ACL – Reading list and Case Summaries
Week 1 – INTRODUCTION
44, 51, 116, 122
Book – Pages 1 – 6, 234 – 250, 762 – 802, 806 – 829, 861 – 881
Relevant sections of the constitution
-
Any person who:
(i)
is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a
citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii)
is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any
offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or
longer; or
(iii)
is an undischarged bankrupt or insolvent; or
(iv)
holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of
any of the revenues of the Commonwealth: or
(v)
has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth
otherwise than as a member and in common with the other members of an incorporated company consisting
of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
-
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the
Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension,
by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or
member of the naval or military forces of the Commonwealth by any person whose services are not wholly
employed by the Commonwealth.
-
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:
-
(A large number of things…)
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious
observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a
qualification for any office or public trust under the Commonwealth.
1
-
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by
the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the
Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such
territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Relevant cases
(1920) 28 CLR 129
Case summary/Quote:
Constitution is the political compact of the whole of Australia people:
“That instrument is the political compact of the whole of the people of Australia, enacted into binding law by
the Imperial Parliament, and its chief and special duty of this Court faithfully to expound and give effect to it
according to its own terms, finding the intention from the words of the compact, and upholding it throughout
precisely as framed” (at 142)
Constitution is the Australian people’s & elections fix problems not Courts:
“When the people of Australia, to use the words of the Constitution itself, “united in a Federal
Commonwealth”, they took power to control by ordinary constitutional means any attempt on the part of the
national Parliament to misuse its powers. If it be conceivable that the representatives of the people of Australia
as a whole would ever proceed to use their national powers to injure the people of Australia considered
sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done.
No protection of this Court in such a case is necessary or proper”. (at 151-152)
(2017) 263 CLR 284
Relevant Sections: 44
Background: A number of senators nominated as candidates for election, and in turn, were elected. Mr.
Ludlam, Ms Waters and Senator Roberts were born overseas; NZ, Canada and India respectively. In the other
cases (The other senators) each had one or more parents or grandparents who had been born overseas. It was
found they had dual citizenships. The question arose whether s44 of the Constitution was interpreted literally,
and that they should be struck from being able to nominate as candidates.
Held: That proof of an election candidate’s knowledge of his or her foreign citizenship, or of facts that might
put a candidate on inquiry as to that possibility, is not necessary to disqualify that person from being chosen or
sitting as a senator or member.
2
Per curiam (By the Court). A person who, at the time that he or she nominates for election, retains the status of
subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the
foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented
by foreign law from participation in representative government. Where it can be demonstrated that the person
has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within
his or her power, the constitutional imperative is engaged.
You’re not irredeemably disqualified if you take reasonable steps…
Case summary/Quote:
-
Kiefal CJ
The facts in the references concerning Senators Canavan, Nash and Xenophon, Ms Waters and Mr Joyce
illustrate that, if s 44(i) of the Constitution operated to disqualify those parliamentarians, that operation would
be far removed from its purpose in addressing split allegiances. It was held in Sykes v Cleary that the text of s
44(i) does not have its literal meaning and so does not give unqualified effect to foreign law. (1992) 176 CLR
77 at 107, 113, 127, 131, 137).
-
(paragraphs 20 – 23) The Court accepted the approach to treat s 44(i) as though it had two limbs, being two
severable bases for ineligibility (Re Canavan (2017) 349 ALR 534, 540–1 [20]–[23]):
o 1. acknowledgement of allegiance to a foreign power; and
o 2. citizenship, or entitlement to the rights of citizenship, of a foreign power.
-
(paragraph 13) - The approach to construction urged by the amicus and on behalf of Mr Windsor gives s 44(i)
its textual meaning, subject only to the implicit qualification in s 44(i) that the foreign law conferring foreign
citizenship must be consistent with the constitutional imperative underlying that provision, namely, that an
Australian citizen not be prevented by foreign law from participation in representative government where it can
be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce
his or her foreign citizenship.
-
(paragraph 21) - The amicus submitted that s 44(i) has two limbs, not three as was suggested by Brennan J.
He contended that the first limb disqualifies a person who “is under any acknowledgment” of the stated kind,
and the second limb disqualifies a person who “is a subject or a citizen or entitled to the rights or privileges of a
subject or a citizen of a foreign power”. In the first limb, the words “under any acknowledgment” capture any
“person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power
and who has not withdrawn or revoked that acknowledgment”(Nile v Wood (1987) 167 CLR 133 at 140).
Within this limb the word “acknowledgment” connotes an act involving an exercise of the will of the person
concerned. In contrast, in the second limb of s 44(i), the words “subject”, “citizen” and “entitled to the rights”
connote a state of affairs involving the existence of a status or of rights under the law of the foreign power. (cf
Sykes v Cleary (1992) 176 CLR 77 at 107, 110, 131).
