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1.) FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW
1.) THE CONSTITUTION – SUMMARY:
• No Bill of Rights
• S 51: legislative power (concurrent)
o “Peace, order and good government”: the opening words are not words of limitation: Union Steamship
• S 52: exclusive powers, belong only to Cth
• S 128 and chapter 8: hard to amend, need a referendum, majority of people in majority of states (at least 4 out of 6 states)
• S 109: inconsistency
• Federal system of government: to divide power and authority so act as a check and balance upon each other, also due to size of country, disparity of interests in different areas
• Separation of powers provided for by the design (text and structure) of the Constitution
• Re Wakim: negative implication from Constitution: federal courts can’t have state jurisdiction
• Representative and responsible government (maybe as an explanation as to why the Constitution doesn’t specify individual rights)
2.) THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION (A)
INTRODUCTION
How should Parl read the C’n?
What are the competing approaches?
Which ones have dominated?
What are the deficiencies of some of these interpretation methods?
• C’n assigns to the Cth Parl a specified list of powers – primarily in the 40 paragraphs of s 51
• Powers not assigned in this way are left to the exercised by the states
• This follows the model of the US C’n
1.) RESIDUAL AND CONCURRENT POWERS:
• S 51: specified Commonwealth powers
• Residual powers: the unspecified fund of legislative power left to the States and declared by s 107 to “continue”
o Similar to US
o Canada: lists some specific powers for the provinces and also list and residue for the Central Govt
o But we wanted strong states rather than strong centre – so set up states with residue
o This was erroneous – the level of govt holding the residue is weaker
o Cth powers can only be interpreted and can only expand in meaning and power, so as this happens, the residue, which can’t be interpreted, can only be whittled away, not expanded
o So Canadian model would have worked better for us in ensuring stronger states
• This can be misleading
• Although in any area not specifically assigned to the Cth leg power remains with the states, the normal arrangement is of concurrent powers
• Concurrent powers: even in an area where the Cth has a clear grant of law-making power, Stat Parls will still normally have a power in that area too
• Leads to possibilities of conflicts (acknowledged by s 109)
• S 109: provides that in the case of conflict the Cth law shall prevail
Exceptions to concurrent power:
• C’n gives Cth exclusive law-making power
• Some exceptional areas set out in s 52
• Grant of power to the Cth deprives the States of any powers to enact valid laws
• The section giving exclusive power that has most practical impact is s 90: provides that excise duties may only be imposed by Cth Parl
NOVELTY OF OUR CONSTITUTION:
• Combines responsible govt with federalism
• US and Canadian governments weren’t structured in this way and perhaps this is a reason that following their models wasn’t as effective as hoped
HISTORY OF PARLS MAKING LAWS BINDING OTHER PARLS:
• Initially, HC denied possibility of, for example, State Parls making laws binding Cth govt
• It was thought that if federalism means that each level of govt is sovereign, then no govt at either level could be told by another govt what it could/could not do
1.) The implied immunity of instrumentalities doctrine
• Doctrine: meant that both States and Cth were normally to be immune from each other’s laws ( protected States from Cth interference
o Cth and states as parallel lines that could not interfere with each other
• D’emden v Pedder
o Postmaster for Tasmania objected to having to pay income tax to Tasmania
o He was employee of the Cth
o Issue: is a Cth employee liable to pay income tax to the state?
o Held: no – as a Cth officer, he was immune from paying state tax
o States can’t make laws binding upon the Cth
• Railway Servants Case
o Cth can’t make laws binding upon states,
2.) Reserved State powers doctrine
• States also protected another way
• It was said that – with support from the language of s 107 – State leg power was residual – any legislative powers not specifically assigned to Cth were reserved to the States
• So Cth grants of power (s 51) were to be interpreted so as to ensure they did not encroach too far upon the States’ residual powers
• Trying to preserve as much as possible the legislative powers of the states
The HC of the time saw the 2 doctrines as enhancing a balanced model of federalism
2.) DOCTRINE OF RESERVED STATE POWERS (now abolished)
• This enhanced the idea of narrowly construing Cth legislative powers so as not to encroach upon those of the States
Foreshadowing the argument
( Peterswald v Bartley
• Court took a narrow view of the Cth’s exclusive power to levy excise duties under s 90, leaving in tact the NSW brewers’ licensing system
Extending the idea
• Majority argument not applied to save a State law (as above), but rather to strike down a Cth law
Reserving powers to the States
• Aus C’n confers certain definite powers on the Cth and reserves to the States all powers not expressly conferred upon the Cth
• The power to pass an Act must be vested in either the Cth or States but not both
Excise duty
• Tax upon goods at their point of manufacture
( R v Barger
FACTS:
• S 2 Excise Tariff Act imposed excise duties on agricultural implements
• But section said that the excise did not apply to goods made under conditions where remuneration of labour was fair and reasonable
ISSUE:
• Whether s 2 was a law with respect to taxation under s 51(ii) of the C’n (in which case it was regulated by the Cth)
HELD:
• S 2 could not be supported by s 51(ii) i.e. invalid
• Said cant use s 51(ii) to achieve the end of an excise duty in this case, because this legislative power is reserved to the states
• They said the power to pass such an Act must be vested in EITHER Cth OR State Parl
• Because the subject matter lay within State legislative power (and was not an Act imposing duties of excise), it could not lie within Cth taxation power
• The grant of the taxation power is a separate grant – intended to be something entirely distinct from a power to directly regulate the domestic affairs of States
DISSENT:
• In construing the C’n, need to first give effect to specific grants of Cth power and any concept of residue can only meaningfully refer to what is left over after Cth’s powers have been determined
Demonstration of how extreme the reserve power doctrine was
( Huddart, Parker & Co v Moorehead
• The Cth could not, under its corporations power (s 51(xx)) enact leg’n regulating intrastate trading practices
• Looked at what was lacking in s 51(i) referring to intrastate powers, said it must fall in s 107, then said can’t possibly be within Cth powers passing laws under s 51(xx)
3.) THE CHANGE IN LAW
ERODING THE DOCTRINES – ENGINEERS’ CASE:
• Overthrowing of the above 2 doctrines
• Also spelled out principles of constitutional interpretation that were influential
• Nowadays these principles are more controversial
a.) Construction
The Constitution
• The political compact of the whole of the people of Australia
The proper construction (to ascertain intention) of the Constitution
• Need to bear in mind 2 things:
o The common sovereignty of all parts of the British Empire
o The principle of responsible govt
▪ A govt under which the Executive is directly responsible to the Legislature
• Combined effect is that the expressions State and Cth comprehend both:
o The strictly legal conception of the King in right of a designated territory and
o The people of that territory considered as a political organism
Judge’s role in construction
• To construe the language in which the Legislature has expressed its conclusions
• Look to the terms of the instrument
• Need to read the language in its natural sense
• Exclude consideration of everything except the state of the law as it was when the statute was passed and the light to be got by reading it as a whole
When the text is ambiguous
• Recourse must be had to the context and scheme of the Act
b.) Rejection of the doctrines – doctrine of necessity
• This is a doctrine of political necessity
• The ordinary meaning of terms employed in one place may be restricted by terms used elsewhere
• But once their true meaning is ascertained, they cannot be further limited by fear of abuse
• This was just based on what individual judges felt the Constitution required (especially the first 2 judges, influenced by the Convention debates) i.e. it was political necessity
• Political necessity can never be justified i.e. drawing implication from necessity so as to protect the states from the Cth
• Courts not willing to mollycoddle the states by virtue of the doctrines
True method of construction
• The one clear line of judicial inquiry as to the meaning of the C’n must be to read it naturally in the light of the circs in which it was made with knowledge of the combined fabric of the CL and the statute law which preceded it
S 51 under the true method of construction
• Each of the grants of power is plenary (absolute)
• So unless there’s some express provision as to why a law can’t be passed, it’s valid
Effect of s 107 – continuing powers of State to legislate
• Reject this section as providing any basis for the doctrines
• Simply continues the previously existing powers of every State Parl to legislate with respect to:
o State exclusive powers
o State powers which are concurrent with Cth powers
• But it does not reserve any power from the Cth that falls fairly within the explicit terms of an express grant in s 51 unless reservation explicitly stated
• So this section doesn’t compel us to read the Cth powers narrowly
Effect of s 109 – conflicting State and Cth legislation
• Effect of State leg – though fully within the powers of s 107 – may in a given case depend on s 109
• However valid State leg is where no Cth leg exists, the moment it encounters repugnant Cth leg operating on the same field, the State leg must give way
• The section gives supremacy to EVERY Cth Act, not merely over State Acts passed under concurrent powers but ALL State Acts, though passed under an exclusive power, if any provisions of the 2 conflict
Implications when interpreting the Constitution
• Can still make implications when they are logically or legally necessary
• Just not politically necessary
( Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case)
FACTS:
• Arose from a claim by a union of engineers in the Cth Court (Conciliation and Arbitration Commission) for an award relating to 843 employers across Aus
• In WA, the employers included 3 governmental employers
ISSUE:
• Whether the Cth’s power to establish the Commission has jurisdiction to apply to WA as an employer in the industrial dispute? i.e. is the state bound by the jurisdiction of the federal body?
• Whether a Cth law made under the conciliation and arbitration power (s 51(xxxv)) could authorise the making of an award binding those 3 employers
• i.e. whether the state was subject to the Conciliation Commission
HELD:
Criticism of past cases:
• No clear principle behind the implied doctrines
• Drawn from principle of necessity
Need to ascertain the intention of the legislation
Looking to established principles of Constitutional construction:
• Webb v Outrim: judges proceeded on ordinary lines of stat construction
• Colonial Sugar Refining Co’s Case: considered the nature of the instrument itself
Applying true methods of construction:
• S 51(xxxv) is so general that it extends to all industrial disputes in which States are concerned but subject to any provisions to the contrary found in the C’n
• In industrial disputes, States are subject to Cth legislation under s 51(xxxv) is such legislation under its true construction applies to them
• Used a legalism approach
Assessing the historical impact of Engineers’ Case
Both of the following point out the irony of the decision being political despite it criticising political decisions…
( Victoria v Cth (Payroll Tax Case) WINDEYER J
• Noted some distant echoes and muffled undertones of a conflict between assertions of centralism and claims to State rights
• In federations of all kinds this has been a perennial controversy
• When Cth came into existence, states lost some of their former powers and gained no new ones
• Position of Cth waxed, that of the States waned
• Paramount position of the Cth Parl was reinforced by financial dominance
• Cth entered into fields formerly occupied by States
• This was aided by Engineers’ Case
o Diverted the flow of Constitutional law into new channels
o Led to growing realisation that Aussies were now one people and one country – that national laws might meet national needs
o Look at the case as an event in legal and constitutional history
o It was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there
• In any country where the spirit of the CL holds sway the enunciation by courts of constitutional principles based on interpretation of the written C’n will vary and develop in response to changing circs
• This does not mean that the courts have transgressed or that they may do so
RTE Latham, The Law and the Commonwealth:
• Original HC:
o Treated C’n as a federal compact
o Saved as far as poss the integrity of both States and Cth by applying American doctrine of immunity of fed and State instrumentalities – rule of mutual tolerance
• Brilliant minority:
o Persisted in continual dissent – 2 younger judges against the 3 original HC judges who believed in the doctrines
o Elaborated an heretical doctrine in exhaustive dissenting judgments
• Revolutionary Engineers’ Case:
o Marks the point at which the heretical doctrine became the new orthodoxy – the older 3 judges had retired
• Reasoning of the decision is open to criticism:
o Case decided on high constitutional ground when much simpler argument would have sufficed
o Cut off Aus constitutional law from American precedents in favour of one of sorriest parts of English law – crabbed English rules of stat interpretation
• Majority judgment was self-contradictory in 2 ways:
o Declared C’n to be interpreted by words alone – but in reaching this proposition, the Ct took notice of responsible govt, a matter extrinsic to strict law
o Fundamental criticism: the decision’s real ground is not stated in the judgment i.e. the view that:
▪ The C’n had been intended to create a nation and that it had succeeded
▪ That a merely contractual view of the C’n was outdated
▪ That the words of the C’n permitted the view of the federal relationship which the times demanded
o But a judgment on these lines would have made the case frankly a quasi-political decision
4.) LITERALISM AND LEGALISM
Literalism:
• Interpret according to the meaning of the words
• Suggests that words have a literal meaning
• Ignores context (Lynch: this is what makes it a joke/illegitimate)
Legalism:
• Looking at the words and giving them a natural meaning, but recognising the context in which they are in i.e. legal document setting up a particular type of govt
• So acknowledges a broader context
• But can’t look at anything outside the law to do this
• Judicial tug-of-war culminating in the above case not only concerned with power relationships between State and Cth
• Also concerned with judicial methodology by which the HC should resolve such q’s
• The case is seen as consummating a triumph of legalism (apolitical approach)
• But this avowedly apolitical approach may serve political purposes: Galligan
Literal approach to construction:
• Part of the impact of the case arises from the ISAACS J’s emphasis on the words of the C’n i.e. the literal interpretation
o But he advocated literalism within a context of traditional legal principles
Isaacs J’s approach is sometimes combined with the following declaration…
Swearing in of Sir Owen Dixon as CJ:
• Federalism means a demarcation of powers
• This casts on the ct a responsibility of deciding whether legn is within the boundaries of the allotted powers
• The responsibility can be misunderstood
• The court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a measure falls on one side of the line or the other
• It has nothing to do with the merits or demerits of the measure
• The court must be legalistic – there is no other safe guard to judicial decisions than a strict and complete legalism
Retirement of Sir Garfield Barwick as CJ:
Ascribed his approach more directly to the Engineers’ Case
• The ct has to determine the meaning of the words in which the Cn is expressed
• When there is a statute to interpret, there is a text
• i.e. expressed in words, which bind
• Court’s task: to say what the words mean, to assign a meaning to language, and there are distinct rules for doing so
• The problem for the court: to decide on the extent of Cth power
o You don’t do this by looking over your shoulder as to what effect this decision will have on State power (the Cn takes care of this)
o The Cn then decides State power by providing it to have the residue
o So this means there is no choice between Cth and State – it has already been decided
• Need to be wary that the triumph of the case is never tarnished and that we maintain that the function of the Ct is to give the words their full and fair meaning and leave the Cn to work itself out
Lynch:
• The complex task of Constitutional interpretation is ignored in the above passage
• If it was as easy as Garwick makes out i.e. with one meaning easily understood, simply take words and decide on Cth power, it would have been worked out centuries ago ( but we’re still arguing over it
• So literalism is the lowest common denominator of trying to understand judges interpreting
COMPARISON OF THE APPROACHES:
Focus:
• Barwick: emphasis on literalism – the words of the Cn
• Dixon: emphasis on legalism has different focus – points less to words and more to technique by which they should be interpreted (legalistic)
Giving words meaning:
• Barwick: acknowledges that ct must assign a meaning to language, but must also give words their full and fair meaning i.e. the meaning they already have, rejecting inferences from other texts ( words to speak for themselves
• Isaacs: said to consider not only the words of the Cn but also any recognised principle of CL underlying expressed terms of Cn – read not only naturally but in the light of the circs in which it was made, with the knowledge of the combined fabric of CL and statute law preceding it
o So Engineers acknowledges legalism – looking to context when interpreting
o Additional aids to interpretation emphasised in the case as qualifications to literalism lie outside the Cn text but all involve reference to authoritative legal materials and therefore still fall within Dixon’s concept of legalism
LEGALISM:
• Legalism: doesn’t insist that interpretative reasoning be limited to any one source, but that all its sources be located within a self-contained autonomous body of law
Judith Shklar, Legalism: Law, Morals and Political Trials
Summary:
• Legalism is pretending that the law is just there and the judges come along and just apply it
• But it is phoney because it denies the room for judicial choice i.e. that judges necessarily must make choices
• Judges cannot help but bring an individual emphasis to the arguments and questions before them
• So there won’t be a cookie-cut answer as legalism expects
• So legalism can’t simply give us a consistent, neutral answer
• And judges’ answers won’t be based only on what is before them, but by a range of external factors
Legalism:
• A social ethos which gives rise to the political climate in which judicial and other institutions flourish
• As an ideology, it gives legal thinking its distinctive flavour
• It is the operative outlook of the legal profession, both bench and bar i.e. it is a shared professional outlook
• Legalism as a social outlook comprises:
o Dislike of vague generalities
o Preference for case-by-case treatment of social issues
o Belief that rules are “there”
• The artificiality of almost all legal theories is caused by the rigidity of legalistic categories of thought, especially in evaluating relationships of law to the political environment with which it functions
• Most legal theory depends on categories of thought derived from this shared professional outlook
• We view law as “there” – a discrete entity, different from morals and politics
• This perception is rooted in the legal profession’s views of its own functions and forms the basis of our judicial institutions and procedures:
o E.g. lawyers have particularly pronounced intellectual habits
• Legalism is essentially conservative:
o Conservatism of consensus
o Relies on what appears to have already been established and accepted
o When social changes occur, judiciary adapts itself to the new order
• Legalistic conception of the judge’s role:
o No basic social decision can ever satisfy everyone in a heterogeneous society
o So judges get accused of legislating or lawmaking
o As denunciations of lawmaking continue, the legalistic ethos is reinforced and the likelihood of judges satisfying it becomes rare
o Then there can be no realisation of legalistic hopes of a neutral judicial process
• The fundamental difficulty encountered by any legalistic conception of the judge’s role is also the very element that allows such conceptions to appear plausible:
o i.e. on any comprehensive view of the authoritative legal materials, those materials require the judge to draw upon sources that cannot be confined to an autonomous discourse of purely legal considerations
3.) CONSTITUTIONAL INTERPRETATION B
WAT WAS THE GENERAL APPROACH TO CONS INTERPRETATION ADOPTED IN ENGINEER’S CASE?? Legalistic approach
1.) THE INTENTION OF THE FRAMERS
• Insofar as the “legalism” of the Engineers’ Case depended on treating the Cn as an act of the Imperial Parl, to be interpreted like any other statute, it was merely reiterating the basic approach that had dominated the HC’s work from the outset
Earliest formulation…
What may be referred to in interpreting the constitution – the limits
• On interpretation of the Constitution:
• Permitted limited recourse to the legislative history of the Cn in the form of earlier drafts of the Convention, did not permit reference to what was said in Convention Debates
o Griffith CJ:
• The same rules of interpretation apply that apply to any other document
• Should be construed according to the intent of the Parl, which passed the Act. If the words of the statute are precise and unambiguous, no more is nec. The words alone show the intention of the law-giver: Sussex Peerage Case
• Merely need to ascertain from the language used what was the scheme adopted and to give effect to it
o BARTON J:
• Need to declare what is the proper meaning of the language; arrive at that meaning by reference to the words themselves and to the history of the law
o O’CONNOR J:
• Judges’ duty to declare and administer the law according to the intention expressed by the Statute itself
• Gather the intention from the words: if words plain, just use words, if they are ambiguous, gather intention from other provisions of the statute aided by consideration of surrounding circs
• You may have recourse to contemporaneous circs: the history of the law, and you may gather from the instrument the object of passing it
• You may deduce the intention of the legislature from a consideration of the instrument in light of these circs but you cannot go beyond it
( Tasmania v Cth and Victoria
• S89: provided that before the new uniform Cth customs duties were introduced, the Cth should make monthly payments to each state of all revenues collected
• S93: provided that for 5 yrs after the imposition of uniform duties of customs the same payments should continue
• Goods which before the imposition of uniform duties of customs were imported into Vic or manufactured there had attracted customs duties which were collected by the Cth and credited to Vic under s89
• But after imposition of uniform duties goods imported into and manufactured in Vic were shipped to Tasmania
• Tasmania argued it was now entitled to the relevant credits, on the basis that s93 was intended to continue the colonial system of drawbacks, by which, when goods imported into one colony were subsequently shipped to another colony and attracted a customs duty there, the duty incurred in the former colony was remitted
HELD:
• This argument failed as did the attempts to rely on the records of debate on the Convention
• Held that the opening words of s93 (“during the 1st 5 yrs”) governed the whole section so that the reference to customs duties “chargeable” in the State of 1st importation applied only to duties that became so “chargeable” after the critical date (Cwth statute coming into force)
• Can look at draft rules but cant look at parliamentary debates
Affirming that the Convention debates cannot be referred to
• Barwick CJ spoke of the settled doctrine that the records of discussions in the Conventions and in the legislatures of the colonies will not be used as an aid in the construction of the Cn
( A-G (Cth); Ex Rel McKinlay v Cth
USE OF SECONDARY MATERIAL:
• Despite this, the HC did allow use of other historical material e.g. drafts of the Cn, detailed contemp commentary
( Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case)
• Lyons, in argument, raised the Convention Debates to prove something about the interpretation of s51(xx)
• Held: reference to the debates was not permissible
Break from the restrictive tradition…
What the Convention Debates may and may not be used for
• Regard can be had to the history of a section of the Cn, including relevant Convention Debates, for the purpose of identifying the meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation
• Cannot be used for the purpose of substituting for the meaning of the words used the scope and effect which the founding fathers subjectively intended the section to have
( Cole v Whitfield
• Fully re-edited version of Convention Debates had been published in 1986
• The court reinterpreted s92 of the Cn with the aid of the Debates- but doesn’t say what weight to give to this material
2.) ORIGINALISM
• The HC has opened the way to the interpretive approach of originalism: attempting to discover the meaning of the Cn text, not by looking exclusively to the intention to be gathered from the text itself but by looking to historical evidence of what was the intention of the framers
WRITERS ON ORIGINALISM:
Greg Craven, “Original Intent and the Australian Constitution” ( advocates originalism p336
• Originalism: fidelity to the framers
• Starting point: proposition that in interpreting the Cn, the sacred and supreme duty of judiciary is to ascertain the intentions of those who wrote it
• Words of Cn are indispensable but are not the only tool – if not satisfactory, then judge is duty-bound to give effect to the intention over the words
• But there is room for shades of originalism and for degrees of judicial commitment to it:
o Overriding originalism is the theory in its purist and least compromising form, but other more timid approaches
o E.g. where the words of the Cn are absolutely plain, originalism has no role to play
o But the truth is that many Cn provisions are sufficiently ambiguous as to admit the requisite degree of doubt – so even modified originalism has the tendency to dethrone the bare words of the Cn
← The HC’s approach and controversy:
o Has generally concerned the effect of the Ct’s interpretative techniques upon federalism rather than human rights as has occurred with the US Bill of Rights
o Harsh criticism towards courts: accused of adopting methods of interp which have subverted the intentions of the Founding Fathers
← Basic case for original intent:
o Words are mere tools of communication to convey the intentions but words are imperfect and so may imperfectly convey intention ( words are the servants of intention
o In this case, words should not prevail over intention
o Those who framed the Cn were elected reps of Aus – they selected the words for the purpose of conveying their intentions
o Accordingly, the court’s duty is to give effect to these intentions as these intentions are ultimately backed by the last authentic democratic expression of the will of the Aus people on the subject of their Cn dispositions
o This notion will appeal most to those who wish to turn back the tide of judicial interp favouring the enlargement of Cth power
← Reasons why original intent is more plausible to Aus than USA:
o The process by which Aus Founders were appointed and process by which the result of their labour was ratified were more founded in democratic principle than in US
o Easier to determine intention of framers operating 90 yrs ago than 2 centuries ago
o On pragmatic level, the ends to which literalism have been put in the HC are far less attractive than those to which expansive interpretation of US Cn has been directed by Supreme Ct
Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation” ( argued for more moderate originalism p338
• Moderate originalism differs from, and is superior to, extreme versions for the following reasons:
o Holds that the meaning of the Cn depends on evidence of the founders’ intentions was readily available to their audience… the meaning of law is something public, not hidden
o Holds that only the founders’ enactment intentions are relevant to the meaning of the Cn, and not their application intentions. The latter are not relevant and also may be erroneous
o Concedes that resort to the founders’ intentions cannot answer all, or even most, interpretative disputes. Interp begins with examination of all relevant evidence of the lawmakers’ intentions, but often doesn’t end there. After this, judges may be forced to act creatively – then free to consider contemp values and perspectives.
← The most persuasive arguments aimed against originalism are those aimed at its extreme form:
o Argument that a collective legislative intention is fictional. This argument is impossible to sustain. The idea is that a group of people collectively engaged in a co-operative enterprise can knowingly hold the same intentions.
o Argument that no good reason can be given for today’s generation being ruled by the dead hand of the past. Loses plausibility when it is realised that it is really an argument against having a Cn, or any law, since it is of the essence of the law that decisions are governed by norms laid down in the past. A Cn laid down in the past restricts and empowers future generations by providing them with benefits of an established set of procedures. Plus, we are not restricted because the Cn can be altered by s128.
← Identifies 2 HC pronouncements which are not compatible with principled version of originalism:
o McGinty that rep govt must now be expanded or adapted to encompass what would now be regarded as essential features of conception, even though they would not have been regarded as so in 1900.
o Cheatle the conception of trial by jury embodied in s80 must now include the empanelment of female jurors, even tho this was not included in 1900 Cn. For G, this degree of flexibility is impermissible.
Dicta…
( New South Wales v Commonwealth (WorkChoices Case) (2006)
KEY ISSUE:
• Whether s 51(xx) of the Constitution (the “corporations power”) could be used to refashion the legislative regime that had previously relied on s 51(xxxv) (conciliation and arbitration in relation to interstate industrial disputes).
• The joint majority judgment referred to the Convention Debates as supporting an inference that s 51(xxxv) was intended as “an authority for legislative experimentation”, but not supporting any inference that s 51(xxxv) was intended to be “the sole method open to the Parliament of the Commonwealth for legislating for industrial regulation”.
• As to the intended scope of s 51(xx), however, these judges declined to draw any inference from the Convention Debates at all.
HELD:
• Rejecting originalism
• To fasten upon 1 comment, made in debate, as fixing “the framers’ intention” would be to place altogether too much weight upon it.
• Rather, the absence of any extended debate about this power shows it is impossible to distil any conclusion about what the framers intended should be the meaning or the ambit of operation of s 51(xx) from what was said in debate about the power, or from the drafting history of the provision.
• When considering the question, is the law in issue within federal legislative power? the answer to that question is not to be found in attempting to attribute some collective subjective intention in the Convention Debates.
• And when it is said that a particular construction of the constitutional text does, or does not, accord with the framers’ intention, the statement compares competing constructions of the Constitution, both of which must be based in its text, interpreted in accordance with accepted principles.
• In the case of s 51(xx) the statements made in the course of the Convention Debates were so few and equivocal as to provide no foundation for a conclusion about what those who spoke in debate thought would be the scope or meaning of s 51(xx). Moreover, in the case of s 51(xx), assertions about the framers’ intention often leave out of account two subsequent developments of fundamental importance which cannot be assumed to have been foreseen by the framers.
CALLINAN J [in dissent]:
• It is inconceivable that the founders visualized a power as broad as the one now asserted.
• Throughout the Debates, the principal preoccupation of the delegates was with the adjustment of powers between the new polity and the States, as they would become.
• I do not doubt that if the corporations power were intended to abrogate so much industrial power as would otherwise be within State power, as the majority hold, the possibility and desirability of that abrogation would have been of intense concern to the founders.
Accordingly, he reaffirmed his support for “originalism”:
• The Constitution should be construed in the light of its history. It should be construed purposively. The founders’ intentions and understandings, to the extent that they can be seen to be generally consensual, are relevant.
• The evidence to be found in the Debates is valuable. The referenda, the results of them, and what was said by informed, legally qualified and knowledgeable legislators in relation to the Bills for them, are relevant in the way, and for the purposes that I have stated. The Constitution should not be construed to enable the Court to supplant the people’s voice under s 128 of it. The Constitution should not in general be read as if it were intended to confer powers in duplicate. “Originalism” so-called, is no less a proper interpretative tool than any other, and will often be an appropriate one. It is useful here.
3.) ORIGINALISM AND OTHER “ISMS”
See pages 342-348 on theory…
Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation” – moderate originalism
← Limitations on flexibility:
o Statements about Cn being broad and flexible are vague and unhelpful
o There must be limits beyond which flexibility cannot be called interp – judges can’t just do what they see fit
o The issue is to find the boundary between legitimate interp flexibility and illegit judicial amendment
o But this does not mean choosing between 2 starkly opposed metaphors of Cn law – i.e. living tree and dead hand of the past
o Living tree doesn’t mean everything needs to change; the poss of growth requires the roots and trunk to stay in the ground; tree planted by founders so must not be uprooted and in allowing for growth, don’t lop off branches (requires s128)
← Ways we can achieve interpretative flexibility according to contemp values (focus on last 3):
o 1.) principle of stare decisis: may require an erroneous interp to be followed in the future, in effect changing the Cn
o 2.) enormous scope for judicial creativity when the Cn is ambiguous
o 3.) application and enactment intentions: once provision has been examined to determine what it means (using Framers’ intentions), the q is how it applies and further intentions are irrelevant. Judges decide for themselves how it is to be applied – must decide what the principle requires.
o 4.) Connotation and denotation: Hc says the connotation (criteria which define it) of a provision must stay the same, but the denotation (the things in the world which the word refers to) can change. Denotations constantly change. This distinction can be used to justify many Cn operative changes. E.g. in 1900 when juries included only men, connotation of the word jury was “a panel representing the community”. Admittedly, the distinction can often be v difficult
o 5.) Non-literal, purposive interpretation: how far can this be taken? Lessig: theory of interp called “translation” according to which it can be taken very far. Says the courts should interpret US Cn so that founders’ purposes can be faithfully put into effect in today’s much changed world even if that requires radical departure from the Cn. CL Courts adverse to this – say updating of statute is for the legislature. G says if courts can engage in redrafting, it is a matter of degree. Aus judges should take a flexible approach only where the words of the Cn can be expanded or contracted in a simple, obvious way and according to a v clear underlying purpose.
Greg Craven, “Conversations with the Constitution” – has made some concessions towards Goldsworthy’s attempt at striking a balance between the latter 3 types of interpretative methods, but in his own style
← there are 3 ways in which a court can interpret the Cn
o 1. Intentionalism, 2. Literalism (gives literal effect to written words), 3. Progressivism (courts constantly updates the Cn according to contemp values)
o HC has tried all 3 and flits between them
o The question: which should be used by the Cts as a “universal spanner” on the rusty nut of the Cn?
▪ Each has its attractions…
Intentionalism:
▪ charms rooted in democratic theory – i.e. Cn written by delegates of Aus people, endorsed at referendum – interpretation of their meaning is what the people thought
▪ attacked by those favouring judicial hyperactivity – founders were indifferently democratic, we will be ruled by the skeletal claw
▪ and even if we want to abide by those intentions, we can’t b/c impossible to ascertain what they were
Literalism:
▪ For Aus lawyers: simple, certain, addiction to dictionary definition, won’t provoke political argument
▪ Standard justification: turns on reassuring idea that the safest way to read a doc is to read its words ( behind this is the assumption that the words are the best guide to the founders’ intentions
▪ So literalism is a very narrow version of intentionalism ( accepts HC trying to find intention but argues the words are the only safe way to do this
▪ Criticism:
▪ He says this has surface appeal but little depth: most obvious prob is ambiguity – assumes that each term has a clear meaning waiting to be extracted by dictionary
Progressivism:
▪ The Marylin Monroe of the Cn – its attractions are obvious if a little over-ripe
▪ For those who want radical change, offers a way of achieving this without the distressing necessity of asking the Aus ppl
▪ For judges and lawyers: takes them to a new role as touch-judges of the national psyche
▪ Justified on the broad ground that democracy must involve more than majority rule – in fact, it should involve nothing of the sort. In the context of human rights in particular, the court must save democracy from itself by restraining the ppl from their animal appetites – Cn to be altered as taste requires
▪ Criticism:
▪ But the HC is not elected: on what basis is it to determine the wants of the Aus ppl? Aus democracy can hardly be saved by 7 unelected judges acting out a fantasy as judicial men on horseback – the Cn is not merely a broad hint to the HC ( if we want the Cn changed, ask the Aus ppl
▪ Another rejoinder: progressivism is result-oriented i.e. its justification is that it produces the desired constitutional outcomes. But Cn interp involves more than the right outcome: it should at least be honest – the court needs to be able to identify and defend its method
▪ The temptation of judges is to think progressively, but act cowardly
▪ All isms have their good bits – a case can be made for each but the test is: which is most consistent with the basic character of the Aus Cn?
• Ultimately comes down in favour of intentionalism
Maybe we don’t need to make a choice…
← There seems to be some degree of consensus that we can take at least 3 factors into account:
o Literal meaning of the words
o Extrinsic evidence of framers’ intentions
o An element of judicial creativity
← But can all 3 be weighed together?
← There is disagreement about this, and also about the scope and frequency of judicial discretion acknowledged by (3), and to the claim made by some originalists that even the exercise of discretion is controlled by originalism
Andrew Inglis Clark, “Studies in Aus Cn Law” – refusal to be bound by the “dead hand of the past”
← Refusal to be bound by the men of the past:
o Cn not made to serve a temporary purpose; it is a comprehensive and continuing code
o Social conditions will inevitably produce new govt problems to which the Cn must be applied
o Therefore it must be read and construed as declaring the will and intentions of the present inheritors and possessors of sovereign power
o We are governed by these people, not by those of the past
Against originalism…
( Brownlee v The Queen
KIRBY J:
• The Cn must be given meaning as its words are perceived by succeeding generations of Aussies
• Imperative to keep in mind that a new context may convince the Court that its predecessors adopted an erroneous interpretation
• Constitutional expressions must be given contemp meanings
• The world of the framers was not the same as it is today
• Looking for intention of framers is prone to result in serious error
• Consideration of history is not wholly irrelevant
Contrasting view…
( Eastman v The Queen
McHUGH J:
• Defends the view that judges’ responsibility is to give effect to the intention of the text, as ascertained by traditional methods of legal interpretation
• The relevant intention of constitutional provisions is that expressed in the Cn itself, not the subjective intentions of the framers
• Intention to be determined objectively
• Even when we see meaning in a provision which our predecessors did not see, the search is always for the objective intention of the makers of the CN
The function of the judiciary…
How to approach discovery of the true meaning of the text (meaning interpreter is looking for, appropriate context) is really about determining the appropriate role for a court of review in a constitutional democracy such as Australia (To what degree is the HC warranted in overturning the will of Australia as expressed through the democratically elected Parliament?)
( Re Wakim; Ex parte McNally (Cross-vesting Case)
McHUGH J:
• The judiciary has no power to modernise the Cn to give effect to what the judges think is in the public interest
• Function of the judiciary is to give effect to the intention of the makers as evinced by the terms in which they expressed that intention
• Starting point for a principled interpretation:
o Search for intention of the makers
o This does not mean a search for their subjective beliefs
o Intention can only be deduced from the words that they used and the historical context in which they used them
• Words often expressed with level of generality that shows that the makers intended that they should apply to succeeding generations
o Here, simply ask, what do these words mean to us now?
( Fitzpatrick v Sterling Housing Association
McHUGH J:
• Although the word ‘spouse’ in the context of the Rent Act 1977 must mean only wife or husband, the phrase ‘member of the original tenant’s family’ could include survivor of same sex relationship
• So words can sometimes have wider or narrower meanings since changes in attitudes may require a wider meaning to be given to a word such as “marriage”
( Grain Pool of WA
• Kirby J saw the above as a vivid demonstration of the way that words in statutes are not fixed for their meaning by reference to the understanding of that meaning at the time of the enactment
4.) PRECEDENT
DOCTRINE OF PRECEDENT:
• Imports an expectation that the HC will normally follow its own prior decisions
• But HC is an apex court – other courts are bound by it but it has no logical conclusion as to whether or when HC is bound by its own decisions
• Most apex courts have concluded that they should not be bound by their own decisions
• Beamish v Beamish:
o First suggested idea that House of Lords bound by its own decisions
• London Tramways Co v London County Council:
o endowed Beamish with binding authority
o gave rise to a paradox: the rule that the House was bound by its own decisions could only be abolished by overruling London Tramways but the rule made overruling it impossible
• when the rule was eventually changed, said: rules of precedent are not rules of law but only rules of practice and can therefore be changed simply by the adoption of a different practice
• Privy Council had never been bound by its own decisions
• HC followed this
( Australian Agricultural Co v Federated Engine-Drivers & Firemen’s Association (Engine-Drivers’ Case)
• Lordships bound to examine the reasons upon which the decisions rest and to give effect to their own view of the law
• A prior decision does not constitute the law, it is only a judicial declaration as to what the law is
• Where a former decision is clearly wrong, the real opinion of the Court should be expressed
THE QUESTION OF OVERRULING:
• Now approached by the HC in 2 stages
• At neither level is it sufficient to show the impugned decision is wrong
o Q1: whether the question of overruling will be entertained at all ( Evda Nominees v Victoria: a party may not challenge the correctness of a prior decision unless leave is given to do so
o Q2: whether the decision will be overturned
( John v Federal Commissioner of Taxation
• Cth v Hospital Contribution Fund: specified 4 matters which in that case justified departure from earlier decisions:
o The earlier decision did not rest upon a principle carefully worked out in a significant succession of cases
o A difference between the reasons of the justices constituting the majority in one of the earlier decisions
o The earlier decisions had achieved no useful result but had led to inconvenience
o The earlier decisions had not been independently acted on in a manner which militated against reconsideration
( John’s Case
• In the cases of stat interpretation, the Court should not allow adherence to precedent to divert what it now regards as the true intent of statute
In relation to decisions involving the interpretation of the Cn…
Leslie Zines:
• HC has never regarded itself as bound by its own decisions
• No judicially devised formula can replace the text
• Judicial reasoning may not be used as a substitute for the Cn
• The task is to apply the Cn, not the judicial decisions
Refusal by the HC to defer to precedent…
( Breavington v Godleman
DEANE & GAUDRON JJ:
• When an action was brought in any Aus jurisdiction for any tort committed in any other Aus jurisdiction, the outcome must be governed by the law of the place of the tort
( McKain v RW Miller
• Majority did not follow Breavington
( Stevens v Head
Deane and Gaudron in minority…
DEANE J:
• Adhering to the views in Breavington
GAUDRON J:
• Same as Deane J; the Constitution prevails over the pronouncements of this Court upon it
Overruling McKain…
( John Pfeiffer v Rogerson
• Majority overruled McKain and Stevens
• Reconsideration is not precluded by the fact that the above cases have stood for a very long time
Departure from precedent cannot be justified merely by a change in the composition of the bench
( Queensland v Cth (Second Territory Senators Case)
BARWICK CJ:
• Court should not be bound in point of precedent
o Need to decide in truth what the Constitution provides
o The paramount consideration is the maintenance of the Cn itself
o The fact that a particular construction has long been accepted is a potent factor for consideration – but this does not prevent a departure
o Convinced of error, the court’s duty is to express the proper construction
• However, the First Territory Senators Case was upheld because Gibbs and Stephen JJ refused to depart from it
GIBBS J:
• Believed WA v Cth was wrong, so now needs to decide if he should follow it
• Court not bound by its own decisions
• But no justice can ignore the reasoning of his predecessors
• To reverse the decision would be to defeat the expectations of the people of the Territories that they would be represented
• The replacement of a justice with another is not justification to review an earlier decision
• Followed the case even though he thought it was wrongly decided
Precepts (e.g. no justification just because bench changes) are not always followed
• Patterson: overruled Nolan
• Then Gaudron J resigned from the bench and was replaced by Heydon J
• Then Heydon joined the majority in overruling Patterson in Shaw
( Shaw v Minister for Immigration
• Kirby J protested that the Court should not use chance happenings affected by its composition to change its recent statements of the governing law
• The Majority retorted that the ruling of the judges in Patterson had not been authoritative since the four judges had given different emphases
o So must consider whether Patterson was effective to take the first step of overruling Nolan
o The court should be taken as having departed from a previous decision only where that which purportedly has been overthrown has been replaced by some fresh doctrine ( Patterson does not do this; doesn’t rest upon a principle carefully worked out as a significant succession of decisions, etc
The court has no power to overrule cases prospectively
• This would be inconsistent with judicial power
( Ha v NSW
4.) THE HIGH COURT AND CHARACTERISATION
SUMMARY:
o Last classes: how to interpret grants of power
o Now: how do we know when a law is validly made using that power (characterisation)
RELATIONSHIP OF INTERPRETATION AND CHARACTERISATION:
The “artificial” construction:
1. Interpret
2. Characterise
1.) THE CHARACTERISATION PROCESS
• Ss 51 and 52 assign broad leg powers to the Cth Parl
• Characterisation: refers to the process of determining whether a law falls within one of these heads of power by ascertaining the subject matter or the purpose of the law
• Simplest view of characterisation:
o When an Act of Congress is challenged, the judicial branch must “lay the article of the Cn which is invoked beside the statute which is challenged and decide whether the latter squares with the former: US v Butler
o This approach reflects the legalism of the decision in the Engineers’ Case
o Simply about whether subject matter of the legislation/Act “squares with” one of the designated subject matters on which it has power to legislate
o If it does, the leg’n is valid
o But process of characterisation is not really this simple
• This approach has the most appeal where legislative power is defined by reference to a specific subject matter
o Suggests intellectual inquiry at 2 different levels:
▪ First task is to define the limits of the subject-matter area
▪ Second task is to determine whether the challenged law lies within those limits
• But usually these answers are not straight forward
o The second task is also an interpretive one
o Also an approach to the tasks must be limited by context
2.) WHEN DOES A LAW FALL WITHIN A HEAD OF POWER?
Lean towards a broad interpretation in construing the nature and extent of a power conferred by s51 (affirming Jumbunna)
• The essential question is what do the words mean?
• “Where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose”
The Cn merely outlines the power
• The Cn, by general description, marks the outlines of the powers but it does not undertake to enumerate the subdivisions of those powers
• So within the subject matter broadly defined, the kind of law the Cth can make is not restricted, legislative power is plenary (so Court doesn’t look to the use to which the Cth puts the power)
• Qualification of this principle:
• In some instances the words of one power may fetter the scope of another power
• The normal result from the Engineers Case is that this kind of cross-referencing does not occur
Sufficient connection
o The characterisation process is simply about finding a sufficient connection between the law and the provision in the Cn
( Bank of NSW v Cth (Bank Nationalisation Case)
DIXON J:
• The power with respect to banking seems to be a plain example of the designation of a broad subject without any indication of the means by which it is to be dealt with or the existence of limits upon laws to be made in relation to it
• The word “banking” should be ascribed a wide meaning and flexible application
3.) SUFFICIENT CONNECTION
• A sufficient connection was sought when the law (the Act) was not “on” the very topic (delineated by the Constitutional grant) but could only be brought within power by the words “with respect to”
• Sufficient connection is not thought to be wide enough to cover both types of case (rational connection is too low yet substantial connection is too high a threshold)
“With respect to”
• To determine whether a law is “in respect to” a head of power in the Cn, 2 steps:
1. The character of the law must be determined – that is done by reference to the rights, powers, liabilities, duties and privileges which it creates/abolish/regulate/affect i.e. what does the law do
2. Judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s 51
▪ Examine practical and legal operation of the law
• If a connection exists, the law will be “with respect to” the head of power unless the connection is so insubstantial that it cannot be sensibly described as such
• Doesn’t have to be a law allowing something, can also be a law prohibiting something
( Re Dingjan; Ex parte Wagner
Broad approach to constitutional interpretation
• The approach above derived from: Jumbunna Coal Mine NL v Victoria Coal Miners’ Association
General principles: Regard and disregard to certain factors in the TASK of determining whether a law falls within a head of power
Good for “all seasons” but specifically for subject matter powers…
• “the constitutional text is to be construed with all the generality which the words used admit”
• The “task is to consider whether [the relevant Commonwealth law] answers the description, and to disregard purpose or object”:
• In carrying out the task, reference must be made to “the rights, powers, liabilities, duties and privileges” which the Commonwealth law “creates, changes, regulates or abolishes”
• Also need to consider the “practical as well as the legal operation of the law”
When a law has 2 subject matters – 1 valid, 1 not
• Where a law answers the description of being a law with respect to 2 subject matters, one which appears in s 51 and one which doesn’t, it is valid notwithstanding that there is no independent connection between the 2 subject matters
Lack of further connection
• Where a connection exists between a law in question and the head of power which is not insubstantial, that connection is not displaced by the lack of some further or additional connection
( Grain Pool of WA v Cth
FACTS:
• Unsuccessful challenge to the Plant Variety Rights Act which provided for the grant of plant variety rights (IP)
• Plaintiff said there are fixed min requirements for intellectual efforts required of inventors and that term “patents” imports constitutional requirement of scope of the monopoly rights which must be granted and limits the permissible stat qualifications to those rights
• Said statutes here failed to meet these criteria (GRAIN POOL ARGUED THE STATUTE COULD NOT PROVIDE IP RIGHTS (AND THUS PROPERTY RIGHTS TO THE FARMER WHOSE STRAIN OF BARLEY THEY WANTED TO SELL) SINCE THE ACT WAS NOT SUPPORTED BY S51= ARGUING plant breeders' rights did not fall within the constitutional definition of "Copyrights, patents of inventions and designs, and trade marks".)
