Constitutional Law Notes
What is a Constitution?
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Constitutional government is a government that as a Constitution which limits the
powers of political authorities and is not susceptible to easy modification or
abrogation
Constitution as Paramount Law
o A law overriding all other laws (laws must comply with the Constitution or
will be deemed invalid)
 Will not be able to be amended through an ordinary statute
o Determines the power of each area of government (separation of powers)
o Usually found in written form – one or more documents
o Will include – details of the key branches of government (their composition
and power), protected rights and freedoms, procedure of changing the
Constitution
Constitution as the actual system of government (living Constitution)
o Need to consult supplementary legislation, conventions and relevant judicial
proceedings
o Many areas of government are not specified in the Constitution but have
developed through convention (e.g. the Australian Constitution makes no
mention of the Prime Minister)
o Constitution in actual operation (a country may have a very good written
Constitution but the experience of the society does not reflect the
Constitution if judges/politicians are corrupt)
Constitution in the Philosophical Sense
o The realization of an ideal (never fully realised)
o Designed to limit/contain power and implement the rule of law
The Unwritten Constitution – a constitutional government may exist without a
written constitution
o E.g. the United Kingdom – government derives their composition, powers,
privileges and basic procedures from ancient custom and common law,
conventional practice and a few defining statutes
o Parliament is supreme – legislation cannot be questioned by the courts
Mixture of ideas – Westminster system from the UK, the written form, federalism,
separation of powers and judicial review from the USA
Dicey – constitutional law includes “all rules which directly or indirectly affect the
distribution or the exercise of the sovereign power in the State”
Ideal Constitution – constitutional stability (hard to change), representative
democracy, separation of power, federal distribution of power, protects basic rights
and liberties
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Separation of Powers
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Sections of the Constitution vests the three great powers into three different
branches of government
o s.1 – legislative power vested in Parliament (Queen, Senate and HoR)
o s.61 – executive power vested in the Queen (exercised by GG)
o s.71 – judicial power vested in High Court, other federal courts and other
courts (State Courts) (known as CH III Courts)
This ideal is impossible to achieve completely
o E.g. Separation of powers does not completely exist in Australia – the
executive has majority support in HoR, the executive organized the
legislative agenda (the executive control what Bills are passed), High Court
allows legislature wide law making power, judges are appointed by the
executive and removable by Parliament
The HC has condoned integration of the legislative and executive power but is strict
on separation of judicial and non-judicial powers
Legislative Power
o Capacity to change existing legal relations (creating new rules – must apply
generally (or to a class), not an individual)
o Legislative power is distributed between Federal and State level
o Legislation that involves matters of policy or principle should be made by
Parliament (not the Executive)
Executive Power
o Extends to the execution and maintenance of the Constitution and of the
laws of the Commonwealth
o Most commonly – accomplishing physical tasks within the limits of the law
(e.g. carrying out public work on Crown land using funds already
appropriated for the purpose)
o Police power – keep the peace and investigate and prosecute criminals.
Police officers have no power to violate a citizen’s rights without the
authority of law
o Military power – power to declare war and peace, deploy the nation’s
military forces
o Foreign Affairs power – power to conduct relations with other nations and
international organisations and make treaties with foreign States (treaties
must be adopted by legislation to become domestic law)
o Contracts power – power to enter into contracts to achieve the purposes of
government (can’t create legal relations unilaterally, only consensually)
o Power to alter legal relations unilaterally or coercively – power to create
new legal relations or modify existing legal relations without the consent of
the affected person (e.g. licences, authorisations, approvals and other
regulatory orders)  Quasi-Judicial Power
 Different from legislative power in that while it allows the creation
of new legal rights, these rights are not general and only apply in the
particular case
Judicial Power
o ‘The power which every sovereign must of necessity have to decide
controversies between its subjects, or between itself and its subjects,
wether the rights relate to life, liberty or property.’ The exercise of this
power does not begin until ‘some tribunal which has the power to give a
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binding and authoritative decision (whether subject to appeal or not) is
called upon to take action’ – per Griffith CJ, Huddart, Parker & Co Pty Ltd v
Moorehead (1909) at p.357.
Two key aspects- existence of a controversy and the capacity to determine
the controversy conclusively
Judicial power is controlled power – it’s exercise is based on authoritative
legal materials (rules, principles, conceptions and standards)
Judicial power of the Cth is vested almost exclusively in CH III courts
Key question when it comes to judicial power – is the relevant power
characterised as judicial power
Jurisdiction (is the matter one in relation to which the judge may act?) – no
court has unlimited jurisdiction (s.73 – appellate jurisdiction, s.74 - original
jurisdiction in respect to certain subjects, s.76 – Parliament can confer
additional original jurisdiction)
Effect – declare rights and duties of litigants according to established law
but not altering legal positions (incremental changes)
Elements of Judicial Power (each must exist for the power to be deemed judicial)
o Controversy
 Must be a controversy between two parties (either the Crown and a
subject or between two subjects)
 Controversy is absolutely necessary  Ch III defines federal
jurisdiction in relation to matters (Re Judiciary Act interpreted the
term ‘matter’ to refer to a controversy concerning a right, duty or
liability
 The dispute must be brought before the court – the court does not
go out of their way to bring a matter before them
 The Question of Standing – judicial power can only be exercised
when a controversy is brought before the court by a person entitled
to do so. The person has locus standi – a personal interest in the
matter greater than the public
 The Attorney-General has standing to bring an action to
defend a public right
o Rights, Liberty and Property
 The controversy must concern ‘rights, liberty or property’
 Two elements: rights must be - existing rights and basic rights
 Pre-Existing Rights
 Must decide controversy according to existing rights and
obligations, not create new rights and obligations –
Tasmanian Breweries Case (1970)
 This means that judges don’t make law – this is arguable.
However, if judges do make law it is different to law made
by the legislature (they can’t make law on any matter they
want – limited to the controversy at hand – and must
observe the rule of natural justice)
 Basic Rights
 R v Quinn (1977) – judicial power is exercised only with
respect to ‘basic rights which traditionally, and therefore
historically, are judged by that independent judiciary which
is the bulwark of freedom.’
 Problem – what rights are considered basic?
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Conclusiveness
 Capacity to give a binding or authoritative decision (whether subject
to appeal or not)
 The court/tribunal doesn’t necessarily have to possess the ability to
enforce its own decisions – R v Davison (1954)
 Court of Record – a court that has the power to both make
determinations and enforce them (Alexander’s Case (1918))
 Doctrine of res judicata – the matter cannot be litigated again by the
same litigants
 Doctrine of functus officio – the decisions cannot be varied by the
same tribunal except in very limited circumstances
 Doctrine of collateral attack – the decision made within jurisdiction
cannot be questioned in a collateral proceeding
 De novo hearings – the decision must not be subject to a de novo
hearing (when a court rehears both the evidence and legal
submissions
 Brandy v HREOC (1995) – stated the requirements of a de
novo hearing
o The original decision is not enforceable because the
aggrieved party failed to appeal
o There is no onus to appeal
o To enforce the decision, a new action must
commence in a proper court
o Prosecutor must lead all the evidence – no
discretion, it is a new action
o The court must rehear the case on facts and law
 If all of these conditions are met, the initial
decision is not conclusive
Non-Consensual
 Both parties don’t need to consent to go to court
Chameleon Power
o R v Quinn – the power vested in the registrar to cancel the registration of a trade
mark was non-judicial. However, in Farberfabriken, the court held this power to
be constitutional. Why?
o A chameleon power is judicial when vested in a court and is non-judicial when
vested in some other body
o Principle of contradiction – you can’t say something is and isn’t at the same time
– condemned in Visnic v ASIC (2007) and Alberran (2007)
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Separation of Legislative & Executive Powers
o Weak separation – the executive usually controls the HoR, parliament can
delegate wide legislative power to the executive, the GG can
summon/prorogue (suspend)/dissolve parliament
o Victorian Stevedoring Co and General Contracting Co v Dignan (1931)
 The separation was initially weak – but has been further weakened
by the court
 s.3 (which allowed the GG to make regulations on all aspects of
waterside employment) challenged based on unconstitutional
delegation of legislative power
 s.3 was upheld – reasons: responsible government is a safeguard,
parliament can repeal bad executive law
 Court suggested 2 limitations to delegated legislation:
 Must not be too wide that legislation can’t be characterized
 Must not amount to abdication of power
o Legislative Standards Act – lay down standards about delegating legislative
power (laudable, not binding – not Constitutional)
Separation of Judicial and Non-Judicial Power
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The High Court is very strict in ensuring that judicial power is not given to other
bodies and that non-judicial power is not given to courts
Rationale:
o Federalist: independent judiciary to maintain federal division (an
independent judiciary can only be achieved if the judicial power is separated
from other powers)
o Libertarian: checks and balances and judicial independence
KEY PROVISION: s.71 – The judicial power of the Commonwealth shall be vested in a
Federal Supreme Court, to be called the High Court of Australia, and in such other
federal courts as the Parliament creates, and in such other courts as it invests with
federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other
Justices, not less than two, as the Parliament prescribes.
s.72 – the tenure and remuneration of federal judges
s.73 – the appellate jurisdiction of the High Court
s.75-76 – the original jurisdiction of the High Court
s.77 – the Parliament’s power to define and invest federal jurisdiction in federal and
State courts
The High Court seeks to invest judicial power in only CH III Courts and prevent the
vesting of non-judicial power in these courts
Prohibitory Rules
1. Judicial power of the Cth shall not be vested in bodies not designated in CH III
 Such bodies = High Court, Federal Courts (Federal Court, Family Court,
Federal Magistrates Court) and State Courts in which Parliament vests
federal judicial power)
 Boilermakers Case (1956) – established this rule: the language of the
Constitution prevents the possibility of vesting judicial power in other
bodies
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2. Judicial power may be vested only in courts in the strict sense
 A body is regarded as court if its main function or functions are judicial –
Alexander’s Case (1918)
3. Federal courts that exercise judicial power must conform to s.72
 The court must be constituted as provided in s.72 – Alexander’s Case
 Requirements: federal judges are appointed by the Governor-General;
removal can only be done by the Governor-General on an address of both
houses of parliament on the grounds of proved misbehaviour or incapacity;
remuneration of judges must be fixed and not diminish
 Tenure for life (until 70) – can’t appoint judges for fixed terms (Alexander’s
Case)
4. A court may delegate judicial power but must not abdicate judicial power
 Relieve the court from some of their work by assigning non-contentious
aspects of jurisdiction to officials who are not judges
 Harris v Caladine (1991) – Held that delegation of judicial powers to those
who are not judges (e.g. registrars) is valid providing that:
o The delegation is not so extensive that it can no longer be said that
judges constitute the court
o The delegation must not be inconsistent with the obligation of the
court to act judicially, and the decisions must be subject to review or
appeal by a judge
 The structure of the Court must not change
 The person the power is delegated to must be an official of the court
5. Judicial powers not within CH III must not be vested in the High Court or other
federal courts
 Re Judiciary Act (1921) – s.88 of the Act gave power to the HC to determine
the validity of laws referred to it by the Governor General. It was held that
as the power was judicial power outside of CH II, it was not exercisable by
the High Court
 The express vesting of some powers means the exclusion of other powers
6. Federal courts cannot exercise State judicial power except in cases of ‘accrued
jurisdiction’
 Federal courts can exercise State judicial power in cases in which both
Federal and State jurisdiction arise in the same controversy
7. Parliament must not vest non-judicial power in CH III courts
 Boilermakers Case - the reasoning that judicial power cannot be vested in
bodies that are not CH III courts due to the express vestment of such power
in CH III courts must be applied to legislative and executive power (nonjudicial power). As non-judicial power is expressly vested in other bodies,
this means they cannot be vested in CH III courts.
 There are exceptions. There is a difference between Federal and State
courts in respect to this: (more non-judicial power can be given to State
courts than to federal courts)
o Non-judicial power may be given to State courts providing that it is
not incompatible with the exercise of federal judicial power (Kable,
Fardon, Baker)
o Non-judicial power can’t be given to the HC or federal courts unless
it’s incidental to the exercise of judicial power (Bond, Thornton,
Davison)
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8. State Parliaments must not vest in State courts non-judicial powers that are
incompatible with their exercise of federal judicial power
 There is an absence of an explicit separation of powers in State
Constitutions – allows State courts to exercise non-judicial power
 Alexander’s Case – State Parliaments can give State courts non-judicial
powers providing they do not threaten the character of the courts as bodies
that primarily perform judicial function and do not undermine the courts’
capacity to exercise federal judicial power by diminishing public confidence
9. Parliament must not remove from courts jurisdiction that the Constitution has
directly vested in them
 Appellate Jurisdiction – s.73 has jurisdiction to hear appeals from all
judgments from the original jurisdiction of the High Court, any other federal
court, State Supreme Court, or any court – this right to appeal to the High
Court cannot be removed (Cockle v Isaksen (1958))
 Original Jurisdiction under s.75 cannot be removed – Lim v Minister of
Immigration (1992)
10. Parliament must not direct the way courts exercise judicial power
 Parliament cannot direct the manner and outcome of the exercise of judicial
power
 Legislation should not impose a judgment on the court (Calder v Bull) or
intervene in judicial proceedings
11. The ban on bills of attainder and ex post facto punishment
 Basic doctrine – it is lawful to do whatever the al woes not forbid
 Retrospective laws are not permitted – Polyukhvich v Commonwealth (1991)
Permissive Rules
1. The persona designate rule
 Non-judicial power can be vested in a judge in his/her personal capacity –
Hilton v Wells (1985)
 Grollo v Palmer (1995) imposed two conditions:
o Compatibility condition – compatible with the judge’s capacity to
perform further judicial functions (time) and with the court’s
responsibility (confidence)
o Consent condition – the judge must consent to being given the
power unless it is incidental to judicial power
2. Judicial power with respect to military offences by service personnel may be
vested in courts martial
 Power outside CH III, thus can be given to a military tribunal – White v
Director of Military Prosecutions (2007)
 A service offence can also be a ‘civil’ offence triable under a CH III court (e.g.
assault of a civilian while on duty)
 What is a service offence? - E.g. desertion in times of war, insubordination,
drunkenness on duty, unlawful discharge of a weapon. Two theories:
o Service status theory – triable by court marital if committed by a
military servicemen even if it does not concern military discipline
o Service connection theory – triable by court martial only if
connected to the purpose of maintaining military discipline
(majority of judges like this theory but some disagreement – e.g.
Alpert (2004) – rape by a service personnel while on recreational
leave, triable by court martial)
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3. Parliament may exercise judicial power in relation to its own powers, privileges
and immunities
 Contempt of Parliament – influencing a member one way or another, giving
false evidence to a committee of Parliament, stopping a member from
getting to Parliament (Parliament decides what is contempt)
 With these acts – parliament can exercise judicial power in relation to them
(s.49 - Parliament may declare its own privileges – Parliamentary Privileges
Act)
4. Superior courts may make rules of procedure
 Legislative in character – power of courts to regulate their own procedure
(general rules of conduct
 R v Davison (1954) – making procedural rules is ‘an extreme example of a
function that may be given to courts as an incident of judicial power or dealt
with directly as an exercise of legislative power’
Separation of Powers in State Constitutions
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State Constitutions do not recongise separation of powers to any degree - courts did
not recognize any separation until Kable v DPP (1996)
State Parliaments can delegate but not abdicate legislative power
HC’s doctrine of institutional integrity (DII) has effected a degree of separation of
powers. 4 aspects:
o Grant of Incompatible Jurisdiction – State legislature must not grant a State
court a power that is incompatible with its role as a court exercising federal
judicial power
o E.g. - Kable v DPP (1996) – legislation allowed the court to issue a
detention order if it was likely that Kable would commit an act of
violence - giving the court the power to make detention orders makes
the court an instrument of government policy (undermines public
confidence/independence) – this is incompatible with the federal
judicial power vested in them)
o Depriving Supervisory Jurisdiction – State Supreme Courts have the power to
confine inferior courts to the limits of their jurisdiction by granting relief (usually
by writ of certiorari) on the grounds of jurisdictional error (an error leading to
the court exceeding its legal power)
o State parliament can’t deprive Supreme Courts of this power – Kirk v
Industrial Court of New South Wales (2010)
o Integrity of the constitution of courts should not be affected– excessive acting
appointment would distort the character of the court as an independent and
impartial body (this is not constitutional – tenure until 70)
o State law leading to failure of natural justice – basic requirements are
impartiality and reasonable hearing
o Gypsy Jokers (2008); K-Generation (2009) – possible for court to receive
criminal intelligence and not give this information to the defendant
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Commonwealth-State Relations
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The relationship between Cth and State government is a crucial part of the
constitutional framework
Federation is evident throughout the Constitution
Cth and States have defined areas of power – there is a possibility of conflict
o s.51 – enumerated powers of the Cth
o Some powers are exclusive to Cth – s.52 and some other ones scattered
throughout the Cth (e.g. ss. 90 and 122)
o Some powers are exclusive to States as they are not explicitly given to the
Cth – Residual Powers (s.107)
o Some powers are concurrent – s.51  this raises the possibility of conflict
Conflict can arise in 3 ways:
o Inconsistencies between Cth and State legislation in respect of concurrent
powers (s.109 prevails)
o Cth legislation affects the executive government of the States
o State legislation affects the executive government of the Cth
First question to ask: Does the subject matter of the law fall within one or more
enumerated heads of power of the Cth?
Crown Immunity:
o Distinct from intergovernmental immunities
o The Crown is immune from lawsuits, legislation doesn’t bind the crown, the
Crown is a priority in the repayment of debts
Intergovernmental Immunities:
o The idea that the Cth and the States may be impliedly wholly or partly
immune from each other’s laws
o Prohibits the Cth and the States imposing upon each other’s agents and
instrumentalities burdens that fetter, control or interfere with the free
exercise of the legislative or executive power
o To what extent is the executive of the State/Cth government immune from
interference from the other level of government?
o Three stages in the HC’s approach
 Dual sovereignty (1903-1920) – extensive ‘immunity of
instrumentalities’ was recognised (very strict)
 Legislative sovereignty (1920 – 1947) – no immunities were
enforced. The Cth was given broad power to regulate the States
(this shift was caused by The Engineer’s Case)
 Dual Federalism (1947 – present) – immunities revived in a modified
form. A balance between the two previous stages (compromise of
strict and relaxed)
Dual Sovereignty
 Early days – the court was prepared to subject federal powers to heavy scrutiny
 Doctrine of reserved powers - where a power wasn’t expressly given to the Cth, it
belonged to the States
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D’Emden v Pedder (1904)
o Interference with Cth by a State
o Looked at whether salary paid by the Cth to a Cth employee was subject to
State stamp duty
o Held: this was not allowed as it was a form of interference by the States. The
statute was read down so not to apply to the Cth
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‘When a State attempts to … fetter control or interfere with, the free
exercise of the legislative or executive power of the Cth’ the attempt is
invalid (p.111) – need to keep the two levels of government separate
Followed by Deakin v Webb, Cth v NSW and Baxter v Commissioner of
Taxation
KEY CASE: established that the two levels of government were wholly
immune from the other level of government
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Railway Servants’ Case (1906)
o Interference with States by the Cth
o Cth law relating to industrial arbitration scheme that was to bind NSW
government instrumentalities (businesses that are under the control of the
gov’t –e.g. Australia Post, provision of utilities)
o While the Cth has the power to make laws with respect to this under the
conciliation and arbitration power (s.51(xxxv)). However, need to consider
implied immunities – this will restrict the exercise of Cth power
o Held: the Cth could not force NSW to take part in the industrial arbitration
framework. Need to keep each government level separate
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R v Barger (1904)
o Interference with States by Cth
o Question – could a Cth law impose a special tariff on agricultural machinery
used by factories that didn’t grant their workers certain conditions
o Held: no as this was outside the Cth’s taxation power (can’t use taxation to
interfere with an area of State power – indirectly interfering with workers
conditions) and it discriminated between the States
o The Cth can’t use the taxation power to interfere with a State area
Exception to the Immunities - 3 main exceptions:
o Interference is permitted in regard to a Cth power that involved control of
some aspect of State government –(e.g. Cth power to regulate interstate
trade and commerce)
o Trading activities of State instrumentalities may be subject to Cth
regulations as long as regulations are the same as other businesses (general
regulations that only apply to trading activity, not employment conditions)
o Local governments do not enjoy immunity from Cth laws
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Legislative Sovereignty
 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) (The
Engineers’ Case)
o Concerned a union award for engineers that was endorsed by a Cth
industrial relations tribunal. Was the award binding on the States as
employers?
o Question – Does the Cth government have the power to make laws binding
on the States with respect to conciliation and arbitration for the prevention
and settlement of industrial disputes extending beyond the limits of one
State?
o s.51(xxxv) – arbitration power – read broadly to cover all disputes across
State borders. No reason why an Act based on this power would not apply
to States.90
o States that the Railway Servants’ Case was decided wrongly
o What changed? – different judges (influential judges left)
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West v Commissioner of Taxation (NSW) (1937)
o Concerned whether the NSW State government could tax the pension of a
retired Cth public servant
o Dixon J stated that ‘where … separate and exclusive governmental powers
have been allotted to two distinct organisms, neither is intended … to
destroy or weaken the capacity of functions expressly conferred on the
other’
Dual Federalism (this is where we are at now – look at these cases)
 Melbourne Corporation v Commonwealth (1947)
o Interference with States by the Cth
o Concerned an attempt by the Cth government to nationalise the banking
industry. The Banking Act 1945 (Cth) attempted to prevent private banks
from providing services for a State or a State instrumentality (s.48 made
them bank with the Commonwealth Bank). The Melbourne City Council
challenged this law on the grounds that it was not within the Cth banking
power and it was an impermissible interference with State governments
o Held: the HC struck s.48 down and stated that it was invalid based on the
fact that the law singled out the States
 Dixon J – Laws that impose a disability or burden upon the States
are unconstitutional. ‘A distinction is drawn between laws of
general application and laws singling out governments and placing
special burdens upon the exercise of powers or the fulfilment of
functions constitutionally belonging to them.’ (pp.81-82)
 This applies to all powers under s.51 – except for some
powers which authorise discrimination against the States
(xxxi, xxxii, xxxiii, xxxiv)
 Dixon J: - stated what he believed to be the legal proposition of the
Engineers’ Case – a power given to the Cth to legislate in respect to
a given subject allows the Cth to make laws that affect the
operations of the States and their agencies
 Reservations – the use of federal legislative power to make
a law that discriminates against States
 Stated that the Cth cannot enact a law ‘aimed at the
restriction or control of a State in the exercise of its
executive authority’
 Starke J – stated that legislation will be invalid if aimed to destroy
the other level of government. Question: does ‘the legislation or
the executive action curtails or interferes in a substantial manner
with the exercise of constitutional power by the other’? (p.75) – if
so, the legislation is invalid.
 Latham CJ – based his reasoning on either/or characterisation,
which is now discredited
 Rich J – There is no implication in the Constitution that the Cth is
restricted from exercising its powers to the fullest extent due to
reservation to the States. However, ‘the Constitution expressly
provides for the continued existence of the States. Any action on
the part of the Cth … which would prevent a State from continuing
to exist and function as such is necessarily invalid.’ Action can be
invalid in two cases –
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‘where the Cth singles out the States or agencies … and
imposes on them restrictions which prevent them from
performing those functions’
 ‘where, although the States or their essential agencies are
not singled out, they are subjected to some provision of
general application which in its application to the would so
prevent or impede them.’ (p.66)
Two key questions (Dixon J approach):
 Is the legislation within power?
 If so - Does the legislation violate any prohibitions? (offend an
express or implied limitation on the Cth’s use of power)
 It was held that the law was within the banking power but
violated an implied immunity
Some confusion as to which criteria to address in regards to interference
with State function as all judges adopted different approaches
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Commonwealth v CIgamatic (1962)
o Interference with the Cth by a State
o Concerned a NSW statute that interfered with the Crown’s prerogative right
of the Cth to be prioritised in the payment of debt after insolvency
o Stated that the federal system is a dual system – if there is any supremacy,
it belongs to the Cth (States do not have the power to regulate the rights,
privileges, duties or disabilities of the Cth)
o Uther v Federal Commissioner of Taxation (1947) – Rich J stated that a State
is allowed to abolish a prerogative of the Crown. Dixon CJ held in Cigamatic
that Uther should not be considered as binding
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Victoria v Commonwealth (Payroll Tax Case) (1971)
o Interference with States by the Cth
o A Cth Act imposed a general tax of 2.5% on all wages paid by an employer
(which included States and State entities). States argued that this was not
within the Cth’s power as it interfered with the functioning of State
governments as employers
o HC held this was valid as it was a general law – didn’t only apply States in
order to disadvantage them (applied to all employers – some exceptions)
o Reaffirmed the principle in Melbourne Corporation
o Barwick CJ – ‘the government cannot ‘aim’ its legislation against a State’
 His understanding of Melbourne Corporation – ‘a law of the Cth
which in substance takes a State or its powers or function of
government as its subject matter is invalid because it cannot be
supported upon any granted legislative power’ (p.372)
 Looked at characterisation – if the Act has two subject matters (one
within s.51 and one not), then you need to consider what is the true
subject matter - ‘It is the lack of an appropriate subject matter
rather than the presence of an implied limitation upon some
granted power that such a law … would fail.’ (p.373)
o Windeyer J – ‘implications arising from the existence of the States as parts
of the Cth … may restrict the manner in which the Parliament can lawfully
exercise its power to make laws.’ (p.403)
 ‘A law, although it be with respect to a designated subject matter,
cannot be for the peace, order and good government of the Cth if it
12
o
be directed to the States to prevent their carrying out their
functions.’ (p.403)
 Melbourne Corporation was decided on - Implied limitation to the
power of the Cth due to the federal structure of the Constitution
Gibbs J – ‘there should not be implied in the Constitution a limitation upon
the legislative powers of the Cth that would render invalid any law to the
extent which it purports to impose a tax upon the States.’ (p.423-424)
 Accepts Dixon J’s view that a law is bad if it discriminates against
States in the sense that is imposes a burden or disability upon them
 Key question: does the legislation discriminate against the States?

