The Corporations Powers
S 51(xx) provides: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order
and good government of the Cth with respect to: [...] foreign corporations, and trading or financial corporations
formed within the limits of the Cth; [...]
1. What are the entities with respect to which Parliament may legislate?
2. What kinds of legislation may Parliament make with respect to these entities?
1. Is the body regulated by s51(xx) a constitutional corporation?
1.1 Foreign corporation: not formed within Cth and has separate legal personality under foreign law
1.2 Trading corporations: Formed within the limits of the Cth, set up primarily to engage in trade. 3 tests:
1.2.1 Purpose of creation (nature determined by the purpose for which it was created). St George County Council
(1974): local council not a trading corp because one of its functions was to supply electricity
 Gibbs CJ: purpose not trade, but ‘for local government to provide an essential service to the inhabitants’
 Menzies J: companies established to undertake public works for community benefit may not be trading
corporations. A uni may have a bookshop and a church may run a charity shop, but this does not make
them trading entities.
1.2.2 Predominant activity (current activities of corporation). Adopted by dissenters, Barwick, Stephen, St George
 Barwick CJ: a trading corporation is a corporation whose ‘predominant and characteristic activity’ is
trading in goods or services (524). The purposes for which a corporation trades are largely irrelevant. It is
the company’s current activity that matters, not its original purpose.
 Stephen: Current activities less important than intended activity
1.2.3 Substantial activity (favoured approach, are activities a ‘substantial’ or ‘not insignificant’ part of the
company’s operations?). adopted by Mason, Murphy in Adamson’s Case (1979): WA and SA Aussie Rules leagues
rules prevented player transfers without the consent of the player’s current club. Issue: whether the rules were in
breach of the TPA in restricting trade. both held a trading corporation must have trade as a substantial part of its
current activity, while not set up primarily for trade, it was a substantial part or operations (Merchandise, tickets,
food, dividends)
 Murphy: ‘as long as trading is not insubstantial, the fact that the trading is incidental to other activities
does not prevent it being a trading corporation. Mason: preferred St George dissent
1.3 Financial corporations: definition adopted by Mason, Murphy, Deane in Superannuation Board Case (1982):
‘A company that trades in finance (e.g. borrows or lends money), as opposed to dealing in goods or services’. E.g
Banks, building societies and broking firms
 Deane J: a super fund for Vic public servants was a financial corporation as financial activities constituted
a substantial part of its operations. Determining by if it engages in significant trading activity rather than
comparison of its activities significantly lowered threshold.
 Barwick: look beyond predominate activity, make judgement considering all future + current activities
 Gibbs CJ, Wilson dissenters: purpose of the corporation was governmental, not financial
2. Does trade occur only within one state?
 Huddart Parker v Moorehead (1908): early HC ruled s51(xx) didn't extend to corporations trading within a
single state. This was overruled in Concrete Pipes, Huddart was wrongly decided, as it relied on reserved
powers reasoning but was struck down breadth (not limited to constitutional corporations)
 Strickland v Rocla Concrete Pipes (1971): did TPA (Cth) provisions on anti-competitive conduct apply to a
corporation trading exclusively within Qld? intra-state trading corporations were within Cth power
3. is corporation covered by the act
 S51(xx) is a power with regard to a particular type of entity. It is not a purposive power (like defence) or a
power to regulate a specific activity. HC determines outer limits on a case-by-case basis
2.1 Creation and abolition
 Cth lacks the power to legislate with respect to the incorporation of corporations.
 NSW v Cth (Incorporation Case) (1990): cth enacted corporations act, a comprehensive scheme to
regulate australian corporations: 6:1 The words ‘formed within the Cth’ refer to corporations already
formed under state laws. States eventually referred their corporations power to the cth
1

Cth v Bank of NSW (Banking Case) (1948): Parliament may regulate the activities of corporations, but not
ban them or remove their legal status.
 Cth may incorporate corporations by relying on other heads of power, Keyzer: ABC is incorporated under
s 51(v) conferring power to legislate for ‘postal, telegraphic, telephonic and other like devices’.
2.2 Distinctive character test (narrow view)
 subject matter of the law must relate to ‘distinctive character’ of trading and financial corporations, not
relations of corporations with contractors or employees.
 Re Dingjan; Ex parte Wagner (1995): legislation enabling a tribunal to set aside ‘unfair contracts’ entered
into by constitutional corporations was outside power 4:3. Toohey and mchugh: ‘it is a plenary power
and the only test is sufficient connection – not sufficient here. Left scope open to uncertainty.
2.3 Object of statutory command test (wider view, preferred): constitutional corporation within the object of laws
command cf. dingjan.
 if law instructs a constitutional corporation to do or not do something, it is likely to fall within s51(xx).
also supports laws aimed at protecting corporations from conduct intended/likely to cause them loss or
damage.