-
Subject or citizen – the role of the foreign law: (paragraph 37) - Whether a person has the status of a
subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so
3
because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights
and duties involved in that status.
-
In Sue v Hill, Gleeson CJ, Gummow and Hayne JJ referred with approval to the reasoning of Brennan and
Gaudron JJ in Sykes v Cleary ((1992) 176 CLR 77 at 112-114, 135-136). in confirming the proposition that s
44(i) looks to the relevant foreign law to determine whether a candidate is a foreign citizen ((1999) 199 CLR
462 at 486-487 [47]).
-
Renouncing your citizenship (of a foreign subject) isn’t enough to suggest you’ve taken reasonable steps:
(paragraph 66) - It is evident that this view did not commend itself to the other five Justices, who proceeded
on the basis that a unilateral renunciation was not sufficient to terminate the status of citizenship under the
foreign law.
-
Summary of construction of s44: (paragraphs 70-71)
Section 44(i) operates to render “incapable of being chosen or of sitting” persons who have the status of subject
or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the
law of the foreign power in question. Proof of a candidate's knowledge of his or her foreign citizenship status
(or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not
necessary to bring about the disqualifying operation of s 44(i).
-
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a
foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is
contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law
from participation in representative government. Where it can be demonstrated that the person has taken all
steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her
power, the constitutional imperative is engaged.
Week 2 – TRADE AND COMMERCE POWER
Book – Pages 889 – 900
and/or
51(i), 98, 92, 122
class/lectures
-
Section 51(i)
-
“Constitutional trade and commerce” (E.g Criminal Code Act 1995 (Cth)
o Important: Need to distinguish between intrastate and interstate (within states and between states)
-
Section 98 confirms s 51(i) ‘extends to navigation & shipping & railways the property of any state”
-
Section 92 – trade & commerce between the states to be absolutely free (s92 case law is bad case law??)
o The same words ‘trade & commerce’ have same meaning as s51(i) James v Cth (1936) 55 CLR 1
o Per Knox CJ, Isaacs, Starke JJ
▪
Is not confined to mere act of transportation across borders
▪
Includes all commercial arrangements of which transportation is the direct and necessary result
4
▪
Includes negotiations, bargaining, transport and delivery
o Regulate conduct of persons employed in international or interstate trade & commerce
▪
Re Maritime Union of Australia; Ex parte CSL Pacific Inc (2003)
o Participate in interstate trade & commerce
▪
Airlines: Australian National Airways v Cth (ANA Case) (1945)
▪
Shipping: Australian Coastal Shipping Commission v O’Reilly (1962)
-
Australian Airlines Act 1945 (Cth) sets up a govt airline to run interstate & territorial air transport services.
-
ANA (Australian National Airways Pty Ltd) argued that s51(i):
o Only allowed Cth to regulate, but not to partake in trade & commerce;
o Did not authorize interstate transportation of people who were not themselves engaging in interstate
trade & commerce
-
HCA said
o allowed Cth to actually engage in, not just regulate, interstate trade & commerce
o All for profit interstate transportation is interstate ‘trade & commerce’
o Cth Constitution meant to endure
o Broad interpretation: No importation of limitation into power’s descriptive words.
o Law authorizing Cth to operate interstate transportation, whether monopoly or not, is a law w.r.t
interstate ‘trade & commerce’
-
Its demise did not eliminate the distinction between interstate and intrastate trade & commerce
-
S51(i) did not grant intrastate trade & commerce power to Cth. It did not reserve it to the States – Strickland v
Rocla Concrete Pipes (1971) per Barwick CJ.
-
Strict observance of distinction between intra and inter-state.
In 1919 Australia had entered into the Convention Relating to the Regulation of Aerial Navigation, and parliament
enacted the Aircraft Navigation Act 1920, which authorised the Governor-General to make regulations to give effect to
the Convention. Henry was convicted of flying without a license, having flown around, over and under the Sydney
Harbour Bridge. The Commonwealth relied upon 3 sources of constitutional power, interstate trade and commerce,
foreign affairs and territories.
5
Henry Goya Henry was an aviator who had his aviation licence suspended. Two days after the suspension he
nevertheless flew a plane, setting off from Mascot airport and then flying around, over and under the Sydney Harbour
Bridge. He was convicted of breaching regulation 6 of the federal Air Navigation Regulations which prohibited an
unlicensed person from flying an aircraft "within the limits of the Commonwealth". The regulations were made
pursuant to section 4 of the Aircraft Navigation Act 1920, which authorised the Governor-General to make regulations
to give effect to the Convention for the Regulation of Aerial Navigation. He challenged the constitutional validity of
the regulation
-
Air Navigation Act 1920 (Cth) s4:
o Allowed Regs to control air navigation in Australia
o Did not distinguish between intra and interstate air navigation
-
Broad language used because States were originally supposed to refer their powers to Cth under s51(xxxvii)
-
But ultimately, only Tasmania effectively did.