Queensland Electricity Commission v Cth (1986)
o Interference with States by the Cth
o There was an industrial dispute between electricity workers and the QEC
(QLD government body). The Cth government intervened by passing
legislation to bring the case into Cth jurisdiction to be dealt with by the Cth
Conciliation and Arbitration Commission
o HC held that this law was discriminatory against QLD and was invalid
o Clarified the test to apply to Intergovernmental Immunities cases (QEC test
– per Mason J at p.217-218): (If yes, the law was invalid)
 Does the Cth law single out or discriminate against the States?
(anti-discrimination test – laws can’t place special burdens on State
governments that don’t apply to other bodies)
 Does the law inhibit the capacity of a State to function as a
government? (function as a government test – laws of general
application cannot operate to destroy or curtail the existence of
States or their capacity to function as governments)
 Key things to note:
o Prohibits legislation that both discriminates against a
particular State and States in general
o A law that deprives a State of a right, privilege or benefit
that places them on equal footing with other States is not
discriminatory
o These prohibitions apply both to States and agencies of the
States (e.g. Melbourne Corporation)
o Deane J – the fact that a general law places an onerous burden on the States
does not necessarily mean that it is discriminatory – the law must
‘discriminate in the sense that its operation involves a singling out of the
States in a way that would prevent them from performing their essential
functions or which would impede them in doing so’ (e.g. Payroll Tax Case –
just because the tax paid by the States was particularly large and had an
onerous effect, the legislation was not discriminatory as it did not single
States out

Western Australia v Commonwealth (Native Title Act Case) (1995)
o Interference with States by the Cth
o The Act limited the way in which State government could respond to native
title claims. The State had to pay compensation in some cases. WA argued
that this Act was discriminatory and that is interfered with their capacity to
function as a government.
13
o
o
o

HC held the Act was not discriminatory (it may affect WA more as there is a
higher percentage of Indigenous people; but this wasn’t intentional)
HC also held that there was no deprivation of the ability to function as
government.
The case stated that the second limb of the QEC test applies to:
 The ‘existence and nature’ of the State gov’t, but not specific
powers
 The ‘machinery of government’ and the capacity of the relevant
organs to exercise their power
 The essential ‘personnel, property, good and services’ the State
requires to operate
Re Australian Education Union; Ex parte Victoria (1995)
o Interference with States by the Cth
o A dispute arose when the Victorian government offered redundancy
packages to some school teachers and health workers. The union wished to
bring the dispute under a federal award.
o Distinction between two categories of employees:
 (A) Non-high level officers (anyone not in the top level of managers)
 (B) High level officers (e.g. ministers, ministerial assistants and
advisers, heads of departments, parliamentary officers, judges)
o Held that the Cth can’t interfere in State employment with respect to:
(these aspects are critical to a State’s capacity to function)
 For Category (A) (p.232)
 The ‘number and identity of persons’ of people to employ
 The ‘term of appointment’ of employees (part-time, fulltime, casual, until retirement, etc)
 The ‘number and identity’ of people who they wish to
dismiss, with or without notice, on redundancy grounds
 For Category (B) (p.233)
 All those for Category (A)
 Qualification and eligibility conditions
 Number, identity, terms and conditions of employment for
the higher levels of government
o Basically – the Cth cannot interfere with category
(B) employees in any respect
o Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ gave a joint
judgment.
o Held: ‘the existence of the States … and their capacity to function as
a government would not be impaired by the operation of federal
awards made in respect of the vast majority of employees … if the
award provisions were confined to minimum wages and working
conditions which take appropriate account of any special functions
or responsibilities’ (p.230) (F&R means amount of work done, skill
level, responsibility level
o Basically – the Cth arbitration system could extended to industrial relations
within the States on matters such as minimum wages and working
conditions; however, cannot extend into areas of policy judgment in
relation to employment structure
o As this law was about redundancy, it was invalid
14

Victoria v Commonwealth (Industrial Relations Act Case) (1996)
o Interference with States by the Cth – application of AEU Case
o The Act was amended to increase protections for workers (restricted the
grounds of dismissal)
o The HC ruled that the legislation did not bind the States as employers, since
it interfered with the protected areas designated in the AEU Case.
 The ‘number and identity’ of redundancies.
 The conditions of employment provided at the ‘higher levels of
government’.

Re Residential Tenancies Tribunal of NSW (1997)
o Interference with Cth by a State (rare – the Cth’s legislative powers have
expanded over time)
o Question – did the State tenancy legislation cover leases taken out by Cth
instrumentalities (in this case – the defence force)
o HC held that States can’t pass laws that interfere with the ‘capacities’ of the
Cth, but they may regulate Cth ‘activities’ (State laws can’t single out Cth or
remove special privileges enjoyed by the Crown)

Austin v Commonwealth (2003)
o Interference with States by the Cth
o Concerned a Cth ‘superannuation contributions surcharge’ directed at high
income earners (included State judges)
o HC held that the levy was invalid as it interfered with the ability of the States
to discharge their functions under the principle set out in the AEU Case
(relating to the appointment and remuneration of judges)
o Reformulated the QEC test: Instead of two limbs, it was expressed as a
single, overriding test (per Gaudron, Gummon and Hayne JJ, p.249)
 Does the Commonwealth law curtail or interfere with the capacity
of a State to function as a government?
 Mere discrimination may not always be enough to infringe
immunity
o McHugh J maintained the QEC two limb test applies

Clarke v Commissioner of Taxation (2009)
o French CJ identified 6 factors: (only one judge – only opinion, not binding) –
these factors form a multifactorial test to determine the application of
 1. Whether the law in question singles out one or more of the States
and imposes a special burden or disability on them which is not
imposed on persons generally
 2. Whether the operation of a law of general application impose a
particular burden or disability on the States
 3. The effect of the law upon the capacity of the States to exercise
their constitutional powers
 4. The effect of the law upon the exercise of their functions by the
States
 5.The nature of the capacity or functions affected
 6. The extent to which the constitutional head of power under
which the law is made authorises its discriminatory application
15
Characterisation

When evaluating legislation, ask:
o Does the Cth law match up with a s.51 power or another power within the
Constitution?
o What is the subject matter of the law? Does it fall within one or more
enumerated heads of power? (Characterisation)


The HC approach to characterisation has changed over time.
Early view – Cth powers should be limited to protect the reserve powers of the State
o Dominant characterisation – What is the true subject of the law? (e.g. is the
true subject matter of the law taxation or is the Cth using the taxation
power to interfere with education?)
o E.g. R v Barger (1908) - A Cth law imposed a tariff on agricultural machinery
used by factories that did not grant their employees certain minimum
working conditions. This law was about both taxation (imposing a tariff) as
well as industrial relations (the effect of the tariff was to try and improve
workers’ conditions)
 HC struck down the law (the dominant character of the law was not
with respect to taxation – it was a law about working conditions) –
stated that while the Cth can use tax to achieve an end not solely
related to taxation; the Cth cannot use taxation to interfere with
areas of state power.
o E.g. Huddart, Parker & Co v Moorehead (1909) - Cth tried to use the
corporation power to question the plaintiff about its trading activities. The
company refused to comply
 HC held that the dominant character of the law was not regulating
corporations; rather, to regulate trade and commerce (a State
power). Thus, the law was invalid