 Work Choices Case (2006): series of controversial amendments to the Workplace Relations Act 1996 (Cth).
supported by s 51(xxxv) (conciliation and arbitration). But instead sought to rely on corporations power
and regulate employers operating within a single state. Brought 85% of national workforce within federal
jurisdiction. challenged on a number of grounds, including:
o deals with internal relations of corporations with their workers, rather than their relations with
external entities. rejected as unjustifiably limiting the plain words of the power ‘there seems
every reason to treat relationships with employees as a matter external to the corporation’
o The existence of a specific industrial relations power in s 51(xxxv) precludes using s 51(xx) for
industrial relations purposes. rejected based on the Engineers doctrine (states don't have
reserved powers) and multiple characterisation. (Preferred test is distinctive character)
o Majority: Gleeson, Gummow, Hayne, Heydon and Crennan upheld legislation on a broad reading
of s 51(xx). The law regulates constitutional corporations and is therefore within the power.
o strong dissent: Callinan, Kirby: unless powers like s 51(xx) are limited federal balance will be
destroyed.
o Callinan: nothing in Constitution to suggest that the Cth’s powers should be enlarged, by
successive decisions of this Court, so that the Parliament of each State is progressively reduced
until it becomes no more than an impotent debating society. This Court too is a creature of the
Constitution. [...] The Court goes beyond power if it reshapes the federation
o Wide reading to 51(xx) but limited 51(xxxv) to irrelevance
2.4 Third parties
 Actors and Announcers Equity v Fontana Films (1982): provision of TPA prohibited secondary boycotts of
corporations (where action is taken against a corporation to stop it dealing with a third party who is the
real target of the action). upheld on the basis that it regulates third party actions that are intended to
cause corporations loss or damage.
o Narrow view: regulating corporations activities. Gibbs: relied on federal nature of const and
warned against giving Cth too much power to make any kind of law. Requisite connection
required to limit this. broad interpretation woulfd have extraordinary consequences and may
subvert the federal nature of the const.
o Broader view: regulating corporations generally: gained momentum after influence of Mason J
who dismissed the narrow view: ‘a constitutional grant of legislative power should be construed
liberally and not in any narrow or pedantic fashion.
 Fencott v muller: s51(xx) may extend beyond corporations to regulate conduct or behaviour of individuals
2.5 lack of sufficient connection
 corporations power is now very broad and workchoices cemented this, but HC has occasionally been
willing to strike down law for not being sufficiently connected.
 Davis v Cth (1988): legislation sought to give the ABA a monopoly over certain words and symbols,
including ‘200 years’. Held: s51(xx) would cover misleading use of corporate names or symbols, but
granting a monopoly over ‘200 years’ beyond its scope.
2

Tas dam: cth prohibited hydro-electric-comission of Tas from building dam, even though building the dam
was not a trading activity, as it was preparation to trading
3
Taxation, Appropriation and Spending Powers
1. Is the law valid? Does it fall within head of power?
 S51(ii): Parliament shall, subject to Const, have power to make laws for peace, order and good gov of Cth with
respect to: … taxation; but not so as to discriminate between States or parts of States. ‘concurrent’
o Fairfax v Federal Commissioner of Taxation (1965): superannuation fund taxed unless they were
invested in prescribed public securities. Purpose: investment incentive. Argued not a law ‘with
respect to taxation’ as its purpose was unrelated to revenue. Rejected by HC parliament may use
s51(ii) to regulate activities that normally fall outside Cth jurisdiction
 s 90: duties of customs and excise power belongs exclusively to the Cth.
o narrow definition helps prevent VFI
o excise duties are levies on goods at any point of production/distribution connected to output
o Peterswald v Bartley (1904): licence fee on brewers not an excise duty, as not related to output.
o Dennis Hotels v Victoria (1960): distinction between licence fees and duties of excise. Fullgar, Kitto and
Taylor, narrow approach: licence fee levied on retailers or consumers at the point of sale is not an
excise duty, even if based on turnover (Has withstood numerous challenges)
 Dixon CJ, McTiernan and Windeyer dissent: wide approach considering substance. licence fee
would be passed on to consumers
o Matthews v Chicory Marketing Board (1938): levy calculated by acreage planted sufficiently related to
output to qualify as an excise duty. Vic law imposing the tax was struck down.
o Capital Duplicators v ACT 1993): tax on retailers based on the production or distribution of the goods,
rather than purely their sale, is an excise duty. (backdating)
o Dickenson’s Arcade v Tas (1974): states may impose consumption taxes. Menzies, Gibbs, Stephen and
Mason: followed Dennis Hotels literalist precedent Gibbs: immaterial that it had same effect as tax on
retail. Barwick, McTiernan dissent: focus substantive affect not form
2. Must fulfil the definition of tax: ‘a compulsory exaction of money by a public authority for public purposes,
enforceable by law, and is not a payment for services rendered.’