-
Latham CJ:
o Uniform air navigation rules are clearly desirable. Grave risks of serious accident if rules are not
uniform throughout Australia.
o But: expediency cannot control the natural construction of statutory language.
o Rejected the argument that if interstate or foreign/interstate trade & commerce are so intermingled that
Cth must control intrastate trade & commerce
o Might be different if there was evidence that intermingling made it impossible for Cth to regulate
interstate/foreign trade & commerce without regulating intrastate trade & commerce
-
Dixon J
o S4 made no distinction between inter/intra state air navigation but attempted to regulate the entire
subject of air navigation
o Acknowledged that distinction between intra/inter state air navigation is inconvenient and difficult to
maintain.
o But, express limitation in s51(i), however artificial, must be maintained when ascertaining what is
incidental to the power
-
Evatt & McTiernan JJ:
o No denial that if intrastate air navigation has a direct & proximate relationship to interstate air
navigation that it might engage the incidental power in s51(i).
-
Henry had not been flying from or to any other state or country. The Commonwealth argued that the
commingling in air routes and airports of aircraft proceeding intrastate with those traveling interstate, enabled it
to control all aircraft. The Court rejected the commingling argument, preferring to maintain a distinction
between interstate and intrastate trade. Mr Henry could not be prevented by the Commonwealth from stuntflying around Sydney Harbour under the commerce power. The Constitution clearly distinguished between
intrastate and interstate commerce, and confined the Commonwealth to the latter
6
Can Cth use the incidental power in s51(i) to legislate on purely intrastate trade & commerce?
-
Dixon J
o Distinction may be artificial & outdated.
o But it is a distinction that Constitution adopts and so must be observed.
o Incidental power in s51(i) cannot ignore the distinction made in the text
-
Air Navigation Regulations 1947 (Cth):
o Coverage extended to include intrastate flights in 1964.
▪
Reg 198: commercial flying operators must hold a federal licence.
▪
Reg 199: matters of safety, regularity & operational efficiency of air navigation to be considered
when issuing licence for "other than interstate service'
▪
Reg 200B: licensee under Reg 198 may operate flights regardless of State laws.
-
Air Transport Act 1964 (SW) required operators in NSW to be licensed.
-
Airlines of NSW had its NSW licence cancelled, and appealed to HCA alleging NSW Act to be inconsistent
with Cth Regs.
o This should have been an inconsistency argument (s109) between the states and Cth
-
HCA (6:1) Regs 198 and 199 were valid
-
Kitto & Windeyer JJ relied on s51(i);
o Kitto: Purposes of Regs 198-199 is to aid & protect safety, regularity and operational efficiency of
intrastate air navigation, to protect against danger of physical interference to interstate air navigation.
So, they are within s51(i) power.
o NOT within s51(i) power if the danger is merely economic interference with interstate trade (eg. Lower
profits)
-
McTiernan J relied on s51(xxix) external affairs power [Chicago Convention 1944]
-
Menzies & Owen JJ relied on both s 51(i) & s51(xxix);
-
Backwick CJ agreed both were applicable, preferring s51(i);
-
Taylor J (dissenting) both regs were invalid
Conclusion: So 51(i) talks about trade and commerce. S98 allows s51(i) to incorporate flights and navigation. the Air
Navigation Act 1920 (Cth) tried to control flights but did not specify between ‘intra or interstate’ flights. Ex Henry
bloke flew in Sydney Harbour… Because the Cth act didn’t specify above, his offence was dismissed. The Court
found that broad language was used because the States were originally supposed to refer their powers to the Cth under
s51(xxxvii).
7
So the commonwealth created regulations under the Air Navigation Regulation 1947 (Cth). This coverage (The
controlling of flights etc) extended to include ‘intrastate’ flights (The regs covered pilots holding a federal licence,
safety protocols etc etc). NSW had a hissy fit over this in Airlines of NSW v NSW (No 2), because their NSW
legislation stated their NSW pilots had to be licensed. Airlines of NSW had their licences cancelled alleging that the
new Cth regulations were inconsistent. As above, the HCA (6:1) found the Cth regs were valid.
Sufficient Connection
-
Incidental scope of s51(i) may be greater when trade & commerce is international.
-
There needs to be a sufficient connection between the intrastate activity and interstate/overseas trade.
