forced removal of children unconstitutional as removal of children can only be done by the court, as opposed to the Executive.
• ChIII applicable to s122?
- Brennan, McHugh and Dawson find inapplicability.
- Gummow and Toohey said that even if we open up a Constitutional argument, the removal of children was for their benefit – purpose a non-punitive one → a legitimate exception.
• Gaudron against the immunity:
- Prefers to think of the constitutionality of the immunity of detention this way: one of legislative power under s51 rather than a free-standing immunity subject to many exceptions.
- Suggests that rather than maintaining the immunity and let exceptions generate on the basis that they are non-punitive, she is trying to pin it down – apart from examples given (pg. 735), the immunity does not exist.
Detention of Non-Citizen
Al-Kateb v Godwin (2004) 219 CLR 562
• Gaudron’s argument taken up.
• The case which McHugh has recently returned to in order to say that we need a Bill of Rights.
• Dissenting judges: Gleenson, Gummow and Kirby.
• Back on issue of detention of non-citizens.
• Al-Kateb’s particular circumstance which made him problematic was that he was a stateless person who was not able to be sent back to Palestine. s198 of the Migration Act required an officer to remove as soon as reasonably possible an unlawful citizen. Issue: does this mean that when it is not reasonably possible to remove them, they are allowed to be detained indefinitely?
• Decision (4:3) that the Cth. can detain indefinitely an individual in these circumstances.
• Majority approached the issue as a matter of statutory construction:
◆ Combined effect of s198 and 196.
◆ Failure to respond to Gleeson’s view: when legislature has such a damaging effect on human rights, they need to be far more express in their words to indicate such an intention (a conservative view?)
◆ Demonstrates how narrow the majority argument is – unconvincing.
• On the role of ChIII:
◆ The majority pick up Gaudron.
◆ Detention non-punitive (as seen by Hayne) as its purpose is segregation to keep them out of the community indefinitely. The connection between detention and deportation need not be so close. It is a legitimate application of the aliens power that Al-Kateb be segregated. Also: 1) Immigration detention is not detention for an offence. 2) Detention excludes person from community.
• Gleeson (dissent) does not address the Constitutional issue and green lights the detention. However, he says that the two above sections cannot be just thrown together to detain someone in an immigration centre for life – needs to be something more.
• McHugh (majority):
◆ Non-punitive object: prevention of aliens coming into the country → within Cth. power.
◆ Court has no other option: if Parliament passes law, it has to be accepted by the Court → a political question (idea from Engineers that the court’s role is not to act as a check on political power – for the legislature to deal with).
• Minority:
◆ Gummow:
• Attempts to colour Gaudron’s judgement with that of the majority in Lim, especially citing McHugh: does not accept segregation as a valid non-punitive object.
• Insists on the fallacy of talking about punitive and non-punitive detention as imprisonment is the issue.
• Problem with legislation from a constitutional point of view is that the Parliament has just handed the executive a power to detain. It is not for the executive to determine the boundary lines of the operation of laws which involve the deprivation of liberty → boundaries determined by Constitutional interpretation.
• The executive has a very circumscribed power to detain people. But their power to detain aliens cannot be without end.
◆ Kirby:
• Disagreed with McHugh re. wartime cases.
• Whereas McHugh thought that detention in these times were non-punitive (actually protection-orientated), Kirby thought that the power to detain should be subject to more of a review, especially in light of the Communist Party Case.
• Feels that cases now would be treated differently from those of the wartime cases (unlike what McHugh believed).
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486
• Argument was that detention could be seen as punitive when the conditions are particularly harsh.
◆ Rejected by the court – conditions irrelevant.
■ Also rejected argument that detention of children must be punitive – no valid reason to detain children.
◆ Rejected by the whole court.
Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 210 ALR 369
• Not a lot in McHugh’s argument – not very helpful.
NB. Now, idea of a constitutional immunity from detention from Lim has been moved away from.
THE FEDERAL COMPACT – THE COMMONWEALTH AND THE STATES
• Re-emergence of a federal implication after Engineers.
• Securing a better constitutional basis for federal immunities.
The Principle
Melbourne Corporation v Commonwealth (1947) 74 CLR 31
• Re-establishes a federal immunity whereby the States are immune from the Cth.