 Matthews v Chicory Board (1938): Vic gov authority imposed tax on chicory cropped land and sold it to NSW
buyer. Was an excise and prohibited under s90. Latham CJ tax is (Air Caledonie: not exhaustive):
1. A compulsory exaction of money (AG NSW v Homebush: choice may exist on paper but not in practise.
Storage of flour at own expense and risk meant it was cheaper to by own flour back at extortionate price.)
2. By a public authority (a public authority is established by an act: Tape manufacturers v cth)
3. For public purposes
 HC has treated fees imposed on individuals that serve public interests as taxes (air caledonie)
 Charge must not be for enforcement of pre-existing private liability (lutton v Lessels)
 All funds raised by Cth must be paid into CRF. Funds may be appropriated ‘for the purposes of the Cth’ per
S 81 as authorised by legislation: s83.
 AAP Case (1975): AAP made tied grants to regional councils conditional on the councils implementing
federal government policies. Challenged as funds were not being used for the ‘purposes of the Cth’ but for
local government activities. Held: ‘purposes of the Cth’ are whatever purposes the Parliament chooses,
wide interpretation.
 Second Uniform Tax Case (1957), Dixon: by giving tied grants states under s 96, to states or local councils,
the federal government may accomplish policy objectives outside normal powers of the Cth
o HC: grants aren’t coercive because they don't have to accept grants
o Quick and garran: intended to be used in cases of emergency  medicine not the daily food of
the constitution. Conceived by framers as a transitional power, confined to supplementing state
resources. Lane: exceeds powers; avoids prohibitions, damages federalism
 Combet v Cth (2005): specificity required for s81. argued general appropriation for ‘departmental
expenditure’ did not cover expenditure on advertising not mentioned in budget notes. rejected
o Gleeson CJ: deferred to parliament on limits like majority: ‘parliament may decide how precisely
to express appropriations. ‘One-line appropriations are valid’
o McHugh, Kirby JJ dissent: appropriations must be precise enough to be meaningfully evaluated.
(Kirby: would undermine transparency and accountability)
 Pape v Commissioner of Taxation (2009) qualified APP broad approach. ‘tax bonus payments’ unsupported
by head of power? HC: s81 covers spending related to cth purposes defined elsewhere in the const, not
confined to s51,, but also s61 (executive’s power to respond to international challenges to Australia’s
interests)
4
o
61, national interest, is a very broad power, extends to almost anything, in effect unlikely power
will be limited following pape
o HC has curtailed the scope of s 61 in Williams v Cth [
4. Not a payment for services.
 Air Caledonie v Cth (1998) Migration Act 1958 (Cth) instituted an immigration fee of to be collected from
all passengers entering Australia by air. airline required to pay regardless of collection from passengers. P
argued that fee was a tax and couldn’t be inserted into the Migration Act as the Act as it contravened s.55.
HC held provision invalid: in order for a fee to be a ‘payment for services’, there must be an identifiable
service rendered. The fee must be directly related to the provision of the service.
o Conditions not satisfied: no service provided to citizens and fee paid by airlines, not passengers.
 Cf. Airservices Australia v Canadian Airlines (1999): Compass leased planes from Canadian before
liquidating. Airservices was a statutory corporation associated with Cth authority regulating air traffic
services. Compass owed Airservices fees relating to lease. Following liquidation, Airservices imposed a
statutory lien over the leased aircraft, forcing the lessors to pay outstanding fees or forfeit planes.
o fees were for public safety functions, and fixed according to a complex formula. did not cost
actual service to each customer. Compass charged more than value of service received.
o Compass argued the charge was a tax imposed in contravention of s 55. HCA disagreed, viewing
the charge as a ‘payment for services’. Fees were imposed not to raise revenue, but to cover the
cost of services across a group of users. The fees were reasonably related to the expenses
incurred.
o Gleeson CJ and Kirby j: ‘charges were not imposed to raise revenue, but were for the provision of
services to recover the costs across range of users and services. rational basis for discrimination
between users.’
 MacCormick v Commissioner of Tax (1984): fines/financial penalties for breaches of law aren’t taxes
3. Procedural and substantive limits on s51(ii)
s53: Tax laws cannot originate in or be amended by the Senate
 senate may return a tax law with amendment request but house of reps need not comply
 Lower house is larger and more democratic and therefore should have more control.
S55: laws dealing with taxation must deal with only one subject of taxation. (custom only with custom and excise only
with excise)
 Strict application in Air Caledonie
 Second Fringe Benefits Tax Case (1987): Fringe Benefits Act imposed tax on several fringe benefits. Majority:
whether statute relates to one or more subjects involves assessment of fact & value. Deferred to Parliament’s
understanding: various taxes imposed all dealt with common subject of fringe benefits. Wont override
Parliament’s view unless matters dealt with are clearly separate
 ‘Tacking on’: Historically, House of Lords had the power to block legislation, but money bills were rarely
rejected. House of Commons attached substantive provisions to money bills. Compromise: The Lords would
not block money bills if Commons did not tack on. codified in ss54 and 55.