Engineers’ Case – moved away from the dominant characterisation approach
o Dual/Multiple Characterisation – Is there a reasonable view of the law that
places it within the head of power? (does not look at the true purpose of
the law)
 A law can have more than one legitimate subject matter – as long as
at least one of the law’s subject matters is within Cth power, the
law is valid
 The connection between the law and the purpose must be
genuine and not ‘so insubstantial, tenuous or distant that
[the law] cannot sensibly be described as a law ‘with respect
to’ the head of power’ (Re Maritime Union of Australia; Ex
parte CSL Pacific Shipping Inc (2003))
 This grants the Cth more power – they can make a law that impacts
both a federal and State power and it will be valid
o
E.g. Fairfax v Federal Commissioner of Taxation (1965) – concerned
attempts of the Cth to use taxation to encourage private investments in
government securities as superannuation funds were exempted from
income tax if they bought government bonds. The law was challenged on
the basis that it was not truly about taxation, rather about the investment of
superannuation funds; thus, outside of the Cth power
16

o

HC held that the law was valid and that Cth laws with respect to a
s.51 power may also affect another area
 As long as the law can be characterised as a law ‘with
respect to’ a subject matter that is within Cth power, it is
irrelevant that the law may also be characterised as bearing
upon some subject matter not within the Cth’s power
E.g. NSW v Cth (Work Choices Case) (2006) – concerned legislation that
relied on the corporations power but affect industrial relations.
 HC held that the law was valid – stated that the Cth powers must be
read with ‘all generality that the words admit’
Two types of powers in ss.51 & 52: subject matter and purposive
o If the power is one of subject matter: test = Is there sufficient connection
between the law and the head of power?
o If the power is purposive: test = proportionality
Conflict of Laws





Must first determine if a law is valid
o Cth – the law must be within the powers of the Cth (s.51)
o State laws will not be valid if they concern an exclusive Cth power (s.52)
There are some heads of power that both Cth and States can legislate in regards to.
What happens if there is a conflict?
For a conflict to arise, there must be a valid Cth and a valid State law
o In most conflict of law cases, the initial step is determining if both laws are
valid
o The Cth cannot create an inconsistency in order to extend their powers
(Airlines of New South Wales Pty Ltd v New South Wales (1965))
s.109 – 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. (Cth law trumps State law)
How to determine if two laws are inconsistent?
o Conflict of Duties – A Cth law and a State law will be inconsistent if one
law requires an act and the other law prohibits it
 R v Brisbane Licensing Court; Ex parte Daniell (1920) – The Liquor Act
1912 (Qld) required a referendum on trading hours to be held along
with the Senate elections. However, the Commonwealth Electoral
Act forbade this. The Cth law prevailed under s.109.
o Conflict of Rights – A Cth law and a State law will be inconsistent if one law
authorises an act an another law prohibits it
 Tension between the laws – even though you can obey both laws by
not doing the act
 Colvin v Bradley Brothers (1943) – a State law prohibited women
from working on milling machines. A Cth industrial award permitted
it. The Cth law prevailed as it intended for women to do that type of
law
 O’Sullivan v Noarlunga Meat (No 1) (1954) – if a person is required
to get both a Cth grant and a State grant under two different laws;
getting only the Cth grant will suffice
17

o
o
o
o
Exceptions – Commercial Radio Coffs Harbour v Fuller (1986)
– Cth law required the erection of an antennae to establish
a radio station and State law required the plaintiff to get
approval. Plaintiff tried to argue they only had to follow Cth
law (in order to avoid planning process). HC held that both
laws applied
Overlapping Requirements – one law imposes certain requirements while
another law imposes more onerous requirements
 No clear conflict – can obey both laws by meeting the more onerous
requirements
 Depends on how you interpret the less onerous requirements – as a
minimum standard that another law can build on or designed to
exhaust the requirements
 Clyde Engineering v Cowburn (1910) – Cth award set a working week
of 48 hours while NSW set a 44 hour week. After this, overtime was
payable. NSW award was more onerous on employees. HC held that
the Cth law prevailed as it was not intended to be a minimum
standard; rather, to standardise employment arrangements on a
national basis.
Different Penalties – a Cth and State law may impose the same restriction
but different penalties or procedures
 Hume v Palmer (1926) – Cth and State law applied the same rules to
steamship navigation but provided for different penalties. The Cth
law prevailed.
Operational Inconsistency – two different laws are not directly in conflict,
but when these laws are exercised/in operation, there is conflict
 The Cth law will tend to prevail
 Cth v WA (Mining Act Case) (1999) – the Mining Act 1978 (WA)
authorised mining activities. The Defence Act 1903 (Cth) excluded
people from defence practice areas. No direct conflict between the
laws but when a defence practice area is declared in a mining area,
operational conflict will arise.
 Suggestions of ‘operational conflict’ are usually rejected
Covering the Field – If a Cth law shows an intention to cover the field
(completely regulate a particular topic), then any State laws on that topic
are invalid
 These two laws may even require the same conduct or pursue the
same purpose
 Two questions: (conflict if both questions are answered yes)
 Is the Cth law intended to be exclusive? (the only law on the
topic)
 Does the State law operate in the same field as the Cth law?
 Sometimes this intention is explicitly stated in the law; other times
the scope of the law will provide evidence (e.g. Clyde Engineering v
Cowburn – the Cth intended to nationalise working conditions)
 Test: ‘Was the second Act on its true construction intended
to cover the whole ground and, therefore, to supersede
the first?’ (per Isaacs J, p.489)
o Applied in Ex parte McLean (1930) by Dixon J
 The Cth can do the opposite and make an express provision of
‘clearing the field’ – indicating that the Act is to operate
18
concurrently with State laws (R v Credit Tribunal; Ex parte General
Motors Acceptance Corporation (GMAC Case) (1977)) – no
inconsistency between Cth and State law as the Act was not
intended to be exhaustive – such a provision is effective
 A Cth law can’t declare that there is no inconsistency but in
times of doubt surrounding whether a Cth law intends to
‘cover the field’, such a provision is helpful
 Viskauskas v Niland (1983) - different processes in federal
and state racial discrimination statutes. HC ruled that the
Cth law was intended to be exhaustive (this outcome
surprised the Cth who passed an amendment that the Act
stating it was not intended to cover the field)
o Wollongong v Metwally (1984) – the Court held that
the retrospective declaration of intent cannot
eliminate the inconsistency that was declared

What are the consequences of conflict?
o If a State law us affected by s.109, it is rendered inoperative (not invalid as
the Constitution suggests) – the State law will immediately come back into
effect if the inconsistence is removed (e.g. the federal law is repealed)
 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) – the word
‘invalid’ in the Constitution should be interpreted as meaning
‘inoperative’ (per Latham CJ, p.573)
o If the inconsistent provisions can be severed from the rest of the Act, they
will be – if the inconsistent provisions are essential to the Act, the whole Act
will be inoperative.
19
External Affairs Power


External Affairs power – s.51(xxix) – concurrent power shared by the Cth and States
The power is vague (only says ‘external affairs’) – the High Court has interpreted the
power to have thee sub-powers:

The Geographical Power
o Literal – this power applies to laws concerning things, people and events
outside of Australia; applied broadly
o Australia’s Territorial Sea: NSW v Cth (Seas and Submerged Lands Case
(1975) – territorial sea has been defined by international law as extending
from the low water mark to 12 nautical miles (approx. 22km) offshore. The
Ct passed a law that operated in this area. NSW challenged it. The HC upheld
this legislation by saying it fell within the treaty power and within the
geographical power (the sea is physically external to Australia)
 The external affairs power covers ‘any affair which in its nature is
external to the continent of Australia’. – per Barwick CJ
o War Crimes: Polyukhovic v Cth (1991) – concerned a Cth law that
retrospectively criminalised war crimes during WWII. The HC upheld the
legislation under the geographical power.
 Raised a debate regarding whether the thing legislated on must
have some connection to Australia – majority held that there did not
need to be a connection. Brennan J argued this – there needs to be
some Australian connection

The Treaty Power
o The power of the Cth to pass legislation implementing international treaties
that Australia has signed (legislation must be passed for the treaty to be
binding in Australia)
o First use of the power in Roche v Kronheimer (1921) – Higgins J used to the
external affair power to uphold the Treaty of Peace Act 1919 (Cth) which
implemented the Treaty of Peace signed at Versailles after WWI (other
judges used defence power)
o R v Burgess; Ex parte Henry (1936) – an unlicensed aviator who performed
stunts near the Sydney Harbour Bridge was charged under the Air
Navigation Act 1920 (Cth) which said it is an offence to fly in Australian
airspace without a licence. The aviator challenged the law. HC stated that
the law fell within the treaty power (implemented the ‘International
Convention for the Regulation of Aerial Navigation’)
 It is clear ‘that the legislative power of the Cth over “external
affairs” certainly includes the power to execute within the Cth
treaties and conventions entered into with foreign powers.’ – per
Evatt and McTiernan JJ, p.687
 RULE: the treaty power extends to all bona fide treaties
 Note: the law was held invalid as it did not resemble the Convention
enough
 Starke and Dixon JJ proposed limitations to the treaty power
 Starke J: the laws will only be valid if the ‘matter is “of
sufficient international significance’ – p.658
 Dixon J: the treaty must be of ‘some matter indisputably
international in character’ to be implemented in Australia –
p.669
20
o
o
o
o
Koowarta v Bjelke-Petersen (1982) – the RDA threatened to invalidate a QLD
statute prohibiting Indigenous people from owning large parcels of land. The
HC held that the RDA was supported by the treaty power (implementing the
1966 International Convention on the Elimination of All Forms of Racial
Discrimination)
 Debate about whether the treaty must have an international
element and not be purely domestic in application. If not, this could
allow the Cth to have a huge amount of power
 RULE: expansive view – any law implementing a treaty may be
within federal power (could possible be interpreted as needing
‘international concern’)
 Gibbs CJ, Aickin and Wilson JJ adopted the limitations of Dixon J in R
v Burgess
KEY CASE: Cth v TAS (Tasmanian Dam Case) (1983) - Tasmanian government
proposed to build a dam that would flood the Franklin River. Plan opposed
by conservationists and the Cth. UNESCO declared the Franklin River a
World Heritage Site in 1982. Cth passed legislation to protect the site and
prohibit the construction of the dam. HC upheld the legislation – within the
external affairs treaty power.
 RULE: the treaty power is not limited by content – only
requirement is that Australia has signed an international treaty
in good faith about the topic that has been legislated on (even if
the topic is traditionally legislated by the States). Don’t need to
prove that the topic is in relation to a matter of international
concern.
 Could possible lead to the Cth using treaties to interfere
in many State powers
 Brennan J’s two step test:
o Does the treaty impose an obligation?
o If not, the Act has to be justified as dealing with a
matter of international concern.
 Gibbs CJ dissented – stated that the external affairs power was
not operative in this situation as the legislation did not affect
Australia’s relations with other nations and heritage was not
such a burning international issue
Richardson v Forestry Commission (1988) – An act established a commission
to investigate if a certain area of forest in Tasmania could qualify for world
heritage. The Act prohibited certain works from occurring within the area.
The majority held the act to be valid.
 The High Court has a broad view of complying with a treaty
obligation
Limits on treaty power:
 Treaty must be a bona fide international agreement (good faith)
 Tasmanian Dam Case – treaty must be genuine – the Cth
can’t rely on treaties ‘entered into merely to … confer
legislative power upon the Cth’ (e.g. the Cth may enter into
a bilateral treaty with a nation who they provide incentive
to so they can interfere with State matters)
 Cth legislation must be reasonably related to the treaty
21



Airlines of NSW Pty Ltd v NSW (No 2) (1965) – strict
approach – is the Cth law appropriate and adapted to the
implementation of the treaty?
 Richardson v Forestry Commission (1988) – relaxed
approach – could the Cth legislature reasonably form the
view that the law was necessary to implement the treaty?
 VIC v Cth (Industrial Relations Act Case) (1996) – middle
position – the legislation must have a close enough
connection to the treaty – ‘It is for the legislature to choose
the means [of implementing the treaty] provided that the
means chosen are reasonably capable of being considered
appropriate and adapted to that end’
 Legislation conforms to a treaty if it is reasonably capable of
being considered to be appropriate and adapted to its
implementation
Treaty Power is subject to other constitutional limits on Cth power
(both express and implied)
 Thus applies to all s.51 powers – cannot override
constitutional rights or guarantees
 However, the HC doesn’t read down this power in reference
to the jurisdiction of the States
 ‘power … [is] “subject to this Constitution” so that such
treaties and conventions could not be used to enable the
Parliament to set at nought constitutional guarantees
elsewhere contained’ (R v Burgess; Ex parte Henry, per Evatt
and McTiernan JJ, p.687)
 E.g. Freedom of religion (s.??) Melbourne Corporation
principle, freedom of communication, separation of powers
The Cth must implement a binding treaty power, not a mere
aspiration
 QLD v Cth (Daintree Rainforest Case) (1989) – A binding
obligation is required but the HC won’t scrutinise a treaty
(will look at the views of the international community to see
if they think the treaty is intended to be binding)
 Richardson – the HC held that the Cth could use the treaty
power to pre-emptively fulfil a possible future obligation
(e.g. if an area was going to be World Heritage listed)
 Industrial Relations Act Case (1996) – there must be a
specific obligation – a mere aspiration will not allow this
power to operate (may be hard to distinguish – benefit of
doubt is given to the Cth)
o This case left the idea of whether an Act could be
based on a recommendation – but the answer is No.
22

The International Relations Power
o Power directed at legislation aimed at preserving Australia’s relations with
other nations
o Doctrine of comity – nations accept each other’s sovereignty
 Thomas v Mowbray (2007) – ‘the pursuit and advancement of
comity with foreign government and the preservation of the
integrity of foreign states may be a subject matter of a law with
respect to external affairs’ – per Gummow and Crennan JJ, p.364
o E.g. R v Sharkey (1949) - upheld federal legislation upholding sedition
(including sedition against the British Crown – the UK and other Cth
countries). HC held that this law was within the power of the Cth as the law
was necessary to maintain friendly relations with other nations of the Cth
 ‘The relations of the Commonwealth with all countries outside
Australia, including other Dominions of the Crown, are matters
which fall directly within the subject of external affairs’ - per
Latham CJ, p. 136.
o Power can be used to pass Cth legislation to recognise or exclude the
operation of foreign laws in Australia (will also cover extradition)
 Kirmani v Captain Cook Cruises (No 1) (1985) – concerned the
validity of legislation excluding the operation of British Imperial Act
in Australia. HC held that this law fell under the external affairs
power – laws that clarify international laws are valid.
o Possible to use this aspect of the external affairs power to authorise a mere
aspiration on a topic of international concern (treaty power not applicable)
 Tasmanian Dam Case – Mason, Murphy and Deane JJ supported this
idea
 HC has recently said that a mere aspiration wont be enough to
enliven the external affairs power (Industrial Relations Act Case) –
need either a binding obligation or the doctrine of comity
o How do you work out if a matter is of international concern?
o Brennan J in Polyukhovich – ‘international concern’ is vague so that it
should be approached with caution – need proof (e.g. clear expression
by the international community, adhered to in international practice)

Regulation of Matters of International Concern

External Affairs and Federalism
o External affairs power authorises a broad range of Cth laws – can pass a law
on anything and rely on the external affairs power – only need a relevant
treaty (there are many treaties about a vast range of matters)
o This power poses a significant threat to the federal balance
o Industrial Relations Act Case shows that the court is becoming more
cautious about applying the treaty power
23
Defence Power


s.51(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.’
Defence power is a concurrent power – but there are a number of constitutional
provisions relevant to defence:
o s.68 - ‘The command in chief of the naval and military forces of the
Commonwealth is vested in the Governor-General as the Queen’s
representative.’  executive has control over day to day military operations
o s.114 - ‘A State shall not, without the consent of the Parliament of the
Commonwealth, raise or maintain any naval or military force [...]’  States
cannot establish a defence force (the defence power is more than just
establishing a defence force)
o s.119 - ‘The Commonwealth shall protect every State against invasion and,
on the application of the Executive Government of the State, against
domestic violence.’  in return for States not establishing an army, the Cth
will defend the States from attack (e.g. military protects States from internal
violence)