ISSUE:
• Whether, in creating such rights, the Acts possessed a sufficient connection with the power over “Copyrights, patents… TMs in s 51(xviii) of the Constitution”
HELD:
• Legislative powers are expressed in general terms so as to provide for exigencies in following years and to endure (and include other products of intellectual creativity)
• Need to consider whether words are frozen with a particular technical meaning or in a particular time
• Not made to confine the power of Parl to the legislative provisions existing in 1901
• So need to read the Cn in broad terms
FOLLOWING THE GENERAL PRINCIPLES SET OUT IN THE CASE ABOVE:
• Re Maritime Union of Australia:
o Treated Grain as authority for 2nd principle (identify rights, privileges etc)
4.) TRADE AND COMMERCE POWER
The terms “trade and commerce”
• Not terms of art
• Terms of common knowledge
• Trade and commerce between countries has never been confined to the mere act of transportation of merchandise over the frontier
• The words go far beyond this
• All the commercial arrangements of which transportation is the direct and nec result form part of trade and commerce
• Mutual communings, negotiations, bargain, transport, delivery – all parts of the category
( W & A McArthur Ltd v Qld
What is not included in trade and commerce:
o Manufacture/production
o Consumption
i.e. acts preparatory to trade (APTT)
S 51 AND TRADE AND COMMERCE:
• S 51(i) allows the Cth to regulate and participate in trade and commerce with other countries and among the States
The head of power allowing the government to regulate trade and commerce – allows for participation by the Cth
• Also allows the government to make laws allowing it to participate in trade and commerce
• Only by importing a limitation into the descriptive words of the power can such a law be excluded
The Cth’s territories power in s 122
• We should avoid pedantic and narrow constructions
• Should not be fearful about making implications
• The legislative power is extensive enough to cover this matter
( Australian National Airways v Cth (ANA Case)
FACTS:
• Australian National Airlines Act – established the ANA Commission which was authorised to operate an airline service interstate
• Was objected that Airlines Act couldn’t be supported under the commerce power because this power regulates the legislative regulation of overseas and interstate trade and commerce and not the entry of the govt into that field of activity
HELD:
• Held that the creation and operation of the airline service were valid ( the power to legislate with respect to interstate trade and commerce could be used by the Cth to establish its own govt-owned instrumentality to engage in trade and commerce
• A law authorising govt to conduct a transport service appears to answer the description of a law with respect to trade and commerce (since transport is for value)
• However, other sections of the Act, which attempted to confer a monopoly upon the airline, were held invalid under s 92
( Re The Maritime Union of Australia & Ors; Ex parte CSL Pacific Shipping
o Industrial conditions of people engaged in intra and interstate commerce is covered by trade and commerce
( Bank Nationalisation Case
o The movement of intangible things is also covered by trade and commerce
5.) OBSTACLES TO JUDICIAL INTERPRETATION OF S 51
1. S 51(i) refers to 2 areas of power: trade and commerce with a.) other countries and b.) among the states. Trade and commerce within a state is not mentioned. So most judges have felt obliged to construe the section in such a way as not to let the Cth encroach too far upon a power not granted to it. The dichotomy between interstate and intrastate trade must be maintained, however much interdependence may now exist: A-G v Australian National Airlines Commission
2. Words of s 51(i) adapted from Commerce Clause in US Constitution. Aussie version has been more narrowly construed. Possibly because the Cn spells out 39, (as opposed to 18 US) Parl powers and spells explicitly in areas which have emerged through judicial exposition in the US. So the more dramatic expansions of the American Clause have not been perceived as nec in Aus. American expansion has depended partly on commingling doctrine: interstate and intrastate trade are so interdependent that congressional power to regulate the former must nec extend to the latter. But HC has rejected this doctrine.
3. Prob in Aus is the need to harmonise between s 51(1) and s 92. S 51(i) allows laws to be made with no apparent limitations on laws so long as they are “with respect to” that topic. But s 92 places trade and commerce among the states beyond the reach of some kinds of laws since “trade and commerce among the states… shall be absolutely free”
6.) INTER AND INTRASTATE TRADE
• HC resistance to Cth encroachment on areas of purely intrastate trade has overtones of “reserved State powers” i.e. Cth power narrowly construed to ensure it doesn’t encroach on matters of State concern
• The abolition of this doctrine didn’t nec abolish a narrower version, operating solely within the ambit of s 51(i) and supposedly based on its explicit distinction between inter and intrastate trade
• But even this narrow view needs to be stated with caution: it is not that s 51(i) reserves the power of regulating intrastate trade to the states, it simply doesn’t grant the power to the Cth (no implicit prohibition): Strickland v Rocla Concrete Pipes
7.) DUAL CHARACTERISATION
What to refer to in characterisation based on subject matter
• Task of characterising according to subject matter must be done with care
• Separate between substance and form
o Need to look beyond the form of the law – how it presents itself – and look to the substance
o But don’t confuse this with matters in the Act of major and minor importance
• Court is not bound by the name the Parl has given the Act, nor the economic consequences or motives
• Needs to consider what the Act is in substance: what it does/commands/prescribes
• Ascertain from the terms its true nature and character
Two subject matters
• Once it appears that a federal law has an immediate and actual operation within a Cth field as a subject of legislative power this is enough
• It will be held to fall within the power unless some further reason appears for excluding it
• That it discloses another purpose that lies outside the area of federal power does not invalidate the law
A law that imposes a tax
o If a law imposes a tax, it is a law under s 51, regardless of the criteria upon which the tax is imposed
o It is a law, in form and substance, with respect to tax
( Fairfax v Federal Commissioner of Taxation
• Overrules Barger (this case has very similar facts to Barger)
FACTS:
• S 11: inserted a new Division 9B – provided for 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 subjecting them to special tax rate if they did not
• Plaintiff’s argument: s 11 exposes trustees of the funds to a liability which the Act miscalls a tax (he thinks it’s a penalty/sanction)
• Argument for Cth by Mason QC: characterise the law by having regard to the terms, not the motive behind the terms, i.e. the direct legal operation… and if the law is characterised with respect to one head of power, it doesn’t matter that it also affects a subject matter not included in the heads of Cth power
ISSUE:
• Whether s 11 of the Income Tax and Social Services Contribution Assessment Act was validly enacted under the Cth’s taxation power in s 51(ii)
HELD:
• S 11 was valid under s 51(ii) ( the substance of the Act is the obligation it imposes and this is to pay income tax
• The law could therefore be characterised as a law with respect to “taxation”
8.) PURPOSIVE AND NON-PURPOSIVE POWERS – SUBJECT MATTER OR LEGISLATIVE PURPOSE?
• Current approach to characterisation is usually based on the ascertainment of a sufficient connection between the law and a head of power
• Suggests that legislative purpose of the law is no business of the court
• Bank Nationalisation Case: the motives and objects of Parl are not relevant to q’s of constitutional validity
• The court has repeatedly insisted that the process of characterisation does not involve political judgments/subjective evaluations but can be performed objectively on strict legalistic principles
Characterisation as a purely legal task
• A court is not concerned at all to consider whether such a project is politically, economically or socially desirable
• Only cerned with q: whether it is within the constitutional powers of the Cth Parl to pass an Act and if so whether the Act/regulation is a valid exercise of power
• The task is purely legal
( ANA Case
PURPOSE CANNOT BE ALTOGETHER EXCLUDED – PURPOSIVE POWERS:
• Above seems to leave little room for latter-day suggestion of test of proportionality: the statute must be seen to be appropriate or adapted to its legislative purpose
• But aside from this, purpose cannot be totally excluded from characterisation
• It is relevant in the process of stat construction whereby legal scope and operation of a law is determined as a precursor to the process of characterisation
o Long line of cases saying purpose of state is an essential guide to its interpretation: Heydon’s Case
o Acts Interpretation Act 1901 s 15AA(1): in interpretation of Act, construction that would promote its purpose shall be preferred
• Purposive powers:
o Exclusion of reference to legislative purpose is persuasive in cases where challenged law is said to lie at “core” of Cn grant of power
o But in cases where a law is not “on” the very subject-matter on the grant of power, so validity must depend on finding sufficient connection, the connection will often be established by purpose
o Purposive powers include: defence power, external affairs power
▪ Legislature allowed to legislate here not just to facilitate individual powers but to fulfil national purpose
▪ Legislative tool through which the Cth can give effect to national priorities
▪ Feed into the policies that have to be pursued by the govt and provide a tool by which this can occur
o For purposive powers it is generally acknowledged that a different approach to characterisation is required, depending on proportionality test
Subject matter powers vs. purposive powers
• The defence power (purposive power) involves the notion of purpose or object
• Subject matter powers: usual to consider whether legislation affects the subject matter and disregard purpose
• But a “law with respect to defence of the Cth”: treats defence/war as the purpose to which the leg’n must be addressed
• The connection of the regulation with defence is purposive if it is within the power
In reality the distinction between purposive and subject matter powers is blurred
Subject matter powers
• 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 by naming a recognised category of leg’n
o May be ironic since each of these merely refers to a social institution that can only be understood by reference to the human purpose involved
( Stenhouse v Coleman
Dealing with a subject matter power…
A law that allows prohibition but includes a discretion i.e. a conditional law
• There is nothing which limits Parl’s power of selection
• It is enough that the law operates on the topic of trade and commerce with other countries
• A law which conditionally prohibits exportation is a law which operates on that topic
• It does not cease to deal with the topic just because it confers a discretion or has to deal with extraneous factors in exercising the discretion
( Murphyores Incorporated v Cth
FACTS:
• Customs Act 1901 gave power under s 112 to make regulations prohibiting exports
• Customs (Prohibited Exports) Regulations made under s 112 provided in reg 9(3): exportation from Australia of goods to which the regulation applies is prohibited unless approval in writing is gained
• Plaintiff companies engaged in sand mining – wanted approval to export zircon and rutile
• Informed that no decision would be made on their app until an inquiry under s 11 Environment Protection Act had been undertaken
• Under this section Minister could direct inquiry into any matter referred to in s 5
• Plaintiff challenged validity of Cth enactments
• M said not a law sufficiently connected to s 51(i) because it was a law about the environment
HELD:
• Reg 9(3) and Enviro Act were valid
MASON J:
• By imposing a discretion, the law is still dealing with the exportation of goods, a matter at the heart of trade and commerce
• Just because ministerial approval is main preoccupation of the Act, exportation is still the substance
STEPHEN J:
• Regulation is within the 4 corners of the t and c power since its subject matter is the exportation of goods
So the case above shows that if you want to regulate on something other than commerce can probably do so quite easily…
• Can use s 51 to control APPT
Law valid as long as one of a number of characters relates to a head of power
• A law may possess a number of quite disparate characters
• It is an error to search for one true or predominant character of the law
• It will be enough if the law fairly answers the description of a law with respect to one given subject matter
( Actors and Announcers Equity Association v Fontana Films
9.) INCIDENTAL POWER
• Extensions to trade and commerce powers often depend on Cth’s incidental powers
• Looking outside the main grant of power to things which can provide a supporting role
• Express incidental power: s 51(xxxix) – gives power to legislate with respect to matters incidental to the execution of any power vested in the Parl by the Cn
o E.g. legislation needed to celebrate the bicentenary drew upon this express incidental power
• The Court has also consistently held that each head of power in s 51 contains an implied incidental power
• The test is a sufficient connection
Implied incidental power (IIP)
• Each grant of express power in s51 carries with it, subject to any indication to the contrary in the text of the Constitution itself, “every power and every control the denial of which would render the grant itself ineffective”
o E.g. if there is an express power to make omelettes, the implied incidental power would be you can break eggs ( necessary to give effect to the main grant of power
( D’Emden v Pedder
So there needs to be a sufficient connection of the matter sought to be regulated with the main grant of power for the incidental power to be valid
• The key point is that Commonwealth legislation will not be invalid because it is in respect of matters outside of the scope of s51 of the Constitution if those matters are reasonably “necessary to effectuate” provisions of the law (or another law) which are within power
( Grannall v Marrickville Margarine
• Note here the power conferred by s 51 is said to be extended both by the presence of the words “with respect to” and the implied “incidental power” to regulate matters as listed above ( there is an overlap between express and implied incidental powers
INCIDENTAL POWER AND S 51(i)
o Horizontal integration: how much can Cth interfere with intrastate trade?
Implied incidental power of s 51(i)
• Implied incidental power often an issue
• The incidental power use may be restricted in the context of s 51(i) by the Court’s acute sensitivity to Cth encroachment into the domain of intrastate trade
• Even in the application of the principle of incidental power to the grant of legislative power made by s 51(i) the distinction between inter and intrastate trade must be maintained
• Its existence makes impossible any operation of the incidental power which would obliterate the distinction
( Wragg v NSW
The s 51(i) distinction
• Implies a clear distinction between inter and intra state trade and commerce
• The express limitation of the subject matter of the power to commerce with other countries and among the States compels a distinction however artificial it may appear and whatever interdependence may be discovered between the branches into which the Constitution divides trade and commerce. This express limitation must be maintained no less steadily in determining what is incidental to the power than in defining its main purpose.”
( R v Burgess; Ex parte Henry
FACTS:
• S 4 Air Navigation Act 1920 (Cth) authorised the making of regulations “for the control of air navigation in the Commonwealth and the territories”. i.e. trying to regulate intrastate flights as part of uniform aviation standard
• Reg 6(c) of the Air Navigation Regulations prohibited the flight of an aircraft within the limits of the Commonwealth unless the personnel of the aircraft were licensed in the prescribed manner.
• The appellant was a pilot whose license had been suspended and who made a flight while suspended. The flight was wholly within New South Wales.
ISSUES:
• Was section 4 of the Act valid?
• If so, was the regulation authorised by that section? i.e. could they regulate intrastate flights under this scheme?
LATHAM CJ:
• s4 was not supported by the commerce power because it was not impossible for the Commonwealth Parliament to effectively regulate interstate air transport (ie trade) without also regulating intrastate air transport
• Rejected the argument that the court may control intra-state trade and commerce where such trade is “so intermingled [with inter state trade] that it is practically essential to control all of them as one subject matter” (commingling argument of US)
DIXON J:
• Justice Dixon observed that the section was not expressed so as to relate to trade and commerce with other countries or among the States. Rather, it referred to air navigation as an entire subject. His Honour thought air navigation was much wider than trade and commerce (ie air carriage of goods and passengers) and that the section did not narrow the scope sufficiently. The section also made no distinction between flying across and flying within the boundaries of a State.
• His Honour held that section 4 was not based at all on the commerce power because
“’Air navigation’ is an indefinite expression
EVATT AND McTIERNANN JJ:
• S 4 unsupported by the commerce power.
• “It is impossible to accept the theory of the Commonwealth that its power to legislate with respect to inter-State trade necessarily extends to all aircraft engaged solely in intra-State trade, by reason of the possible "commingling," in air routes and air ports, of the aircraft proceeding intra-State with the aircraft proceeding inter-State… Moreover, the rejection of the "commingling" theory does not deny that there may be occasions when parts of intra-State aviation will be seen to occupy so direct and proximate a relationship to inter-State aviation that the agents and instruments of the former will be drawn within the ambit of the Federal power, for otherwise the particular Commonwealth regulation of inter-State commerce would be entirely frustrated and nullified.”
The important distinction – allowing control of intrastate powers because necessary to protect against physical interference to the Cth power
• Need to draw a distinction between a law protecting an activity within power from a danger of physical interference and a law which prevents prejudice to matters merely consequential to such an activity
• The latter is within the grant of federal power, the former is not
• So not allowing it because it is commingling but because if they don’t do it, the subject of the Cth’s power risks being interfered with ( it is necessary
Still rejecting commingling argument regarding use of implied interstate power to regulate intrastate trade and commerce
• This case, just like Burgess, did not allow the regulating of intrastate trade and commerce due to the commingling argument ( it explicitly rejects this principle
( Airlines of NSW v NSW (No 2)
FACTS:
• Cth’s regulations amended so as to apply to intrastate flights
• Regulations 198 and 199 of the Air Navigation Regulations established a licensing system, which prohibited the use of an aircraft in regular public transport operations except in accordance with a licence
o Reg 198: prohibited use of aircraft for public transport unless licensed under Cth scheme
o Reg 199: provided for issuing of license to intrastate air services after consideration of safety, regularity and efficiency factors
• At the time of the First Airlines Case, those regulations did not apply to regular public transport operations generally within the territorial limits of a State.
• A new paragraph was added to reg 6(1) which provided that regs 198 and 199 (i.e. the licensing provisions) were to apply to all air navigation with in Australia ( so now applied to intrastate flights
HELD:
• Distinguishing factor from Burgess: Burgess has different law structure- validity of licensing here is not looked at in isolation- there is a textual reference (safety, regularity and efficiency- Regn 199(4)), the intrastate commerce was going to affect the interstate commerce ( so needed to protect the power of the Cth itself
• So not allowing use of implied incidental power to regulate intrastate commerce due to commingling argument
• Allowed because if they don’t do it, the subject of the Cth’s power risks being interfered with ( it is necessary to prevent physical interference
KITTO J:
• “a federal law which provides a method of controlling regular public transport services by air with regard only to the safety, regularity and efficiency of air navigation is a law which operates to protect against real possibilities of physical interference with the actual carrying on of air navigation, and therefore is, in every application that it has, a law "with respect to" such air navigation as is within federal power, and none the less so because it is also legislation with respect to that intra-State air navigation which is not within the power.” This is in contrast to matters merely consequential to interstate or foreign air navigation, which would not suffice.
WINDEYER J:
• Held it was “necessary for the safety of inter-State and overseas air navigation that all aircraft should obey the same rules of flight and manoeuvre, the same code of signals, the same procedures in landing and take-off, and so forth; and that to this end they all be subject to the control of one authority.
( A-G (WA); Ex rel Ansett v ANAC
FACTS:
• Comparison between s 51(i) and the territories power in s 122
• S 19(2) of Australian National Airlines Act empowered ANAC (Cth airline) to transport passengers and goods in 2 legs of the flight ( flying from Perth to Darwin and wanted to stop in Port Headland (intrastate flights) to make flight more economical
• So justification was for the purpose of efficient, competitive conduct of business of the Commission
• Ansett objected to the power
ISSUE:
• Does s 51(i) cover this power when its only relationship to interstate trade and commerce lies in the fact that the purpose of engagement in such intrastate activity is to conduce to the efficiency, competitiveness and profitability of the interstate activity?
HELD:
o The law was invalid based on economic justification as an adjunct to interstate operation- must take narrow, cautious view of implied incidental power
o The justification provided by the Cth is not sufficient
o The necessity argument where Cth power prevents physical interference from Second Airlines was not present here
STEPHEN J:
Concern over converting s51(i) into general power over trade and commerce( avoiding path taken by US courts( straying away from legitimising argument in Burgess.
Using implied incidental power to regulate acts preparatory to trade (APTT)…
Power to legislate on matters which may beneficially or adversely affect trade and commerce
o By virtue of that power all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth.
Sufficient connection
Demonstrates that the implied incidental power is not easily invoked and you have to be able to draw the connection quite clearly
( O’Sullivan v Noarlunga Meat
o Cth regulation controlling export
o Reg 4: Exportation of all meat prohibited unless:
1 the treatment and storage of the meat has been carried out in an establishment registered under the regulations; and
2 the exporter has received an export permit in respect of the goods;
• Reg 5: provided that all establishments used for the slaughter, treatment and storage of meat for export shall be registered ( could not be registered unless it complied with health and hygiene standards
HELD:
o Reg 5 was valid
o Diff between 5 and 4B :
▪ 4B is like Murphyores, but 5 is saying the export is relevant but relevant so Cth can directly control the product at the manufacture stage
o Just acting at the gateway of export may not be enough for the Cth to regulate the meat
o So sometimes necessary to go further back (i.e. further back than 4B to 5)
o When can you do this?
▪ What can you regulate using the power in s51(i)? you can regulate export and you can do this at the point of export i.e. can impose conditions so as to ensure the quality of what is sent (so reg 4B is ok)
▪ But this may not be enough to regulate the above
▪ May have to go back to the factory or field to directly regulate APTT
▪ Can do this when you can show a sufficient connection
▪ Legislation talks about slaughter for export and there is a definite objective conception about what this means so the Cth can reach back to an APTT because you’d be able to look at what was being done to the meat in the abattoir and say this is slaughter for export
• So this argument based on the production process for meat where you can identify what kind of trade the product will be involved in (export) at stages prior to export
▪ So at pre-trade stage, you can identify that the meat is heading for this market
▪ So therefore sufficiently connected to Cth power to regulate export
▪ NB This rule is based on the assumption that one can objectively determine whether the meat is destined for the export market and thus requires a specific slaughter process that the Cwth can control (unusual reasoning that’s hard to apply).
▪ What kind of laws you can pass on the process and how far back into the production process Cwth can reach is uncertain: Ct favours stopping the producers from exporting the product unless conditions are complied with rather than imposing laws on the production process itself (e.g. imposing laws on factories that make meat for export..)
Can be used to illustrate difference between conditions and “incidental power”
o Conditions
▪ “The export of meat is prohibited unless it was slaughtered in a registered establishment, and an establishment cannot be registered unless it complies with the prescribed conditions. The export of meat is also prohibited unless certain other prescribed conditions as to treatment, storage and so on, are complied with… The Commonwealth is legislating to ensure that only meat of a certain grade and quality shall be exported, and the law is clearly a law with respect to trade and commerce with other countries. The power given by s. 51 (i.) extends to authorizing the total prohibition of the export of any commodity, and a fortiori it includes a power to prohibit the export of any commodity except upon compliance with prescribed conditions.”
o Incidental power
▪ The regulations prohibited “the use of premises for slaughter for export unless the premises are registered, and they cannot be registered unless they comply with a large number of prescribed conditions which descend to meticulous detail. The question which emerges is whether the Commonwealth power with respect to trade and commerce with other countries extends to authorizing legislation regulating and controlling the slaughter of meat for export. In my opinion it does so extend”
5.) INCONSISTENCY
WHAT ARE WE DISCUSSING?
1. Effect of s 109
2. Three tests for inconsistency and how they are to be applied
3. Parliamentary control of inconsistency as a weapon of Cth power
1.) THE MEANING OF INVALID
• When power to legislate is concurrently held by Fed and State (as in most of the powers in s51), this is the method for resolving conflicts
109 Inconsistency of laws
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.
• Precondition before you get to s 109: need to have 2 valid competing laws – state and Cth
• To the extent of the inconsistency: the entirety of the state law may not fall ( invalid only so far as there is an inconsistency, but obviously if what’s left doesn’t make any sense, the thing is as good as dead
• Invalid means inoperative
• So if the Cth changes its law and removes the inconsistency, then the state law reactivates – comes back into operation
2.) THREE TESTS FOR INCONSISTENCY
TESTS FOR INCONSISTENCY:
Test 1
• It is impossible to obey both laws
• i.e. One law requires you to do X, and the other says you must not do X (logical inconsistency)
( R v Brisbane Licensing Court; Ex parte Daniell
FACTS:
• Qld state referendum to be held on certain date (set by legislation)
• Cth election to be held on same date (set by legislation)
• Electoral Act provides that no other polling to be done on date of Cth poll
• So there is a clear inconsistency
Test 2
• The “rights” test
• One law confers a legal right which the other takes away
• i.e. one law says you can do X, but the other says you cannot do X
• Not impossible to obey both but they are clearly inconsistent
( Colvin v Bradley Bros
• Cth law said possible to employ women
• State law said illegal
HELD:
• Can keep both levels of govt happy since nothing in Cth law said employers required to employ females – so just wouldn’t employ female workers using those machines
• But direct inconsistency by State rendering it an offence
Test 3
• The “cover the field” test
• The Cth law evinces an intention to cover the field
• Comprehensive, large regulation of an area
• The Cth is saying we want to regulate this field and we are going to cover it to the exclusion of state laws
• This test does not require a direct inconsistency (both may even require the same conduct, etc)
• But what is inconsistent is the existence of any state law at all on that topic
• It is driven by searching for the parliamentary intention, rather than the text of the 2 statutes themselves
• So involves asking 2 questions:
1. Is the Cth law intended to be exclusive i.e. the only law on the topic?
2. Does the state law operate in the same field as the Cth law?
• These questions are useful but there is a lot of judicial choice in this test
• Identifying the field in question is often the nub of the problem
Formulating tests 2 and 3…
Test 2:
• If 1 enactment makes lawful acts which the other enactment makes unlawful, the 2 are to that extent inconsistent (even if it is possible to obey both)
• So 2 enactments may be inconsistent even though obedience to each may be possible without disobeying the other
• This is for enactments that either limit or confer rights
Test 3:
• If you have 2 pieces of legislation doing the same thing (even if it is possible to obey both), if the intention was clearly that 1 of the laws would apply to cover the field this is conclusive ( then state law is invalid
• Here, the inconsistency is established not by comparison of the detailed provisions, but by the mere existence of the 2 sets of provisions
( Clyde Engineering Co Ltd v Cowburn
FACTS:
• State law prescribed ordinary working hrs as 44 hrs /week
• But fed laws said it was 48 hrs
• Cowburn, relying on state act, worked 44 hrs, but his employer, relying on Cth act, deducted money from his wages
• Possible to work 44 hr working week and abide by both laws, however, State Act denied rights under Fed Act and vice versa
ISAACS J:
• Was able to ensure the supremacy of the Cth system (previously, the HC had allowed state laws to operate as a constraint on Cth laws)
• Gives example of being punished for a certain crime by both state and Cth
Clearer explanation of test 3…
• When the federal law discloses a comprehensive intention, the state law is inconsistent with it
• It must express by its enactment, completely, exhaustively, or conclusively what shall be the law governing the particular conduct
( Ex parte McLean
FACTS:
• Cth Act: person in breach of an award was liable to a penalty not exceeding max to be fixed by the Court
• NSW Act: any person who absents himself from a contract of service liable to a penalty not exceeding 10 pounds
• F alleged that McLean had not fulfilled his contract for service through incompetence
• M argued that since bound by Cth Act, State Act rendered invalid by s109
DIXON J:
• Inconsistency held to arise because the same acts or omissions were made subject to the penal sanctions of a Cth enactment as well as to the different penal sanctions of the State Act
All tests should be applied
• You shouldn’t just go straight to test 3 – should also examine whether there is the possibility of direct inconsistency
• Essentially, you should apply all 3 tests
( Telstra Corporation v Worthing
FACTS:
• Worthing made claim under NSW Act in respect0 of injuries sustained while working as Telecom linesman
HELD:
• Compensation available under Cth Act was different from that under State Act
• State Act would have the effect of qualifying or impairing the Cth Act ( so inconsistency under test 2
INCONSISTENCY EXAM QUESTIONS:
• Always consider all 3 tests
• It is often the case that 2 or more tests can be brought to bear to show an inconsistency
The overlapping nature of the 3 inconsistency tests
Some examples…
( Commercial Radio Coffs Harbour v Fuller
• Cth grants license to run radio station in Coffs Harbour, under the condition that they had to build 2 170m broadcasting towers
• State law: Environmental Planning and Assessment Act
• Residents say that building of towers will infringe state act
• Radio station says state law is inconsistent with Cth law so they don’t have to oblige
HELD:
• The finding that there was no inconsistency depended on the application of all 3 tests
• No test 1 inconsistency: Cth law didn’t allow radio station to simply flout state law (didn’t just give a blank cheque so far as state law was concerned, it gave a qualified duty). So it didn’t require a licensee to disobey any relevant state law.
• No test 2 inconsistency: Cth hasn’t conferred a right on radio station; it’s saying if you want the license this is what you have to do ( but you have to do this and comply with broader landscape of the law ( so state isn’t negating an absolute right/authority that was given to the radio station. The license requiring the erection of the 2 towers stopped short of giving an authority to do so.
• No test 3 inconsistency: intention wasn’t to cover the field – the Cth Act leaves room for other laws in the field. The 2 laws were directed to different purposes and therefore occupied different fields.
Summary:
• Doesn’t confer absolute authority on grantee to be immune from state law; the Act leaves room for the operation of other laws
• The relaxation of the law prohibiting the granting of a license does not confer an immunity from other laws
Can apply numerous tests
• In a given case, more than 1 test is capable of being applied to establish inconsistency
Absolute rights or rights existing in the context of other laws
• If, according to the true construction of the Cth Act, the right is absolute, then the right is intended to prevail to the exclusion of any other law
• But other Cth laws may be conferred not to exist in a vacuum, but alongside other laws
( Ansett Transport Industries (Operations) P/L v Wardley
FACTS:
• W trying to become first female commercial airline pilot in Australia
• She is fired by Ansett
• Ansett says it has abided by the Cth subordinate legislation clause that says if a person has worked for less than 6 months, they can dismiss them, and therefore it doesn’t conflict with sex discrimination laws of Victoria
• Vic Equal Opp Board found on basis of Equal Opp Act (Vic) which made sex discrimination unlawful said that Ansett should rehire her
• Ansett argued the provisions were inconsistent
HELD:
• Applies test 2 – trying to decide what right has been conferred upon Ansett
o No inconsistency found
o The right of termination of the contract conferred no absolute right (so not a very strong right conferred upon Ansett) ( not to be understood in isolation from other laws
o “Not to be read as if creating a partial vacuum”
o So even though you can do this, you still have to obey certain other laws of the state
o Doesn’t provide a substantive right to sack for whatever you want, it simply says, “here is the process that you have to follow”
o Confers a right against the backdrop of other laws
• Applies test 3 - the 2 laws occupied different fields
o Answer under other tests informs answer under this test
• Summary:
o The Cth law does not confer a substantive right of dismissal; it merely assumes the right of dismissal for which the general law provides and this right under general law has been altered by State law saying you cannot discriminate ( so argument needs to be read in light of this alteration
o Not inconsistent because occupied different fields
When State Act would “alter, impair or detract from” the operation of the Cth law
• Then the State Act is rendered inconsistent
( Australian Mutual Provident Society v Goulden
FACTS:
• G was blind and sought to change his insurance benefits with AMP
• AMP denied application due to G’s blindness
• Cth Act: Life Insurance Act
• State Act: Anti-discrimination Act NSW – offence for discrimination on the basis of disability regarding provision of services
• Insurance company relied on Life Insurance Act and said, that’s what we do
HELD:
• Unanimous: Inconsistency found between the State and Cth Acts
• Purpose of Cth Act is to ensure adequate regulation to protect policy holders
• Would detract from Cth scheme of regulation if the state scheme was allowed to operate
o It would undermine and possibly negate the legislative assumption of the underlying ability of life insurance companies to classify risks and fix rates
• Discrimination is the essence of life insurance
• Seems to be applying test 3 – Cth intention to cover the field – but also seems to be inconsistency under test 2 – Cth legislation gives a right which is in part negated by the state
3.) OPERATIONAL INCONSISTENCY
Invoking the principle from the previous case…
Slight or marginal impact of State law upon Federal law
• Will not give rise to a constitutional inconsistency
• The impact must be one of some significance and as such would have the effect (if valid) of precluding, overriding or rendering ineffective an actual exercise of federal jurisdiction
( APLA Ltd v Legal Services Commissioner (NSW) (2005)
FACTS:
• State act: prohibited advertising for legal service referring to personal injury
• Cth laws establishing rights to compensation for victims of personal injury
• Claimed state law impaired Cth law establishing compensation for victims of personal injury and those providing rights of appearance in fed courts
ISSUE:
• Whether the state law is inconsistent
GLEESON CJ AND HEYDON J:
• Inconsistency not found as basis for striking out state act – s109 did not apply
• Preventing lawyers from advertising does not impair the federal legislation
• Doesn’t inhibit in any significant way the operation of the Act
• None of the federal legislation depends for its efficacy on the unrestricted promotion of legal services
CALLINAN J:
• The argument is far-fetched
• The Cth provisions create causes of action; the rule about non-advertising cannot defeat, or impinge upon the causes of action or remedies
• Does not alter, impair or detract from the operation or objects of the federal rights
KIRBY J [dissenting]:
• To prohibit the right to advertise would render the rights theoretical
• They weren’t intended as a pure symbol
• Unless persons affected may be informed about the existence of their rights and how they may go about enforcing them, they will be theoretical
The above cases demonstrate that the results depend on how you look at the 2 pieces of leg’n and how you perceive the impact of one on the other to be…
4.) EXPRESS INTENTION CLAUSES
• On the topic of test 3
• Can be hard to discern the Cth’s intention
• Intention has to be considered from looking at the Act as a whole and sometimes legislative history behind it
• Intention can also exist by having merely been stated
Cth can signal that they intend to cover the field
• Then not looking for Parl’s intention because it is already stated
• So Parl has not left the matter to be determined by an inference
Attempts to manufacture inconsistency so as to limit State powers
• This would be invalid
( Wenn v A-G (Vic)
ISSUE:
• Issue: whether a Cth scheme for preferential employment of ex-service personnel overrode similar state scheme
• i.e. whether s27 of Cth Act, which made no provision for preference in promotions, could override aspect of Vic Act which did provide for promotions
• Has the field of preferential treatment in the workplace been covered by the Cth?
FACTS:
• Cth law made no mention of preferential treatment in respect of promotions, just employment
• But state law did go this extra distance – provided for pref treatment of ex-servicemen in promotions
• So one is doing something that is not addressed in the other
• W – member of Vic Public Service – claimed entitled to promotion under State Act
• But s24(2) of Cth Act states it shall apply to the exclusion of any other provisions
ISSUE:
• If Cth can state an intention, does this not amount to, “a stream (Cth) cannot rise higher than its source” – idea that Cth can operate a Constitutional provision rather than Cn controlling Cth’s operations
• Unease: is the Cth effectively driving the process? Shouldn’t this be the court’s role – to apply s109?
• West v FCT: judge sought to argue for limits on Cth’s ability to express an intention having this effect
HELD:
• Field has been covered
• State law inconsistent by the operation of s24, despite the fact that it took the concept further than Cth law
• Not embarking on search to find intention because it was stated by Cth in its Act
• Dixon and Rich JJ: looked like the other judges to s24 but also took other circumstances into account
• But no doubt that a provision like s24 is very powerful
• On defendant’s argument that the section is an attempt to stop State Parl legislating:
o Just because the Fed laws prevail over state laws to the extent of inconsistency as prescribed by s109 does not mean they are invalidly attempting to limit the powers of State Parliament
( Botany Municipal Council v Federal
• Cth’s attempt to get a 3rd runway in Sydney
• Local Council was being difficult – said had to get an environmental impact statement under state law
• Cth passed a law which left no doubt of its intention to cover the field
• Named pieces of NSW legislation which were not to apply
• Objection made that this was an example of the stream trying to rise higher than its source – trying to remove state laws that impede the Cth’s progress
HELD:
• Already established that the Cth has this ability
• So the Cth provisions were valid
• This is not a case in which Cth law is aimed at preventing or controlling State legislative action rather than dealing with the subject matter assigned to the Cth Parliament
Parliament can express an intention not to cover the field
• Will be accepted by the HC as a virtually conclusively indication
• Makes it clear that State laws are to operate concurrently (i.e. those that are not inconsistent)
• But doing this cannot avoid or eliminate a case of direct inconsistency ( so cannot displace the operation of s109
• So this statement is more relevant to test 3:
o Where the question is whether the Cth enactment “covers the field”, a provision for the current operation of State laws will be accepted as a clear indication that the Cth enactment is not intended to “cover the field”
( R v Credit Tribunal; Ex parte General Motors Acceptance Corporation
So, if the test is an intention, there is nothing to stop the Cth from voicing its intention…
5.) RETROACTIVE LAWS AND THE PURPOSE OF S109
RETROACTIVE INTENTION?
• Idea of Cth retrospectively declaring its intention
• Allowed based on parliamentary sovereignty (Parliament’s power is not qualified on whether it is prospective/retro.. merely granted power
INCONSISTENCY AND DISCRIMINATION:
• Results strange in this area
( Viskausakas v Niland
• Cth passed Racial Discrimination Act
• NSW passed same act 2 yrs later, covering similar provisions
• V, charged because he had refused service to 3 Aborigines under State Act
• He said State Act invalid due to inconsistency with Cth Act
HIGH COURT:
• Argument succeeded – State law inoperative because Cth law covered the field
• The court thought the Cth intended to cover the field over racial discrimination – supported by the fact that the provision is expressed in complete generality
• So there is an inconsistency
THE CTH PARLIAMENT CHANGES THE LEGISLATION:
• The Cth Parl said that wasn’t what they had intended to do at all – didn’t mean to cover the field
• They amended the Cth Act so that from that point on they said “we don’t intend to cover the field as far as human rights leg’n is concerned; happy for a duplicity”
• They sought to vacate retrospectively the field identified in Viskauskas and thereby retrospectively revive the NSW law
SO…
• Legislation purported to express intention retrospectively to say that the act should never have been seen as intending to cover the field
• This wouldn’t affect the pub owner because his case was decided
• But everyone else with motion – attempt to save their actions
• Person caught up in this saga was Metwally in next case…
Restrospective voicing of Cth intention – not allowed
• The Cth cannot retrospectively voice an intention to cover the field
• So if state law is found to be inconsistent with Cth law, the state law remains invalid until the Cth changes the law
• The Parliament cannot exclude the operation of s109 by providing that the intention of the Parl shall be deemed to have been different from what it actually was and that what was in truth an inconsistency did not exist ( can’t alter the facts of history
Once the Cth changes the law
• If, at some later time, the Cth repeals or amends its law to remove the inconsistency, the State law will then become valid again, operative not from a prior date, but from the time when there was no inconsistency
( University of Wollongong v Metwally
• M was student at Uni of Wollongong
• For some years M was in metallurgy department at uni
• He suffered racial discrim at his colleagues’ hands
• At time above case going through courts, M had his claim going through the Equal Opportunity Tribunal
• If state legislation not valid, M couldn’t bring claim
• But once RDA amendment had been made, was retrospective intention valid?
• Did it mean M’s case was still on foot and entitled to pursue his action under state leg’n?
• Succeeded in Tribunal
• Then the Uni’s response: appealed decision on basis that retrospective intention not to cover the field was invalid
ISSUE:
• Can the Parl retrospectively voice an intention to cover or not cover the field?
HELD:
• 4:3 decision
• Result against M
• The Cth cannot retrospectively voice an intention to cover the field
• So the state legislation remained invalid for the historical period
• But the 4:3 decision shows controversy and tension over the issue
MAJORITY:
• Arrived at decision to allow Cth to voice its intention to cover the field or not but it is taking it a step too far to say it can change the determination of its past intention
• Gibbs J: if it were allowed, the Parl could announce an intention that it did not have at the time
• Not for the Cth to switch s109 on and off as it sees fit (regarding the past)
• So the relevant provisions of the NSW Act were not operative at the time the acts complained of by M were committed
MASON J [dissenting]:
• What the Parliament can enact prospectively it can also enact retrospectively
• The point of departure is reached only where the retrospective operation of the Cth statute displaces an inconsistency which has previously arisen
6.) THE EXTERNAL AFFAIRS POWER A
Contained in Constitution s51(xxix)
WHAT ARE WE DISCUSSING?
• Does the Cth have power under this section with respect to Aus’s relations with other countries?
• Does it have power to legislate with respect to matters outside Aus?
• Can the power be used to justify the Cth legislation on any topic which is the subject of an international treaty to which Aus is a party?
1.) RELATIONS WITH OTHER COUNTRIES
EXTERNAL AFFAIRS
• Aus Communist Party v Cth (Communist Party Case): HC refused to allow the Cth to abolish the Aus Communist Party
• But, there were earlier cases after WWII in which the Court upheld prosecutions of communists for sedition (treason): Burns v Ramsley
External affairs
• The relations of the Cth with all countries outside Aus, including other Dominions of the Crown, are matters which fall within subject of external affairs
External rather than “foreign” affairs
• Words chosen to make it clear that the power was meant to extend to relations within the UK and other parts of the British Empire
• Australia’s intra-Imperial relations were external, so relationships with Britain which were not foreign were still external
• So external is wider than foreign – not just non-empire countries but also empire countries which are geographically external to Aus
( R v Sharkey
• Crimes Act defined seditious intention as including intention to excite disaffection against the govt or Constitution of any of the King’s Dominions
• S was communist who was charged with expressing seditious intentions against the empire at large
HELD:
• This was a valid law with respect to “external affairs”
• The prevention and punishment of the excitement of disaffection within the Cth against the govt may reasonably be thought to constitute an element in the preservation of friendly relations with other Dominions
Extent of external affairs – where they take place
• With other Dominions, and with other countries outside Austraia: R v Sharkey
• Also relations with other “international persons”, including contemporary range of international organizations, especially UN and its agencies: Koowarta v Bjelke-Petersen
The substance of a nation’s external affairs
• Is intercourse between the nations
• Treaties and conventions to which Aus is a part are included
• But external affairs also includes matters which are not consensual in character – conduct of a nation which affects other nations
• It is not essential to validity that such a law be restricted to protecting good relations with the King’s Dominions
Sovereignty over Australia’s territorial sea
• External affairs power extends to asserting this
( Seas and Submerged Land Case
ISSUE:
• Whether the external affairs power entitled the Cth to assert its sovereignty over Australia’s territorial sea
HELD:
• It did
DIFFERING JUDGMENTS:
• McTiernan J: based judgment solely on Geneva Conventions
• Jacobs J: didn’t rely on it at all
• But all 7 judges agreed that assertion of sovereignty over Aus’s continental shelf was valid
• Underlying reason: the idea of the continental shelf had emerged as a product of international relations and law ( therefore arose out of external affairs
2.) MATTERS EXTERNAL TO AUSTRALIA AND OTHER ASPECTS
External to Aus
• Seas and Submerged Lands Case: External affairs power extends to anything which is external to Australia OR to matters/things geographically situated outside Australia
• Reinforced in later cases
• Finally assumed decisive in Polyukhovich – valid use of power could be based on the bare fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia
o If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase `external affairs'
• 4 judges all seemed to indicate that mere externality, with no Australian connection is sufficient to enliven the external affairs power
( Polyukhovich v Cth (War Crimes Act Case)
ISSUE:
• Whether in 1988 the Cth could legislate to identify as “war crimes” certain crimes committed in Europe during WWI and to provide for the trial in present-day Aus, of persons now Aus citizens/residents who might have committed such crimes
• The act criminalizes retrospectively acts committed in Europe in WWII
DEANE J:
• S 51(xxix) contained a sufficient grant of power to support this law
• Mason CJ, Deane, Dawson, McHugh JJ: this conclusion could be based on the bare fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia
• There would be a lacuna (gap) in the plenitude of Cth powers without this power ( there is no acceptable basis for any such lacuna beyond that resulting from the limitations which the Constitution impliedly or expressly imposes
• The provisions of this Act are laws with respect to things which occurred outsider Aus ( so it’s a law with respect to External affairs under s 51(xxix)
BRENNAN J:
• Rejected the above approach – finds the legislation to be outside the power
• Critics often ask what is international about treaties operating wholly inside Aus, so Brennan J asks, what is Australian about a treaty dealing with things happening wholly outside Australia
• The powers of the Cth are not to be expanded beyond their true scope
• Connotation of external affairs must be ascertained from its context and purpose
• Don’t construe the section narrowly but power conferred is still limited
• Doesn’t apply to everything that occurs outside Australia
• The “affairs” are external affairs of Australia, not affairs which have nothing to do with Australia
• There must be some nexus, not nec substantial, between Aus and the external affairs which a law purports to affect before the law is supported by the section
• The limits of the power provide immunity from harassment by Aus law of people who have no connection with Aus
• He thinks it is ok that there are areas where neither parliament can legislate
• Did not accept as a sufficient connection the fact that the legislation was limited to prosecution of people who were now Aus citizens/residents
TOOHEY J:
• There should be some Australian connection for events in Europe to be an external affair
• But found a sufficient connection in the mere fact of Aus’s involvement as a belligerent in WWII
GAUDRON J:
• Externally located affairs must have an element of Aus interest or concern but agreed with Mason J that Parl’s decision to legislate showed conclusively that this element was present
MASON CJ:
• Explicitly rejected the need to find Australia’s interest/concern in the issue
( Horta v Cth
Inconclusive about whether sufficient Australian connection is required to enliven external affairs power
• On one hand: reason for decision was valid exercise of external affairs power was sufficiently demonstrated by mere fact of geographic externality
• On other hand, joint judgment seemed at pains to leave open the q of whether some additional element is needed
FACTS:
• Challenge to legislation passed pursuant to bilateral treaty between Aus and Indonesia for the joint exploitation of petrol resources in Timor Gap
• It was an area claimed by both nations as part of the continental shelf but not part of territorial waters of either country
• Pl challenged validity of Indonesia’s assertion of sovereignty over East Timor ( argued that the treaty was void under international law and so could not be validly implemented under the external affairs section
HELD:
• Relevant areas of the seabed were geographically external to Aus so enough to support validity of the legislation (provided the sufficient nexus) ( enabled the Court to dispose of the matter in short order
• They are all matters affecting and touching Aus – so within legislative power
• Even if the treaty were void under international law or if Aus’s entry into the treaty breached its obligations under international law, the Act would not thereby be invalid under s 51(xxix)
• Don’t have to confine the Constitution within the limits of international law
Is mere externality enough?