S51(ii): Parliament may impose ‘taxation; but not so as to discriminate between States’
 deliberate scheme (Barger) or merely incidental to overarching objective (ellitot)
 R v Barger (1908): states had industrial awards cth regarded unreasonable, but cth couldn’t impose
discriminatory tax to enforce its preferred policies. Cth statutory Excise Tariff provided that manufacturers
providing ‘fair and reasonable’ labour conditions were exempted from excise duty. Discriminatory, clearly
intended to allow the imposition of different duties in different states.
o Form: tax. Substance: industrial relations and beyond cth power
o Issacs: various wages suiting diff conditions was actually an absence of discrimination
 Cf. Elliot v Cth (1935): Maritime workers at prescribed ports required a licence to work in those ports. Cth
designated ‘prescribed ports’ in all states except WA and Tas. Elliott was based in Sydney and objected to
having to pay for a licence when workers in other states did not.
o s99 prohibits Cth discriminating between the states in laws of trade, commerce or revenue.
o Upheld by majority: discrimination was not between states, but between different Cth ports, having
regard to local conditions. Discrimination was incidental.
o Issacs: ‘nothing to prevent parliament, charged with the welfare of the people as a whole, from doing
what every state in the Cth has power to for its own citizens … from basing its taxation measures on
considerations of fairness and justice’
5
Freedom of Interstate Trade
S92: 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.
 strongly worded, reflecting the importance the framers placed on it. Even broader than the US and
Canadian clauses it was modelled on (Quick and Garran). But not absolute, still subject to legal limits
Early cases on s92 used Free trade theory and focused only on discriminatory barriers that distinguished internal
and external traders. Problem not all restriction on internal and external traders from discriminatory barriers.
 Fox v Robbins (1909) struck down law imposing higher licence fees on bars selling imported beer
Individual rights theory (extends beyond discriminatory laws)
 James v SA (1927): gov attempt to regulate dried fruit trade, limiting production and telling producers
where to sell their crops, banning export in this case. The law didn't discriminate between internal and
external traders but nonetheless was found to infringe s92. Still the case when gov tried to compulsory
acquire his property and produce.
 Cth v Bank of NSW (1948): Banking Act 1947 (Cth) nationalisation of banking industry, creating a
monopoly. Violated s92, even though it was not discriminatory as a monopoly is only justified if it is the
only reasonable mode of regulation
Cole v Whitfield (1988): Fisheries Act 1959 (Cth) banned taking, trading or possession of crayfish below a certain
size (conservation measure). Didn’t distinguish internal/external traders. W farmed crayfish in Tas and imported
SA crayfish. SA law didn't impose size limits. Charged with selling undersized crayfish. Challenged under s92
 HCA rejected it. regulations were reasonable and there was no practical way of distinguishing local and
imported crayfish.
 S92 doesn’t protect an individual right to free trade, but rather bans ‘discriminatory burdens of a
protectionist kind’.
 The Cole v Whitfield test effectively contains three elements (all be satisfied to invalidate s92):
1. A burden on trade (such as restriction on interstate trade)
2. Discrimination between internal and external traders (on its face the law subjects that trade or
commerce to be a disability or disadvantage OR if the factual operation produces such a result)
3. A protectionist impact (does law confer a competitive advantage on goods from particular state
by requiring interstate competitors to comply with special, local regulations?)
 non-exhaustive list of laws that would violate s92 (examples of protectionism prior to federation): Tariffs
that increase the price of imports, quotas on imports, differential railway rates (or other transport costs)
and subsidies for local goods.
 History used to identify meaning of language used. Considered the subject, nature and objective to which
the language was directed (Opposite method to engineers).
o Intent to create free trade and uniform tax, removing barriers to federalism
o Prof LaNauze: ‘absolutely free’ understood to connote not only freedom from boarder customs to
protect local industry but also duties not protectionist in purpose but compatible with free trade
o Griffith: free trade and commerce is not to be restricted by and taxes and prohibits interference
by the imposition of differential rates on railways or rivers
Bath v Alston (1988) (financial equalisation measures)
 Applied Cole v Whitfield. Higher licence fees imposed on sellers of imported tobacco. Vic gov argued this
merely levelled playing field, since tobacco wholesalers in other states did not have to pay Vic licence fee
for wholesalers. HC struck down 4-3, law has a protectionist effect by disadvantaging imported tobacco.
 Majority: Mason, Brennan, Deane and Gaurdron: Retailer who sells only tobacco purchased from Vic will
pay appropriate fee for license. While retailer who sells only interstate purchased tobacco products will
pay the flat fee plus 25%. undeniably protectionist in both form and substance.
 Dissent: Wilson, Dawson and Toohey: object to equalise burdens on imported and local tobacco not to
favour the local product
4. is the law a proportionate measure in pursuit of a legitimate objective?