• Cth. trying to force States and private banks to bank with the Commonwealth Bank (to control the supply of money and credit. This was done through the Banking Act 1945 (Cth)).
• Law not found to be invalid under s51(xiii) – a law re. State banking since prohibition of “other than State banking” refers to States as bankers, not customers.
• Objection to the Act that it interfered with the operations of the States.
• Dixon J:
- Constitutional reservation may have one of two basis:
▪ Discriminates against States
▪ Places a disability/burden on the operations of the State
- 2 aspects:
▪ If the law is tenuous, then it will fail for want of legislative power (no sufficient connection with head of power).
▪ If the law operates directly upon a matter forming an actual part of a subject enumerated among the federal legislative powers, its validity could hardly be denined.
• The case is significant as, since the Engineers case, the Cth. has eaten into the States’ powers. This case recognises that there are limits to the Cth’s powers – where the Cth. legislation undermines the integrity of the States, the it will be struck down.
• Whereas before in the Engineers case and the First Uniform Tax Case it was found that the possibility of power being abused is a political problem and not a concern of the court, Dixon recognises that there is a qualification to this.
• Immunity from the State not have anything to do with anything special about the powers of the State, but from the structure of the Constitution which establishes a federal system – want the States to continue to maintain their existence (as per Dixon).
• Rich:
- In favour of broad reading of Engineers that Cth. powers restricted by a supposed reservation of powers to the States.
- However, there are 2 limitations (as similar to Dixon):
▪ Discrimination
▪ Burden on operations of States
• Unlike Dixon and Rich, Starke J dismisses the idea of discrimination being decisive: test is whether the legislature curtails the functions of the States.
• Latham CJ:
- Approach taken on characterisation is wrong – has previously been departed from.
- Said that there is a choice in interpretation: one level re. States’ powers, and other a s51. he says that the law is to be characterised in one way only (unlike Dixon who says that the law falls within s51, but is nonetheless invalid due to the federal immunity).
• Questions left unsolved:
- One or two limbs?
- Characterisation case, or an implied immunity? If the latter, how to reconcile with Engineers.
Discrimination? Two Limbs or One?
• A separate limb against the Commonwealth discriminating? Tasmanian Dam Case (1983):
- Argued that the law discriminates against Tasmania, and obscures state functions.
- First thing Mason does was very clearly reject the characterisation approach which had most recently been endorsed by Barwick in the Payroll Tax case: the Cth. cannot enact a law which discriminates against a state….
▪ Implied prohibition
▪ No doubt that what we are talking about is an immunity derived from the federal nature of the Constitution – can support an immunity just as the text can.
▪ Idea of discrimination as a distinct limb of the doctrine becomes very clear.
▪ Principle behind it: what this doctrine does is to prohibit impairment of the capacity of the state to function as a government, rather than to prohibit any function of the state. Idea of it is to only prohibit legislation that is impairing the state as a government.
Queensland v Electricity Commission v Commonwealth (1985) 159 CLR 192
• Facts: the QEC was a statutory body of the Qld gov. involved in an industrial dispute with its workers. What the Qld gov. did was to insert a clause via legislation into the employment contract of all employees prohibiting them to strike. The clause was not in the contract when they were employed, but it was inserted, thus allowing the QEC to sack the employees. After the Qld gov. did that, the Cth. gov. decided to intervene. The unions went to the Conciliation and Arbitration in the first place, and the Cth. inserted leg. giving jurisdiction for the commission to settle the dispute. Qld challenged the leg. as a breach of the Melbourne Corp. test, mainly on the limb of discrimination.
• The court is very express in saying the aspect of the doctrine they were focusing on was re. discrimination.
• Result: Legislation was struck out.
• Good authority for the invalidation of a Cth. law because it discriminates against a certain state.
• Mason’s judgement the leading opinion:
- Perfectly clear that if you look at the cases the prohibition has two elements.
- Three things about discrimination:
▪ Discrimination can be against a particular state (as in this case) or it can be about states generally.
▪ Protects legislatures as well as executive governments
▪ A law which deprives a state of a right, privilege or benefit does not amount to discrimination (continuation of idea from Tasmanian Dam case).