• Case above tends to support the view that mere externality is enough
• Reaffirmed in Victoria v Cth (Industrial Relations Act Case): P must now be taken as representing the view of the court ( issue appears to be settled
• However, Re Patterson: Kirby J warned that geo externality cant be used as a basis for self-fulfilling prophesies
( XYZ v Cth
FACTS:
• Plaintiff faced prosecution for sexual offences allegedly committed in Thailand contrary to Crimes Act
• Challenge to idea about whether geo externality is enough
• Gummow, Hayne, Crennan JJ, Gleeson CJ: rejected a challenge to the idea that it is sufficient ( reaffirmed externality principle, upholding legislation on this basis
• Kirby J did not resolve the issue- if you push this idea, impacts overall degree of power of cwth in the federal balance
• Callinan and Heydon JJ: accepted the challenge ( held that the law was invalid
• However, even if challenge to externality principle had been wholly successful, it still might not have meant that above cases were overruled:
o Challenge didn’t nec extend to narrower version of the principle accepted in Polyukhovich by Brennan and Toohey JJ i.e. the sufficient nexus where the legislation touched and concerned Aus so the decisions may be supported on a narrower reading of s 51(xxix) than mere geo externality
o So prepared to overrule broad principle but not necessarily wholesale overruling since decision could be justified by other results
• Arguments against acceptance of mere geo externality (echoing Brennan in Polyukhovich):
o Criticism of argument that given the limits on the power of states to legislate with extraterritorial effect, there would be a gap in the plenitude of Aus’s legislative power if Cth couldn’t do so ( this underestimated States’ ability since always poss for them to procure Cth leg’n by request
o The novelty of the court’s willingness to accept mere externality – said to be inconsistent with Burgess but the majority judgment replied to this by saying that there can be no justification for limiting the meaning of the expression external affairs to the meaning it had in 1900
o If Aus has the power to criminalize activities in other countries, the power may be used in respect of activities which are not contrary to the law in the country in which they occur
**So there is a clear majority view that mere externality is enough but there have been opposing arguments consistently voiced in minority arguments…
3.) IMPLEMENTING TREATIES
FIRST APPROACHES:
• The most controversial q regarding the external affairs power has been the extent to which the Cth power is triggered by the existence of international treaties or conventions to which Aus is a party
• The focus is on the extent to which obligations imposed on Aus as a party to such treaties can be carried out under s 51(xxix) by legislation implementing the treaty provisions within Aus
• The view that the section authorises laws within Aus to implement the provisions has been expressed since federation
• But first clear judicial use of this view was Roche v Kronheimer: court upheld the validity of the Treaty of Peace Act which implemented provisions of Treaty of Peace – most members of court relied on defence power but Higgins J relied on s 51(xxix)
• Decisive step taken in Burgess
Treaties and the external affairs power
• MAJORITY: Any treaty will provide the legislative basis for enactment of a law under external affairs power
• The fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement
• Then the legislative Cth power over external affairs includes the power to execute treaties and conventions entered into with foreign powers
• It is wrong to prejudice the examination of the content of the subject external affairs by assuming or asserting in advance that there are certain matters such as conditions and terms of employment which nec exclude from Cth legislation in exercise of the power
If Cth power arises from purpose of implementing convention, the resulting legislation must be confined to the purpose in order to be valid
• MAJORITY: there must be a direct relationship between the treaty and the legislation
• It must be possible to assert that any law represents the fulfilment of the obligations assumed under the convention
• This requirement does not preclude the exercise of wide powers and discretions by parl
• Everything must depend on the terms of the convention and upon the rights it confers and imposes
( R v Burgess; Ex parte Henry
ISSUE:
1. Was the legislative implementation of a treaty permitted under s51(xxix) (can you pick up any treaty and legislate domestically for it?)
a. Yes, but the threshold differs
i. Evatt, McTiernan, Latham: broad – any kind of international instrument (not just a treaty) capable of domestic implementation under s51(xxix) ( no restriction on the Govt to enter treaties so why should external affairs power be restricted?
ii. Dixon, Starke: more limited approach, treaty must have international flavour to it (like treaty in the case – global regulation of aviation standards seen as extending beyond national borders)
2. What relationship needed to exist between the treaty and the legislation?
a. Evatt, McTiernan, Latham: very expansive for question 1, but flipside is that they limit this rule by requiring a direct relationship between the treaty and the legislation
b. Dixon, Starke: share the view
LATHAM, EVATT, McTIERNAN JJ:
• Legislative implementation of treaties was valid – spoke of this in unqualified terms
• Even in absence of binding obligation the power would extend to implementation within Aus of recommendations of the International Labour Organization ( but this issue remains open
HELD:
• Air Navigation Act not supported by trade and commerce power but valid insofar as it authorised regulations for purpose of giving effect to International Convention for Regulation of Aerial Navigation
• Actual regulations held invalid because they didn’t adhere to Convention – failed the second question ( no direct relationship between the treaty and the legislation
• Argued that Act invalid because perusal of Convention shows nothing outside Aus
DISSENTING JUDGES – Possible limitations on the power:
• Can’t just draw on any treaty to legislate using the external affairs power
• Must be a treaty that is international, not just domestic
• Starke J: possible limitation to matters of sufficient international significance (maybe a bit less demanding than Dixon J’s test)– didn’t need to be resolved since even if test applied, subject matter satisfied it
• Dixon J: limitation to matters indisputably international in character – same as above
On the validity of the regulations:
• Starke J: dissented on whether regulations were valid (he was more flexible on the 2nd question: he thought they were valid, unlike the rest of the judges) and reaffirmed the legitimacy of a broad choice of legislative means ( happy for govt of the day to decide how they would respond to the treaty ( a construction of the power that enables a ready application of the convention to various circs and conditions is preferable to one that insists upon an inflexible and rigid adherence to the stipulations of the convention
Burgess acknowledges the plenary power granted in s51(xxix) being not confined to external aspects of other heads of power but is divided on the issue of whether there is a subject matter limitation on the treaties that can be implemented by Cwth.
1. Treaty must be bona fide
2. Doctrine of conformity- limited to effectuating the purpose of the treaty
AFTER BURGESS:
( R v Poole; Ex parte Henry
• Another crack made at the regulations
• New regulations made under Air Navigation Act (Cth) – laid down rules for use of aerodynes (aerodynamic aircraft) – said can’t fly over aerodrome at height lower than 2300 feet (including neutral zone)
• Based on r 39(a) of Convention (treaty) saying that can’t fly lower than 700 metres – didn’t apply in neutral zone
▪ So 2 diffs between Act and treaty: height and neutral zone prohibitions
• Relationship between domestic Act and treaty was challenged:
▪ Henry Goya Henry took people for joyrides
▪ Burgess: he was prosecuted for flying without license but he won because regulations not valid
▪ Now prosecuted again for breaching r 51(1) of Aus rules – raised issue of whether the rule was valid implementation of r 39 of convention
HELD:
• Domestic legislation is not disproportionate implementation of the treaty just because the measurements are slightly different and, as for neutral zone, was wider than the convention, but not improper and it was incidental to it
• By r 38, could fly in neutral zone, which is where Henry flew, so not in breach of convention
• But in breach of Aus rule because it extended to the whole aerodrome, covering the neutral zone
RICH J:
• Wider Aus prohibition was proper method of ensuring strict obedience with convention rule
EVATT J:
• Added area was nec ancillary to landing area proper, so prohibition was incidental ( the rule was sufficiently stamped with the purpose of implementing the Convention
( Airlines of NSW v NSW (No 2)
• New set of regulations considered here
• Cth sought to support validity using trade and commerce and external affairs powers
• Reg 200B invalid because authorised intrastate trade
• Other regulations held valid – 5 judges said under s 51(i) and 4 judges said under s 51(xxix)
Still inconclusive on whether a treaty need be on a matter of inherent international significance…
7.) THE EXTERNAL AFFAIRS POWER B
1.) TREATY IMPLEMENTATION – MODERN JURISPRUDENCE
THE EXPANDING POWER:
• Uncertainty about scope of power relieved by 2 cases: Koowarta and Tasmanian Dam Case
‘Lowest common denominator’ judgment from the following case – implementation of a treaty
• The implementation of a treaty is a valid use of power under s51(xxix) AT LEAST when the subject matter is of ‘international concern’
• But remember that the ‘international concern’ test was only relied on by Stephen J (so Koowarta may stand for nothing more than its result – there is no dominant principle that comes out of it because Stephen J only agreed with the majority on the result of the validity, not on the principles applied)
• The court has never upheld the validity of law that legislates on a topic of international concern when there is no treaty
( Koowarta v Bjelke-Petersen (premier of Qld)
FACTS:
• Qld wouldn’t transfer land to an Aboriginal group, so Koowarta took it up as breaching racial discrimination laws.
• HC considered whether the Racial Discrimination Act was validly enacted under either the races power or external affairs power
• Act enacted to implement treaty: International Convention on Elimination of Racial Discrimination
ISSUE:
• Whether under the external affairs power Parl can enact laws for the execution of any treaty to which it is a party, whatever the subject matter (esp when they are purely domestic)
• Says this is a new question before the court because this topic is unlike aviation across international borers – unclear whether the subject matter is international in nature
HELD:
• Legislation survives by 4:3 judgment under external affairs power (really majority of 3 plus Stephen J)
MAJORITY:
• The Act was valid on the ground that it is nowadays undoubted that the suppression of racial discrimination is of international concern
• On issue of whether the power of treaty implementation is subject to a limitation of the kind suggested in Burgess:
o Koowarta was ambiguous
o Majority thought that there was no such limitation – doesn’t have to be indisputably international
o The fact that there is a treaty on the topic is enough to be sufficiently international in character
o The tests offered by the minority are unworkable ( idea that court needs to determine if something is indisputably international Aus would be an ‘international cripple’
GIBBS CJ, AICKIN, WILSON JJ (Minority):
• If allowed to make laws to give effect to any treaty, the executive would be able to determine the scope of any Cth power
o Federal balance achieved by the Constitution would be destroyed: if you allow the Cth to legislate on domestic topics, this eats into the powers of the states
• More appropriate to have a narrower interpretation of the power
• Adopted Dixon J’s limitation – a treaty can be implemented within Australia only if its subject matter is indisputably international in character i.e. must be a matter which is an external affair
o So this test ensures the legislative powers of the Cth are restricted to some extent
• Bona fides argument raised by the majority:
o They are of the view that if you discard the test and let any treaty enliven the power, how do you stop this scenario (you could have a treaty with another country to give the Cth legislative power over the topic) from occurring?
o The idea that the court can judge when the parl is being shifty or genuine about the legislative power is not something the court can do in any meaningful way
o So bona fides is a poor defence of majority argument that any treaty can be legislated over
• External affair:
o Any subject matter MAY constitute an external affair
o A subject matter, the manner in which it is treated involving a relationship with other countries or with persons/things outside Aus (Lynch: this seems to be quite a concession)
o A matter does not become an external affair simply because Aus has entered into an agreement with another nation in regard to it ( the existence of a treaty is not enough to give something international character
• On this matter (RDA):
o The fact that many nations are concerned that other nations should eliminate racial discrimination within their own boundaries does not mean that the domestic affairs of 1 country become international affairs (other countries might be concerned about it, but concerned about it domestically)
o An Aus law designed to forbid discrimination by Aussies against Aussies within Aus does not become international or a law with respect to external affairs because other nations are interested in Aus’s policies with regard to discrimination
STEPHEN J (agreed with majority on validity of law but not on principles they offer):
• Where the grant of power is with respect to external affairs, an examination of subject matter, circ and parties will be relevant to whenever a purported exercise of power is challenged
• There must be some kind of limitation – It will not be enough that the challenged law gives effect to treaty obligations (this is what the majority has argued)
• But formulation above is too narrow ( what is required is that the treaty be on a matter of international concern
2 main lines of argument:
1. The external affairs power can be used to implement an international treaty at least when the treaty deals with an issue of ‘international concern’
• Where the matter is of international concern:
o This is a valid criterion of whether the matter forms part of the external affairs
o A subject matter of this type necessarily possesses the capacity to affect a country’s relations with other countries ( so this quality is enough to make a subject matter part of a country’s external affairs
o International concern is more about how the topic is perceived and considered, rather about how it is treated
2. Even in the absence of a treaty, an ‘international concern’, to which Australia in its international relations might consider it nec or prudent to respond by appropriate leg’n within Aus, might be enough to bring that leg’n within the scope of s51(xxix)
o So there doesn’t have to be a treaty and it can be domestically legislated
• On this matter (RDA):
o Prohibition of racial discrim falls squarely within ‘undoubted’ subject matter (int’l concern)
o There has been a growth in the content of external affairs which reflects the new global concern for human rights
o The convention apart, the subject of racial discrimination should be regarded as an important aspect of Aus’s external affairs
o Usually, matters of external affairs: matters which are not consensual in character, conduct on the part of a nation which affects other nations and its relations with them
o But here, not nec to rely on this aspect of external affairs because there exists a precise treaty on a subject matter of importance in international relationships ( suffices to bring RDA within terms of s 51(xxix)
Majority view – ‘international concern’ where there is and is not a treaty
• The existence of a treaty is enough to enliven the external affairs power and the Cth can legislate on it
• Subject to express constitutional provisions, any matters covered by a bona fide international treaty are, by their very inclusion in the treaty, brought within the ambit of the external affairs power
• i.e. the legislative implementation of an international treaty concluded in good faith is within the ambit of the external affairs power
• But, it is enough to attract legislative power if, even though there is no treaty, a subject-matter is of sufficient international concern
• Not very strong – has never been rejected by clear majority, but here there are really only 3 judges advocating the test
( Cth v Tasmania (Tasmanian Dam Case)
FACTS:
• 1983: Hawke Labour Gov took action under World Heritage Properties Conservation Act to stop the damming of the Franklin River system in Tas
• Foundations for exercise of external power were in s6 (formed the basis of operative provisions in s9) ( each of the provisions in s6 were designed to invoke a diff aspect of external affairs
• S6(2):
o (a): implied external affairs power because Tas area had been submitted to World Heritage Committee so of international concern
o (b): implied sufficiency of international obligation, whether or not there was a treaty
o (c): impliedly raised converse issue of international treaty, whether or not there was obligation
o (d): implied sufficiency of ‘international concern’
ISSUE:
• Turned largely on the problem that had been decided in Koowarta
• Is the World Heritage Convention an international instrument?
HELD – MAJORITY:
• Did not pay as much attention to binding precedent – no obstacle in asserting a wider principle than the lowest common denominator from Koowarta
o Everyone except Murphy J accepted only s6(2)(b) as valid ( mere existence of an international obligation is enough to attract s51(xxix)
▪ So there was an international obligation by reason of the Convention
o Murphy J held that all sections were valid
• Mason J: rejected the test of ‘international concern’ as too elusive and yielding no acceptable guidelines
o The court cannot substitute its judgment for that of the exec ( the fact of entry into an international agreement evidences the judgment of the Parl that the subject matter of the convention is of international importance ( leave the decision to them
• Murphy J: did not reject the test but saw it as only 1 of many criteria, any one of which was sufficient to attract the power under s51(xxix):
o To be a law with respect to external affairs it is sufficient that it:
1. Implements any international law
2. Implements any treaty or convention whether general or particular
3. Implements any recommendation or request of UN or subsidiary organization
4. Fosters (or inhibits) relations between Aus or political bodies within Aus and other nations/entities/groups external to Aus
5. Deals with circs or things outside Aus OR
6. Deals with circs or things inside Aus of international concern
• The world’s cultural heritage is part of Aus’s external affairs
• Brennan J: believed in setting limits on treaty implementation under the section but believed this could be done by insisting on the strictly controlled implementation of a treaty obligation
• Deane and Brennan JJ: s9(1): (a-g) are invalid- too wide- prohibiting activities at all times on properties might not serve to conserve the property (e.g. if needed to knock down construction to return it to wild state), (h) is valid; based on conformity doctrine; targets protecting that site-purpose of treaty, they sever the non-conforming sections- why not bring them within conformity DISSENTING JUDGES:
• Would have preferred that any use of s51(xxix) to implement international treaties be subject to the limitation imposed by Dixon J in Burgess
• Compromise: but now all 3 judges settled for the ‘lowest common denominator’ of Koowarta – i.e. test proposed by Stephen J
• Whether a matter is of international concern:
o Depends on the extent to which it is regarded by other nations as a proper subject matter for international action, and on the extent to which it will affect Aus’s relations with other countries
• Held that the building of a dam in SW Tas was not of ‘international concern’
o The convention deals with matters entirely domestic, contemplate action w/i Aus, involve no reciprocity of relationship with other nations
o Protection of the environment and cultural heritage has been of increasing interest but it cannot be said to have become such a burning international issue that a failure by one nation to take protective measures is likely to adversely affect its relation with others
o Decisive factor: the Convention does not impose any obligation on the Cth to enact leg’n
o Matter for the states to legislate upon
o External affairs power has not been attracted here
SUCCESSORS TO THE TASMANIAN DAM CASE:
• The following cases accepted Tasmanian Dam Case as binding…
( Richardson v Forestry Commission
FACTS:
• Forests Act established Commission to investigate whether Lemonthyne and Souther Forest areas in Tas could qualify to be nominated as a world heritage area under 1972 Convention
• During period of investigation s16(1) of the Act prohibited certain works from occurring within the areas, including forestry operations and the construction of roads
HELD:
• The Act was valid
• Even though judges disagreed, they upheld the previous case in the interest of precedent
DAWSON J – adopts the party line:
• Rejected basis for validity in Tasmanian Dam Case: the activities involved in concluding an international agreement fall within international affairs, but if the subject matter of the agreement is entirely domestic, then the subject matter is not an external affair
• Need to determine between affairs that are external and those that are not ( the fact that an agreement is made externally does not determine whether its subject matter is external or domestic
• But, going by precedent, since the parties did not question the decision in Tasmanian Dam Case, assumes the authority of that decision:
o It decided that the legislative implementation of an international treaty concluded in good faith is within the ambit of the external affairs power
o But also it is enough without a treaty, if the subject-matter is of sufficient international concern
DEANE AND GAUDRON:
• Dissented on this point
• Most of the interim protection measures in s16(1) were invalid
• They confined validity to the precise, “proportionate” implementation of treaty obligations
o The section afforded general protection, so not capable of being viewed as appropriate or adapted to the circs
Tasmanian Dam Case also followed in…
( Queensland v Cth (Tropical Rainforests Case)
FACTS:
• By proclamation under World Heritage Properties Conservation Act, certain areas in Qld declared to be property to which the protective provisions in s9 of the Act applied
• Qld challenged the validity of the proclamation – asserted that the areas had not been demonstrated to be “world cultural heritage”
• Aus had submitted the areas to Committee for inclusion under world heritage list years earlier ( after evaluation, Committee had accepted the inscription of the property to the world heritage list
HELD:
• Judges rejected the outright idea that the court can decide as an issue of fact whether the rainforests were part of world heritage
• Said that the inclusion of the property in the List is conclusive of its status in eyes of international community and Aus’s international duty to protect it
• Inclusion in List is conclusive of the proclamation
DAWSON J:
• The mere fact that Aus had itself identified the area as part of natural heritage was conclusive – enough to give rise to an international obligation
Reaffirming broad view of Tasmanian Dam Case
• Rejected tests placing limitations on this e.g. international concern
Limits of the Tasmanian Dam Case
• The treaty must embody precise obligations, rather than mere vague aspirations
o It is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal
o The law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states
• The legislation must be appropriate and adapted to the implementation of these obligations
o If not, the court cannot meaningfully apply the proportionality test ( so this requirement is expressed in terms of the proportionality qualification
• But note the test is quite wide – use of word “reasonably”
• **This is important for problem questions: there must be enough detail in the treaty, it can’t just be aspirational in nature because there has to be something you can apply the proportionality test to
Rejecting the idea of taking the lowest common denominator
o Solicitor-General tried to argue this was the more constrained version of the judgment
o Court said no
o You don’t infuse the majority judgment of a case with the LCD – some cases are just messy – you can’t just say this is the narrowest version, so this is what the case stands for
You cannot legislate on recommendations
o On the judgment of Evatt and McTiernan JJ who say you can implement recommendations
o They act as an aid – if they set out possible ways in which you might fulfil the obligation under the Convention, then if the legislation adopts/is consistent with what is proposed in them, this assists in discovering a proportionate relationship between the legislation and the treaty
o But don’t go so far as saying you can legislate so as to give effect to recommendations ( so don’t take it to Evatt/McTiernann JJ’s level
Partial implementation
o The danger of partial implementation is that there won’t be a sufficiently strong relationship between the legislation and the treaty
o Depends on the treaty and how interdependent parts of it are and if you are cherrypicking which obligations to try and implement
( Victoria v Cth (Industrial Relations Act Case)
FACTS:
• Keating Govt introduced Industrial Relations Reform Act
• Amended IRA by adding new Part VIA and VIB
o Part VIA: enshrined new workers’ rights e.g. min wages, equal pay, unfair dismissal ( claim to validity depended on external affairs power – said to implement provisions of Conventions of Conference held in Geneva
o Part VIB: provided for enforcement of certified agreements ( claims to validity depended on corporations power
HELD:
• Claims to validity based on s51(xxix) were mostly upheld
• Strong reaffirmation of the Tasmanian Dam Case – stressed that there had been a continual expansion in the range of subject matter of treaties (the power would grow over time in relation to external affairs)
• Resisted any attempt to limit the ratio – didn’t adopt Stephen J’s limitation
• But recognised the limits of the case:
o The treaty must embody precise obligations, rather than mere vague aspirations (here the court cannot meaningfully apply the proportionality test)
o The legislation must be appropriate and adapted to the implementation of these obligations
2.) CONFORMITY DOCTRINE
o Relationship between the treaty and the law
HISTORY:
• R v Burgess:
o Evatt & McTiernan JJ – asserted power of Cth to carry out its obligations under ANY international treaty, BUT the leg’n must strictly conform to the treaty
o Starke J – took more permissive view of latitude available to Cth in its choice of means to fulfil its obligations
• Second Airlines Case:
o Barwick CJ – held that the Cth, in making legislation to complement the Convention, was free to devise its own appropriate means for securing observation of regulations
• Tasmanian Dam Case:
o Brennan and Deane JJ – “appropriate” was of crucial importance – gave rise to the test of proportionality
Test of proportionality
• The law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs (Tas Dam Case)
• Implicit in this requirement is a need for the law to be a reasonable proportionality between the designated purpose/object and the means which the law embodies for achieving/procuring it
• The law must be seen, with reasonable clearness, upon consideration of its operation, to be really and not fancifully, colourably, or ostensibly, referable to and explicable by the purpose which is said to provide its character
• The purpose which a law operating on a domestic subject matter is intended to achieve is likely to assume importance in deciding questions of characterisation
Partial implementation: the power under s51(xxix) does not need to be used to carry an entire treaty into effect
• Is what is in the legislation reasonably appropriate as a means to implementing or achieving the policy behind the international obligation?
• A law under s51(xxix) does not need to carry into effect the whole treaty or discharge all the obligations to be valid – it is competent for Parliament partly to carry a treaty into effect
( Cth v Tasmania (Tasmanian Dam Case)
HELD:
• In minority it rejected these provisions:
o The overall effect of the provisions is that they are automatically imposed regardless of their appropriateness for the purpose of protection and conservation
o There is therefore a lack of any reasonable proportionality between these provisions and the purpose of protecting the relevant property ( they are invalid
o Can’t just lay down blanket prohibitions like this
• But, s 9(1)(h) and s9(2) are different: they are not an arbitrary power – exercisable only in respect of property which has been prescribed by the GG upon his been satisfied the property will be destroyed ( limited to the purpose for which it exists so severable from the invalid provisions because appropriate and adapted to the purpose of discharging the international obligation of protecting the property
Purposive aspect of external affairs powers
• When a treaty relating to a domestic subject matter is relied on to enliven the external affairs power, the validity of the law depends on whether its purpose or object is to implement the treaty
• The purpose is not something found in the head of the power
• Rather, it is a test for determining whether the law in question is reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs
• A law is not capable of being appropriate and adapted unless there is reasonable proportionality between that purpose and the means adapted by the law to pursue it
On the issue of whether an enactment must implement the relevant treaty in its entirety:
• Doesn’t have to do this
• But there is a qualification: deficiency in implementing a Convention is not nec fatal to the validity of a law, but the law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure of implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention
( Victoria v Cth (Industrial Relations Act Case)
HELD:
• Pursuant to the test for appropriate and adapted, the court held that certain elements in the leg’n could not be supported as appropriate and adapted to the purpose of implementing the Conventions
o S170DE(2) was invalid because it went beyond what was required by the ILO Convention – the harsh, unjust or unreasonable criterion is broader than what would otherwise be the test for validity ( goes beyond the requirements, so invalid
• On the issue of whether an enactment must implement the relevant treaty in its entirety:
o The new Part VIA was valid as an implementation of the ILO Convention – “the circ that only part of the broad obligations imposed on Aus is implemented in the Part is no objection to its validity”
• One the issue of whether the legislation can rely on ILO Recommendations:
o Inconclusive on this point – at most, the recommendations relied upon were relevant as signifying that the particular measures recommended would be an appropriate and adapted means of satisfying the Convention
DOES THE TAS DAMS CASE DESTROY FEDERALISM IN AUSTRALIA?
o External affairs power is enormous power the Cth can draw on whenever it runs into legislative problems
o Depends what you mean by federalism
o Quality of federalism compared to what was intended by the legislative framers
Stymies the original conception of federalism: strong state govts and minimalist federal govt
Dissenters in Tas Dam Case argue states have powers to control external matters.. yet simultaneously reject reserved state powers (contradiction..) (??)
8.) THE RACES POWER
WHAT WE ARE DISCUSSING:
• Particular scope of races power – s51(xxvi) power to make special laws
• Apparent disparity between the political aims of the 1967 referendum and HC’s interpretation of s51(xxvi)
• How to avoid manifest abuse of the races power
• Some consideration on the need to improve rights – specifically and generally
1.) THE PROVISIONS
s51(xxvi): the people of any race for whom it is deemed necessary to make special laws;
Original provisions:
• Exclusion of Aborigines was done in preservation of state legislative power over those persons
• Aboriginals were to be the responsibility of state govts
• But any other racial groupings could come within the Cth’s power
• E.g. Chinese immigrants, Kanakas in Nth Qld
• View to limiting entry
• But in the end these policies given legislative effect through immigration power
• So prior to 1967, races power not used
• And now, since 1967, it has never been used in relation to anyone other than Aborigines
Change in 1967:
• Changed the words which exempted Aborigines from the ambit of the provision
• Power to be given to the Cth rather than states so they could tackle problem more proactively and also more equitably across the nation
• So the change was made with the view of enabling legislation for the BENEFICIAL TREATMENT of Aborigines (doesn’t say benefit or detriment in the text)
2.) SPECIAL LAWS FOR THE PEOPLE OF ANY RACE
FEATURES OF S51(xxvi):
Considering the scope of the power…
The law must apply to particular persons
• It can’t be a law with respect to everyone to validate legislation under the races power
• Must be a “particular” race, no matter what race
When the races power will be activated
• The races power is activated when the Parl discerns circs which in its view give rise to a necessity to make a special law i.e. in relation to a section of the community.
Evincing the intention of the legislation – doesn’t need to be explicit
• The opinion of Parl that it is nec to make a special law need not be explicitly declared, but may be evidenced from the text
( Koowarta v Bjelke-Petersen
• Racial Discrimination Act
HELD:
• Races power didn’t support the legislation because it was a general law applying to everyone instead of a law apply to specific persons; therefore not “special law” for “the people of any race”( Racial Discrim Act rests on external affairs power s51 (xxix)
MURPHY J (dissenting):
• Thought the law was valid under races power – it shouldn’t be read in a narrow way
When the law is of universal value
• Ability to have a special law even when it achieves an objective that has a universal value and benefits community
Members of a race
• Human characteristics with which a person is born
• Proof of descent from ancestors is admissible to prove or contradict an assertion of membership of a race
• Factors that tend to create a sense of identity among members of a race:
o Physical similarities, common history, common religion, common culture
The kind of benefits that laws might properly confer on people of a race
• Benefits which tend to protect or foster their common heritage or their common sense of identity
• The advancement of historic, religious, cultural heritage is within the races power
( Cth v Tasmania (Tasmanian Dam Case)
FACTS:
• World Heritage Properties Conservation Act
• S8: nec as special laws for Aboriginals – where G-G satisfied that Abo sites will be destroyed, s11 applies
• S11: unlawful to carry out certain activities of construction without consent
• So the races power was invoked in these provisions by seeking to protect the site by reference to the fact that they were sites of significance to Aboriginal persons included in the area that was to be flooded in the creation of the dam in the Franklin River area
• Cth argued that this area was of great importance to the Aboriginal people and therefore necessary to invoke the races power
HELD:
• Use of the races power here was valid
• However, Deane J (who agreed with the majority that it was a valid use of the races power) held that s11 amounted to an acquisition of property contrary to s51(xxxi) and therefore joined the minority in holding ss8 and 11 invalid
MAJORITY:
• It is sufficient that the discriminatory benefit is found in the special importance which the people of a race attach to the rights, powers or privileges generally conferred
DEANE J:
• The dual requirement that a declaration can only be made in respect of a site if it is both of outstanding universal value and of particular significance to Abo people means that a law protecting such sites is essentially a law for all Australians, but since they are of particular importance to Aborigines, it is also a special law for those people
MINORITY:
• A law for the preservation of sites of significance to all mankind is not a special law for the people of any one race
• The law can only be special if it has some connexion with particular people, not if it applies to everyone
• Prohibitions in s11 directed to the site generally
• Members of Abo race have no special privileges in relation to a site to which s11 applies
• Ss8 and 11 confer no rights and impose no duties on members of the Abo race
3.) NATIVE TITLE
Deciding whether a law is ‘necessary’ or ‘special’
• To invoke the power, it must be “deemed necessary” that “special laws” be made for “the people of any race”
• The “necessary” element – whether legislation is needed or not – is a decision for Parliament (political decision)
• But the concept of whether the law is special is for the court to decide
o “Special” qualifies law – it does not relate to necessity
• It must be ascertained by its differential operation upon people of a particular race
• Special if it confers a benefit or disadvantage
Special even where benefit is general
• As long as the benefit is of particular significance to people of a particular race
( WA v Cth
• WA challenges the Cth’s response to Mabo which sets up the Native Title Act
• Act provided for determination of future claims to native title and also for validation of extinguishments of native title occurring after Act came into force
HELD:
• Native Title Act upheld under the races power
• Act confers its protection upon NT holders who are members of a particular race
THE ARRIVAL OF A POWER TO DISCRIMINATE AGAINST INDIGENOUS AUSTRALIANS?
• Contentious as to whether the law must be for Aborigines’ benefit as opposed to their detriment
• Tasmanian Dam Case: often seen as supporting Murphy J in Koowarta that it can only be used for their benefit
• Kruger v Cth (Stolen Generations Case): some judges thought it arguable that it only authorises laws for benefit
Leaving the issue again unresolved…
• On whether laws can be enacted for the disadvantage of a race
• Gummow and Hayne JJ: the power could be used to withdraw a statutory benefit granted to Abo people
• Kirby J: can’t enact a law that disadvantages people
• Gaudron J: developed her own approach – the test is not whether it is beneficial but rather, whether the discriminatory enactment is appropriate and adapted to a relevant difference – but might end up with the same result as Kirby J. Although the power is wide enough to authorise laws which operate either to the advantage or disadvantage of people, it is hard to see circs where a law operating to the disadvantage of people would be valid
Where Parliament has the power to make a law it can repeal it
• If Parl has the power to make the Act then it has the power to partially repeal it i.e. a winding back of it must certainly be within its power
Use of the races power for a group within a race
• The races power can be used in a selective way within the people of a particular race i.e. a particular group within a particular race
Laws of manifest abuse
• Manifest abuse of races power = racially intolerant laws
• The character of a law purportedly based on the races power may be a manifest abuse and therefore invalid
• So they are suggesting that the test of a manifest abuse is a restriction on the use of the races power
• So can use power for beneficial and detrimental purposes but there is a qualification
• But the court does not take a distrustful attitude towards Parl’s use of the powers – idea of responsible govt ( so doesn’t try to limit in advance the powers Parl can use in trying to legislate
( Kartinyeri v Cth (Hindmarsh Bridge Case)
ISSUE:
• There was an island (Hindmarsh)
• Wanted to build a bridge to join it to the mainland
• Opposed on Aboriginal heritage grounds since island was part of traditional home of N people
• Cth Heritage Protection Act: gives a power to Minister in respect of significant sites to Aborigines to make declarations for preservation of areas ( Minister asked to exercise this power
• Minister can do this once he has heard evidence to protect the site
• The tribe said secret women’s business was carried out on sites which would be destroyed by the building of the bridge
• Claims investigated (could only be investigated by a female)
• Secret women’s business not to be divulged to any males (but minister was a male so he undertook not to open sealed envelopes) ( set aside because he hadn’t exercised discretion personally
• Process grinds on until Cth puts a stop to it in the wake of a second miscarriage of procedures
• Enacts Hindmarsh Island Bridge Act- acts as a partial repeal of Heritage Act: the Aboriginal women couldn’t oppose the bridge project by excising the area from the operation of the Heritage Act
ISSUE:
• Can a law that discriminates against Aborigines be enacted under the races power?
• The Cth argued that there are no limits to the power so long as the law affixes a consequence based on race i.e. not for the HC to examine the positive or negative impact of the law
HELD:
• The Act was valid 5:1
• If Parl has the power to make the Act then it has the power to partially repeal it i.e. a winding back of it must certainly be within its power
• So they avoid the races power – just saying that if it is used to restrict a law that was already validly enacted, this is valid as well
BRENNAN AND McHUGH JJ:
GAUDRON J:
• She clarifies the above ideas
• 1.) The question of necessity:
o Yes it is parl’s call
o BUT, there has to be material upon which the Parl might see there is a DIFFERENCE to meet the ‘necessary’ requirement ( the power doesn’t authorise the making of laws where there is no difference
• 2.) The law must be reasonably capable of being viewed as appropriate and adapted to this difference
o So it’s not just the differential operation, but there is more to it – effectively a proportionality qualification: is it reasonable for this difference to be acted upon?
o This is how you avoid the manifest abuse of power ( i.e. avoid Parl making laws that are racially discriminatory ( way of containing the power
o So she infuses the ‘necessity’ with the test of proportionality which is for the Court to decide
• It is not possible to treat the races power as limited to laws that benefit Abo Australians if it is not similarly limited with respect to people of other races
• If, prior to the referendum, the section allowed for laws not for benefit, the referendum didn’t alter that position
• The criterion for enacting a law under this power is that it is necessary
• Since the test is whether the law is reasonably adapted and appropriate, the Act is valid under the races power
GUMMOW AND HAYNE JJ:
• Agreed with Gaudron J about the referendum but not about the scope of the section
• No manifest abuse so for Parl to decide if the Act is necessary
• Agree with Brennan and McHugh about the rewinding of statutory rights (i.e. ones already there from statute)
• But it would be different if you’re using the races power to remove or cut back non-statutory rights (i.e. CL) ( suggests that in certain circs the races power may not be available to the Cth to remove rights
• Laws of manifest abuse:
o Manifest abuse of races power = racially intolerant laws
o The character of a law purportedly based on the races power may be a manifest abuse and therefore invalid
o So they are suggesting that the test of a manifest abuse is a restriction on the use of the races power
o So can use power for beneficial and detrimental purposes but there is a qualification
KIRBY J [dissenting]:
• The laws made under the races power can only be for a race’s benefit
• Where there is ambiguity- use interpretation principle to interpret in line with human rights
9.) THE CORPORATIONS POWER A
WHAT ARE WE DISCUSSING?
• Destructive effect of the reserved state powers doctrine on early understandings of s51(xx)
• Fear of s51(xx) as a power with respect to ‘persons’
• What are constitutional corporations?
• What activities can be regulated using s51(xx) – this question is no longer asked (different emphasis now on connection between leg’n and power)
• The denial of the Cth power with respect to ‘incorporation’
( Constitution s51(xx)
• Doesn’t just say corporations, it lists 3 particular kinds (FTF)
• foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth
1.) A “PEOPLE” POWER
OVERTHROWING HUDDART PARKER:
• Corporations power ignored for a long time due to decision
• Had to wait for the case to be overruled by Strickland
Aversion to s51(xx)
• There was an aversion to this section for a very long time because of the decision in the following case
• The power should be construed narrowly
• Their approach reflected the perceived need to protect state powers
( Huddart, Parker & Co v Moorehead (1909)
FACTS:
• Leg’n: Australian Industries Preservation Act – mild form of trade prac reform directed to corporations
• Targeted towards corporate activity
MAJORITY:
• 4:1
• Decided squarely on the issue of reserved state powers
• This could intrude upon area of intra-state trade and commerce
• Reserved state doctrine was prevailing view
• So s51(xx) couldn’t be relied upon because would intrude on area not listed in s51(i) and therefore reserved by the states
HIGGINS J:
• Fourth judge of majority
• He is not an adherent to the reserve state doctrine
• Higgins’ LIST OF HORRIBLES: if you interpret the power too broadly, then the Cth would be able to legislate on anything
o You can use the power to set down restrictions upon people connected to corporations
o Nightmare scenario: any area where corporations are involved, the Cth would be able to use s51(xx) to legislate without limit
o This happens when the Cth is allowed to just generally legislate with respect to corporations, because corporations are persons
ISAACS J [dissenting]:
• Don’t take an artificially restrictive view of the section
• Read the section broadly enough to accommodate the provisions
• The power over corps is exercisable wherever these specific objects are found, irrespective of whether they are engaged in foreign or state commerce
• Takes a wide view but finds 3 particular limitations:
1. It doesn’t deal with every type of corporation – there are only 3 kinds of corporations that are covered and that can be legislated for
2. The power is not a power to regulate ‘incorporation’ – i.e. not a power to create corporations; relates only to existing corporations (‘formed’)
3. Only regulating corporations in their transactions with, or affecting, the public; only about external transactions (business dealings with the wider world) as opposed to internal management issues
• The Horribles is a ridiculous scenario because there are limits on the power
Scope of power not considered again until…
The return to s51(xx) – but with reservations
• The case gave a clear indication that the Cth could enact trade prac legislation by relying chiefly upon s51(xx)
Scope of the corporations power
• None of the judges defined the scope
• Said it depended on the circumstances of the case and the process of characterisation
( Strickland v Rocla Concrete Pipes (Concrete Pipes Case) (1971)
FACTS:
• Challenge to aspects of the TPA
• S35: agreements between competitors restricting competition were examinable, and such provisions included agreements made by s51(xx) corporations
HELD:
• The act was not valid (overall)
• But, the court held that s51(xx) was available to support a law of this kind
BARWICK CJ:
• Looks at context of the previous decision – concern with reserve state powers doctrine no longer relevant
• Sweeps away Huddart Parker as pre-Engineers decision, led to incorrect decision regarding this power
• Clearly deals with corporations so has relevance to the power
• Scope of the corporations power:
o Doesn’t feel the need to spell out the limit of the power
o Says this legislation deals with the trading activities of a trading corporation, therefore unquestionably valid
o Leaves open whether the power can regulate other activities
• The characterisation question must be answered in every case
o Here, the making of an agreement in the course of trade is truly a trading activity
MENZIES J:
• Concern about scope of power because it is related to a corporate person:
o Corporations do lots of activities – so this power presents a particularly wide prospect
o Doesn’t give an answer as to the breadth of the section – have to test it out with each case
o But this is what is special about the power
On severability:
• If there is an offending provision, then the court will knock it out but not willing to perform surgery, so if the remaining leg’n doesn’t make sense, then the whole thing is invalid
• But severability is the first point of call
2.) TRADING AND FINANCIAL CORPORATIONS
WHAT IS A CORPORATION FOR THE PURPOSES OF S51(xx)?
• i.e. what types of corporations does the power cover?
ISAACS J:
• The ones listed in the leg’n
But how do you identify them?
Purposes test
• Focuses on the purposes for which the entity exists to determine if it is a constitutional corporation (i.e. one of the 3 types of corporation listed)
( R v Trade Practices Tribunal; Ex Parte St George County Council (1974)
• Local council – purposes different to its activities
ISSUE:
• Whether the council (clearly not foreign) is a trading or financial corporation – do you assess this by its initial purposes or its current activities?
HELD – MAJORITY:
• Used purposes test
• It was created for purposes other than financial or trading (to provide services to residents in the area), so therefore the council was not a constitutional corporation i.e. not a trading corporation
MINORITY:
• Activities test – is it doing enough trading to merit calling it a trading corporation?