1. Legitimate objective
6
2. Is the pursuit of this objective proportionate?
Castlemaine Tooheys v South Australia (1990): SA bottle return scheme challenged for giving Tooheys 2
disadvantages: 1) Non-refillable bottles required a compulsory refund of 15c, while refillable bottles had a
compulsory refund of 4c. 2) non-refillable bottles had to be returned to the retailer, while refillable bottles could
be returned to collection depots. Local bottles refillable, interstate not. Severely limited Tooheys market share.
 Not protectionist/discriminatory on face, but was in effect violating s92. objectives of litter control and
conservation did not require two different methods of returning the bottles.
 Gaudron, McHugh: discrimination lies in unequal treatment of equals and, conversely in equal treatment
of unequals. Distinction between refillable and non-refillable discriminatory
 Mason CJ, Brennan, Deane, Dawson and Toohey JJ joint judgment: set out important principles:
1. A law burdening interstate trade will only be consistent with s92 if it is necessary or appropriate
and adapted to a legitimate policy objective (either protection of the community from a real
danger to welfare, or to enhance welfare)
2. The burden placed on interstate trade must be incidental to the law.
3. The burden must not be disproportionate.
4. A discriminatory law will only be upheld if there is no other reasonable alternative.
Betfair v Western Australia (2008): majority principles in Castlemaine Tooheys were applied. WA law prohibited
online betting exchanges. WA government argued the law was needed to protect the integrity of the betting
industry. had a discriminatory impact as local WA betting was dominated by the TAB. The plaintiffs were a
Tasmanian betting exchange and a local punter.
 HCA struck down the law. There were other less discriminatory methods available, such as regulating
betting exchanges.
 Added clarifications:
o Presence of a non-discriminatory objective does not save the law from invalidity under s92.
o A law that has the object of prohibition will not be saved by the existence of discretionary
exceptions depending on an executive officer.
o A discriminatory prohibition on a particular industry will be invalid if less drastic measures are
available to achieve the same policy objectives.
State monopolies
 Early cases James and Banking Case suggested that gov monopolies would offend s92. question arose
again in Barley Board Case (1990) which upheld a scheme where all barley grown in NSW had to be sold
through the Barley Marketing Board. HCA: not discriminatory and :. consistent with free trade, s92.
o where a commodity was a scarce resource or most inexpensive local to a particular state, the
imposition of a government monopoly might offend s92.
 The joint judgment in Betfair pointed out that local and interstate commerce are interrelated. State based
restrictions on a national market may therefore undermine the spirit of s92.
o It remains to be seen what attitude the High Court will take to government monopolies in the
future. Would the Banking Act 1947 (Cth) be valid today?
Freedom of intercourse
 Cole v Whitfield : ‘a personal freedom to pass to and fro among the States without burden’.
 Nationwide News v Wills (1992)
o Deane and Toohey JJ: freedom may cover not only physical movement, but ‘all of the modern
forms of inter-state communication’.
o Brennan J: discrimination not necessary. A restriction on border crossing will be invalid unless:
 law is mainly enacted for a purpose other than limiting interstate movement
 appropriate and adapted to the intended purpose
 necessary and incidental to the law’s operation
o It is unclear whether the freedom extends to movement of information (as Deane and Toohey JJ
suggested) or only persons and goods.
 Brennan: ‘ideas have no location. The expression of ideas, whether literary or other form
can be moved across boarders to attract the scope s92.
7
Express Rights
1. Acquisition of Property: s 51(xxxi)
 grants power of eminent domain to cth and is a guarantee against appropriation without compensation.
Elements:
1. Acquisition
2. of property
3. from any state or person
4. For any purpose which parliament has the power to make laws. (s51, 52, 61, 71 Blackley v cth)
5. On just terms.
 Transfer of property by law from one person to another does not require compensation when transfer is
authorised by the very nature of the Cth power under which its made
 Exemptions: taxation (AG v Schmidt), forfeiture of goods involved in evasion of customs/laws (burton v
honan), confiscation of crime proceeds, sequestration of property of a bankrupt, wealth transfer
(Nintendo)
2. ‘Property’ (defined broadly)
 must be definable, identifiable by third parties, and have some degree of permanence or stability
 Exclusive possession of land without title: Army Minister v. Dalziel (1944). Dalziel rented, ‘extends to any
acquisition of any interest in any property’
 Company shares: Bank of NSW v. Cth (1948): authorised the CBA to acquire shares in bank and appoint
new directors to replace company directors.