Nature of the Power
o Elastic – the scope of the power changes depending on the historical and
social circumstances (war time or peace time)
 Andrews v Howell (1941) – ‘its application depends upon facts’ such
as ‘the existence and character of hostilities, or a threat of
hostilities, against the Commonwealth’ – per Dixon J, p.278
 Australian Communist Party v Commonwealth (Communist Party
Case) (1951) – Fullagar J has identified two aspects of the power:
 1. Primary – Laws that have defences as ‘their direct and
immediate object’ (core)
 2. Secondary – a range of matters only indirectly related to
defence (penumbra)
o Purposive – authorises legislation with a particular purpose (not a subject
matter power)
 Purposive power can cover laws on a large range of subject matters
as long as they relate to a certain purpose
 Stenhouse v Coleman (1944) – is a matter ‘incidental or
conducive to the prosecution of a war that is being fought’
 Relevant characterisation is one of proportionality, not
sufficient connection to a subject matter

The Wartime Power
o The defend power is extremely broad during wartime – can regulate any
aspect of the economy or Australian life
o War time – a war that Australia is involved in as a party (scope can vary with
the extent that Australia is involved in)
o Farey v Buryett (1916) – concerned legislation fixing the price of bread
during wartime. HC upheld law under defence power. Law not directly
concerned with defence but assisted the war effort (need to tightly control
the economy)
 Scope of defence power is virtually unlimited during a time of total
war where Australia is threatened
24
o
o
o
o
Lloyd v Wallach (1915) – HC upheld legislation giving a minister the power to
detain anyone who threatened the defence of the Cth during WWI
Legislation during war covers a very broad range of matters – price controls,
rent controls and employment regulations
Taxation and defence – First Uniform Tax Case (1942) – held that the
defence power supported the seizure of tax office personnel and property
as it was wartime and fund were needed for the war
Limits on the wartime power:
 R v University of Sydney; Ex parte Drummond (1943) – legislation
placed limits on the number of students admitted to uni. Cth argued
this was needed to support war effort. HC rejected this as there was
no attempt to encourage people to contribute to the war – need a
sufficient connection to defence.
 Industrial Lighting Case (1943) – restrictions on lighting for industrial
premises. HC said law lacked a sufficient connection to defence. (‘no
specific relation to the subject of defence’ – per Latham CJ, p.418)
 Jehovah’s Witnesses Case (1943) – Cth declared Jehovah’s witnesses
a ‘subversive organisation’ which allowed government to seize
group’s property and prohibit publications. HC said restrictions were
unsupported by the defence power as this legislation can be used
for purposes not related to defence.

The Transition to Peace
o Defence power authorises laws managing the transition from war to peace
o Scope at this time is less than in war time but more than in peace time
o Law may deal with the repatriation and rehabilitation of soldiers, rebuilding
a destroyed city
o Limits on the Transition to Peace Power:
 R v Foster; Ex parte Rural Bank of New South Wales (1949) – HC held
that a number of WWII regulations could not be sustained after the
war (restriction on employment, petrol sales and supply of
residential housing). The power does not cover ‘any problem […]
created or aggravated by the war’ for an indefinite period as this
would amount to a general power.
 ‘the cessation of hostilities leaves behind various matters
which can legitimately be made the subject of
Commonwealth legislation as being incidental to the
execution of the defence power in the past’ –p.81

Peacetime Power
o Defence power is narrowest during peacetime  stull significant scope as
the Constitution has been interpreted due to the Engineer’s Case
o Defence power covers ‘defence preparedness’ and matters such as ‘the
enlistment (compulsory or voluntary) and training and equipment of men
and women in nay, army and air force, the provision of ships and munitions,
the manufacture of weapons and the erection of fortifications.’ – Australian
Communist Party v Commonwealth (Communist Party Case) (1951) – p.254
o Successful use of the defence power:
 Clothing Factory Case (1935) – HC upheld legislation creating a Cth
factory to produce clothes for both military personnel and civilians
25
o
(multiple characterisation – had both a defence and not defence
purpose – enough to hold it within the defence power)
 Capital Issues Case (1953) – HC upheld legislation allowing the
Treasure to restrict businesses from raising capital in ways
competing with government capital issues (defence power as raising
money through governmental bonds was necessary to fund the
military)
Unsuccessful use of the defence power:
 Shipping Board Case (1926) – law authorised the Cth Shipping Board
to produce and sell equipment for generating electricity. Cth argued
that a reliable supply of electricity was needed for naval defence. HC
struck down law – not a sufficient connection with defence (this law
may have been okay during wartime)
 Communist Party Case (1951) - The Communist Party Dissolution Act
1951 (Cth) outlawed the Communist Party, confiscated its property
and allowed GG to outlaw other associated groups. Cth argued that
these measures were needed for national defence. HC struck down
the law – not supported by the defence power
 This case would now raise concerns of the implied freedom
of political communication
 Military Discipline
o Defence power supports the establishment of service tribunals to hear
charges against military personnel (even during peace time)
o R v Tracey; Ex parte Ryan (1989) –HC upheld the Defence Force Discipline Act
1982 (Cth) which established military tribunals. Limitations – can’t prevent
civilian courts from also trying military personnel.
 Internal Threats
o s.51(vi) – extends to ‘the control of the forces to execute and maintain the
laws of Commonwealth’  this could be construed as police power
(establishing a Cth police force); however, the police power falls under the
incidental power (s.51(xxxix)) – look elsewhere to find a power to cover
internal threats
o Terrorist attacks – lead to questions whether the defence power covers
internal threats  Thomas v Mowbray (2007) – HC upheld anti-terrorism
legislation allowing ‘interim control orders’ under the defence power.
Allowed the power to extend to internal attacks against body politic as a
whole/against the government or public
26
Corporations Power



s.51(xx) – The power to make laws with respect to ‘foreign corporations, and
trading or financial corporations formed within the limits of the Commonwealth’
Concurrent power – Cth has been given enormous power to regulate economic
activity (after Work Choices Case)
Two key questions in regards to this power:
o What are the entities with respect to which the Commonwealth may make
law under s.51(xx)?
o What kind of law can the Commonwealth make with respect to these
entities?
What is a Corporation?
 s.51(xx) applies to ‘constitutional corporations’ – foreign corporations, trading
corporations formed with the Cth and financial corporations formed within the Cth
 What is a corporation?
o An association that is given an artificial legal personality by law
o Established by State or Federal Law – uniform Corporations Act in every
jurisdiction
o A corporation may be incorporated under a special statute (e.g. University of
Queensland Act 1998 (Qld), City of Brisbane Act)
o Incorporation means – the company is a separate entity from its
shareholders and directors, the company can sue in tis corporate name,
there is perpetual succession (employees change, company remains), power
to acquire and hold property

Foreign Corporations
o A corporation ‘formed outside the limits of the Cth’ (Incorporations Case
(1990))
o Entity must be a corporation at foreign law (Adamson’s Case (1979) – an
entity is a corporation if, under foreign law, it is an entity separate from its
members)
o Foreign corporation does not need to be a trading or financial corporation –
s.51(xx) applies to all corporations

Trading Corporations
o s.51(xx) will apply to corporations that only engage in intra-State trading
(trading only within one State)
 Huddart, Parker & Co v Moorehead (1908) said that s.51(xx) does
not apply to corporations that conduct only intra-State trade but
this decision was overruled in Strickland v Rocia Concrete Pipes
(Concrete Pipes Case) (1971) – said that the Huddart Parker decision
was based on the reserved powers doctrine which was later
overruled in the High Court
o What is a trading corporation? – a corporation set up to engage in trade
(What was the purpose of setting up the corporation? Look at memorandum
documents). There are three tests to determine whether or not a
corporation is a trading corporation?
 1. Nature of the corporation is determined by the purpose for
which It was set up (purpose test)
 R v Trade Practices Tribunal; Ex parte St George Country
Council (1974) – The Council was set up to provide an
27


o

essential service to inhabitants; thus, was not a trading
corporation. What was the purpose for which the
corporation was set up? (per Gibbs and Menzies JJ)
2. Predominant and characteristic current activity (activities test)
 St George Country Council Case (1974) – a corporation will
be a trading corporation if it’s predominant characteristic
activity is trading. The ends for which the corporation
trades is irrelevant. (per Barwick CJ)
3.Trading activities are a ‘substantial’ or ‘not insignificant’ part of
its operation
 Authority favours this case – but it is not certain
 This is basically a judgment call
 R v Federal Court of Australia; Ex parte Western Australian
National Football League (Adamson’s Case) (1979) – applied
the activities test but said the trading activity must not be
insubstantial (per Mason and Murphy JJ). Held that the WA
and SA football leagues were trading corporations
 Applied in State Superannuation Board v TPC (1982) by
Deane J – minority said that the superannuation fund was
not a constitutional corporation because its predominant or
characteristic activity was governmental in nature
Trading corporations – football leagues, state superannuation board, hydro
electric commission of Tasmania (Tasmanian Dam Case (1983)), shelf
companies (a company that has been set up but not in operation – Fencott v
Muller (1983) – in the absence of activities, apply the purpose test)
Financial Corporations
o Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) – a
corporation is a financial corporations when it conducts ‘transactions in
which the subject of the transactions is finance (such as borrowing or
lending money) as distinct from transactions (such as the purchase or sole
of particular goods …) in which finance, although involved in the payment
of the price, cannot be properly seen as constituting the subject of the
transaction.’ – per Deane J, p.642
o Suffices if financial dealing is a substantial part of its activity
o E.g. – banks, building societies, finance companies,
o Superannuation Boar v Trade Practices Commission (1982) – approved
above test and said that a corporation is a financial corporation if it engages
in financial activities. Significant as it said that financial activities need not
be the corporations predominant activities. But need only form a
substantial proportion of its total activities
o Bourke v State Bank of NSW (1990) – commonwealth can’t regulate State
Banks
Development of Corporations Power
 Corporation power was basically ignored as a basis for Cth legislation until Strickland
overruled Huddart Parker
 Huddart, Parker & Co v Moorehead (1909)
28
o

Held that the corporations power could not support the Australian
Industries Preservation Act 1906 (Cth) (early version of trades practices
legislation)
o Court held that the corporations power should be construed narrowly in
order to protect the reserved powers of the States
o Fear that a broader interpretation would give the Cth an uncontrollable
power
o Isaacs J dissented and said that the corporations power was exercisable
wherever ‘these specific objects are found, irrespective of whether they are
engaged in foreign or Inter-State commerce, or commerce confined to a
single State’. The autonomy of the States is safeguarded to an extent in that
the power restricted the Cth in regards to what type of corporations they
could legislation on (foreign, trading and financial). This already limits the
Cth power; thus, you shouldn’t put even further limits on it. (p.393)
 Isaacs J essentially looked at two questions – which corporations fall
within s.51(xx)? And what aspects or activities of a corporation can
be regulated under s.51(xx)?
Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971)
o Challenge to aspects of the Trade Practices Act 1965 (Cth).
o Overruled Huddart Parker – said that it was decided on the reserved powers
doctrine which was now overruled in the Engineer’s Case (1920)
What kind of laws can Parliament make with respect to constitutional corporations?
 s.51(xx) is a power in relations to persons or entities, not activities (like the aliens
and races power)
 HC refuses to place an outer limit on the power – each case is determined on a case
by case basis with limits being pushed further out (Actors and Announcers Equity
Association v Fontana Films Pty Ltd (1982))
o ‘The subject of the power is corporations … the power is not expressed as
one with respect to the activities of corporations, let alone activities of a
particular kind or kinds.’ – per Mason J, p.207
 Tasmanian Dam Case (1983) – extended the scope of the power to allow the Cth to
regulate activities undertaken for the purposes of its trading activities

Parliament has no power with respect to incorporation of companies generally
o s.51(xx) does not enable the Cth to enact its own corporations law that
would regulate all aspects of companies (including their incorporation)
o Why? – NSW v Cth (Incorporations Case) (1990) said:
 The words ‘formed within the Cth’ refers to corporations already
formed
 s.51(xiii) gives power to make laws with respect to incorporations of
banks (expressio unius exclusion alterius – express inclusion of one
thing excludes another)
 Parliament cannot have the power to legislate on formation of
foreign corporations

Parliament cannot make law to abolish corporations
o Parliament may regulate the conduct of activities of corporations but not
ban them – Cth v Bank of NSW (Banking Case) (1948)
29

Parliament may establish Cth corporations under other heads of powers
o E.g. the ABC and NBN were created under s.51(v) ‘postal, telegraphic,
telephonic, and other like services’; Commonwealth Bank established under
s.51(xiii) ‘banking, other than State banking’; Australian National Airways
created under s.51(i) ‘trade and commerce with other countries, and among
the States’.

Extent of power to regulate corporation – there are two tests:
o The ‘Distinctive Character’ test:
 The aspect or activities that the Cth can regulate must have
something to do with the characteristic that brings the corporation
within the Cth power (e.g. if the law is in respect to a trading
corporation, the law must have something to do with trading
activities of that corporation)
o Objective of Statutory Command test:
 No limits – Cth can regulate any aspect or activity of the corporation
 Dominant test – fears of power being too broad
 A law is valid under s.51(xx) if the object of statutory command is a
constitutional corporation (directed at a corporation in s.51(xx))
 Re Dingjan; Ex parte Wagner (1995) – ‘the corporations power is
directed to persons and not subject matters … the power conferred
by s.51(xx) also extends to any subject that affects the
corporation…. the law must have ‘a relevance to or connection with’
a s.51(xx) corporation.’ – per McHugh J, p.368
 Gave no clear answer – agreed that the question shouldn’t
be ‘what aspects or activities of a corporation can be
regulated?’; rather, should be ‘what degree of relevance or
connection to ‘constitutional corporations’ is necessary?’
 Also supports laws directed to protecting constitutional
corporations from conduct intended and likely to cause loss or
damage to the corporation (Fontana Films)

May regulate purely intra-state activities of trading corporations
o See above about intra-state corporations (Strickland)
o If the purely intra-state activity is banking, parliament has no power due to
s.51(xiii) ‘banking, other than State banking’

Regulation of activities of third parties in relation to constitutional corporations
o Actors and Announces Equity v Fontana Films (1982) upheld s.45D of the
TPA, which prohibited secondary boycott of corporations.
 The prohibited conduct is sufficiently relevant for the prohibition
of it to be described as a law with respect to the subject of
constitutional corporations – per Gibbs J, p.183. However, there are
limits to the power to regulate third parties
o Davies v Commonwealth (1998) – HC considered the validity of certain
provisions of the Australian Bicentennial Authority Act 1980 (Cth). Provisions
granted the Authority a monopoly of certain symbols and expression
including the term ‘200’. In their joint judgment, Mason CJ, Deane J and
Gaudron J stated that s.51(xx) could be used to grant protection to
corporation against deceptive use of its symbols but they held that this went
far beyond protection of that kind
30

Regulation of industrial relations by corporation power – The Work Choices Case
o Work Choices Case – large expansion of the corporations power
o Work Choices legislation was a series of amendments to the Workplace
Relations Act (Cth). The main Act was supported by the conciliation and
arbitration power. Gov’t used corporations power to support the new Act
o Aim of legislation = use corporation power to install a comprehensive law
governing industrial relations that radically changed the existing systems.
The Act brought 85% of the Australian workforce within federal jurisdiction
o Law not supported by s.51(xxxv) – power over industrial disputes extending
beyond the limits of any one State
o Challenged on the basis that:
 There is a distinction between internal and external relations of
corporations and s.51(xx) does not apply to internal relations
 REJECTED – this added a new filter to the test and was
indirectly based on the discredited reserved powers
doctrine
 The existence of specific industrial relations powers in s.51(xxxv)
precludes the use of s.51(xx)
 REJECTED – s.51(xxxv) deals with a narrower subject of
conciliation and arbitration and a law may have several
characters (the fact that is deals with IR doesn’t mean it isn’t
a law on constitutional corporations)
o Majority said the rejection of the plaintiffs’ arguments ‘is favoured by a
consideration of the text and structure of the Constitution and by the course
of authority in this Court since at least the demise of the reserved powers
doctrine in 1920.’