• Trading corp due to its substantial trading
Activities test
• Focuses on the activities for which the entity exists to determine if it is a constitutional corporation (i.e. one of the 3 types of corporation listed)
• This case settles the activities test over the purposes test
The activities need to form a substantial part of the activities of the corporation
• Not every corp engaged in trading is a trading corporation
• Trading activities cannot be merely incidental, but need to be at least substantial part of the corporation’s activities
• Trade cannot be incidental e.g. a corporate structure behind a church with minimal trade
Trading activities – not really clear about whether trade needs to be predominant or merely substantial
• Barwick CJ/Murphy J: applied activities test based on trading activity only needing to be substantial part of the corp’s business
• Murphy J: they only need be not insubstantial
• Mason/Jacobs JJ: gave obiter support to this approach but based decision on fact that trading activity was the principal activity
Irrelevance of the purpose for which a corporation trades
• The purposes for which you enter into trade are not relevant
• Even if you trade but not for profit, this is still trading
( R v Federal Court of Australia; Ex parte WA National Football League (Adamson’s Case) (1979)
FACTS:
• Perth Football Club and SA League
• Adamson (player) trying to get out of deal with first to go and play in second
• First trying to stop him ( so this is a restraint of trade case
• Adamson seeks a remedy against the clause in his contract using TPA
ISSUE:
• Are the 2 entities trading corporations?
HELD – MAJORITY:
• Yes, by applying 4:3 the activities test
BARWICK CJ, MASON, MURPHY JACOBS JJ:
• Corps engaged in league football were trading corps because of substantial trading activities
MASON J:
• Ultimately goes to the accounts of the corporation – sport is promoted as a means of attaining financial returns
• So trading constitutes their principal activity
• Trade is so extensive that it constitutes the primary activity – on very substantial scale
MINORITY:
• Support continuation of the purposes test
STEPHEN J:
• Doesn’t accept that the corporations are trading corporations
• The corps do what they do to promote football ( so purpose for which the clubs were formed was not that of engaging in trade
• The trading in which it participates is incidental to some principal non-trading activity
Financial corporations characteristics
• Does not refer to solvency
• Obvious: activity of commercial dealing in finance
• Also: provision of management/advisory services in relation to financial matters
• Dealing in finance
• Often characterised by obligation on each side to pay back money
( Re Ku-ring-gai Xo-Operative Building Society (No 12)
• Held that co-op building societies providing finance for members were financial corps
The legislative power is not confined to trading activities
( Cth v Tasmania (Tasmanian Dam Case) (1983)
FACTS:
• Corporation: Hydro Electric Commission of Tasmania – the entity that wants to dam the river
• Govt-controlled corporation
• Aim to generate electricity to be sold to consumers
ISSUE:
• It has a corporate status (it is incorporated) but is it a trading corporation?
HELD:
• Found to be a trading corporation
MASON J:
• Raises 7 points:
1. R v Trade Prac Tribunal no longer correct
2. The connection of a corp with a state govt does not take it outside the section: St George County Council
3. Minister’s power to give a direction does not make the Commission an agent of the Crown
4. Trading features are not prominent activity – operations largely conducted in public interest
5. But considerations in (4) don’t preclude it from being trading corp
6. Trading corp because sells electrical power in bulk and by retail
7. The legislative power is not confined to trading activities
• Trade need merely be substantial
• 6: Agreed facts show the Commission sells electric power in bulk – this activity itself designates that the Commission is a trading corporation
MINORITY – GIBBS J:
• The Commission is not a trading corporation; its activities include trading on a substantial scale but also does other activities and has function of vital importance to the state (so he is still essentially looking at the purpose of the corporation)
Characterising financial corporations with the activities test
• Corp is financial corp if it engages in financial activities
Qualification on the activities test – only needs to be a substantial part of activities
• Trading/financial activities need not be predominant activities of the corporation
• Need only form substantial proportion of total activity
Where trading activities take place to carry out some other undertaking
• Trading corp whose trading activities take place so that it may carry on some other primary undertaking may nevertheless be a trading corp
Purposes test is not entirely irrelevant
• Majority: for businesses that have not begun activity
• Minority: as something else to consider
( State Superannuation Board of Victoria v Trade Practices Commission (1982)
FACTS:
• Managed and administered a super fund providing pensions for public servants
• Board required to furnish info to Commission
• Commission alleged that loans may have breached TPA
MASON, MURPHY AND DEANE JJ (MAJORITY):
• Two classes of corps are not mutually exclusive – corp can be both
• Finance company (as here) is obvious example of financial corp because it deals in finance for commercial purposes
• Financial business here is very substantial and forms significant part of its overall activities
• This majority did not entirely exclude the purposes test:
o Might be decisive for a corporation which has not begun or has barely begun to carry on business
GIBBS CJ AND WILSON J:
• Dissented on the substantial activity test- financial corp is characterised by its predominant financial activities
• So did not find that this test was satisfied here
• Also did not abandon the purposes test:
o Thought it was not irrelevant
When the activities test cannot be applied
• Absent activities indicia, character of corp must be found elsewhere
• Turn to purpose test by looking at the company’s binding docs
• These will never be irrelevant, but far more relevant now
• Note since no articles of association anymore, this would probably be decided differently if it was reconsidered
( Fencott v Muller
FACTS:
• Shelf company – just a corporate structure so haven’t done any activities
• Formed to facilitate conveyancing transaction
HELD – MAJORITY:
• Majority, who had previously favoured activities test, applied purposes test, arguing that without any current trading activities, the character of the corp should be determined by the purposes for which it was created ( look at the company’s constitution (basically applying purpose test)
• Constitution will never be irrelevant but when no activities, use the purpose test ( look to bounding documents of the corporation
GIBBS J:
• Not enough just to look at the constitution; may be misleading
• Can’t just use the purpose test when the activities test runs out
• The whole of the evidence as to the intended operations of the corp is relevant
• This is not a company which can be regulated using s51(xx) – at no time during its existence has Oakland been intended to engage in trade
( Quickendin v O’Conner (1999) FCA 1257
ISSUE:
• Questioned whether a university was a trading corporation
HELD:
• Has lots of trading activity – it is a trading corporation
THE RESULT OF THE ABOVE CASES – WHAT CORPORATIONS ARE COVERED?
• Any corporations that engage in trading or financial activities to a substantial degree
• Doesn’t need to be predominant activity but must be more than incidental
3.) THE ISSUE OF INCORPORATION – EXISTING COMPANIES ONLY
Commonwealth trying to have uniformity across the states…
Corp must satisfy 2 conditions
1. Must be formed within the limits of the Cth and it must be a trading/financial company
2. Or must be a foreign corp
Crucial deficiency of Cth power
• The Cth cannot regulate for incorporation
• Because of the words, “formed within the limits of the Commonwealth”
• This sentence restricts the classes of corps which the Cth can legislate for
• Must be corps which have undergone or shall undergo formation
• So can’t legislate over incorporation
( The Incorporation Case (1990)
• The states objected because the Act also claimed to regulate the incorporation of companies (it was a source of revenue to state govts)
HELD:
• 6:1 – the Cth cannot regulate for incorporation
• Look to the words of the provision:
o Not simply a geographical distinction but a temporal one (i.e. already formed)
o “With respect to” (in s51(xx)): this isn’t slack enough to allow the Cth to regulate incorporation
• Draw on the Convention debates:
o Originalism – nothing to show the section was intended to regulate incorporation
o Concerned with existing corporations
• Focus on activities:
o Since jurisprudence has developed with focus on activities, to regulate incorporation where activities may be vague or may later alter, presents problems
o Haven’t got activities to work out which companies you can regulate for the incorporation of
DEANE J [dissenting]:
• There is no temporal dimension to “formed”; just used as a distinction from “foreign”
• The plenary legislative power extends as a matter of mere language to laws dealing with both Incorp and liquidation of a company
THE OUTCOME:
• Any Cth power to legislate for corporations law was denied
• Instead, Cth driven to rely on co-operative arrangements with States
Referral of state powers
• The states can specify an area of their own legislative power and give it to the Cth
• This is what came to pass to allow for uniform legislation
• The states didn’t want the Cth to use referred powers to enlarge its legislation over IR
( Corporations Act 2001
10.) THE CORPORATIONS POWER B
1.) POWER WITH RESPECT TO TRADING ACTIVITIES – WHAT ASPECTS OR ACTIVITIES?
• What aspects or activities can be regulated by s51(xx)?
Regulating conduct of people taking part in corporate activities
• Where the activities of a s51(xx) corp were validly regulated, the conduct of individual persons taking part in those activities e.g. co directors could also be regulated
( R v Australian Industrial Court
Discussing how far the corporations power might extend but not directly dealing with the regulation of a corporation’s activities…
• The undecided question is between the narrow view of s51(xx) (requiring some connection with the trading activities of a trading corp) or the broad view (requiring no such connection)
Summary of the varying judgments:
• Mason, Murphy and Aickin JJ: the power is not confined to any nexus with “trading activities”
• Gibbs CJ and Wilson J: retained such a nexus
• Stephen J: refused to comment on the general scope of s51(xx)
• Brennan J: also refused to comment himself on the issue, but his approach seemed more consistent with a broader view of the power; i.e. a law authorised by s51(xx) is one that discriminates between corporations and other legal persons, in the sense that corporate involvement is the discrim by which the sphere of operation of the law is identified
• case established that, where the activities of a s 51(xx) corporation were validly regulated, the conduct of individual persons taking part in those activities, such as company directors, could incidentally be regulated as well
Legislative purpose of protection rather than regulation – as far as has been decided on the extent of the scope of s51(xx)
• This was seen by judges believing in the broader view as a valid exercise of s51(xx)
• So the power extends to the regulation and the protection of the trading activities of trading corporations
( Actors and Announcers Equity Association v Fontana Films Pty Ltd
FACTS:
• Issue: whether s45D of the TPA – which protected a corp from a “secondary boycott” was valid
HELD:
• This was a valid law with respect to s51(xx) corporations
• The legislative purpose was the protection of a corporation rather than regulation
GIBBS CJ:
• Regulating conduct of others, rather than the activities of the corporation:
o Laws that relate to corporations’ trading and financial activities will be within the power
o Here, trading corp activities are not regulated; rather, regulates conduct of others
o But the conduct to which the law is directed is conduct designed to cause substantial loss or damage to the business of a trading corp formed within the limits of the Cth
o A law may be one with respect to a trading corporation although it casts obligations on a person other than a trading corp
• But overall, as can be seen, some sort of nexus is required
• Regulating conduct of people in order to thereby control corporations (e.g. restricting what cars people can supply to the market to control a business)( try to get it under trade and commerce (‘supply’) if not, use corporations power
STEPHEN J:
• Made no attempt to choose between the broad and narrow view – so doesn’t answer the question about requiring a connection
• Instead turned to characterisation of the provision – undertook major restatement of the approach:
o Provision comprised of 3 different elements
o Its true character can only be conveyed by a description which picks up each of the elements
o So searching for a single character is often fruitless
o The fact that only some elements fall within one or more of the grants of power in the Cn will not be fatal to its validity ( so long as the remaining elements (which don’t fall into grant of power) are not so significant, then however else it may be described, the law will be valid
o It will be enough that the law answers the description “with respect to” one given subject matter in s51
o S45D possesses the character of a law with respect to trading corporations, whatever other characters it may also possess
MASON J:
• S51(xx) is not limited to the trading activities of a trading corporation
o The subject of the power is corps: not activities of the corp
o The power should be construed as a plenary (absolute) power with respect to the subjects mentioned free from unexpressed qualifications
MURPHY J:
• Took an even broader approach:
o The power is plenary – Parl can make laws covering all internal and external relations of foreign, trading and financial corporations
o But the power is not confined to laws dealing with trading or financial operations/activities
o It extends to laws dealing with industrial relations so Parl may legislate directly about the wages and conditions of employees and other industrial matters
o The power can be used to protect BOTH persons trading with corps, but also corps trading with others
BRENNAN J:
• The command of s45D is expressed differently to all persons
• Such discrimination as the law effects flows from the conferring of protection upon corporations in the carrying on of their business
• The relevant question is whether a law which gives the businesses of corporations the protection specified in s45D is within the ambit of power
• A law which affects corporations in the conduct of their trading activities exhibits the same nexus with those corporations whether it regulates or protects trading activities
• Where subject matter affected by law is and is not a trading activity:
o The subject matter which the provision selects as the object of its protection is “the business” of the corp
o Where trading activity, this gives clear pointer to character of the law
o But if law affects also more peripheral matters, it does not nec lose its character
• On discrimination:
o S45D discriminates between trading corps and the public (not just the act of boycotting.. must have effect of imposing losses on trading/fin corporation..)
o It is a law with respect to trading corps within the power conferred upon the Parl by s51(xx)
Extending the scope but still giving no conclusive answer
• Extends the power to laws that regulate a trading corp with regard to activities undertaken for the purpose of its trading activities
• Whether power extended to Higgins’ list of horribles remained undecided, but 3 judges said it did
( Cth v Tasmania (Tasmanian Dam Case)
FACTS:
• Cth sought to rely on corps power to support ss7 and 10 of World Heritage Properties Conservation Act
• S7: where G-G satisfied, s10 applies
• S10: said corporations can’t do certain things without permission
• Subs (2) and (3): prohibited a wide range of activities if done by any corp, while (4) prohibited same activities if done by trading corp for purposes of its trading activities
• Hydro-Electric Commission planned to build a dam to generate electricity; purpose: to sell it
• So if Corp was trading corp, then building of dam was activity for purpose of trading activities
HELD:
• 5 judges held s10(4) was valid
• 3 held all subsections in s10 were valid
• Brennan J: was loath to decide the issue i.e. whether the permissible regulation of trading corps is limited by the need for a nexus with their trading activities
MASON J:
• All provisions valid (even those not referring to trading activities)
• Lists his objections to the narrow approach
• The object of s10 is to protect the Tasmanian Wilderness area
• The Parl has exercised the corporations power to achieve this end and not for some overriding purpose having a connection with trading activities
• But it is enough that the law has a real relationship with the subjects of the power
• A law which prohibits trading and foreign corps from doing an act is a law about trading corps
• Therefore it is impossible to say the law has no substantial connection with trading and foreign corps
GIBBS CJ:
• Held s10(4) was valid but did not accept that the Commission was a trading corporation
• The other provisions don’t have a substantial connection to the topic of trading corporations
• But s10(4): applies where the forbidden acts are done by company for trading activities – so has sufficient connexion ( valid
2.) A GENERAL TEST?
The power as plenary – wider view
• To the extent that all judges agreed the power is plenary, it is arguable that the wider view of s51(xx) prevailed
Change of focus in the test to be asked
• Judgments did not focus on the wider or narrower answer to “what aspects or activities…?”
• Focused on whether there was a sufficient connection with the trading or financial corporations that general principles of characterisation require
• The critical question: what degree of relevance or connection to “constitutional corporations” is necessary for characterisation as a law “with respect to” those corporations?
Views:
• Dawson J: most narrow – for law to be valid with respect to corps, the fact that it is a trading/financial corp should be significant in the way in which the law relates to it
• McHugh J: stressed the plenary scope, but the necessary standard of relevance for the purposes of characterisation was that of “significance” ( a law enacted under s51(xx) must be significant for the activities, functions, relationships or business of the corporation; a law which merely refers to or operates upon those aspects or elements of corporate identity will not be sufficient
( Re Dingjan; Ex parte Wagner
FACTS:
• Mr and Mrs Wagner supplied wood to a pulping woodchip mill operated by Tasmanian Pulp & Forest Holdings Limited (it was common ground that the company was a trading corporation).
• Mr and Mrs Wagner in turn engaged various sub-contractors to satisfy their obligations to the company.
• After disputes arose between the Wagners and various sub-contractors, the Transport Workers Union of Australia applied to the Commission under ss 127A and 127B of the Industrial Relations Act1988 (Cth) for review and variation of the contracts between the Wagners and the sub-contractors.
• Those sections give the Commission power to review and vary (or set aside) a contract on the grounds that it is unfair, harsh or against the public interest, but apply only in relation to contracts to which a constitutional corporation is a party or to a contract which relates to the business of a constitutional corporation.
• The case concerned the validity of the second limb.
HELD:
• 4:3 – the provision could not be supported under s51(xx) (NB it’s a contract b/w 2 natural persons..)
• Both majority and minority spoke of the power as plenary: too ordinarily worded and not enough parl intent to read it down (often need to restrict statute to bring within scope of Cn powers)
McHUGH J:
• Plenary grant of power
• As long as the law in question can be characterised as a law with respect to trading, etc, the Parl may regulate
• But s51(xx) doesn’t authorise any law that operates on features of a corporation ( it must be a law “with respect to” a corp of the kind in s51(xx) i.e. have a relevance or connection to a s51(xx) corporation
• To determine this, 2 steps:
o Character of law must be determined
o A judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s51
▪ Law needs to have significance to the corp/its activities/functions/etc ( then no more is needed to bring the law within s51(xx)
▪ Not enough that law merely refers to or operates upon the existence of a corp function/relationship (unless it has significance for the corp – which usually requires it to have some benefit or detriment on the corp or its people)
• So the validity of the provision depends on whether it is significant to a corp – no – therefore not authorised by s51(xx)
BRENNAN J:
• Adhered to his earlier test of discriminatory operation i.e. law valid if it selects the involvement of trading or financial corps as the discrem that determines its ambit of operations ( assimilated this test to that of significance
• Corporations must be affected in some respect sufficiently material to give significance to their discriminatory treatment
DISSENTING JUDGMENTS:
GAUDRON J:
• The provision was valid – took a wider view of the constitutional power ( the power is plenary
• Focused on the same elements of the corp as McHugh but unlike him, thought it was sufficient that a law be expressed to operate on or by reference to those modes of corp presence
• So no superadded requirement of “significant” or “substantial” connection
• The operation of the provision on persons who are in a business relationship with a constitutional corporation in respect of matters that are the subject of their particular relationship, is within the power conferred by s51(xx)
MASON J:
• Plenary power
• Don’t limit it to the regulation of functions, activities and relationships of constitutional corps which can be described as business functions, activities and relationships
• Don’t characterise law by reference to direct legal operation
• A law should be characterised in a way that secures validity whenever it exhibits in its practical operation a substantial or sufficient connection with the relevant head of power
• Here, enough that the contract “relates to” the business ops of the corp in a sufficient practical sense
( Work Choices
• Endorsement of Gaudron J’s opinion in Dingjan – business relationships and the persons behind them
• Distinctive character vs. object of command
• Avoidance of “awkward results”
• Attacking the “implicit assertion” of federal balance
Vindication of the “wider” view
• The Court’s decision rested simply on adoption of the reasoning of Gaudron J in Re Dingjan
Distinctive character test
Rejected this test – see below
( NSW v Cth (WorkChoices Case) (2006)
HELD:
• held by a 5:2 majority (Kirby and Callinan JJ dissenting) that the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), substantially reshaping the Workplace Relations Act 1996 (Cth), was valid.
• The result entailed a clear rejection of the “narrow” view of s 51(xx), and to that extent appeared to vindicate the “wide” alternative view.
• However, the joint judgment did little to clarify the principles involved.
• Appllying Gaudron’s approach:
o First, the business activities of corporations formed within Australia signify whether they are trading or financial corporations, and the main purpose of the power to legislate with respect to foreign corporations must be directed to their business activities in Australia.
o Second, it follows that the power conferred by s 51(xx) extends “at the very least” to the business functions and activities of constitutional corporations and to their business relationships.
o Third, the power “also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships”.
• On the extension to industrial relations:
o the legislative power conferred by s 51(xx) “extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations”
• rejecting the “distinctive character test”:
o distinctive character test: “the fact that the corporation is a foreign, trading or financial corporation should be significant in the way in which the law relates to it” if the law is to be valid
o object of command test: that a constitutional corporation is “an ‘object of command’ [of a law], permitting or prohibiting a trading or financial corporation from engaging in conduct or forming relationships
o did not accept Brennan’s assimilation of the discriminatory test to that of significance
o Instead, it proposed a new interpretation, treating the test as one of “discriminatory operation” – that is, as “intended to apply chiefly, perhaps only” to cases where the law applies on its face “to constitutional corporations and to other persons indifferently”, but its practical operation has a particular impact on its corporate subjects.
• Declining to impose a limit:
o The practical effect of the explanation adopted by the plaintiffs was that “distinctive character” and “discriminatory operation” became, in effect, alternative versions of the limit which they sought to impose on s 51(xx) – and, however it was expressed, the majority judges declined to impose any such limit.
o The argument that the distinctive character test has been, or should be, adopted takes what has been said about what is distinctive of a trading corporation and treats that as indicating that the adjectives “foreign”, “trading”, and “financial” are the considerations on which the power turns.
o Treating the character of the corporations mentioned in s 51(xx) (as foreign, trading or financial) as the consideration on which the power turns produces awkward results.
o In short, the joint judgment refused to treat the “distinctive character” test as a mere explanation or elaboration of what is required to establish a “sufficient connection” with s 51(xx), and treated it instead as “[46] an additional filter” interposed cumulatively upon the process of ascertaining “sufficient connection”.
• The plaintiff’s appeal to federal balance:
o What was discarded in the Engineers’ Case was an approach to constitutional construction that started in a view of the place to be accorded to the States formed independently of the text of the Constitution. The Engineers’ Case did not establish that no implications are to be drawn from the Constitution.
o Appeals here made to balance between fed and state power but supremacy given to Cth
General conclusions
o It is critically important, however, to recognise that both provisions relate to existing or proposed workplace agreements. By definition a workplace agreement is an agreement to which an employer, as defined in s 6(1), is a party (or in the case of a multiple-business agreement, one or more such employers is a party). For present purposes, then, ss 365 and 366 have operation in relation to existing or proposed workplace agreements with constitutional corporations.
o A law which forbids any person from making a misrepresentation in relation to an existing or proposed workplace agreement, that a particular term does not contain prohibited content, is connected with the subject-matter of s 51(xx) - constitutional corporations. It is connected in a way that is not “insubstantial, tenuous or distant”
o Section 365 prevents any person from seeking the inclusion of such a term; s 366 is evidently intended to prevent reckless misrepresentations about the effect of existing or proposed agreements. In their operation with respect to those employers which are constitutional corporations, both ss 365 and 366 are supported by s 51(xx).
o The chief contention was that s 755(1)(a)(i) should be held to be invalid on the ground that, like the law considered in Re Dingjan, it “does no more than make the activity of a s 51(xx) corporation the condition for regulating the conduct of an outsider”. To describe the operation of s 755(1)(a)(i) in this way gives insufficient significance to the fact that the particular operation of the new Act that is in question is the regulation of a right of entry to premises, and that the premises to which the right of entry is controlled are premises “occupied or otherwise controlled by” a constitutional corporation. This is a sufficient connection with s 51(xx), whether or not the entry that is thus regulated concerns a business being conducted on the premises by that corporation. The connection lies in the controlling of entry to a constitutional corporation’s premises. The law controlling entry is a law with respect to constitutional corporations.
Interaction of powers – relationship between s51(xx) and s51(xxxv)
• primary rule that one head of power cannot be used to limit the scope of another; and a secondary rule (by way of exception) that restrictions expressed in one head of power may operate to restrict the scope of other heads of power as well.
• Here, issues governed by primary rule since the attributes forming the compound conception in s 51(xxxv) (“conciliation and arbitration”, “extending beyond the limits of any one State”) were not expressed as limitations on power in a manner analogous to those contained in s 51(xiii)
• Why should the heads of power, particularly s 51(xx), which are relied upon by the Commonwealth as supporting a law such as Pt 7, be construed as not doing so for the reason that s 51(xxxv) identifies particular means for the prevention and settlement of certain industrial disputes? The other heads of power should not be so construed.
• Unlikely framers would have intended to deal with such disputes in 1 para: Section 51(xxxv) speaks of the use of particular means to prevent and settle industrial disputes of a certain geographical character. Why, as Victoria particularly would have it, should the text of the Constitution be so read as to pre-empt the exercise of other heads of legislative power to deal with industrial disputations to which s 51(xxxv) could not apply?
( Work Choices (2006) and Characterisation
• S51(xx) – T, F, F corps
• S51(xxxv) – IR power: dispute resolution, interstate-ness
• What is the relationship between these 2 powers?
• Each grant of power is to be read on ordinary, own terms
ISSUE:
• Can Cth bypass this power and achieve a thing using Corp power (we know it can)
HELD:
Qualifying principle from Dixon J in Schmidt:
• Schmidt (p2): qualification to the general rule; although heads of power interpreted on their own terms, where one of them comes with a restriction, qualification or safeguard, then that will apply outside the head of power itself to others (so doesn’t just talk about prohibitions, but refers to safeguards and guarantees)
“It is hardly necessary to say that when you have, as you do in par (xxxi), an express power,
subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a
particular effect, it is in accordance with the soundest principles of interpretation to treat that as
inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification.”
Demonstrated in following case:
• Bourke of NSW: deals with the banking head of power – can make laws on banking other than state banking ( this is a restriction on the power (a positive prohibition) – so says this restriction extends to all other legislative powers so Cth can’t use banking power or any other power to legislate on state banking either – accepted by Kirby J
• Majority here uses the language “prohibition” (rather than restriction/qualification) – drawing on authority of Gleeson J in Pacific Coal which is stricter than Schmidt (bottom p4) ( open to attack because very specific narrowing
• It is not permissible to do indirectly what is prohibited directly
• But para (xxxv) is to be read as a whole and does not contain any element that is a positive prohibition or restriction
But does s51(xxxv) contain safeguards not to be undermined by use of other powers?
• Majority view: can’t draw a negative implication to stunt Cth power
o Reasoning not that strong
KIRBY J:
• Kirby J (p6) – does a good job of attacking majority view:
o What about powers subject to a guarantee?
o P8: The power in s51(xxxv) is limited and the safeguards are dispute res and interstate-ness
o So the power is granted in a qualified way and the reason is to honour a guarantee that the Cth was to have limited powers in relation to IR
o So it is safeguards, restrictions and guarantees
Not demonstrated in respect of s51(xxxv) of Pidoto v Victoria:
• Find no limit to the defence power or the IR power
• About IR power and s51(vi)
• This is WWII case when s51(vi) was at its largest
• So analogy is far from convincing ( Kirby J: not a persuasive precedent because power in question was purposive and fully expanded
The connection need simply be sufficient – but while “extreme examples or distorting possibilities” may be irrelevant, should the degree of connection vary in light of the impact upon other grants of power?
• S51(xxxv) is not going to extend any prohibition on s51(xx)
• Reject idea of distorting or overly-dramatic examples
Generally powers should be construed independently.
11.) DEFENCE POWER
ISSUES IN THIS TOPIC:
1. DISTINCTIVE nature of s51(vi)
2. Scope of the power, relationship to other features of the court
3. Political judgment and judicial review – division of responsibility
4. Cth power on war on terror
1.) THE NATURE OF THE DEFENCE POWER
S51(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
• “The defence power waxes and wanes”
• the power is much broader at times of war, and more limited in times of peace
The nature of the power – principles from Andrews v Howell and Stenhouse v Coleman:
• Elasticity:
o The meaning of the power does not change but its application depends on facts, so as the facts change the operation as a power enabling the legislature to make a law changes
o “fixed concept with changing content”
o The extent of the operation of the power will depend on the nature and dimensions of the conflict
o complicates what is proportionate because what is proportionate to giving effect to the purpose of defence depends a lot on what the external circs are – so this will change
• Purpose:
o Purpose power: authorises the legislature to legislate not on a specific subject-matter, but for a specified purpose – so a law is justified because it is conducive to a defence purpose
o purposive power and there is not a treaty to look to – so court determines proportionality of the law by considering what its effect is on defence.
o Purpose must be gathered by looking to the instrument in question, the facts to which it applies and the circs which it calls forth
o If it strikes down a law under this provision, it’s quite an indictment.
• Judicial notice of facts:
o The conditions that determine the scope of the power as it waxes and wanes are factual conditions
o a lot of facts to be considered will be general knowledge, so in characterising the power the court can take judicial notice of obvious things i.e. don’t require evidentiary proof
o e.g. “we are at war” – significance of this is that these things don’t need to be proved; court is understood as appreciating the context in which the law has been made
• Illusiveness of other facts:
o For other facts, there are difficulties of inference and proof
o difficult factual questions – things Executive and Legislature knows but can’t reveal due to issues of security to the public. Court often needs to know to work out the proportionality of the legislation. Important to defending the law as a proportionate response to the security threat. Cold War situations much harder than hot war because lots of things the Parl doesn’t want us to know.
o Accordingly, courts likely to accord substantial deference to legislative and exec judgment – gives very wide latitude to govt policy
• The court’s role:
o very tricky situation because often a lot they don’t know
o but ultimately, the question of whether a particular law is authorised by the defence power is for the court to decide – The Parl cannot be the judge of its own constitutional power
o Note that the separation of powers still means that neither the legislature or executive can pre-empt judicial function by purporting to determine the constitutional question in advance.
( Stenhouse v Coleman
• Court upheld regulations conferring on the Minster a wide discretionary power to make orders controlling the sale of “essential articles”, provided the orders had a sufficient connection with defence
Test of characterisation is one of proportionality
(Brennan J in dissent, and 2 majority judges in agreement):
• So don’t ask if the law is sufficiently connected to a head of power
• Rather, must ask whether the challenged law can be seen to be reasonably approp and adapted to achieving a defence purpose
• It is not enough that in some general sense the law is directed to the purpose of defence but that the means used are proportionate or adapted to that purpose.
Proportionality varies between war and peace
• What is nec and appropriate for the defence of the Cth in times of war is diff from that in times of peace
( Polyukevich
FACTS:
• The War Crimes Act was amended to allow the prosecution and trial of Australian residents alleged to have committed war crimes in Europe in WWII.
• P was first person in Aus to be tried under this Act
• Permitted prosecution and trial in Aus of residents who had committed war crimes in Europe during WWII
HIGH COURT:
• Held that the Act was within Cth legislative power with respect to external affairs – therefore didn’t need to consider the defence power
BRENNAN J [dissenting]:
• The defence power issue:
o it was argued that the 1988 amendment might be conducive to future defence needs – by pursuing allegations of past war crimes now, Australia might help to establish strong international standards against war time atrocities which might protect Australian citizens fighting in future wars.
o Rejected this argument
o War Crimes Act not supported by the defence power
o Are the measures appropriate and adapted to defence purposes (also known as reasonable proportionality)?
o This will be different in times of peace vs. war. This is because proportionality is determined by reference to circumstances.
• Thought law was invalid (tho only by him) under defence power as an enactment that was not proportionate
• Respect for laws and customs of wars cannot ve secured by a law having such an oppressive and discriminatory operation
2.) TIMES OF WAR
An extremely broad view of the power – Isaacs J:
• Gives extremely broad view of power
• Isaacs J in Farey v Burvett envisaged a separate executive power to respond to wartime emergencies outside of s51(vi). He suggested s61 includes the royal war prerogative. The express incidental power (s51(xxxix)) was held to operate on s61 to ensure the full power and duty of taking every measure of defence in the circumstances. These ideas have never been tested.
• So beyond s51(vi) he thinks there is another law making power (“the other power”)
• Isaacs J in Farey - the virtually unlimited scope of the defence power during total war ( becomes a paramount source of power overriding all constitutional restraints on the exercise of power e.g. s92, displaces normal distribution between State and Cth powers. If the measure questioned may even incidentally aid the effectuation of the power of defence, the court must hold its hand and leave the rest to the judgment of the legislature and executive.
• This dicta has not met later judicial acceptance
• The power isn’t really as expansive as he makes out
• Later decisions have held that laws under s51(vi) ARE subject to constitutional guarantees like s51(xxxi) and s92: Minister for the Army v Dalziel.
• BUT much of what Isaacs J said is almost acceptable. The scope of s51(vi) during total war is VERY wide.
( Farey v Burvett:
COMMENTARY:
Brian Gilligan, Politics of the HC:
• Talking about WWII, the war on Australia’s doorstep, the need to step up and contribute to the battle
• Australia became a “nation stripped for war”: business interests, trade unions controlled by the Govt – this was made possible because the HC allowed for an enormous expansion in defence power during period of “grave emergency”
• Further, talks about how usually, a federal system is predisposed to having weak national govt:
o Split powers between 2 levels, then further split into 3 branches
o But in wartime, suspended fragmented powers, became unitary govt and presiding over this transformation of govt was the Aus HC
• Treatment of s51:
o S51(vi) has been used to allow regulations in the broadest terms with the minister having almost absolute discretion (regulations for controlling prices, the workforce and the production and distribution of goods).
o Most of the regulations allowed by the court were only very indirectly linked to defence (eg a national marketing scheme for apples and pears in Andrews v Howell).
o The judges were acutely aware of the seriousness of the national crisis as opposed to technical issues
• Criticism:
o Starke J accused the Court of accepting arguments that in war time permitted the Cth to have complete power to legislate on the social and economic conditions of Australia – reminded that we have a separation of powers
• But there were limits to the power:
o Disallowed attempts to regulate working conditions of state public servants who did things that had nothing to do with the war effort: R v Cth Court of Conciliation
• Overall, the defence cases demonstrate the broad discretion that judges have for greatly expand the power when they are convinced that circs warrant this
The sweep of Cth regulatory control during WWII under National Security Act 1939
• No aspect of everyday life was left untouched by regulations through the defence power because all part of ensuring efficiency in order to pour money into the military machine
EXAMPLE: USE OF THE DEFENCE POWER WITH REGARD TO WOMEN IN WAR TIME
• Similar pattern as above demonstrated with regard to this subject – attempts to ensure they had reasonable working conditions, and fair wages in “vital industries” that were defence-related so employment of women in these industries was within s51(vi) (therefore can legislate under this head of power)
• Other industries were also related to defence as women filled the gaps left by men departing for war.
• “Fairness” required that female wages must be at least 60% of men’s
Lynn Beaton, The Importance of Women’s Paid Labour: Women at Work in WWII
• At first there was reluctance to let women into employment at all – but country’s resources required women to take over men’s jobs.
• Established the WEB (Women’s employment board) to rule on cases pertaining to wages and conditions of women.
• It was met with huge opposition and many employers refused to pay women the rates awarded by the WEB.
• The Labour govt tried to defend the WEB as it was important for the war effort – “essential part of the country’s war mobilisation” by introducing the Women’s Employment Bill bypassing the need for the National Security Regulations
Demonstrating the court’s attitude to these issues – very lenient
• This case typifies the court’s attitude to these questions: the leg’n deals with a problem that has arisen from the war – to promote successful pros of the war
• The HC was prepared at this time to allow the Cth extremely broad powers
( Victorian Chamber of Manufactures v Cth (Women’s Employment Case) (1943)
FACTS:
• Women’s Employment Act: to improve women’s rights in the workplace – encourage them to take up men’s places – purpose to ensure industry is producing what is required especially with absence of men – so attempt to regulate conditions of women in industry
• Issue: was the Women’s Employment Act valid – sufficient connection to the defence power?
HELD:
• Latham CJ:
o legislation doesn’t compel women to work, provides means of encouraging them to work
o The war has withdrawn large numbers of men from the workforce into fighting. In order to supply the needs of the fighting services AND the activities of the civil population necessary for supplying services and community – men are no longer available so need resort to services of women.
o Therefore the Act and Regulations may reasonably be considered to be necessary to promote the prosecution of the war. It is legislation to deal with a war created problem = s51(vi).
o The method of dealing with the problem is up to the legislature and not the courts.
• Williams J:
o Act is valid but it should have been clearer that the employment of women was only a temporary measure limited to wartime.
• Starke J (dissenting):
o Insisted on seeing the issue as one of subject matter – i.e. the test is “to what subject matter in substance does the law relate?”
o The regulations are not with respect to defence but rather for purpose of regulating and controlling the employment of all women regardless of whether the work relates to defence.
Starke J’s opposition to the majority’s approach
• This was the attitude that Starke J explicated throughout the series of cases. He was cynical about the use of the defence power in this broad manner. He suggested a different type of characterisation (which would limit the use of the power e.g. price of bread not with respect to defence), and criticised the Court for allowing the Cth to legislate on every social and economic aspect of Australian society.
( R v Cth Court of Conciliation
• Shift at the bench
• Prohibited application of Women’s Employment Act to female assessors in taxation branch of Treasury
• Not supported by the defence power (Starke J part of this decision)
( Australian Woollen Mills v Cth
• Regulations empowered the Cth to increase minimum rates of pay to women
• Majority:
o Regulations were valid
• Starke J:
o The regulations were not with respect to defence but were with respect to the social and industrial conditions of females, which is a subject matter within the Cn power of the States
( Australian Textiles v Cth
• Starke J: “We have lived so long in an atmosphere of make-believe… it is hard to return to realities”
3.) POST-WAR
• After the War, the government had repeatedly extended the operation of wartime controls – up until 1949.
Moving back into peace – the elastic of war-time legislation does not snap
• Elastic – doesn’t snap
• Almost like boiling water: it will build and then even when tap turned off, it will still be hot for some time
The consequences of war are within the defence power up to a certain extent
• The effects of war continue for centuries and acknowledge that power will sustain stuff even in return to normality
• Consequences of war = within scope of defence power eg repatriation and rehabilitation of soldiers, rebuilding a city that has been bombed etc (note these would probably fall under the power regardless of being considered a “consequence”)
• Problem = effects of the past war continue for a long time – if it were held that the defence power could justify any legislation at any time which dealt with any matter that had been changed by the war, or a problem created by war, the Cth would have a general power to make laws on almost every subject.
Solution:
• Going to cut the Cth an enormous amount of slack – the collapse of the enemy does not demand the sudden removal of all controls
• But ultimately there will still be a limit to the laws the court allows to remain – the court must be able to see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure
The limit to Cth power
• It might be incidental to defence to continue the control and regulation of a particular subject matter for a time after the cessation of hostilities BUT not every social, economic or other condition that might not have arisen but for the war will be within Cth legislative power.
• The whole life of a man is not to regarded as a consequence of war
( R v Foster (1949)
• Continued operation of wage fixing, petrol rationing and court-enforced preferential housing for ex-service personnel under various regulations – these regulations were challenged
HELD:
• The HC ended all 3 regulations.
( Illawara District Council v Wickham
• Act providing for preferential hiring of ex-service personnel – could not be validly extended
4.) TIMES OF PEACE
Defence preparedness
• In peace time, the defence power allows the Cth to maintain “defence preparedness” and to deal with things like the enlistment, training and equipment of citizens in army, navy and airforce, provision of ship and munitions, manufacture of weapons and erection of fortifications: Community Party Case.
• Conduct and organization of enterprises primarily linked to defence may involve ancillary or corollary activities less clearly related to defence.
( Commonwealth v Australian Commonwealth Shipping Board.
• Defence power doesn’t authorize the establishment of businesses for the purpose of trade and wholly unconnected with any purpose of naval or military defence. i.e. didn’t extend to empowering the Aust Cth Shipping Board to enter into an agreement for the supply, delivery and erection of 6 steam turbo-alternators
Conversely…
( Attorney-General (Vic) v Commonwealth (Clothing Factory case)
• Cth could establish a clothing factory to manufacture uniforms for defence forces and Cth and State govt bodies AND Boy Scouts Association. These were considered as incidents in the maintenance for war purposes of an essential part of the munitions branch of the defence arm
• ACP, Fullagar J: described this case as “perhaps borderline”
5.) COLD WAR
• What happens when phases between war and peace aren’t so cut and dried? War in Iraq, war on terrorism etc
• After WWII – peace time but also cold war
Case shows the importance of the judicial arm and how they cannot be cut out of the picture by the legislature
Recitals do not allow the Parliament to declare an Act to be valid because it falls within certain heads of power
o The parliament cannot recite itself into power
o Recitals are in no way conclusive as to whether the Act is valid or invalid
o The Cth cannot control the limits of its own power. Its source of power is the Constitution. Whether an enactment falls within an area of Cth power, this is for the HC to decide, not parliament.
o An administrative decision maker cannot on the basis of unexaminable opinion, be permitted to control the limits of his or her administrative power.
o Fullagar J: “a stream cannot rise higher than its source”:
The sufficient connection for laws to a head of power – there needs to be an objective connection to the power
(This objective connection is provided by the judicature’s assessment)
o Only the supreme emergency of war would extend the operation of the defence power to support legislation that affects the status, property and civil rights of persons by identification without any external test of liability i.e. outside Federal Power ( so in times of crisis, may not need the extra middle step of having judges judge the communist behaviour
▪ At times of war the defence power may be made to operate on the opinion of a designated person
o But where war is not at our doorstep, it is likely the law will be incidental to a head of power (i.e. s51(vi) and then s51(xxxix))
o In this case, it won’t be valid if the only connection between the law and the power is a decision or act of the legislature i.e. facts outside judicial notice
o This is why you can’t take the judicature out of the picture – because their decision is what forms the link to the defence power in this incidental case
Fullagar’s 2 limbs of the defence power
1. Authorises the making of laws that have defence as their direct and immediate object
2. Extended defence power - the power extends to an infinite number of matters which could NOT be regarded in the normal conditions of national life as having any connection with defence. Eg. rationing of goods, rents, eviction of tenants, employment etc. This aspect depends on s51(xxxix).
– The effect of a national emergency makes these matters incidental to the defence power
The “other power” - s61 (nationhood power) and then making it incidental with s51(xxxix)
– power to defend the existing system of govt as either an attribute of the executive govt under s61 so that the relevant legislative power would arise from s51(xxxix) on s61 OR as inherent in the existence of the Cth as a national govt.
• This power is concerned primarily with the protection of Federal authority against action or utterance by which it may be overthrown, thwarted or undermined. 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: Dixon J.
• A law cannot be made under it imposing legal consequences on a legislative or executive opinion which itself supplies the only link between the power and the legal consequences of the opinion: Fullagar J.
( Australian Communist Party v Cth
FACTS:
• Communist Party Dissolution Act – govt sought to ban the Australian Communist Party at the time Aust troops arrived in Korea. The Act included a preamble of 9 recitals. The intention of the preamble was to bring the legislation within s51(vi) and s61. ss5(2) and 9(2) gave the executive an unreviewable discretion to proscribe organizations and persons that it viewed as prejudicial to Australia’s defence.
o Provides for what is an unlawful association
o S4: the provision by which the ACP is dissolved ( Consequence: forfeiture of property
o S7: penalties
o S5: G-G proscribe other organizations which are viewed as being affiliated with the Communist Party or whose policies were substantially shaped by members of the party of Communists
o S5(2): org can be declared unlawful where G-G satisfied that a body of persons is a body to which the section applies and its continued existence would be prejudicial to defence of the Cth
o So if you were stamped in this way, then could not have a job in Cth public service
▪ If you were a communist, you presented a threat to national security ( discretion not subject to judicial review
▪ So the legislation removes it from judicial scrutiny
o S9: not just a concern with respect to ACP but also to individuals
• The recitals:
• Part of the legislation
• Laying down the gauntlet to the court and saying everything in legislation is necessary for the defence because of the facts we present to you
• So for legislation to be struck down (which it was), was a very big deal given that in other countries courts let Communists around the world be heavily punished
• Cth argued Act valid on 2 grounds – either a.) valid under the defence power or b.) valid under the “other power” i.e. s61 (nationhood power) + s51(xxxix)
ISSUE:
1. could the alleged factual basis on which the Parliament sought to rely be given further weight or made conclusive by the recitals in the preamble to the Act?
2. Whether the parliament could by its own legislative recitals in effect pre-empt the HC on adequacy of connection with “defence”.
3. Also, whether the Act was valid with respect to the defence power
HELD:
o (1):
o McTiernan J (all judges agreeing): the effect of the recitals is that they contain parliament’s reasons for passing the Act and their opinions. This does not decide whether the Act is valid or not = judicial question for the court.
o (3):
o on the unreviewable discretion conferred by ss5(2) and 9(2) to say that ppl were prejudicial to Aus defence:
o Dixon J:
▪ The subsections commit to the GG in Council complete authority over the application of vague expressions (activities prejudicial to security and defence, execution or maintenance of the Constitution or laws of the Cth) which have no specific connection with the defence power; and how they are applied is left to the conceptions of the executive govt.