-
The connection cannot be so ‘insubstantial, tenuous or distance’ per Dixon J Melbourne Corp v Cth (1947)
Activities preliminary to trade
-
Production or manufacture is not part of interstate trade; it is preliminary to trade.
-
Interstate trade & commerce begins when the goods are moved across state lines (after production or
manufacture is complete) – Beal v Marrickville Margarine (1966) 114 CLR 283.
-
What about production for export?
O'Sullivan y Noarlunga Meat (1954)
-
Customs Act 1901 (Cth)
-
Commerce (Meat Export) Regs (Cth)
o Reg 4B prohibited export of meat unless meat had been treated & stored in premises registered (by
Cth).
o Reg 5: all premises used for the slaughter, treatment & storage of meat for export shall be registered.
-
Detailed standards were specified in regs.
-
Metropolitan & Export Abattoirs Act 1936 (SA) prohibited use of any premises for slaughtering stock
-
for export without a state licence.
-
Noarlanga Meat Ltd did not hold a SA licence.
-
Fullagar J:
o s 51 (i) power over trade & commerce with other countries does authorise legislation controlling
slaughter of meat for export.
o Whole process of killing to packing is conditioned by predetermined destination.
o "Slaughter for export" is a definitive objective conception distinct from slaughter for home
consumption. Distinct quality & grade, packaging, labelling, handling etc, for export. of mining metals
for export, sowing wheat for Export
o Cf mining metals for export, sowing wheat for export
Economic Connection?
8
-
Recall ANA Case:
o S51(i) authorizes Cth to participate in interstate trade and commerce, not just regulate
-
Recall Airlines of NSW v NSW (No 2):
o Within power as there was physical danger to interstate air navigation.
o Would not have been within power if interference was purely economic.
-
ANAC wanted its airline, Trans-Australian Airlines (TAA) to stopover at Port Hedland (WA) in its PerthDarwin route.
o Australian National Airlines Act 1945 (Cth) s 19B allowed ANAC to transport passengers intrastate
for the purpose of the efficient, competitive or profitable conduct of ANAC’s business.
o Ansett, TAA’s competitor, challenged the validity of s19B.
-
HCA: s19B valid based on 122 (power over territories) per Stephen, Mason and Murphy JJ.
-
Insofar as validity under s51(i):
o Barwick CJ, Gibbs & Stephen JJ held it not within s51(i) incidental power.
o Murphy J dissented, arguing for winder interpretation of s51(i) power.
o Mason J did not decide on s51(i) issue.
-
Stephen J:
o Constitutional division of power over trade & commerce between Cth & States meant incidental powers
in s51(i) is narrowly construed when dealing with intrusion into intrastate trade & commerce.
o In Airlines of NSW v NSW (No 2):
▪
Cth cannot regulate intrastate air navigation to enhance profitability of interstate/international
air navigation.
▪
Kitto J’s distinction between physical and economic danger to interstate air navigation.
o S19B supported by s122. Acts Interpretation Act 1901 (Cth) s15A used to read down s19B to exclude
its invalid operation.
-
Put down legal principles.
Physical / economic danger.
Inter/Intra state.
Incidental.
Don’t think of case names.
Think of issues
Relevant sections of the constitution
-
The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good
government of the Commonwealth with respect to:
o (i) trade and commerce with other countries, and among the States;
9
-
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether
by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of
customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on
thence passing into another State within two years after the imposition of such duties, be liable to any duty
chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods
on their importation.
-
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and
shipping, and to railways the property of any State.
-
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by
the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the
Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such
territory in either House of the Parliament to the extent and on the terms which it thinks fit
Relevant cases
(1945) 71 CLR 29
Relevant Sections: section 51(i) – trade and commerce
Case summary/Quote:
-
In this case, Australian National Airways (ANA) challenged the validity of the Air Navigation Act 1920 (Cth),
which gave the Commonwealth the power to take over and operate any airline in the country. ANA argued that
this law exceeded the Commonwealth's constitutional powers and was therefore unconstitutional.
-
The High Court, however, ruled in favor of the Commonwealth, holding that the Air Navigation Act was a
valid exercise of the Commonwealth's constitutional power to make laws with respect to trade and commerce.
The court emphasized that the airline industry was a vital part of the national economy, and that the
Commonwealth had the power to regulate and control it in the national interest.
-
The decision in this case had significant implications for the development of Australian constitutional law and
the scope of Commonwealth power. It established that the Commonwealth had broad powers to regulate and
control trade and commerce, including the power to nationalize industries deemed vital to the national interest.
10
-
The Commonwealth could make the law under s51(i) which was ‘interstate’.
(1954) 92 CLR 565
Relevant Sections: s51(i), s109
Case summary/Quote:
-
a case decided in the High Court of Australia regarding the scope of the trade and commerce power, under s
51(i) of the Australian Constitution, and inconsistency between Commonwealth and State laws, under section
109 of the Constitution.
