LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
06 AUSTRALIAN CONSTITUTIONAL LAW
SUMMER SESSION 2015-16
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturer
Assessment
March 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Texts and Materials
Prescribed Topics
Compulsory Assignment
Assignment Question
Course Outline
Case List
Lecture Outlines
1
1
1-2
2
3
4-5
6
7
7
7
8-12
13-17
18-27
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LAW EXTENSION COMMITTEE
SUMMER 2015-16
06 AUSTRALIAN CONSTITUTIONAL LAW
COURSE DESCRIPTION AND OBJECTIVES
Australian Constitutional Law is a public law subject. The focus of the course is upon its primary
source the Commonwealth of Australia Constitution Act 1900 (Imp). It is that document which created
the Commonwealth of Australia and preserved the former colonies as technically autonomous entities
called States. It is the Constitution that provides a definition of public power in Australia. It divides
legislative power between the Commonwealth and the States by conferring on the Commonwealth
Parliament power to legislate "with respect to" particular topics. In the event of "inconsistency", the
Commonwealth legislation prevails and the State law to the extent of the inconsistency is invalid.
The aim of the course is to explore the concept of federalism as embodied in the Constitution by
examining a selection of important powers vested in the Commonwealth Parliament and exploring the
limitations on those powers. The course will examine the nature of federal judicial power and the
separation of powers doctrine, and will consider the extent to which the doctrine is embodied in
Australian constitutional law. Finally, the course will explore the relationship between the
Commonwealth and the States in terms of legislative power.
The topics chosen for treatment raise questions about the operation of a federal system of
government and illustrate the practical workings of a federation.
LECTURER
Mrs B Gray, BA, LLB, LLM (Syd)
Mrs Beatrice Gray holds the degrees of Bachelor of Arts (Sydney), Bachelor of Laws (Sydney) and
Master of Laws (Sydney). A retired barrister, Mrs Gray has been involved in the Committee's teaching
activities since 1972.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
2
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the Examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:
Introduction; Federal legislative powers Constit. s51(i), s51(ii), s51(xx), s51(xxix) and provisions in tax
laws Constit. s55; Separation of powers. Identification of judicial and non-judicial power; Jurisdiction
and the Federal Judicature; Express and implied prohibitions Constit. s90 and s92; Implied freedom of
political communication. Commonwealth/State matters including inconsistency between
Commonwealth and State laws.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics and to have made an analysis of the cases contained in the Case List.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
3
LECTURE PROGRAM
Lectures in Australian Constitutional Law will be held on Mondays from 6.00pm until 8.30pm
commencing on 9 November 2015. For the first half of the semester, lectures will be held in the
Chemistry Lecture Theatre 3 (ChLT3). After the study break, they will be held in Eastern Avenue
Auditorium (EAA). A map of the University of Sydney’s main campus showing the location of this
lecture theatre can be found on page 53 of the Course Information Handbook.
This program is a general guide and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic,
and to encourage further reading. You should not rely on them alone.
LECTURE
Wk 1
9 Nov
Wk 2
16 Nov
TOPIC
KEY READING
Introduction
Hanks’ Australian Constitutional Law, 9th ed
pp55, 116-141
Trade and commerce power
Wk 3
23 Nov
Taxation power & s 55
Wk 4
30 Nov
Taxation continued
Corporations power
Wk 5
7 Dec
Corporations continued
External affairs power
Wk 6
14 Dec
External Affairs continued
Hanks’ Australian Constitutional Law, 9th ed
pp239-262
Hanks’ Australian Constitutional Law, 9th ed
pp262-283; 589-600; 781-793
Hanks’ Australian Constitutional Law, 9th ed
pp283-326
Hanks’ Australian Constitutional Law, 9th ed
pp326-373
Study Break: Friday 18 December 2015 – Sunday 10 January 2016
Wk 7
11 Jan
Separation of powers
Wk 8
18 Jan
Judicial power of Commonwealth
Wk 9
25 Jan
Federal jurisdiction
Wk 10
1 Feb
Duties of excise
Freedom of interstate trade
Wk 11
8 Feb
Implied freedom of political
communication
Inconsistency of laws
Wk 12
15 Feb
Commonwealth–State Relations
Hanks’ Australian Constitutional Law, 9th ed
pp105-107; 967-977
Hanks’ Australian Constitutional Law, 9th ed
pp977-1007
Hanks’ Australian Constitutional Law, 9th ed
pp1008-1108
Hanks’ Australian Constitutional Law, 9th ed
pp601-651
Hanks’ Australian Constitutional Law, 9th ed
pp1287-1353
Hanks’ Australian Constitutional Law, 9th ed
pp1210-1260
Hanks’ Australian Constitutional Law, 9th ed
pp463-491
Hanks’ Australian Constitutional Law, 9th ed
pp492-574
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WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend but
should be aware that weekend school classes aim to cover the same material as provided in weekly
lectures and are primarily for the assistance of external students.
It may not be possible to cover the entire course at the weekend schools. These programs are a
general guide and may be varied according to need. Readings are suggested to introduce you to the
material to be covered in the lecture, to enhance your understanding of the topic and to encourage
further reading. You should not rely on them alone.
Weekend School 1
TIME
MAJOR TOPICS
KEY READING
Saturday 28 November 2015: 4.00pm – 8.00pm in New Law School Lecture Theatre
101 (New LSLT 101)
4.10pm-5.20pm
Introduction
5.30pm-6.35pm
Trade and commerce power
6.45pm-8.00pm
Taxation power & s 55
Hanks’ Australian Constitutional Law,
9th ed pp 55,116-141
Hanks’ Australian Constitutional Law,
9th ed pp239-262
Hanks’ Australian Constitutional Law,
9th ed pp262-283; 589-600; 781-793
Sunday 29 November 2015: 4.00pm – 8.00pm in the New Law School Lecture Theatre
101 (New LSLT 101)
4.10pm-5.20pm
Corporations power
Corporations continued
5.30pm-6.35pm
External affairs power
6.45pm-8.00pm
External Affairs continued
Hanks’ Australian Constitutional Law,
9th ed pp283-326
Hanks’ Australian Constitutional Law,
9th ed pp326-373
5
Weekend School 2
TIME
MAJOR TOPICS
KEY READING
Saturday 30 January 2016: 4.00pm – 8.00pm in the New Law School Lecture Theatre
101 (New LSLT 101)
Hanks’ Australian Constitutional Law,
9th ed pp105-107;967-977
4.10pm-5.20pm
Introduction to Chapter 111 – The
Judicature
5.30pm-6.35pm
Judicial power of Commonwealth
Hanks’ Australian Constitutional Law,
9th ed pp977-1007
6.45pm-8.00pm
Federal jurisdiction
Hanks’ Australian Constitutional Law,
9th ed pp1008-1108
Sunday 31 January 2016: 4.00pm – 8.00pm in the New Law School Lecture Theatre
101 (New LSLT 101)
4.10pm-5.20pm
Duties of excise
Freedom of interstate trade
5.30pm-6.35pm
Implied freedom of political
communication
Hanks’ Australian Constitutional Law,
9th ed pp601-651
Hanks’ Australian Constitutional Law,
9th ed pp1287-1353
Hanks’ Australian Constitutional Law,
9th ed pp1210-1260
Hanks’ Australian Constitutional Law,
9th ed pp463-491
Inconsistency of laws
6.45pm-8.00pm
Commonwealth–State Relations
Hanks’ Australian Constitutional Law,
9th ed pp492-574
6
TEXTS AND MATERIALS
Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Text

Hanks’ Australian Constitutional Law: Materials and Commentary, 9th ed. LexisNexis, 2013
OR

Tony Blackshield and George Williams, Australian Constitutional Law and Theory, 6th ed.