- The prohibition against discrimination operates to strike down agencies of a state as well as a state itself (made clear in Melbourne Corporation).
▪ On these facts, there was discrimination. If the law had been passed on general application, although it may be a bit strict, it would not offend the prohibition. But when the Parliament singles out disputes in the electricity industry to which the agencies of the State of Queensland are parties and subjects them to special procedures which differ from those applying under the principle Act, it discriminates the agencies of the State by subjecting them to a special disability in isolating them from the general law contained in the Act.
- One limb supported by extraordinary nature of the legislation.
• Deane:
- Warns against just looking to the form of the Act when it is of general application – clouds the clarity which Mason’s dual approach has given us.
- “The character of a law as a law of general application is ordinarily a factor, and sometimes a conclusive factor, militating against the conclusion that it discriminates against the States or a State in the relevant sense. The question whether the law or law does so discriminate against the States or a particular State is however a matter of substance…”
One Limb – For One Principle?
Austin v Commonwealth (2003) 215 CLR 185
• Facts: Employees have a superannuation fund. The contributions are made to that by their employers. The Cth. government was taxing these in the hands of the employers. In the interests of equity, there are some people who don’t have a superannuation fund – judges – because they get a state pension. So when they retired from being a judge, they are paid a particular pension (a lot of money). What the Cth. leg. did was to say that these people are being taxed ultimately as they are not going to lose out as the money is taxed sometime as it goes in. The States are paying the pension, but the States cannot be taxed due to s114 so the tax needs to be taken out of the judge’s hands. NSW, as an example, dealt with this problem by enabling the judges to draw a substantial part of their pension out as soon as they receive it in order to pay the tax.
• What the judges proceeded to do was to get together and decide to launch the litigation against the Cth. arguing the Melbourne Corp principle – it impairs state gov. functions as they are concerned that it may force judges to retire earlier and make it impossible for states to refill the position (creating staffing crisis) -> states need a judicial arm hence it goes towards an important state function.
• Gleeson:
- Favours retaining discrimination as an element of the immunity but connects it to the essential principle from Melbourne Corp. – favours what Mason said.
- But he accepts that this tax will affect the recruitment and retention of judges and that is clearly an impact that is going to have upon state constitutional functions.
• Gaudron, Gummow, and Hayne:
- Reject the idea of discrimination as a stand-alone limb – the legislation clearly only applies to state judicial pensions and treats state judges differently from other employees who are dealt with by private superannuation schemes. Their view is that this would give discrimination a standing on its own – not possible.
- Seem to suggest that discrimination is subsumed with the second principle and rather being worried whether it is a general application or specific, what is important is whether the function of the state suffers.
- They are attempting to say that, in acknowledging discrimination in QEC, Mason was trying to tie it with the second test (burden) → but such a view appears to be questionable.
- The touchstone for the issue is whether it impairs against state functions.
- It doesn’t really matter that the law in question isn’t actually directed to the state and is instead directed to the judges. It doesn’t apply to states; it applies to judges and taxes their income. However, judicial remuneration is such an important part of the State’s ability to have a judicial system that the leg. can be seen as impairing state functions.
- Judges are also people and they pay taxes.
- Not a general tax that the judges are paying – the leg. speaks of high income earners of superannuation fund.
▪ Quite objectionable what they are doing there: the whole basis of their decision is that judges are being discriminated against. Though, the reality is that it is actually achieving economic parity of judges with everyone else generally. The object of the Act is to achieve equality, but there is no recognition of this in their decision – only talks about the differences. This somehow interferes with State constitutional functions?
- Emphasised that the invalidity of the Act did not depend upon discrimination:
▪ Then what else did it depend on?
- Kirby the only member of the court to dispute their judgement.
• McHugh:
- Approach similar to Gleeson’s – really need to remove discrimination? We’ve got a precedent, and the court is supposed to be restrained/non-activist.
- Points out that there is perhaps nothing in substance distinguishing the two limbs. But if they at beast replicate each other, there is nothing to be gained by chopping off discrimination.
- The whole case appears to be about discrimination.
- Talks about why state judicial officers are taxed in a way different from other employees. Suggests that the process being different makes the leg. an entirely different one imposing a financial burden on judges that no-one else incurs.
