CONSTITUTIONAL LAW EXAM
2023
NOTES
AMELIA KING
27/06/23
9AM
WHAT IS THE LEGISLATION TRYING TO ACHIEVE?
1
Revision Lecture Notes
Past Exam Example (SA) legislation.
1. Identify the issue that is affecting client and section of law that is causing that
issue.
____ wishes to avoid conviction under s 24 of _____ (SA).
2. Is s 24 valid?
Source of power
State law – plenary power – yes.
No limitations/
Implied freedom? Lange/McCloy test
1) Burden?
2) Legitimate purpose?
3) Is s 24 appropriate and adapted to the legitimate end?
a. Suitable ?
b. Necessary?
c. Adequacy?
i. Importance of purpose: pretty important
ii. Extent of Burden.
Arguably no breach of implied freedom.
Section 24 may be valid.
BUT IF THIS VALID LAW IS INCONSISTENT WITH CTH LAW IT IS
INOPERATIVE.
s24 may be inconsistent with s 13 of ___ (Cth).
Leads into Cth discussion. STRONG STATEMENTS OF ISSUE!!!!!
Valid State law and Commonwealth law?
Is s 13 of the ___________ (Cth) valid?
Source of Power?
S13 may be supported by the corporations power and/or the treaty
implementation aspect of s51 (xxix)
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Corporations power
The corporations power will support a law regulating employees
shareholders and directions or corporations in respect of the activities,
functions, business, relationship, rights, privileges, and obligations of
corporations: Work Choices.
Relate to s of legislation:
S 13 – applies to directors, shareholders, employees of CC’s but gives
them a right that applies ‘at all times.’ Arguably not regulating those
people in respect of activities functions etc of corporations.
Arguably s 13 is not supported by the corporations power.
Treaty implementation
Treaty likely doesn’t enliven the legislation.
Limits?
No
Is s 13 (if valid) inconsistent with s 24
Conflict of rights
CTH law gives people a right – freedom of expression at all times.
State law alters, impairs, or detracts from that right.
What is the extent of the inconsistency? S24 is inoperative insofar as it
applies to employees, shareholders or directors of constitutional corporations.
3. If valid, does it apply to client?
The most likely outcome is that s 24 is valid and operative. Chelsea likely breached s
24.
IF the Cth law is valid the outcome is different. S24 would not apply to an employee
of a constitutional corporation. Chelsea works for a foreign corporation and therefore
s24 would not apply to her.
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TOPIC 1: CONSTITUTIONAL BASICS
The constitution is the source of government authority.
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Commonwealth legislative, judicial, and executive power.
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State Power: ss106-8. State constitutions, parliament and laws continue to
operate subject to the constitution.
Confers and limits governmental power.
Is a law valid?
1. Parliament must have the power to pass the law (constitution).
Next if that is satisfied,
2. There must be no constitutional limit.
State Legislative Power
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Constitution ss 106-7 gives the power for state laws.
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Plenary powers: states have general lawmaking power to make laws on
things. Usually this.
-
States can refer power to commonwealth under s 51(37).
Commonwealth Legislative Power
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S51 gives the parliament power to make laws on 40 subjects (HOP).
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Can only make laws in reference to s 51 subjects.
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‘with respect to’ process of characterisation.
To work out whether a law is supported by the heads of power, need to work out
whether this is a law with respect to the head of power. VIA CHARACTERISATION
Subject matter powers  Test of sufficient connection.
Purposive powers: Test of Proportionality.
Subject matters powers
1. Interpret the HOP
Interpret like an ordinary statute (Engineers Case (1920))
2. Look at the legislation
3. Is there SUFFICIENT CONNECTION?
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A sufficient connection is one that is not:
- purpose and proportionality of the law is invalid (Herald v Weekly
Times).
- Wisdom of law irrelevant (Grain Pool).
Purposive Powers:
Test: Whether the law is proportionate/appropriate and adapted to the
relevant purpose.
Proportionality can also be relevant to characterising laws under the incidental
powers (Leask v Cth).
TOPIC 2: VALIDITY, CHARACTERISATION AND CORPORATIONS POWER
MAIN TASK IN THIS COURSE: WHEN ARE LAWS VALID
CORPORATIONS POWER SUMMARY
Is the law supported by s 51(xx)?
- A question of whether the law is VALID
- Starting point: work choices. IF U DON’T MENTION WC IN A CORPORATIONS MATTER U LOOSE
MARKS
Assuming the law is valid, does the law APPLY to a particular corporation
- Is the corporation a foreign corporation?
- Is the corporation a trading corporation? Does the corporation engage in substantial trading
activities or have a trading purpose?
- Is the corporation a financial corporation? Does the corporation engage in substantial financial
activities or have a financial purpose?
Corporations power:
S51 Constitution:
-
Where the Cth parliament gets its power from
-
Grant of general lawmaking.
‘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:’
S51(xx) Corporations power
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-
‘Foreign corporations and trading or financial corporations formed within the
limits of the Commonwealth.’
Corporation Case
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171
Rail transit Authority Act (QLD) provided that Queensland Rail is not a body
corporate in s6(2)).
QR had all the characteristics of a corporation
- Separate legal personality
- Ability to have legal rights and duties.
Corporations power = subject matter power = sufficient connection
Leading authority is work choices
New South Wales v Commonwealth (2006) 229 CLR 1
Joint majority judgement with a very clear ratio that gives the scope of the
corporations power.
The sorts of laws that can be made under this power.
Laws regulated all aspects of relationship between corporations and their
employees.
Authority of quote: work choices quoting justice Gordon in Re pacific coal.
Is this a narrow or broad interpretation?
- Broad
o Includes many different scenarios
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Examples of laws ‘with respect to’ constitutional corporations
- A law regulated restrictive trade practices between corporations: Strickland v
Rocla Concrete Pipes Ltd
- A law prohibiting a secondary boycott: Actors and Announcers Equity
Association v Fontana Films Pty Ltd (1982) 150 CLR 169
- A law prohibiting corporations for the purposes of their trading activities from
carrying out excavation …. Commonwealth v Tasmanian (Tasmania Dams
Case) (1983) 158 CLR 1.
Examples of laws OUTSIDE the scope of the corporations power
- A law giving the industrial relations commission power to vary or set aside
unfair contracts ‘relating to the business of a constitutional corporation’ Re
Dingjan; Ex parte Wagner (1995) 183 CLR 323.
o Arguments this isn’t good law as before WorkChoices
o But never has been ruled no longer good law
o Walks the line of the corporations power.
- Williams v Commonwealth (No 2) (2014) 252 CLR 416
o Chaplins in all schools
o A law that does no more than authorise the government to give money
to things.
o Does not alter the positions of corporations in any way. Only alters the
commonwealth, as gives them right to spend money they once didn’t.
- A law providing for the incorporation of trading and financial corporations.
New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR
482
o Foreign corporations, and trading or financial corporations formed
within the limits of the commonwealth.
What is a foreign, trading, or financial corporation?
If we have a valid law, which people have to obey that law?
What corporations does s51(xx) refer to?
- Foreign
o Formed outside the limits of the commonwealth
o Incorporation case
- Trading
o (Adamson’s Case) R v Federal Court of Australia
o Here courts say, trading Corp if its activities tell us, it’s a trading
corporation.
o Purpose was football but did so many trading activities.
o SUBSTANTIAL OR SIGNIFICANT TRADING (State Superannuation
Board of Victoria v Trade Practices Commission (1982) 150 CLR
282; Tasmanian Dam Case, Mason J in Adamson.
- Financial
o Test same as above, but financial activities. Bank, advice, loans.
Subject of interaction is money.
o Receiving a lot of money does not count. Spending money does not
count.
o SUBJECT OF ACTIVITY>
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o State Superannuation Board of Victoria v Trade Practices
Commission (1982) 150 CLR 282
Trading and financial corporations: The Purpose Test
If a corporation has no activities, it will be a trading or financial corporation if it has a
trading or financial purpose. Fencott v Muller (1983)
Purpose test may be relevant as supplement to the activities test (see St George
County Council (1974) 130 CLR 533 and Adamson’s).
Work choices and Williams (No2) and Queensland Rail expressly left the question
open.
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HOW TO ANSWER A CORP POWER QUESTION:
STRUCTURE IS CRITICAL
SAY VALID OR SUPPORTED BY (NOT VALID UNDER!!!!!)
INVALID OR NOT SUPPORTED (NOT INVALID UNDER!!!!!!)
STEP 1. IDENTIFY THE CLIENTS ISSUE AND WHAT PART OF THE
LEGISLATION IS CAUSING THIS.
Examples:
-
______ will be in breach of s___ if the law is valid
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_______ can continue to act in _____ if s__ is invalid.
STEP 2: IS THIS LAW VALID?
-
This law is cth therefore must derive its power from s 51 of the constitution.
-
This law is state level therefore must have plenary power, as long as doesn’t
contradict a cth law.
Heading: POWER
Same process with any head of power:
1. Interpretation of the head of power. – interpret the term in the constitution.
(How has the HC interpreted this HOP)
2. Characterisation (of the legislation) – look at the legislation.
3. Is there a sufficient connection between 1&2. (Head of power and legislation)
What does the corporations power support? Where do we get this from, how do we
know?
-
Work choices, justice Goudron in Re Pacific Coal. Majority of HC adopted this
in work choices
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Now the scope of corporation’s power we use.
-
Make clear authority is work choices and that majority adopted this statement
form justice Goudron in Re Pacific Coal.
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Only provide the part of the quote that is relevant to the legislation we are
looking at
“Under corporations power regulation of ….”
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SUMMARY SENTENCE
-
S__ of the legislation regulates corporate employees, therefore s__ is
supported by the corporations power, work choices
STEP 3 LIMITATIONS:
STEP 4 APPLICATION; DOES THIS LAW APPLY TO OUR CLIENT?
What question do we need to answer?
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Are they a corporation? If yes,
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Are they a CONSTITUTIONAL corporation. (Foreign, trading or financial
corporation.)
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Corporation
-
Acknowledge, don’t spend much time on.
Constitutional Corporation
FORIEGN
Incorporated
(New South Wales v
outside of Australia;
Commonwealth
will get this in the
(Incorporation Case)).
facts
Corporation formed
outside commonwealth
limits.
TRADING CORP
Participate in
R v Federal Court of
State Superannuation
substantial trading
Australia; Ex parte WA
Board of Victoria v Trade
ACTIVITIES or
National Football League
Practices Commission).
have a trading
(Adamson’s Case)
Need not be primary or
PURPOSE.
Look at activities rather
dominant activities of the
(Mention purpose in
than purpose.
corporation but
description but don’t
SIGNIFICANT OR
have to worry about
SUBSTANTIAL.
it if there are
activities.)
FINANCIAL
Does it engage in
State Superannuation
substantial financial
Board of Victoria v Trade
activities of have a
Practices Commission).
financial purpose.
Substantial financial
(Deals with money
activities.
i.e. banks, loans).
Question whether the activity is SUBSTANTIAL
If not: not a trading corp under s51 and therefore s6(1) does not apply to it, although
it is valid law. Can consider other HOP.
If yes: s6(1) applies to them, and they have to stop acting in breach of ___.
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TOPIC 3: EXTERNAL AFFAIRS POWER
s51 ‘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.
Aspects of the External affairs power
1. Relations with other countries. SUBJECT MATTER
2. Geographically external. SUBJECT MATTER
3. Treaty implementation. PURPOSIVE|
These 3, used like mini separate HOP.
They are not connected to each other, look at each individually
Each aspect has own test and authority.
Can look at more than 1 of the aspects.
TEST FOR SUBJECT MATTER: sufficient connection between cth legislation and HOP
TEST FOR PURPOSIVE POWER: proportionality test: is it proportionate to what it does?
Relations with other countries
Example answer it could be supported by the external affairs power, by the relations with other
countries aspect of the external affairs power.
What types of CTH laws will be supported?
HC decided categories:
- Preservation of friendly relations with other countries
- Relations with other “international persons”
- Asserting sovereignty over territorial sea.
- Vetoing agreements with foreign countries made by State/Territory/ local governments,
university
- Preserving the integrity of foreign states.
Geographically external
Laws with respect to any matter, thing or person situated outside Australia
Is geographically external^
Polyukovich v Commonwealth (1991) 172 CLR 501
Tested requirement for sufficient nexus.
Is the nexus required?
- Yes
o Brennan J. dissenting
- No, majority in Poly
o If the states can’t, and cth can’t then there is a gap! Makes no sense for a gap in
parliament, someone needs to make the law. Must be cth.
o Industrial relations case
in XYZ
What ifotheMajority
need for the
law comes from outside Australia?
- Maybe
o Horta
o Minority in XYZ
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-
Pape v Commissioner of Taxation (2009) 238 CLR
TREATY IMPLEMENTATION
When Aus. enters a convention, who does it?
- Commonwealth, the executive.
In Australia we always need to have domestic legislation implementing an international
agreement before that treaty will take any affect into Australia.
Treaty implementation section of the executive power
High court has determined 2 tests to apply
1. Does the treaty enliven the external affairs power
a. Only look at the treaty and what it does, not cth legislation
2. Is the law (cth legislation) appropriate and adapted to implementing the treaty.
a. All about the legislation
This part very structured, each part has its own test.
1. When will a treaty enliven the external affairs power?
- Binding obligation
o Binding obligation in Australia under international law
o Needs to be ratified.
o International agreement needs to IMPOSE obligations.
o Peg case? No actual obligations were imposed.