Federation Press, 2014
Recommended Texts

Joseph and Castan, Federal Constitutional Law: A Contemporary View, 4th ed. Thomson Reuters,
2014

Keyzer Patrick, Principles of Australian Constitutional Law, 4th ed. Lexis Nexis, 2013

Gerangelos et al, Winterton’s Australian Federal Constitutional Law: Commentary and Materials,
3rd ed. Thomson Reuters, 2013

Hanks, Gordon & Hill, Constitutional Law in Australia, 3rd ed. Lexis Nexis, 2012
Statute

Commonwealth of Australia Constitution Act 1900 (Imp) (“The Constitution”)
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the LEC
Webcampus including links to cases and legislation in Constitutional Law. Regularly check the Course
Materials section on the LEC Webcampus.
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PRESCRIBED TOPICS
Characterisation and interpretation
Trade and commerce power
Taxation power and provisions in tax laws
Corporations power
External affairs power
Separation of powers
Judicial power of the Commonwealth
The Federal Judicature
Prohibitions - Excise duties and freedom of interstate trade
Implied freedom of political communication
Inconsistency of laws
Commonwealth-State relations
COMPULSORY ASSIGNMENT
In Australian Constitutional Law, there is only ONE ASSIGNMENT. This assignment is
compulsory and must be submitted by all students. Students must submit the assignment by
the due date. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of
Assignments for the assignment grading and assessment criteria. Students who fail to satisfy
the compulsory requirements will be notified through the Results screen on the Webcampus
before the examination period of their ineligibility to sit the examination in this subject. The
maximum word limit for the assignment is 2000 words (the word count includes footnotes but
not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Tuesday 5 January 2016
(Due during study break)
ASSIGNMENT QUESTION
The Australian Constitutional Law assignment question for the Summer Session 2015-16 will
be provided after 9 November 2015 and to obtain the problem please follow the instructions
below:
1.
Register online with the LEC (see page 27 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to the facilities of the LEC
Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment question for this subject.
The maximum word limit for the assignment is 2000 words (the word count includes
footnotes but not bibliography).
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COURSE OUTLINE
Introduction
1. The Constitution
General considerations
Approaches to interpretation and characterisation:a.
b.
c.
scope of head of power
characterisation
restrictions
Federal powers
2. Trade and commerce power: Constitution, s 51(i)
s 51: “The Parliament shall, subject to this Constitution, have power to make laws for the peace order
and good government of the Commonwealth with respect to:
(i) Trade and commerce with other countries, and among the States.”
a.
b.
c.
d.
Understanding what is “trade and commerce”
Overseas trade and commerce
Interstate trade and commerce
Regulation of intrastate trade and commerce
3a. Taxation power: Constitution, s 51(ii)
s 51: “The Parliament shall, subject to this Constitution, have power to make laws for the peace order
and good government of the Commonwealth with respect to:
…
(ii) taxation; but so as not to discriminate between States or parts of States: …”
a.
b.
c.
d.
Identification of tax
Characterisation of tax laws
Revenue or regulation
Meaning of discrimination and preference
3b. Provisions in taxation laws: Constitution, s 55
s 55: Tax Bills “Laws imposing taxation shall deal only with the imposition of taxation, and any
provision therein dealing with any other matter shall be of no effect.
Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one
subject of taxation only; but 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.”
a.
b.
Operation of the two limbs of s 55
Consequences of breach of s 55
9
4. Corporations power: Constitution, s 51(xx)
s 51: “The Parliament shall, subject to this Constitution, have power to make laws for the peace order
and good government of the Commonwealth with respect to:
…
(xx) foreign corporations, and trading and financial corporations formed within the limits of the
Commonwealth: ….”
a.
b.
c.
d.
e.
Identification of corporation as “trading” and/or “financial” corporation
Ambit of power
Incorporation case
Liquidation
Incidental scope of power
5. External affairs power: Constitution, s 51(xxix)
s 51: “The Parliament shall, subject to this Constitution, have power to make laws for the peace order
and good government of the Commonwealth with respect to:
…
(xxix) External affairs: …”
a.
b.
c.
d.
e.
f.
g.
h.
Matters within "external affairs"; relations with other countries; matters external to
Australia; international law
Treaties and Conventions
Subject matter of treaty; historically the differing views
Implementing the treaty into municipal law
Obligations and/or recommendations
Relationship between treaty and municipal law
Possible limitations
Matters of international concern
6. Separation of powers
s 1: “The legislative power of the Commonwealth shall be vested in a Federal Parliament…”
s 61: “The executive power of the Commonwealth is vested in the Queen and is exercisable by the
Governor-General as the Queen’s representative, and extends to the execution and maintenance of
this Constitution, and of the laws of the Commonwealth.”
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 ...."
Boilermakers’ case and its significance: Constitution, s 71
Executive power of the Commonwealth: Constitution, s 61
a.
b.
General considerations
Width of power to delegate legislative authority to executive
10
7. Judicial power of the Commonwealth: Constitution, s 71
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 ...."
s 72: “…The Justices of the High Court and of the other courts created by Parliament –
(i)
Shall be appointed by…
(ii)
Shall not be removed …
(iii)
Shall receive such remuneration…
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age
of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained
that age.
The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his
attaining the age that is, at the time of his appointment, the maximum age for Justices of that court
and a person shall not be appointed as a Justice of such a court if he has attained the age that is for
the time being the maximum age for Justices of that court.
Subject to this section, the maximum age for Justices of any court created by the Parliament is
seventy years.
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for
Justices of a court created by Parliament and may at any time repeal or amend such a law, but any
such repeal or amendment does not affect the term of office of a Justice under appointment made
before the repeal or amendment. …”
a.
b.
c.
d.
e.