▪ But: even though the process is different, the outcome is the same. Even though tax is taken at an earlier point for other high-income earners, it is assumed that the tax will be eventually passed on and there will eventually be a reduction in their economic benefits.
• Kirby:
- Contests that the imposition of the surcharge has a significant and detrimental effect on the power of states to determine the conditions and terms affecting judges’ remuneration: the imposition of a surcharge is not fixing state judicial salaries in any way – the states can just pay the judges more to make up for the tax.
- Not as if you can avoid tax by not becoming a judge – will definitely have a tax if you enter a new profession.
- The surcharge has been applied in the five years this case has been tried and there is nothing showing that there has been a reduction in the number of judges employed in this period.
- Discrimination itself is not relevant – agrees with joint judgement in this respect.
- “In my view the effect of the federal legislation impugned in these proceedings does not even come close to jeopardising the selection and retention of State Supreme Court judges”.
- “The decision of this Court…pushes the implied constitutional prohibition to a new and radical application that has no application in the Constitution”.
- Given that the court has invoked the implication sparingly in this era in terms of protecting liberties (a far stronger argument), it is offensive that an implication based on the federal system of the Constitution should be invoked to protect State judges from being taxed.
• Also, the judges are not left in a particularly vulnerable position: they are given their pay with which to pay the tax. It is not as if they are being made to sell their house etc to pay the tax. They are merely getting less than what they would have gotten before.
Industrial Relation Laws and Structural Integrity
Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188
• Question is whether the Cth. Conciliation and Arbitration has jurisdiction to determine disputes.
• Found commonwealth commission could because in its power to make awards over employees re. min. wages and conditions as they didn’t affect the constitutional power of the states. Qualifications: not (since they affect budgetary matters, they would affect state functions)
- Number employed
- Eligibility
- Duration
- Termination
• Distinction was made between high (people Cth. not able to regulate even min. wage for: ministers, advisors etc – people connected with intimate workings of govt.) and low level of government.
- Important function to be able to determine the number and identity of those who it wishes to employ at the higher level of govt.
• Dawson (dissent):
- Min. wage has a huge effect on the budget as it affects how many judges the state could employ.
- All things are related – cannot have part of it without affecting the whole.
Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416
• What the court does is; rather than invalidate Cth. legislation, they just read down the legislation so as not to apply to the high level of employees of gov.
• Leg. treated as valid only by reading it down so that it did not apply to ministers etc. By implication, if the court was not able to do so, such a law would offend Melbourne Corporations.
New South Wales v Commonwealth (Work Choices case) (2006) 231 ALR 1
• There was some argument made by SA that this infringed Melbourne Corp principle – rejected by majority of court.
• s106 guarantees constitutional powers of states will continue as they existed before federation.
• Majority: So far as the argument relies upon Melbourne Corp, there is nothing in the Act that is so particular which means that it infringes upon the operations of the State.
• Dissenters:
- Invoke Melbourne Corp?
▪ Kirby didn’t invoke it – used it as a way of bolstering his broader argument re. federal balance. The closest he comes is to acknowledge of the possibility that it exists – winds down to recognition of federal structure. It almost seems that, rather than to approach it on its own terms, they use it as a springboard for the appraisal of the federal nature of the Australian constitution generally, i.e done with Engineers and there is perhaps a need to return to a general constitutional immunity. Hence, barely about Melbourne Corp.
▪ Callinan is more direct.
← Acknowledges the immunity – even when the Cth has the power the operation of it may be unconstitutional.
← Rather than talk to Melbourne Corp directly, he takes swings at Engineers – should not be applied so strictly as to exclude the Court’s ability to maintain federal balance.
← Not an attempt to apply the principle in any kind of serious way – used as a platform for a broader argument about federal balance.
← Gives a list of reasons as to why the legislation should fail – comes close to invoking Melbourne Corp:
。 Suggestion that reason 7 not actually happening – if it was, then it would be a “decisive factor”.
。 8th point: validation of leg. would distort State functions… - where his objection is.
NB. Melbourne Corp is not retreat from Engineers. It is rarely invoked. The idea behind it is quite clear, but the test is to confusing. Discrimination or not? Would not write it off yet, especially since the reasoning of Austin seems to invoke it quite a lot.
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