Other limits on the corporations power
o Like all s.51 powers, the corporations power ‘is subject to this Constitution’
o Nationwide News v Wills (1992) – s.51 powers are subject to the implied
freedom of communication
o Melbourne Corporation Case (1947) – cannot impair the capacity of the
States to function as States
31
Taxation and Spending




The people consent to the government taking money off them
No taxation is possible except under the authority of an Act of Parliament
Relevant sections:
o s.81 - government revenue must be paid into the Consolidated Revenue
Fund (CRF)
o s.82 – Commonwealth expenditure takes priority in applying CRF funds
o s.83 – money can only be drawn from the fund under an appropriation law
o s.54 – appropriation bills for ordinary services of government (OASG) must
only deal with such appropriations
If the Budget is not passed by both houses, it is convention for the PM to resign
Power to Impose Tax
 s.51(ii) – Parliament has the power to make laws with respect to ‘taxation; but so
as not to discriminate between States or parts of States’
o This power has had a significant impact on the evolution of Australia’s
federal structure
o Cth uses this power to raise most of its revenue – income tax and GST
o Only limit on taxation is that it doesn’t ‘discriminate between States or parts
of States’
 s.90 – power to impose duties of customs and excise belong exclusively to the Cth
 Cth has a monopoly on income tax
o Established In the State Grants (Income Tax Reimbursement) Act 1942 (Cth)
o Uniform Tax Scheme 1942 – States receive reimbursements from the Cth on
the condition that they do not impose income tax
 States taxes – stamp duty, land tax, various sales tax
 Federal and State taxes can’t conflict because a federal tax can only be fore federal
purposes and State taxes can only be for State purposes – Victoria v Cth
What is a Tax?
 Different types of taxes – income tax, wealth tax, land tax, stamp duty, duties of
customs and excise
 First question = is the exaction in question a tax?
 Matthews v Chicory Marketing Board (Vic) (1938) – A tax is a compulsory exaction
of money by a public authority for public purposes, enforceable by law, and is not
a payment rendered for services (per Latham CJ)
 Compulsory exaction of money:
o Air Caledonie v Cth (1998) – the Migration Amendment Act 1987 (Cth) tried
to impose a $5 fee for immigration clearance upon international airline
passengers entering Australia into the Migration Act 1958 (Cth). Plaintiff
argued that the fee was a tax and couldn’t be inserted into the Migration
Act as the Act dealt with matters other than the imposition of taxation
(contravened s.55). Held that the $5 fee was a tax.
o Rule: If the person required to pay is (a) given no choice about whether
or not the acquire the services; and (b) the amount of the exaction has
no discernible relationship with the value of what is acquired; the
exaction is a tax
o Also suggested that Latham CJ’s definition was not exhaustive (an
exaction may be a tax even if a specified characteristic is missing or may
not be a tax even if all characteristics are present)
32






Imposition by a Public Authority
o A public authority is a body that performs function or delivers services of a
public nature – independent, statutory bodies have been treated as public
authorities
o Australian Tape Manufacturers v Cth (1991) – the majority stated ‘that it is
not essential to the concept of a tax that the exaction should be by a public
authority’
(if Latham CJ’s definition is not exhaustive, this judgment is
okay)
Requirement of Public Purposes
o Taxes must no be used for the private purposes of the leader
o Australian Tape Manufacturers v Cth (1991): money collected from a levy on
the distribution of all blank recording tapes was not paid into the CRF but
paid directly to the association of copyright owners. Held the levy was a tax
as it was for a public purpose (finding a solution to a problem of public
importance – copyright)
Distinguish tax from:
o Payment for services (getting something in return for money)
 Need to show that there is a specific identifiable service; the fee is
payable by the person who received the service; the fee is
proportionate to the cost of the service
 Service must be to the individual, not the public in order to not be a
tax – A-G (NSW) v Homebush Flour Mills (1937)
 Air Caledonie v Cth (1998): held that a $5 immigration clearance fee
paid by all incoming passengers and collected by the airline was a
tax as it applied to citizens returning to Australia who did not need a
licence; thus, there was no identifiable service
 Air Services Australia v Canadian Airlines (1999): held that air traffic
service fees were not a tax as the charge clearly covered and was
reasonably related to the expenses incurred and the charge was not
imposed to raise revenue
 Held that the Ramsey Pricing Method is used to fix prices for
monopoly services to ensure that a fair price is reached – if
the price is not fair, the charge becomes a tax
o A precise relation to the value of services is not
required
o There is no evidence of profit-making
o The charge must bear a reasonable relation to the
cost incurred by the provider
o Fines and penalties for breaches of law (this is punishment)
o Northern Suburbs General Cemetery Reserve Trust v Cth (1993) –
held that the ‘training guarantee shortfall’ (the difference between
how much an employer was required to spend on training and how
much they did spend) paid into a Training Guarantee Fund was a
tax, not a penalty due to a number of factors
A fee is not a tax if it is arbitrary (that is, based on other than ascertainable criteria)
Presumption that if an exaction is paid into the CRF, it is a tax (can be rebutted) –
Australian Tape Manufacturers
If there is an exaction which is held to be a tax, it will fall within the core of s.51(ii). If
the law does not involve a tax, it may still be characterised as a law ‘with respect to
taxation’ because it falls within the implied incidental aspect of s.51(ii) (s.51(xxxix) –
Mutual Pools & Staff Pty Ltd v Cth (1994)
33
The power to impose tax is controlled by:
 Procedural Limits:
o s.53 – taxation laws imposing taxation must originate in the HoR
 Because the government is responsible for fiscal policy and
government is formed in the HOR
o s.53 – the Senate cannot amend taxation bills (can still reject bills)
 The Senate may request a taxation bill to be amended but the HoR
does not need to comply
o s.55 – laws imposing tax must only deal with tax
 Practice of splitting tax legislation into two Acts – one dealing with
the imposition if taxation and the other providing the machinery for
assessing and collecting the tax (Moore v Cth (1951))
o s.55 – laws imposing tax (other than customs or excise) must deal with only
one subject of taxation (State Chamber of Commerce v Industry v Cth (1987))
o s.55 – laws imposing duties of custom must deal only with customs
o s.55 – laws imposing duties of excise must deal only with excise



Substantive Limits
o Discrimination – there cannot be discrimination between States or parts of
Stated (s.51(ii) and s.99)
 R v Barger (1908): an excise duty, of which manufacturer’s giving
‘fair and reasonable’ labour conditions were exempted from, was
held as discriminatory as the duty could differ between States
o Subject to express and implied limitations in the Constitution
 E.g. implied freedom of political communication, freedom of religion
(s.116), non-impairment of State’s capacity to function as States
(taxation law struck down in Austin), separation of power
o Tax laws may be used to regulate economic activity or change behaviour
 Governments use taxes to reallocate wealth, regulate the economy
or influence social behaviour (e.g. carbon tax, alcopops tax,
cigarettes tax)
 Must still be a law with respect to taxation: Fairfax v Commissioner
of Taxation (1965) – an Act that provided that income from
superannuation funds were taxed unless they were invested in
prescribed public securities was held to be not a law with respect to
taxation
Customs and Excise Duties
o s.55 – ‘laws imposing duties of customs shall deal with duties of customs
only, and laws imposing duties of excise shall deal with duties of excise
only.’
o s.90 – the power to impose customs and excise duties is exclusive to the
Cth
o Customs and excise duties are indirect taxes – taxing one person with the
expectation that they will indemnify themselves at the expense of another
Customs duty = tax on goods as they come in or leave the country
o Dennis Hotels v Victoria (1960) – the taxpayer is taxed by reason of, and by
reference to, his importation or exportation of goods
o Different goods can attract different rates – a way of encouraging or
discouraging imports or exports
34

Excise duty = a tax on goods when they move from one party to another (e.g.
manufacturer to wholesaler, wholesaler to retailer, retailer to consumer)
o A tax on goods, not services
o Narrow view – ‘a duty analogous to a customs duty imposed upon goods
either in relation to quantity or value when produced or manufactured’ –
Peterswald v Bartley (1904)
 Two requirements: a tax imposed upon goods (1) either in relation
to quantity or value; and (2) at the point of time where the goods
are ‘produced or manufactured’
 States argue this view so that they can impose such a charge
without it being considered an excise duty
o Broader view – ‘a tax upon a commodity at any point in the chain of
distribution before it reaches the consumer’ – Parton v Milk Board (1949)
 ‘The tax must bear a close relation to the production or
manufacture, the sale or the consumption of the goods and must be
of such a nature as to affect them as the subjects of manufacture or
production’ – Matthews v Chicory Marketing Board (Vic) (1938)
 Cth and manufacturers argue this view so to avoid having to pay
such charges
o Ways States avoid s.90:
 Mechanism of Marketing Boards – States set up a marketing board
for a particular commodity funded by a charge levied on marketed
goods – Parton v Milk Board (1949) (a Milk Board was to be financed
by a levy upon ‘every dairyman’ and ‘every milk depot who sells or
distributes milk’. The levy was held to be an excise duty, thus not
allowed)
 Mechanism of Licensing Fees – States require traders to pay a
licence fee based on the amount of sales in the previous year –
Dennis Hotels Pty Ltd v Victoria (1960): licence granted to hotel
owners upon payment of fees based on the cost of liquor purchased
by them in the previous years. Not an excise duty as the connection
between the goods and service was broken by the scheme
o Model still exists – need to consider proximity of the
criterion of calculation; the high rate of tax indicating the
revenue raising nature of the tax; absence of regulatory
content
Appropriation and Spending
 s.81 – All revenues or moneys raised or received by the … Commonwealth shall form
one Consolidated Revenue Fund, to be appropriated for the purposes of the
Commonwealth in the manner … imposed by this Constitution
o No money can be drawn from the treasury without an appropriation made
through law
o Appropriation must be for a purpose of the Cth, not a private purpose
 Purposes not confined to s.51 powers – AAP Case (1975)
 s.54 – a proposed law appropriating money ‘shall deal only with such appropriation’
 Appropriation for OASG:
o s.53 – the Senate cannot amend a bill for OASG
 Unclear as s.53 provides that the Senate and HoR have the same
powers in regards to all proposed laws
35
o



What constitutes OASG?
 OASG = recurrent, routine expenditure of government required for
government to operate (not specific projects)
 1965 Compact states that the following are not OASG: construction
of public works and buildings; acquisition of sites and buildings;
items of plant and equipment; grants to States under s.96; new
policies not authorised by special law
1975: the Senate failed to pass the Supply Bill which led to the dismissal of the
government by the G-G
Degree of specificity:
o Combet v Cth (2005) – government spent money on advertising campaign to
promote labour law reforms. The money was appropriated for the
departmental expenditure of the Department of Employment and
Workplace Relations. Held that the Department cannot spend the money in
any way they wish; rather, it is for the Parliament to determine the purposes
Grants Power
o s.96 – allows the Cth to provide financial assistance to any State on ‘such
terms and conditions as the Parliament thinks fit’
o Allows the Cth to exercise control in areas constitutionally in the States
power
o States can reject grants; however, they do not have many sources of income
as they cannot levy an income tax
o Deputy Federal Commissioner for Taxation v WR Moran (1939) – the grants
power allows the Cth to address inequalities between the States; s.99 (nondiscrimination rule) has no application to s.96 grants
o Conditions must no authorise taking property except on just terms
(s.51(xxxi)) – ICM v Cth (2009)
o The Cth is the only level of government that imposes income tax. A portion
of this tax is then distributed. The validity of this arrangement was upheld in
South Australia v Cth (First Uniform Tax Case) (1942) and affirmed in Victoria
v Cth (Second Uniform Tax Case) (1957)
 First Uniform Tax Case concerned four Cth laws that established the
Cth’s monopoly over tax:
 Income Tax Act 1942 (Cth) – fixed Cth income tax at a very
high rate
 State Grants (Income Tax Reimbursement) Act 1942 (Cth) –
the Cth shall provide financial assistance to the States every
year providing they don’t collect income tax
 Income Tax (War-time Arrangements) Act 1942 (Cth) –
provided for the transfer to the Cth of State public servants
engaged in assessment or collection of income tax along
with property of State taxation departments
 Income Tax Assessment Act 1942 (Cth) – no taxpayer should
pay a State income tax until after they had paid the Cth
income tax
 Four States challenged the regime – the HC rejected the challenge.
Found that all four Acts were valid; thus, the scheme was valid
36
Freedom of Interstate Trade, Commerce and Intercourse


s.51(i) – The Cth has the power to make laws with respect to ‘trade and commerce
with other countries, and among the States’ (concurrent power)
This power is subject to s.92 – ‘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.’
o Guarantees that trade, commerce and intercourse among the States will
be ‘absolutely free’
(freedom of trade and commerce)
Section 92
 Main interpretation of s.92 – Cole v Whitfield (1988)
o Joint unanimous judgment laid down a new approach to s.92
o Regulations under the Fisheries Act 1959 (Tas) prohibited any person from
taking, buying, selling, offering or exposing for sale or having possession or
control of crayfish smaller that the prescribed minimum size. Whitfield
imported SA crayfish (smaller minimum size in SA than TAS) that were above
the SA minimum size but below the TAS minimum size. Prosecuted for
breaching the Regulation. He argued that the Regulation was invalid due to
s.92. The HC held that s.92 was not infringed.
o A law infringes s.92 if it imposes ‘discriminatory burdens of a protectionist
kind’ or if its effect is ‘discriminatory against interstate trade and commerce
in that protectionist sense; or if its effect is ‘discriminatory and the
discrimination is upon protectionist grounds’
o A law will infringe s.92 if it is a law that places a discriminatory burden of a
protectionist kind
 Must have three elements: burden on trade, discrimination and
protectionist
 Discrimination – see Castlemaine Tooheys v South Australia
 Protectionist – a law will be protectionist if it’s purpose or effect is
to benefit local traders within one State and disadvantage their
inter-State competitors
 A law will also fail if the practical effect is to place a discriminatory
burden of a protectionist kind even if it does not appear to do so on
the face of it
 Need to first consider discrimination on the face of the law
and then the practical effect
 (e.g. tariffs that increase the price of imports, quotas on imports,
differential railway rates and subsidies for local goods)

Bath v Alston Holdings (1988)
o A VIC law imposed a higher licence fee on wholesalers and retailers who
sold imported tobacco. The VIC government said that as VIC wholesalers did
not pay VIC wholesale licence fees, the heavier levy at the retail level for
their products neutralised their advantage (the total burden on imported
tobacco would be the same as the burden on local tobacco when it reached
the consumer). The HC rejected this argument (f QLD tobacco was subject to
wholesale tax in QLD, the VIC scheme would place it at a disadvantage and if
QLD tobacco was not subject to wholesale tax in QLD, the VIC law would
protect VIC tobacco by nullifying QLD tobacco’s competitive edge.
Restriction for the Wellbeing of the People of the State
37


Castlemaine Tooheys v South Australia (1990) – A SA statutory scheme stated that
(1) non-refillable bottle carried a deposit of 15c while refillable bottles required a
deposit of 4c; and (2) non-refillable bottles had to be returned to the retailer to get
the refunds (more of a hassle) while refillable bottles had to be returned to
collection depots. The purpose of the law was to render the sale of beer in nonrefillable bottle as commercially disadvantageous. Bond sold beer in non-refillable
while South Australian brewers sold beer in refillable bottles. The HC held that the
disadvantage in this law was ‘protectionist’ of South Australian brewers against
interstate competition as it limited the market of Bond (SA had an advantage as they
had been producing refillable bottles for some time already).
o SA claimed that the object of the scheme was (a) litter control and (b)
conservation. Held that litter control is a legitimate object (however, this
does not require different modes of returning bottles) but conserving
resources is not a legitimate object when the resources are not produced in
the State
o The joint majority judgment developed a number of principles for a law to
be consistent with s.92:
 1. The law must be necessary or appropriate and adapted to the
achievement of a legitimate object (i.e. it is not discrimination to
impose limits aimed at either the protection of the community from
a real danger or threat to its welfare; or the enhancement of the
communities welfare)
 2. The burden placed on interstate trade must be incidental (i.e.
the law shouldn’t aim to impose such a burden)
 3. Burden on interstate trade should not be disproportionate to
the achievement of the legitimate object
 4. There is no reasonable non-discriminatory alternative means
o These principles limit the prima facie assumption that State legislators
should be allowed a broad area of discretion in enacting regulatory
measures for ‘the well-being of the people of that State’. (More limitations
placed on this assumption in Betfair v Western Australia)
Betfair v Western Australia (2008) – A WA law prohibited (a) betting exchanges
(using internet); (b) betting with such exchanges; and (c) publishing WA race field
without authorisation. WA said hat the scheme was to protect the integrity of the
industry and that the exchanges made no contribution to the industry. The HC struck
down the law and stated that these objectives could be achieved through
alternative, non-discriminatory means such as regulations.
o The provision prohibiting betting through a betting exchange was held to
have infringe s.92 as it impaired the freedom of Betfair to deal with
customers in WA and impaired the freedom of WA punters to use an
interstate betting exchange
o More limitations on the assumption:
 The presence of a non-discriminatory object won’t save a law
 A provision that grants a discretion to exempt a party from a
prohibition will not save a law that has the object of prohibition
State Monopolies
 Barley Marketing Board (NSW) v Norman (1990) – A scheme where all barley grown
in NSW was vested in the Barley Marketing Board was upheld. However, there is a
possibility that if the commodity was a scarce resource, a State monopoly may
offend s.92
38