▪ With reference to the defence power:
• Need to consider this situation as if it was a time of peace – so the defence power has not expanded like it would in a time of war
• Nothing but an extreme extension of the operation of the defence power will support provisions outside Federal power
• This is the problem with the Act – it was not addressed to suppressing violence or disorder and didn’t take the course of forbidding descriptions of conduct with objective standards or tests of liability upon the subject.
▪ The objection the court has to the legislation is that it shuts them out of the process and provides its own connection to the power
▪ The connection is supposed to come from the threat
▪ But here the threat is asserted on the legislation and the Communist party ( the actual defence purpose is something asserted and fulfilled by the legislation absent any objectivity from outside
o Fullagar J:
• Defence power has 2 aspects
3. Authorises the making of laws that have defence as their direct and immediate object
4. Extended defence power - the power extends to an infinite number of matters which could NOT be regarded in the normal conditions of national life as having any connection with defence. Eg. rationing of goods, rents, eviction of tenants, employment etc. This aspect depends on s51(xxxix).
– The effect of a national emergency makes these matters incidental to the defence power
o The power in its secondary (extended) aspect: requires emergency or conflict ( this situation doesn’t justify extension of the power into its secondary aspect
• The provisions of the Act are exceptional and peculiar in character. It imposes of its own force and without the possibility of judicial intervention, penalties upon a particular specified organization. It attaches penal consequences to the formation of an opinion of the executive, not judicially examinable.
• Is the Act supported by no 2?
• This depends entirely on judicial notice of an emergency. In this case, one cannot judicially notice a state of affairs which would justify holding a measure having the peculiar features of the Act as valid.
• The defence power might confer an uncontrolled discretion to determine facts on which the exercise of the discretion depends, but only at the fullest of its secondary aspect. Therefore, based on facts of judicial notice, there was no sufficiently serious national or international emergency to extend the power that far.
• On the “other power”:
o Dixon J: Can’t say that a law like this, which depends for its connection to a head of power upon the legislature, is incidental to the laws of the Cth. This power is concerned primarily with the protection of Federal authority against action or utterance by which it may be overthrown, thwarted or undermined. 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
o Fullagar J: A law cannot be made under it imposing legal consequences on a legislative or executive opinion which itself supplies the only link between the power and the legal consequences of the opinion
o So both rejected any possible relevance of this other power
LATHAM CJ [DISSENTING]:
o The important question is whether legislation can be valid before it is approved by a court
o “Being comes before well-being”
▪ the preservation of the existence of the Cth takes precedence over all other matters over which the Cth is concerned
o the power isn’t activated before the court says so
o the connection is one the Parl is asserting, rather than one the court is finding
• Matters that are taken into account in ascertaining whether dangers exist against which laws passed under the defence power may be directed:
o Extensive examination of the international situation, the views upon which may determine whether action should be taken against an external power and whether another country is a friend or not – whether a change of government or policy is likely.
• This is a question of opinion of the parliament and not fact (policy). The only question for the court is whether the provisions of the Act have a real connection with the activities and possibilities which parliament has said in its opinion do exist and do create a danger for Australia.
• Such a connection exists in this case and the Act was valid. The govt and parliament do not regard the present position as one of perfect peace and settled security and they know more about this than courts do. Technical existence of war or actual fighting is not needed to fall within defence power.
Note that after this case, a referendum was put to the people to amend the constitution to allow the reenactment of the Communist Party Dissolution Act - but it failed narrowly.
The Communist Party Case stands for the HC’s role in protecting civil liberties and the rule of law.
Where the legislation specifies objective tests for determining the connection with the defence power
– The legislation is far more likely to be valid
( Marcus Clark v Cth (Capital Issues Case)
FACTS:
• Decided 18 months after Communist Party Case. Korean war had escalated.
• The Defence Preparations Acts and Regulations were made.
• The regulations prohibited the borrowing of money on security and issue of share capital over a certain amount unless accompanied by Treasurer’s consent.
• The Treasurer refused consent to Marcus Clark who tried to borrow $100000 for renovating his shops.
• The regulations, unlike Communist Party Case, had a provision for judicial review of the Treasurer’s decision.
HELD:
• Court held 4:2 that the Act and regulations were valid.
• Dixon CJ: this Act does (unlike Communist Party Case) afford objective tests by which its connection with the defence power may be ascertained. Its provisions are directed to raising money that is deemed by the Treasurer as prejudicial to purposes for defence preparation.
• Fullagar J: distinguished Communist Party Case. The view of the Parliament and Government that it is not a time of “profound peace” and the facts which may be judicially noticed = supports validity.
6.) THE DEFENCE POWER AND TERRORISM
Terrorism
• The defence power is not limited to external threats or to war between nations but extends to protecting the public from terrorist acts.
• Protection from a terrorist act as defined necessarily engages the defence power.
Internal threats are sufficient
– The power is not limited to external threats
– It can be invoked by internal threats
Can use defence power for apprehended acts
o So a scheme for orders preventing them from occurring is use of the defence power to apprehend the doing of violent acts
( Thomas v Mowbray
FACTS:
• T (Jihad Jack) charged with 3 offences under the terrorism legislation
• Most serious: providing support to terrorism organization – acquitted by jury in Vic SC
• Found guilty of: having altered passport and receiving support from a terrorist organization
• Appeal: T set free
• Cth applies for interim control order over T – so when court sets someone free over technicality – response of State is to impose restrictions (so can impose interim orders over suspected terrorists)
• Magistrate found that Thomas had trained with Al Qaeda (at camp of terrorist organization) in the use of explosives and automatic weapons and, without the controls imposed by the interim order, his skills and knowledge could provide a potential resource for the preparation of a ‘terrorist act’.
• Therefore, imposed the interim order under Div 104
• Thomas had an interim control order imposed on him by a federal magistrate. This required him to stay at home between 12am and 5am each night, to report to the Victorian police 3x week, not to contact members of certain listed terrorist organisations, and not to use email, mobile phone or the internet technology that had not been approved by the Counter Terrorism Coordinator of the Federal Police.
• T contended that Div 104 was invalid because not supported by the defence power
ISSUES:
• can s51(vi) support terrorism offences and preventative orders?
• Is it a law which is with respect to defence which enables a control order depriving individuals of their liberty?
HELD:
• By a 5-2 majority, the HC held that Subdivision B of Division 104 is valid.
• The Court held that the defence power is not limited to external threats or to war between nations but extends to protecting the public from terrorist acts.
*For the bulk of the court there is nothing to the arguments – it is relevant to the defence power
Gummow and Crennan JJ:
• Scope of the power
o The defn of terrorist act in the Code includes advancement of a political, religious or ideological cause by coercing Aust governments or by influencing them by intimidation or by intimidating the Aust public or a section of it. Is this too wide a view of the defence power?
o Adopt view of Hamilton
o Not limited to external threats (even Kirby J doesn’t argue that it is) ( internal threats are sufficient
▪ A limited view of the defence power (defence against external threats to the bodies politic, typically by waging war by nation states) is not reflected in recent cases as well as the long history of English law of internal threats.
o Defence power can be directed to apprehended violence (as these control orders are) ( so rather than waiting for violence to have emanated, can use power as a means of preventing violence that you apprehend
▪ The interim control order system may be directed to apprehended conditions of disturbance, by violent means within the defn of terrorist act, of the bodies politic rather than to violent conditions presently applying.
o Purposive power and a notion of proportionality is involved in relating ends to means.
o This still comes within the defence power without having recourse to Fullagar J’s “secondary aspect” of the defence power.
• Distinctions from ACP:
o Confers the power on the court
o Also provides means for review
o So this isn’t as alarming as ACP because can review order once it is made – decision made by court so subject to usual avenues of appeal
o Distinction: requirement for specific connection between each condition that will be made in the purpose of defence
o ACP doesn’t focus upon preventing particular acts (as Fullagar J complained); just targeted at groups “perceived” to be dangerous – generic assertion that Communists are perceived to be dangerous
o But here there are listed activities which you would want to guard against
o ACP didn’t have objective tests, etc
o So a scheme for orders preventing them from occurring is use of the defence power to apprehend the doing of violent acts
KIRBY J [dissenting]:
• How elastic is the defence power?
• Kirby J was upset by the Court’s argument that the decision in Communist Party Case was limited to the facts.
• Says ACP reasoning is helpful
• How the power should be construed in light of convention and history: concern with over-broad reading of defence power, needs to be understood in light of its history
• Guarding against use of defence power for domestic situation
• Attempt to distinguish defence from security – Lynch says pretty unconvincing
• What you are defending is more than the community – police defend the community; use of defence power should be to defend something greater than that
• Andrew: Kirby J attempting to do something that defies logic – doesn’t agree with him on defence at all (this sort of political response, to see it used as a legal argument is worrying)
o Applying the defence power to the facts of the case –
▪ No state of war existed at the time Div 104 was enacted.
▪ The “naval and military” aspect of s51(vi) is not enlivened by Div 104 as it is directed to the protection of people and property.
▪ Determining whether constitutional facts exist so that s51(vi) can be held to support Div 104 the court can look at materials that are the subject of judicial notice. Div 104 is not appropriate and adapted to the threat that exists and it strays into the area of civil government.
The legislation survives; Div 104 is a federal law with respect to a far wider and more general subject and has large consequences for individual liberty.
ACP and Thomas: trying to justify limiting individuals’ rights using defence power in times which are not war
12.) THE TAXATION POWER – WHAT IS A TAX?
1.) DEFINITION OF TAXATION
(ii) taxation; but so as not to discriminate between States or parts of States;
WHAT IS A TAX?
• If an exaction is a tax, the law that imposes it can be characterised as a law with the respect to the subject-matter of s51(ii)
Latham CJ’s definition of “tax”
• A tax is a compulsory exaction (sum of money demanded from someone) of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered
• So, 3 features:
▪ Compulsory
▪ For public purposes
▪ Enforceable by law
( Matthews v Chicory Marketing Board (Vic)
ISSUE:
• Whether a Victorian levy upon producers of chicory was an excise duty, in which event it infringed s90 of the Constitution
• Since excise is a form of taxation, first nec to determine whether the levy was a tax
Latham CJ’s definition is not complete or exhaustive
• Other features:
o Tax is not by way of penalty
o A tax is not arbitrary: MacCormick v Fed Commissioner of Taxations
• Not exhaustive:
o Doesn’t have to be in the form of an exaction of money
o Doesn’t have to be by a non-public authority or for purposes not properly described as public
“A payment for services rendered”
• The services must be rendered to, or at the direction/request of, the person required to make the payment
Not taxes even when Latham CJ’s factors are present
• Payment for services rendered: this is meant to be seen as an example of various special types of exaction which may not be taxes even though the positive attributes mentioned by Latham CJ are all present
Other examples:
• Charge for the acquisition or use of property
• Fee for a privilege
• Fine or penalty imposed for criminal conduct/breach of statutory obligation
( Air Caledonie International v Cth
FACTS:
• S7 of Migration Amendment Act sought to impose a fee for immigration clearance upon airline passengers entering Aus
• Did this by inserting s34A into the Migration Act
• Fee set by regulation at $5
• Plaintiffs argued that the fee was a tax for the purposes of s55 and therefore that s55 prevented s34A in Migration Act, which dealt with matters other than the imposition of taxation
HELD:
• If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circs may be such that the exaction is, at least to the extent that it exceeds that value, a tax
• The fee for the immigration clearance was a tax; therefore its introduction in the Migration Act infringed s55
• The law to be denied any legal effect was the one which would produce the unconstitutional consequence ( s7 was ineffective to amend the Migration Act by adding s34A to its provisions
Further widening the scope of tax
• It is not essential to the concept of tax that the exaction should be by a public authority
Presumption: when a levy is directed to be paid to the Consolidated Revenue Fund
• This is a conclusive indication that the levy is exacted for public purposes
• But the converse proposition is not true; just because if a levy is not paid to this Fund, it does not mean it is not a tax
( Australian Tape Manufacturers Association Ltd v Cth
FACTS:
• Concerned Part VC of the Copyright Act: provided for payment of a royalty to copyright owners and in return permitted the copying of sound recordings for private and domestic use
• S135ZZP(1): the royalty was payable to the vendor of each blank tape when first sold/let/hired
• Payable to a collecting society, a company whose members were copyright owners
HELD:
• 4:3 – Held that the section imposed a tax and that the Act was invalid in infringing s55 of the Cn
ISSUES:
• Does the exaction have to be by a public authority?
• Does the exaction have to be for a public purpose?
MASON, BRENNAN DEANE & GAUDRON JJ:
• Argument that the levy is not a tax rests on proposition that it is not exacted by a public authority and not exacted for public purposes
• When a levy is directed to be paid to the Consolidated Revenue Fund:
o This is a conclusive indication that the levy is exacted for public purposes
o But the converse proposition is not true; just because if a levy is not paid to this Fund, it does not mean it is not a tax
• Here, still for a public purpose:
o The purpose of directing the levy to the collecting society for ultimate distribution of the net proceeds to the relevant copyright owners as a solution to a complex problem of public importance is a public purpose
• The levy is a tax
o Doesn’t fall within any of the well-recognised descriptions of fees or charges outside the concept of tax
o It is not a fee, charge, fine or penalty
o It has the characteristics of an excise: imposed by vendors of blank tapes in respect of sale of tapes and it is a charge which the vendor will pass on to the purchaser
McHUGH J [dissenting]:
• If not for public purposes, not a tax
• A compulsory exaction of money under stat authority is not by itself sufficient to constitute a payment of tax
• Chief feature of a tax is that it is raised to finance govt expenditure (raised for benefit of Consolidated Revenue)
• Therefore has to be raised for public, or governmental, purpose
• So does not constitute a tax
o Not paid into Consolidated Revenue, not for purposes of govt
o Levy collected by and for purposes of private collecting society
A tax is not a penalty
Laws enacted under s51(ii) can be used to achieve purposes unrelated to taxation
• The fact that the revenue-raising burden is merely secondary to the attainment of some other object/s is not a reason for treating the charge as something other than 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 Parl seeks to achieve a purpose not within Cth legislative power
• In the characterisation of a law with respect to taxation, the legislative purpose is of little relevance: Fairfax v Federal Commissioner of Taxation
( Northern Suburbs General Cemetery Reserve Trust v Cth
FACTS:
• Training Guarantee (Admin) Act: set out min level of expenditure that employers should spend on employment-related training
• Employer’s “training guarantee shortfall” equalled the amount that an employer was required by the Act to spend on employment-related training, less the amount actually spent
• Training Guarantee Act: Had to pay it to the Cth into Fund
HELD:
• The Acts were invalid under s51(ii)
• The exaction imposed by the Training Guarantee Act was characterised as a tax rather than a penalty
• Even though it has other purposes:
o It is a law with respect to tax even though at the same time it is more obviously with respect to some other subject-matter
• It is not a penalty because:
o Doesn’t mandate or proscribe conduct of any kind
o The provisions don’t make it an offence to fail to spend the min training requirement and don’t provide for civil penalties for such a failure
o So not a penalty because liability to pay does not arise from the failure to discharge the obligations
• It is unaffected by the omission of the purpose of raising revenue from the statement of legislative objectives
Rebutting the presumption that where a levy is paid into Consolidated Revenue this is a conclusive indication that it is for public purposes
• Every tax that is raised must be paid into the Consolidated Revenue Fund
• But the converse is not universally true: not every sum that statute requires to be paid to the Cth and which is paid into the Fund is a tax
( Luton v Lessels
FACTS:
• Child Support Acts provided that a person caring for a child (e.g. single parent) and entitled to payment of child support could choose to register the payments under those Acts
• Then the liability to make payments became a debt owing to the Cth
• The payments were collected by the Cth and paid into the Consolidated Revenue and then equivalent amounts are taken from the Revenue and paid to the people owed
HELD:
• Despite this use of Consolidated Revenue, held unanimously that the liabilities created did not involve a “tax”
• It is necessary in every case to consider all the features of the legislation
• Why it is not a tax:
o In every case the sum exacted is the amount which otherwise would be due and payable by the payer in satisfaction of an existing obligation owed by that payer to the carer of a child
o So under the Act there is more than the mere earmarking of a compulsory exaction for a particular application
o Usually, imposing a financial burden on one group in society is for the benefit of another
o But here, the obligation to pay the carer is replaced by the obligation to pay the same amount to the Cth
CALLINAN J:
• Purpose is not to raise revenue for the Cth
• No net benefit for the Cth
• No direct benefit upon the general community
• Distinguished Australian Tape Manufacturers Associaiton Ltd:
o Here, the amounts payable were paid to Cth by a particular debtor in relation to a particular child/ren and an equivalent amount was paid to the person entitled to child support
• A person here may have no choice but to pay the Cth, but the compulsion to pay only arises if the payer has not otherwise discharged the obligation that a parent owes to his child/ren
• It is parenthood that is the source of the obligation
2.) FEES FOR SERVICES
Fees for services are not taxes
• Even if they are compulsory
( Matthews v Chicory Marketing Board
ELEMENTS TO SHOW THAT AN EXACTION IS A FEE FOR SERVICES:
1. There is a specific identifiable service;
2. The fee is payable by the person who receives the service; and
3. The fee is proportionate to the cost of the service
Defraying costs rather than building up revenue
• Fee determined by the cost of rendering the services
• When charge is devoted to building up consolidated revenue, this usually makes it a tax
( Harper v Victoria
FACTS:
• Marketing of Primary Products Act: required that all eggs sold by retail in Vic be graded and tested by special Board and stamped to show grade and quality
• S41c(5): required that every person presenting eggs had to pay the Board for this grading to defray (discharge) expenses incurred
• Argued that the fee imposed by this section was beyond State power as a duty of excise
• First had to show that the fee was a tax
HELD:
• Held to be a fee for services rendered
• The purpose was to defray costs of the services, and therefore not devoted to building up consolidated revenue
• HOW IS THE AMOUNT DETERMINED? by the cost to the Board of rendering the services
Earlier case…
Where no particular service performed for the person paying the fee
• This will be a tax
( Parton v Milk Board (Vic)
HELD:
• Legislation requiring every dairyman and every owner of a milk depot to contribute to a fund run by a govt agency imposed a tax
• The money was to be used for governmental purposes
• The fund was also to finance activities of the Milk Board
• In characterising the fee as a tax, said the Board performs no particular service for the owner of a milk depot
Fee for services
• 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
When a fee has all the characteristics that stamp it as a tax
• Necessary to look to if there is something special about it/the circumstances in which it was exacted to determine if, notwithstanding the presence of these attributes, it may be precluded from characterisation as a tax
• E.g. if it is a fee for services
( Air Caledonie International v Commonwealth
FACTS:
• See above
• Cth argued that the fee under s34A of the Migration Act could not be a tax because it was a fee for services
HELD:
• Cth’s argument rejected
• The fee has all the characteristics of a tax: compulsory, for public purposes, exacted by a public authority
• Therefore nec to consider if there was something special about it or the circs in which it was exacted which, notwithstanding the above attributes, might characterise it as something else
o If fee had been exacted only where arriving passenger was not Aus citizen, could have argued not a tax i.e. charge imposed for privilege of entering Aus ( but payable by all
• Looking to see if it was a fee for services:
o Fee for immigration clearance did not make it a fee for services
o Citizens have right under law to re-enter country
• The provisions were a law imposing tax
The objective to raise revenue is not a universal determinant of a tax
• Not all taxes raise revenue, so this is not the ultimate test of whether something is or is not a tax
Requirements for a fee for services
GAUDRON J (HAYNE J agreeing):
• Need 3 requirements for a charge to be a fee for services:
1. They are levied only against persons who use the services
2. They are levied against all such users
3. There is a commercial justification for discriminating between different users
Look to the relationship between the charge and the actual services provided
“User pays” system of access to governmental services
▪ In characterising a charge as a fee for services or taxation, it is legitimate to take account of the changing circumstances of govt which are delegating functions from govt authorities to other groups which, under the terms of their enabling statutes, have a monopoly on the provision of a certain service and are directed by the legislature to provide those services on a “user pays” basis
▪ These charges should be seen as cost driven, not for raising revenue
▪ The lack of a discernible relationship (between the services and the cost) arises from the implementation of the “user pays” principle by a body which is financially separate from the govt
• However, where the total charges recovered for providing the services exceed the total cost of providing the services, a rebuttable presumption arises that the pricing structure is employed for revenue-making
( Airservices Australia v Canadian Airlines International Ltd
FACTS:
• S66 Civil Aviation Act: empowered Civil Aviation Authority (CAA) to imposes charges on aircraft operators to recoup the cost of providing certain services
• Charges set at a level that would defray the costs of the CAA and include a further rate of return of 7.5% on the assets of CAA
• S67: the amount of the charge shall be reasonably related to the expenses incurred by the CAA of providing services to Compass and shall not be such as to amount to taxation
• Charges levied against Compass airlines
• In order to secure payment after Compass went into liquidation, CAA imposed stat lien under Act on aircraft used by Compass
• The aircraft were leased and the owners of the aircraft brought proceedings arguing the charges infringed s67 ( said to be taxes, not fees for services because they didn’t accurately reflect the actual cost to CAA of providing services to Compass; calculated incorrectly (so lack of the relationship requirement)
HELD (HC):
• The charges were not taxes
GLEESON CJ & KIRBY J:
• There is no strict dichotomy between taxes and fees for services; the problem is one of characterisation
• Argued that the critical matter is the lack of relationship between the manner in which the charges were calculated and the cost to CAA of providing to Compass the services ( the question is not whether this is unfair, but rather whether this makes the charges taxes
o Charges not imposed to raise revenue; they were for services
o They were to recover the cost of providing the services
o The charges were reasonably related to the expenses incurred
• In these circs, no warrant for concluding that the charges amounted to taxation on the ground that they exceeded the value to particular users
GAUDRON J (HAYNE J agreeing):
• Need 3 requirements for a charge to be a fee for services:
1. They are levied only against persons who use the services
2. They are levied against all such users
3. There is a commercial justification for discriminating between different users
McHUGH J:
• Also focused on the relationship between the charge and the actual service provided and in doing so sought to clarify how fees for services should be understood in light of govt user pays practices:
▪ In characterising a charge as a fee for services or taxation, it is legitimate to take account of the changing circumstances of govt which are delegating functions from govt authorities to other groups which, under the terms of their enabling statutes, have a monopoly on the provision of a certain service and are directed by the legislature to provide those services on a “user pays” basis
▪ These charges should be seen as cost driven, not for raising revenue
▪ The lack of a discernible relationship (between the services and the cost) arises from the implementation of the “user pays” principle by a body which is financially separate from the govt
• However, where the total charges recovered for providing the services exceed the total cost of providing the services, a rebuttable presumption arises that the pricing structure is employed for revenue-making
Here, the lack of a discernible relationship between the charge levied for, and the value of, particular services provided on a particular occasion does not destroy the characterisation of the charges as fees for service
13.) FISCAL FEDERALISM
1.) GRANTS
THE GRANTS POWER – s96:
96 Financial assistance to States
During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.
GENERAL:
• Parliament may grant financial assistance to any state on such terms and conditions as the parliament sees fit.
• This was probably not intended to be as important a clause as it has become – it was to survive for a minimum of ten years, and from then it could be removed when the parliament wished.
• A transitional provision – but has remained
• It has recently been given a broadened interpretation.
THE EARLY CASES:
Setting the tone for the s96 doctrine
- High Court indicates that there are few constitutional impediments to the Commonwealth giving aid to states on a basis that is not included in the scope of the s51 powers.
( Victoria v Cth (Federal Roads Case) (1926)
FACTS:
- Act authorised Cth Parl to make agreements with States for the making of roads with Cth financial support in the form of s96 grants
- 2 states sought a declaration that the Act was invalid
- States argued that this was a law about road funding, not financial assistance…a characterisation argument
HELD:
- High Court felt that legislation was valid pursuant to section 96.
Treatment of s96 as virtually unreviewable by a court – wide approach
- Enables Cth, with no real restriction, to make such grants and to impose such requirements as it thinks proper
- Latham CJ made clear that limitations on s96 were limited - they were political not legal
The nature of s96 – not limited by any prohibition of discrimination
← It is a means provided by the Cn which enables Cth Parl to adjust inequalities between States
← So the requirement in s51(ii) that taxation laws do not discriminate between States is circumvented
( Deputy Federal Commissioner of Taxation v WR Moran (1939)
FACTS:
← Act was part of benefiting Aus wheat growers
← Cth excise tax on flour was collected from millers and proceeds granted to States under s96 on condition that money be distributed to growers in proportion to quantities of wheat they produced
← Tas was prob – barely any wheat grown there
← State argued that the law contravened s51(i) and (iii) which require that the laws not discriminate between States and bounties should be uniform throughout the Cth
HIGH COURT – LATHAM CJ:
← Rejected arguments and held Cth legislation was valid
S96 does not prohibit discrimination – it is about evening the burden
← S51(ii) prohibits discrim between states but it does not deal with equality of burden
← There is nothing in s51 which prohibits the Cth Parl from passing measures with a view to fair distribution of the burden of taxation, provided that the Act imposed does not itself discriminate in any way between States
Restrictions on s96
← Cth Parl can’t simply exercise s96 with total disregard of prohibition in s51(ii)
← Their Lordships “use the language of caution”
← So they were endorsing this use of s96 but nec all uses
← “A merely colourable use of s96 might be invalid”
Despite these qualifications, Moran has been added to other authority to support the proposition that s96 has no judicially enforceable limits
( WR Moran v Deputy Commissioner of Taxation for NSW
PRIVY COUNCIL:
← The discrimination that may arise is a by-product of the endeavour to equalize the burden of the leg’n by diminishing the special burden on Tasmania
- Mere fact that Commonwealth could invade into an area not covered by s51 thru s96 was not objectionable
- Other factors were unclear in judgment, however, this judgment along with High Court judgment (taken together) affirmed that there are few justiciable limits on scope of s96.
2.) UNIFORM TAXATION OF INCOME
THE UNIFORM TAX CASES:
← About collecting income tax
← Since 1942: income tax levied only by Cth with proportion of proceeds distributed to states in form of s96 grants
← First case, along with previous 2 cases above, really emphasised the breadth of s96
Upholding the validity of these agreements
Validity determined Act by Act, not by the scheme as a whole
← Court looked at each Act individually and determined whether it was valid under s96
← Starke J wished to look at each separately, but the rest of the Court rejected this
← Refused to entertain argument based on cumulative effect as a scheme
o Said that it’s a problem to say that an Act which, individually, is valid, can be made invalid when considered alongside other Acts in the scheme
← This was a blow to the States
The Cth grant must be non-coercive to be valid under s96
← This is how you determine whether the Cth laws are really just to prevent States from exercising their powers (they say if just an inducement, then they are not)
← Drew a distinction between inducement and coercion – one is legitimate one is not
← Must give the States a choice as to whether or not they wish to yield to the grant’s conditions
← Offering very attracting inducements is not the same as coercing the states
← A law asking the states to abdicate their powers would not be allowed
← However, Sean notes that it is not clear what amounts to coercion.
*It should also be noted that there are few alternatives for states to take to earn income.
Validity is not affected by the fact that the grant weakens state functions
← This is so long as the legislation can be characterised under a head of power and thus that it is valid
The nature of the law is to be determined by what it does, not its effects
← Examine its terms and what it does in relation to duties and powers
← The consequential effects are irrelevant for this purpose
Assumption that s51(ii) is about tax for federal purposes
← Note the content of the statutes and the reasoning of the court both assume that the subject matter of s 51(ii) is taxation for federal purposes – an interpretation dating from Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208.
( SA v Cth (First Uniform Tax Case) (1942)
FACTS:
← 4 Cth enactments that together established Cth’s scheme for monopolising income tax
← Commonwealth gave money on the condition that states did not impose an income tax.
← 4 states challenged the regime
← It was argued that this legislation was invalid on characterisation grounds. It was argued that this was a law with respect to the functions of state governments.
HELD – HIGH COURT:
← Rejected the challenge and upheld the scheme’s validity (Starke J dissented about last 2 parts of the scheme)
← Income Tax Act: valid because it was not possible for the Court to impose limitations on Parl as to the rate of tax which it proposes to impose
← Grants Act: States said the Cth was trying to weaken State powers/functions
▪ but the Court said that the law was not coercive: the Act offers an inducement to State Parls not to exercise a power to impose income tax, and the State has the choice whether or not to yield
▪ So the grants made to States were regarded as non-coercive despite the lack of practical choice.
▪ Also said that so long as the legislation could be characterised as being within a head of power, it was valid, regardless of this argument
▪ So even if it weakens or destroys state functions, validity cannot be denied, because the Acts in question are not laws with respect to state functions
← Indirect effect of the laws:
o Although the Cth Parl cannot pass laws limiting state functions, the laws are not invalid if they indirectly have this effect
STARKE J – DISSENT:
- He dissented, disliking the outcome of this legislation
- He disliked the look of the uniform income tax regime
- The object of the scheme was to grant financial assistance, but linked to this was an object and an end not consistent with the limited grant of power conferred by s96 – i.e. making the Commonwealth the sole taxing authority in the federation (this monopoly was beyond power)
BETWEEN THE 2 CASES:
← After WWII, Grants Act repealed
← But broad scheme repeated on permanent basis for many yrs
← Then revised scheme challenged in 2nd case
← By this stage there was a significant change in the composition of the court.
← States were a bit more successful than last time
Broad nature of s96 – the Cth may attach any conditions it wishes to a grant
← This was established by the cumulative effect of the previous cases
There are still some limitations on s96
← Still, the power of s96 is confined to “granting money to governments”, not with respect to a general subject matter – about state finance
o Any enactment is valid if it can be brought within the meaning of the words of the section with regards to “financial assistance”, even if it is unnec
o Insistence that s96 is only a “spending power” suggests the Cth is confined to those policies that involve distribution of money
o It can confer financial benefits on the states, or on the conduits of the states but can’t impose a regulatory scheme designed to order the behaviour of citizens
← Also, can’t make a coercive law i.e. one that demands obedience
Assumes that a State may be in receipt of a s 96 grant merely as a conduit for payment to others
- Commonwealth can simply use states as a conduit for money – states must pass money on to a 3rd party through s 96.
- Dixon had reservations about this proposition but not enough to result in him rendering the law invalid.
( Vic v Cth (Second Unifom Tax Case) (1957)
FACTS:
← The scheme under s96 grants was challenged again
← Argued the Acts are a law for the restriction of States exercising their taxation powers and the purpose is to compel states to abstain from imposing taxes
MAIN ISSUE:
← Use of the Cth grants under s96 to compensate the States for their lost income tax revenues
HELD:
← The use of s96 was valid – whole court
← Upheld the original decision re the condition attached to the grants
← Looking at previous authority – Fed Rds + Moran:
o Course of decisions amplifying the power of s96 and tending to deny any restriction upon purpose of the appropriation or character of the condition
o If s96 came before them for the first time, he may find it difficult to accept this proposition
o But the course of judicial interpretation has put any ideas of limitations out of consideration
← on the priority requirement (4th piece of leg’n):
o priority given to Cth income tax over any State income tax was invalid
o this had no practical impact on the scheme
Dixon’s comments on the nature of s96
‘There has been what amounts to a course of decisions upon s 96 all amplifying the power and tending to a denial of any restriction upon the purpose of the appropriation or the character of the condition. The first case decided under s 96 was Victoria v Commonwealth (1926) 38 CLR 399. The enactment there in question, the Federal Aid Roads Act 1926 (No 46), did not express its reliance on s 96 either in terms or by reference to the grant of financial assistance. It authorised the execution by or on behalf of the Commonwealth of an agreement in a scheduled form with each of the States. It established a trust account in the books of the Treasury to be known as the Federal Aid Roads Trust Account and appropriated for payment into the fund such amount as was necessary for each agreement so executed. The scheduled form of agreement set out in detail a plan or scheme for the construction of roads at the combined expense of State and Commonwealth. The roads, called Federal Aid Roads, fell into three classes, (1) main roads opening up and developing new country; (2) trunk roads between important towns; and (3) arterial roads carrying concentrated traffic from developmental main trunk and other roads. Very specific provisions were made by which what the State did in pursuance of the plan was made subject to the control or approval of the Commonwealth. The amounts contributed by a State were to be about three-fourths of those contributed by the Commonwealth. The contributions of the Commonwealth were to extend over ten years. It was provided that payments would be made to the State out of the moneys for the time being in the trust account in such amounts and at such times and subject to such conditions as the Commonwealth Minister might determine. The form of agreement should perhaps be studied in detail to appreciate how much is implied by the decision of the Court, but for present purposes the foregoing outline may be enough. The validity of the legislation was upheld by this Court as authorised by s 96. This means that the power conferred by that provision is well exercised although (1) the State is bound to apply the money specifically to an object that has been defined, (2) the object is outside the powers of the Commonwealth, (3) the payments are left to the discretion of the Commonwealth Minister, (4) the money is provided as the Commonwealth's contribution to an object for which the State is also to contribute funds. Road-making no doubt may have been conceived as a function of the State so that to provide money for its performance must amount to financial assistance to the State. But only in this way was there “assistance”.’
3. LIMITS TO S96
S96 has been used to circumvent restrictions on Cth legislative power
( Pye v Renshaw
← Court allowed use of s96 to circumvent the need for “just terms” in s51(xxxi) by holding that because a grant made under s96 is not itself an “acquisition of property”, it is not subject to s51(xxxi)
Changing this…
Use of s96 is subject to s116
← s116: “The Commonwealth shall not make any law for establishing any religion”
← Parl acting under s96 cannot pass a law which conflicts with s116
Confirmation of conduit point
← it is valid to have receipt of money for transmission to and benefit of others
( A-G (Vic); Ex rel Black v Cth (DOGS Case) (1981)
FACTS:
← use of s96 as a channel for Cth funds to Church schools
← this was challenged – plaintiffs argued s96 is constrained by s116
HELD:
← this question did not strictly arise for consideration as the court decided 6:1 that the aid did not “establish any religion”
← however, the court still took the view that s96 is subject to s116
← Gibbs J:
o applied ordinary rules of stat construction ( He notes that precedent on the one hand gives huge scope to s96, but Latham and others on the other have suggested that s96 might be subject to s116
← Wilson J:
o Agreed
o Had misgivings about using states as conduits (for money to be given to schools).
o Ground 1: use of a State govt as a mere conduit reduced it to a mechanical instrument of Cth policy, leaving State govt with no policy-making power
o Ground 2: no single power should be construed in such a way as to render absurd the assignment of particular carefully defined powers to that Parl
4.) GRANTS POWER – A SOLUTION TO VERTICAL FISCAL IMBALANCE?
The imbalance:
- Mismatch between who collects and spends money. This mismatch is extreme. States are very dependent on Commonwealth for a lot of their income
- Over 80% of taxation revenue is collected by the Commonwealth but 40% of NSW’s expenditure comes from Commonwealth problem
- This is upsetting to federalists – reduces autonomy that states have.
- Also creates problems of accountability. States should be accountable to their state governments for their actions but this is hard if they can’t control their finance. However, responsible government barely exists today anyway due to party discipline.
The grants power and the balance:
- In one sense, has provided a solution
- For expensive public responsibilities – roads, schools, hospitals – one aspect of imbalance is that states have nec legislative power, while Cth has nec revenue ( use of s96 has eased prob by allowing the transfer of resources to the seats of the relevant power and since July 2000, the flow of GST Revenue Grants has increasingly provided states with secure revenue base (perhaps still not adequate)
▪ Commonwealth gives all revenue from GST to the states…this overcame opposition from Labor state governments
▪ Some say formula needs to be revisited
▪ Does lead to untied grants, Sean thinks.
▪ States had to give up some independent sources of revenue to accept this scheme
Balance still not even:
- But the way money has come back to state governments has ameliorated the power. Often money is given on untied grants. Not conditional grants
- It is also argued that this leads to too much debate about distribution of income in terms of which states get what – who gets how much money – and not enough about the most efficient way to distribute money
- Enhanced revenue base still involves dependency on Cth
- Also, States’ critical lack of revenue had partly come about because of uniform tax scheme, and hence due to use of s96 ( so in a sense use of s96 escalated traditional problem of imbalance
- Finally, Cth policy may have been distorted because its implementation thru “specific purpose grants” has not in fact given the Cth unlimited policy-making control ( if Cth’s entry into a field is through a spending power, its political objectives will be determined accordingly. In some areas of Cth intervention, the original impetus seems to have come from a political need to find an electorally attractive form of public largesse ( so the policy-making focus is on the distribution of money ( result: whole areas of policy have been determined not by constructive assessment of functional needs of institutions but on the basis of the goals set by successive govts for their system of money-distribution; i.e. these considerations are now playing too big a part in these decisions. “The money distribution tail has wagged the policy dog”.
14.) FREEDOM OF INTERSTATE TRADE AND COMMERCE
92 Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.
← The eleven key words are ‘trade, commerce, and intercourse among the States … shall be absolutely free’. In this topic the main focus is on the freedom of interstate trade and commerce. Since Cole v Whitfield freedom of interstate intercourse is interpreted as a separate part of the guarantee.
1.) INDIVIDUAL RIGHT THEORY
Dixon’s individual rights approach to s92…
← The Privy Council endorsed the ‘individual right’ theory of s 92 – freedom in the sense of free enterprise
s92 does not create rights, it simply creates an immunity from a breaching law
← Section 92 does not create a new juristic right in the sense of creating a legal cause of action against all persons.
← When a law breaches the prohibition you enjoy an immunity from that law.
The distinction between laws and what they do in terms of freedom – the meaning of ‘free’
← Not absolutely free
← Need to draw a distinction between restrictions which are regulatory and do not offend against s92, and those that are more than regulatory and therefore do offend
← Regulation of trade and commerce is compatible with freedom
← S92 is violated only where a legislative/exec act operates to restrict trade or commerce directly and immediately as distinct fro creating some indirect or consequential impediment which may be fairly regarded as remote
← Invalid:
o Legislative prohibition as opposed to regulation is invalid
o Law directed against interstate trade and commerce – doesn’t regulate, merely prevents
← Valid:
o Law prescribing rules as to the manner in which the activity should be conducted
← But every case must be judged on its own facts and circumstances
But valid regulation of trade may sometimes involve prohibition
← Sometimes may take the form of denying certain activities
So… the relevant test
1. Whether the effect of the Act is in a particular respect direct or remote
2. Whether in its true character it is regulatory
( Cth v Bank of NSW (Bank Nationalisation Case) [1950]
FACTS:
← Act under consideration operates to restrict the freedom of interstate trade and commerce directly
ISSUE:
← Whether s46 of the Act offends 92
PRIVY COUNCIL:
← The business of banking is part of the trade, commerce and intercourse ( within the ambit of s92
← To the freedom of this activity is protected by s92, then need to see whether the Act offends s92:
Approach overruled by Cole v Whitfield…
2.) A FREE TRADE INTERPRETATION
← HC case aside much of the existing case law on s92 – laid down a new approach
Purpose of s92
← To create a free trade area throughout the Cth and to deny the Cth and States a power to prevent or obstruct the free movement of people, goods and communication across the State boundaries
← Gives equality of trade
So different concept of freedom – freedom from protectionism
← Above: freedom ensured by s92 was seen as freedom in the sense of free enterprise)
← This case rejects that idea and establishes a version of a ‘free trade’ theory: freedom in the sense of the absence of protectionism i.e. the protection of domestic industries against foreign competition
← The freedom of interstate trade and commerce guaranteed by s 92 is freedom from imposition on that trade and commerce of discriminatory burdens of a protectionist kind
The relationship between ss92 and 51(i)
← Must recognise that s51(i) (trade and commerce with other countries and between the states) is a plenary power
← So s92 should not be construed as precluding an exercise of legislative power that would impose any burden or restriction on interstate trade
← Rather, s92 better interpreted as precluding certain types of burdens i.e. discriminatory burdens of a protectionist kind
The relevant test – where a law offends s92
Summarised in Barley Marketing Board v Norman (1990):
← Discrimination: a law will discriminate in the relevant sense against interstate trade or commerce ‘if the law on its face subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result’
o Look to the practical operation of the law
← Protectionist:
o Start with a consideration of the nature of the law impugned
o If it applies to all trade and commerce – inter and intrastate – less likely to be protectionist than if there is discrimination appearing on the face of the law
← However, regardless, where the law discriminates in effect or form in favour of intrastate trade, it will offend s92 if the discrim is of a protectionist character
Ask a question similar to:
← Whether the burden which the regulations impose on interstate trade in crayfish goes beyond the prescription of a reasonable standard to be observed in all crayfish trading and, if so, whether the substantial effect of that regulation is to impose a burden which is so disadvantageous to interstate trade so as to raise a protective barrier around Tasmanian trade
2 ways to understand this test:
1. To see it as 2 sep limbs which must both be present to infringe s92, with discrim providing threshold criterion
2. Only 1 form of infringement of s92 with a double-barrel verbal formula: then a law would offend s92 if its purpose or effect is to benefit local traders within 1 state by placing their interstate competitors at a competitive disadvantage
S92 must be judged by itds economic effects and not merely its formal legal effects.
( Cole v Whitfield (1988)
FACTS:
← Sea Fisheries Regulations (Tas) prohibited any person from taking, buying, selling, etc crayfish of less than a minimum size so as to maintain breeding stock for stable population
← SA had similar restrictions, but lower minimum size
← W imported SA fish into Tas – they were above SA min size, but below Tas min size ( prosecuted for having undersized fish
← He pleaded reg31(1)(d) of the Regulations was invalid by reason of s92
HELD:
← Unanimously held that the regulation did not infringe s92
← Looked to the 1890s Convention Debates in considering fresh approach to s92
o Against this background, criticised the current approach: a.) it is highly artificial – depends on obscure distinction between essential attributes of trade and those facts which are inessential or incidental; and b.) it fails to accommodate the need for laws genuinely regulating intrastate and interstate trade
← These regulations:
o Looking to see whether the burden which the regulations impose on interstate trade in crayfish goes beyond the prescription of a reasonable standard to be observed in all crayfish trading and, if so, whether the substantial effect of that regulation is to impose a burden which is so disadvantageous to interstate trade so as to raise a protective barrier around Tasmanian trade ( question of fact and degree
o Limitation is unquestionably a burden but is it discrim? No discriminatory protectionist purpose appears on the face of the law ( doesn’t give Tas trade a competitive market advantage over imported crayfish or the trade in such crayfish; also, extension of prohibitions were a nec means of enforcing the prohibition against the catching of undersized fish in Tas
Notes on the above case
1. The principle applies to both state and Cth laws (Cth power is in s51(i)); but discrim will not arise simply because a Cth law does not apply uniformly to all trade and commerce of the relevant type. In particular, where the trade and commerce power is combined with another head of power there is less likelihood it will be found to be discriminatory. Also, where State and Cth law combine to provide uniform regime for all trade and commerce in an area, no poss it is discriminatory.
3.) DISCRIMINATION IN PROTECTIONIST SENSE
Sometimes, the imposition of a burden does not breach s92 – where it is appropriate and adapted to a legitimate purpose ( so the test is to be understood with this qualification
← The legislature of a State has the power to enact leg’n for the wellbeing of its people
← Sometimes, you can have state legislation which burdens intestate trade and disadvantages the competition, because the imposition of the burden is necessary or appropriate and adapted to the protection of the people of the State from a real danger/threat to their well-being
When is a law discriminatory?