Identification of judicial power of the Commonwealth.
Factors to distinguish it from non-judicial power
Exceptions to Boilermakers – power to delegate; designated person rule; other exceptions
Significance of Boilermakers
Practical consequences of separation of powers
The judicature: Constitution, Ch III
8. Federal jurisdiction: Constitution, s 71
a.
b.
Nature of "federal jurisdiction"
Nature of "matter"
High Court's appellate jurisdiction: Constitution, s 73
s 73: “The High Court shall have jurisdiction, with such exceptions and subject to such regulations as
the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and
sentences(i)
(ii)
(iii)
Of any Justice or Justices exercising the original jurisdiction of the High Court;
Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court
of any State, or of any other court of any State from which at the establishment of the
Commonwealth an appeal lies to the Queen in Council;
Of the Inter-State Commission, but as to questions of law only;
and the judgment of the High Court in all such cases shall be final and conclusive.
But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing
and determining any appeal from the Supreme Court of a State in any matter in which at the
11
establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in
Council.
Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in
Council from the Supreme Courts of the several States shall be applicable to appeals from them to the
High Court.”
a.
b.
Prerequisites for s 73 jurisdiction
Parliamentary power to make exceptions and regulate
High Court's original jurisdiction: Constitution, s 75(iii) and s 75(v); s 76(i) and s 76(ii)
s 75: “In all matters …
(iii)
In which the Commonwealth, or a person suing or being sued on behalf of the
Commonwealth, is a party … the High Court shall have original jurisdiction.
…
(v)
In which a writ of Mandamus or prohibition or an injunction is sought against an officer of
the Commonwealth … the High Court shall have original jurisdiction.”
s 76: “The Parliament may make laws conferring original jurisdiction on the High Court in any matter
…
(i)
Arising under this Constitution or involving its interpretation.
(ii)
Arising under any laws made by the Parliament.”
a.
b.
c.
d.
e.
Sections 75-76 specialised original jurisdiction
"Commonwealth" or person within extended phrase "being sued . . ." in s 75(iii)
"Officer of the Commonwealth" and relevant remedies under s 75(v)
Matter "arising under or involving the interpretation of the Constitution" within s 76(i)
When a matter "arises" within s 76(ii)
Power to define jurisdiction: Constitution, s 77
s 77: “With respect to any of the matters mentioned in the last two sections the Parliament may make
laws:
(i)
(ii)
Defining the jurisdiction of any federal court other than the High Court:
Defining the extent to which the jurisdiction of any federal court shall be exclusive of that
which belongs to or is vested in the courts of the States:
Investing any Court of a State with federal jurisdiction.”
(iii)
a.
b.
c.
"Any court of a State"
Role of administrative officers and implications of Harris v Caladine
Repository of federal judicial power - Kable v DPP
Prohibitions
9a. Prohibition of a State from imposing duties of excise etc: Constitution, s 90
s 90: “On the imposition of uniform duties of customs the power of the Parliament to impose duties of
customs and of excise, and to grant bounties on the production or export of goods, shall become
exclusive …”
a.
b.
c.
d.
"Excise duty"
What is a duty of excise? The history.
What is excluded?
Reason s90 included in Constitution
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e.
f.
The Dennis Hotels anomaly and restrictions on it
The broad view has triumphed
9b. "Absolute freedom" of trade, commerce and intercourse: Constitution, s 92:
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…”
a.
b.
c.
d.
The fresh start to the interpretation of s 92 in Cole v Whitfield
The application of the fresh start
Absolutely free and legitimate local interest
Marketing legislation
Implied freedom
10a. The implied freedom of communication
a.
b.
c.
Freedom of political discussion
The Lange modifications
Broad view of political discussion
Federalism
11. Inconsistency between Commonwealth and State laws: Constitution, s 109
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.”
a.
b.
c.
"Laws"
"Invalid"
"Inconsistency"
12. Commonwealth-State relations
a.
b.
c.
d.
e.
Power of the Commonwealth and the States to make laws binding on each other
Commonwealth regulation of States
State regulation of Commonwealth
Does Commonwealth have any general immunity?
Commonwealth subjecting itself to State laws
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CASE LIST
1. Introduction
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers' Case”) (1920) 28 CLR
129
Leask v Commonwealth (1996) 187 CLR 579
Melbourne Corporation v Commonwealth (“Melbourne Corporation Case”) (1947) 74 CLR 31
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Austin v Commonwealth (2003) 215 CLR 185
2. Trade and commerce power: Constitution, s 51(i)
A-G (WA) v Australian National Airlines Commission (“Ansett Transport Industries Case”) (1976) 138
CLR 492
Airlines of New South Wales v New South Wales (No 2) (“Second Airlines Case”) (1965) 113 CLR 54
Australian National Airways v Commonwealth (1945) 71 CLR 29
Huddart Parker v Commonwealth (1931) 44 CLR 492
Murphyores Inc v Commonwealth (1976) 136 CLR 1
O'Sullivan v Noarlunga Meat (1954) 92 CLR 565
R v Foster: ex parte Eastern and Australian Steamship Co (1959) 103 CLR 256
Redfern v Dunlop Rubber Australia (“Redfern's Case”) (1964) 110 CLR 194
Wragg v New South Wales (1953) 88 CLR 353
3a. Taxation power: Constitution, s 51(ii)
Air Caledonie International v Commonwealth (1988) 165 CLR 462
Austin v Commonwealth (2003) 215 CLR 185
Australian Tape Manufacturers Association v Commonwealth (“Blank Tape Royalty Case”) (1993) 176
CLR 480
Elliott v Commonwealth (1936) 54 CLR 657
Fairfax v FCT (1965) 114 CLR 1
Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
Logan Downs v FCT (1965) 112 CLR 177
Northern Suburbs General Cemetery Reserve Trust v Commonwealth (“Training Guarantee Case”)
(1993) 176 CLR 555
Osborne v Commonwealth (1911) 12 CLR 321
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1
R v Barger (1908) 6 CLR 41
Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97
South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373
Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575
3b. Provisions in taxation laws: Constitution, s 55