-
Noarlunga Meat Ltd was charged with contravening the Metropolitan and Export Abattoirs Act 1936 (SA), s
52a, because it did not hold a State licence for slaughtering stock. All premises outside the metropolitan area
"for the purpose of slaughtering stock for export as fresh meat in a chilled or frozen condition" were required to
obtain a licence from the State Agriculture Minister. However, the defendant company was registered under the
Commerce (Meat Export) Regulations (Cth). Regulation 4B prohibited the exportation of meat unless an export
permit had been granted, and regulation 5 required that all premises used for the slaughter of meat to be
registered.
-
The defendant company argued that the State act was invalid by virtue of inconsistency with the
Commonwealth regulations, which is dealt with in s 109 of the Constitution.
-
The Commonwealth has the power to make laws with respect to "trade and commerce with other countries, and
among the States", as per s 51(i) of the Constitution. This power authorises the prohibition of the export of
certain commodities, and by extension the prohibition of commodities with certain restrictions. Regulation 4B
is therefore within its power.
-
Regulation 5 does not fall under the direct head of power. Instead, it falls within the implied incidental power,
which was best expressed in D'Emden v Pedder (1904) 1 CLR 91 at p 110. Fullagar J, with whom Dixon CJ
and Kitto J concurred, stated that the Commonwealth may control any steps leading to the export itself
(generally labelled as "production") that may affect "beneficially or adversely" Australia's export trade. This
includes provisions to control the quality of meat being exported, which may involve regulation of such stages
as packaging and handling. In fact, it may be necessary to "enter the factory or the field or the mine" to secure
Australia's export industry.
11
-
In general regulation of production may occur where there is an objectively different method of production
between meat destined for home and foreign consumption, but Fullagar J was clear in restricting the
application of the principle to the specific factual circumstances at hand.
-
Fullagar J noted that it was possible to obey both sets of laws simultaneously, by acquiring both State and
Commonwealth licenses. However, it was his opinion that the regulations expressed an intention to
"completely and exhaustively" cover the field with regards to the regulation of such premises; he found the
detailed regulations compelling in this regard. Furthermore, the State law would have acted to deny the rights
granted by a certificate obtained under the Commonwealth regulations.
-
The court was split 3-3. As this was a stated case and not an appeal, the decision of the Chief Justice
prevailed,[2] in what is sometimes described as a statutory majority
(1965) 113 CLR 54
Relevant Sections: s51(i), s51i(xxix – incidental).
Case summary/Quote:
-
A case about the validity of Commonwealth regulations about intrastate air navigation. Although the
Commonwealth has the power to regulate interstate air navigation under s 51(i) of the Constitution, it can only
regulate intrastate air navigation under the implied incidental power attached to that head of power. It was held
that intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of
physical interference with, interstate or foreign air navigation
-
Section 51(i) permits the Commonwealth to make laws, for interstate and foreign air operations, about safety,
regularity and efficiency, as this would protect, foster and encourage interstate and foreign trade and
commerce. Barwick CJ stated that this would then serve to extend to include intrastate air navigation, due to
intrinsic factors related to flight, and the factual situation in this case.
Relevant Sections: s51(i)
Case summary/Quote:
-
ANAC wanted its airline, Trans-Australian Airlines (TAA) to stopover at Port Hedland (WA) in its PerthDarwin route.
o Australian National Airlines Act 1945 (Cth) s 19B allowed ANAC to transport passengers intrastate
for the purpose of the efficient, competitive or profitable conduct of ANAC’s business.
12
o Ansett, TAA’s competitor, challenged the validity of s19B.
-
HCA: s19B valid based on 122 (power over territories) per Stephen, Mason and Murphy JJ.
-
Insofar as validity under s51(i):
o Barwick CJ, Gibbs & Stephen JJ held it not within s51(i) incidental power.
o Murphy J dissented, arguing for winder interpretation of s51(i) power.
o Mason J did not decide on s51(i) issue.
-
Stephen J:
o Constitutional division of power over trade & commerce between Cth & States meant incidental powers
in s51(i) is narrowly construed when dealing with intrusion into intrastate trade & commerce.
o In Airlines of NSW v NSW (No 2):
▪
Cth cannot regulate intrastate air navigation to enhance profitability of interstate/international
air navigation.
▪
Kitto J’s distinction between physical and economic danger to interstate air navigation.
o S19B supported by s122. Acts Interpretation Act 1901 (Cth) s15A used to read down s19B to exclude
its invalid operation.