- Bona fide
o Is entry into the treaty a mere ‘deice to procure for the Commonwealth’ additional
legislative power?
o Can the CTH have the power? Or should this be the states
o Entering a treaty for the purpose of getting a power to legislate in a particular
area they did not have.
o If not bona fide, it will not enliven the external affairs power.
- Sufficiently specific and not merely aspirational
o ‘Reasonable steps’; ‘do all it can’
o Consider the treaty implemented in the Tasmanian dam case.
 Not specific enough to enliven external affairs power, as can be
implemented in contradictory ways.
- International concern?
If the treaty enlivens the power, then…
- Is the law reasonably capable of being considered appropriate and adapted to
implementing the treaty
- Partial implementation.
- Now focusing on legislation
Example: Tasmanian Dam Case
Obligation to preserve world heritage sites.
CTH made the act effectively making Tasmania unable to build the dam.
The CTH law made unable to destroy a world heritage site,
Was seen to enliven the external affairs power, then.
Question was is this CTH law appropriately adducted to implementing the treaty.
Appropriate adduction of the convention
However some parts were not as didn’t protect the world heritage site. Was contradictory.
Ca
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SUMMARY: CHARACTERISATION UNDER S51(XXIX)
- Which aspect is relevant?
o Relations with other countries
 Sufficient connection
o Geographically external
 Sufficient connection
o Treaty implementation
 Does the treaty enliven the power?
 Is the law reasonably appropriate and adapted to implementing the
treaty?
HOW TO ANSWER AN EXTERNAL AFFAIRS POWER QUESTION:
STRUCTURE IS CRITICAL
SAY VALID OR SUPPORTED BY (NOT VALID UNDER!!!!!)
INVALID OR NOT SUPPORTED (NOT INVALID UNDER!!!!!!)
Advise X:
X has been charged under s 1 and 2 of The Act (Cth)
Section 1
Is s 1 Valid?
S1 may be supported by the _____ aspect of s51(xxix)
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Relations with other countries
-
Geographically external
-
Treaty implementation
Interpret s51(xxix)
The external affairs power supports:
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Laws that preserve friendly relations with other countries Sharkey.
Characterisation of s 1 of the Act.
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Applies ….
Sufficient Connection
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Draw similarities/conficts
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Conclude.
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Supported by the ____ aspect of the external affairs power.
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Not Supported by the ____ aspect of the external affairs power.
Can s 5 be read down?
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Limits on Parliaments power to pass s 1
Conclusion
Therefore, s 1 is likely valid/invalid.
If valid, does it apply to Client?
Section 2
Repeat process.
Break sections up like this if there are 2 in the question.
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TOPIC 4: DEFENCE POWER
s51 ‘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:..’
(vi) ‘the naval and military defence of the Commonwealth and the several States,
and the control of the forces to execute and maintain the laws of the Commonwealth.
s68 ‘the command in chief of the naval and military forces of the Commonwealth is
vested in the Governor-General as the Queen’s representative.
s114 ‘A State shall not, without the consent of the Parliament of the Commonwealth,
raise or maintain any naval or military force…
Defence power = purposive power
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Laws must be ‘appropriate and adapted’ to serve a defence purpose
(Polyukovich v Commonwealth).
Approach to characterisation under s51(vi):
1. Does the law have a defence purpose? If yes:
2. Is the law appropriate and adapted. Well suited or does it go too far?
If yes to both, law supported by defence power.
Scope of the power changes depending on the defence threat to Australia.
Airforce?
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Naval and military, these words are not words of limitation Farey v Burvett.
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Textually: explicitly mention of naval means meant to exclude
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Historically: air force not invented yet
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FIRST QUESTION: Does this law have a defence purpose?
Thomas v Mowbray
-
-
Australian friend of Al Qaeda but never explicitly did anything wrong.
Control of order – preventative order.
Can be imposed if the magistrate is satisfied that the order would substantially assist
in preventing a terrorist attack.
Terrorist attack defined “attack causing death. Property damage…harm to computer
systems… motivated by ideological or religious or political reasons… Intended to
intimidate or coheres the government or section of the people.”
Control order is an order that imposes restrictions on a persons liberties. Not
incarceration.
Is preventing a terrorist attack defence?
- Outside a traditional concept of defence.
- Person within Australia trying to overthrow the Australian government?
- Judges all AGREED THIS WOILD BE A DEFENCE CONCERN.
- Gummo and Brennan looked at English history.
- Gleeson referred to 911 as a non-government group.
- How can you make a meaningful distinction between Australian Government and the
Australian People? G G B – form over substance can’t separate government and
people.
- Kirby however, to be a defence matter must be a threat to the body politic not the
people within it. Lifts it above ordinary criminal law.
HC GOING DIFFERENT WAYS: ANSWERING A PROBLEM QUESTION WITH TERRORISM:
- Engage with different views.
-
Primary and Secondary aspects of the defence power
-
Never infamously decided this is how to interpret the defence power.
-
Not expressly adopted, however judgements can eb slotted into the
categorised Thomas v Mowbray
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Accepted in Australian Communist Party v Commonwealth
Primary Aspect
-
Bit of the power that is always the same, doesn’t wax or wain to war or peace.
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-
Laws have defence as ‘their direct and immediate object’ Fullagar J Australian
Communist Party v Commonwealth
-
Gives examples of training for army, ships, weapons to forces, manufacture of
weapons.
-
No need to consider constitutional facts (how big the defence power is? Wide
or narrow). Always the same.
-
Preventing a terrorist attack  within the primary aspect? 3 judges said yes G
G C a defence purpose. Kirby said no.
Secondary aspect
-
Exists when there is a heightened defence threat to Australia.
-
Power is very broad.
-
Can extend to an infinite variety of matters (needs created by the threat).
How broad does the power get when Australia is under the threat of terror?
Characterising a law under the secondary aspect
Ask yourself:
Is the law only connected to defence because the factual
circumstances are such that there is an increased threat giving rise to a
defence need? Australian Communist Party v Commonwealth
o What defence need do the constitutional facts give rise to (War?
Peace? In-between?)
o The extent of the defence need indicated the defence purposes to
which laws may be directed.
Who determines whether there is an increased threat?
o Executive? Access to intelligence.
o Parliament
o Courts?
o No one is perfect.
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Communist Part Dissolution Act 1950 (Cth).
-
Made communism a criminal offence
-
Made the ability for other political parties to be criminal offences.
-
HC not impressed. Parliament cannot recite itself into power. Communist
Party Case A stream cannot rise higher than its source.
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FOR THE COURT TO DETERMINE WHAT THE DEFENCE THREAT IS.
OTHERWISE PARLIAMENT RECITES THEMSELVES INTO POWER.
Communist Party v Commonwealth
How does the court work out whether there is an increased threat?
STEP TWO: is this law appropriate and adapted to the defence purpose?
-
Example Thomas v Mowbray
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Yes – restrictions limited to what was reasonably necessary, and reasonably
appropriate and adapted, for the purpose of protecting the public from a
terrorist act.
Summary: Applying the defence power
1. Does the law have a defence purpose?
-
Is defence the ‘direct and immediate object’ of the law (primary aspect).
-
Is the law only connected to defence because the factual circumstances are
such that there is an increased threat giving rise to a defence need?
(Secondary aspect).
o USE CONSTITUTIONAL FACTS TO WORK OUT THE DEFENCE
NEED.
2. If there is a defence purpose; the law reasonably appropriate and adapted
to that purpose.
HOW TO ANSWER A DEFENCE POWER QUESTION:
STRUCTURE IS CRITICAL
SAY VALID OR SUPPORTED BY (NOT VALID UNDER!!!!!)
INVALID OR NOT SUPPORTED (NOT INVALID UNDER!!!!!!)
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TOPIC 5: FISCAL FEDERALISM
DOES THE LAW BREACH ANY CONSITIUTIONAL LIMIT?
s51 ‘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.
Commonwealth taxation power : taxes that discriminate between States or parts of
States
State taxation power: Customs an excise.
States have plenary power – so can make taxation laws
s90 of the Constitution
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.
State and Commonwealth financial relations
s96
During a period of 10 years after the establishment of the Commonwealth and
thereafter until the Parliament otherwise provides, the Parliament may grant
financial assistance to any State on such terms and conditions as the
Parliament thinks fit.
Uniform Tax Cases.
SA v Cth (First Uniform Tax Case) (1942)
Victoria v Cth (Second Uniform Tax Case) (1957)
Commonwealth laws:
-
Set high levels of income tax, s51(ii)
-
Gave large amounts of money to States that did NOT collect income tax.
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Commonwealth and State taxes in practice:
CTH
STATE
Income Tax
Stamp duty
Xompany tax
Gambling tax
Goods & services tax
Land tax
Customs & (other) excise
Payroll tax
Other ad hoc taxes – e.g. ESL
s96
During a period of 10 years after the establishment of the Commonwealth and
thereafter until the Parliament otherwise provides, the Parliament may grant
financial assistance to any State on such terms and conditions as the
Parliament thinks fit.
o Tied Grants
o Untied grants
o GST
Vertical fiscal imbalance: good or bad?
-
Efficiency
-
Central government control of economy
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Accountability
-
Richer States subsidise the poorer States
-
s96 – expansion of Commonwealth policy areas.
s90
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.
What is an excise?
-
Tax
-
Upon goods
-
Not a licence fee for the right to carry on a business.
-
At any point before it reaches the consumer (not confirmed in Ha)
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Parton v Milk Board, adopted by the majority in Ha v NSW
FIRST ELEMENT OF EXCISE: A TAX
-
What Is a tax?
-
Positive attributes
-
Negative attributes
-
Authorities on the concept of ‘tax’ in s51(ii) can be used.
SECOND ELEMENT OF EXCISE: UPON GOODS
Goods
Not Goods
-
Transport
-
Services
-
Property
-
People
-
Activities
Relationship to goods
Matthews v Chicory Marketing
Tax on chicory based on acres of chicory planted (not necessarily
produced).
Need not be a DIRECT relationship to quantity value of goods.
THIRD ELEMENT OF EXCISE: NOT A LICENCE FEE
Ha v NSW: A licence fee has ‘no closer connection with production or distribution
that that is exacted for the privilege of engaging in the process at all’
Licence fee or tax on goods?
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The Denis Hotels formula:
Ha v NSW
Established the modern approach to the definition of EXCISE
Cast doubt on earlier cases applying Dennis Hotels formula
Earlier cases applying Dennis Hotels may still be precedent for their facts
but not their reasoning
Licence fee or tax on goods?
Relevant factors from Ha v NSW
-
PROXIMITY OF RELEVANT PERIOD TO THE LICENCE PERIOD: if the
period used is very proximate to the licensing period, it is likely that it is being
used to provide a reliable forecast of the transactions that will occur in the
actual licensing period. More likely to be an excise.
-
LENGTH OF RELEVANT PERIOD: shorter, frequent periods more likely to
represent the actual period. More likely to be an excise.
-
SIZE AND BASIS OF THE FEE:
o Ad valorem (variable) more likely to be excise duties than flat fees
o Size of fee may indicate it’s not a genuine licensing fee
o Once of taxes (levied once in chain of production) more likely to be
excise duties.
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-
REGULATORY MECHANISMS THAT ALSO EXIST – is it a genuine attempt
to regulate the industry
-
WHETHER THE FEE IS FOR REVENUE RAISING PURPOSES –
overarching criteria.
Summary table license fee or tax on goods?
Scenario
Excise
Close proximity between licensing period
YES
and period used
Short, frequent period
YES
Ad Valorem
YES
Large fee
NO?
Once off
YES
FOURTH ELEMENT OF EXCISE: PRIOR TO CONSUMPTION
Dickenson’s Arcade v Tasmania
-
Narrow majority held consumption tax is not an excise
Ha v NSW
-
Left the question open
Vanderstock
-
Raises the question.
EXCISE SUMMARY
1. Is the charge a tax?
-
Positive attributes
-
Negative attributes
2. Is the charge ‘on goods’?
-
Close relation with goods: Matthews
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3. OR is the charge a genuine licence fee?
-
Ha multifactorial approach
4. Is the charge levied at a point prior to consumption?
-
Query whether this is part of the test.
HOW TO ANSWER A FISCAL FEDERALISM QUESTION:
STRUCTURE IS CRITICAL
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TOPIC 6: FREEDOM OF INTERSTATE TRADE, COMMERCE AND
INTERCOURSE
s92
On the imposition of uniform duties of customs, trade, commerce and intercourse
among the States, whether by means of internal carriage or ocean navigation, shall
be absolutely free.
Palmer v WA
Kiefel CJ, Keane J at [62]
s92 precluded a law which burdens interstate trade commerce or intercourse,
where the law discriminates against interstate trade, commerce or intercourse
and the burden cannot be justified as proportionate to the non-discriminatory,
legitimate purpose of the law which is sought to be achieved.
Summary of the test:
-
Does the law burden interstate trade, Commerce or intercourse.
-
Does the law have a legitimate purpose (a purpose other than burdening
interstate trade ….)
-
Is the burden proportionate to the legitimate purpose.
o Is the burden reasonably necessary to achieve the purpose?
Freedom of interstate trade and commerce
s92
[T]rade [and] commerce … among the states shall be absolutely free.
What is trade and commerce?
-
W&A McArthur v Queensland
o Not a term of art
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o Includes the ‘mutual communing’s, the negotiations verbal and by
correspondence, the bargain, the transport and the delivery.
When is trade and commerce absolutely free
Problems with interpretation of s92
-
What does ‘absolutely free’ mean?