Air Caledonie International v Commonwealth (1988) 165 CLR 462
Australian Tape Manufacturers Association v Commonwealth (1993) 176 CLR 480
Cadbury-Fry-Pascall v FCT (1944) 70 CLR 362
Collector of Customs (NSW) v Southern Shipping Co (1962) 107 CLR 279
Luton v Lessels (2002) 210 CLR 333
Permanent Trustee Australia Pty Ltd v Commissioner of State Revenue (2004) 220 CLR 388 (pars
55-74)
Re Dymond (1959) 101 CLR 11
State Chamber of Commerce and Industry v Commonwealth (Fringe Benefits Tax Case) (1987) 163
CLR 329
14
4. Corporations power: Constitution, s 51(xx)
Actors and Announcers Equity Association of Australia v Fontana Films (“Actors Equity Case”) (1982)
150 CLR 169
Commonwealth v Tasmania (“Tasmanian Dam Case”) (1983) 158 CLR 1
Re Dingjan; ex parte Wagner (“Dingjan's Case”) (1995) 183 CLR 323
Fencott v Muller (1983) 152 CLR 570
New South Wales v Commonwealth (“Incorporation Case”) (1990) 169 CLR 482
New South Wales v Commonwealth; Western Australia v Commonwealth (2006) 229 CLR 1 (“Work
Choices Case”)
R v Australian Industrial Court: ex parte C L M Holdings (1977) 136 CLR 235
R v Federal Court of Australia: ex parte Western Australian National Football League (“Adamson's
Case”) (1979) 143 CLR 190
State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282
Strickland v Rocla Concrete Pipes (“Concrete Pipes Case”) (1971) 124 CLR 468
Victoria v Commonwealth (“Industrial Relations Act Case”) (1996) 187 CLR 416
5. External affairs power: Constitution, s 51(xxix)
Airlines of New South Wales v New South Wales (No 2) (“Airlines No 2”) (1965) 113 CLR 54
Bradley v Commonwealth (1973) 128 CLR 557
Commonwealth v Tasmania (“Tasmanian Dam Case”) (1983) 158 CLR 1
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
New South Wales v Commonwealth (“Seas and Submerged Lands Act Case”) (1975) 135 CLR 337
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1
Polyukhovich v Commonwealth (“War Crimes Act Case”) (1991) 172 CLR 501
Queensland v Commonwealth (“Tropical Rainforest Case”) (1989) 167 CLR 232
R v Burgess: ex parte Henry (1936) 55 CLR 608
R v Poole: ex parte Henry (No 2) (1939) 61 CLR 634
Richardson v The Forestry Commission (1988) 164 CLR 261
Victoria v Commonwealth (“Industrial Relations Act Case”) (1996) 187 CLR 416
6a. Executive power Constitution, s 61
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1
Victorian Stevedoring and General Contracting Co and Meakes v Dignan (1931) 46 CLR 73
Williams v Commonwealth (2012) 248 CLR 156
6b. Separation of powers: Constitution, s 71
Grollo v Palmer (1995) 184 CLR 348
Harris v Caladine (1991) 172 CLR 84
Hilton v Wells (1985) 157 CLR 57
R v Joske: ex parte Australian Building Construction Employees and Builders Labourers Federation
(1974) 130 CLR 87
The Boilermakers Case (1956) 94 CLR 254; (1957) 95 CLR 529
Waterside Workers Federation of Australia v J W Alexander (1918) 25 CLR 434
Wilson v Minister for Aboriginal and Torres Strait Islander Affair (1996) 189 CLR 1
7. Judicial power of the Commonwealth: Constitution, s 71
Attorney-General (Cth) v Breckler (1999) 197 CLR 83
Attorney-General (Cth) v Alinta (2008) 233 CLR 542
Australian Communications & Media Authority v Today (FM) Sydney Pty Ltd [2015] HCA 7 (4 March
2015)
Brandy v Human Rights and Equal Opportunity Commission (“Brandy's Case”) (1995) 183 CLR 245
Cominos v Cominos (1972) 127 CLR 588
15
Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma (1959) 101 CLR 652
Huddart Parker v Moorehead (1909) 8 CLR 330
Lane v Morrison (2009) 239 CLR 230
Precision Data Holdings v Wills (1991) 173 CLR 167
R v Commonwealth Industrial Court: ex parte Amalgamated Engineering Union Australian Section
(“Shearer's Case”) (1960) 103 CLR 368
R v Davison (1954) 90 CLR 353
R v Joske: ex parte Australian Building Construction Employees and Builders Labourers Federation
(1974) 130 CLR 87
R v Quinn: ex parte Consolidated Foods (1977) 138 CLR 1
R v Spicer: ex parte Australian Builders Labourers Federation (1957) 100 CLR 277
R v Spicer: ex parte Waterside Workers Federation of Australia (1957) 100 CLR 312
R v Trade Practices Tribunal: ex parte Tasmanian Breweries (1970) 123 CLR 361
Re Tracey: ex parte Ryan (1989) 166 CLR 518
Rola Co (Australia) v Commonwealth (1944) 69 CLR 185
Thomas v Mowbray (2007) 233 CLR 307
8a. Courts and federal jurisdiction: Constitution, s 71
R v Bevan: ex parte Elias (1942) 66 CLR 452
In re Judiciary and Navigation Acts (1921) 29 CLR 257
Re Wakim; ex parte McNally (1999) 198 CLR 511
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
The Marriage Act Case (1962) 107 CLR 529
8b. High Court's appellate jurisdiction: Constitution, s 73
Cockle v Isaksen (1957) 99 CLR 155
Mellifont v A-G (Q) (1991) 173 CLR 289
O'Toole v Charles David (1990) 171 CLR 232
Smith Kline and French Laboratories (Australia) v Commonwealth (1991) 173 CLR 194
8c. High Court's original jurisdiction: Constitution, ss 75, 76
(1) Section 75(iii)
Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (“Bank Nationalisation” case)
Inglis v Commonwealth Trading Bank (1969) 119 CLR 334
R v Collins: ex parte ACTU-Solo Enterprises (1976) 50 ALJR 471
Repatriation Commission v Kirkland (1923) 32 CLR 1
Toowoomba Foundry v Commonwealth (1945) 71 CLR 545
(2) Section 75(v)
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Cook; ex parte Twigg (1980) 147 CLR 15
R v Drake-Brockman: ex parte National Oil (1943) 68 CLR 51
R v Murray: ex parte Commonwealth (1916) 22 CLR 437
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
(3) Section 76(i)
A-G (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315
James v South Australia (1927) 40 CLR 1
(4) Section 76(ii)
Felton v Mulligan (1971) 124 CLR 367
16
R v Commonwealth Court of Conciliation and Arbitration: ex parte Barrett (1945) 70 CLR 141
Watson v FCT (1953) 87 CLR 353
8d. Investing State courts with federal jurisdiction: Constitution, s 77(iii)
Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49
Harris v Caladine (1991) 172 CLR 84 (s77(ii))
Kable v Director of Public Prosecutions NSW (1996) 189 CLR 51
9a. Duties of excise: Constitution, s 90
Capital Duplicators v Australian Capital Territory (No 2) (1993) 178 CLR 561
Dennis Hotels v Victoria (1960) 104 CLR 529
Dickenson's Arcade v Tasmania (1974) 130 CLR 177
Gosford Meats v New South Wales (1985) 155 CLR 368
Ha v New South Wales (1997) 189 CLR 465
H C Sleigh v South Australia (1977) 136 CLR 475
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
Harper v Victoria (1966) 114 CLR 361
Hematite Petroleum v Victoria (1983) 151 CLR 599
Logan Downs v Queensland (1977) 137 CLR 59
Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263
Parton v Milk Board (Victoria) (1949) 80 CLR 263
9b. Freedom of inter-state trade: Constitution, s 92
Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182
Bath v Alston Holdings (1988) 165 CLR 411
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418
Castlemaine Tooheys v South Australia (1990) 169 CLR 436
Cole v Whitfield (1988) 165 CLR 360
Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298
10. Implied freedom of political communication
Aust Capital Television v Commonwealth (No 2) (1992) 177 CLR 106
Coleman v Power (2004) 220 CLR 1
Lange v Australian Broadcasting Corp (1997) 189 CLR 520
Nationwide News v Wills (1992) 177 CLR 1
Unions NSW v New South Wales [2013] HCA 58 (2013) 88 ALJR 227
Wotton v State of Queensland (2012) 246 CLR 1
11. Inconsistency of laws: Constitution, s 109
Airlines of New South Wales v New South Wales (No 2) (“Second Airlines Case”) (1965) 113 CLR 54
Ansett Transport Industries (Operations) v Wardley (1980) 142 CLR 237
Clyde Engineering Co v Cowburn (1926) 37 CLR 466
Colvin v Bradley Bros (1943) 68 CLR 151
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47
Dickson v The Queen (2010) 241 CLR 491
Ex parte McLean (1930) 43 CLR 472
O'Sullivan v Noarlunga Meat (1954) 92 CLR 565
R v Credit Tribunal: ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545
Viskauskas v Niland (1983) 153 CLR 280
Wenn v A-G (Vic) (1948) 77 CLR 84
Wollongong University v Metwally (1984) 158 CLR 447
17
12. Commonwealth – State relations
Amalgamated Society of Engineers v The Adelaide Steamship Co (“Engineers Case”) (1920) 28 CLR
129
Austin v Commonwealth (2003) 215 CLR 185
Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46
Clarke v Federal Commissioner of Taxation (2009) 258 CLR 272
Commonwealth v Cigamatic (1962) 108 CLR 372
Commonwealth v Tasmania (“Tasmanian Dam Case”) (1983) 158 CLR 1
Melbourne Corporation v Commonwealth (Melbourne Corporation Case”) (1947) 74 CLR 31
Pirrie v McFarlane (1925) 36 CLR 170
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
Re The Residential Tenancies Tribunal of NSW and Henderson; Ex parte The Defence Housing
Authority (“Hendersons Case”) (1997) 190 CLR 410
Victoria v Commonwealth (1971) (“Payroll Tax Case”) 122 CLR 353
West v Commissioner of Taxation (1937) 56 CLR 657
18
LECTURE OUTLINES
LECTURE 1 INTRODUCTION
Essential Cases: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers' Case”) (1920)
115 CLR 418
 Leask v Commonwealth (1996) 187 CLR 579
 Melbourne Corporation v Commonwealth (“Melbourne Corporation Case”) (1947) 74 CLR 1
 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Issues: Interpretation of the Constitution
a.
Scope of head of power
b.
Characterisation
c.
Restrictions
Desired outcomes:Characterisation involves the process of deciding whether a Commonwealth law is authorised by a
particular head of legislative power. As an initial step it is necessary to understand the scope and
meaning of the particular head of Commonwealth power and a number of rules of interpretation need
to be understood to determine the “meaning” of the Commonwealth head of power.
Once the meaning of the head of power is understood by the application of those rules of
interpretation a valid Commonwealth power must fall within, either (i) a “core” or “main grant” of the
head of Commonwealth legislative power or come within, (ii) the incidental scope of that power and
finally (iii) the proposed law must not infringe any restriction either express or implied. Again in relation
to each of those steps there are a number of rules that must be applied. In deciding whether the law
comes within the core of a head of power it is necessary to analyse the operation of the law but when
considering whether the law comes within the incidental scope of the power it becomes an analysis of
‘sufficient connection’. Finally one has to consider whether the proposed law infringes any restriction
either express or implied.
An enquiry into “proportionality” of a law is an enquiry as to whether the law is “appropriate and
adapted” to come within the incidental scope. In Leask the High Court undertook an analysis of
proportionality and concluded that it was not a decisive factor when considering a non-purposive head
of power. Considerations of proportionality will be relevant under a purpose head of power but
otherwise its main relevance will be when considering whether to strike down a law under either an
express or implied restriction.
LECTURE 2 TRADE & COMMERCE POWER s 51(i)
Essential Cases: Airlines of New South Wales Pty Ltd v New South Wales (No 2) (“Second Airlines Case”)
(1965) 113 CLR 54
 Attorney-General (WA) (Ex rel Ansett Transport Industries (Operations) Pty Ltd) v Australian
National Airlines Commission (“Ansett Transport Industries Case”) (1976) 138 CLR 492
 Australian National Airways v Commonwealth (1945) 71 CLR 29
 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
 O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565
 Redfern v Dunlop Rubber Australia Ltd (“Redfern's Case”) 1964 110 CLR 194
Issues: Introduction
 Understanding the concepts of “trade and commerce” including what is not within the concept
 Activities of interstate and overseas trade and commerce
 Regulation of intrastate trade and commerce
19
Desired outcomes:The apparent width of this grant of power is limited by the distinction that has to be drawn between
interstate and overseas trade and commerce on the one hand and intrastate (domestic or local) trade
and commerce on the other hand. Only those activities that fall within the first limb can be subject to a
Commonwealth law pursuant to s 51(i). The distinction between the first type of activity and the
second is a distinction made by the Constitution and must be respected.
Whilst the Commonwealth is empowered to make laws with respect to interstate and overseas trade
and commerce the Commonwealth can enter the field and itself engage in these activities.
The actual grant refers to making laws with respect to interstate and overseas trade and commerce so
the principal thrust of Commonwealth laws will be regulating these activities. The core of s 51(i) is
commercial movement overseas or interstate.
A more complex issue is the scope of the incidental power of s 51(i) and the extent to which the
Commonwealth may be able to regulate intrastate (domestic or local) trade and commerce. It will
depend upon whether the intrastate activity has a “sufficient connection”. Traditionally this has
demanded a physical connection rather than an economic connection.