Gaudron and McHugh JJ (as part of the majority):
← A law is discrim if it operates by reference to a distinction which is irrelevant; if the different treatment thereby assigned is not appropriate and adapted to the differences which support the disctintion by which it operates; if although there is a relevant difference, it proceeds as though there is no such difference i.e. it treats equally things which are not equal
When can a distinction be justified?
Gaudron and McHugh JJ (as part of the majority):
← To justify a distinction as relevant to an objective it is nec to show that the distinction made is a real distinction: involves identification of a difference explaining the distinction and the showing of a connexion between the distinction and the objective such that the object is likely to be achieved by diff treatment based on the distinction
( Castlemaine Tooheys v SA (1990)
FACTS:
← No overt discrim between intra and interstate trade
← Beverage Container Act (South Australia) intended to render sale of beer in non-refillable bottles commercially disadvantageous
← It happened that major seller of these bottles was the Bond Brewing Group which had 3 breweries; NSW, WA, Qld
← State argued that Act promoted litter control and conserved energy and resources
ISSUE:
← Began from premise that the law created factual disadvantage to these bottles
← Questioned whether this disadvantage was “protectionist” of SA brewers against interstate competition
HELD:
← Unanimously found that it was
MASON CJ, BRENNAN, DEANE, DAWSON & TOOHEY JJ:
← Considering the protectionist/disadvantage test against the an Act which, on its face, appears to directed to the solution of economic and social problems:
o Without these solutions, Act would be discrim in prot sense, even though the legislation would treat interstate and intrastate trade even-handedly
o Legislative measures would be appropriate here to apprehend the sale of beer in certain bottles – would not offend s92
o But these measures are not appropriate and adapted: there is a large discrepancy between the refund for non-refillable bottles and refillable bottles– goes beyond what is nec to ensure the return of these bottles
o So the defendants’ stated objectives do not justify the differential treatment given to the products of Bond ( amounted to discrim in protectionist sense
GAUDRON AND McHUGH JJ:
← Reached same result, based on general analysis of discriminatory laws:
o Assumed starting point was that the law was protectionist
o Then questioned whether it was discriminatory
( Betfair (2008) HCA
Under s92, cannot impose discriminatory and protectionist burdens on interstate trade (this is inconsistent with freedom of interstate trade and commerce guaranteed by the provision) (Here penalties were applied to those who made bets through phone/internet between WA and Hobart or published WA race fields by phone/internet between Tas and another state)
4.) EFFECT OR PURPOSE
Effect or purpose
← In applying the Cole v Whitfield test the court will consider both the purpose and the effect of the law to determine discrimination in a protectionist sense
Applying the two tier approach of the Cole v Whitfield test
← i.e. discrimination, then protectionist
( Bath v Alston Holdings (1988)
FACTS:
← Act provided for retail tobacconists’ licenses
← License fee included an ad valorem fee of 25% for tobacco other than that purchased in Vic in certain circs
← Exception made because wholesalers had already paid wholesale license fees with an ad valorem component and scheme designed to ensure everyone only paid once
HELD:
← Court divided 4:3 on what the new Whitfield approach meant i.e. as to whether the Act was discrim in prot sense
Majority:
← Held that sections infringed s92
← Calculation of the extra amount to be paid involves an element of discrimination
← Since the effect of the Act is to require all Vic wholesalers to be licensed, the retailer who sells only tobacco products purchased from a Vic wholesaler will pay the flat fee, while one who buys from interstate will pay more
← So, when viewed in isolation, the provisions of the Act discriminate against interstate purchases of tobacco and it is both undeniably protectionist in form and substance
← A tax upon retailers in respect of their trading goods may burden their trade in interstate goods consistently with s92 only if it applies equally to the interstate and local goods that the retailers sell; it cannot lawfully discriminate between them so as to protect local goods
Minority:
← Dissented
← The advantage which the interstate wholesaler has is balanced by the fact that the Vic retailer who purchases the tobacco will bear a fee
← The legislation does not seek to operate to the advantage or disadvantage of the retailer according to whether he obtains his tobacco within or outside the state
← Not protectionist because the object of the leg’n is not to favour Vic trade at the expense of interstate trade in the product
IN SUMMARY:
← A number of factors have combined to stem the flow of litigation: the rejection of the individual right theory, greater uniformity of laws on traffic, marketing, product standards etc, trend to deregulate industry, heavy focus on the international context.
15.) EXPRESS GUARANTEES – TRIAL BY JURY AND FREEDOM OF RELIGION
EXPRESS FREEDOMS:
• S51: usually interpret Cn with liberality
• In these sections, the broad construction is not generally the case
• Orthodox view: they are limitations upon govt
• So because perceived as retrains upon govt power, tendency to interpret them quite narrowly
WHAT ARE WE DISCUSSING:
1. Elusive right to trial by jury in s80
2. Freedom of religion – at least from Cth interference
3. Method of interpreting Cn freedom – denials of govt power
1.) ELUSIVE RIGHT TO TRIAL BY JURY
80 Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
• Trial on indictment: indicates particular process of trial, normally associated with more severe offences, presentation of written accusation from the Crown
• Summary trial: judge hears the matter without need for a written accusation from the Crown against the accused
• Guarantee only operates for trial on indictment
• Whether an offence is indictable or not is up to Parliament to identify it as one to be tried on indictment
• So where tried in this way, guaranteed right to be tried by a jury
• “There shall be trial by jury only where the law provides that there shall be trial by jury”
So basically Parl can determine when you get a jury (because determines what is indictable)
• if a given offence is not made triable on indictment, then s80 does not apply
• there is nothing to compel procedure by indictment
( R v Archdall
• There is nothing to compel trial by indictment ( nothing directing the Parl as to which offences must be tried by indictment
• So Parl has ability to switch the right on and off by making this decision
There has been a very strong line of dissent from this view…
• Says this interpretation is wrong because it doesn’t impose any sort of restriction
• What’s the point of having the provision when it doesn’t achieve anything?
• “A cynic might suggest the section was drafted in mockery”
( R v Federal Court of Bankruptcy; Ex parte Lowenstein
FAMOUS DISSENT – Dixon and Evatt JJ:
• what is the esence of a trial upon indictment in s80?
• They look to the recognised forms of procedure which they think would make up the concept:
o Some authority constituted under the law to represent the public interest
o Second element found in the liability of the offender to the term of imprisonment or some graver form of punishment i.e. Indictment’ should be defined in terms of liability for the offence
o offence attracting imprisonment needs a jury
• ‘It is a queer intention to ascribe to a Constitution’
• The idea of a provision that is so easy for Parl to evade, is a joke
• Admitting there is a weakness in what they’re saying i.e. text of s80 doesn’t appear to differentiate between types of offences, but not doing this ‘seems rather to defeat than ascertain its intention’
But Archdall (narrow reading of s80) view remains despite the expressions of discontent…
( Zarb v Kennedy
• Unanimously asserted
( Li Chia Hsing v Rankin
• Narrow view affirmed, however:
• Murphy J: The dissenters were correct and s80 should be read as a guarantee of a fundamental right in criminal cases (taken up in a powerful dissent in the following case)
S80 says nothing as to the manner in which an offence is to be defined
• The law alone defines the element of the offence
( Kingswell v The Queen
FACTS:
• Customs Act imposed penalties for customs offences
• S233B: offence of attempting to import drugs
• S235: penalties for such an offence depended on finding by a judge as to whether commercial quantity was involved
MAJORITY:
• Traditional interpretation stands
• Act valid
DISSENT:
• By establishing a diff sentencing regime for offences involving commercial quantities of narcotic drugs, the Parl had created a distinct offence that attracted its own sep operation of the guarantee of s80
• Deane: S80 needs to operate as a restraint on Cth power
• Brennan: treated matter as one of statutory construction
DEANE J:
• S80 not a mere expression of some casual preference
• If it is to be seen as embodying a fundamental constitutional guarantee of trial by jury, the settled principles of legal interpretation applicable to the guarantee require that it be broadly interpreted and applied
• Looks to history: it is an ancient right, protection against those who exercise power
• Brings practical benefits to the admin of criminal justice:
o Juries important to the individual and public at large
o Allows ordinary people to understand the process – because process catered to jury standard
o Ensures the accused is given “a fair go”
• Has to be a ‘serious offence’ – has to be on indictment and therefore has to have a jury
o Has to be where, if convicted, the accused will stand guilty of having committed a serious offence
o ‘Serious’: prison for more than 1 year
• Lynch: ultimately, how we sort through offences is on the basis of seriousness, as indicated by different penalties
On the same issue…
( Cheng v The Queen
MAJORITY:
• Commercial quantity provisions don’t create a separate offence
McHUGH J:
• Explicitly affirmed majority view in Kingswell
• Words of s80 deliberately chosen to give Parl opp to avoid trial by jury when it wants to do so
• Whether looking at text, history, or purpose get same result
• Guarantees trial by jury only when offence is tried by indictment and this depends on Parl’s classification of the offence
• Not about being decided on the basis of seriousness
• Contrary result could only be achieved by disregarding meaning of s80
• Problem with dissenting view:
o They’re trying to add something to s80; trying to add the word ‘serious’ ( trying to qualify/set a standard upon the offences to which s80 applies
o Danger of this is that it’s done by categories of indeterminate reference
o No objective criteria by which to determine the question
o Would create uncertainty – create a new fertile field of jurisprudence
• Also, the referendum failed:
o The Aus people voted against an amendment to s80
o Undemocratic then for the Court to give the section the rejected interpretation
KIRBY J [dissenting]:
• Constitutional guarantees should be construed liberally, and not pedantically confined
• Based dissent on approach of Brennan J in Kingswell
• Connects s80 to chapter III:
o Refers to cases where majority use chapter III jurisprudence to create inconvenient results ( given how potent chapter III considerations can be, the idea that s80 is a useless organ seems strange
• Response to McHugh’s complaint of uncertainty:
o This happens all the time – judges are familiar with drawing lines
o And the alternative is having a provision that is deprived of any effect
• Rejects any impact of originalism:
o Who cares about the Debates? Use them for guidance but we are not chained to the expectations of 1900
o It is my opinion that the framers of the Cn did not intend that their hopes and wishes should control all succeeding generations of Aus who live under the protection of the Cn
o It is this generation that should be interpreting s80
The inherent power of fed judges to punish for contempt of court does not attract s80
( Re Colina; Ex parte Torney
• Kirby J [dissenting]: based approach on that of Deane J in Kingswell
( Brown v The Queen
FACTS:
• Considered s7 of the Juries Act
• Permits accused to waive his right to jury trial
HELD:
• Court says you cannot refuse a right to trial by jury in a Cth offence i.e. s7 doesn’t apply here because it would be inconsistent with s80 of the Cn
• Right cannot be waived
• So if you’re being tried on indictment, you get a jury
• This is because it is a Constitutional guarantee for the accused and for the community
DISSENT:
• The right could be waived because it was primarily an individual right
Both views treat s80 as a meaningful guarantee protecting significant rights
So almost every generation of the Court has had someone rejecting the majority view…
So far:
• Who decides the s80 guarantee? Parliament
Now:
• What does the s80 guarantee mean? What does it mean to be guaranteed a trial by jury?
Jury unanimity is an essential element of the trial by jury guaranteed by s80
• Majority verdict inconsistent with trial by jury under federal constitution
( Cheatle v The Queen
ISSUE:
• Whether a trial judge in SA was entitled to accept a majority verdict (10 out of 12) as permitted by s57 of the Juries Act
HELD - UNANIMOUS:
• What are the essential characteristics of a jury?
• The requirement of unanimity:
o Looked to this in 1900 because those are the ones we still have to respect in 1993
o Consistent and unequivocal requirement of unanimity
o Considerations of principle: there is a significant difference in nature between deliberative process where verdict can only be returned if everyone agrees or one where you just need a majority (this is a bit like voting) ( and the former ensures innocent until proven guilty
• Yes, there are arguments against unanimity:
o Some undesirable characteristics of trial by jury in 1900
o Convenience: acceptance of majority verdicts more convenient
• Lynch: idea of connotation and denotation:
o Connotation: essence of the word jury
o Denotation: what may from time to time signify it but don’t go to its essence so therefore can develop and change
▪ Unanimity: essential to understanding what a jury is (connotation)
▪ Only people allowed in 1900 to sit on juries were males with certain property qualification: inessential to the concept of a jury (denotation)
Are adaptations of the jury process consistent with s80?
← In each case considering this, the court has found that s80 has not been infringed
← This demonstrates that although there are essential characteristics of trial by jury, innovation remains possible e.g. in response to increasing length and complexity of trials
So up to Parl whether s80 replies, but if it does, Court is very strict in saying how it applies…
Essential requirements identified
o Juries must be randomly and impartially selected
( Katsuno v The Queen
Non-essential jury elements
1. What happens if you start with 12 and it shrinks to 10? Can the 10 give a verdict that is trial by jury?
o So do you have to have 12?
o No – can have unanimity with 10 if there are only 10 there
2. Also, issue of sequestration: lock jury down
o Is there a failure of trial by jury if it is allowed to break up before delivering the verdict?
o Don’t have to have sequestration – up to the judge in each case
• Neither of the above is essential
( Brownlee v The Queen
( Ng v The Queen
• Empanelling reserve/additional jurors
• Consistent with s80
• Here, Kirby J presents checklist of essential and inessential jury characteristics
• Essentially stem from above cases
2.) FREEDOM OF RELIGION
116 Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
• 4 prohibitions
• Not a positive right: restricts the Cth but says nothing about restricting the States
• Really this is a denial of power to the Cth Parl alone in respect of these areas
• Not many cases on s116 and the existing ones are unsatisfactory
• The section has never had the effect of invalidating Cth law
Trying to define religion
← Everyone responded to it differently
← Clearly, religion is a very broad concept…
( Church of the New Faith v Commissioner of Pay-Roll Tax
• The Court tries to define what religion is
• Respond to it in different ways
• Mason and Brennan JJ:
o Believe in supernatural being, thing or principle
o Acceptance of canon of conduct give effect to this belief ( has to affect how you behave
• Wilson and Deane JJ:
o 5 indicia of religion
o Identifiable groups
o You have to see yourself as having a particular religion
• Murphy J:
o Refuses to define religion because to define it is to limit the extent of the freedom recognised by s116
What can be prohibited and what cannot be prohibited – doing something that has nothing to do with religion does not interfere with religion
• To require someone to do something that has nothing to do with religion doesn’t interfere with his religion
• S116: about prohibiting the practice of religion – the doing of acts which are done in the practice of religion
• Distinction between morality and religion – compartmentalising human activity, saying “religion is this and this, but not this”
( Kryger v Williams
FACTS:
• Wartime case
• Compulsory peace time military training
• K was a pacifist – said he wouldn’t engage in military training
• Response: he could do non-combatant training under the legislation
• K said any involvement was against his religion – opposed to will of G-d
HELD:
• Court responded impatiently
• Idea that this has nothing at all to do with religion
• So someone saying “I believe killing is sin” didn’t relate to religion
• He really just objected on a moral ground
Reinforcing this grudging approach…
The protection offered by s116 is not absolute – qualifications
← It is subject to powers and restrictions of govt essential to the preservation of the community
← Freedom is meaningful only within an ordered framework; therefore, consistently with s116, Cth could take steps to secure that framework
o It must be subsumed to rights of others in the community to go about their business
o i.e. it must be qualified
← An obligation to obey laws which apply generally to the community is not inconsistent with the freedom
The qualified test
← Latham CJ: The court must determine whether freedom of religion has been unduly infringed by some legislative provision
Freedom of religion protects man with religion but also a man who chooses to have no religion
( Adelaide Company of Jehovah’s Witnesses Inc v Cth (Jehovah’s Witnesses Case)
FACTS:
• Wartime challenge to security regulations which permitted the GG to declare a body corporate prejudicial to the security of the nation ( once declared, association dissolved
• G-G makes declaration in relation to Jehovah’s Witnesses Group and the threat they pose
• They were arguing a pacifist position
• Legislation declares them to be illegal, and takes their property away from them
• On same day, Cth officer attempted to occupy the JW’s Hall in Adelaide and exclude them from their meeting
HELD:
• Legislation fails under defence power but not under s116
o They were oppressive and went further than the defence power allows
o If legislation valid under defence power, s116 would not invalidate it
• Under s116 – unanimous that regulations were valid:
• Held valid under the ‘greater good’ argument:
o This religion not protected under s116 because it provides no protection to religions that are detrimental to society
• Latham CJ:
o Took a narrow view of “freedom of religion”, but balanced this to an extent with a broad view of “religion”
• Need to be able to reconcile religious freedom with ordered govt ( therefore freedom cannot be absolute
• Need to qualify: can’t use the section to justify murdering someone
• When considering the meaning of religion, says s116 is not directed to the religion of the majority, but the protection of the religion of the minority ( but these can be dangerous and conflict with govt; therefore not absolute
Purposive test
• S116 is looking to knock out laws “for the purpose” of preventing the free exercise of religion
▪ Use of the word “for” indicates that purpose is the sole criterion selected for s116 validity
▪ So purpose of the law must be taken into account to determine whether a law infringes s116
Purpose
An end or object which leg’n serves
Qualifications
▪ A law will not be a law breaching s116 if it prohibits free religion if it is necessary to attain some overriding public purpose. Also, it won’t have that purpose if it is a law for some specific purpose unconnected with the free exercise of religion and only incidentally affects the freedom
( Kruger v Cth (Stolen Generation Case) (1997)
Many major constitutional issues in this case
FACTS:
• Ordinance was legal basis of taking Abo kids from their parents
• Argument as to its invalidity: inconsistent with s116 ( by removing kids from their parents, you interfere with their free exercise of religion because they are cut off from their cultural/religious belief system
ISSUES:
• Does s116 even apply to NT?
o Gaudron J: applicable, but directed to laws made by the Cth
o Toohey and Gummow: agreed
o Dawson and McHugh JJ:
▪ Freedom of religion guarantee has no relevance when Cth legislating for the territories
▪ So saying s116 doesn’t apply to the territories
← Then, was the Ordinance a breach of s116?
• Gaudron J:
o Accepted the Abo argument but said depended on issues of fact which could only be determined at trial
o Challenges idea that s116 should be read narrowly
▪ Interpret a right giving freedom to individuals broadly
▪ S116 is not only directed at laws which ban religious practices – it extends to laws which prevent the free exercise of religion
▪ So s116 extends to provisions which authorise acts which prevent the free exercise of religion, not just those which operate of their own force to prevent that exercise
▪ Also, interpret broadly because if interpreted narrowly, what power will the Cth rely on to pass a law which offends against it?
o The laws s116 are looking to knock out are those for the purpose of prohibiting free exercise of religion
▪ Looking to the Ordinance: one purpose was to remove the children from their parents and their practices and if these practices included religious practices, that purpose extended to prohibiting free exercise of religion
▪ But answer depends on facts to be assessed at trial
← Toohey J:
o Could not say Ordinance made with constitutionally prohibited purpose
o Consider the purpose of the law
o Perhaps the effect of the Ord was to impair exercise of religion, but from the language of it, this was not its purpose
← Brennan CJ:
o To attract invalidity under s116, a law must have the purpose of achieving an object which s116 forbids and the impugned laws did not have such a purpose
← Gummow J:
o Took a very narrow view of the constitutional protection afforded, harking back to Krygger – Ordinance valid because no conduct of a religious nature was proscribed or regulated
Lynch: there is an injustice in this case and the Court doesn’t respond to it
Previous cases about “free exercise” clause; this one is about “establishment” clause…
Establishing
o Establishing involves picking a religion and making it the State religion
On the narrow approach to s116
o Mason J: Grants of power should be read broadly, limitations on power should be read narrowly
o A constitutional prohibition should be read in accordance with the meaning it had in 1900
o No reason for enlarging the scope of prohibitions
Barwick CJ rejected this approach – said generally, restrictions on power don’t need to be strictly interpreted
← Give the words of the Cn their full effect, whether they are facultative or prohibitive
( The DOGS Case (1981)
• About funding of public schools
• Issue: provision by Cth of funds to religious schools
• Challenged on a no. of grounds:
o Whether s96 is subject to s116
• Argued that this amounted to an “establishment” of religion
HELD:
• Argument rejected 6:1
• No problem with Cth providing education funds to religious schools
• Is this in breach of the establishment clause (i.e. establishing a religion)?
• Mason J:
o Took a very narrow view
o Establishing involves picking a religion and making it the State religion
o Cannot have Cth establishing something where giving money to a range of diff denominations
o Establishment ‘for the purpose of’ rather than ‘with respect to’: “for” is more limiting
o therefore, what Murphy J says is too expansive – the section should be interpreted narrowly because it limits Cth power
o Barwick CJ:
▪ Also narrowly construed the reference to “any law for establishing any religion”
▪ But rejected the idea that restrictions should be narrowly interpreted in general
▪ Purposive test: the establishment of religion must be found to be the object of the Act
▪ This must be its express, and I think single, objective
o Murphy J [dissenting]:
▪ Relied on decisions from the US Supreme Court, which the majority denied as being relevant
▪ The majority in this case are hairsplitting – not consistent with the broad approach that should be taken to constitutional guarantees of freedom
▪ ‘establishing’ means ‘promoting’
This point is from last class:
• S96: If legislation did amount to infringement of s116, can the Cth use the grants power to get around the restriction?
o There may be a limit to using grants power to get around limitations in the Constition
16.) IMPLIED FREEDOM OF POLITICAL COMMUNICATION A
1.) INTRODUCTION
• HC exploring idea that the Cn contains, by implication, a commitment to certain fundamental freedoms or democratic values operating as judicially enforceable limits on the legislative powers of the Cth
• Initially, suggestions that the requirement of free political communication be derived from a general conception of representative govt inherent in the Cn
• Now: narrower rationale – freedom derived from the text of the Cn, particularly ss7 and 24 which provide that the Senate and house of Reps be ‘directly chosen by the people’
1.) PRECURSORS
• Not in the textbook
( R v Smithers; Ex parte Benson (1912)
• HC implied into the Cn a freedom of movement sufficient to access the seat of govt
• So the case sees the Ct implying a right to individuals which is derived from their importance to the democratic process
The next 2 cases are significant just for the opinion of Murphy J…
• Often met with scorn derived from brevity with which he explained the implications
• There is an argument that he paved the way for the court in the 90s to experiment with implied freedoms (bit controversial)
• But these opinions in which he made the comments weren’t supported at the time and the court doesn’t make reference to these decisions in current discussions
( Ansett Transport Industries (Operations) P/L v Cth (1977)
MURPHY J:
• Elections of fed parl provided for in Cn require certain freedoms
• Proper operation of system of rep govt requires same freedoms between election periods
• So trying to imply a guarantee in the Constitution
( Miller v TCN Channel Nine P/L (1986)
MURPHY J:
• He was accused of adding sections to the Constitution
2.) FREEDOM OF POLITICAL COMMUNICATION – BEGINNINGS
The Constitution embodies an implied freedom of political communication
• Therefore Cn incorporates implication of freedom of communication of info and opinions about matters relating to govt of the Cth
• Implication operates at 2 levels:
o Level of communication between the represented and their reps i.e. people of Cth on one hand and Parl and its members on the other
o Level of communication between ppl of the Cth to communicate info, opinions and ideas about all aspects of the govt of the Cth including qualifications, conduct and performance of those entrusted with the exercise of any part of the legislative, exec, judicial powers of govt
( Nationwide News Pty Ltd v Wills (1992)
FACTS:
• Publisher of The Australian prosecuted under s299(1)(d)(ii) of Industrial Relations Act, providing that a person couldn’t use words/speech to bring a member of the IR Commission into disrepute
• Maxwell Newton had published an article in the paper badmouthing the IR laws and those implementing them (bringing IRC and members into disrepute)
• Provision challenged by the paper as being illegitimate
HELD:
• Unanimously held the section was invalid
• Mason, Dawson, McHugh JJ:
o Held this on the ground that it was not within the scope of the implied incidental power attaching to s51(xxxv) so didn’t deal with argument of freedom of political discussion ( so completely without legislative support
• Brennan, Deane, Gaudron and Toohey JJ:
o Even if the section was within power, it was nevertheless invalid as infringing an implied freedom of political discussion
DEANE AND TOOHEY JJ:
• Representative govt:
o Implication of the Cn which is of key importance is the doctrine of representative govt; govt by reps elected by and responsible to the people of the Cth ( reserves to the people the ultimate power of governmental control
o Does this with 2 electoral processes: election of members of Parl and amendment of Cn
▪ Communication between voters and between govt and voters
o In saying that powers of the govt are governed by the people, this presupposes ability of ppl to communicate amongst themselves, info, opinions about matters relevant to exercise and discharge of govt powers and functions
o Therefore Cn incorporates implication of freedom of communication of info and opinions about matters relating to govt of the Cth
MASON J (not that important):
• Suggests you should be able to adopt a purposive interpretation of the implied incidental power to determine proportionality
Distinction between an implication and an unexpressed assumption upon which framers proceeded in drafting the Cn
• Former: a term which inheres in the instrument and as such operates as part of the instrument
• Latter: stands outside the instrument
• Principle of responsible govt: not merely an assumption but an integral element in the Constitution
The freedom is implied from the Constitution’s provision of representative govt
What affairs the implied freedom extends to
• Therefore implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a particular time might appear to have no connection with Cth affairs
The test to be applied for infringement by restrictions on the freedom
• Concept of freedom of communication is not absolute
• It must not always prevail over competing interests of the public
• Distinction between:
o Restrictions on communications which target ideas/info
▪ Only compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably nec to achieve protection of competing public interest which is invoked to justify the burden
▪ Need to weigh competing public interests – but usually paramount weight should be given to interest in freedom of communication
o Those which restrict an activity or mode of communication by which ideas or info are transmitted
▪ More susceptible of justification
▪ Same balancing exercise
o The court must scrutinise with care restrictions on freedom
( Australian Capital Television v Commonwealth (1992)
FACTS:
• Challenge to validity of Political Broadcasts and Political Disclosures Act which added new Part IIID dealing with political broadcasts
• Purpose of legislation was to avoid high cost of political advertising – creates a dependency of political groups on donators (comes with obligatory relationships)
• S95B: imposed blanket prohibition on political ads on radio and TV during election periods
• Similar bans for Territories under s95C and for State and Local govt under s95D
• Division 3 established a scheme of free time for political advertising
• Accepted that Part IIID was within power under s51(v)
ISSUE:
• Whether the Part was invalid because it infringed a constitutionally guaranteed freedom of political discussion
• Mason, Deane, Toohey and Gaudron JJ:
o Wholly invalid on this basis
• McHugh J:
o Invalid except s95
• All 5 majority judges:
o Committed to an implied constitutional protection for freedom of political discussion
• Dawson J:
o Rejected this conception
• Brennan J:
o Agreed there was such an implication but held the provisions were valid as a reasonable restriction on the protected freedom
MASON CJ:
• Constitutional implication:
o No reason to limit this process
o Distinguishes legitimate implications from unexpressed assumptions
• Protection of personal liberty by processes of representative govt:
o Accepted plaintiff’s argument that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provision which the Constitution makes for representative govt
• Australia Acts:
o Guaranteed sovereignty of the people anew
• Freedom of communication is indispensable element in representative govt:
o Indispensable to accountability and responsibility
o If it was absent, rep govt would fail to achieve its purpose
o Efficacy of the concept depends on free communication between all persons
• The indivisibility of freedom of communication with respect to public affairs and political discussion:
o Does not lend itself to subdivision
• Validity of the Part:
o Fall into second infringement category above
o Law imposing the restriction is not of general application; it is specific
o Looks to purpose of the Part – to safeguard integrity of political process by reducing pressure on parties and candidates
o Given existence of shortcomings in the political process it may be justifiable that there are some restrictions on broadcasting of political ads
o But the competition between the 2 interests must be seen in perspective
o Part severely restricts FOC in relation to political process in such a way as to discriminate against potential participants – discriminates against new candidates
o Severe restriction of FOC fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction ( doesn’t introduce a “level playing field”
DEANE AND TOOHEY JJ:
• Pt IIID invalid because provisions infringed implied freedom
• Guarantee extends to political discussion at both Commonwealth and State level
GAUDRON J:
• Substantially agreed with them
• Implied freedom could not be limited to discussion of political matters are Cth level, but should still be subject to reasonable limits, nature of which might be indicated by the general law
• Pt invalid because not reasonably and appropriately adapted to the regulation of broadcasting under s51(v)
• Took particular account of lack of free time available to ppl who weren’t formerly candidates
McHUGH J:
• Limits scope of freedom only to election periods
• Only one to speak of constitutional rights of freedom but operate only in relation to federal elections because, in identifying source of implication, he focused narrowly on requirement in ss7 and 24 that senate and house of reps ‘directly chosen by the people’
• These sections carry more with them than simply the right to vote
• So business of govt must be examinable and the subject of debate ( so electors must be able to communicate about candidates
• So words ‘directly chosen by the people’ must be read as referring to a process which commences when the election is called and ends with electing reps – includes steps in between
• So people have a constitutional right to communicate
• So McHugh didn’t nec exclude wider range of political freedoms that other majority judges envisaged
• Made same distinction as Mason CJ – since Part IIID was law of former kind, it could only be upheld on grounds of compelling justification ( invalid except for s95C
DAWSON J:
• Reasoned plea for adherence to Court’s traditional role, rejecting idea of judicially enforceable guarantees of political freedoms
• Cn doesn’t obtain its force from any power residing in the people
• Cn is to be interpreted as a law passed pursuant to legislative power to do so – if implications are to be drawn they must appear from the terms of the instrument, not extrinsic circs
o i.e. don’t use Australia Acts as basis for sovereignty by the people
• In this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values
• So really just finding a different basis for the important right of FOC
• It must be recognised that the Cn provides for Parl the members of which are directly chosen by the people (provides for free choice
• Recognises importance of ensuring that freedom of speech is not unduly restricted
• But Pt did not breach this requirement
• Method adopted by the Act is supportable as a means of allocating available free time to assist in informing voters of the issues
BRENNAN J:
• Accepted implication of a protected freedom but saw nothing objectionable in the legislation
• Test of proportionality was satisfied because parl must be allowed a ‘margin of appreciation’
o Freedom of political expression essential in democratic process for 2 reasons – stimulus to performance in pubic office and conducive to flow of info needed for formation of political opinions
o If Part tangibly minimises risk of political corruption, restrictions imposed on political advertising proportionate to that object of law
o Whether it would minimise risk was assessment for Parl to make and for Court to say whether parl could reasonably make that assessment
o Sometimes, in reviewing assessment of Parl, nec to form some estimate of the effect of restrictions imposed by Pt – if restrictions deny voters the opp to form political opinions or substantially impair ability to do so, then invalid
o But here restrictions don’t block flow of info
o Restrictions imposed are ‘comfortably proportionate’ to important objects which it seeks to obtain
DEFAMATION – THE CONSTITUTIONAL SOLUTION:
Defamation question
• Is the Cn was not to be read as impliedly protecting a freedom of political communication, did this mean that there was now to be a constitutional defence to actions to defamation?
Limits of the freedom – what is the ‘political discussion’ it extends to?
• ‘political discussion’ not limited to matters relating to the govt (Aus Capital Television)
• but still need to limit it in some way
• political discussion: discussion of the conduct, policies or fitness for office of govt, political parties, public bodies, public officers, and those seeking public office
• also includes discussion of the political views and public conduct of persons engaged in activities that have become the subject of political debate e.g. union leaders, Abo political leaders, political and economic commentators
• political speech: all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about
To justify the publication of defamatory material
• The def should be required to establish that the circs were such as to make it reasonable to publish the impugned material without ascertaining whether it was true or false
• The publisher should be required to show that, in the circs, it acted reasonably either by taking some steps to check the accuracy of the impugned material or by establishing it was otherwise justified in publishing without taking such steps
• Thus, if a def publishes false and defamatory mater about a pl, the def should be liable in damages unless it can establish it was unaware of the falsity, that it did not publish it recklessly, and that the publication was reasonable in the sense described
• The defendant should establish the publication falls within the constitutional protection
Summary of approach to inconsistency between the freedom and defamation
So:
• To the extent that the practical operation of the law of defamation would be inconsistent with the level of freedom required by the Cn, that body of law would not be operable, so that to that extent defamation was not to be actionable
• So it was a way for the court to chart the limits within which courts could entertain suits for defamation
( Theophanous v Herald & Weekly Times Ltd (1994)
FACTS:
• Member of Cth Parl and former chairman of its Parl Committee on Migration, T, sued for defamation in Vic following publication in nespaper of a letter to the editor written by Bruce Ruxion
• Letter attacked T’s immigration policies and accused him of bias arising from his own ethnic background
• Defendant newspaper argued that Aus defamation law should be modified by a ‘pubic figure’ defence analogous to that in Sullivan
ISSUE:
• Whether the nature of the implied freedom is such that that freedom impinges on the exiting laws of defamation
HELD:
• 4:3 - in respect of Cth political matters. The implied freedom operates not only to invalidate Cth statues insofar as they unreasonably impair that freedom, but also to impose a similar limit on the law of defamation, whether embodied in the CL or in the statute law of the states
MASON CJ, TOOHEY AND GAUDRON JJ (majority):
• What matters it the freedom limited to?
o Not relevant here because he was member of Parl and it was about his duties as member
• Relationship between the implied freedom and the law of defamation:
o The implied freedom is a restriction on legislative and executive power ( it is an implication rather than a guarantee of freedom
o Limits to constitutional freedoms to be determined by evaluating what is nec for the working of the Cn and its principles ( antecedent CL can at most provide guidance on this issue i.e. the context
o When the purpose of the implication is to protect the efficacious working of the system of rep govt mandated by the Cn, the freedom implied should be understood as being capable of extending to freedom from restraints imposed by law, whether statute or C
o So they’re saying that if the implied freedom so required, the CL must have adapted to it in 1901
• Do the existing laws of defamation inhibit freedom of communication?
o It is unquestionable that an implication of freedom of communication, purpose of which is to ensure efficiency, must extend to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective in achieving its purpose
o The law of defamation tends to inhibit the exercise of FOC
o Need to achieve balance between freedom of speech and protecting the indiv from injury to reputation
o In the past, when considering this balance, the courts have not taken into consideration that there is an implied FOC ( therefore, not justified in saying that the balance achieved in CL means there is good balance between CL and the freedom
o Therefore, the CL defences which protect the reputation of persons who are the subject of defamatory publications do so at the price of significantly inhibiting FOC ( the balance is tilted too far against free communication
• Adopted a modified version of the Sullivan test:
o Therefore held that the constitutional defence relied on by the defendant was good in law
•
DEANE J (4th member of majority):
• Took a more expansive view the reaffirmed strongly that the implied freedom, as derived from the Cn, could restrict the constitutional powers of the States as well as those of the Cth, since the States are subjugated to the Cth as a whole by s106
• Legitimacy of the Cn comes from maintenance of its provisions by the people – so don’t construe according to originalism
• It is a ‘living instrument’, so its effect on the common law of defamation:
o Both the understanding of the Cn and the practical uses of resort to common law defamation proceedings have changed since 1901
o Variety of developments have occurred to change the nature of political communication – enhanced the need to ensure there is unrestricted public access to political info and political points of view, but at the same time the use of defamation proceedings has expanded
o So the Cn must be treated as a ‘living force’ and not as a ‘declaration of will of dead people’
o Therefore the court must take into account the contemp social and political circs in determining the issue in this case
• Looked at impact of defamation laws on the freedom:
o Existing laws of defamation are inconsistent with the implication and precluded by the Cn
o Held that the Constitutional implication should preclude entirely the application of State defamation laws to statements about the official conduct of those entrusted with the powers of govt
• But, for the sake of arriving at a clear majority decision, agreed to the more limited modification to the law of defamation of the other majority judges:
o Other judges: say defamation laws precluded to impose liability only if the defendant establishes the above requirements
o Doesn’t believe this is necessary but agrees defamation laws would be precluded in such circs
o Appropriate for him to follow this course
BRENNAN J (dissenting):
• (From previous cases) Implied constitutional FOC derived from, and therefore limited to, the CL
• They are bound in a ‘symbiotic relationship’
• The policy of the legislature guides the Court in the interpretation of the Statute
McHUGH J (dissenting):
• Both he and Dawson J emphasised the respective aspects of their judgments in Australian Capital Television:
o Dawson J: conceded that the Cn does imply some commitment to a system of parl democracy in which elected reps are directly chosen by the ppl – so conditions nec for exercise of true choice
o McHugh J: confined himself more narrowly than other majority judges to the implications necessarily entailed in the voting requirements of ss7 and 24
o Both insisted laws of defamation were unaffected by the implied freedom
• No interp of Cn can depart from its text:
o Can’t find any support in Cn for implication that the institution of rep govt is part of the Cn independently of ss7 or 24
o These sections give effect to the political institution – but rep govt is not independently part of the Cn
o Therefore Cn does not adopt maintenance of the institution except to the extent that certain sections embody it
o The earlier cases, holding this general implication, should not be followed
No proper basis for inferring a general right of FOC in the Cn any more than there is a proper basis for inferring principle of rep govt
17.) IMPLIED FREEDOM OF POLITICAL COMMUNICATION B
1.) REPRESENTATIVE DEMOCRACY?
DEFAMATION – THE COMMON LAW SOLUTION:
McHugh’s rejection of freedom of communication arising from a free standing doctrine of representative democracy
( McGinty v WA (1996)
FACTS:
• Issue: whether an implication of equality of voting power could be derived from either the Cth or WA Constitution
HELD:
• 4:2 – court rejected the possibility of any such implication in the State Constitution
• On federal issue – court was inconclusive, but the issue evoked a strong reassessment of the earlier decisions concerning the freedom of political communication, and the constitutional premises on which the decisions were founded
McHUGH J:
• Dissociated himself from any conception of a free-standing principle of rep democracy to be discerned from the Cn
o “I cannot accept… that a constitutional implication can arise from a particular doctrine that underlies the Cn” ( such doctrines are not independent sources of power
o The Cn contains by implication
o Regards the reasoning in Nationwide News, ACT and Theophanous as wrong in so far as it invoked an implied principle of rep democracy – it is an alteration of the Cn without the authority of the people under s128
o Reasoning rejected due to the principles of constitutional interpretation
• Argued that the use of implied freedom of political discussion to override the common law in Theophanous should be reconsidered
( Levy v Victoria (1997)
Dawson J:
• It would seem there is now a majority of the Court which would support the decisions in Theophanous and Stephens
Led to the following case considering whether these decisions should be overruled…
Overruling Theophanous
• The constitutional implication cannot operate directly to alter private rights and immunities ( this result necessarily meant that the actual decision in Theophanous was overruled
Retaining the principle of representative government, deduced from the text and structure of the Cn
• What is involved in the people choosing their reps can be understood only by reference to the system of representative and responsible govt to which ss7 and 24 and other sections of the Cn give effect
• But neither rep govt, nor freedom of political communication was to be treated as a free standing principle
• So the relevant q: what do the terms and structure of the Cn prohibit, authorise or require?
Representative govt giving rise to the protection of freedom of communication but not as a right
• Ss 7 and 24 and related Cn sections nec protect the freedom of communication – they do not confer personal rights on individuals; rather, they preclude the curtailment of the protected freedom by the exercise of legislative or executive power ( they are a limitation or confinement of laws/powers which give rise to immunity on the part of the citizen from being adversely affected by those laws
The relationship between the Constitution and the common law
• The CL must conform with the Cn – its development cannot run counter to Cn imperatives
Tests to determine whether a law is invalid due to the implied freedom
2 questions must be answered before the validity of the law can be determined:
1. Does the law effectively burden freedom of communication about govt or political matters, either in its terms, operation or effect?
2. If so, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of rep govt ( refined in Coleman v Power as: whether the impugned law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible…
a. If q1 answered yes, and q2 answered no, the law is invalid
The common law defence of qualified privilege
• Available as a CL defence but Constitution imposes overriding requirements to which any such defence must conform
• Therefore, Court should now declare that each member of Aus has an interest in disseminating and receiving info – this interest extends to categories of qualified privilege ( therefore, those categories must now be recognised as protecting a communication made to the public on govt/political matter
• At CL, once an occasion of QP is found to exist, the privilege protects a communication made on that occasion unless defendant is malicious ( but protects only occasions where matter is published to a limited no. of recipients
Reasonableness
• The damage that can be done when there are many recipients is much greater than only a few recipients
• Therefore a requirement of reasonableness, as contained in s22 Defamation Act which goes beyond mere honesty, is properly to be seen as reasonably appropriate to the protection of reputation, and thus not inconsistent with what the Cn requires
• Conduct (publishing defamatory material) usually won’t be reasonable unless defendant has reasonable grounds for believing that the imputation was true or took reasonable steps to verify the info, and also the publisher has sought a response from the person defamed
( Lange v Australian Broadcasting Corporation (1997)
FACTS:
• L, former PM of NZ, sued ABC for alleged defamatory statements on Four Corners
• ABC’s response asserted a ‘constitutional defence’ (modelled on that outlined in Theophanous) and also a common law defence of qualified privilege
HELD (unanimous):
• The constitutional defence was NOT available, since the constitutional implication cannot operate directly to alter private rights and immunities ( this result necessarily meant that the actual decision in Theophanous was overruled
• However, the Court developed the CL defence of qualified privilege broadly
• While the particular set out by the ABC in its pleadings did not conform to the requirements of this defence, the Court left open the poss that by suitably drafted particulars the ABC could bring itself within the new expanded defence (but the matter was subsequently settled)
• Theophanous and Stephens did not lay down any binding statement of constitutional principle:
o The cases should be accepted as deciding that in Australia the CL rules of defamation must conform to the requirements of the Cn
o They also decide that at least by 1992, the Cn precluded unqualified application in Aus of the English CL of defamation in so far as it continued to provide no defence for mistaken publication of defamatory material concerning govt/political matters to a wide audience
o Summary:
▪ i.e. the constitutional implication precluded the continued unrestricted operation of the law of defamation
▪ To this extent, the preferred analysis was that of Deane J in Th rather than the joint judgment saying that the law of defamation must be taken to have changed in 1901
• The underlying conception of “rep govt” was also to be retained:
o What is involved in the people choosing their reps can be understood only by reference to the system of representative and responsible govt to which ss7 and 24 and other sections of the Cn give effect
• Reaffirmed that the above doctrines were confined to what could properly be deduced from the text and structure of the Cn
o Neither rep govt, nor freedom of political communication was to be treated as a free standing principle
o So the relevant q: what do the terms and structure of the Cn prohibit, authorise or require?
o But this did not mean the scope of the freedom had been narrowed – it is at least as broad as that recognised in previous cases
o Ss 7 and 24 and related Cn sections nec protect the freedom of communication – they do not confer personal rights on individuals; rather, they preclude the curtailment of the protected freedom by the exercise of legislative or executive power ( they are a limitation or confinement of laws/powers which give rise to immunity on the part of the citizen from being adversely affected by those laws
o The implication is negative in nature: it invalidates laws and consequently creates an area of immunity: Cunliffe
• This is the reason the constitutional defence argument fails:
o A defendant cannot invoke the freedom directly so as to claim a personal immunity from suit because that is not the way a constitutional restriction works
• Stated the freedom broadly:
o Doesn’t just operate at election times
o The implication doesn’t arise solely from ss7 and 24 but from other parts of the Cn as well
• Symbiotic relationship between the Constitution and CL:
o The CL must conform with the Cn – its development cannot run counter to Cn imperatives
o Looking at the issue of whether a defamatory matters is protected by the Cn or within a CL exception to actionable defamation yields the same answer but has diff consequences:
▪ Answer to CL q defines the scope of the personal right of the person defamed
▪ Answer to the Cn q defines the area of immunity which cannot be infringed by a law of the Cth
▪ Cl rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restrict the freedom required by the Cn – so freedom from CL may be broader than Cn but not narrower
• So, as between a constitutional limit on law of defamation and expanded CL defence of qualified privilege:
o Court chose both ( available defence is a CL defence but Constition imposes overriding requirements to which any such defence must conform
• Tests to assess the effect of implied limitations on legislative power:
o 2 questions must be answered before the validity of the law can be determined:
3. Does the law effectively burden freedom of communication about govt or political matters, either in its terms, operation or effect?