-
Does it confer individual rights on interstate traders?
-
Or is it aimed at trade in general
-
How to reconcile s92 with s51(i) (power to make laws with respect to trade
and commerce with other countries., and among the States).
-
If some regulation of interstate trade and commerce is allowed… how much>
-
What is the purpose of s92?
Cole v Whitfield
Section 92 prohibits discriminatory burdens of a protectionist kind on interstate
trade.
WATCH VIDEO
Free trade v Protectionism
Protectionism in the Australian Constitution
-
Decisions about whether Australia adopts free trade or protectionist policies in
relation to other counties are left up to parliament. s 90.
27
-
s92 creates an absence of protectionism as between the States – ‘a free trade
area’: Cole v Whitfield
Discriminatory Burderns
-
s92 prohibits discriminatory burderns of a protectionist kind on interstate
trade.
-
Discrimination may appear on the face of the law, or in the operation of the
law (e.g. Castlemaine Tooheys).
-
A discriminatory brden puts interstate trade at a competitive disadvantage
compared to local trade: Betfair (No 1) and Castlemaine Tooheys.
-
A burden is ‘discriminatory’ in this sense if it treats an interstate trade
differently to intrastate (local) trade in the same market (sustainability:
Betfair (No 1))
-
Look at the common circumstances of interstate trade. The question isn’t
whether the individual interstate trader has been burdened (because of their
business model etc.), but whether interstate trade has been burdened
because of the common circumstances of the trade (Betfair (No 1))
The regulatory exemption
-
Prohibits discriminatory burdens of a protectionist kind on interstate trade
-
When will a burden be ‘protectionist’
-
When the law does not fall within the regulatory exemption.
Current statement of regulatory exemption
Betfair (No 1) and Betfair (No 2)
-
Is the burden on interstate trade reasonably necessary for the State to
achieve a legitimate non-protectionist purpose?
Reasonably necessary test:
-
Is the burden on interstate trade reasonably necessary for the State to
achieve a legitimate non-protectionist purpose?
o Does the law have a legitimate non-protectionist purpose? What is it?
o Does the law achieve that purpose?
28
o Is there a less burdensome way of achieving the legitimate purpose?
What is it?
Summary: freedom of interstate trade and commerce
A law will infringe s92 if it imposes a discriminatory burden of a protectionist kind on
interstate trade
1. Does the law place a discriminatory burden on interstate trade?
2. If yes, the law will be protectionist unless it is reasonably necessary for the
State to achieve a legitimate non-protectionist purpose (‘regulatory
exemption’)

A) Is there a non-protectionist purpose?

B) Does the law achieve this purpose?

C) Are there less burdensome means of fulfilling the purpose?
Freedom of interstate intercourse
s92
On the imposition of uniform duties of customs, trade, commerce and intercourse
among the States, whether by means of internal carriage or ocean navigation, shall
be absolutely free.
s92
…[I]ntercourse among the States…shall be absolutely free.
What is intercourse among the States?
-
The movement of people, the transport of goods, the transmission of
communications, the passage of signals of any kind and any other means by
which ‘interchange, converse and dealing between States in the affairs of life’
are carries on across State boundaries…’ Nationwide News v Wills
29
Palmer v WA
What if a law affects BOTH interstate intercourse and interstate trade and
commerce?
-
Apply the same test to both (Palmer v WA)
Summary of the test:
-
Does the law burden interstate trade, Commerce or intercourse.
-
Does the law have a legitimate purpose (a purpose other than burdening
interstate trade ….)
-
Is the burden proportionate to the legitimate purpose.
o Is the burden reasonably necessary to achieve the purpose?
-
Does the law burden interstate intercourse
-
Does the law have a legitimate purpose (a purpose other than burdening
interstate intercourse)
-
Is the burden proportionate to the legitimate purpose.
o Is the burden reasonably necessary to achieve the purpose?
Is the burden proportionate to the legitimate purpose?
-
Is the burden reasonably necessary to achieve the purpose? Betfair (No 1)
-
Palmer v WA
-
Use structures proportionality test:
o Is the law suitable to achieve the legitimate purpose?
o Is the law necessary to achieve the legitimate purpose?
o Is the law adequate in its balance?
Summary: intercourse limb of s92
1. Does the law burden interstate intercourse?
2. Does the law have a legitimate purpose (i.e. a purpose other than burdening
interstate intercourse)? What is it?
3. Is the burden proportionate to the legitimate purpose?
30
o Is the law suitable to achieve the legitimate purpose?
o Is the law necessary to achieve the legitimate purpose?
o Is the law adequate in its balance?
OVERALL SUMMARY
31
TOPIC 7: INTERGOVERMENTAL IMMUNITIES
WATCH 3 VIDEOS ON THE MODEULE
Preliminary Concepts
The Crown, Immunity of the Crown, Relationship between the Commonwealth
and the States.
The ‘Crown’
Palmer v WA
Number of meanings:
-
Represents the body politic
-
Representative of the State in international relations
-
The Government
-
Paramount powers of the UK.
The Crown as signifying the government
-
The monarch
-
Governors and Governors-General
-
State and Cth Executive Governments (Ministers, departments, public
servants)
-
Government agencies and instrumentalities (e.g. the Defence Housing
Authority).
Immunity of the Crown
-
“The King can do no wrong”
Can you sue the Crown?
Immunity from suit:
o Commonwealth Crown:

Abolished by s56 of the Judiciary Act 1903 (Cth).
o Crown of SA:

Abolished by s5 of the Crown Proceedings Act 1992 (SA)
32
Do statutes bind the Crown?
-
Previously, Crown presumed not to be bound by statute unless by:
o Express words (Bradken Consolidation v Broken Hill)
o Implication “manifest from the very terms of the statute” and the
“purpose of the statute being otherwise wholly frustrated” (Province of
Bombay v Municipal Council)
-
Bropho v Western Australia
o Mason CJ, Deane, Toohey, Gaudron and McHugh: Legislative
intention the key. Strength of presumption depends on circumstances,
including content and purpose of provision and identity of entity to
which it purports to apply.
The position in SA**(** not replicated in Cth legislation).
Section 22 Legislation Interpretation Act 2021 (SA)
(1) … an Act passed, or a legislative instrument mde, after 20 June 1990 will,
unless the contrary intention appears (either expressly or by implication), be
taken to bind the Crown, but not so as to impose any criminal liability on the
Crown.
(6) For the purposes of this section –
(a) a reference to the Crown extends not only to the Crown in right of this
State but also (so far as the legislative power of the State permits) to the
Crown in any other capacity;
(b) a reference to an agent of the Crown extends to an instrumentality officer
or employee of the Crown or a contractor or other person who carries out
functions on behalf of the Crown.
Relationship between the Commonwealth and the States
-
“The foundation of the Constitution is the conception of a central government
and a number of State governments separately organized. The Constitution
predicates their continued existence as independent entities.’
(Melbourne Corporation v Commonwealth).
33
Provisions of the Constitution preserving the States and powers of the States.
Chapter 5:
-

s106 – saving State constitutions

s107 – saving of power of State parliaments

s108 – saving of State laws
“The foundation of the Constitution is the conception of a central government
and a number of State governments separately organised. The Constitution
predicated their continued existence as independent entities.’
(Melbourne Corporation v Commonwealth).
Immunities doctrine prior to 1920
-
Commonwealth laws did not apply to State governments.
-
State laws did not apply to the Commonwealth Government.
After the Engineers Case
-
Immunity of States from Commonwealth laws – Melbourne Corporation v
Commonwealth
-
Immunity of Commonwealth from State laws – Cigamatic, Spence
How can you tell whether an immunity issue has arisen?
State immunity from Cth laws
1. Is there a Commonwealth law applying to part of a State government?
2. Does the Commonwealth law bind the Crown in right of the State?
Cth immunity from State laws
1. Is there a State law applying to a part of the Commonwealth government?
2. Does the State law bind the Crown in right of the Commonwealth?
Remember the law must ‘bind the Crown’ for an immunities issue to arise
-
Presumption that legislation does not bind the Crown can be rebutted by
express statement or implication
-
Commons statement in legislation – “ This Act binds the Crown in right of the
States and the Commonwealth.”
34
-
Bropho v Western Australia
o The presumption is weak and overturned by contrary legislative
intention
-
Legislation Interpretation Act 2021 (SA) s22
o An act passed, or a legislative instrument made, after June 20, 1990,
sill ... be taken to bind the Crown, but not so as to impose any criminal
liability on the Crown.
The Melbourne Corporation principle: State community from Commonwealth
laws.
Rationale:
Immunity is based on the vulnerability of the States in the federation given the
Commonwealth has superior legislative power.
35
Melbourne Corporation v Commonwealth
Dixon J at 82-3:
‘The foundation of the Constitution is the conception of a central government and a number of
State governments separately organized. The Constitution predicates their continued
existence as independent entities.’
States’ protection from the Commonwealth arises “not from the character of the powers
retained by the States but from their position as separate governments … exercising
independent functions.”’
(**Note: Immunity is based on the vulnerability of the States in the federation given the
Commonwealth has superior legislative power)
Dixon J at 97:
Commonwealth cannot make “… a law which discriminates against States, or a law which
places a particular disability or burden upon an operation or activity of a State, and more
especially upon the execution of its constitutional powers
Legislation required States and their authorities to bank with the Commonwealth bank.
Section 6 of the Banking Act 1945 (Cth):
Subject to this Act, a person other than a body corporate shall not, at any time after the
expiration of six months from the commencement of this Part, carry on any banking
business in Australia.
Section 48
Except with the consent in writing of the Treasurer, a bank shall not conduct any
banking business for a State or for any authority of a State, including a local
government authority.
Dixon J at 97:
Commonwealth cannot make “… a law which discriminates against States, or a law which
places a particular disability or burden upon an operation or activity of a State, and more
especially upon the execution of its constitutional powers.”
36
The Crown for the purposes of the Melbourne Corporation doctrine
-
Mason J in Queensland Electricity Commission v Commonwealth(1985) 1
‘The object of the implied prohibition is to protect the State in the exercise of
its functions … whether the functions are discharged by the executive
government or by an authority brought into existence by the State to carry out
public functions even if the authority acts independently and is not subject to
government direction and even if its assets and income are not property of the
State.’
Reformulation of the principle: 2 limbs.
Tasmanian Dam’s Case (1983) Mason J:
“… the Commonwealth cannot … enact a law which discriminates against or “singles
out” a State or imposes some special burden or disability upon a State or inhibits or
impairs the continued existence of a State or its capacity to function.”
At 139: “[Must be] a substantial interference with the State’s capacity to govern, an
interference which will threaten or endanger the continued functioning of the State as
an essential constituent element in the federal system.”
Current formulation of the principle only 1 limb:
Austin v Cth (2003) - Gaudron, Gummow and Hayne JJ at 249
One limitation:
•
‘The question presented by the doctrine in any given case requires
assessment of the impact of particular laws by such criteria as “special
burden” and “curtailment” of “capacity” of the States to “function as
governments”’
– Discrimination – an illustration of a law which impairs the capacity of
the State to function
– Gleeson CJ and Kirby J agreed that there was no separate
‘discrimination’ limb
37
Victoria v Commonwealth (Payroll Tax)
-
2.5% payroll tax
-
Exemption for some employers, including private schools
o Tax laws in themselves do not attract immunity
-
2.5% too insignificant to prevent the States from discharging
their functions as governments.
Tasmanian Dam Case
Tasmanian Dam’s Case (1983) 158 CLR 1
•
Cth legislation prevented construction works and other activities
that would affect areas designated as of World Heritage
significance.
•
11% of Tasmania affected.
Argument that this impaired its capacity to function dismissed.
•
Deane J (280):
– No operative interference with the legislative or executive
powers of Tasmania in respect of that land.
– No ‘discriminatory attack’ (affects all enterprises – public and
private- equally)
•
Brennan J (214-5)
– Commonwealth measures diminish the powers of the
Tasmanian executive government, but they do not impede
the processes by which its powers are exercised.
38
Re Australian Education Union
•
Generally speaking, Commonwealth can regulate the terms and conditions of
employment for State employees. BUT there are certain employment matters
“critical to a State’s capacity to function as a government”:
– number and identity of those whom it employs and term of appointment
– number and identity of those whom it dismisses on redundancy grounds
– Probably promotion and transfer (not necessary to decide)
•
In relation to those who it wishes to employ at higher levels, States must have
power to set the terms and conditions of their employment.
“Higher levels of government” include Ministers, ministerial assistants and
advisors, heads of departments, high level statutory officers, parliamentary officers
and judges.
SUMMARY: STATE IMMUNITY FROM COMMONWEALTH LAWS
1. Does the fact situation involve the application of a Commonwealth law to a
part of a State government?
– Yes – go to Q2
– No – there is no immunities issue
2. Does the Commonwealth law bind the Crown in right of the State?
– Yes – go to Q3
– No – there is no immunities issue (but explain why)
3. Does the Commonwealth law curtail the capacity of the State to function as a
government?
– Yes – the law is invalid (or can it be read down so as not to apply to the
States?)
– No – the law does not infringe the State immunity from Commonwealth
laws
39
The Cigamatic doctrine: Commonwealth immunity from State laws.
Early case: Pirrie v McFarlane (1925)
•
Air-Craftsman Thomas McFarlane – ordered to drive a vehicle. Charged under
Motor Car Act 1915 (Vic) with not having a licence.