LECTURE 3-4 TAXATION POWER s 51(ii) and s 55
Essential Cases: Air Caledonie International v Commonwealth (1988) 165 CLR 462
 Australian Tape Manufacturers Association v Commonwealth ("Blank Tape Royalty Case”)
 Elliott v Commonwealth (1936) 54 CLR 657
 Fairfax v FCT (1965) 114 CLR 1
 Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548
 Northern Suburbs General Cemetery Trust v Commonwealth (“Training Guarantee Case”)
(1993) 176 CLR 555
 Permanent Trustee Australia Pty Ltd v Commissioner of State Revenue (2004) 220 CLR 388
(pars 55-74)
 R v Barger (1908) 6 CLR 41
Issues: Is it tax?
 Is it revenue-raising or regulatory?
 If it is tax does it infringe a restriction on the tax power?
 Consideration of the two limbs to Constitution s 55
Desired outcomes:This is not an exclusive Commonwealth power. Later we will examine how s 90 excludes the States
from imposing customs and excise duties and as a result those forms of taxation are exclusive to the
Commonwealth.
After considering the fundamental elements of tax from the classic description, “a compulsory exaction
of money by a public authority for public purposes and not a payment for services rendered”, it
becomes apparent that there is little chance of the taxpayer challenging a tax law as not complying
with the elements of tax.
Excluded from being a tax is a fee for service. The distinction between the two arises particularly
under s 90. If the levy is a fee for service then the law must be authorised by some other power in the
Constitution.
The taxation power is an important power to any federal government. It is this feature that gives rise to
arguments by a taxpayer that the law is not revenue raising but is regulatory of some activity that may
or may not be within the Commonwealth catalogue of powers. The issue posed is one of
characterisation. Do we identify the law as regulatory not revenue raising by looking at the effect of the
20
law or do we consider what it does in substance? When determining the substance of the law it is
necessary to ask, “What obligation is imposed?”.
The main restriction examined is the prohibition against discrimination contained within s 51(ii). If the
law is uniform but in its operation affects different parts of Australia in a discriminatory manner will the
prohibition apply? The discrimination refers to States or parts of States and it is necessary to consider
what rules apply when interpreting this aspect of the prohibition.
Section 55 imposes procedural imperatives for taxation laws outlined in Permanent Trustee.
LECTURE 4-5 CORPORATIONS POWER s 51(xx)
Essential Cases: Actors and Announcers Equity Association of Australia v Fontana Films ("Actors Equity”)
(1982) 150 CLR 169
 Commonwealth v Tasmania (“Tasmanian Dam Case”) (1983) 158 CLR 1
 Re Dingjan; ex parte Wagner (1995) 183 CLR 323
 New South Wales v Commonwealth (1990) 169 CLR 48
 New South Wales v Commonwealth; Western Australia v Commonwealth (2006) 229 CLR 1
(“Work Choices Case”)

R v Federal Court of Australia; ex parte Western Australian National Football League
(“Adamson's Case”) (1979) 143 CLR 190
 Strickland v Rocla Concrete Pipes Ltd (“Concrete Pipes Case”) (1971) 124 CLR 468
 Victoria v Commonwealth (“Industrial Relations Case”) (1996) 187 CLR 416
Issues: What characterises a corporation as “trading or financial”?
 How do you identify a law within the core of the power?
 Does the power extend to include incorporation?
 Does the power extend to liquidation?
 What matters fall within the incidental scope?
Desired outcomes:Historically the High Court gave a very narrow interpretation to the scope of this power and that can be
explained by the judicial approach seen in Huddart Parker & Co Ltd v Moorehead (1909) 8 CLR 330. It
is the strong dissent of Isaac J in the judgment that is the more interesting as he would have held the
law to be valid.
A new approach to the scope of the power was signalled in Concrete Pipes.
Section 51(xx) refers to three types of corporations and the power is limited to those three types. It is
necessary to consider the law on the identification of those three types of corporations. The High
Court has divided on the subject of the identification of a trading corporation. Whilst there have existed
a division of views, over the years, the focus has become: What are the corporation's activities? Are
they trading and financial? To what extent must the corporation be found to be engaging in trading or
financial activities?
Another major issue is the extent to which a s 51(xx) corporation may be regulated. Historically there
was a restricted view that was rejected in Concrete Pipes, but more recent decisions of the High Court
have expanded it to activities of outsiders where those activities impact upon the trading activities of a
trading corporation. Later decisions expand the power even further but there is a continuing division of
opinion within the High Court (see Dingjan).
The division of opinion as to how to characterise a valid s 51(xx) law is resolved by the clear majority
view on the width of the power in the “WorkChoices Case”.
Finally there is the operation of the incidental scope of s 51(xx).
21
LECTURE 5-6 EXTERNAL AFFAIRS POWER s 51(xxix)
Essential Cases: Airlines of New South Wales v New South Wales (No 2) (“Airlines Case”) (1965) 113 CLR 54
 Commonwealth v Tasmania (“Tasmanian Dam Case”) (1983) 158 CLR 1
 Koowarta v Bjelke-Petersen (1982) 153 CLR 168
 Polyukhovich v Commonwealth (“War Crimes Act Case”) (1991) 172 CLR 501
 R v Burgess; ex parte Henry (1936) 55 CLR 608
 R v Poole; ex parte Henry (No 2) (1939) 61 CLR 634
 Richardson v Forestry Commission (1988) 164 CLR 261
 Victoria v Commonwealth (“Industrial Relations Act Case”) (1996) 187 CLR 416
Issues: External affairs:(a) relations with other countries; (b) matters external to Australia and (c) international law.
 Matters physically external to Australia:o New South Wales v Commonwealth (“Seas and Submerged Lands Act Case”) (1975)
135 CLR 337 and the “War Crimes Act Case”.
 Treaties and Conventions;
 Historically the different views on the external affairs power;
Koowarta illustrates the differing views and needs to be understood as the forerunner to
Tasmanian Dam. In Tasmanian Dam the majority decided that the broad view of Evatt J
and McTiernan J in Burgess was correct. This has been re-affirmed by the later cases
such as Richardson.
 Need for bona fides;
 The Parliament can legislate to implement obligations that Australia has incurred under
international instruments;
 Identification of international obligations is an issue of fact;
 Need for law to prescribe a regime contemplated by the treaty;
 Obligations and/or recommendations;
 Legislation implementing the treaty, creation of domestic obligations;
 Legislation must conform to the treaty it must be capable of being seen as reasonably adapted
and appropriate by discussing
o Burgess; Poole; Airlines; Richardson and Queensland v Commonwealth (“Tropical
Rainforest Case”) (1989) 167 CLR 232 and The Industrial Relations Case;
 Is partial implementation satisfactory;
 Undermining the federal balance of powers;
 International relations apart from treaty.
Desired outcomes:The Commonwealth can legislate with respect to affairs external to Australia. Affairs external to
Australia will include laws with respect to (a) relations with other countries and (b) persons or matters
external to Australia.