Possibility that State monopolies may not survive post-Betfair (current authority is
Barley Marketing Board)
Freedom on Interstate Intercourse
 Nationwide News v Wills (1992) – ‘freedom of inter-state intercourse is not confined
to the physical movement or carriage of goods or things among the States. It
encompasses all of the modern forms of inter-state communication’
 A ‘personal freedom to pass to and fro among the States without burden’ – Cole v
Whitfield (1988)
 A burden on inter-state intercourse does not necessarily have to be discriminatory –
Nationwide News v Wills
 A restriction on the freedom will be valid if: (Nationwide News v Wills)
o The law is enacted chiefly for a purpose other that preventing or impeding a
crossing of a State border
o Imposition of the burden is appropriate and adapted to the fulfilment of the
other purpose
o Impediment is an incidental and necessary consequence of the law’s
operation
 One activity may be both trade and intercourse (e.g. television broadcasting): in
such a case, Nationwide News v Wills held that the question about whether to apply
the narrower test in Cole v Whitfield or the more lenient test in Nationwide News
should be answered according to the relevant characterisation of the law
39
Constitutional Rights and Liberties

There are a number of express and implied rights and freedoms in the Constitution
Terminology
 Right, liberty, power and immunity all have different meanings
 Right = a right entails a duty on the part of another to do or refrain from doing an
act
o Every right has a corresponding duty – e.g. if students have the right to
receive a lecture on a topic, the lecturer has the duty to provide that lecture
 Liberty = a liberty entails that others have no right to prevent someone from doing
a certain act
o There is no corresponding duty, just no right – e.g. the liberty to move
 Power = a power is the liberty to do an act that changes the legal status of another
o A special type of liberty – e.g. the Minister has the power to grant a licence
and change the legal position of the licensee
 Immunity = the right that a power holder does not exercise a power
o There is an exception to a power (a disability) in relation to those with an
immunity – e.g. a diplomat has diplomatic immunity and cannot be charged
Common Law Freedom
 Fundamental common law freedom = a person may do anything that the law does
not prohibit (natural liberty – only limited by physical inability and legal limitations)
 A person may refrain from doing what the law does not require
 Freedom is limited by laws imposing duties (e.g. freedom of speech is limited by
defamation law)
Source of Rights
 Common law rights (judge-made) – e.g. contract law (a seller’s right to be paid for
goods delivered); tort law (a pedestrian’s right not to be run over); crime (person’s
right not to be robbed)
 Statute law rights (from Acts and subordinate legislation) – e.g. the right to be paid
a benefit under a certain Act
 Constitutional rights (rights guaranteed by the Constitution and can’t be changed
without a referendum)
Express Constitutional Rights and Freedoms
 All powers in s.51 are subject to the express rights in the Constitution
 Freedom to vote at parliamentary elections and referendum (ss.7 & 24)
 Right to be compensate for acquisition of property by the Cth (s.51(xxxi))
 Right to a trial by jury when indicated under Cth law (s.80)
 Freedom of interstate trade, commerce and intercourse (s.92)
 Right not to be discriminated against on grounds of religion (s.116)
 Rights not to be discriminated on grounds of residency (s.117)
40
Right to Compensation for Property Acquired




s.51(xxxi) – The Cth has the power to make laws with respect to ‘the acquisition of
property on just terms from any State or person for any purpose in respect of
which the Parliament has power to make laws’
Based on the United States’ fifth amendment – ‘nor shall private property be taken
… without just compensation’
It is widely accepted that the government has the power to take private property for
public purposes
The power of the State government to acquire property is not limited by s.51(xxxi) –
thus, the States can legally acquire property without paying just compensation
o However, legislation requires compensation to be paid in some
circumstances – e.g. s.18 of the Acquisition of Land Act 1967 (Qld)
o The Cth has used State agencies to acquire property for federal purposes
without paying the owners just compensation (is this right?)
Federal Acquisitions Power
 Specific Acquisitions Power:
o s.51(xxxiii) – acquisition with the consent of a State, of any railways of the
State, on agreed terms (essentially power to purchase from State railways)
o s.85 – acquisition of State property connected with public service
departments that are transferred to the Cth, subject to compensation
o s.125 – acquisition of territory or the seat of government
 General Acquisitions Power – s.51(xxxi):
o Exclusive power – only applies to the Cth (not States)
o Territories made under s.122 are also bound (Wurridjal v Cth (2009))
o All s.51 powers are subject to this right – the Cth can’t use any power to
acquire property without paying just compensation (Attorney-General (Cth)
v Schmidt (1961))
o Exception: times of war (Johnson Fear v Cth (1943) allowed the executive
commandeering of property without just compensation as it was justified
under the common law prerogative of the Crown. Held in Burmah Oil v Lord
Advocate [1965] that the enemy must be engaged with Australia, not just
approaching)
o Elements of the Acquisition Power:
 Property
 Acquisition
 Just Terms
 From any State or person
 For any purpose in respect of which Parliament has power to make
laws
Property
 The term ‘property’ has been interpreted very broadly
 Includes both real property (land) and personal property (chattels)
 What amounts to property?
o Exclusive possession without title: Minister fo State for the Army v Dalziel
(1944) – Dalziel rented a vacant lot owned by the Bank of NSW and
operated a commercial car park. The Minister for Army tried to requisition
the land for defence purposes. Held that Dalziel’s right in the property was
sufficient to entitle Dalziel to compensation.
 s.51(xxxi) ‘extends to any acquisition of any interest in any property’
41
o
o
o
Company shares: Bank of NSW v Cth (Bank Nationalisation Case) (1948) –
The Banking Act 1947 (Cth) authorised the CBA to acquire shares in the bank
and upon such acquisition, government appointed directors would replace
the company directors. No compensation was provided. Held that shares
constituted property; thus, just compensation was required.
Ships requisitioned in wartime: Marine Board of Launceston v Navy
Minister (1945) – a tugboat owned by the Marine Board was requisitioned
during the war. The regulation provided for compensation; however, there
was no provision for interest on delayed compensation
Cause of action vested in an injured worker: Georgiadis v Australia &
Overseas Telecommunications Co (1992) – A Cth Act established a system of
compensation for injured worked by extinguished all causes of actions for
common law damages. Held that a cause of action was considered property
Acquisition
 The term ‘acquisition’ has been interpreted very narrowly
 s.51(xxxi) refers to compulsory acquisition, not consensual acquisition (BMA v Cth)
 Key element – taking control or deprivation or dispossession (Bank Nationalisation
Case (1948))
 The Cth does not have to take the property directly – a law that requires A to
transfer property to B may amount to acquisition (Collins v Hunter)
o State acquiring property for the Cth was held to be compensable acquisition
(Magennis v Cth (1949))
 Regulation of economic activity that diminishes property value (e.g. by limiting it’s
use) does not amount to acquisition
o E.g. Bans on export of minerals mined (Murphyvores Inc v Cth (1976));
allowing the lessee to obtain a renewal of a lease against the wishes of the
lessor (Trade Practices Commission v Tooth & Co Ltd (1979)); fixing prices so
low as to deprive the trader of any change of trading (BMA v Cth (1949))
 Taxation does not amount to an acquisition of property (Attorney-Genera (Cth) v
Schmidt (1961))
 Forfeiture of prohibited imports does not amount to an acquisition of property. It is
an incidental power of customs laws (Burton v Honan (1952))
 Wealth transfers resulting from the exercise of legislative power does not amount
to acquisition: Nintendo v Centronic (1994) – an Act vested copyright of an
integrated circuit design in Nintendo. Centronic used this design and argued there
was an acquisition of property as the Act had taken away their right to use the
design. Held that there was no acquisition; Health Insurance Commission v Peverill
(1994) – an Act reduced the Medicare benefits for pathology services. Peverill
claimed that there was an acquisition of his property rights on fees. Held that while
the payment for services can constitute property, this was a statutory right and the
substitution of a less valuable statutory right was not an acquisition.
 The Cth does not physically have to acquire something – can be an acquisition that
leads to a direct benefit or financial gain (e.g. Georgiadis v Australia & Overseas
Telecommunications Co (1992) – acquisition of a cause of action gave the Cth a
direct benefit as it released them from liability for damages)
42

Limitation of Property Use:
o bBundle of rights – the right to own, use, control, dispose of property
o Is a party entitled to compensation of one of their rights are taken away? –
generally, the regulation/limitation of property use will not amount to
acquisition; thus, does not require just compensation (will amount to an
acquisition when it reaches a certain point – no specific test, discretionary)
o Tasmanian Dam Case (1983) – the State’s deprivation of land use did not
amount to acquisition (only 4 judges addressed this issue – 3 said no)
o Destroying property will not amount to acquisition – need to actually take
possession of property
o Limitation of mining rights (right to explore): Newcrest Mining (WA) v Cth
(1997) – held that the legislative cancellation of Newcrest’s mining rights
was an acquisition of property. Newcrest was not allowed compensation
because the HC was bound by Teori Tau, which stated that no compensation
was required for legislation made under s.122 (Teori Tau was overruled by
Wurridjal v Cth [2009])
 Cancellation of rights can amount to an acquisition of property
o Limitation of water entitlements: ICM v Cth (2009) – under a new access
licence, the plaintiff’s water entitlements were seriously decreased. Held
that there was no acquisition as the State always had the power to limit the
volume of ground water taken and there was no common law right to
ground water
Purpose of Acquisition:
 Acquisition can only be for purposes with respect to which Parliament as power to
make law (not limited to enumerated heads of powers in s.51 but also extends to
ss.52, 61, 71, etc – Blakeley v Cth (1953))
Just Terms
 Does not require payment of market value (Grace Bros v Cth (1946))
 ‘Just terms’ = what is the fair amount of compensation taking into account the
interests of both the property owner and the public (Nelungaloo v Cth (No 1)
(1948))
 Judicial discretion – will vary
 Circumvention of the Just Terms Clause:
o In the past – the Cth would enter into agreements with the States. The Cth
would make grants to the States under s.96 subject to the condition that
they would take or regulate property for the Cth (as the States are not
bound by the ‘just terms’ condition) – Magennis v Cth (1949) invalidated
such a scheme (the law made under s.96 was characterised as being a law of
acquiring property, not an exercise of the grants power)
 The Act invalidated in Magennis v Cth was modified to remove any
reference to the acquisition of property. This allowed the Cth to
circumvent s.51(xxxi) as the law could not be characterised as a law
with respect to acquisition of property
o States can achieve the same result by making formal agreements with the
executive (an executive agreement between the States and Commonwealth,
not an Act) – upheld in Pye v Renshaw (1951)
o The constitutionality of this practice was left open in ICM v Cth (2009) but
will most likely by reconsidered in Spencer v Cth [2010] when it returns to
Court  Pye v Renshaw will probably be overruled
43
Express Rights
Non-Discrimination on Religious Grounds/Freedom of Religion
 s.116 – 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.
 Two objects:
o Prohibits the Cth from discrimination among religions (establishment clause)
o Prevents laws that prohibit free exercise of religion (free exercise clause)
 Broad interpretation of ‘religion’ (Church of The New Faith v Commissioner of PayRoll Tax (Vic) (1983) – held that Scientology was a religion and entitled to tax
exemptions for religious institutions.
o Mason CJ and Brennan J – two-fold test: belief in a supernatural Being, Thing
or Principle; and the acceptance of canons of conduct in order to give effect
to that belief (canons of conduct which offend against the ordinary laws are
outside of s.116)
o Wilson and Deane JJ – indicia of ‘a religion’: collection of ideas and/or
practices involving a belief in the supernatural (reality extends beyond what
we can perceive); ideas that relate to man’s nature and place in the universe
and his relation to things supernatural; the ideas are accepted by adherents
as requiring or encouraging them to observe particular standards of codes
or conduct or participate the specific practices; identifiable group; the
adherents themselves view the collection of ideas and practices as a religion
o Murphy J – stated that any attempt to determine what a religion is poses a
threat to freedom of religion
 Establishment Clause:
o The Cth cannot:
 Establish any religion
 Impose any religious observance
 Impose a religious test for any office or public trust under the Cth
o AG (Vic); Ex rel Black v Cth (DOGS Case) (1981) – HC upheld public funding of
religious schools (argument that government funding of church school
amounted to an establishment of religion was rejected)
 Barwick CJ and Wilson J – establishment meant the establishment of
a religion as a national or Cth institution
 Gibbs and Mason JJ – establishment clause bars the erection of a
religion as the official state religion
 Stephen J – the clause prohibits discrimination between religions
 Free Exercise Clause:
o Protects not only the free exercise of religion but also the freedom not to
have a religion, practices or beliefs (Jehovah Witnesses Case (1943))
o s.116 protects the practice of religion and acts which are done in practice of
religion
o Subject to limitations – what is ‘reasonably necessary for the protection of
the community and in the interests of social order’ (Jehovah Witnesses
Case (1943))
o Only laws that are aimed at limiting religious freedom are barred – laws of
general application that incidentally impact religious freedom are allowed
o Krygger v Williams (1912) - Krygger objected on religious ground to
undergo peacetime military training. The Act provided that if a person is
44
forbidden by religion to bear arms, they are to be allocated a noncombatant duty. Krygger argued that compulsory military training
prohibited him from free exercise of his religion. The HC rejected this as
said that it was a law of general application and stated that requiring
someone to do something which has nothing to do with religion is not
prohibiting him from free exercise of religion.
Right to be Tried by Jury on Indictment for Offences Under Federal Law
 s.80 – 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.
 Elements:
o Entitlement applies to trials on indictment (not any offence)
 Indictment = a formal accusation of the commission of a criminal
offence (usually very serious crimes) – presented by the A-G or DPP
 Parliament can avoid s.80 by making the offence non-indictable –
Kingswell v R (1985)
 A person indicted for a federal offence cannot opt for a trial by
judge without a jury – Brown v Queen (1986)
o Applies to any offence against federal law
o Trial must be held in the State the offence is committed
o If the offence is not committed within a State (e.g. at sea, on a plane, if the
offence spans more than on State), the trial is held in the place prescribed
by Parliament
 Parliament can avoid s.80 by making the offence non-indictable (this technically
offers no guarantee of the freedom at all)
o R v Bernasconi (1915) – ‘if a given offence is not made triable on indictment
at all, then sec 80 does not apply’
o Dixon and Evatt JJ argued a wider interpretation of s.80 in R v Federal Court
of Bankruptcy; Ex parte Lowenstein (1938) – s.80 should be read to
guarantee a fundamental right to trial by jury in criminal cases (at least in
serious ones)
o Wide interpretation rejected in Kingswell v The Queen (1985) – ‘it has been
held that s.80 does not mean that the trial of all serious offences shall be by
jury; the section applies if there is a trial on indictment, but leaves I to the
Parliament to determine whether any particular offence shall be tried on
indictment or summarily’
 Trial by jury:
o Finding of guilt by the jury for a federal offence on indictment must be
unanimous – Cheatle v The Queen (1993)
o Jurors my be randomly or impartially selected – Katsuno v The Queen (1999)
o Innovation is allowed for other aspects of the jury framework
45
Freedom from Interstate Discrimination
 s.117 – A subject of the Queen, resident in any State, shall not be subject in any
other State to any disability or discrimination which would not be equally
applicable to him if he were a subject of the Queen resident in such other State.
 Prevents State from discriminating against interstate residents
 Street v Queensland Bar Association (1989) – QLD Supreme Court rules on the
admission of barristers required an applicant admitted in another State to lodge an
affidavit that he or she intended to practice principally in QLD. Non-QLD barrister
were initially admitted for only 1 year to determine whether they practices
principally in QLD. HC struck down this scheme as violating s.117.
o Mason J – s.117 embodies federation and enhances national unity. The
effect of s.117 is to confer on an individual an immunity against
‘impermissible disability or discrimination’
 Goryl v Greyhound Australia (1994) – a NSW plaintiff suffered personal injury while
travelling on a Greyhound bus owned by a company incorporated in QLD. Accident
occurred in NSW but the case was heard in QLD under QLD law. s.20 of the Motor
Vehicles Insurance Act (Qld) limited damages to what the plaintiff could have gained
in their State of residence. Goryl would have been awarded less under NSW law. HC
held that s.20 violated s.117.
 Sweedman v Transport Accident Commission (2006) – discrimination based on when
the car was registered did not violate s.117 as it was not based on residency
(discrimination must be based on residency)
 Discrimination which does not violate s.117 – State welfare benefits, licensee of a
hotel being required to reside on the premises, in-State residency requirement for
elective or other public office
46
Implied Rights