•
Majority: When the Commonwealth (or its employees) enter into the State’s
territory, it will be subject to State laws
– Dissent (Isaacs and Rich JJ): State cannot regulate Commonwealth
officers in the performance of their duties
Historical Development
•
Uther’s Case (1947) 74 CLR 508 – Dixon J in dissent
•
Commonwealth v Cigamatic (In Liq)
(1962) 108 CLR 372 – majority adopt Dixon J
•
State law regulated the priority of debts in the winding up of a company –
bound the Crown and expressly ruled out any priority of debts for the
Commonwealth
Uther’s Case
•
Majority: Commonwealth does not need an immunity from State laws
•
Dixon J (dissenting): Where do the States get the power to regulate the
Commonwealth?
Dixon J: At 530:
‘The Colony of NSW could not be said at the establishment of the Commonwealth to
have any power at all with reference to the Commonwealth. Like the goddess of
wisdom the Commonwealth [in one strike] sprang from the brain of its begetters armed
and of full stature. At the same instant the Colonies became States: but whence did
the States obtain the power to regulate the legal relations of this new polity with its
subjects? It formed no part of the colonial power. The Federal constitution does not
give it.’
40
Dixon J:
Uther’s Case: Dixon J in dissent
•
State has no power to legislate as to the rights of the Cth
•
General laws made by a State may affix legal consequences to transactions
in which the Cth is involved.
Cigamatic: Dixon CJ in majority
•
Priority of debts is a ‘fiscal right of the government’.
– “It is not a question of the authority of the power of a State to make
some general law governing the rights and duties of those who enter
into some description of transaction, such as the sale of goods, and of
the Commonwealth in its executive arm choosing to enter into a
transaction of that description.”
•
State could not affect privileges of the Commonwealth, or the rights and
duties between the Commonwealth and its people
The basis for Commonwealth immunity from State laws in Cigamatic:
-
Superiority of the Commonwealth
-
States have no capacity to bind the Commonwealth
When will a law infringe the Cigamatic principle?
-
When it modifies the capacities of the Commonwealth.
-
Capacities = rights, powers, privileges and immunities
-
Eg a law removing the Commonwealth’s priority in debt (Cigamatic)
When will a law NOT infringe the Cigamatic principle?
•
When it merely regulates activities in which the Commonwealth may choose
to engage in the exercise of its capacities.
•
Eg State legislation about the form of contracts
•
Eg residential tenancies legislation (Henderson’s Case)
41
Spence v Qld
Queensland and South Australia argued that
‘[t]he operation of s 109 of the Constitution to give supremacy to a Commonwealth law
over a State law, […] means that there is no need for the operations of the government
of the Commonwealth to be impliedly protected from interference by or under any
State law. The functioning of federal government […] can always be protected by
Commonwealth legislation […].
Kiefel CJ, Bell, Gageler, Keane
JJ at [102]
‘[T]he Commonwealth and the States reciprocally have the benefit of the structural
implication recognised in the Melbourne Corporation Case. The reciprocal application
of that structural implication has been, and should remain, constitutional doctrine.’
Kiefel CJ, Bell, Gageler, Keane JJ at [107]
‘[A]pplication of the doctrine requires consideration of whether an impugned State law
is directed at the Commonwealth so as to impose some special disability or burden on
the exercise of powers and fulfilment of functions of the Commonwealth which curtails
the capacity of the Commonwealth to function as a government.’
Kiefel CJ, Bell, Gageler, Keane JJ at [108]
SUMMARY: COMMONWEALTH IMUNITY FROM STATE LAWS
1. Does the fact situation involve the application of a State law to a part of a
Commonwealth government?
– Yes – go to Q2
– No – there is no immunities issue
2. Does the State law bind the Crown in right of the Commonwealth?
– Yes – go to Q3
– No – there is no immunities issue (but explain why)
42
3. Does the State law modify the capacities of the Commonwealth Government
(or does it merely regulate activities in which the Commonwealth may choose
to engage in the exercise of those capacities)?
Does State law curtail the capacity of the Cth to function as a government?
– Yes – the law is invalid (or can it be read down so as not to apply to the
Commonwealth?)
– No – the law does not infringe the Commonwealth immunity from State
laws
TOPIC 8: INCONSISTENCY
s109:
When a law of a State is inconsistent with a law of the Commonwealth, the latter
shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
s109 and the rule of law:
Croome v Tasmania
•
Tasmanian legislation: prohibited sex between men
•
Commonwealth legislation:
– Sexual conduct involving only consenting adults acting in private is not
to be subject, by or under any law of the Commonwealth, a State or a
Territory, to any arbitrary interference with privacy.
Gaudron, Gummow and McHugh JJ at 138:
The policy of the law which animates the operation of the Australian legal system
includes the encouragement, and indeed the requirement, of observance of the law.
… The Constitution may deny to the law in question … validity as an operative part
of the legal order. … Where it is established … that s 109 [denies the validity of a
State law], there is met by the Constitution a call of great importance to the ordinary
citizen. Such a person is … ‘entitled to know’ whether there continues a requirement
to observe that State law.
43
Elements of s109
1. Valid State and Commonwealth laws
2. Inconsistency
3. Invalid ‘to the extent of inconsistency’
Invalid to the extent of the inconsistency
-
-
State laws “invalid”
•
Not ultra vires but inoperative
•
‘Revival
Operational inconsistency
•
Occurs when a particular application of a Commonwealth law is
inconsistent with a particular application of a State law
•
Example:
•
State law: the State government may run events in the Moot
Court
•
Commonwealth law: the Commonwealth may run events in the
Moot Court.
•
If the State and Commonwealth governments wasn’t to run an
event at the same time, there is an inconsistency, and the
Commonwealth law prevails.
•
In all other situations there is no inconsistency.
Tests of inconsistency
Elements of s109
1. Valid State and Commonwealth laws
2. Inconsistency
3. Invalid ‘to the extent of inconsistency’
Three tests of inconsistencey
1. Impossible to obey both laws (direct)
2. Conflict of rights, privileges or entitlements (direct)
3. Covering the field (indirect)
44
•
The core concept is inconsistency; the tests do not replace the constitutional
text.
•
There will be inconsistency for the purposes of s 109 if there is inconsistency
under any of the tests.
•
There may be inconsistency under more than one of the tests.
Impossible to obey both laws
•
Cth law: ‘You must not do X’
•
State law: ‘You must do X’
Eg R v Brisbane Licensing Court
•
Cth law: There shall be no State referendum on the day of a federal election.
•
State law: There shall be a State referendum on the day of the federal
election.
Conflict of rights, privileges or entitlements
•
Cth law: ‘You may do X’
•
State law: ‘You must not do X’
•
‘[O]ne statute is inconsistent with another when it takes away a right conferred
by that other…’ (Knox CJ and Gavan Duffy J in Clyde Engineering v Cowburn
•
When a State law, if valid, would alter, impair or detract from the operation
of a law of the Commonwealth Parliament, then to that extent it is invalid.’
(Dixon J, The Kakariki)
45
Clyde Engineering v Cowburn
Conciliation and Arbitration Act 1904 (Cth)
•
Award provided that workers should be paid a fixed wage for working 48 hours
Any worker who worked less than 48 hours ‘should lose his pay for the actual time of
non-attendance
44 Hours Week Act (NSW)
•
Section 6(1)(a) – a worker’s ordinary working hours should not exceed 44
hours
•
Section 13 – any worker covered by a federal award fixing a longer working
week should be paid the full award wages for working 44 hours
Covering the Field
Isaacs J in Clyde Engineering Co Ltd v Cowburn
If … a competent legislature expressly or impliedly evinces its intention to cover the
whole field, that is a conclusive test of inconsistency where another legislature
assumes to enter to any extent upon the same field...
Dixon J in Ex parte McLean (1930)
[Inconsistency] depends upon the intention of the paramount Legislature to express
by its enactment, completely, exhaustively, or exclusively, what shall be the law
governing the particular conduct or matter to which its attention is directed. When a
Federal statute discloses such intention, it is inconsistent with it for the law of a State
to govern the same conduct or matter.
Steps (Clyde Engineering v Cowburn)
•
What is the field of the Commonwealth law?
•
Does the State law operate in the same field as the Commonwealth law?
•
Is the Commonwealth law intended to be exclusive within its field?
All about Statutory interpretation.
-
Example: same sex marriage case. Is same-sex marriage in the same field as
‘marriage’ as defined in the Commonwealth legislation.
46
-
Same Sex Marriage Case (2013)
• Commonwealth law: ‘marriage’ means ‘the union of a man and a woman
to the exclusion of all others, voluntarily entered into for life’.
• ACT law: ‘marriage’ means ‘the union of two people of the same sex to
the exclusion of all others, voluntarily entered into for life’.
• *** Inconsistency rule: s 28 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) (not s 109)
What is the State and Commonwealth create the same rule of conduct?
Is the Commonwealth law intended to be exclusive within its field?
Dixon J in Ex parte McLean
If it appeared that the Federal law was intended to be supplementary to or
cumulative upon State law, then no inconsistency would be exhibited … The
inconsistency does not lie in the mere coexistence of two laws which are
susceptible of simultaneous obedience. It depends upon the intention of the
paramount Legislature to express by its enactment, completely,
exhaustively, or exclusively, what shall be the law governing the particular
conduct or matter to which its attention is directed.
Express statements of intention: manufacturing inconsistency
•
Eg ‘This Act is intended to apply to the exclusion of all laws of a State or
Territory’
•
This is permissible as long as the Commonwealth law is valid.
•
Doubtful that a bare attempt to exclude State power (eg ‘The States must not
make laws with respect to corporations’) would be valid.
Express statements of intention: manufacturing consistency (‘GMAC clauses’)
•
Eg ‘This Act is not intended to exclude or limit the concurrent operation of any
law of a State or Territory’
•
Cannot overcome direct inconsistency (GMAC Case (1977)
47
Implied intention: an example: Same Sex Marriage Case (2013) 250 CLR 441
•
Commonwealth law: ‘marriage’ means ‘the union of a man and a woman to
the exclusion of all others, voluntarily entered into for life’.
•
ACT law: ‘marriage’ means ‘the union of 2 people of the same sex to the
exclusion of all others, voluntarily entered into for life’.
No implied intention: an example: Commercial Radio Coffs Harbour v Fuller (1986)
161 CLR 47
•
Broadcasting licence issued to CRCH under Broadcasting and Television Act
1942 (Cth) required two 170m-high antennae.
•
Local residents sought an environmental impact statement under
Environmental Planning and Assessment Act 1979 (NSW)
SUMMARY S109
If your client does not want to comply with a State law:
•
Is the State law valid?
•
If so, is there a Commonwealth law with which it may be inconsistent? (Is the
Commonwealth law valid?)
•
Is there an inconsistency?
– Impossible to obey both laws?
– Inconsistent rights, privileges or entitlements?
– Covering the field?
• What is the field of the Commonwealth law?
• Does the State law operate in the same field?
• Is the Commonwealth law intended to cover the same field?
•
If there is an inconsistency, the State law is invalid to the extent of the
inconsistency.
48
TOPIC 9: IMPLIED FREEDOM OF POLITICAL COMMUNICATION
Historical Background
-
The drafting of the Australian Constitution and the protection of rights
-
Few express rights
-
Inclusion of the 14th amendment considered and rejected
-
English constitutional tradition
Faith in Parliament
Sir Owen Dixon, speech to the American Bar Association (1942):
‘The framers of the Australian Constitution were not prepared to place fetters
upon legislative action, except an in so far as it might be necessary for the
purpose of distributing between the States and the central Government the full
content of legislative power. . . . It may surprise you to learn that in Australia
one view held that these checks on legislative action were undemocratic,
because to adopt them argued a want of confidence in the will of the people.
Why, asked the Australian democrats, should doubt be thrown on the wisdom
and safety of entrusting to the chosen representatives of the people sitting
either in the federal Parliament or in the State Parliaments all legislative
power, substantially without fetter or restriction?’
Motivations of the framers
George Williams, Human Rights under the Australian Constitution (1999):
‘The orthodox reasons given for the absence of a Bill of Rights in the
Australian Constitution ignore the real motivations of the drafters. The
prevailing sentiment of the framers was that the Constitution should not
incorporate rights-orientated provisions. This was not due to a belief that
rights across the community were generally well protected. While it was
certain that the rights and interests of the framers themselves would be
protected under the new federal system, they sought to establish the means
by which the rights of other sections of the community could be abrogated. In
this respect the framers were driven by a desire to maintain race-based
distinctions, which today would undoubtedly be regarded as racism.’
49
Rights Protection in Australia
•
Australian exceptionalism
•
Few express rights
•
Limitations on power vs personal rights
Implied Constitutional Rights and Freedoms
•
What are implied rights?
•
Contrast First amendment to the US Constitution:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
•
The freedom of political communication in Australia is implied in the
Constitution.
Other Constitutional Implications
•
Federalism – implied doctrine of intergovernmental immunities
•
Separation of Powers – Kable principle, persona designata doctrine
Implied Constitutional Rights and Freedoms
•
1970s: implications by Murphy J
•
1992: implied freedom of political communication (ACTV and Nationwide
News)
•
Why do you think the derivation of implied rights has generated so much
controversy?
•
Methodology:
– Text and Structure of Constitution
– Necessary for the effective operation of some
power/institution/principle in the Constitution
Basis of the Implied Freedom
Lange v ABC (1997): Representative and responsible government as required by
the text and structure of the Constitution
•
The Constitution provides for representative government: see ss 7, 24, 1, 8,
13, 25, 28, 30.
50
•
Also provides for responsible government: ss 6, 49, 61, 62, 64, 83.