The focus of attention of the High Court in recent years has been the implementation of treaties and
conventions to which Australia is a party. The Commonwealth clearly has the capacity to enter into
treaties and conventions. The executive conducts the treaty-making processes and at the initial stage
the domestic law of Australia is not altered.
The controversial aspect of the Commonwealth power is the power to legislate to give effect to the
terms of the treaty, as this will usually involve the Commonwealth law dealing with a matter that is not
normally within its legislative competence. The issue has been resolved - no longer must the treaty
deal with a matter of international concern. If a topic becomes the subject of a treaty then it is
necessarily international in character.
The carrying out of international obligations is central to the treaty implementation aspect of s 51(xxix)
but the power is not limited to obligations. Later judgments of the High Court extend the power to nonobligatory aspects of the international agreement. The Commonwealth can pass laws to discharge
known obligations as well as reasonably apprehended obligations.
22
Whether the implementing law can be described as one that implements an obligation cast by the
treaty depends upon a consideration of the extent to which the domestic law needs to conform to the
terms of the treaty. The adherence must be at least an adherence in substance. The law must be
appropriate and adapted to the purpose of the power. When will the implementation be so deficient
that it is not a valid law within s 51(xxix) and consider the discussion in Vic v Cth.
The power under s 51(xxix) is subject to the express and implied limitations of the Constitution. The
Commonwealth cannot rely on a treaty as a device to attract legislative power - the treaty must be
entered into bona fide. The power must not be used to impair the continued existence of the States or
to impair their capacity to function as States.
Where a matter is not the subject of treaty obligations but is a matter of international concern then the
Commonwealth can enact legislation on that matter.
LECTURE 7 SEPARATION OF POWERS
Essential Cases: R v Kirby; ex parte Boilermakers' Society of Australia (“Boilermakers Case”) (1956) 94 CLR
254; and (1957) 95 CLR 529
 Waterside Workers Federation of Australia v JW Alexander (1918) 25 CLR 434
 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR
73
Issues: Boilermakers Case in both the High Court and Privy Council propounded a separation of
powers between s 71 courts and other non-judicial bodies whilst leaving a fusion of powers
between the legislature and the executive.
 The reasons for Boilermakers and its credibility together with its application.
 Exceptions to Boilermakers:a.
delegation of judicial power Harris v Caladine (1991) 172 CLR 84
b.
designated person rule Hilton v Wells (1985) 157 CLR 57; Wilson v Minister for
Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
c.
historical characterisation of power
d.
other exceptions
Desired outcomes:At a federal level there is no strict separation of the powers of the legislature and executive branches
of the government. It is the Executive that executes and maintains the laws. The Executive is able to
engage in a kind of law-making power by making sub-laws similar to the laws of the Parliament. But
the delegation of law-making power to the Executive is subject to limitations.
In a practical sense the separation of powers doctrine is more concerned with the separation of judicial
and non-judicial powers as between the judiciary and the Executive and to a lesser extent as between
the judiciary and the legislature.
The legislature is only authorised to vest judicial power in s 71 courts though there are minor
exceptions such as the power exercised by a court martial. Non-judicial power may not be vested in
s 71 courts though again there are exceptions.
The basis of the Boilermakers principle has to be considered as well as its credibility.
The erosion of the Boilermakers principle as evidenced by the designated person rule and the various
limits that were later placed on this rule needs to be considered.
Finally there is a need to consider the practical consequences of the application of the Boilermakers
principle.
23
LECTURE 8 JUDICIAL POWER OF COMMONWEALTH
Essential Cases: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
 Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83
 Huddart Parker & Co Ltd v Moorehead (1909) 8 CLR 330
 Precision Data Holdings v Wills (1991) 173 CLR 167
 R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
 R v Quinn; ex parte Consolidated Foods (1977) 138 CLR 1
Issues: Consideration of the nature of judicial power as opposed to non-judicial power.
 At least six factors can be considered:
a.
definitive decision itself declaring rights
b.
declaring existing rights under existing law
c.
decision based on legal standards
d.
presence of trappings of a court
e.
basic legal rights test
f.
historical test
Desired outcomes:It is difficult to identify an exercise of judicial power. The factors that help to identify what is an
exercise of judicial power are those listed.
If the decision is fact-finding, preliminary then it is not judicial power. To be an exercise of judicial
power the decision itself must determine rights.
A declaration of existing rights under existing law is judicial power and by way of contrast need to
consider arbitration resulting in an award. The award creates new rights.
If the body exercises judicial power then it must come to its decision by applying certain definite legal
standards and contrast that with a non-judicial body applying policy-making criteria.
A judicial body determines basic legal rights as opposed to statutory rights.
The exercise of judicial power is usually surrounded by the trappings of a court.
Finally history may classify an exercise of power as either judicial or non-judicial.
LECTURE 9 FEDERAL JURISDICTION
Essential cases: In re Judiciary and Navigation Acts (1921) 29 CLR 257
 Re Wakim; ex parte McNally (1999) 198 CLR 511
Issues: Jurisdiction of the High Court and other federal courts
 High Court: appellate jurisdiction s 73
 High Court: original jurisdiction ss 75, 76 in particular s 75 (iii), s 75(v), s 76(i), s 76(ii)
 Other courts exercising federal jurisdiction s 77
24
LECTURE 10 DUTIES OF EXCISE
Essential Cases: Capital Duplicators Pty Ltd v ACT (No 2) (1993) 178 CLR 561
 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529
 Ha v New South Wales (1997) 189 CLR 465
 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599
Issues: What is an excise duty?
 The first approach in Peterswald v Bartley (1904) 1 CLR 497
 What is excluded?
 Reason s 90 included in Constitution
 Departure from the earliest view Parton v Milk Board (Vic) (1949) 80 CLR 263
 Stages of interpretation from the narrow view to the broad view looking at case law
 Restrictions on Dennis Hotels formula
Desired outcomes:An excise duty is a form of taxation vested exclusively in the Commonwealth due to the prohibition in
s 90. The power of the Commonwealth to impose excise duties is s 51(ii). The object and purpose of
s 90 needs to be considered to understand why this form of tax is prohibited to the States.
When a State government is challenged in respect of a levy made by it, the most likely argument
raised by the State will be that the levy is a fee for service or equivalent to a fee for service charge.
Whether or not a tax is a tax upon goods requires consideration of the different approaches taken by
the High Court commencing with the definition originally given in Peterswald v Bartley (1904) 1 CLR
497. But as early as 1938 (Matthews) and 1949 (Parton) an expanded definition existed and ultimately
it is the broad view that prevails.