 Cause of action (rights to sue): Georgiadis v. Telecommunications Commission (1994)
 Statutory rights to gov payments not covered: Health Insurance Commission v Peverill (1994)
 voluntary sale presumed to be made on just terms: Trade Practices Commission v Tooth; BMA v cth
 McClintock v cth: forced sale
1. ‘Acquisition’ (defined narrowly)
 Involves compulsion (Poulton v Cth) as distinguished from a consensual acquisition (BMA v Cth)
 Key element: taking control, deprivation or dispossession (Banking case)
1. Regulation of property without transferring title to gov doesn't amount to acquisition
o Cth v Tas: Mason, Murphy and Brennan JJ: ‘not enough legislation adversely effects a pre-existing
right; there must be an acquisition of an interest in ‘property’, however slight or insubstantial
 Deane dissented on issue: not necessary to show material gain to Cth/another
o *Georgiadis (1994): legislation preventing workers suing was an ‘acquisition’, as the
extinguishment of the right conferred substantial benefit on Cth (immunity from litigation).
o Cf Peverill (1994): Medicare benefits retrospectively being reduced was not ‘acquisition’. It was
based on policy considerations and nobody ‘acquired’ a corresponding benefit.
2. Must gain ‘proprietary’ interest
o ICM: NSW funding agreement with Cth requiring legislation reducing entitlement.
 Majority: no acquisition of property
 Hayne, Kiefel and Bell JJ, licences were property, but no acquisition because state gained
no ‘identifiable or measurable advantage from regulations’.
 Dissent Heydon: were property as they were definable, identifiable by third parties and
had a considerable degree of permanence, capable of assumption by third parties etc.
o Australasia v Cth [2013] HCA (‘BATA’): Plain Packaging Act regulated the appearance of packaging
and the use of trade marks on packaging. Argued: extinguished intellectual property rights -which
constituted property, aim was to deter sale of tobacco products – which was benefit.
 Differing opinions as to whether the intellectual entitlements constituted ‘property’
 6/7 held that there is no ‘acquisition’,
 French CJ ‘the interest or benefit accruing to the Cth or another person must be
proprietary in nature and the Cth has acquired no such interest’.
 Dissent Heydon: purpose to provide protection, should be read widely not confined to
narrow/pedantic definitions. Cth need not obtain a proprietary interest. sterilises
property rights and compels presence of Cth’s messages - amounts to identifiable and
measurable advantage
8
3. Removing license
o Newcrest Mining v Cth: cancellation of mining licence amounted to acquisition. No compensation
as HC was bound by Teori Tau (s.122) later overruled by Wurridjal v Cth
o Cth v WA (1999): Cth law authorised military training on state land. Prevented access. Majority:
frequent authorisation could amount to acquisition but no evidence of this.
 Kirby, Callinan JJ dissent: The extent of the authorisations is not relevant.
4. for any purpose parliament has power to make laws (application to states)
 Cth does not have to take property directly, can be done through a third party for cth purpose (TPA v
Tooth or Collins v hunter: service people authorised to occupy unused houses without owners consent)
 Magennis v Cth (1949) struck down agreement via statute for state to take property on terms not just
where act disclosed intent
 Pye v Renshaw (1951) upheld an informal agreement for Cth to make a grant of financial assistance on
the basis that the state would acquire property on terms not just.
 ICM (2009): 3 of majority expressly left the issue of informal agreements open, but held doesn’t extend
to terms requiring the state to acquire property other than on just terms.
 Spencer v Cth: suggests willingness to overrule pye v renshaw tree clearing restrictions made farm
unviable. Dismissed as no agreement between cth and state to take property. Insufficient evidence of
informal agreement
o constitutionality of this practice was left open in ICM but will most likely by reconsidered in
Spencer v Cth [2010] when it returns to Court  Pye v Renshaw will probably be overruled
5. Just Terms
 Nelungaloo v Cth (1948) Williams J: compensation required is understood as a fair amount that takes into
account both the property owner’s interests and the public interest in the acquisition.
 Grace v cth: market value and naturally flowing costs good guide (but not required)
 APMB v Tonking (1942): body determining must be unbiased, give fair hearing and allow review
 Dalziel: necessary owner will be able to make submissions on amount of compensation
 Magennis: requires terms actually be just and not on terms parliament considers just.
 Georgiadis: Brennan J: Nothing less than ‘full compensation’ will suffice, individual’s property interest
prevails over communities. Not a balancing of interests. Purpose to protect owners
9
2. Trial by jury
 S80: trial on indictment of any offence against the law of the Cth shall be by jury.
 only applies to Cth offences but most criminal offences occur under state legislation.
 HC Narrow interpretation: Historical safeguard
 R v Archdall (1928): whether to make an offence triable ‘on indictment’ is up to parliament. Can make an
offence punishable by substantial imprisonment, but declare it a summary offence, so s 80 does not
apply. (literalist interpretation to avoid affect). Confirmed in Kingswell v R (1985)
o Brennan, Deane strong dissent: (echoing Dixon, Evatt) ‘trial on indictment’ suggests serious
offense, shouldn't dilute. bulwark against tyrannous arbitrary punishment
o Dixon and Evatt JJ in R v Lowenstein: makes a mockery of s 80, rendering protection illusory
 Brown v R (1986): can’t be waived accused. Deane: ‘words are mandatory’ focused on form. Gibbs and
Wilson, dissent: reflect a libertarian approach, focus on substance and purpose of framers.