Key Dates in the Development of implied Freedom
•
1992: Nationwide News v Wills and Australian Capital Television v
Commonwealth
•
1997: Lange v Australian Broadcasting Corporation: HC unanimously agreed
two-step test for determining if implied right had been contravened.
•
2004: Coleman v Power: modified the Lange test.
•
2015: McCloy v NSW: modified Lange test to include structured
proportionality testing
Early implied freedom Cases
Nationwide News v Wills
The question was over the validity of a provision of the Industrial Relations Act
1988 (Cth) which made it an offence to use words calculated to bring a
member of the Commission into disrepute. The defenses which were ordinarily
available to persons charged with contempt or accused of defamation (eg ‘fair
comment’ or ‘honest and reasonable mistake of fact’) were not available under
the Act.
ACTV v Commonwealth (1992)
The Political Broadcasts and Political Disclosures Act 1991 (Cth) imposed a
blanket prohibition on political advertisements on radio or TV during federal
election period. Free air time was to be provided, at least 90% of which was
allocated to political parties currently in parliament. News & current affairs etc
items were not affected. ACTV claimed the relevant legislation was invalid.
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Threshold Question: What is Political Communication
Theophanous v Herald Weekly Times ltd
Andrew Theophanous MP commenced proceedings for defamation over the
publication of an article which questioned his judgment and conduct. Among the
defences raised was the claim that the freedom extended to the publication of material
relating to the performance/suitability of MPs.
The High Court split 4:3
The publication fell within the concept of political discussion
‘Political discussion includes discussion of the conduct, policies, fitness for office of
government, political parties, public bodies, public officers and those seeking public
office. The concept also includes discussion of the political views and public conduct of
persons who are engaged in activities that have become the subject of political
debate…’ (Mason CJ, Toohey and Gaudron JJ)
What is Political Communication
Levy v Victoria
The ‘communication’ in question was Levy’s activities in entering land designated for
duck-hunting as a means of protest.
The regulations under which Levy was charged were held valid as they were for the
maintenance of public safety, but the HC also confirmed that Levy’s actions were
‘political communication’.
Both verbal and non-verbal communication is protected
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Colemann v Power
•
Patrick Coleman was protesting against police corruption in Townsville. He distributed
pamphlets in a mall containing allegations of corruption against particular police officers.
When Power arrived at the scene and demanded a pamphlet, Coleman said loudly ‘This
is Constable Brendan Power, a corrupt police officer’.
•
In the Magistrates Court of Queensland, Coleman was convicted under s 7(1)(d) of the
Vagrants, Gaming and Other Offences Act 1931 (Qld) by using ‘threatening, abusive, or
insulting words’ in a public place.
•
Is communication about state police officers within the scope of the freedom?
•
Is the use of ‘insulting words’ political communication?
McHugh J:
•
“The conduct of State police officers is relevant to the system of representative and
responsible government set up by the Constitution. State police officers are involved in
the administration and enforcement of federal as well as State criminal law. …”
•
“Insults are as much a part of communications concerning political and government
matters as is irony, humour or acerbic criticism. Many of the both biting and offensive
political insults are as witty as they are insulting.”
The evolution of the test for Implied Freedom
Foundation cases:
Nationwide News and ACTV (1992)
• The doctrine of representative government underlies the Constitution
(implemented by ss 1, 7, 24, 61, 64).
• Freedom of communication about politics and public affairs is indispensable to
representative government.
Controversy following the foundation cases
- Theophanous v Herald & Weekly Times Ltd (1994)
- Stephens v West Australian Newspapers (1994)
- Cunliffe v Cth (1994)
- McGinty v WA (1996)
-
53
Lange v Australian Banking Corporation
David Lange, a member of the NZ Parliament and a former PM, brought an action for
defamation against the ABC alleging that he had been defamed by a TV show. He alleged that
the program insinuated that he was guilty of abuse of public office and was unfit to hold public
office.
In defence, the ABC sought to rely on Theophanous, arguing that the broadcast was protected
by the implied freedom. In reply, Lange argued that Theophanous was wrongly decided.
The High Court held unanimously that there is a constitutionally protected freedom of
political and governmental communication, which is an implication derived from the
words in ss 7 and 24 of the Constitution, ‘directly chosen by the people’.
Representative and responsible government as required by the text and structure of the
Constitution
– Representative government: see ss 7, 24, 1, 8, 13, 25, 28, 30.
– Responsible government: ss 6, 49, 61, 62, 64, 83.
‘Freedom of communication on matters of government and politics is an indispensable incident
of that system of representative government which the Constitution creates by directing that the
members of the house of Representatives shall be “directly chosen by the people” of the
Commonwealth and the States, respectively.’
“Communications concerning political or government matters between the electors and the
elected representatives, between the electors and the candidates for election and between the
electors themselves were central to the system of representative government, as it was
understood at federation. While the system of representative government for which
the Constitution provides does not expressly mention freedom of communication, it can hardly
be doubted, given the history of representative government and the holding of elections under
that system in Australia prior to federation, that the elections for which the Constitution provides
were intended to be free elections…”
54
Nature of the Implied Freedom
- Limit on State, Territory and Commonwealth legislative and executive power
- Influence on the common law – eg on the law of defamation in Lange
- The freedom is not absolute. It only operates as a restriction on legislative
power and, as such, does not confer a general right of free speech on
individuals.
THE LANGE TEST
the Court confirmed a 2-stage test in order to assess whether the implied freedom
has been infringed:
1. Does the law ‘effectively burden freedom of communication about
government or political matters either in its terms, operation or effect’?
2. Second, if the law effectively burdens that freedom, is the law
reasonably appropriate and adapted to serve a legitimate end in a
manner which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible
government and the procedure prescribed by s 128 for submitting a
proposed amendment of the Constitution to the informed decision of
the people?
(this is the modified version from Coleman v Power (2004))
1st Limb: What is an “effective burden”
Monis v R (2013)
• Man Haron Monis sent a number of letters to parents and relatives of
Australian soldiers killed on active duty.
• In these letters, he was critical of the involvement of Australian military
forces in Afghanistan and reflected upon the part played in it by the
deceased soldiers in a derogatory and insulting way.
• He was charged with twelve counts of using a postal service in a way
that reasonable persons would regard as being offensive, contrary to s
471.12 of the Criminal Code (Cth).
Did the provision effectively burden political communication in operation or
effect?
Monis v R (2013)
• Respondents had argued that there was no ‘effective burden’ on the freedom
because the Code only placed a ‘little’ burden on the freedom
• Court rejected this approach. The question of ‘burden’ is not a quantitative or
qualitative one:
‘The expression ‘effectively burden’ means nothing more complicated than that the
effect of the law is to prohibit, or put some limitation on, the making or the content of
political communications.’ (Hayne J)
• The relevant inquiry is into the effect of the impugned law on the freedom, not
into whether the law has in fact placed a burden in the particular instance of
the case before the court (though this may help in the general determination).
55
Legitimate Purpose
• What “ends” will be considered constitutionally legitimate?
• Need to be “compatible with the maintenance of the constitutionally
prescribed system of representative government”
• Examples from cases
Monis v The Queen (2013)
• s 471.12 of the Criminal Code (Cth)
Unions v New South Wales (2013)
• Electoral, Funding, Expenditure and Disclosures Act 1981 (NSW)
2nd Limb: Relevant Factors (“Unstructured Approach”)
Is the law reasonably appropriate and adapted to serve a legitimate end in a
manner which is compatible with the maintenance of the system of
government prescribed by the Constitution?
• Direct burdens v incidental burdens
• Laws targeting ideas v laws targeting modes of communication
• Nature, degree and breadth of the burden
• Less drastic means of achieving the same aim?
Uncertainty in years following lange…
• What is the role of alternatives? If less burdensome means are available, is
that decisive?
• To what extent do the two Lange questions involve the application of
proportionality testing? Structured proportionality test or loose evaluation?
• Is the importance of the legislative purpose relevant?
• Does the test involve the courts in political value judgments?
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McClowy v NSW
•
Jeff McCloy, a property developer, challenged provisions of the Election Funding,
Expenditure and Disclosures Act 1981 (NSW) which imposed a cap on political donations and
prohibited the making of political donations by property developers.
•
The High Court unanimously upheld Div 2A (which imposed a cap on political donations),
while Div 4A (which made it unlawful for property developers to make political donations) was
upheld by a majority of six judges (Nettle J dissenting).
2nd Limb of LANGE refined
1. Does the law effectively burden the freedom in its terms, operation or effect?
2. If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible
with the maintenance of the constitutionally prescribed system of representative and
responsible government? [compatibility testing]
3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that
legitimate object in a manner that is compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government? [proportionality testing
Proportionality testing:
» suitable — as having a rational connection to the purpose of the provision;
» necessary — in the sense that there is no obvious and compelling alternative,
reasonably practicable means of achieving the same purpose which has a less
restrictive effect on the freedom;
» adequate in its balance — a criterion requiring a value judgment, consistently
with the limits of the judicial function, describing the balance between the
importance of the purpose served by the restrictive measure and the extent of
the restriction it imposes on the freedom.
Structued v Unstruchered Porportionality:
• Only 4 justices in McCloy in support of structured proportionality testing: “slim majority”
• Continued dissent from Gageler J and Gordon J (prefer previous “reasonably appropriate and
adapted” test)
• Some refinements (eg Brown v Tasmania)
• Changes to composition of Court
• Has it replaced Lange? What’s changed?
57
LANGE/ MCCLOY TEST
1. Does the law effectively burden the freedom in its terms, operation or effect?
2. Is the purpose of the law legitimate, in the sense that it is compatible with the
maintenance of the constitutionally prescribed system of representative and
responsible government?
3. Is the law reasonably appropriate and adapted to its legitimate object in a
manner that is compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government?
a. Is the law suitable to achieve its purpose?
b. Is the law necessary to achieve its purpose?
c. Is the law adequate in its balance?
Recent Cases (application of new test)
• Unions NSW v NSW (2019)
• Spence v Qld (2019)
• Comcare v Banerji (2019)
LibertyWorks Inc v Commonwealth of Australia (2021)
Spence v QLD
•
•
•
•
Caps on electoral spending
Electoral Act (Qld) and Electoral Funding Act 2018
Spence: upheld the law
Unions (no 2): invalidated
Electoral Act 1992 (Qld) , Pt 11, Div 8, Subdiv 4
•
Substantially replicates the relevant division of Election Funding, Expenditure and
Disclosures Act 1981 (NSW), which was considered in McCloy v NSW
HCA held the Qld law did not infringe t
Unions NSW v NSW
he implied freedom
58
Concare v Banerji
Public Service Act 1999 (Cth), ss10(1), 13(11) and 15(1)
Australian Public Service (APS) Code of Conduct:
APS employees must ‘at all times behave in a way that upholds the APS Values and the
integrity and good reputation of the APS’.
APS Values included
‘the APS is apolitical, performing its functions in an impartial and professional manner’.
Departmental/APS guidelines
•
cautioned against unofficial public comment
•
‘rule of thumb’: anyone posting material online should assume that their identity and
employment would be revealed
LibertyWorks inc v Commonwealth
Foreign Influence Transparency Scheme Act 2018
In a 5:2 ruling, the High Court found the law did place a burden on the implied freedom, but
that it was justified.
59
Brown v Tasmania
Workplaces (Protection from Protesters) Act 2014 (Tas)
•
Authorised police, and forestry officers, to exclude people from forestry areas if necessary
for reasons of safety or forestry operations
•
Note: the validity of this legislation was not questioned
Section 4(2) defines ‘protest activity’ as an activity that –
(a) takes place on business premises or a business access area in relation to business
premises; and
(b) is –
(i)
in furtherance of; or
(ii)
for the purposes of promoting awareness of or support for –
an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue.
•
‘Protester’ = person engaging in a protest activity
Business premises’ defined to include forestry land
‘Business access area’ means so much of an area of land that is outside business premises, as is
reasonably necessary to enable access to an entrance to, or to an exit from, the business premises.
Section 6: Protesters must not:
•
enter business premises or
•
do an act on business premises or on a business access area
if it prevents, hinders or obstructs a business activity.
Also, protesters must not prevent, hinder or obstruct access by a business occupier to business
premises.
But you only commit an offence if you contravene a requirement, in a direction issued under s 11,
that you must not contravene s 6.
Section 11:
•
A police officer may direct a person to leave business premises, or a business access area,
if the police officer reasonably believes that the person has committed, is committing, or is
about to commit, an offence against this Act or a contravention of s 6.
•
A direction may include a requirement that the person must not, for 3 months, commit an
offence against this Act or a contravention of s 6.
•
A direction can be issued to a group of persons, in which case the direction is
taken to be issued to each person who is a member of a group and who ought
reasonably to have heard the direction.
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Brown continud. \\
Section 8(1)
A person must not –
(a) remain on a business access area after having been directed by a police
officer under s 11 to leave the business access area; or
(b) enter a business access area in relation to business premises within 4 days
after having been directed by a police officer under s 11 to leave the business
premises or a business access area in relation to the business premises.
Structured proportionality in Brown
Kiefel CJ, Bell, Keane and Nettle JJ applied the structured proportionality test from
McCloy
Gageler and Gordon JJ did not – structured proportionality is just a tool of analysis,
not appropriate in all cases.
Edelman J: not necessary to consider
STEP 1: Does the law effectively burden the freedom in its terms, operation or
effect?