In deciding whether a tax is a tax upon goods or a fee for a licence in relation to goods imposed by a
State a debate waged in the High Court as to what was the proper approach. Was it proper to look to
the “criterion of liability” or the ”substance” approach? The differences emerged in Dennis Hotels and
the issues raised were not finally settled till the High Court judgment in Ha.
LECTURE 10 (cont.) FREEDOM OF INTERSTATE TRADE s 92
Essential Cases: Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182
 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411
 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
 Cole v Whitfield (1988) 165 CLR 360
Issues: A new interpretation of s 92 in Cole v Whitfield
 Different views in Bath v Alston Holdings
 Absolutely free and legitimate local interest
 Marketing legislation
Desired outcomes:The joint judgment in Cole v Whitfield found that the Sea Regulations of Tasmania did not infringe s 92
and provided a new interpretation of its operation namely that the Regulations did not constitute a
discriminatory burden on interstate trade of a protectionist kind. This new test involved identifying the
types of burdens from which s 92 guarantees freedom. It is always an initial question whether there is
a burden on interstate trade and commerce. Further the burden must be found to discriminate. When
considering whether the law discriminates, the guarantee in s 92 is to be treated as one of substance
and not just one of form. This means that to be subjected to a challenge based on s 92 the student will
need to consider whether the law on its face subjects trade or commerce to a disability or
25
disadvantage or if the factual operation of the law produces such a result. Assuming that a
discriminatory burden on interstate trade and commerce can be identified, the final step is to consider
whether it is a protectionist law.
The issue of protectionism requires an understanding of Castlemaine Tooheys Ltd v South Australia. It
was agreed by the parties that the first two conditions in Cole v Whitfield were satisfied but the State of
South Australia argued that the State law and regulations in so far as they burdened the interstate sale
of beer in non-refillable bottles did so to protect the environment. The issue became was the law
protectionist or was it to protect a legitimate local interest? The High Court considered whether there
was a legitimate local interest; whether the measures adopted were necessary, appropriate and
adapted and was the impact on interstate trade and commerce incidental and not disproportionate?
Ultimately it was found that the laws were protectionist in nature.
LECTURE 11 IMPLIED FREEDOM OF POLITICAL COMMUNICATION
Essential Cases: Australian Capital Television v Commonwealth (No 2) (1992) 177 CLR 106
 Lange v Australian Broadcasting Corp (1997) 189 CLR 520
 Nationwide News v Wills (1992) 177 CLR 1
 Unions NSW v New South Wales [2013] HCA 58 (2013) 88 ALJR 227
 Wotton v State of Queensland (2012) 246 CLR 1
Issues: Freedom of political communication
 The Lange modifications
 Consideration of appropriate and adapted burdens
 Freedom limited to extent of need
Desired outcomes:There are few express rights and freedoms in the Constitution, but there are some implied freedoms.
The implied freedom of communication found support from a majority of judges of the High Court in
1992 in the decisions in Nationwide News and Australian Capital Television. The reasoning of the
majority in Nationwide News was based on the system of representative government prescribed by
the Constitution. The existence of the implied freedom was confirmed in Australian Capital Television
but the reasoning for some of the judges became representative democracy.
The possibilities of this new found freedom were never realised due to the unanimous view expressed
in Lange’s Case in 1997. Thereafter the freedom operated as a restriction on legislative power. The
test to determine whether a law of a State or a law of the Commonwealth infringes the freedom is
explained by the High Court at pp567-8 of the reported judgment. After Coleman v Power the end and
the manner of its achievement must be compatible with the system of representative and responsible
government
LECTURE 11 (cont.)_ INCONSISTENCY OF LAWS s 109
Essential Cases: Airlines of New South Wales Pty Ltd v NSW (No 2) (“Second Airlines Case”) (1965) 113 CLR
54
 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237
 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
 Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47
 Ex parte McLean (1930) 43 CLR 472
Issues: Meaning of “law”?
 Meaning of “invalid”?
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

Meaning of “inconsistency”?
Tests for inconsistency
Desired outcomes:It is an essential requirement of s109 that there firstly be a valid Commonwealth law and a valid State
law. An inconsistent State law is not rendered “void”. The word “invalid” in s109 means inoperative
whilst the inconsistency exists and only inoperative, to the extent of inconsistency, unless severance is
not possible.
The main focus of the lecture is upon “inconsistency”. This gives rise to question about simultaneous
obedience, conferral of rights and cover the field inconsistency. Initially the discussion focuses upon
direct inconsistency which does not lead to difficulty but included in the discussion of direct
inconsistency thought has to be given to the situation where both the Commonwealth and a State
provide inconsistent criminal penalties for similar conduct and in this context be aware that this does
not always generate s109 inconsistency.
A more complex area is indirect inconsistency which may arise when the Commonwealth attempts to
cover the field and a State law intrudes into that field. This requires consideration of the
Commonwealth intention which may be express or implied. Most importantly it also requires correct
identification of the “field” that is covered and finally consideration of whether a State law has
trespassed into that field.
Finally it is important to consider whether a Commonwealth law can retrospectively declare an
intention not to cover the field exclusively see Metwally.
LECTURE 12 COMMONWEALTH–STATE RELATIONS
Essential Cases: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers Case”) (1920)
28 CLR 129
 Austin v Commonwealth (2003) 215 CLR 185
 Clarke v Federal Commissioner of Taxation (2009) 258 CLR 272
Commonwealth v Cigamatic (1962) 108 CLR 372
 Melbourne Corporation v Commonwealth (“Melbourne Corporation Case”) (1947) 74 CLR 31
 Pirrie v McFarlane (1925) 36 CLR 170
 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
 Re The Residential Tenancies Tribunal of NSW & Henderson; ex parte The Defence Housing
Authority (“Henderson's Case”) (1997) 190 CLR 410
 Victoria v Commonwealth (“Payroll Tax Case”) (1971) 122 CLR 353
Issues: Extent of inter-governmental immunities
 Different periods of High Court (1904-1920); (1920-1947); (post-1947)
 Commonwealth regulation of States
 State regulation of Commonwealth
 Does Commonwealth have any general immunity
 Capacity of Commonwealth to protect itself
 Commonwealth subjecting itself to State law
Desired outcomes:In a practical sense it is necessary to be able to resolve two questions: Can a Victorian Stamp Duty
Act apply to a receipt issued by a Commonwealth Department in Victoria?” and “Can a
Commonwealth industrial award apply to employees of the New South Wales Government?”
It needs to be asked as a preliminary question “Does the legislation bind the Crown?”. In addition this
involves consideration of “Who is the Crown?”
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When considering the power of the Commonwealth the main focus of the lecture will be Engineers
Case and Melbourne Corporation. A much more complex discussion is needed when the lecture
considers the power of the States to regulate the Commonwealth partly because the Commonwealth
has the capacity to protect itself.