4. If so, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of rep govt ( refined in Coleman v Power as: whether the impugned law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible…
a. If q1 answered yes, and q2 answered no, the law is invalid
• Statement of expanded CL defence of qualified privilege:
o The CL rules concerning privileged communications, as understood before Th, had reached the point where they failed to meet Constitutional requirement of freedom
o But the CL of defamation ought to be developed to reflect the requirements of the Cn
o Therefore, Court should now declare that each member of Aus has an interest in disseminating and receiving info – this interest extends to categories of qualified privilege ( therefore, those categories must now be recognised as protecting a communication made to the public on govt/political matter
o The extended category of CL qualified privilege ensures conformity to Cn requirements
o At CL, once an occasion of QP is found to exist, the privilege protects a communication made on that occasion unless defendant is malicious ( but protects only occasions where matter is published to a limited no. of recipients
o The damage that can be done when there are many recipients is much greater than only a few recipients
o Therefore a requirement of reasonableness, as contained in s22 Defamation Act which goes beyond mere honesty, is properly to be seen as reasonably appropriate to the protection of reputation, and thus not inconsistent with what the Cn requires
o Conduct (publishing defamatory material) usually won’t be reasonable unless defendant has reasonable grounds for believing that the imputation was true or took reasonable steps to verify the info, and also the publisher has sought a response from the person defamed
2.) THE TEST FOR INVALIDITY
Expressed as 2 step test in Lange
Uncertainty remains about several aspects of the test
The 2nd question continues to provoke the most doubt
In earlier cases, judges contemplated that diff legislative purposes might attract diff levels of scrutiny:
▪ On one view, distinctions swept away by Lange – to be understood as general all-purpose test
▪ Another view, laws that directly target ‘ideas/info’ or restrict the contents of communication are covered by the rider to the 2nd limb of the Lange test
▪ Another view, Lange test to be understood as explaining the proportionality test, so the higher level of scrutiny required for laws in the 1st category remains untouched by Lange
• i.e. categories: Mason J distinguishes between restrictions on communications which target ideas/info and those which restrict an activity or mode of communication bu which ideas/info are transmitted
Passages in Levy v Victoria appear to assume this 3rd view is correct:
o Gaudron J: reasserted her own conception of 2 distinct levels of scrutiny:
▪ a law whose direct purpose is to restrict political communication will be valid only if nec for the attainment of some overriding public purpose
▪ for laws directed to some other purpose whose attainment incidentally restricts political communication she used the appropriate and adapted test
o Kirby J: noted that this case where the legislatio has, by its terms, specifically targeted the idea so as to require compelling justification
Mulholland v Australian Electoral Commission:
o Gleeson CJ: accepted that for such a law there must be close scrutiny, congruent with a search for ‘compelling justification’
Uncertainty as to use of proportionality test and its difference to ‘appropriate and adapted’
Gaudron J:
▪ When proportionality is invoked as an aid to characterisation, the test is whether the law is reasonably capable of being viewed as appropriate and adapted to achieving the purpose in question ( allows for deference to the legislative judgment so long as it is reasonably viewed as appropriate
▪ By contrast, when the Court is policing an express or implied constitutional limitation on the exercise of legislative power, the test of validity for a law encroaching upon the constitutionally protected area is whether the law is reasonably appropriate and adapted to the relevant purpose ( asserts that the Court itself must be satisfied that the test of reasonably appropriate and adapted as been met
o The differentiation is repeatedly blurred
( Cunliffe v Cth
( Mulholland v Australian Electoral Commission
FACTS:
Appellant argued both that the impugned provisions of the Commonwealth Electoral Act 1918 were not within power, and that they impermissibly impaired the implied constitutional freedom
HEYDON J:
o Says that in Street v Qld Bar Association Gaudron J had suggested that the test was whether the different treatment is reasonably capable of being seen as appropriate and adapted to the relevant difference
KIRBY J:
o On the other hand, renewed his attack on appropriate and adapted – contrary to the basic design of the Aus Cn ( we should do better that a phrase inappropriate and ill-adapted
▪ ‘inappropriate’ inept because it is for the Parl, not the Court, to say whether a law is appropriate
▪ ‘adapted’ is also the business of legislators
o Applied the same test of proportionality to both issues argued by the appellant as a single all-purpose test
o This is a more accurate explanation of the constitutional connection
o Other judges have treated is as equivalent to appropriate and adapted
o The notion of proportionality has advantages over other formulae, especially when constitutional powers in issue are of purposive character
GLEESON CJ:
More permissive on these terminological issues
There are criticisms which could be made of both phrases
o There is, in Australia, a history of use of the term ‘necessary’ as meaning reasonably appropriate and adapted and there is a long history of judicial application of this phrase
o Different degrees of scrutiny may be implied by the term ‘nec’
o Has no objection to the use of the term proportionality, so long as its meaning is sufficiently explained
o Equally, has no objection to the use of the expression ‘reasonably appropriate and adapted’
Applicable test
‘proportionate’ or ‘appropriate and adapted’
The freedom is not absolute:
the freedom is limited to what is nec to the effective working of the Constitution’s system of rep govt
therefore, a law that is reasonably appropriate and adapted to serving an end that is compatible with the maitenance of the system of govt will not infringe the constitutional implication
Graphic televised images are within the protected realm
o non-verbal conduct which is capable of communicating an idea about the govt/politics which is intended to do so, may be immune from legislative or executive restriction so far as immunity is needed to protect the system of representative govt
o freedom of communication is not limited to verbal utterances
o a law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose
How far the constitutional implication extends
goes further than protecting rational argument and peaceful conduct that conveys political messages
also protects false, unreasoned and emotional communications as well as true, reasoned and detached communications
it is not confined to invalidating laws that prohibit or regulate communications
in appropriate circs, it will invalidate laws that effectively burden communications by denying members of the community the opp to communicate with each other on political and govt matters relating to the Cth
( Levy v Victoria
FACTS:
Levy, an animal activist, at opening of Victorian duck shooting season, sought to enter shooting area, retrieve bodies of dead/injured birds and display them for TV cameras as protest against Vic govt allowing activity
Vic govt promulgated Wildlife Game (Hunting Season) Regulations
When L sought to enter area, prevented from doing so under reg 5
Because he was thereby prevented from carrying out his protest, he sued in HC for declaration that reg 5 was invalid by reason of its interference with constitutionally protected freedom of expression
HELD:
o The plaintiff failed; but the recognition that his claim fell within the protected area of political communication represented a significant expansion of the freedom
o Held that reg 5 was valid as a reasonable restriction in the interests of public safety as it was ‘proportionate’ or ‘appropriate and adapted’ to the objective stated in reg1(a)
o So court accepted this as applicable test of validity and also accepted that graphic televised images were within the constitutionally protected realm of political communication
3.) THEFT AS POLITICS?
What does not fall within the freedom
• the advocacy of law-breaking falls outside the constitutional protection
• there is no protection for ‘mere advocacy’ or abstract teaching of the necessity of criminal conduct ( not part of the system of rep govt
( Brown v Classification Review Board (Rabelais Case) (1998)
FACTS:
Rabelais, student newspaper at La Trobe University, published an article entitled ‘The Art of Shoplifting’ which gave a step by step guide of shoplifting
Office of Classification decided that R should be refused classification, effectively prohibiting distribution
Decision relied on s19(4) of the National Classification Code which directed that classification be refused to a publication that promotes crime or violence
Decision confirmed by Class Review Board and under ADJR Act
Editors appealed to Full Fed Court which dismissed the appeal
ISSUE:
• Firstly, whether refusal of classification effectively burdened political communication ( Court focused on whether the particular communication that had triggered the refusal could be characterised as ‘political
HEEREY & SUNDBERG JJ:
• It could not be
HEEREY J:
• Article does not concern political/govt matters
• the advocacy of law-breaking falls outside the constitutional protection
• there is no protection for ‘mere advocacy’ or abstract teaching of the necessity of criminal conduct ( not part of the system of rep govt
SUNDBERG J:
• article not within the ambit of freedom for 2 reasons:
o not a political communication (on govt matter)
o does not relate to the exercise by the ppl of a free and informed choice as electors
FRENCH J:
• did not finally decide the issue, because he held that in any event the National Classification Code was compatible with the protected freedom:
o can, in some aspects, fall within a broad understanding of political discussion
o but this characterisation will not invalidate a law which is enacted for a legitimate end, is compatible with rep govt, and is appropriate and adapted
o the provisions of the relevant law (the Code) fulfil these criteria
o compatible with constitutional freedom because of its positive recognition of freedom of expression and because its specific criteria for refusing classification must be construed in a manner informed by the principle that recognises the freedom
18.) IMPLIED FREEDOM OF POLITICAL COMMUNICATION C
SUMMARY:
( Lange
• The test and how it is to operate
• The test:
1. Does the law burden the freedom of communication?
2. Is the law reasonably adapted and appropriate achieving a legitimate end which is compatible with maintenance of responsible and rep govt prescribed by the Cn? (mainly ss 7 and 24)
▪ The only thing that will fail the 2nd limb is where speech is denied in a way that will impact quite directly on rep govt
1.) POST-LANGE:
• The Duckshooting Case – The Lange Test is applied in Levy v Victoria
• Theft as politics? Brown v Classification Board (RAbelais Case)
THE GLEESON COURT ON THE IMPLIED FREEDOM – THE POLITICS OF PROTEST:
• The Bench changed, and so did the decisions in this area ( the consensus manifested in Lange did not survive
( Australian Broadcasting Corporation v Lenah Game Meats (2001)
FACTS:
• LGM: Brush tail possum processing plant – chopping up the possums for cat food
• Animal rights group secretly filmed what was happening there with a view to exposing it (no permission)
• SC Tas gives LGM injunction to protect ‘CL right to privacy’ i.e. broadcasting of footage restrained
• ABC disputed the existence of such a right – said no such thing, and can only get injunction to get a right protected by the law and there is no such CL tort protecting privacy
• ABC said further, even if there is such a right, it is limited by the implied freedom of political communication
HELD - MAJORITY:
• No such right to privacy
• Gummow and Hayne JJ:
o There is no tort of unjustified invasion of privacy but it might develop in the future
• Gleeson CJ and Kirby J:
o there may be developments in the future, but no relevance in the present case
• Of majority judges, only Kirby drew on implied freedom
o Said this is political communication – said it applies not only to common law but equity and exercise of judicial discretion
o Here, the power to grant interlocutory injunction did not breach the freedom as it was not inconsistent with rep democracy, but the decision to grant the injunction had miscarried because the Ct had failed to give sufficient weight to the Cn consideration favouring discussion in the TV programme of animal welfare as a legit matter of govt concern
CALLINAN J [dissenting]:
• Unanimous decision, really disagrees
• Appeal should have been dismissed since there was no reason why the injunction should not have been continued
• He challenged the whole notion of the implied freedom
o Lange: there is an implied freedom – he would not have reached the same conclusion
o Attacks the necessity of the freedom – it is no required
▪ Debate about whether something is nec is a parliamentary concern, not judicial
• Says if anything, there is too much free speech – no necessity for the freedom because speech is in very good health in this country – if anything, speech is in the balance of the speakers and not those who are spoken of
o He says we should care about what the framers were thinking – they knew about freedom of speech and defamation and didn’t put anything in there; the common law of defamation came along and worked well beside the Cn, so no need to change it
o Further, constitutional implications are difficult to apply – again need to look to the Framers’ intentions – they didn’t see it as nec then ( how does the court know when it is nec to make the implication? What proof is required to deem it as nec? Implications should only be made when they are of the greatest necessity – such necessity did not dictate the circumstances in Lange
** EXAM – test is the one that has been modified and is stated in Coleman, not that stated in Lange
Rewording of the Lange test
o “does the law which is impugned have the effect of preventing or controlling communication upon political and govt matters in a manner which is inconsistent with the system of rep govt for which the Cn provides?”
o Insert words into the test – ‘in a manner’ – includes the purpose as well as the manner
▪ The law requires the 2nd limb of the Lange test to be read in a way that requires that both the end (purpose) and the manner of its achievement be compatible with the system of rep govt
▪ Don’t water down this test by saying “reasonably capable of being seen to be adapted”
When does a law not satisfy this test? (McHugh J)
o i.e. when is a law not reasonably adapted and appropriate to achieving this compatible end?
o Whenever the burden is such that communication on political or governmental matters is no longer “free”
But free dos not mean free of all restrictions – there can be laws imposing burdens on the freedom
o The freedom is not absolute
o A general reluctance to use implication?
o McHugh J: for communication to be free, does not need to be free of all restrictions, should be some regulation on freedom of political communication and this won’t undermine the freedom
o So laws which promote or protect the communications will often impose burdens on communications yet leave them free
o Therefore not all laws burdening communication on political matters are impermissible laws
o But the communication will not remain free in the relevant sense if the burden is unreasonably greater than is achievable by other means
Deference to the legislature
▪ Deference to the legislators – how much should judges defer to the decisions of legislators?
• The court can only intervene if there is unreasonable burden
• Defer to the legislature, but once there is an unreasonable burden on freedom of communication, then deference stops – then for the courts to decide
• Callinan: defers to legislature – they have decided what the section means so can’t just cut it back
▪ Gleeson CJ: if the court is not keen to go down this path, it should accord a pretty heavy weight to legislative initiative
( Coleman v Power (IMPORTANT CASE)
FACTS:
o Coleman was a law student – distributed pamphlets criticising police, esp with regard to arresting protestors
o Included allegation referring to 1 particular constable and said to “kiss my arse”
o When P (constable) approached C, C shouted this was the “corrupt police officer”
o s7(1)(d): provision penalising people from verbally insulting/threatening policemen
o the shouting of the words was charged under this section (material being handed out wasn’t charged under this section, that was charged under s7(1)(a))
o C convicted by magistrate, then Qld CCA affirmed conviction
▪ CCA: held 1st limb of Lange satisfied (the section burdened the freedom)
ISSUE:
o is this section in breach of the implied freedom?
o Respondents conceded satisfaction of 1st limb
o Confined to the 2nd limb of Lange – was burden reasonably adapted and appropriate to serve a legit end?
HELD:
o Coleman’s appeal upheld – 4:3
▪ McHugh, Gummow, Kirby, Hayne majority, Gleeson, Callinan and Heydon dissenting
Majority answers this question by dodging the constitutional issue – read down the section
▪ read down the section and say the section doesn’t apply to police officers who are trained to take abuse
▪ so section applies to speech when it amounts to ‘fighting words’ – when likely to provoke a physical reaction
▪ so by confining the section, their view is that they have rendered it reasonably adapted and appropriate
▪ Gummow and Hayne:
o derive this interpretation from the context provided by the section as a whole and relied on Cn considerations to reinforce it
o further, now s7(1)(d) can be interpreted as satisfying the 2nd limb in Lange – reasonably adapted and appropriate
Addressing the constitutional issue:
o McHugh J:
▪ Doesn’t accept a narrow reading as sufficient to dispose of the case
▪ Doesn’t stop there – recognises there is an issue beyond that – he is the only judge to address constitutional issue
▪ Looks to the criticisms that have been levelled the tests of proportionality/reasonably adapted and that they involve an ad hoc balancing process between the burden of the provision and the legitimate process ( Stone says this area is suffused with value judgments
▪ Responding to this criticism
▪ He says essentially it is a clear-cut exercise. Either consistent or inconsistent with constitution. Yet his language smacks of proportionality, balancing. Wanted a more mechanistic, less value-laden approach. He does modify 2nd limb of the test. Very significant because this modification was accepted by majority.
▪ Not about balancing purpose – not a q of weight of balance
▪ Rather, the question is about whether the law impairs the operation of constitutional freedom
▪ Insisting on a compatibility with the constitution
▪ Sort of presumed to be reasonable until you find it unreasonable
▪ Law doesn’t burden unless incompatible with maintenance of the system
▪ Lynch: how can you do this without recognising you are balancing between 2 particular values? I.e. freedom of communication up against legislative attempt to promote the value of public civility ( to suggest it is a black and white issue doesn’t really take you very far ( seems strange to suggest the process does not involve balancing
▪ For this provision, 2 justifications were offered for the burden it imposes:
• To avoid breach of the peace
o This is a compatible end – but an unqualified prohibition on insulting words is not reasonable
• Protecting free pol communication by removing threats so people wouldn’t be intimated into silence
o Insults are a legit part of political discussion – unqualified prohibition not compatible
o Since provision interfered with freedom, the conviction under the provision should be quashed
DISSENTING JUDGMENTS:
← Said the provision was constitutionally valid
← Rejected the attempt to limit the concept of “insulting words” – accepted that this was part of a wider legit legislative policy on public civility of political discussion
o Minority angle would seem to defer to legislative attempts to require civility in public discussion, but the majority is rejecting this
← On the Constitutional issue:
• Gleeson CJ:
o advocates “reasonably adapted” test but says this stops short of requiring that the chosen means be “necessary” for the achievement of the legislative purpose
▪ Conceives of a scenario where a physical response would be unlikely but says why shouldn’t freedom be curtailed? i.e. mother with small children in park with group of rowdy people there insulting her – she is unlikely to respond in physical way but on basis of what majority is saying, there is no offence because the insults don’t have the quality of ‘fighting words’
▪ Unable to conclude the legislation here is not suitable
o The court is really discussing civility of political discussion:
▪ Kirby on Heydon’s description of political speech in Australia:
• Doesn’t recognise what Heydon is talking about – he seems to be describing some form of ‘intellectual salon’
• He and McHugh stress that Aus political discussion is full of insults ( insulting kind of speech is easily equated with political speech so ties in with idea to only limit insulting speech when it is likely to invoke physical response
• Heydon J:
o Held that the provision was valid:
o Looked at the legit ends that the provision was adapted for:
← Insulting can lead to breaches of the peace, so the provision was adapted to this legit end
← Also, raising standards of society
← These ends were compatible with maintenance of Cn govt
← They were reasonably adapted and appropriate to serve the legit ends
← The provision doesn’t have to be the best way to achieve the end
← It doesn’t burden the relevant freedom
← Also, insulting words are not political enough to come within this implied political freedom
← Kirby J:
o Just refer to proportionality (rather than reasonably adapted and appropriate)
2.) ELECTORAL MATTERS
← Even in cases directly relating to parl/electoral matters, attempts to invoke protection of implied freedom have usually failed
← Langer v Cth: implied freedom narrowly construed
← Muldowney v SA: provisions in the Electoral Act designed to protect prescribed method of voting by prohibiting advocation departure from this method were held to be consistent with the Cn implication because the implication does not operate to strike down a law which curtails freedom of communication in the limited circs where the curtailment is appro and adapted to enhancing the democratic process of the States
Different kind of case…
Implied freedom to be used as a shield, not a sword
← i.e. where pre-existing rights are threatened by an Act, the implication can be invoked to protect those rights
← but the freedom cannot be invoked to generate enforceable rights or freedoms not already cognisable by law
← McClure, Hayne J: it is not an obligation to publicise – it is a freedom from govt action. The petitioner’s case depends on him having some right to require others to disseminate his views
For the purpose of the Cn, communications on political and govt matters sometimes include communications between the exec govt and the people
← Communication extends to the broad national environment in which individual citizens exist and in which govt operates
( Mulholland v AEC (IMPORTANT CASE)
FACTS:
o About the ballot paper and whether the law burdened the freedom of political communication
o Party rego provisions in the Electoral Act
o Supposed burden on freedom: DLP had less than 500 members so couldn’t be positioned on paper above the line. Also argued that party identification of candidates on ballot papers was protected by implied freedom
ISSUE:
• Is there a burden on free speech?
HELD:
o Heydon J – viewed a number of obstacles in the way of the DLP’s case:
▪ Seems to be suggesting that there isn’t even political communication
▪ The ballot paper is simply a medium by which the vote is cast – it is an organizational thing – it is not political communication i.e. communicating info with a view to influencing electors
▪ Also, it doesn’t burden the implied freedom – doesn’t restrain any candidate’s activity
▪ Even if it did, it is reasonably adapted and appropriate
o But the majority seemed to decide there was political communication
▪ Purpose of ballot paper is to record the voter’s prefs – part of process of voting – it is the record of communication
o Burden on the right to communicate the party name?
▪ Burden requires there to be a right that is being removed/taken away – must exist independently of that law
• Because there was no pre-existing right, the only such right was created by the provisions under challenge, which could hardly be said to burden the rights they created
▪ Invalidating the law would undermine the right that was allowing them to put their name on the paper – and you need this right to allow your freedom of communication to be protected i.e. shield vs sword idea – can only use freedom as a shield not a sword (except Kirby J who says you can use it either way, everyone says you must already have a right that you can then protect)
▪ Majority says DLP have no right in the first place – i.e. no burden
▪ Kirby rejects the existing right idea: says it is ridiculous that there has to be something already there and then taken away before you can apply the constitutional freedom ( this approach could negate the whole implied freedom concept
▪ So only Gleeson and Kirby JJ accepted there was a burden
• Is it reasonably adapted and appropriate to serve a legitimate end in a manner compatible with R&R govt?
o Everyone agrees the burden is reasonable i.e. it was not unacceptable
o It is reasonably appropriate and adapted – plus the law furthers freedom of political expression
▪ The measures necessitated provision for the rego of political parties: minimum level of public support required (500), to guard against poss of abuse, intro the no overlap rule
o So the law is valid because it satisfies the 2nd limb of the test
In summary:
o Think about the idea of freedom of political communication in a practical way
o Understand how application of the test words – not as straightforward as it initially appears
o Have an eye on the broader themes – interpretation, the framers, necessity, implications
19.) JUDICIAL POWER & DETENTION A
Chapter III – The Judicature
1.) PREVENTATIVE DETENTION AND PAST OFFENDERS
Looking at the Constitution’s attitude towards the detention of individuals…
1.) WHAT ARE WE DISCUSSING?
1. The consequences of the Cn separation of judicial power for:
a. The scope of that power and the manner of its exercise
b. The constraint of exec and legislative powers; and
c. The freedom of individuals which results – their right not to be incarcerated
Chapter III of the Constitution
• Reflects an aspect of the doctrine of separation of powers (legislative and judicial)
• Serves to protect not only the role of the independent judiciary but also the personal interests of litigants in having those interests determined by judges independent of the legislature and executive
Involuntary detention is usually only valid as a punishment for breaching the law (for citizens)
• This is penal or punitive in character – under our system of govt it exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt
• 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
• A person cannot be punished for anything else but a breach of law
• To make imprisonment lawful, it must be either be by process of the courts, or by warrant of some legal officer having authority to commit a person to prison (this second example is not seen as punitive but is rather an exception to the rule, like involuntary detention for mental illness)
Otherwise there is a constitutional immunity for citizens from imprisonment
But there are exceptions – as long as non-punitive so as not to breach separation of powers doctrine
• Aliens/asylum seekers may be validly involuntarily detained
o They are distinct from citizens; they have a lesser status
o Holding an alien in detention is valid as long as it is necessary for the purpose of deportation/or to enable an application for entry
o But if it is not so limited, the authority which the law confers on the Executive cannot be seen as incidental to the exec powers to deport or admit an alien ( then the laws will be of a punitive nature and contravene Ch III’s insistence that judicial power of the Cth be vested exclusively in the courts
o So the power to detain aliens is not unlimited ( it is only valid so long as the power remains non-punitive (BUT THIS LIMITATION IS NOT THAT IMPORTANT)
• Also: mentally ill, people with infectious diseases
• So exceptional cases are ones where there isn’t a punitive aspect
Laws as a consequence of provisions in Ch III of the Cn
• Applicable only to cases falling under a law of the Cth
• However, a related principle was enunciated for the States on the basis that a State court whose functions include the exercise of Cth judicial power may not be given functions “incompatible” with the exercise of that power: Kable
• Exec powers can be conferred without infringement of Cth Ch III’s conferral of the power on the courts is that the authority is not punitive in nature and not part of the judicial power of the Cth
o So this is about the legitimacy of non-punitive executive powers
o If punitive, then it could be a breach of the separation of powers
( Chu Kheng Lim v Minister for Immigration, Local Govt and Ethnic Affairs (1992)
FACTS:
• Challenging the mandatory detention of asylum seekers
• So dealing with aliens – which have special status under Australian law
• But the core principle out of this case applies to citizens (as opposed to aliens)
HELD:
• Upheld the validity of amendments to the Migration Act providing for the detention in custody of 2 groups of asylum seekers specifically targeted by the amendments
• Immunity did not help in this case
• Core principle of the judgment:
o When you’re going to incarcerate citizens, can only do it as a punishment
• But there are exceptions:
o People with mental illnesses, with infectious diseases, if executive has a warrant for detention before you go to trial
o Also… an alien in our country enjoys the protection of our laws, but rights and immunities differ from ours – vulnerable to exclusion/deportation (flows from CL/Cn)
o S51(xix) encompasses conferral on Executive of authority to detain in custody aliens or expulsion/deportation (incident of executive power)
• This power can be conferred without infringement of Cth Ch III’s conferral of the power on the courts is that the authority is not punitive in nature and not part of the judicial power of the Cth
*Later cases arising under the Migration Act had reaffirmed the validity of provisions for the detention of asylum seekers in custody
2.) THE INCOMPATIBILITY DOCTRINE:
• The idea that laws are incompatible with what Ch III requires of courts
Evolution of the incompatibility doctrine
• Boilermaker’s Case (R v Kirby; Ex parte Boilermakers’ Society of Australia) (4:3):
o The judicial power of the Cth is to be kept strictly separate from the other arms of govt
o Doctrine: prevents the Cth Parl from conferring judicial power on bodies other than courts and prevents it from conferring any power that is not judicial power or a power incidental thereto on courts specified in s71 of the Cn
▪ So courts cannot be given non-judicial functions and non-judicial bodies cannot be given judicial powers
▪ Treated Ch III of the Cn as excluding any combination of non-judicial power (i.e. legislative power) with the judicial power of the Cth – keep in different pots
o Also prevents the parl from conferring functions on judges in their indiv capacity if the functions are inconsistent with the exercise of judicial power in the sense explained in Grollo
• Hilton v Wells:
o Majority accepted exemption to the Boilermaker’s principle
o A federal judge can be appointed to perform non-judicial functions provided those functions can be construed as assigned to the individual as a persona designata and not in the judicial capacity
o Persona designata: power conferred not in judicial capacity, but in personal capacity
• Grollo v Palmer:
o Judge given the power to issue a warrant for telephone intercept
▪ How do you do this (as this is a step in the investigative process, not judicial process)
▪ So not a judicial power
o Court recognised an exception to the exception: the persona designata doctrine does NOT apply if the functions to be performed are incompatible with the holding of judicial office
▪ So where the non-judicial function conferred on persona designata is incompatible with their holding judicial office, then it is an invalid conferral of power
o The concept of incompatibility is derived from the concept of the separation of powers and does not have a life of its own independent from that concept
• Wilson v Minister for Abo and TS Islander Affairs:
o Justice Mathews appointed to look into secret women’s business in Hindmarsh Case
o Principle was applied to invalidate the appointment of Justice Jane Mathews as a reporter under s10 of the A & TS Islanders Heritage Protection Act.
o The appointment was incompatible with her judicial role (chiefly because she had to report to a Minister)
o So here, the incompatibility doctrine was treated merely as an exception to the permissible use of the persona designata device; BUT
• Kable v DPP:
o The reach of the incompatibility doctrine was greatly extended in a case where no suggestion of appointment as persona designata was involved
o So incompatibility rises up to have an effect all of its own
The requirement of the exercise of federal jurisdiction
• At all stages of the proceedings, K was seeking to challenge the validity of the Act by arguments based on the Cth Cn; so possible to say that at every stage of the proceedings the SC was exercising judicial power of the Cth i.e. federal jurisdiction
• However, apart from Toohey J (and sort of Gaudron J), the rest of the majority seemed to rely simply on the fact that NSW SC sometimes exercises judicial power of the Cth, with no suggestion that its having done so in this very case was a necessary basis for their decision (the more restrictive suggestion has not been renewed in later cases)
• Gaudron doesn’t really see a distinction between fed and state courts:
o Sees Ch III as postulating an integrated Aus court system – so no distinction between judicial power of states and Cth
Persona designata
• Earlier cases: treated incompatibility doctrine as exception to the persona designata doctrine
• No question of the latter doctrine in Kable
• Rather, former doctrine treated as a wider concomitant of ANY exercise of the judicial power of the Cth
Unitary national system of law (as opposed to a distinction between fed and state parliaments)
• Breavington v Godleman, Deane J: developed a broad conception within which the courts and judicial proceedings of every part of the Cth should be seen as integral parts of 1 consistent and coherent whole
• Kable: Similar view expounded by McHugh and Gummow JJ, with emphasis on view of HC as apex of the system
Incompatibility doctrine – extends to federal and state courts
o no function can be conferred on a state court that is incompatible with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power
o This holds good whenever CH III is operative (i.e. also where a state court is exercising federal jurisdiction)
• Argument that succeeded: separation of power works on federal courts but also has an impact on State Supreme Courts who are not subject to a State version of the same rule, but because they can be invested with federal jurisdiction from time to time, then State courts are affected by separation of power at a federal level
o But affected in a different way
o They can still exercise non-judicial power, but not where it is incompatible with their status as bodies that sometimes exercise federal jurisdiction
However, there is no separation of powers doctrine operating at the State level
Summary – Chapter III doesn’t simply extend to state courts
• At fed level, cannot give a non-judicial court a judicial function
• The effect of Kable isn’t to import this to the state
• It is to recognise the r/ship with a slightly diff result ( determined by concept of incompatibility
• State SC can exercise non-judicial power and this won’t offend Kable so long as the power concerned is not incompatible with their exercise of federal judicial power
• So it doesn’t mean you apply Boilermaker’s at Cth and State level
o You apply it at fed level
o You apply test of incomp to non-judicial functions given to State courts
▪ So you can mix judicial and non-judicial functions in courts (since no sep of powers and no Boilermakers) so just about incompatibility (and Kable is such an instance of incompatible)
SO:
• Federal courts cannot exercise non-judicial power (sep of powers, Boilermakers)
• State courts can have non-judicial powers put upon them but not when that non-judicial power is incompatible with the exercise of federal power (incompatibility)
*Note this case is talking about a State Act…
( Kable v DPP (NSW) 1996
FACTS:
• Community Protection Act: empowered Supreme Court of NSW to make preventive detention orders
• Act was passed because K, while in jail for manslaughter of his wife, had written letters threatening the safety of his kids and dead wife’s sister, with whom the kids were staying
• S3 was confined to K
HELD:
• One argument against s3 and its singling out of an individual for detention an its use of preventive detention in the absence of any additional crime, was that this amounted to legislative judgment or legislative usurpation of judicial power ( this argument depended on strict separation of powers (legislative and judicial)
o However, due to absence of separation of powers at State level, an attack on the Act based on the concept of legislative judgment failed
• Majority of HC (4:2) invoked the incompatibility doctrine:
o The function conferred by the SC in the Act was “incompatible” with its exercise of federal judicial power
o So the point was NOT that the Act was an inappropriate exercise of State legislative power, but rather, that the function assigned to the SC was incompatible with the exercise by that Court of federal judicial power
TOOHEY J:
• Made a point about the fact that federal jurisdiction was involved in this case (other judges didn’t see this as nec to the decision):
o By reason of the issues raised in the case, the SC was exercising fed jurisdiction
o Grollo v Palmer: no function can be conferred on a state court that is incompatible with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power
o This holds good whenever CH III is operative (i.e. also where a state court is exercising federal jurisdiction)
o Appellant argues incompatibility of function due to the nature of the Act whereby the SC may order imprisonment of a person even though the person has not been adjudged guilty of any criminal offence
o This requires the SC to exercise judicial power of the Cth in a manner which is inconsistent with traditional judicial process ( highlighted by the Act’s operation on only one individual
o The Act offends Ch III because it requires the SC to participate in the making of a preventive detention order where no breach of criminal law is alleged and where there has been no determination of guilt
o On this ground, the Act is invalid
o Can’t sever the section from the rest of the Act
GAUDRON J:
• Commenting on the distinction between federal and State courts:
o Although other judges have said Ch III draws a clear distinction between the 2 courts, she demonstrates by close technical analysis that most provisions of Ch III draw no such distinction
o Against this background, she says that Ch III clearly postulates an integrated Australian court system for the exercise of judicial power of the Cth, with the HC as the apex ( no distinction between the judicial power of the Cth and State/fed cts
o Some limitations:
• Ch III recognises that HC and fed cts are creatures of the Cth and state courts are creates of the States
• So it follows that State courts determine matters about state courts ( so then Cth must take state courts as it finds them i.e. with all its limits as to jurisdiction
o BUT neither of these limitations detracts from the fact that we have an integrated judicial system for the exercise of judicial power of the Cth
o Also doesn’t detract from idea that State Parls may enact whatever laws they choose with respect to state courts, except where Ch III requires that State courts not exercise particular powers, then State parls cannot confer those powers on them (cl 15, s106)
• So, does the Cn require that state courts not have particular powers conferred on them?
o Look to integrated judicial system for which Ch III provides
o Although it is for the States to determine organization of its courts, they must maintain courts for the exercise of judicial powers of the Cth ( therefore, to this extent, State Parls cannot legislate as they please
o State courts, when exercising federal jurisdiction, are part of the Aus judicial system created by Ch III so they have a role and existence which transcends their status as courts of the States
o Therefore Ch III requires that State Parls not legislate to confer powers on State courts which are incompatible with their exercise of judicial power of the Cth
• Boilermaker’s doctrine with regard to states:
o More confined here ( relates to powers or functions imposed on state court, rather than on indiv judges and is concerned with powers incompatible with the exercise of judicial power of the Cth
• so, is s5 of the Act repugnant to or incompatible with the exercise of judicial power of the Cth?
o Proceedings contemplated by the Act are not otherwise known to the law (not legal)
o Require the court to make a guess
o Makes court have regard to material that would not usually be admissible as evidence in legal proceedings
o The functions are not judicial in nature (but this can sometimes be ok – Ch III permits conferral of such powers on courts as long as not incompatible)
o But the power deprives an individual of his liberty due to the forming of an opinion – antithesis of the judicial process
o The power is not properly characterised as a judicial function
o The effect of the section is to compromise the integrity of the Ct and because the Ct exercises federal jurisdiction, compromises the integrity of the judicial system brought into existence by Ch III of the Constitution
o Public confidence cannot be maintained in this case (where integrity undermined) – rather, requires court to act according to rules of general application
McHUGH J:
• Integrated court system:
o Aus: integrated system of state and fed courts administered by single body of CL
o Administer the common law as an entire system
o State courts exercising state judicial power cannot be regarded as indepdent of admin of law by Cth/fed courts
o A judge exercising the fed jurisdiction conferred to State court must see CL in exactly same way that a judge of a fed court sees it
o So under the Cn, the state courts have a status and role that extends beyond their role as state judicial systems ( part of an integrated system of organs for the exercise of fed judicial power
• Legislatures cannot undermine/alter the constitutional scheme set up by Ch III:
o No parl can legislate in a way that undermines Ch III
o So no Parl can invest functions in SC of NSW that are incompatible with exercise of fed judicial power
o So if State leg has the EFFECT (intention is not important) of violating principles underlying Ch III, it will be invalid
• Courts exercising fed judicial power must be perceived to be free from leg/exec interference:
o Ch III does not prevent a State from conferring non-judicial functions on a State court in respect of non-federal matters BUT the non-judicial functions cannot be of a nature that might lead ordinary members of the public to conclude that the court was not independent of the executive ( the law would be invalid
o So although NSW has no entrenched doctrine of sep of powers, and the Cth doctrine of separation of powers cannot be applied to the States, in some situations the effect of the Ch III may lead to the same result as if the State had such a doctrine
• The Act undermines public confidence in impartiality of the SC of NSW:
o Ordinary reasonable persons might reasonably have seen the Act as making the SC a party to and responsible for the implementing of a political decision of the exec govt that the appellant should be imprisoned without the benefit of the ordinary processes of law
o Public confidence would be impaired
o The Act therefore infringed Ch III and is invalid
DAWSON J [dissenting]:
• There is no doctrine of separation of powers applicable to the states:
• The Cn does not require the State to only exercise judicial power
• The suggestion that the Act is invalid for impairing the SC’s impartiality ignores the fact that the mechanism for ensuring judicial impartiality and independence are not constitutionally prescribed for state courts
• States are distinct jurisdictions:
o The system is a federal system and while the framers may have established a system that was neither state nor federal, they did not ( so therefore dangerous to regard the system as a unitary whole
• once the above is recognised, incompatibility arguments disappear: there is no incompatibility with Ch III because that chapter accepts those courts as existing institutions which may be invested with fed jurisdiction notwithstanding that they are not subject to any doctrine of separation of powers
• Grollo: The concept of incompatibility is derived from the separation of powers and does not have a life of its own independent from that concept
So Kable is a limit on State legislative power because of its relationship to federal jurisdiction as recognised by the Cth Constitution…
Kable can have no application to a law which would not offend Ch III if enacted at federal level
( Backrach
• This case says that enactments that would be valid at fed level must nec be valid at State level
• Not sufficient to resolve the issue in the case below since no consensus on whether the challenged law would be valid if enacted at Cth level
Conversely… retreating a bit from Kable…?
A law that would be invalid if enacted at fed level may nevertheless be valid at state level
There is a test for validity that asks whether, if the state enactment were a fed enactment, it would infringe Ch III, this is not the only test for validity
▪ Once it is accepted that there is a legitimate justification for detention, don’t need to go further and considered whether fed leg’n would be invalid
o Don’t decide whether judicial or not, simply not incompatible with judicial power
▪ Not everything denied by way of decision-making to a fed judge is denied to a judge of a State
o This is all you need
o Draw a distinction between whether valid at Cth or state level because only judicial powers can be exercised at Cth level
Where preventive detention is acceptable
• Backrach: The standard that the court has to apply is that there is an “unacceptable risk” that he would be a risk when released
• Thomas: judges rejected this because it was not judicial exercise
This case:- acceptable if for protective purposes so can make a prediction about apprehended conduct
• It’s fine if it is for a preventative/protective purpose ( not relevant whether punitive because the purpose of the Act is protective
▪ This is Detention by reason of apprehended conduct
▪ But exceptions aside, courts cannot impose detention without adjudging guilt:
What makes legislation incompatible?
• Kable: looked so targeted, so therefore court’s integrity and independence was affected
• Here, not directed at specific person
( Fardon v A-G (Qld)
FACTS:
• Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – authorised interim detention orders (s13) to be made by SC of Qld in relation to a “prisoner” (person detained in custody, serving sentence for something sexually-related)
▪ So they were already prisoners, had come to the end of their custodial sentences, the Act enabled the detention to be extended so they could be kept there if there was a serious risk that they would re-offend
▪ Valid if passed by Cth
• F fell within this definition; and interim detention order made against him after which a continuing detention order was made against him
• Appeal removed into the HC
ISSUES:
• Valid if passed by Cth Parl?
• Is the power judicial or just not incompatible with judicial power?
• Distinguishing Community Protection Act
• Kable – the dog that barked once
HELD:
1. On the issue of determining validity with respect to judicial power:
o McHugh J:
▪ Says exercising judicial power here – therefore would pass at Cth level
▪ Act requires the determination of a standard specifically precise to engage the exercise of State judicial power
o Other majority judges:
▪ Don’t decide whether judicial or not, simply not incompatible with judicial power
▪ This is all you need
▪ Draw a distinction between whether valid at Cth or state level because only judicial powers can be exercised at Cth level
▪ Hayne and other majority judges:
• Once it is accepted that protection of the community is a legitmate justification for detention, don’t need to go further and considered whether fed leg’n would be invalid
o Gummow J – looked at issue of whether it was valid if passed at Cth level:
▪ Thought that a similar scheme enacted at Cth level would not have been constitutional
▪ Non-judicial but not incompatible so therefore not invalid
▪ Kirby J:
▪ Doesn’t feel it was nec to determine whether valid at Cth power, just had to say it was not incompatible with judicial power
▪ He sees this power as non-judicial power
2. On the issue of whether the detention procedure was for a valid purpose:
• All 6 majority judges held that detention procedures established by the Act were valid
• Gummow J:
• Preventative/protective purpose
▪ Not relevant whether punitive because the purpose of the Act is protective
▪ Detention by reason of apprehended conduct
▪ Exceptions aside, courts cannot impose detention without adjudging guilt:
• Says Thomas v Mowbray is not involuntary detention in custody by the state
• Lynch: poor argument – need better justification for upholding restrictions upon individual freedoms
o Gleeson CJ:
▪ If it is lawful and appropriate for a judge to make an assessment of danger to the community at the time of sentencing (perhaps yrs before offender due to be released), it may be thought curious that it is inappropriate for a judge to make such an assessment near the time of imminent release, where the danger might be assessed more accurately
▪ On the Kable issue:
• About state leg’n which confers a power on a state court that compromises its integrity
• This function (above) is conducted in public, and in accordance with ordinary judicial process ( doesn’t compromise integrity; it is the courts’ duty
• Kirby J [dissenting]:
o Describes Kable as very important in a safeguard context, and says the Act in this case is simply a matter of the govt over-stepping its boundaries
o Describes Kable as the “dog that barked once”
▪ i.e. as a guard dog
▪ guards against the risk of legislatures tempted to exceed the scope of their power ( very important to protect the rights of minorities
▪ as a constitutional safeguard, Kable arrived with a huge splash but hasn’t really been applied, but if you were ever going to apply it, Kirby thinks it should be applied here because leg’n is very similar
← the Act is invalid:
o sets a very bad example and unless stopped will expand to endanger other freedoms in the Cn
o the imposition of continuing detention involved an additional retroactive punishment
▪ punitive issue: the way an individual is treated doesn’t really indicate a shift in purpose ( it is not a new form of “civil commitment” and to the extent that it is, it fails to disguise its true character i.e. punishment
• the Act ultimately deprives people of their liberty and the decision is based, at best, on an informed “guess” ( represents a departure from present notions of judicial function in Australia
• deprivation of liberty should be seen for what it is
• and should be reserved for breaches of the law
o also, it infringed the rule against double jeopardy
← Need to keep our eye on history and the way it has illustrated the detrimental consequences of the over-reach of govt power ( need to remember what happens when we distort judicial power
Judicial power
• The power which every sovereign authority just have to decide controversies between subjects or between itself and its subjects
• Has to be binding and authoritative i.e. has a legal effect
( Huddart Parker
NOTES ON TAKE-HOME:
Need to pin-point references – note the judge whose judgment you are quoting from
20.) JUDICIAL POWER & DETENTION B
1.) PROTECTIVE DETENTION – DETENTION ABSENT CRIMINAL GUILT
The validity of involuntary detention – the situation so far
• The detention of a person against their will may be constitutionally permissible only when determined by a court, and only when the determination conforms to the traditional procedures and safeguards of the judicial process
( Chu Kheng Lim and Kable
Toohey J:
• There are qualifications to the general proposition – it cannot be said in absolute terms that the power to detain in custody is nec an incident of judicial power
• The responsibility for welfare is at odds with the notion that the powers conferred by an Act are of themselves punitive and nec involve the exercise of judicial power ( i.e. involuntary detention for a protective purpose does not require the exercise of judicial power (the exec can exercise the power
Gummow J:
• When you characterise a law as punitive in nature, it attracts the operation of Ch III
• But won’t attract Ch III if the law can be characterised as nec for a legitimate non-punitive purpose
• This includes welfare and protection purposes
Applicability of Ch III to territories (s122)
o Only some judges say it applies
o Others say inapplicable
o So discussed but not resolved
Gaudron’s reconceptualizing of the Ch III immunity – note: at this stage, it was only her advocating this approach
( Kruger v Commonwealth (Stolen Generation Case)
FACTS:
• Leg’n: Aboriginal Ordinance – provides legal authority for removal of Abo kids from their families
• 5 plaintiffs: forcibly removed from families as children and 6th was mother whose children taken away
• Argument: removals involved detention of a kind that could only be ordered by a court and hence entailed an exercise of Cth judicial power otherwise than by a Ch III Court ( therefore provision invalid because Exec exercised judicial power
ISSUES:
• Threshold issue – is Ch III applicable to s122?