• Kiefel CJ, Bell, Keane, Gageler, Nettle and Gordon JJ: Yes
• Edelman J: No
STEP 2: Is the purpose of the law legitimate, in the sense that it is compatible with
the maintenance of the constitutionally prescribed system of representative and
responsible government?
• Kiefel CJ, Bell and Keane JJ: purpose = ‘protection of businesses and their
operations, here forest operations, from damage and disruption from
protesters who are engaged in particular kinds of protests’
• Note Gageler J: if the purpose of the legislation had been ‘to prevent on-site
protests’, this would not be a legitimate purpose
STEP 3: Is the law reasonably appropriate and adapted to its legitimate object in a
manner that is compatible with the maintenance of the constitutionally prescribed
system of representative and responsible government?
61
Three stages:
1. Is the law suitable to achieve its purpose?
2. Is the law necessary to achieve its purpose?
3. Is the law adequate in its balance?
STEP 3 Part 1: Sustainability
• Kiefel CJ, Bell and Keane JJ: Yes – except
– Extension of a s 11 direction to a group of people (s 11(7) and (8))
– Four-day ban on returning to business premises/access area for any
purpose (s 8(1)(b))
• Nettle J: Yes, for all provisions
STEP 3 Part 2: Necessity
Is the law necessary to achieve its purpose? Are there alternative, reasonably
practicable, means of achieving the same object but which have a less restrictive
effect on the freedom?
• Kiefel CJ, Bell and Keane JJ: No, not necessary
Alternative means? Yes – the Forestry Management Act
2013 (Tas)
• Therefore all impugned provisions were invalid
• Nettle J – Not satisfied there were obvious and compelling alternatives
STEP 3 Part 3: Balancing
Is the law adequate in its balance?
• Kiefel CJ, Bell and Keane JJ – not necessary to decide
• Nettle J:
– Sections 6 and 8(1)(a): yes
– Sections 8(1)(b) and 11: no
– Invalid sections could not be severed, therefore all provisions invalid
Gagler J
• Agreed all impugned provisions were invalid
• Direct, substantial and discriminatory burden on political communication
• Underinclusive in terms of achieving the purpose
• Bans on returning (under s 8 and under a s 11 direction) were arbitrary and
capricious
• Section 11 directions could be based on an erroneous, but reasonable, belief
CLUBB V EDWARDS; PRESTON V AVERY
Part 9A of the Public Health and Wellbeing Act 2008 (Vic)
"Safe access to premises at which abortions are provided".
The purpose of Pt 9A is set out in s 185A, which provides:
"The purpose of this Part is –
(a) to provide for safe access zones around premises at which abortions are
provided so as to protect the safety and wellbeing and respect the privacy and
dignity of –
(i)people accessing the services provided at those premises; and
62
(ii)employees and other persons who need to access those premises in the course of
their duties and responsibilities; and
(b)to prohibit publication and distribution of certain recordings."
CLUBB V EDWARDS
Section 185C
Principles that apply to Pt 9A:
(a) the public is entitled to access health services, including abortions;
(b) the public, employees and other persons who need to access
premises at which abortions are provided in the course of
their duties and responsibilities should be able to enter and leave such
premises without interference and in a manner which –
(i)
protects the person's safety and wellbeing; and
(ii)
respects the person's privacy and dignity."
Section 185D
A person must not engage in prohibited behaviour within a safe access zone.
Penalty: 120 penalty units or imprisonment for a term not exceeding 12 months.
Section 185B(1)
[S]afe access zone is defined to mean "an area within a radius of 150 metres from
premises at which abortions are provided".
Prohibited behaviour is defined in s 185B(1) to include:
(a) in relation to a person accessing, attempting to access, or leaving premises at
which abortions are provided, besetting, harassing, intimidating, interfering
with, threatening, hindering, obstructing or impeding that person by any
means; or
(b) communicating by any means in relation to abortions in a manner that is able
to be seen or heard by a person accessing, attempting to access, or leaving
premises at which abortions are provided and is reasonably likely to cause
distress or anxiety".
(c) interfering with or impeding a footpath, road or vehicle, without reasonable
excuse, in relation to premises at which abortions are provided; or
(d) [recording without consent]
THRESHOLD ISSUE: WAS POLITICAL COMMUNICATION INVOLVED?
Kiefel CJ, Bell, Keane JJ at [31]
“the communication effected by the handing over of the pamphlet by Mrs Clubb
lacked any evident connection with the electoral choices to be made by the people of
the Commonwealth. It was designed to persuade a recipient against having an
abortion as a matter for the individual being addressed. It was not addressed to law
or policy makers, nor did it encourage the recipient to vote against abortion or to take
part in any public debate about the issue. It may therefore be accepted that the
proscription of this communication did not involve an interference with the implied
freedom.”
63
Step 1:
Kiefel CJ, Bell, Keane JJ at [43]
• Even though it is not expressly targeted at communications concerning
governmental and political matters, it may apply to such communications. On
that basis, it must be accepted that the prohibition burdens the implied
freedom.
Nettle J at [252]
• A woman's decision whether or not to abort her pregnancy is not a political
decision. It is an apolitical, personal decision informed by medical
considerations, personal circumstances and personal religious and ethical
beliefs, qualitatively different from a political decision as to whether abortion
law should be amended.
• [But accepts that the exclusion of all communication in exclusion zone
includes exclusion of political communication.]
Step 2:
• Purpose: suppression of anti-abortion views or protection of staff and clients
of abortion clinics?
• Pt 9A states the purpose is ‘the protection of the safety and wellbeing of, and
the preservation of the privacy and dignity of, persons accessing lawful
medical services, as well as staff and others accessing the premises in the
course of their duties.’
• Kiefel CJ, Bell and Keane JJ: preservation and protection of the privacy and
dignity of women accessing abortion services
“the protection of the dignity of the people of the
Commonwealth, whose political sovereignty is the basis of the implied freedom, is a
purpose readily seen to be compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government.” (at [51])
Is the purpose legitimate?
Kiefel CJ, Bell, Keane JJ conclude at [60]:
The purposes of the communication prohibition do not impede the functioning of the
constitutionally prescribed system of representative and responsible government. To
the extent that the purposes include protection against attempts to prevent the
exercise of healthcare choices available under laws made by the Parliament,
those purposes are readily seen to be compatible with the functioning of the system
of representative and responsible government. Further, a law that prevents
interference with the privacy and dignity of members of the people of the
Commonwealth through co-optation as part of a political message is consistent with
the political sovereignty of the people of the Commonwealth and the implied freedom
which supports it.
Step 3: three stages
1. Is the law suitable to achieve its purpose?
Small impact on political communication
Only excluded in safe access zones
Note at [83] – there was a rational connection between the purpose of
the law and choosing 150m. [Note the Court seems to place reliance
on the fact that the Parliament made some effort to work out the
appropriate distance]
64
Conclusion at [84]-[85]
2. Is the law necessary to achieve its purpose?
[86] – has made it easier to engage the police to ‘reduce the
deterrent effect of anti-abortion activities near premises where
abortions are provided’
But was there a way to achieve protective purpose that had a less
burdensome affect on political communication than an exclusion zone?
Instead of exclusion, only ‘vocal or violent protests’?
Court - silent vigil can have just as strong a deterrent effect on
woman accessing services. OK for Parliament to make this judgment.
Without exclusion zone - Problem of enforcement only possible
after harassment etc has already occurred.
3. Is the law adequate in its balance?
Kiefel CJ, Bell, Keane at [102]
The burden on the implied freedom is limited spatially and is confined to
communications about abortions. There is no restriction at all on political
communications outside of safe access zones. There is no discrimination
between pro-abortion and anti-abortion communications. The purpose of the
prohibition justifies a limitation on the exercise of free expression within that
limited area. And the justification of the prohibition draws support from the
very constitutional values that underpin the implied freedom.
FARM TRANSPARENCY INTERNATIONAL V NSW
Surveillance Devices Act 2007 (NSW)
ss 11 and 12 in their operation with s 8
High Court split 4:3
Majority held the provisions did not impermissibly infringe the implied freedom)
Section 8
A person must not knowingly install, use or maintain an optical surveillance device
on or within premises … to record visually or observe the carrying on of any activity if
the installation, use or maintenance involves –
(a) entry onto or into the premises … without the express or implied consent of the
owner or occupier
Section 11
Prohibition on communication or publication of private conversations or
recordings of activities
1) A person must not publish, or communicate to any person, a private
conversation or a record of the carrying on of an activity, or a report of a
private conversation or carrying on of an activity, that has come to the
person’s knowledge as a direct or indirect result of the use of a listening
device, an optical surveillance device or a tracking device in contravention of
a provision of this Part.
12 Possession of record of private conversation or activity
65
1) A person must not possess a record of a private conversation or the carrying
on of an activity knowing that it has been obtained, directly or indirectly, by the
use of a listening device, optical surveillance device or tracking device in
contravention of this Part.
STEP 1:
• Any burden on the freedom must be justified
• Kiefel CJ and Keane J at [28]: Defendant properly concedes that in their
operation, ss 11 and 12 may burden the implied freedom
• Communications about activities carried out on premises may be political in
nature
• ss 11 and 12, as engaged by s 8, are not directed to the content of what is
published; they are ”relevantly directed to records of activities which are
obtained by unlawful means using optical surveillance devices”
STEP 2:
• Section 8: protects the interest in privacy which arises out of the enjoyment of
private property
• It adopts the policy of the common law and furthers the protections afforded
by the law of trespass to prohibit optical surveillance
• ss 11 and 12 are intended to limit damage to those interests causes by the
publication of material obtained in contravention of s 8. They do not impede
the functioning of representative and responsible government
STEP 3:
Stage 1: Is the law suitable to achieve its purpose?
[35]: No dispute that the measures in ss 11 and 12 are rationally connected to the
purposes they seek to achieve
Stage 2: Is the law necessary to achieve its purpose?
• Plaintiffs relied on legislative regimes from other jurisdictions
• Kiefel CJ and Keane J: other statutory regimes pursued a different privacy
purpose; contained a public interest exception (not obvious and compelling
alternatives)
• At [46]: “The mere existence of another measure capable of achieving the
same purpose will not be sufficient for a conclusion of lack of justification. The
other measure must be equally practicable. To be equally practicable as the
impugned provision, the alternative must achieve the same legislative
purpose to the same degree, which is to say it must be possible to conclude
that the alternative legislative measure is equally as effective.”
Stage 3: Adequate in its balance?
Kiefel CJ and Keane J at [55]-[56]
• protection of privacy - its importance is “obvious”
• Burden on freedom “cannot be said to be great”
• Law = adequate in balance
66
PREVIOUS EXAM ANSWERS
Thank you to the authors of these answers for their permission to share their work. Please
remember these are not perfect answers; they are examples of outstanding work by students
in this course under exam conditions.
Example 1
Lisa
Lisa has been charged under s 26 of the Equal Treatment Act 2019 (SA) (‘the SA Act’) and will be
seeking to avoid having to comply with this.
Is the SA Act valid?
The states have plenary power under s 5 of the Constitution Act 1934 (SA) which was saved by ss
106-7 of the Commonwealth Constitution and therefore have power to make this law.
Is the law subject to limits?
However, the SA Act may be subject to constitutional limits, of s 92 and the implied freedom of
political communication (‘Implied freedom’).
Section 92
A law will infringe s 92 if it places a greater burden than is reasonably necessary on interstate
intercourse. the burden here is direct as it stops people who have been charged under s 26 of the
State act from travelling to other states for 12 months. In ANS v AIF the law was indirectly burdening
certain individuals however they were still able travel. This law places a heavier restriction on
intercourse and therefore is burdening interstate intercourse. The purpose of s 26(2) of the SA Act
appears to penalize individuals who have been convicted of a racial offence, which is arguably
plausible. The impediment to interstate intercourse however, may be greater than is reasonably
required to achieve the object of the law. It may be found that a $10000 fine is sufficient
punishment, or other forms of penalty may be adequate rather than prohibiting interstate travel.
the law could instead limit interstate travel only for the purposes of holidaying, which would still
allow people travel for work. It could also contrarily prohibit international travel for holidaying for a
period of time. Or there could have been another penalty that was not in relation to travel at all.
Consequently, it is likely that the impediment to interstate intercourse greater than reasonably
required to achieve the object of the law. This would render s 26(2) of the SA Act invalid due to
infringement of s 92 intercourse limb. S 26(2) may be severed from the legislation and allow for s
26(1) to withstand. In the case, that this was not found it may be necessary to consider other limits
that Lisa may seek to avoid compliance with the SA Act
Implied Freedom of Political Communication
The SA Act may be held invalid under the implied freedom as freedom of communication ‘is an
indispensable incident’ to representative government (Majority in Lange).
Does the law effectively burden the freedom in its terms, operation or effect?
67
S 26 of the SA Act prohibits specific communication, that is likely to offend or insult and that relates
to race, ethnicity etc. As such burdening the freedom to communicate those particular ideas or
subjects rather than modes of communication, as the law in ACTV did. S 26 therefore, does place a
burden.
Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the
constitutionally prescribed system of representative government?
The purpose of the SA Act appears to be reducing and deterring people from engaging in racist and
prejudiced public statements, which are going to ‘offend, insult, humiliate or intimidate’ others. This
protection of people from exposure to racism and humiliation is legitimate and extremely plausible.
The purpose and the means will be legitimate if they do not impede on the functioning of the
constitutionally prescribed position of representative government (McCloy). Although it seems that
the means of creating a prohibition are legitimate they may still be incompatible with the
maintenance of representative government.