Week 3 – COMMONWEALTH TAXATION AND SPENDING
51(ii), 53, 54, 55, 83, 90, 99
Book – Pages 317 – 329, 1087 – 1100, 475 – 484, 493 – 503
class/lectures
and/or
o S51 – power to make laws…w.r.t
▪
ii) taxation; but so as not to discriminate between states or parts of states
o s90 – State’s limitation – Cth has exclusive power to levy duties of excise
▪
States are constitutionally barred from levying duties of excise
o S53 – The Senate:
▪
Cannot introduce bills imposing taxation or appropriating revenue/moneys;
▪
Cannot amend Bills imposing taxation or appropriating revenue/moneys for the ordinary annual
services of the Govt.
o S 55 – No tacking of non-tax matter onto a tax law
o S99 – Cth shall not by any law of trade, commerce or revenue, give preference to one state (or part
thereof) over another state (or part thereof)
o Per Latham CJ in Matthews v Chicory Marketing Board (Vic) (1938)
o A tax is
▪
A compulsory exaction of money
13
▪
By a public authority
▪
For public purposes
•
▪
Enforceable by law
And is not a payment for services rendered
o Air Caledonie Int’l v Cth (1988)
▪
HCA: Lathan CJ’s definition of tax in Matthew v Chicory is not exhausted & there are other
(non-exhaustive) criteria:
•
A penalty is not a tax
•
Taxes cannot be arbritrary
o A compulsory exaction
▪
Compulsion is a critical, but not the sole element.
•
▪
Bear in mind the exceptions: A compulsory licensing fee is not automatically a tax.
Compulsion may exist even if there is legally an avenue to avoid payment but in practice there
is little choice but to pay up
•
See A-G (NSW) v Homebush Flour Mills Ltd (1937) 56 CLR 390: the compulsory
acquisition scheme in Flour Acquisition Act 1931 (NSW)
▪
But note obiter in Air Caledonie
•
No reason in principle why a tax should not take a form other than the exaction of
money…
o By a Public Authority
▪
Air Caledonie
•
No reason in principle why the compulsory exaction of money… could not be properly
seen as taxation notwithstanding that it was by a non-public authority…
▪
What about the scenario where a law requires the compulsory payment of money to a nonpublic body?
▪
Aust Tape Manufacters Assocation Ltd v Cth (1993)
•
Copyright Amendment Act 1989 (cth)
o Required blank tape sellers to pay a ‘royalty’ to a ‘collecting society’, not to the
(Cth’s) Consolidated Revenue Fund
•
HCA (4:3)
o It was not a royalty – it was unrelated to any right, permission or consent by
copyright owners
o It is not essential to the concept of tax that the exaction should be by a public
authority
o For public purposes
▪
Air Caledonie
14
•
No reason in principle why the compulsory exaction of money… could not be properly
seen as taxation notwithstanding that it was… for the purposes which could not properly
be described as public
▪
What about the scenario where a law requires the compulsory payment of money to a nonpublic body?
•
Tape Manufacturers
o If a levy is payable into Consolidated Revneue Fund, the levy is regarded as
exacted for a public purpose; the converse proposition is not necessarily true.
o ‘public purposes’ is not synonymous with ‘government purposes’
o Directing a levy to be paid to a collecting society for distribution to copyright
holders as a solution to a problem of public importance is of necessity a public
purpose
o What if revenue raising not tax’s main purpose?
▪
Northern Suburbs General Cemetery Reserve Trust v Cth (Traiining Guarantee case) (1993)
•
A scheme that is revenue neutral to the Cth.
•
Employers who do not spend a minimum % of payroll on training employees owe a tax
debt
•
▪
Act does not list revenue raising as an object
HCA
•
It does not cease to be a tax just because revenue raising is merely secondary to another
object
•
Recap: Kitto J on characterisation in Fairfax v FCT
o Is a payment into Consolidated Revenue Fund automatically a tax?
▪
All taxes must be paid into Consolidated Revenue Fund (see s81); but are all payments into
CRF considered as taxes?
▪
Luton v Lessels (2002):
•
Child support (registration & Collection) Act 1988 (Cth)
•
Child support (Assessment) Act 1989 (Cth)
•
Child support payments so registered became a debt to the Cth. Amounts are payable
into CRF, then ultimately to child’s carer:
•
▪
Was this a tax (Validity challenged under s 55).
HCA held that it was not a tax
•
Guadron & Hayne JJ:
o Repeated Latham CJ’s definition of what a tax would typically be, but they are
not determinative – need to look at laws feature
o Not every payment into CRF is a tax
15
o This compulsory exaction falls outside description of taxation as:
▪
Existing obligation terminated and substituted with an equal obligation to
Cth
▪
Carer to receive same fund as partner??
o Tracing through CRF?