Some rights and freedoms are implied within the Constitution
Varying degrees of implication - some rights are necessary implications while others
are inferred from the structure of the Constitution
Necessary implications = implications that are logically necessary
o e.g. s.73 – implication that a party to a Supreme Court judgment is entitled
with leave to appeal to the HC (Cockle v Isaksen (1959)); s.24 – implication
that the people of the Cth have a right to choose the HoR (Roach v Electoral
Commissioner (2007))
Ban on Bills of Attainder
 A bill of an attainder is an ex post facto law that retrospectively creates crimes or
retrospectively increases punishment for past crimes
 Not all ex post facto laws are unconstitutional (e.g. laws that retrospectively grant
benefits or cure past injustices are valid) and retrospective impositions of a civil
nature are also valid (e.g. retrospective taxes)
 Separation of power in the Constitution (ss. 1, 61 & 71) prevents Parliament from
enacting Bills of Attainder (Parliament doesn’t have judicial power. Passing a
retrospective criminal law allows the Parliament to predetermine the outcome of a
particular case; which is analogous to judicial power)
 Nullum crimen, nulla poena sine lege – Principle that a person must not be punished
for a lawful act or suffer greater punishment than what is prescribed by law
o Principle enshrined in Art 15(1) of the International Covenant on Civil and
Political Rights (ICCPR
 Exceptions:
o The Nuremburg Exception
 Art 15(2) – ‘nothing in this article shall prejudice the trial and
punishment of any person for any act or omission which, at the time
when it was committed, was criminal according to the general
principles of law recognised by the community of nations’
 Polyukhovich v Cth (1991) – Cth retrospectively included war crimes
in the War Crimes Act 1945 (Cth). Court upheld Act as the
Parliament did not determine guilt, this was left to the Court to
decide. The Nuremburg Exception was not used.
 In the US, there is a express ban on bills of attainder
The Right to a Fair Trial Before Courts
 Everyone is entitled to a fair trial before being deprived of life, liberty or property
 s.71 – vests judicial power to the High Court, Federal Courts and State Courts
 Leeth v Cth (1992) – courts must ‘exhibit the essential attributes of a court and
observe … the essential requirements of the curial process, including the obligations
to act judicially’
 Kirk v IRC (2010) – HC held that State Parliament cannot remove the supervisory
jurisdiction of the Supreme Court (strengthens right to a fair trial under State law)
47
The Ban on Executive Deprivation of Life, Liberty and Property
 Prohibition on executive action
 Australian Communist Party v Cth (1951) - Communist Party Dissolution Act 1950
(Cth) was designed to ban the Australian Communist Party, liquidate its assets and
disqualify its members from public office. The deprivations were to be imposed by
executive order of the GG. HC invalidated the Act because it was not within the
defence power during peacetime.
 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) reaffirmed the constitutional rule with respect to executive detention – ‘involuntary
detention in custody by the State is penal or punitive in character, and under our
system of government, exists only as an incident of the exclusively judicial function
of adjudging and punishing criminal guilt.’
o Following detentions are not punitive:
 Detention pending investigation and trial;
 Detention in cases of mental illness, detention in cases of infectious
disease; and
 Detention for the purposes of deportation of illegal immigrants, or
until their applications are heard for asylum or refugee status
Freedom of Political Communication
 The freedom of communication is not expressed anywhere in the Constitution
 Two cases that were decided on the same day (Nationwide Newspapers and ACTV)
establish that the Constitution embodies an implied freedom of political
communication
 Nationwide Newspapers v Wills (1992) – concerned the publication of an article
calculated to bring the Australian Industrial Relations Commission into disrepute
through imputations of corruption. Publisher was charged under s.299(1)(d)(ii) of
the IR Act, which was interpreted to allow the punishment of statements that
brought a member of the Commission or the Commission into disrepute, even if the
statements were true. All judges held that the provision was unconstitutional:
o Brennan, Deane, Toohey and Gaudron JJ – held there even though there
may be a sufficient connection to s.51(xxxv) (conciliation and arbitration
power), all s.51 powers are subject to the Constitution and the
Constitution contained an implied freedom of communication and this
provision unreasonably restricted this freedom
o Mason J and McHugh J – held the provision lacked a sufficient connection
with s.51(xxxv) and that a freedom of speech in relation to public affairs and
institutions should be considered
o Dawson J – held the provision was beyond the s.51(xxxv) as it was
disproportionate to the achievement of a legitimate end
 Australian Capital Television v Cth (ACTV) (1992) – Part 3D of the Broadcasting Act
prohibited electronic broadcasting during election (Federal, State and Local)
campaign periods. Free airtime was given to political parties represented in the
previous Parliament in proportion to the number of fist preference votes they
received at the previous election. Independents and private citizens were given free
air time at the discretion of the Australian Broadcasting Tribunal. Held that while
Part IIID was within the ‘postal, telegraphic, telephonic and other like services’
power, it unreasonably restricted the freedom of communication
48
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Reasoning: (from Nationwide and ACTV)
o 1. Constitutional provisions (ss. 7, 24, 64 and 128) reveal an intention to
create a representative form of government
o 2. Freedom of communication is essential to the functioning of a
representative form of government
 There is a need for communication of political matters between the
representative and the represented and among the represented
o 3. Thus, there is an implied freedom of political communication
 Freedom to communicate information, opinions and ideas about all
aspects of the government, including the qualifications, conduct and
performance of those involved in government, whether legislative,
executive or judicial
 Only through communication can citizen’s criticise government
decisions and actions, seek to bring about change, call for action ad
influence the elected representatives
 If there was no such freedom, government would not be responsive
to the needs and wishes of the people
 No limit to the range of matters that may be relevant – extends to
all matters of public affairs and political discussions
Lange v ABC (1997) – the freedom is derived from the words ‘directly chosen by the
people in ss.7 & 24
What amounts to communication?
o Speech, writing, photos an cartoons clearly amount to communication
o Actions: Levy v Victoria (1992) - Levy protested against duck shooting by
entering the hunting area. Charged for this action. Levy argued that he was
exercising his freedom of communication. Held that actions may amount to
communication; however, in this case there was no unreasonable
restriction on the freedom of communication
Freedom of communication and State law
o ACTV and Stephens v WA Newspapers (1994) held that the freedom of
communication extends to political discussion at the State level
Freedom of communication is subject to reasonable restrictions
o Freedom is not absolute – will not always prevail over other interests
o Content (ideas or information communicated) vs. Mode (the method of
communication)
o ACTV held that restriction on content and more difficult to justify than
restrictions on mode
o Requirements:
 Restriction must be reasonably proportionate to the object
 Restriction must achieve a legitimate object
 The object and manner of its achievement must be consistent with –
representative principle, responsible government and the
referendum process
 Restriction must be appropriate (no other less restrictive method
available)
 Restriction must be adapted to the object (not excessive)
 Not only the object, but the manner of its achievement must be
consistent with representative power (Coleman v Power (2004))
o E.g. Parliament can regulate the conduct of people in relation to elections so
as to prevent intimidation and undue influence, even if this restricts the
freedom
49
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Freedom does not protect commercial communications
o APLA Ltd v Legal Services Commissioner (NSW) (2005) – rejected the
challenge that an Act that prohibited advertising for legal services restricted
freedom of communication. Held that limiting the marketing of legal
services is not incompatible with a system of representative and responsible
government
Defamation
o After the freedom of political communication was recognised, the law of
defamation changed accordingly to respect that freedom
o Theophanous v Herald & Weekly Times [1994] –Theophanous was a Member
of Parliament who was defamed. He argued that the defence of qualified
privilege (which was limited to publications among persons having
reciprocal duties) should be expanded due to the freedom of
communication. The defence was expanded.
o Lange v ABC (1997) – refined the defence of qualified privilege.
 Qualified privilege can apply to communications to a wide
audience that relate to government or political matters.
 Statements must be reasonable (will be reasonable if there are
reasonable ground to believe it is true; the writer/publisher took
reasonable steps to verify facts; writer/publisher didn’t believe it to
be untrue; writer/publisher sought a response unless it was
impractical or unnecessary to do so)
 Malice (improper purpose) will defeat the defence (an intention to
cause political damage is not an improper purpose)
Freedom of Association
 No case has directly upheld the freedom of association
 Obiter dicta in ACTV suggest there is such a freedom:
o Mason CJ – representative government depends on free communication
between all persons, groups and bodies (groups and bodies implies there is
association)
o Gaudron J – parliamentary democracy may entail freedom of movement,
association and speech generally
o McHugh J – conclusion to be drawn from ss. 7 & 24 is that the freedom of
participation, association and communication in relation to federal elections
is protected by the Constitution
 Logical inference from the ration in ACTV
o The Constitution establishes representative and responsible government 
freedom of communication is essential to this form of government
(Nationwide and ACTV)
o This could suggest that all freedoms essential to representative
government are implied in the Constitution  if the freedom of association
in political matters is essential to such government, the freedom of
association is implied in the Constitution
50
Legislative and Constituent Powers of the States
Types of Constitutions:
 ‘Rigid’ or ‘controlled’ – the Constitution cannot be changed except by a special
procedure (e.g. a referendum or a special majority) (most written Constitution)
 ‘Flexible’ or ‘uncontrolled’ – the Constitution can be changed by normal legislation
passed in an ordinary manner
 State Constitutions are considered flexible but may be made rigid by State
Parliament
Legislative Power of State Parliaments
 State Parliaments have plenary legislative power  their power is not unlimited but
is not limited to a list of specific subjects
 Have the power ‘to make laws for the peace, welfare and good government of the
colony in all cases whatsoever’ (s.2 of the Constitution Act (Qld) – also implemented
in s.2(1) of the Australia Act)
o Need to ask whether the statute is for the peace, welfare and good
government of the State
o BLF Case (1986) – held that the words do not grant the States an unlimited
legislative power; rather, the power is confined to ‘the peace, welfare and
good government’
Limitations on State Power
 Australian States have always been subject to external limitations on the legislative
capacity of their Parliaments

Limitation within the Commonwealth Constitution
o Heads of power exclusively vested in the Commonwealth Parliament are not
within State legislative power (e.g. customs and excise duties power,
currency, defence)
o Some provisions of the Constitution expressly limit State legislative power
(e.g. s.114 provides that a State ‘shall not … impose any tax on property of
any kind belonging to the Commonwealth’; s.117 that prevents interstate
discrimination
o It is stated in s.6 that State Constitutions are ‘subject to this Constitution’ –
thus, State legislative powers may be subject to limitations implied in the
Constitution

Does the State Parliament have the power to amend the State’s Constitution Act?
o Each State Parliament has the power to amend the constitution of its State,
subject to such binding ‘manner and form’ requirements that Parliament has
imposed in exercise of that power
o The Colonial Laws Validity Act 1865 (Imp) stated that the State Parliament
could amend the State Constitution
o McCawley v R [1920] – Privy Council held that State Parliament may make
laws that are inconsistent with the Constitution without formally amending
the Constitution (if Parliament could amend the Constitution with a normal
law, then they should also have this power)  however, if the law concerns
the ‘constitution, powers and procedure’ of parliament, manner and form
requirements (if any) must be followed
51
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Limitation on State legislative power after the Australia Act 1986 (Cth)
o The Australia Act served to sever legal ties with the United Kingdom (made
clear in Sue v Hill (1999))
o s.1 – UK Parliament has no power to legislate for the States
o s.2(1) – States have full power ‘to make laws for the peace, order and good
government of the State’
o s.2(2) – States may legislate extra-territorially but have no power to engage
in relations with foreign countries
o s.3 – State laws are not void if they are inconsistent with UK law
o s.5 – State legislative power remains subject to the Cth Constitution
o s.6 – Laws respecting the constitution, powers and procedures of
parliament must be ‘passed in such manner and form as may from time to
time be required by a law made by that parliament, whether made before
or after the commencement of this Act’
o s.8 – State laws cannot be disallowed by Her Majesty
o s.9 – No State law is to be withheld from Her Majesty’s pleasure
o s.10 – Termination of the responsibility of UK government in relation to
State matters
o s.11 – Termination of appeals to the Privy Council from decisions of State
Supreme Courts (the High Court was made the highest court of appeal)
The Manner and Form Limitations
 s.6 of the Australia Act 1986 (Cth) – ‘a law made after the commencement of this
Act by the Parliament of a State respecting the constitution, powers or procedure
of the Parliament of the State shall be of no force or effect unless it is made in such
manner and form as may from time to time be required by a law made by that
Parliament, whether made before or after the commencement of this Act.’
 Manner and form requirements are restrictive procedures – restrict legislative
power by requiring that laws on certain topics may only be enacted by a special and
more difficult procedure
 Need to ask a number of questions in regards to this section:

1. Is the Act one respecting the ‘constitution, powers and procedure of the
Parliament of the State’?
(yes)
o Constitution – refers to the compositions of Parliament (not the written
Constitution)
 Taylor v Attorney-General (QLD) (1917) – ‘the constitution of a
legislature … [means] the composition, form or nature of the
House’. ‘Probably the power does not extend to authorise the
elimination of the representative character of the legislature…’
 WA v Wilsmore (1981) – qualifications of members does not fall
under the ‘constitution’ of Parliament
 Attorney-General (WA) v Marquet (2003) – a change to the
distribution of electors is a law respecting the ‘constitution’ of
Parliament
o Powers – refers to legislative power, the power to punish for contempt of
Parliament and the power to conduct public inquiries
o Procedures – refers to procedures for enacting bills
52
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2. Is there a manner and form requirement prescribed in an earlier Act?
(yes)
o What is a manner and form requirement?
 AG (NSW) v Trethowan (1931) – a referendum is a manner and form
requirements
 West Lakes v SA [1980] – a requirement that is too hard to meet is
not a M&F requirement (rather, it is an attempt to limit future
legislative power).
 Comalco v AG (Qld) [1976] – ‘Comalco’ clauses (a clause that
requires approval of extra-parliamentary agents) are not M&F
requirements (rather, are an abdication of legislative power)

3. Is the manner and form requirement mandatory and not merely directory? (yes)
o A provision is mandatory if it affects rights (e.g. shall)
o A provision is directory if it imposes obligations to observe (e.g may)
o An Act will be rendered void if there is a failure to observe mandatory
provisions; however, not if there is only a failure to observe a directory
provision (Clayton v Heffron (1960))

4. Does the manner and form requirement apply to itself?
(it should)
o Hypothetical example: s.1 states that the Parliament shall consist of 50
members. s.2 states that s.1 shall not be repealed or amended except with a
successful referendum. Parliament can get around s.2 by first repealing s.2
and then amending s.1. To avoid this  make s.2 (the M&F) provision apply
to itself

5. Does the manner and form provision apply to the later Act?
o AG (WA) v Marquet (2003) – s.13 of the Electoral Distribution Act 1947 (WA)
stated that ‘it shall not be lawful to present to the Governor for Her
Majesty’s assent any Bill to amend this Act, unless …’. A 2001 Bill sought to
repeal the Act. Held that amend included repeal in this context as allowing
the provision to be repealed would defeat the purpose of the provision.