Is the law reasonably appropriate and adapted to its legitimate object in a manner that is compatible
with the maintenance of the constitutionally prescribed system of representative and responsible
government?
Suitability
The law has a rational connection and is closely calibrated to achieving its purpose. Consequently,
the SA Act is likely suitable to achieving its purpose.
Necessity
To achieve a purpose of limiting racism and the public expression of racist beliefs there are not
obvious and compelling alternative and reasonably practicable means available that will achieve the
same purpose. Potentially funding for more education on racism may lower racism itself however to
actually prevent individuals from offensive, insulting, humiliating or intimidating racial remarks is
difficult to achieve without direct prohibitions. Hence the law is likely necessary to achieving its
particular purpose.
Adequacy in its balance
This inquiry ‘requires the court to compare the positive effects of realising the laws proper purpose
with the negative effect of the limits on constitutional rights or freedoms' (McCloy).
The importance of s 26 of the SA Act is arguably extremely important and the burden that it places
on political communication, though it may be significant is justified. The law does not ban all political
communication or all discussion of race. Rather it just prohibits racial statements that are reasonably
likely to offend, insult, humiliate or intimidate. Consequently, it is likely that the law is adequate in
its balance.
Therefore, it is likely that the SA Act is reasonably appropriate and adapted to its legitimate object,
that it is compatible with the maintenance of representative government. Thus, the SA Act is not
infringing on the implied freedom.
Section 109
For Lisa’s purposes, it is necessary to consider whether the SA Act is inconsistent with the Anti-Racial
Discrimination Act 2017 (Cth) (‘the Cth Act’) therefore, breaching s 109 of the Constitution.
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Is the Cth law valid?
External affairs power
To be valid, the Cth Act must be supported by a head of power under s 51 of the Constitution. The
law may be supported by s 51(xxix) - external affairs if the treaty implementation aspect is enlivened
(Burgess).
The ICARD has been ratified by Australia and creates binding obligations under international law
(Pape).
Further, the treaty has been widely ratified by 180 countries and consequently is likely bona fide
(Gibbs J in Koowarta). The treaty must be sufficiently specific and not merely aspirational (Industrial
Relations Act Case). Article 2 of ICARD provides that parties shall take steps to end by all appropriate
means racial discrimination. Although there may be different modes of implementation, the treaty
explicitly suggests legislative means, with an extent of vagueness permitted, per Dane J in Tasmanian
Dams, ICARD is likely to be sufficiently specific. Therefore, the treaty is likely to enliven the treaty
implementation aspect of the external affairs power.
The Act must be reasonably capable of being considered appropriate and adapted to implementing
the Treaty (Victoria v Commonwealth). The purpose of the treaty appears to be ending racial
discrimination. The Cth Act uses terms explicitly stated in article 1 of ICARD and effectively does
attempt to combat racial discrimination by making it an offence to treat people adversely based on
race. Unlike in Tasmanian Dams the Cth law appears to implement the exact intentions of the treaty
without vast and excessive prohibitions (Deane J). Consequently, the Cth act is likely appropriate and
adapted to implementing ICARD. Therefore, the Cth Act is support by the external affairs power
ensuring the Cth parliament have power to make this law.
Is the Cth Act subject to limits?
Implied freedom
It is necessary to consider whether similar to the SA Act, the Cth act places a burden on the Implied
freedom. S 3 of the Cth act is very similar to s 26 of the SA Act, however the Cth Act prohibits the
treatment of a person adversely based on race, ethnicity etc. unlike s 26 of the SA Act that prohibits
public statements relating to race or ethnicity that insult people. As such, if s 26 of the SA Act which
is more related to political communication, does not infringe the implied freedom it is not likely that
s 3 of the Cth act would. This argument is weaker. Therefore, it is likely that the Cth Act is not
infringing upon any constitutional limits and is therefore valid.
S 109
Returning to the s 109 issue, it is now necessary to consider whether the SA act is inconsistent with
the Cth Act. Section 109 of the Constitution provides that when a State law is inconsistent with a
Commonwealth law, the state law will be inoperative (not invalid) to the extent of the inconsistency.
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The inconsistency here is not obvious as both laws purport to do similar objects, however
essentially, the SA Act creates a slightly more specific and onerous prohibition especially per s 26(2).
it is worth noting that it is not impossible to obey both laws, as individuals can simply refrain from
treating people adversely based on race, and also refrain from public offensive statements to others
about race. The Cth Act does not appear to grant anything nice to people, so the most relevant
assessment may be made under the covering the field test (Clyde).
Covering the field
It is necessary to consider whether the Cth intended to cover the field (Isaacs J in Clyde). There is
some evidence though not express that the Cth intends to cover the field of racial discriminatory
treatment of others laws by enacting the Cth legislation, as was found in the Same Sex Marriage
case. S 2 of the Cth act provides that the ‘the Act binds the Crown in right of the States and
Commonwealth’ which is a factor indicating an intention for the legislation to have comprehensive
operation and an intention by the Cth to cover the field (Viskauskas v Niland). Further, where there
is a treaty supporting the legislation, it has been held that because the treaty was implemented by
the Cth parliament, there is suggestion that the law should apply nationally, because it is the subject
matter of a treaty per Viskaukas v Niland. The Cth law does not appear to be acting in supplement of
other State laws, as the Cth was in Commercial Radio Coffs Harbour. Therefore, it may be that the
Cth intended to cover the field and be exclusive. If this is the case, then encroachment onto this field
by SA parliament. Per Issacs J in Clyde, inconsistency can still be found even where the two laws
prohibit the same conduct, if the Cth has evinced the intention to be the exclusive law in its field.
However, it may be argued that the SA Act is operating on public expression of racial discrimination
rather than just general adverse treatment of people due to race. Similarly, to Coffs Harbour, the
two laws may be despite on the same topic operating on slightly different fields. Although, it is
arguable either way per Viskauskas v Niland, it is more likely that the Cth has covered the field and
SA parliament has entered into a field creating inconsistency. This is favourable to Lisa as the SA Act
will inoperative to the extent of the inconsistency with the Cth Act per s 109 of the Constitution.
Does the law apply to Lisa?
If the SA Act is inoperative per s 109 then s 26 will not apply to Lisa. In the case that the SA Act is not
inconsistent with the Cth law and is operative, the SA act will apply to her. Lisa has engaged in racial
slurs to another person. It may be inferred that such conduct would be reasonably likely to insult,
offend, humiliate or intimidate. Consequently, it is likely that Lisa will be subject to comply with s
26(1) of the SA Act, however is likely to avoid compliance with s 26(2) on the grounds of
infringement of s 92 of the Constitution.
Example 2
Lisa
Lisa has been convicted of an offence under s 26 of the Equal Treatment Act 2019 (SA)
(“ETA”) for making offensive statements including racial slurs to audience members during
her public speaking engagements.
Lisa’s conviction will be enforced only if the s 26 of the ETA is valid.
Is s 26 ETA valid?
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Power to pass the law
The ETA is a South Australian Act and is supported by the South Australia’s plenary power
(Constitution Act 1934 (SA) s 5; Australian Constitution ss 106-7).
Constitutional Limits?
The s26 of the ETA may be subject to certain constitutional limits. Namely, the implied
freedom of political communication (ACTV, Nationwide News). This is as s26 prohibits
making certain statements in public.
The Implied Freedom
While Lisa specifies her right to free speech has been violated, the implied freedom is limited
to what is necessary to the effective working of the constitutions systems of representative
and responsible government. Thus, as explained by Deane J in Theophanous, the Implied
Freedom is not an ‘in personam’: personal right, therefore, it precludes the curtailment of
legislative power, but it does not protect Lisa’s personal right to speak.
The Lange/McCloy test
Pursuant to Lange & McCloy it must be determined whether s26 of the ETA goes beyond this
proscribed limit.
A burden on the implied freedom?
The first step in applying the test is to ask whether s26(1) ETA’s prohibition burdens the
implied freedom. To answer that question, it is necessary to consider the terms, legal
operation and practical effect of the statute (Lange, Clubb Kiefel Bell Keane JJ).
The ETA s26(1) makes certain statements in public unlawful if they are reasonably likely to
offend, insult, humiliate or intimidate another person (s26(1)a), and the statement relates to
the race, colour or national or ethnic origin of the other person. This places a direct burden on
the implied freedom which will have a ‘real effect’ by preventing various types of
communication between people (Tajjour v NSW).
Compatibility testing
For the purposes of the second step of the test, a purpose is compatible with the maintenance
of the constitutionally prescribed system of representative and responsible government, and
therefore legitimate, if it does not impede the functioning of that system (Lange, Clubb Kiefel
Bell Keane JJ).
The ETA s26(1) has a legitimate purpose being to prevent persons in SA from being
subjected to offence, humiliation, insult or intimidation by other persons through statements
which are related to their race and ethnicity. This purpose could be deemed legitimate in the
sense it promotes public safety by stopping certain statements being made in public which
could be of a provocative offensive nature (Lange and Wotton).
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The prohibition on making statements which are likely to offend, however, is similar to
Coleman where it was deemed that ensuring civility of discourse is not likely to be a
legitimate purpose. In that case the law placed an unqualified prohibition on the use of
insulting words to any person anywhere pubic place and it was not justified as compatible
with the system of representative government.
The ETA s26(1) may be distinguished however as it makes a qualification in s26(1)b which
limits the insulting nature to be relevant only to statements relating to race and ethnicity. This
narrows the scope.
Arguably the purpose to prevent persons in SA from being subjected to offence, humiliation,
insult or intimidation by other persons through statements which are related to their race and
ethnicity is legitimate as it goes to protecting the dignity of the people of the Commonwealth
in Australia (Clubb) which is committed to the inclusion of all races and ethnicities in our
multicultural society.
Proportionality Analysis
To determine whether the law is reasonably appropriate and adapted to its object, this
according to McCloy, breaks down into three sub-steps.
1) Is the law suitable to achieve its purpose?
S26 of the ETA is suitable to achieve its purpose of preventing people from being subjected
to statements by other persons in public which offend, humiliation, insult or intimidate them
due to their race and ethnicity.
There is a rational connection (Unions NSW v NSW & McCloy) between s26 purpose and
making these statements unlawful and the penalising conduct which is so offensive.
By making it unlawful it is likely that persons will not encounter such offence and
humiliation in public.
2) Is the law necessary to achieve its purpose?
It may be considered whether there is an ‘obvious and compelling alternative, which is a
reasonably practicable means of achieving the same purpose which has a less restrictive
effect on the freedom.’ (McCloy).
The ETA s26 could limit the scope of s26(1) only to racial statements which are likely to
cause them anxiety and mental distress like Clubb. This would burden the implied freedom
less by allowing some forms of statements and communications about race and ethnicity
towards others. This is especially considering that ‘insult’ is such a subjective term and thus it
may be hard for persons to consider what will insult someone when communicating
statements. By limiting the application to those racial statements causing some form of
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distress to another person more communication would be permitted burdening the freedom
less.
This, however, deviates from the overarching purpose which is evidently aimed to a broader
range of statements relating to offending someone by nature of their race and ethnicity in
public. This is confirmed by the name of the act which is deemed to regard ‘equal treatment’
of persons. Equal treatment implies more than merely conduct causing distress. Moreover,
the McCloy test requires a close match between the impugned law and the proposed
alternative.
Thus, it does not seem there are any obvious other alternatives which achieve the same
purpose that the ETA proposes.
3) Is the law adequate in its balance?
In Clubb, Kiefel, Bell, and Keane JJ usefully explained that if an impugned law's purpose is
compatible with the constitutionally prescribed system of representative and responsible
government, the law will nevertheless be invalid if it pursues that purpose by means that have
the effect of impermissibly burdening the implied freedom.” [96]
Here the main purpose of s26 of the ETA is preventing people from being subjected to
statements by other persons in public which offend, humiliation, insult or intimidate them due
to their race and ethnicity.
This is to be weighed against the burden on the implied freedom of political communication.
The burden on the implied freedom is ‘direct’ in the sense that it prevents the communication
of ideas regarding certain racial statements likely to offend, as opposed to only a certain
mode of communications for example (Mason CJ in ACTV). The fact the ETA targets ideas is
a harder burden to justify (ACTV). Moreover, direct burdens like that imposed by s26 of the
ETA are harder to justify (Brown).
The McCloy test requires a consideration of the nature and extent of the burden (Clubb Kiefel
Bell Keane [75]).
Here the ETA s26(1) is a prohibition on such statements with no exceptions (Street Preachers
Case). This is significantly difficult to justify considering the subjective nature of criteria
deemed to be insulting or offensive statements prohibited by s26(1) and the heavy fine and
penalties applicable. For example, s26(1) provides no form of defence for a charge under this
section. The breadth of the prohibition is evidently wide (Monis).
The joint judgment in McCloy explained this is ‘a criterion requiring a value judgment,
consistently with the limits of the judicial function, describing the balance between the
importance of the purpose served by the restrictive measure and the extent of the restriction it
imposes on the freedom’ (Joint judgment in McCloy).
Looking to the purpose, it does seem to be important in order to promote the dignity of
persons in the Australian society from being subject to racial insult or humiliation (Clubb).
Overall, however, s26 places a direct and extensive burden on public communication which
is heavily restrictive on the implied freedom even despite the importance of its purpose to
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prevent people from being subjected to statements by other persons in public which offend,
humiliation, insult or intimidate them due to their race and ethnicity.
Overall, it is unlikely that s26 of the ETA is adequate in balance like McCloy. While the law's
purpose is compatible with the constitutionally prescribed system of representative and
responsible government, the law pursues the purpose by means that have the effect of
impermissibly burdening the implied freedom.