▪
Ray Morgan Research Pty Ltd v FCT (Superannuation Guarantee Case) (2011)
•
Superannuation Guarantee Charge Act 1992 (Cth) & Superannuation Guarantee
(Administration) Act 1992 (Cth)
▪
-
•
Was there a private and direct benefit on the employees (as opposed to public purpose)?
•
Can money be traced through CRF to disprove any public purpose?
HCA upheld the laws
Fee for services
S53: A proposed law shall not be taken to… impose taxation… by reason only of its containing… fees
for services
o A fee for services, even if compulsory, is not a tax,
o Elements of a free for services
▪
1. There is a specific identifiable service,
▪
2. A fee is paid for the service;
▪
3. The service is rendered to the person required to make the payment;
▪
4. The fee is proportionate to the service’s cost
o Fee for services
▪
▪
Harper v Vic (1966) – it is a fee for services (rather than a tax) if:
•
The fees purpose is to defray the cost of providing the specified services;
•
The fees are not devoted to building up consolidated revenue
•
The service’s cost determines the fee’s quantum
Parton v Milk Board (Vic) (1949) – It is not a fee for service (but a tax) if:
(ESSAY?)
•
Charge is used to fund governmental purposes unrelated to services rendered;
•
No particular service was rendered to the payer
o Air Caledonie Int’l v Cth (1988)
▪
$5 ‘immigration’ clearance fee’ payable by citizens & non-citzens, for clearance services
▪
HCA held that it was a tax and not a fee for servces:
•
Fee was not a fee for the privilege of entering Australia, as citizens had a right of entry
and did not need any clearnce from the executive.
•
▪
No actual service was rendered to citizens
S55 – No tacking allowed
16
•
Laws imposing taxation shall deal only with the imposition of taxation, and any
provision therein dealing with any other matter shall be of no effect.
o Case about Tax Bonus for Working Australians Act (No 2) 2009 (Cth)
▪
One off ‘tax bonus’ payment during GFC
▪
HCA (4:3) held Act a valid under 51 (xxxix) & a valid exercise of executive power
▪
Minority judges considered whether s 51 (ii) could support the Act
▪
Tax bonus was referred to a taxpayer’s taxable income in previous FY.
o But, tax bonus could be tax actually paid. One’s tax bonus could be lower or $0 if one had a higher
taxable income.
o Cth conceded s 51 (ii) did not support case where tax bonus > actual tax paid.
o Hayne & Kiefel JJ:
▪
Act had no direct connection between tax bonus amount & tax actually paid
▪
Act was not a law w.r.t taxation
▪
Read down the Act to make it a law w.r.t taxation by linking the tax bonus to amount of tax
paid.
o Tax Bonus Act 2009 (Cth) & the fiscal stimulus package during the GFC.
o Nationhood power is an executive power within s 61.
o Parliament may legislate to support nationhood power in matters incidental to its execution, using
s51(xxxix) express incidental power.
o Appropriation power in s81 is not a source of power that confers on Cth a substantive spending power
o S99 is triggered only if there is a preference, some sort of commercial advantage. A law that is merely
discriminatory does not trigger s 99.
o Mere geographical preference alone does not infringe s 99. Locality must be singled out for differential
treatment because it is a state or a part of a state.
o A law that discriminates on its face and in its effect is invalid
▪
Cameron v Deputy FCT (1923) – found not valid (Different taxes for states)
o Fortescue Metals Group v Cth (2013)
▪
Cth’s Minerals Resource Rent Tax (MRRT) levied a tax at 22.5% of miner’s annual profit
above a set threshold, less any mining royalties paid to Cth, state and territories
17
▪
-
Did MRRT discrimate between states?
Historical background of appropriation & responsible government, per French CJ in Pape 2009:
o Parliamentary control of executive spending: origins in 17 th Century England – bill of rights 1689
o Consolidated Revenue Fund 1787
o House of Commons had supreme control over taxation: no taxes without parliamentary approval
o 1. The impoisition of taxation must be authroised by Parliament
o All Crown revenue forms part of the CRF
o Only Parliament can authroise the appropriation of money from the CRF
o Mr Williams, a father of 4 children who attended Qld state school, challenged Cth’s funding of National
School Chaplaincy Program (NSCP), Scripture Union Qld (SUQ) had Funding Agreement with Cth to
provide chaplaincy services under NSCP.
o Relevant argument raised by Williams: Cth did not have power to enter into Agreement & make
payment to SUQ. As per Pape, s81 was not a substantive spending power.
o Cth had to argue that Agreement & spending could be supported by Cth executive power
o HCA rejected the Cth’s arguments.
▪
Executive power to spend is not found in ss 81 and 83 – per Pape
▪
Cth’s power to spend is not unlimited.