6. Does the plaintiff have standing to bring an action when manner and form
requirements are not satisfied?
(yes)
o A person must have standing to challenge a law – will have standing if the
law affect the person’s private rights
o ACK v Cth (1980) – a person cannot sue in relation to a public right or to
prevent a public wrong (public rights are vindicated by the A-G: A-G may
also lend his name to an individual to sue in a relator (ex rel) action)
o s.53(5) of the Constitution Act (Qld) gives standing to every elector to
challenge a law passed contrary to the referendum requirement in s.53

7. Can the Court stop by injunction a law being enacted contract to manner and
form requirements?
o Court have the power to invalidate laws that do not comply with M&F
requirements
o s.53(5) of the Constitution Act (Qld) – grants Courts the power to grant
injunctions to stop bills being proceeded with contrary to the referendum
requirement in s.53
53
o
A-G (NSW) v Trethowan [1932] – courts are reluctant to stop the legislative
process by injunction (prevent a Bill from being passed) when M&F
requirements have been disregarded (will strike a law down after it has
been passed)  position may be different in Queensland as the Constitution
(Qld) expressly grants Courts the authority to do so

8. Can the Queensland Parliament’s constitution, powers and procedures be
changed without a referendum?
(no)
o s.53 of the Constitution Act (Qld) – a bill that expressly or impliedly in any
way affects ss. 1, 2, 2A, 11A, 11B and 53 shall not be presented for assent
unless approved at a referendum
o Whether or not s.53 is binding on the Queensland Parliament by virtue of
s.6 of the Australia Act depends on how the next question is answered

9. Can manner and form limits be imposed independently of s.6 of the Australia
Act 1986 (UK)?
o s.6 of the Australia Act only applies to laws with regards to the ‘constitution,
powers and procedures of parliament’  Can State Parliaments bind itself
with manner and form requirements on other subjects? (e.g. entrenching a
Bill of Rights with the need for a referendum to change it)
o Two views on whether a sovereign parliament can bind itself on any subject:
 View 1 – Sovereign can do anything including limits its own power
 View 2 – Sovereign can do anything including repealing or
disregarding its own previous commands
o Case authority is unhelpful on this matter:
 Clayton v Heffron – held that the NSW Parliament has complete and
unrestricted power to make laws including law that change the
constitution (inconclusive)
 Bribery Commissioner v Ranasinghe (PC) – held that Ceylon
Legislature has no power to ignore the conditions of law making.
However, the Ceylon legislature was not sovereign but limited by
the Ceylon Constitution (not authoritative)
o Reconstitution Theory:
 Theory holds that a sovereign parliament may reconstitute itself for
the purpose of dealing with specific Acts or subjects and
subsequently impose additional requirements on the newly
reconstituted Parliament. Thus, they can impose M&F limitations
upon itself independent of s.6
 Jackson v H.M. Attorney-General (The Fox Hunters Case) [2005] –
the Parliament Act 1911 (UK) drastically limited the power of the
House of Lords. The House of Lords could delay a law for 2 years but
after that the House of Commons could pass it with royal assent.
The Parliament Act 1949 reduced the period to 1 year. This Act was
passed by the HoC under the 1911 Act without the HoL consent. The
Hunting Act 2004 was passed by the HoC under the 1949 Act
without the HoL consent. It was argued that because the HoC and
the Queen was a subordinate body, they could not increase its own
power and that the 1949 Act is ultra vires the 1911 Act. Held that
the HoC and the Queen are subordinate bodies and its powers are
limited (e.g. it cannot abolish the House of Lords); however, the
express and implied imitations did not preclude the enactment of
54
o
o
the 1949 Act. Two judges used the reconstitution theory to support
this conclusion.
 No case has directly dealt with this issue – if upheld, it would allow
the Parliament to impose any M&F requirements, not merely on
those relating to the constitution, powers and procedures of
Parliament
Policy Issues:
 There may be consequences of Parliament being able to impose
M&F requirements on any law  could lead to the destruction of
parliamentary democracy and each party will seek to entrench its
own policies
 Fundamental features of the constitution alone may be entrenched
by M&F requirements
The Queensland Solution:
 s.53 of the Constitution Act (Qld) – a bill that expressly or impliedly
in any way affects ss. 1, 2, 2A, 11A, 11B and 53 shall not be
presented for assent unless approved at a referendum
 ss. 1, 2 and 2A deal with State Parliament
 The words ‘in any way affects’ is broader that ‘respecting
the constitution, powers and procedure’
 A law containing a M&F requirement diminishes the power
of Parliament  hence, the law itself requires a referendum
 Thus, the Constitution Act (Qld) cannot be amended with
respect to Parliament and the Governor without a
referendum
 Positive effect as any2 fundamental change affecting the
legislative and executive branch requires the approval of the
people
55
Amendment of the Cth Constitution
There are seven ways to change the Constitution
 By an amendment Bill passed by both Houses of Parliament and approved at a
referendum
 By the transfer of powers from States to the Cth under s.51(xxxvii)
 By the creation of a new legislative power by agreement of all the States under
s.51(xxxviii)
 By changing an initial constitutional provision by Parliament as authorised by the
Constitution by use of words such as ‘unless Parliament otherwise provides’ (e.g. ss
30, 34)
 By changes through judicial interpretation
 State Constitutions can be amended by State Parliament subject to manner and
form requirements
 By revolution (can be violent such as in America or France or peaceful such as in
Australia)
Constituent Power
 Constituent power is different to legislative power
 Constituent power is the power to make a law that changes the Constitution
 Many legislatures have separate constituent bodies (e.g. in Australia, s.128 provides
that the constituent body is the Parliament and the electorate)
o Some sections of the Constitution allows the Parliament to change that
section by themselves (e.g. s.72) – this is not a constitutional amendment;
rather, a change of the initial constitutional setting
 Some legislatures have both constituent power and legislative power (e.g. NZ) 
however, there may be a special manner and form requirement to amend the
Constitution
Sovereignty
 The UK Parliament is sovereign
 The Cth and State Constitutions were created by sovereign acts of the UK Parliament
 Sovereignty is considered to be limitless power:
o All persons and authorities are subject to the sovereign’s law
o The sovereign is not bound by another’s law
o The sovereign is not bound by its own previous law (can change the existing
law at will)
 Some limits to sovereignty:
o Territorial limits – other countries do not have to obey the sovereign’s laws
o Practical political limits – the people will vote them out if they pass
unpopular laws (e.g. the UK Parliament can’t say that all blue eyed people
will be exiled)
o Limits imposed by general public international law
o Limits imposed by EU law
o Sometimes the sovereign cannot undo what it has done (e.g. granting a
country independence – the courts and officials of that country will no
longer obey UK legislation)  most important limit in Australia
Hans Kelsen and the Basic Norm
 A norm is an ‘ought’ proposition  something ought to be done
56
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Norms can be both legal and non-legal/moral
Legal norm = a norm that has validity conferred by another valid norm (behind every
legal norm lies another legal norm)
o E.g. A police officer has the authority to fine you for speeding. He gets that
authority from an Act of Parliament. That Act is valid as under the
Constitution, the Parliament has the power to make such a law. The
Constitution obtained its validity from a UK law. That UK law is binding, as
the Parliament is supreme (the furthest you can push this is to the basic
norm – a political fact)
The whole system is based on a basic norm (e.g. s.128 of the Constitution) – usually
found in the Constitution
The basic norm can be changed by revolution or by peaceful agreement
Evolution of Australian Independence
 1788-1823: There was no legislature in the colonies. The colonies were governed by
the Governor (had legislative and executive power) who was responsible to the
Colonial Secretary who was responsible to the British Parliament
 1823-1828: The Legislative Council of NSW was established – established to give the
Governor advice, which the Governor had to act on. The British Parliament retained
legislative power
 Australian Courts Act 1828: Deprived the Governor the power to legislate against
the will of the Legislative Council (prior the Governor only had to consult with the
LC). English law applied in the colony as it existed on the 25h of July 1828 (after
then, only imperial laws apply by ‘paramount force’ – if it expressly or by necessary
implication extended to the colony)
 1828-1865: Every colony obtained its own Constitution via a Constitution Act and
obtained a legislature.
 Colonial Laws Validity Act 1865 (CLVA):
o A UK Act will apply in a colony if it is extended by express words or
necessary intendment (s.1)
o Colonial laws that are repugnant to UK Acts extending to the colony are void
and inoperative (s.2)
o Colonial legislatures have power to make laws with respect to (a)
legislatures and (b) the constitution, powers and procedures of the
legislature (s.5)
o Colonial laws must observe manner and form requirements in legislating
with respect to s.5(b)
 Federation – 1900: 6 colonies were federate under the Commonwealth of Australia
Constitution Act 1900 (UK) – CACA.
o s.9 of the CACA states that the Cth Constitution shall be as follows and sets
out s.128.
o The UK Parliament retained the power to make laws for the Cth and the
States.
o Australia gained dominion status – has their own legislature but stays within
the British Empire.
o There were two ways to amend the Constitution – s.128 referendum or an
Act of UK Parliament amending the CACA
 Statute of Westminster Adoption Act 1942: Act enacted by the UK Parliament in
1921. Had to be adopted by the Australian Parliament to be effective in Australia –
adopted in 1942.
o The CLVA does not apply to the dominions (s.2)
57
o
o

A dominion has extra-territorial power (s.3)
No UK Act will extend to a Dominion unless the Dominion requested and
consented to it (s.4)
o Such a request must be made by the Cth Parliament and Government (s.9)
Can the UK Parliament repeal the Statute of Westminster?
o The UK Parliament is said to be sovereign
o Could the UK Parliament repeal ss. 4 and 9 and legislate for Australia even
without a request
o It is unlikely that the Australian Courts and other authorities would
recognised such a repeal
o Also, politically – the basic norm may have changed to s.128 because the
power to request is subject to control under s.128 by constitutional
amendment
Australia Act 1986:
o The object of the Australia Act was to sever the remaining constitutional
limits to the UK (except the monarchy)
o To remove doubts about the validity, an identical Act was passed by both
the UK and Australian Parliament
o 4 stage process:
 Each State Parliament enacted the Australia Act (Request) Act to
give the Cth power under s.51(xxxviii) to enact the Australia Act
 The Cth enacted the Australia Act 1986 (Cth)
 The Cth passed the Australia Act (Request) Act (Cth) to request the
UK Parliament to enact and identical Act to the Australia Act (Cth)
 The UK Parliament enacted the identical Australia Act 1986 (UK)
o What the Australia Acts did:
 s.1 – No UK Acts were to extend to the Cth or the States
 s.2 – States given full legislative power
 s.3 – CLVA limits on State legislative power removed (repugnancy
doctrine repealed)
 s.6 – manner and form provisions concerning State parliaments reenacted (s.5 of CLVA was repealed)
 s.7 – State Governors given full powers. The Queen may exercise
such powers when present in the State. State Premiers to advise the
Queen
 s.8 – State laws are not subject to disallowance by the Queen
 s.9 – No withholding of assent by Governor or reservation for the
Queen’s pleasure
 s.10 – Termination of UK government’s responsibility for
government of States
 s.11 – Abolition of appeals to the Privy Council
 s.12 – Request provision of Statute of Westminster Act repealed
 s.15 – Method of repealing/amending the Australia Act (Cth)
 (1) Can only be amended on request or with concurrence of
all State Parliaments
 (3) Nothing in (1) prevents the exercise by Cth Parliament of
any power conferred upon it by a constitutional amendment
under s.128
Requirement of s.128:
 Process:
58
o
o
o
o
o
o
o
A bill to amend the Constitution must originate in one of the Houses
The bill must be passed by an absolute majority of each house (majority of
ALL MP’s – not just the present MP’s)
If the bill is deadlocked (when one House passes the Bill twice and the other
House rejects it twice), the Governor-General may refer it to a referendum
(there must be an interval of at least 3 months between the first rejection
and the second passing)
 Failure to pass or passing with unaccepted amendment equates to a
rejection (e.g. if the Senate doesn’t reject the Bill but waits it out
without taking any action)
If passed by both Houses – the Bill shall be submitted to a referendum
between 2 and 6 months after it has passed (everyone in States and
Territories that are eligible to vote at normal elections can vote)
The Bill must be approved by a double majority – a majority of all voters
and majority in a majority of States
If the amendment either (a) diminished the representation of the State in
either House; or (b) alters the limits (boundaries) of a State – the approval of
the affected States is essential
A Bill approved at a referendum must be presented to the GG for royal
assent
Constituent Power after 1986
 UK Parliament has no constituent power (request provision in Statute of
Westminster Act was repealed)
 Can the UK Parliament repeal the Australia Act (UK) and change the Constitution?
– Unlikely as the basic norm has changed
 s.128 is the only source of constituent power in Australia
 Professor Gilbert argues thee is a 2nd source of constituent power:
o Argued that s.15 creates a second source of constituent power (s.15 states
that the Australia Act can only be amended by an Act of the Cth Parliament
on request or with concurrence of all State Parliaments)
o Step 1: Cth Parliament would amend s.15(1) of the Australia Act (UK) on
request of all States to grant the Cth Parliament the power to amend the
Constitution by the same procedure
 Would read: ‘This Act or the Statute of Westminster 1931 or the
Constitution of the Commonwealth of Australia … may be repealed
or amended by an Act of the Parliament of the Commonwealth
passed at the request or with the concurrence of the Parliaments of
all the States …’
o Step 2: Parliament under s.15(1) would enact amendments of the
Constitution on request of all the States
o Note: the Australia Act (Cth) cannot be used as it was made under
s.51(xxxviii) which is subject to the Constitution
 Arguments against Professor Gilbert’s argument: s.15 is in a hierarchical relationship
to s.128 and s.128 is the Basic Norm of the Constitution
Relevance of Jackson v Her Majesty’s Attorney-General (Fox Hunting Case) [2006]
 UK Parliament is a triumvirate – the Queen, House of Lords and House of Commons
 Parliament Act 1911 (UK) stated that a Bill rejected by the Lords over 3 sessions in 2
years may be enacted by the Queen and Commons
59
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

A bill was passed by Common in 1947 to reduce the time that the Lords could delay
Bills (from three sessions over two years to two sessions over one year). After the
Lords rejected this Bill in 3 sessions over 2 years, the Queen and Common enacted
the Bill  Parliament Act 1949
The Hunting Act banned cruel forms of fox hunting – it was passed under the
Parliament Act 1949 after the House of Lords resisted it in 2 sessions over one year
Jackson challenged the validity of the Parliament Act 1949 – argued that the 1911
Act could only be changed by the triumvirate (not just the Queen and Commons)
The House of Lords (the Court) declared both the Parliament Act 1949 and the
Hunting Act as valid  key reason: there had been a shift in the Basic Norm – the
Parliament Act 1949 had been treated as being valid over such a long period
This decision gives some credit to Prof. Gilbert’s theory – unlikely to be followed I
Australia due to s.128
Can Australia Become a Republic?
 s.128 can be used to amend the Constitution but not the Commonwealth of
Australia Constitution Act (has 9 sections – the 9th section introduces the
Constitution to be as follows)
 CACA cannot be changed by recourse to s.51(xxxviii) in a way that alters the
Constitution as the powers are ‘subject to the Constitution’ (thus subject to s.128)
o s.51(xxxviii): subject to this Constitution … ‘the exercise within the
Commonwealth, at the request or with the concurrence of the Parliaments
of all the States directly concerned, of any power which can at the
establishment of this Constitution be exercised only by the Parliament of the
United Kingdom or by the Federal Council of Australasia’
 It may not be necessary to repeal or amend the CACA:
o It may be sufficient if the Constitution is amended under s.128 to substitute
a local Head of State in place of the Queen and Governor-General
o What about the preamble? ‘Whereas the people of NSW, Vic, SA, Qld and
Tas … have agreed to unite in one indissoluble Federal Commonwealth
under the Crown of the United Kingdom of Great Britain and Ireland, and
under the Constitution hereby established.’  the preamble is not part of
the Act (only used to aid in interpretation in case of doubt; thus, the
preamble may be ignored)
Can a State Secede from Australia?
 No provision in the Cth Constitution to permit a State to secede
 Secession is only possible by amendment of s.3 of the CACA (established the Cth
constituting the 6 original States)
o CACA can only be amended by the UK Parliament on request and consent of
the Cth Parliament
o Request provision was repealed by the Australia Act 1986  there doesn’t
seem to be a legal way in which a State can secede
 1933 – more than 2/3 of voters in WA voted in favour of secession. A petition was
sent to Britain and received by a joint committee of the House of Lords and
Commons. Held that such a petition was not receivable according to convention in
the absence of a request by the Cth government.
 Reference re Secession of Quebec [1998] – held that the province of Quebec had no
constitutional right of unilateral secession. However, if the people of Quebec
democratically decided to secede, the federal and other provincial governments
have a constitutional duty to negotiate the terms of a possible secession
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
A State may separate by force and establish its own Basic Norm – highly unlikely as
the State would struggle to gain recognition as a nation at international law
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