• A protective purpose
• Gaudron against the immunity…
HELD:
• Argument rejected – either on inapplicability of Ch III to territories, or on lack of judicial process (court order) required:
o Brennan J: due to accepted doctrine that Ch III had no application in the territories
o Gaudron, Toohey, Gummow JJ: doubted doctrine but rejected argument on the ground that the ostensible concern of the Ordinance with Abo welfare precluded any finding that the forced removal and confinement of Abo children was “punitive” – therefore couldn’t fall within category of “involuntary detention” which requires a court order
▪ Even if they open up the constitutional issue, the legislation was for a protective purpose (which is not a recognizable exception)
▪ Further, Gaudron J now doubted whether any constitutional requirement that detention be subject to judicial process was relevant
o Dawson J: agreed, but then also agreed with Brennan J to say even if they did involve exercise of judicial power, still fail because Ch III has no application to territories
• Gaudron J – most important judgment – against the immunity:
o Plaintiffs argue that with respect to Ch III there is an immunity from detention in custody except due to court order in consequence of criminal guilt (as in, there are only certain reasons why a person can be detained, and otherwise, Ch III steps in to prevent a person from being detained ( i.e. like an immunity)
o But, in Lim, she says she isn’t crazy about idea of Ch III as basis for some kind of Cn immunity
o Here, she explains how she prefers to think of the constitutionality of detention
o If you have a Cn immunity from detention except ordered by a court for punishment of crim guilt, you get an enormous tail of exceptional cases
o Her preferred approach: instead of saying the Cth has a power which Ch III steps in to block, rather, it is an absence of power issue
o You can do things when there is a head of power – so detention of aliens/war-time detention can be justified under parts of s51
o So rather think of detention as possible by some heads of power, but otherwise cannot be provided for (no legislative basis)
▪ So this means that not every law authorising detention in custody is offensive to Ch III
o So simply recasts problem as one of legislative power under s51 rather than immunity which you make further and further exceptions to
▪ Therefore Ordinance not invalid by reason that it purportedly conferred judicial power contrary to Ch III
o So she’s tying it in to s51
o In Al Kateb this argument is taken up by the majority (Lynch: unqualifiedly terrible decision)
2.) IMMIGRATION DETENTION
Detention of non-citizens
• Lim: Remember, leg’n valid because the person was a non-citizen, but there will be a point where detention exceeds what is reasonable and becomes punitive
( MIMIA v Al Masri
FEDERAL COURT:
• The detention became unconstitutional because he was in detention for such a long time
• The qualification given in Lim’s case was made out
Lynch: the worst decision this century…
• McHugh concedes that the Al-Kateb situation was “tragic”
• But it was not for the court to determine whether the course taken by Parliament was unjust or contrary to basic human rights
Indefinite detention of non-citizens is permissible by the Executive
• It is permissible under the Cn for the Cth to detail indefinitely an individual who has not committed a crime
• This is so long as the detention is not for a punitive purpose
Endorsing Gaudron J’s approach to Ch III immunity (i.e. types of detention that don’t contravene Ch III) – think of the issue as one of presence/absence of head of power (characterisation)
o Not crazy about idea of Ch III as basis for some kind of Cn immunity
o how she prefers to think of the constitutionality (validity) of detention…
o Instead of saying the Cth has a power which Ch III steps in to block, rather, it is an absence of power issue
o You can validly detain someone for non-punitive purposes when there is a head of power – so detention of aliens/war-time detention can be justified under parts of s51 (and then you don’t attract operation of Ch III)
o Must be appropriate and adapted
o So rather think of detention as possible by some heads of power, but otherwise cannot be provided for (no legislative basis)
▪ So this means that not every law authorising detention in custody is offensive to Ch III
o So simply recasts problem as one of legislative power under s51 rather than immunity which you make further and further exceptions to
Hayne’s Summary:
▪ Look to the purpose of the detention to determine whether it attracts Ch III
▪ It will only fall under Ch III if it is punitive
▪ The purposes that are “exceptions” must be gleaned from the heads of power which support the law
( Al-Kateb v Godwin
FACTS
• Arrived in Aus by boat in 2000 without passport or visa
• S189 of Migration Act – if unlawful non-citizen, must be detained ( so he was detained under this provision
• AK was stateless and not being granted a visa by Aus govt so could not leave Australia but also could not live here
• Prospects of removal were not going to improve until creation of Palestinian State – not going to happen any time soon
• Al-Kateb applied (unsuccessfully) to the Federal Court for declaration that he was being unlawfully detained and that he should be released. In 2003, pending determination of HC appeal, Al-Kateb was released from immigration detention by Federal Court order with consent of the parties.
• This HC decision put him back in indeterminate detention.
ISSUE:
• When it is not reasonably possible to remove a person, does the section mean Exec can detain a non-citizen indefinitely; possibly for the rest of their lives?
• Was the Act within Cth legislative power?
HELD:
1.) 4:3 – yes, as a matter of stat construction, it is permissible under the Cn for the Cth to detail indefinitely an individual who has not committed a crime ( this was the effect of the leg’n (ss196 and 198): not reasonably practicable to remove him, so he stays
▪ s198 “as soon as reasonably practicable” – it is about when the event will happen, not whether it will happen
▪ therefore it has never been reasonably practicable to remove from detention
▪ even if there is no real likelihood for removal, it does not mean the continued detention is not for the purpose of subsequent removal
2.) Act within Cth legislative power (note that the head of power was aliens)
So Al-Kateb to re-enter immigration detention pending his removal from Australia, which depended on a Palestinian state being created or some other nation being willing to receive him.
• On issue of whether Act infringed Ch III of Cn:
o Hayne J:
o It has not been practicable to effect removal of Al-Kateb but that doesn’t mean it will never happen. As there is no certainty about whether or when Al-Kateb will be removed, the Act doesn’t proceed from a false premise.
o The Act doesn’t infringe Ch III. The provisions of the Act require, rather than authorize, detention i.e. mandatory provision, no discretion ( no exercise of judicial power.
▪
▪ Picked up Gaudron J in Kruger: pushing aside Ch III immunity (it is another way of finding that detention is non-punitive but for a valid purpose)
▪ Instead look at heads of power under s51 – aliens and immigration – allow detention, and a legit purpose of this detention is segregation (which is non-punitive, so doesn’t require exercise of judicial power) – another purpose of detention to keep separate from the community
▪ So recognises that the heads of power would support the law and its purpose
• Head of power issue – is there sufficient connection with the head of power? Provisions are laws with respect to aliens and with respect to immigration.
▪ the effluxion of time does not render detention punitive
▪ So, since laws are validly not punitive (i.e. enacted under head of power), they do not contravene Ch III. Not punitive because:
• Not punishment for an offence
• Preventing a person from entering Aus (segregation) is not punitive
o McHugh J:
▪ The continued detention of a person who cannot be deported immediately does not infringe Ch III – so long as it is not punitive, and protective measures are not punitive
o FOCUS ON PURPOSE OF STATUTE – this is different to Lim which distinguishes citizens and aliens
o Ch III is infringed where detention is authorized by a law of the Cth and imposes punishment. This isn’t the case where purpose is purely protective.
o As long as the purpose of the detention is to make the alien available for deportation or prevent the alien from entering Australia, the detention is non-punitive.
o It is not for the courts to determine whether the course taken by Parliament is unjust or contrary to basic human rights.
DISSENTING JUDGMENTS:
▪ Gleeson, Gummow, Kirby JJ [dissenting]:
o Dissent – this should have been a sign that this was a terrible decision
▪ The appeal should have been allowed on the basis of their construction of the statute:
• Gleeson CJ [dissenting]:
o Doesn’t turn to Ch III, just uses statutory interpretation
o The Act does not in terms provide for a person to be kept in detention indefinitely
o Statutory construction and the principle of legality:
▪ Where what is involved is legislative interpretation and the leg’n is said to confer an Exec power of indefinite detention, there comes into play a principle of legality
▪ for leg’n to have that effect, the words used need to indicate that this was Parl’s intention
• the Act says he must be removed as soon as is “reasonably practical” and does not deal with what is to happen if, through no fault of his own, he cannot be removed
• using stat interpretation, seems there is an assumption that the purpose of s196 (removal) can be achieved and therefore that mandated detention is tied to the validity of that assumption (i.e. if assumption is invalid, there should be no mandated detention)
▪ Inconceivable that parl would have intended to have such a dramatic effect on someone in AK’s situation without expressing it clearly
▪ Where legislation has an effect like this, which is so damaging to the human rights of the individuals concerned, then if this is Parl’s intended effect, they have to be far more express about it than they have been here
▪ Demonstrates how pedantic and narrow the majority reasoning is
o Gummow and Kirby agree but also consider Ch III (the constitutional issue)
• Gummow J:
o Trying to coalesce Gaudron’s view in Kruger with the joint judgment in Lim
▪ Lim: the power of Parl to authorise detention of aliens is limited by reference to purpose of the detention – so looking to limitations on legislative power
▪ Gaudron J: analysed the issue instead as an issue of characterisation and the scope of that legislative power – must be appropriate and adapted
▪ Gaudron is consistent with the view that power is not at large – does not extend to authorise detention for any purpose
▪ If laws under s51 lack validity it is because of the limitation that laws under s51 are subject to limitations required by Ch III:
• Usually argued on basis of punitive vs. non-punitive
• But he insists on fallacy of talking about punitive and non-punitive detention because essentially, imprisonment is the thing – punishment is punishment and imprisonment is punishment
• So this distinction can’t be the basis on which Ch III limitations on custodial detention are imposed
• Really it’s about deprivation of liberty
o The problem with the leg’n from Cn point of view is that the parl has handed over the power to the exec to detain and the legitimate purposes cannot be met
o Not really accepting segregation as non-punitive purpose – this can’t be up to the exec to determine the merits of this and to use it to sustain ongoing detention
• Kirby J:
o Fights with McHugh J about wartime cases
o McHugh:
▪ During war, many people detained under these Regulations
▪ Detention under these Regulations did not infringe Ch III – the purpose was protective not punitive
▪ i.e. arbitrary and unrestricted detention by the Exec in times of war is usual in Australia
▪ If Aus was again at war, no reason to think HC would strike such regulations down today
▪ i.e. there are situations when certain purposes of detention won’t attract Ch III
▪ Kirby:
▪ You have to be joking – the power must be subject to a much more definite review in light of what the Communist Party Case says: as they did in this case, we should reject Exec assertions of self-defining and self-fulfilling powers
▪ Yes detention has occurred at these times
▪ But such cases are now viewed with embarrassment by the USA and thought of as incorrect
▪ Yes, the necessities of war require adaptation of the Cn, but such necessities cannot support the elimination of constitutional requirements, including those required by Ch III
▪ If we encountered war today, the court would approach the matter differently
o In response to McHugh’s label as “tragic:
▪ Tragic situations are best treated by being repaired before they become a settled rule of the Cn
▪ On the constitutional issue:
• The express subjection of the legislative power to judicial power is not a mere formality
• The predominance of judicial power nec implies Cn limitations
• This is because such a power of detention can turn into a punishment in a very short time and punishment under the Cn is the responsibility of the judiciary
Result of Al-Kateb – he was required to re-enter immigration detention pending his removal from Australia, which depended on a state of Palestine being created or some other nation being willing to accept him.
Workability? Isn’t detention of aliens at some level punishment for being here unlawfully?
*** The above touches on many many issues and therefore is a good case in an exam to get us to discuss – same for other cases where many issues are discussed
Reasoning in Al-Kateb applied in the following case…
( Minister for Immigration v Al Khafaji
• Court held that AK, an Iraqui national whom the Aus govt had been unable to remove and had no real prospect of success of removal, must also continue to be detained
Detention that is non-punitive remains this way if this is the purpose
• It does not become punitive due to the conditions of the non-punitive detention
( Behrooz v Sec of Dept of Immigration (2004)
• Arose out of escape by 6 people from Aus detention centre
• Argument: trying to break down the punitive and non-punitive distinction
• Argued that if the conditions of the detention were so harsh as to render them punitive, then the detention went beyond that authorised by the Act
HELD:
• here, the character of detention doesn’t change just because conditions are really terrible – remains non-punitive if this is the purpose
Rejecting another attack on mandatory immigration detention, but from a different angle…
• Lynch: Case can be de-prioritised…
Mandatory detention of children is valid
• detention Acts apply to non-citizen children
• can be validly enacted under the aliens power
Ch III distinction between purpose and effect
• It is not enough that the effect of a law is no different from the infliction of punishment
• In determining whether a law authorises punishment, it is its purpose that is decisive
A law will not be regarded as protective if one of its principal objects is punitive
• But protective laws may also have some deterrent aspects
• But the deterrence must be a primary objective for the law to be characterised as punitve
What is the appropriate test for determining whether a law of the Parl infringes Ch III when it authorises the Exec to detain an alien without an order made in the exercise of judicial power?
• Advocates the use of proportionality when there is a Cn limitation on legislative power:
o The q: whether a law that conflicts with a constitutional limitation is nevertheless vaid because its operation is proportionate to some legit end compatible with the limitation
o But a law that confers judicial power on a body that is not otherwise authorised infringes Ch III and cannot be saved by asserting its operation is proportionate to an object compatible with Ch III
• If the purpose of the law is to punish or penalise the detainee without identifying the reason which gives rise to the penalty this gives rise to the strong inference that it is a disguised exercise of judicial power
The effect of the absence of a time limit on the nature of the detention
• Doesn’t make it punitive
• However, there may be cases that arise where the connection between the alleged purpose of the detention and the length of detention becomes so tenuous that it is not possible to find the purpose of the detention ( then the proper inference will be that the law is punitive and the fact that the law may also have a non-punitive purpose will not save it from its invalidity
( Re Woolley; Ex parte Applications M276/2003 (2004)
FACTS:
• applicants were 4 children of Afghani nationality – applications for visas had been refused
• they were detained
• they did not dispute that they were unlawful citizens, but argued 1.) that the regime of mandatory detention set out in the Act did not apply to children and 2.) the Act was invalid to the extent that it applied to children
HELD:
• 1.) Argument unanimously rejected by the entire court
o The Act was expressed in clear terms with no exceptions made for children
o 2.) Rejected – mandatory detention of children could be lawfully enacted under the aliens power – not incompatible with any freedom from involuntary detention that might be derived from Ch III of the Cn
• McHugh J:
o Retaining distinction between punitive and protective
▪ There are types of detention that cannot be characterised as penal
▪ To determine the purpose of the law, look to the surrounding circs, the mischief at which the law is aimed, the Parl debates preceding enactment of the law
▪ It is the purpose of the law that authorises detention that is the yardstick for determining if it is punitive
o Confusing because Lynch says not clear as to what extent he is retaining Ch III as a check upon the Executive
o It seems the issue of purpose is something he is arguing is relevant to the characterisation approach that Gaudron J offers
▪ Adopts Gaudron’s suggestion that a law authorising detention divorced from any breach of the law, will normally not be referable to any head of power
▪ A fed law that authorises detention without a judicial order prob only valid if detention is incidental to a head of power
o But ultimately he tends to use proportionality with respect to that purpose where Ch III acts as the limitation:
▪ Restraints on power to authorise detention do not derive from Ch III
▪ i.e. constraints drawn from Ch III are constitutional limitations on legislative power, relevant at the stage of characterisation
o Given he has left the court, there is no way what he is saying here is going to be revived in any meaningful way
o Human Rights Commission intervened in the case and submitted info:
▪ Found Aus’s immigration laws created inconsistent detention system, in breach of international conventions
▪ McHugh said the issue before the court was not whether the detention was arbitrary according to international jurisprudence
▪ Have to answer the Cn question as to the purpose of the detention, and whether or not Aus is in breach of int’l conventions does not affect this question
▪ Kirby also found material to be of no assistance: fundamental to Aus Cn is respect for rule of law and if the law is constitutionally valid it is the duty of Aus courts to apply its terms
▪ The policy here is not the result of oversight, it is deliberate after public debate, etc – detention is Aus’s deliberate policy and it has been repeatedly reaffirmed
▪ The Court must give effect to the law; it has no authority to do otherwise
IN SUMMARY ON THIS TOPIC:
• Poss exam q: consider the current position on this issue
• Look carefully at Farden and Al Kateb on the nature of the power and the constraints it provides
• Case stand for a number of different views
21.) FEDERAL COMPACT: THE COMMONWEALTH AND THE STATES A
WHAT WE ARE DISCUSSING?
1. Re-emergence of a federal implication after Engineers
a. Immunity of instrumentalities
b. State and fed govt are autonomous – cannot be bound by the other’s laws
c. Swept aside by Engineers
d. But the idea of immunity has crept back in
2. Securing a better constitutional basis for federal immunities
3. But what is the test – discrimination and /or autonomy and integrity?
1.) THE MELBOURNE CORPORATION PRINCIPLE
Putting limitations on Commonwealth’s legislative powers…
• Re-establishes a fed immunity: states are immune from the Cth
Doubtful as to the precise criteria by which Cth interference of State functions will be found invalid
• Each judge came to the same conclusion based on different reasoning, so there is no clear principle
The Melbourne Corporation principle
(The 2 limb principle comes from Rich and Starke JJ, the discrimination aspect comes from Dixon J ( not sure whether 2 limbs to the test or 1!!)
• There are 2 forms/limbs that the Melbourne principle might take i.e. 2 ways that it can cause Cth legislation to be invalid:
o Discrimination (Starke J doesn’t think this is important or decisive – looks to limb #2)
o Impositions/restrictions which impede essential functions
▪ Does the law disturb curtail or interfere in a substantial manner with the exercise of State independent power?
o So when Cth legislates in such a way as to have this effect on State functions/powers, the law will be invalid, regardless of whether the Cth law can ALSO be validly characterised under a head of power
o i.e. while usually, it is sufficient to validly characterise a law under one power, even if this occurs but the law discriminates or impedes, then it will make the law invalid
Applies to states and agencies of states
( Melbourne Corporation v Commonwealth
FACTS:
• During WWII
• Cth legislated on banking
• S48 Banking Act (Cth): compels states to bank only with Cth bank rather than with private banks
• Melb Council notified it should act as authority to which s48 applied – sought to have s48 declared invalid
HELD:
• Law found to be valid under s51(xiii) – banking power other than state banking
o Lynch: odd – how does leg’n not concern state banking?
o HC: the prohibition on “other than state banking” refers to the states as bankers, not as customers
• But law struck down – objection to it was that it interfered directly with the independent operations of the states – the Cth was overstepping the boundaries and trying to regulate state functions
• So there was a valid legislative basis, but Court still refused to find it valid
o But every judge had different emphasis in holding it to be invalid
• Dixon J:
o Law will be struck down if it imposes a disability on states
o This law (banking law) has 2 aspects:
▪ (1): law connected with subject of Cth power ( it is a law on something under s51 (this would initially make it valid)
▪ (2): law enacted to restrict state action ( can characterise the law by saying this is a law which targets state
▪ So initially, it operates very directly on a grant of power i.e. clearly a law on banking (makes it valid)
▪ Once it appears it has an immediate operation on something under s51, this is enough, unless some further reason appears for excluding it (so talking about dual characterisation)
▪ But then says, even when you have this situation, the fed system itself will provide the restraint on power
• Sort of an immunity derived from the fed system as a whole ( the efficacy of the system logically demands than unless a given power appears so to intend, it should not be interpreted as allowing Cth to make a law restricting states
• because of the secondary way in which you can characterise the law (usually don’t care about this – usually enough that there is one valid way to characterise a law)
• but where you can characterise the law on basis that it is directed towards states and limits/controls their powers, then this may still be unconstitutional because it is offensive to the federal scheme itself
o So the essence of the Melb Corp principle:
▪ The Cth can only go so far
▪ This is a change from the cases we have been studying
▪ There is a point beyond which the Cth cannot constitutionally go
▪ Why? b/c the Cn creates states and they have to “do stuff” on their own
o Explains how this is different from the pre-Engineers view:
▪ Trouble with pre-Engineers approach was use of s107 as some kind of specific check upon the ability of the Cth to eat into the residue
▪ Says this has nothing to do with s107 – not reverting back to this view
▪ Not about the nature of the powers retained by the States and immunity from Cth
▪ More an immunity derived from the fed system as a whole rather than anything special about state power (approach of early court)
▪ The efficacy of the system logically demands than unless a given power appears so to intend, it should not be interpreted as allowing Cth to make a law restricting states
▪ So drawing an implication from the structure of the Cn which establishes a FEDERAL STATE
• Rich J:
o Comes closest to Dixon J – approaches the issue as implied immunity rather than that of characterisation
o Limits that prevent states from continuing to exist and function are invalid
o Says this may arise in 2 cases:
▪ Where Cth singles out States and imposes on them restrictions which prevent them from performing their functions/impede them ( discrimination
▪ Where, although not singled out, States are subjected to some provision of general application which prevents/impedes them ( impositions/restrictions
• So Dixon and Rich favour idea that there are 2 forms/limitations that the Melbourne principle might take (i.e. 2 ways that it can cause Cth legislation to be invalid):
o Discrimination
o Impositions/restrictions which impede essential functions
• View isn’t shared by all judges
• Starke J:
o Bases his decision on the separation of powers – object of the Cn to maintain the separation of Cth and States
o Discounts discrimination as being of much importance at all – not a decisive test
o So 1 limb test
o He says it is all about the 2nd question – does the law disturb curtail or interfere in a substantial manner with the exercise of State independent power
• Latham J – bad law:
o Agrees that discrimination against States is not the decisive factor – why should legislation discriminating against states be held to be invalid?
o The reason why leg’n is invalid is because it restricts states or state functions and therefore it is not within power
o He uses a method of characterisation which we have well and truly departed from (“either/or” characterisation)
o Latham ignores the s51 characterisation of banking, and then says it is invalid because it is outside s51 because s51 doesn’t allow for legislation on states (idea that you can ignore a sustainable connection to a s51 head of power is not used anymore) ( Dixon J approach is much more effective and substantiated
ISSUES FROM THE ABOVE CASE:
• 2 areas of concern, or just one?
o From this case, we don’t know whether there are 2 limbs to the principle or 1
• A characterisation issue – or an implied immunity? If the latter, how to reconcile with Engineers?
o Also don’t know whether it is an implied immunity or characterisation issue (but prob implied immunity)…
o If implied immunity, what about the fact that Engineer’s struck out an implied immunity? (Dixon tries to address this)
o So don’t have a very clear guiding principle
Unravelling Melbourne Corp in Payroll Tax…
( Payroll Tax Case
• Again not very clear
• Retains lack of consensus
• Some judges follow Latham J, some don’t
2.) TWO LIMBS OR ONE?
A separate limb against the Cth discriminating?
2 limbs
▪ discrimination as a distinct limb of the doctrine becomes very clear (the existing court today has tried to wind back a bit from this)
Extra qualification – the principle prohibits impairment of the state’s functions as a government
▪ but this doctrine prohibits impairment of the capacity of the state to function as a govt rather than prohibiting interference with state govt functions
▪ not enough if the Cth law is simply interfering with State functions – must be in specific capacity
( Tasmanian Dams Case
• Explains why the court does what it does in QEC (following case)
FACTS:
• Melbourne Corps argument: the law discriminates against Tasmania and implied essential state functions
HELD:
• Mason J:
o Very clearly rejects the characterisation approach which was endorsed by Barwick J in Payroll Tax Case
o as for whether there are 2 limbs to the rule:
▪ idea of discrimination as a distinct limb of the doctrine becomes very clear (the existing court today has tried to wind back a bit from this)
▪ it isn't simply any time where a Cth law inhibits the states that this applies (s109 confirms that the Cth can do this at times) ( i.e. don’t apply the principle absolutely every time the Cth limits State functions
▪ but this doctrine prohibits impairment of the capacity of the state to function as a govt rather than prohibiting interference with state govt functions
▪ so here, it was not enough that the Cth were inhibiting a state function, not inhibiting the state as a govt
Invalidation of Cth law because it discriminates against states in a way that infringes the Melb Corp principle
The Melb Corp principle has 2 limbs
The discrimination limb
▪ Discrimination can be against a particular state (as it is here) or against the states generally
▪ Applies for the state exec and legislative branches
▪ Just because a state is deprived of a privilege or benefit (affects the state in some way) it is nec discrimination under the Melb Corp principle
The test
Deane J (not main judgment):
o To discriminate, the law’s operation must involve the singling out of states to make them objects of burdens o diabilities
o Resolve by reference to application of the law in the circumstances
o E.g. where law applicable to industry that only the states are involved in
( QEC v Cth
FACTS:
• Trade Unions in Qld imposed a strike in protest against Qld legislation which curtailed union rights and banned stikes by electricity workers
• So Union striking also due to employment conditions with QEC
o Qld Govt inserted a clause via leg’n into the employment contracts of every QEC employee – enabled them all to be sacked
• Unions went to have dispute resolved under Commission
• So Cth (in aid of the Unions) got involved by passing leg’n confirming that the Commission had jurisdiction to hear the dispute ( leg’n directed the Cth jurisdiction to resolve the dispute
• Qld challenged the leg’n as a breach of Melb Corp principle (discriminating against states), in particular, alleged the discrimination ground, not the impairment of govt functions ( they didn’t want the Cth to be resolving the dispute
• So the QEC is an agency of the State
HELD:
• Based decision on the discrimination limb
• Cth law struck out – most judges found the Act wholly invalid, while 2 found parts invalid
• Mason J (leading opinion in this case):
o There is discrimination on these facts
o The provisions here are so extreme that they clearly discriminate
o Sometimes a law which, on its face, appears to discriminate does not because it simply deprives a state of a right which others do not enjoy
• Deane J:
o A law that is of general application could still be discriminatory against the states
o This clouds the clarity that Mason’s dual approach has given us
Rejecting discrimination as part of the test – only the 2nd limb stands
Gaudron, Gummow, Hayne, Kirby JJ:
o Reject the idea of discrimination as a stand-alone limb
o Discrimination alone would not suffice to attract invalidity.
o Discrim is subsumed in the 2nd limb – what is important is whether the state suffers, whether the law restricts or burdens the states in their constitutional powers
o So discrimination is collapsed into the second limb
The new test
o Was the imposition of the surcharge (i.e. the discrimination) beyond Cth power by a sufficiently significant impairment of the exercise of State functions?
o KEY ISSUE: Does the leg’n, whether targeted to states or of general application, mess with State constitutional functions to a significant extent? i.e. does it burden the States in this exercise?
Bayside: "the Melbourne Corporation doctrine presents an inquiry whether the federal law in question, looking to its substance and operation, in a significant manner curtails or interferes with the capacity of the states to function as governments"
( Austin v Commonwealth (2003)
FACTS:
• Employees contributed to superannuation fund
• Govt was taxing the contributed money
• Judges don’t have super, they have a pension paid by the states
• Cth can’t tax states (s114), so has to be taxed once in the hands of the judges
• So Cth legislation – Assessment and Collection Act: as soon as judged retired, taxed judges in a big way
• So judges treated differently from other people under super schemes
• Judges got together to launch litigation against Cth arguing the Melb Corp principle ( creates a staffing crisis and the states need judges, so goes to an important Cn function and becomes a state issue ( the effect of the leg’n will be to drive people from the judiciary early and make it impossible for the states to put people in those roles
• Discrimination is also argued
HELD:
• Gaudron, Gummow, Hayne JJ:
o Rejecting discrimination as being a stand-alone limb:
▪ It is a vague concept that is difficult to assess: what is the first step? The unequal treatment of equals or the equal treatment of the unequal?
o ISSUE: was the imposition of the surcharge beyond Cth power by a sufficiently significant impairment of the exercise of State functions?
o The impairment was sufficiently significant
o Judicial remuneration is such an important part of state systems that the leg’n, regardless of who it is directed to, is seen as impairing state functions
o The provision of secure judicial remuneration serves a number of important advantages:
▪ Encourages people learned in the law not to go for higher-paying jobs, assists the attraction to office of those without independent wealth, secures independence of mind and spirit
• Gleeson CJ:
o Favours retaining discrimination as an element of the immunity but connects it to the essential principle from Melb Corp (so doesn’t really depart from what Mason was saying, just favours 1st limb)
▪ But this is mostly obiter because it is not the basis of the decision
o Essentially, he agrees that the tax will affect the recruitment and retention of judges which is clearly impacting on state constitutional functions
• McHugh J:
o Approach is similar to Gleeson’s i.e. do we really need to remove discrim?
o Says we have a precedent of a 2 limb test – so why do we need to have only 1 limb?
o Perhaps there is nothing of substance distinguishing the 2 limbs but if at best they replicate each other, we still gain nothing by severing discrimination
o Otherwise, McHugh J agrees with the majority about the problems of the Cth leg’n but he stresses (as all other judges do) that the whole case is about discrimination
o Here, the federal law discriminates against State judicial officers in a way that interferes in a significant respect with the States’ relationships with their judges
• Kirby J [dissenting]:
o Agrees that discrimination should not be a stand-alone part of the Melbourne Corporation principle (so 4 out 6 judges say this)
o But doesn’t see the legislation and tax as having a significant and detrimental effect on the power of the State – doesn’t come close to jeopardising the selection and retention of State Supreme Court judges:
▪ Salaries are not fixed or limited by the legislation – they can be changed
▪ Judges aren’t all going to retire at the first opportunity
▪ The legislation has been in place for a while and there hasn’t been a significant decline in the no. of judges
▪ Some judges may now not want to be a judge, but given the general applicability, you’re definitely going to have the tax if you stay in your private profession anyway
Result:
• Applies a constitutional implication
• There is discomfort in applying Melb Corp principle to protect judges
• Lynch: doesn’t think the majority’s argument is at all convincing, and the more powerful arguments don’t hold much sway
22.) THE FEDERAL COMPACT: THE COMMONWEALTH AND THE STATES B
1.) INDUSTRIAL RELATIONS LAWS AND STRUCTURAL INTEGRITY
What protection (if any) does Melb Corp give State govts as respondent employers under the federal system of industrial arbitration?
← Not much protection, but there are limits to the Cth’s ability to control industrial arbitration
← Cth industrial relations system could apply to persons employed in the administrative services of the State i.e. Cth can legislate for State employees
← But there are limits to this concept
← Cth can only control those aspects of IR that are not critical to the state’s constitutional functions as a govt i.e. those not relevant to its “autonomy” or “integrity” (these areas are left within the State’s powers)
← So autonomy and integrity are viewed as (somewhat vague) criteria of immunity from Cth power
Result:
← Subjects State govts to federal law at an operational level, but accords them immunity for policy decisions and employment conditions “at the higher levels of govt”
( Re Australian Education Union; Ex parte Victoria (1995)
FACTS:
← Dispute concerned redundancy packages offered to Vic school teachers and public sector health workers
← Unions representing these ppl sought to have the redundancy issue covered by fed awards
ISSUE:
← Whether the Cth’s Conciliation and Arbitration Commission had the jurisdiction to determine industrial disputes concerning state public servants (state employees)
HIGH COURT:
← 6:1 - Cth industrial relations system could apply to persons employed in the administrative services of the State
← Commission could do this because in its power to make awards over state public servants, it didn’t affect the state’s constitutional capacity to function
o Yes, the freedom of States to determine terms and conditions of employment would be restricted but that is a consequence of the application of the arbitration power to the States
← But there were limits on this based on 2 kinds of distinctions:
o Look to aspects of the law that impair a State’s “integrity” or “autonomy” – directs attention to aspects of a State’s functions which are critical to its capacity to function as a govt ( these are the things on which the Cth is not allowed to legislate, but it may legislate on things not falling into this category
So… used this to draw some disctinctions as to what the Cth could control…
1. The Cth could deal with min wages and conditions, but not the number employed, identity, eligibility, duration and termination of employees because these are under the state budget (critical to state function)
2. High and low level employees – Cth can’t regulate anything for high level employees (ministers, advisers, staffers – people connected to the intimate workings of govt)
▪ Lynch: thinks Dawson’s approach is clear and sensible
DAWSON J [DISSENTING]:
← Rejected distinctions drawn by the majority
← Too difficult to find the point at which a law of general application prevents a State from functioning as a govt
▪ Dawson J: This is ridiculous – really, these issues are all related – the first issues go to state functions as well
▪ If the determination of number and identity of persons to be employed is critical to the functioning of a State, then so too will the wages and terms of employment be critical
▪ Similarly, artificial to draw distinction between those employed at high and low levels of govt – to do so is merely to revive the distinction b/w industrial and non-industrial functions which is of little relevance in this context
▪ A state can function only through the people it employs, whatever the level of government
The case was somewhat of a pyrrhic victory for trade unions and the State (won at too great a cost for the victor)…
Examples become rigid categories
← Although the 2 specific examples of State immunity provided in the above case were merely suggestions of the broader principle, in the next case they were treated as rigid factual categories
← i.e. high level govt workers and State dismissals on the grounds of redundancy – provisions affecting these areas are always invalid
Can read down provisions so that they don’t operate to offend the Melbourne Corp principle
← this means reading down the legislation so that it does not operate with regards to the 2 abovementioned categories
( Victoria v Cth (1996) – IR Act Case
ISSUE:
← Did the provisions in the IR Reform Act affect the matters listed above?
← If so, the provisions had to be declared invalid, or read down under s15A to avoid that invalid operation
HELD:
← Issue considered in relation to minimum wage – i.e. can you extend this legislation to high govt officials?
← Court just reads down the leg’n so as not to apply to the high level employees – so leg’n treated as being valid
← If that option was not open, the attempt by the Cth to regulate employment of high level employees would offend Melb Corp principle (so provisions would have to be declared invalid)
Again showing reluctance to apply Melb Corp to restrict Cth with respect to IR if the laws don’t affect vital functioning of the States
← But not really saying anything satisfactory about Melb Corp, because it is subsumed by a focus on the bigger picture
( NSW v Cth (2006) – Work Choices Case
FACTS:
← Plaintiffs argued that s117 of the Workplace Relations Act – which empowers the Aus IR Commission to make orders retraining States from dealing with matters before the Commission – offends Melb Corp, either in its own right, or by upsetting the federal balance giving the Cth too much power at the expense of the States
HELD:
← Rejected by the majority of the Court
← Majority don’t give this a lot of time: nothing here that is so vital to the functioning of the state so as to say that a section of the Act impedes the exercise of constitutional functions
← The fact that some of the grounds on which NSW based their argument had never been mentioned before gave the arguments little merit
← S117 gives no power to make orders directed at the core of the State judicial systems – interference which s117 permits is relatively minor – doesn’t affect capacity of the State to function as a govt
← All challenges to s117 fail
DISSENT – KIRBY & CALLINAN JJ:
← But the dissenters give the issue more time:
o They based their arguments on the importance of federal balance, don’t really engage with the Melb Corp principle
▪ There isn’t a Melb Corp objection to be made – but they use it as a call for the reappraisal of the principle generally – we’re done with Engineers and we need to return to some kind of broader federal immunity
o Callinan J:
▪ He essential vice of the legislation was its distortion of the federal balance
▪ Fed balance: a sharing of power – nothing in the Cn to suggest the Cth’s powers should be enlarged so that the Parl of each State is progressively reduced
▪ Our Parl is dual system
▪ Taking swings at Engineers: says it should not be applied so strictly so as to exclude the court’s responsibility to maintain a federal balance
▪ This Act distorts the federal balance by intruding into industrial and commercial affairs of the States
o Kirby J:
▪ Issue of fed balance not as pressing
▪ For him, the vice lay in the law’s departure from the traditional Aus approach to IR established under s51(xxxv)
▪ But he invoked fed balance as an additional consideration that expressions used to circumscribe power under s51(xxxv) should operate as limitations on any exercise of power under s51(xx)
▪ Defending the checks and balances of governmental powers in the Constitution is thus a central duty of this Court
▪ Just as the needs of earlier times in the history of the Commonwealth produced the Engineers Case, so the present age suggests a need [151] to rediscover the essential federal character of the Australian Commonwealth.
o Both conclude that the legislation must be characterised as a law with respect to IR under s51(xxxv) and tha s51(xx) must be read subject to what Callinan J described as “the implied negative restriction on s51(xxxv). Reasons:
▪ To give the Act the operation claimed by the Cth would be to authorise it to trespass on State functions
▪ The validation of the legislation would constitute an unacceptable distortion of the fed balance intended by the founders
▪ So the bigger picture dominates and what is said about Melb Corp in this case is unsatisfactory
▪ Using Melb Corp as a stepping stone to a bigger argument
MELB CORP SUMMARY:
← Last ditch preservation issue
← Not a retreat from Engineers
← The idea behind it is clear but the test behind it is confused
o i.e. does discrimination matter? Don’t write it off just yet because despite the 4:2 decision, the case argument seems to be based on discrimination
o in exam, need to acknowledge the conflicted state of the authorities
23.) SUMMARY
BASICS – TYING THE STORY TOGETHER BY LOOKING AT UNDERLYING THEMES:
Constitutional (as opposed to simply parliamentary) supremacy
← The point of the course was primarily to look at the validity of Cth legislation
← Exercise of trying to find whether they were within a head of power
← This illustrates we live in a system of constitutional supremacy – Cn is the supreme source of legal authority
← Comes from having a written Cn
← Can hold the legislature to account using the Cn
Rule of law
← Necessitates a commitment to the rule of law because courts must uphold the paramount nature of the Cn law
← The legality of govt action is open to challenge
← And this is what constitutional cases are all about
← Fundamental idea is to insist upon there being some limits, even when enormously broad powers given
← Communist Party Case: what it stands for – the claim/conferral of unreviewable discretion as to matters going towards jurisdictional validity, cannot be denied to the courts – they cannot be shut out of this process
← But note, not for the court to decide whether it is a good or bad law; rather, rule of law requires that society is governed by law, rather than arbitrary will
Separation of powers
← Arms of govt can only do what the Cn will allow – stream cannot rise higher than its source
← No way for them to operate outside of this e.g. legislature unable to consider on exec a discretion to make a judgment about when legislative power is or is not activated i.e. when you actually have a security problem that invokes the defence power
← Cn provides for this in its structure – separates the powers
← Strictness of sep of judicial power tempered by persona designata exception but there is still a very fixed separation in place and you can use this to defend the liberty of the individual e.g. Crouger, Al-Kateb
← This works by making the argument that detention is somehow peculiar to judicial power (it obviously isn’t exclusively judicial i.e. detention may be justified using some other purpose)
Judicial review
← Review: method of check and balance of powers
← In a system with strong sep of judicial power, not surprising that judicial review is the main check and balance of this power
← Manifested in all cases – this is precisely what is occurring
← But the court subscribes to a narrow conception of what JR requires of it – so not a powerful as check as the power wielded by the US Supreme Court
← In part, this is because that court has broader jurisdiction, has Bill of Rights
← Also determined by political theory – judicial review imbued with deference to the other arms of govt (not seen under US system)
Representative and responsible govt
← Rep govt manifested mostly by ss7 and 24, also constitutional convention e.g. s64 is a signifier
← Offered in Engineers as basis of Cn law
← Rejects political implications in deference to the ability of the legislature
← Accountability provided by system of resp govt that allows judges to rely on plain and ordinary reading of the text
← Uniform Tax Cases – demonstrate court’s role and willingness to intervene on Cn issues relating to split of power between Cth and states
← Approach of resp govt is based on idea that the court’s role is not to pre-empt abuse of power and operate out of distrust
← Melb Corp Principle is rarely resorted to – emergency mechanism in many ways
← Good cases: Cartinyeri, Hindmarsh Bridge Case, Al-Kateb
← Notion has also been used not as a justification for, but as a curtailment of, broad legislative power – seen in implied political freedom cases
← To protect implied freedom cases, limited legislative/exec powers – protecting system so it will work to deal with abuse
THE FEDERAL COMPACT:
S51 and our unexpressed assumptions:
← Assumption was that Cth would be minimalist and States would use their residue to broad effect
← This has not happened – chiefly because the Cn was misconceived in this sense
← Compared to Canadian situation
← So Cn has managed to achieve the opposite of what it was meant to do in relation to Cth and State powers – acts as a gateway in the court’s hands to a lot more power for the Cth
← The role of unexpressed assumptions (in distinction from implications) – implications from Cn itself are legitimate
← So Engineers placed constitutional law onto its present track
The growth in Cth power:
← What was wrong with the implications before 1920? Lack of sound constitutional basis in the legislative instrument
← Shackles removed
← So enormous growth in Cn power
← Interpretation of s96 grants is pivotal
← Interesting that this could all have gone another way ( Dixon in Second Uniform Tax Case
← Significant growth especially in the areas of corporations (Work Choices) and external affairs (Tasmanian Dams)
← Even limitations have been expanded
← S109 confers an upper hand to the Cth
← Exception: Metwally – can’t retrospectively enact
← But mostly Cth given control over fortunes of state legislation
The limits on Cth power:
← Pre 1920 fixed limits have been removed
← Melb Corp – but this is a very limited doctrine, doesn’t substantially limit
← Limits found in the sections themselves e.g. s51(i) in what it doesn’t contain, s51(2)
← Limits from sep of power in Ch III
← Restrictions on ability of Cth to confer abilities on their own courts – Farden
← These limits are derived from Ch III
← Most things referred to as freedoms in the Cn are really limitations on power rather than individual freedoms
The federal balance:
← How significant is all of the above for fed balance? Hugely
← Have cases destroyed the fed balance?
← What other forms of fed balance are possible? E.g. cooperative balance
← Workchoices: some judges say there is fed imbalance but don’t say how restructure would work
READING THE CONSTITUTION – THE METHODOLOGY:
History – the debates:
← There is the ability to have recourse to the debates (Cole v Whitfield) – to unlock s92
← Also invoked in discussing s80 – trial by jury provisions
← In sections like these where words are obtuse, the debates have been quite important
← More generally, Lynch thinks they are of limited use
← Complete non-impact on federalism issues
Framers’ intentions:
← Largely through the text that court’s have been willing to discover intentions
← Text is not irrelevant
← But at the same time, court can’t help themselves but have in mind the framers’ intentions behind that text
← Framers’ intentions – originalisam justification (Dawson J in Tas Damn, Callinan J in Workchoices)
← A recourse to intentions will often be produced to present particular arguments – it’s a very hands device for making a particular case (but it can then just as easily be rejected)
← Kirby J is the court’s current anti-originalist
← Workchoices is a good indication of where court stands on the issue – good indication but not determinative
The text in focus – Engineers:
← The text alone will provide you with all you need: Barwick CJ
← There is little certainty to be found in textual interpretation e.g. Dogs Case
← There are clear e.g.s where a focus on textualism just creates further division and necessitates the bringing into play of other considerations
Necessary implications – inescapable?
← Arise from the structure of the Cn
← E.g. Melb Corp and Boilermakers
← The need for implications is obvious
← The Cn is written very sparely, based on assumptions given very little textual acknowledgement
← Don’t adopt a mean or narrow approach to its terms
← The difficulty with implications is making sure they are legitimate ( this has tended to require an anchor in either the text or the structure
← Remain controversial areas e.g. freedom of political communication and pre-Engineers stuff
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