 Cheatle v R (1993): If a trial is on indictment, s80 requires conviction by unanimous jury verdict.
3. Religious freedom
 S116: The cth shall not make any law for establishing any religion, or for imposing any religious
observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a
qualification for any office or public trust under the Cth (not state Kruger v Cth)
o two limbs: establishment clause and free exercise clause
 narrow interpretation of violation. Wisconsin v Yoder: Similar US 1st Amendment has broader
interpretation. Statute requiring school attendance unjustifiably burdened religious practices
 broad interpretation of definition: includes freedom to not have a religion but not broad enough for
Buddhism Latham in Jehovah’s Case
3.1 establishment clause
o DOGS Case (1981): upheld funding of religious schools, interpreting s 116 narrowly.
o Barwick CJ and Wilson J ruled that the term ‘establishment’ in s 116 is confined to establishment
of a religion as a national or Cth institution. (literal approach)
o Gibbs and Mason JJ ‘establishment’ only applies to designation of an official state religion.
o Stephen J broader: establishment clause prohibits discrimination between religions.
o Murphy J dissented. term ‘establishment’ should be interpreted widely to ban any state
assistance to religious institutions. Followed US interpretation. strongly criticised. Purposive:
referred to all religions, non-preferential funding is still establishing religion.
3.2 free exercise clause
 Krygger v Williams (1912): Krygger objected to compulsory military service on religious grounds, he
regarded all military duties as a sin. HC dismissive and not well reasoned
o Griffith CJ described the argument as ‘absurd’. He thought it plain that military service had
‘nothing at all to do with religion’, esp as s allotted religious objectors to non-combat
o only laws specifically targeting religious practices will offend s 116. May get diff result now
 Jehovah’s Witnesses Case (1943): cth thought the Jehovah’s Witnesses were obstructing the war effort.
gov responded by seizing church’s property.
o Latham CJ s166 protects not only the free exercise of religion, but also the freedom not to have a
religion at all. freedom isn’t absolute, subject to limitations ‘reasonably necessary for protection
of community and in the interests of social order’. War was a legitimate end
 Kruger v Cth (1997): accepted Latham in Jehovah. gov policy of removing indigenous children from
families did not violate s 116. free exercise clause only prohibits laws intended to impact on the free
exercise of religion. General laws that incidentally impact on religious freedom are permitted.
4. An express right to vote?
 S41: no adult who has the right to vote for the lower house of her state legislature may be deprived of
the vote at Cth level
 R v Pearson (1983): s41 transitional and no longer of any effect, despite not containing words such as
‘until the Parliament otherwise provides’ like other transitional provisions.
 Ironically, HC has found and implied right to vote in ss 7 and 24.
10
11
Implied Rights (qualified right of freedom of political communication)
Basis of the implied right
 ACTV v Cth (1992): Broadcasting Act prohibited political ads at election times (Federal and State);
required free air time for parties in previous parliament proportionate to number of first preference
votes. Breached implied right and burdened states.
 Nationwide News v Wills (1992): Charged under Industrial Relations Act for publishing writing titled
‘advance Australia fascist’ calculated to bring commission under disrepute. Virulent attack on Australian
industrial relations commission calling judiciary corrupt and compliant. The act was found to penalise true
or reasonably justifiable statements.
 ACTV and Nationwide News: majority used two stage process of reasoning:
1. const provisions reveal an intention to set up a representative form of government (ss. 7, 24, 64
and 128)
 ACTV 6:1 (Mason CJ, Deane, Toohey, Gaudron, Brennan and McHugh JJ; Dawson J
dissenting): Const contained an implied freedom of political communication.
2. Freedom of communication is essential to the functioning of this form of government.
 Nationwide, Brennan: ‘where representative democracy is constitutionally entrenched,
the freedom of discussion which is incidental and essential to sustain it is as firmly
entrenched in the Constitution.’
 ACTV: freedom is an indispensable incident of constitutional processes of responsible and
representative government. Is an immunity from laws interfering with the free flow of
political information.
 ACTV, Mason: Only by exercising that freedom can citizens communicate views relevant
to political decisions and bring about change. Without it gov would cease to respond to
needs and wishes of people and no longer be representative
 Lange v ABC (1997): rare unanimous joint judgment: clarified that the freedom derived from the words
‘directly chosen by the people’ in ss 7 and 24. end of Dawson J’s resistance
o ss7, 24: Senate and the House of Reps must be ‘directly chosen’  implies necessary conditions
must be put in place for citizens to choose their representatives. If citizens are to have an
effective choice, they must be free to discuss candidates performance.
o ‘freedom of communication of political nature is incidental to constitutional system of
government and cant be curtailed by legislative or executive power and the common law cannot
be inconsistent with it. But the freedom is not absolute and it follows that the limit on legislative
power is also not absolute.’
o ss7, 24 ‘do not confer personal rights on individuals. Rather they preclude the curtailment of the
protected freedom by the exercise of legislative or executive power. right to non-interference.