Advice
This limitation on s26 of the ETA is positive news for Lisa as it means s26 is arguably
invalid. As the burden on the freedom is arguable, any other possible constitutional
limitations will be explored on Lisa’s behalf.
Other possible constitutional limits?
S26(2) of the ETA may be limited by the s 92 of the Constitution which dictates, ‘intercourse
... among the States ... shall be absolutely free.’ This is as s26(2) requires that a person
convicted under s26(1) of the ETA must not leave South Australia for a period of 12 months
beginning on the date of the conviction.
Interstate Intercourse
An inquiry regarding the intercourse limb of s92 is not the same as that for trade and
commerce outlined in Cole, rather is largely derived from Brennan in Nationwide News and
additionally APLA.
Does the ETA s26 burden interstate intercourse?
The ETA s26(2) burdens interstate intercourse as it prevents the movement of persons who
have breached s26(1) from leaving South Australia for a prescribed period. As explained by
Brennan J in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 the protection of interstate
intercourse in s92 includes ‘the movement of people ... across State boundaries.’ Thus, this
does place a burden on interstate intercourse.
Does the ETA s26 have the purpose of burdening interstate intercourse?
The purpose of the ETA s26 is to prohibit, and likely deter, people from making statements
which insult and offend others on the basis of their race or ethnicity. This purpose does not
have objective of burdening interstate intercourse.
Is the impediment to interstate intercourse greater than reasonably required to achieve
the object of the law?
The impediment contained in s26(2) of the ETA to interstate intercourse is likely greater than
reasonably required to achieve the purpose of s26 (APLA Ltd v Legal Services Commissioner
NSW 2005).
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The State may argue that preventing people from leaving SA for 12 months fulfils the
purpose in its deterrent effect for people not to breach s26(1) of the ETA considering this is a
substantial consequence for their actions.
On the other hand, there is a forceful argument that the penalty of $10,000 contained in
s26(1) is sufficient for fulfilling the purpose to deter those from making statements which
breach s26 of the ETA.
Arguably, s26(2) is not ‘appropriate and adapted’ to fulfilling the purpose to stop people from
making statements which insult and offend others on the basis of their race or ethnicity. This
is as the prevention or impediment to border crossing is an unnecessary consequence of the
laws operation which is not required to fulfil its main purpose (Brennan J 59 Nationwide
News).
A ban on the convicted person travelling interstate from SA for making an offensive
statement per s26(1) seems entirely disproportionate and inappropriate (ACT Pty Ltd v Cth
1992).
Therefore, it is strongly arguable that s26 does place a greater burden than reasonably
necessary on interstate intercourse. This likely breaches s 92 of the Constitution.
Advice
S26 breaches the constitutional limitation contained in s 92. Lisa will be favoured by this
outcome as she does not want to face the repercussions under her charge from s26 of the
ETA.
Severance?
Alternatively, on the assumption, it was found that s26 does not surpass the constitutional
limitation regarding the implied freedom as discussed previously, it may still be valid.
This is as, severing the section 26(2) from the ETA would resolve the issue of burdening
interstate intercourse, ensuring partial continued operation of the ETA. (Acts Interpretation
Act 1901 (Cth) s 15A: Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, 95:
Victoria v Commonwealth (‘Industrial Relations Act Case’) (1996) 187 CLR 416, 502).
The surrounding provisions of the ETA will not be affected if s26(2) is removed (Victoria v
Commonwealth (‘Industrial Relations Act Case’) (1996) 187 CLR 416, 502: Pidoto v
Victoria (1943) 68 CLR 87, 108).
While it could be argued that the State wanted a heavier penalty for the conduct being
prevention of moving interstate, it seems arguable that the State would suffice with the
penalty provided to offenders per s26(1) of $10,000 to ensure partial continued operation of
the ETA.
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Therefore, if properly severed, s26 is valid being supported by SA’s plenary power and not
surpassing any constitutional limitations.
Advice
If s26 does not in fact surpass the limitation of the implied freedom, then s26 is valid if
severed as specified above.
Lisa may still be able to make a final argument to try get out of her charge under s26 of the
ETA in this circumstance.
This is as s 26 of the ETA (SA) may potentially be inconsistent with section 3 of the AntiRacial Discrimination Act 2017 (Cth) (“ADA”) given they both concern acts of racial
discrimination.
Potential Inconsistency? Section 109
If there is an inconsistency, section 109 of the Constitution states that the state law will be
invalid/inoperative to the extent that it is inconsistent with the Commonwealth law.
As explained the ETA section 26 is valid, however the Commonwealth ADA must be valid to
prevail, as there will be no inconsistency if either of the Acts are invalid.
Validity of s3 ADA (Cth)?
External Affairs: Treaty Implementation Aspect
The ADA (Cth) may be supported by the treaty implementation aspect of the external affairs
power under section 51 (xxix) of the Constitution. This is as the ADA regulates acts of racial
discrimination which may be implementing its obligations under the International
Convention Against Racial Discrimination (“ICARD”).
The ICARD must first enliven the external affairs power. Subsequently, the ADA must be
found to be proportionate to the treaty obligations, as the power is purposive (Tasmanian
Dam Case).
Enlivening?
The ICARD is bona fide, having been ratified by 180 countries. (Koowarta v Bjelke-Peterson
[200]).
It imposes binding obligations on Australia as a party who has ratified it, agreeing to take
various steps to bring racial discrimination to an end. (Pape v Commissioner of Taxation
[164]).
Are the obligations under the treaty sufficiently clear?
In order to ‘enliven’ the External Affairs Power, the treaty obligations must also be
sufficiently specific, and not too aspirational. (Industrial Relations Act Case [486])
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Article 2 ICARD
Article 2 specifies each State Party shall take steps to bring to an end, by all appropriate
means, including legislation as required by circumstances, racial discrimination.
This may be too aspiration considering its objective to bring racial discrimination to an end.
This is similar to the Industrial Relations Act Case [486]) where the High Court found that
aiming for full employment was a goal that people would not achieve with no indication of
how it was to be achieved. Similarly, considering the large and diverse Australian population
it seems extremely difficult to completely end racial discrimination.
On the other hand, it could be argued that the ICARD Article 2 does go further than merely
prescribing ‘reasonable steps.’ (Industrial Relations Act Case) It does outline to parties that
implementing legislation as required by the circumstances is the course of conduct they
should use. This may be appropriate considering each signatory state likely has a different
population with different attitudes towards race. Therefore, some parties may require taking
more drastic measures than others to achieve the objective.
Moreover, international treaties often adopt broad language (Tasmanian Dam Case [188]).
Thus, perhaps Article 2 of the ICARD is sufficiently specific in the circumstances.
Article 1
Article 1 is useful to consider in that it limits the scope of the term racial discrimination by
providing a definition relating to adverse treatment of persons based on the person’s race,
colour, descent, or national or ethnic origin which has the purpose or effect of impairing the
person’s exercise of their rights and freedoms.
When looking at Article 1 together with Article 2 it seems it is possible that the course of
action prescribed by the treaty is ‘defined with sufficient specificity to direct the general
course to be taken by the signatory States.’ Here the obligation is for parties to look to their
circumstances and create according legislation to prevent the racial discrimination described
in Article 1.
Overall, however, it does seem to aspirational to require ‘all appropriate means’ to bring
racial discrimination to an end, similarly to parties doing ‘all they can’ to promote full
employment in Industrial Relations.
If it was found that the ICARD impose obligations which are sufficiently specific, and not too
aspirational then the relevant requirements are met; then the ICARD enlivens the external
affairs power.
Reasonable Proportionality
A law will only be supported under this power, where it is proportionate to the treaty
obligations. (Tasmanian Dam Case [259])
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The ADA s3 must therefore be ‘capable of being reasonably considered to be appropriate and
adapted’ to implementing the obligations of the ICARD Article 2. (Tasmanian Dam Case
[259])
The ADA s3 arguably implements ICARD Article 2 as it is a form of ‘legislation’ (ICARD
A2) which makes it unlawful for a person to treat another person adversely based on the other
person’s race, colour, descent, or national or ethnic origin.
The purpose of the ADA s1 is outlined to be to comply with Australia’s obligations under the
International Convention Against Racial Discrimination. Thus, the objects of the ICARD are
relevant when determining proportionality.
Arguably, the ADA s3 is appropriate and adapted to achieving this objective in its prohibition
of treat other persons adversely based on the other person’s race, colour, descent, or national
or ethnic origin.
The ADA s3 uses the exact wording of racial discrimination defined in the ICARD Article 1
which indicates its appropriateness being in ‘conformity with the conventions which [the
ADA] professes to be executing.’ (R v Burgess Evatt and McTiernan JJ).
Arguably, the ADA s3 is appropriate and adapted’ to implementing the obligations of the
ICARD Article 2. (Tasmanian Dam Case [259])
Validity of s 3 ADA
The object of the ICARD is to prevent treatment of persons based on the person’s race,
colour, descent, or national or ethnic origin which has the purpose or effect of impairing the
person’s exercise of their rights and freedoms.
Therefore, the ICARD enlivens the power, and the ADA s3 is an appropriate and adapted
implementation of Article 2. Thus, the ADA s3 is supported by the external affairs power
under the treaty implementation aspect.
Accordingly, the ADA s3 (Cth) is likely supported by the treaty implementation aspect of the
external affairs power under section 51 (xxix) of the Constitution (albeit acknowledging the
possible argument that the ICARD may be too aspirational to enliven the power).
Inconsistency s109
Assuming the ADA s3 (Cth) is valid, the next issue is whether there is an inconsistency
between Section 26 of the ETA (SA) and section 3 of the ADA (Cth).
Inconsistency Test 1: Impossible to Obey Both
If it is impossible to obey both a Commonwealth and a State law simultaneously, then the
State law is inconsistent with the Commonwealth law (R v Licensing Court of Brisbane; Ex
parte Daniell).
It is possible to obey both laws by not treating another person adversely based on the other
person’s race, colour, descent, or national or ethnic origin (ADA s3), and not making
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statements in public which are ‘reasonably likely to offend, insult, humiliate or intimidate
another person; and ‘relate to the race, colour or national or ethnic origin of the other person’
(ETA s26). Therefore, there is no inconsistency under this test.
Inconsistency Test 2: Covering the Field
In determining whether the ADA s3 covers a field under this test the focus is the intention of
parliament in drafting the legislation Clyde.
The field supposedly being covered by the Commonwealth in the ADA is acts of racial
discrimination. The ETA also operates in this field via its prevention of certain racially
offensive statements in public, which would likely be considered in the field of acts of racial
discrimination.
Express?
There are no express statements of Commonwealth intention to exclusively cover the field in
the ADA.
Implied?
Where no express intention to cover the field has been indicated, it may be implied (Clyde
Engineering Co Ltd v Cowburn (1926)).
This can be done by considering the nature, terms and subject matter of the federal law
(Wenn v Attorney-General (Vic) (1948); Telstra v Worthing (1999)).
The ADA s2 specifies ‘This Act binds the Crown in right of the Commonwealth and the
States.’ In Viskauskas v Niland (1983) 153 CLR 280 it was deemed that a statement intending
to bind the crown can be evidence of intention to cover the field.
This, however, is not conclusive evidence.
Considering the object of the ADA is to implement the ICARD which aims to completely
bring racial discrimination to an end, there is a forceful argument that the Commonwealth
would encourage supplementary State legislation to help achieve this aim.
Arguably, by the ETA prohibiting certain racial statement in s 26 it adds something
‘supplementary’ to the operation of the Commonwealth law and helps fulfil its objects. In
Ansett the High Court acknowledged certain provisions could operate concurrently, with the
federal provisions relating to conditions for the termination of employment being read in the
context of State or federal laws which prohibit discrimination.
Arguably, the ETA preventing racial statements can be read in the context of the ADA
preventing acts of racial discrimination.
Moreover, the ETA is not hugely detailed so as to likely exclude the operation of
supplementary state legislation (Australian Broadcasting Commission v Industrial Court of
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SA (1977)). Rather, like Coffs Harbour where the Court determined the Commonwealth Act
left room for operation of the State law which dealt with matters in the same field (being
efficiency and quality of broadcasting services), the ETA simply adds to the efficiency of the
operation of the ADA in the field of ending racial discrimination.
Thus, it is arguable the Cth did not intend to cover the field with the ADA s3 (Momcilovic).
While the State law operates in the same field there is no inconsistency under this test.
Inconsistency Test 3: Inconsistency of Rights, Privileges and Entitlements
There are no evident ‘rights, privileges or entitlements’ which arise under the ADA s3. (CJ
Knox and Duffy Clyde engineering, Dixon The Kakariki). Rather the ADA only prohibits
certain conduct making it unlawful. Therefore, the ETA does detract or takes away from a
right conferred by the Commonwealth statute and there is no inconsistency under this test.
Advice to Lisa
Lisa is therefore advised that the State Law is still operative as there is no inconsistency (s109
Constitution).
Accordingly, if the Court finds that the ETA does not surpass the constitutional limitation
with respect to the implied freedom, and s26(2) of the ETA is properly severed, then the ETA
s26(1) is valid.
Lisa making racial slurs towards audience members is conduct which breaches s26(1) being
in a public place at her public speaking events, and a slur being likely to offend or humiliate
the person being in the audience considering the public setting.
Thus, while Lisa will not have to stay in SA as s26(2) is severed, she will have to pay a
$10,000 fine per s26(1) of the ETA.
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