1. burden on political communication (reasonable debated of government policy or conduct)
 Covers communication on political matters (government policy, debate on performance), not other types
of speech.
 Cunliffe v Cth (1994): Migration Act: only registered migration agent could provide advice on migration
matters. Majority: advice on migration issues was not a political matter.
 APLA (NSW) (2005): Doesn’t protect commercial communications (marketing of legal services)
 States: ACTV, Mason CJ, Deane, Toohey and Gaudron JJ: political communication can’t be subdivided to
correspond with tiers of government. Stephens v WA News, majority: extends to discussion state
members conduct
 Levy v Victoria (1997): protects all forms of communication including actions. Levy protested against
duck shooting by entering hunting area between hunters and ducks. charged and convicted under a Vic
law which prohibited people from entering designated hunting areas.
2. law aimed at achieving a legitimate public purpose?
 Levy v Victoria and Wotton v QLD: Reasonable restriction for public safety
3. Legitimate restrictions
12





ACTV, Mason CJ and McHugh: restrictions on content will be more difficult to justify than restrictions on
mode (restrictions on content go directly to communicated ideas)
two step test to determine permissibility of restriction (Lange modified by Coleman, per French` CJ)
1. must be aimed at a legitimate government objective.
2. reasonably appropriate and adapted to the objective (Lange)
 must not be excessive, cant be less extreme means available for same objective,
proportionate
 Court will consider need to protect the institutions of representative and responsible
government (128). Lange required compatibility with the maintenance of these
 Cant be too broad
 Nationwide, Dawson J disproportionate to the achievement of a legitimate end
Coleman v Power (2004): C distributed leaflets in Mall insulting police. Contained: ‘Get to know your local
corrupt type coppers’; ‘Townsville cops – a good argument for a bill of rights’; and ‘Kiss my arse you slimy
lying bastards’. Known officer approached, C proclaimed ‘this is a corrupt police officer’. Coleman was
arrested and charged under Vagrants Act (Qld) for using ‘threatening, insulting or abusive words’ in a
public place. read down, and conviction reversed. Both parties agreed it was a restriction on free speech.
o McHugh, Gummow, Hayne and Kirby JJ: insults may be political communication, if intended to
make a political point.
o McHugh J: prohibition on insults, as opposed to threats or abuse, was too broad to be considered
reasonably adapted to a legitimate end. read down to remove insults reference
o Gummow, Hayne and Kirby JJ: went further - provision was valid only in application to words that
were likely to provoke violence.
Wotton v Qld [2012] HCA: further illustrates the issue of reasonable restrictions. Wotton participated in a
protest on Palm Island following an indigenous death in custody. He was charged with rioting causing
destruction and sentenced to six years. granted parole on the condition that he not attend public
meetings without approval and that he not communicate with the media.
o French CJ, Gummow, Hayne, Crennan, Bell and Kiefel JJ held that the conditions burdened
political speech, but were appropriate and adapted to public safety.
o Heydon J held that the conditions did not ‘realistically threaten’ freedom of speech.
Monis v R: confirmed if not broadened this. CC prohibited using a postal service in way that ‘reasonable
persons would consider menacing, harassing and offensive’. French, Heydon and Hayne: didn't pass
Lange. cf Heydon in Wotton
4. Defence of qualified privilege
 defences to defamation under common law were limited, this discouraged criticism: fair comment
required proof of truth and qualified privilege limited to communications between persons with a special
relationship not general public (e.g. lawyer/client).
 HC majority (Mason, Deane, Toohey, Gaudron) created an expanded defence of qualified privilege in
1994 cases: Theophanous v Herald & Weekly Times and Stephens v WA News. Critical of lower house
member and parliamentary study trip respectively, both published in papers. Applied where:
1. imputation concerns a political matter and refers to a public officer or a candidate; and
2. There was no awareness of falsity and the statement was not reckless or unreasonable.
 Lange v ABC: Four Corners alleged misconduct by then NZ PM. HC clarified defence in a unanimous joint
judgment:
1. communication must be disseminated to a wide audience/be public (damage is greater)
2. must relate to a political matter
3. must be reasonable (reasonable grounds to believe it is true and publisher took reasonable steps
to verify the facts, did not believe it to be untrue and sought response from person targeted,
unless impractical or unnecessary)
4. must not be malicious (this will defeat defence. Requires proof of motivation by improper
purpose unrelated to political debate, as intention to cause political damage is insufficient)
 common law and statutes may expand the defence, but they may not lawfully restrict it.
13
HC majority has declined to uphold any other implied rights. Guadron and mchugh in ACTV hinted ss7 and 24 may
entail a freedom of movement, association and speech generally. Gleeson in Roach thought ss7, 24 and changed
historical circumstances may have created a protection of the right to vote.
14