▪
Pape re – affirmed.
o Mr Williams challenged s 32B and Sch 1 AA. The challenged was unanimously upheld.
Relevant sections of the constitution
-
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:
o (ii) taxation; but so as not to discriminate between States or parts of States
-
Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a
proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its
18
containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the
demand or payment or appropriation of fees for licences, or fees for services under the proposed law.
-
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or
moneys for the ordinary annual services of the Government.
-
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
-
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may
not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the
House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without
modifications. Except as provided in this section, the Senate shall have equal power with the House of
Representatives in respect of all proposed laws.
-
The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government
shall deal only with such appropriation.
-
Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with
any other matter shall be of no effect.
-
Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of
taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing
duties of excise shall deal with duties of excise only.
-
No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.
But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council
may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any
department transferred to the Commonwealth and for the holding of the first elections for the Parliament.
-
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.
19
-
On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of
excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or
agreement for any such bounty lawfully made by or under the authority of the Government of any State shall
be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and
not otherwise.
-
The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one
State or any part thereof over another State or any part thereof.
Relevant cases
(1988) 165 CLR 462
Relevant Sections: s55 – Taxing section
Case summary/Quote:
-
Defines a tax… But also suggests that s55 can remove the section as opposed to the whole act (Mainly
because this was an amendment act – so it could be excised safely without damaging the entirety of the
mother act).
-
(i) It was clear that the 'fee' purportedly exacted by the Act s 34A possessed all of the positive attributes which
had been accepted as prima facie sufficient to stamp an exaction of money with the character of a tax. It was
compulsory, it was exacted by a public authority for public purposes and it was enforceable by law. If an
amending Act purported to insert a provision imposing taxation in an existing valid Act which contained
provisions dealing only with other matters, it sought to bring about something which the Commonwealth
Constitution directly and in terms forbade and which was not within the competence of the Parliament to
achieve. It followed that the effect of the conclusion that s 34A was a law imposing taxation was that the
Amendment Act s 7 was ineffective to amend the Migration Act by adding s 34A to its provisions. The
Commonwealth's demurrer should be overruled.
(1993) 176 CLR
480
Relevant Sections: s 51(ii), s55
Case summary/Quote:
-
Reaffirmed Air Caledonie about a ‘tax’. That the collecting body doesn’t have to be a government body
for it to be a tax.
20
-
The Commonwealth made an amendment to the Copyright Act 1968 which was designed to compensate
copyright owners for the domestic and private taping of audio material not deemed to be illegal. The money
was not paid to the Commonwealth, but to a private entity that distributed the funds to copyright owners as a
private copying levy.
-
The Court majority (Mason CJ, Brennan, Deane, Gaudron JJ) relied on dicta from Air Caledonie International
v Commonwealth,[2] and ruled that the collecting body of a fee does not have to be a public body for the fee to
be regarded as a tax. Therefore, a levy collected by a private body dictated by a statute for public purposes
gives the private body a public character. The decision also raised the notion of raising taxes for the public
interest.
-
The decision also contained a strong dissent from the minority (Dawson, Toohey and McHugh JJ). They were
critical of the dicta from Air Caledonie as it contained no principles, and no examples. They did not view the
fee paid as tax because it was not paid into general government consolidated revenue (Section 81 of the
Constitution requires taxes to be paid into consolidated revenue). The royalty imposed by the government was
a special type of debt that did not satisfy the elements of taxation. McHugh J added that the term "public
purpose" meant government purpose, and the fee imposed had no government purpose. The Commonwealth
played a merely supervisory role
(1938) 60 CLR 263
Relevant Sections: s51(ii), s55
Case summary/Quote:
o Per Latham CJ in Matthews v Chicory Marketing Board (Vic) (1938)
o A tax is
▪
A compulsory exaction of money
▪
By a public authority
▪
For public purposes
•
▪
-
Enforceable by law
And is not a payment for services rendered
This was also a case that considered section 90 of the Australian Constitution, which prohibits States from
levying excise (taxes). Although the meaning of excise was considered in Peterswald v Bartley,[2] this case
significantly broadened its reach.
-
21
-
In this case, the law in question was a Victorian tax on producers of chicory, which was measured at the rate of
one pound per half-acre, of land planted with the crop. The minority in this case, consisting of Latham CJ and
McTiernan J, followed the Peterswald definition and held that an excise must have some relation to the
quantity or value of the goods.
-
On the contrary, the majority, whose principal judgment was delivered by Dixon J, allowed this extension.
After examining the history of excise in England, his Honour concluded that the definition in Peterswald may
be too narrow. All that is required is that the "tax must bear a close relation to the production or manufacture,
the sale or the consumption of goods and must be of such a nature as to affect them as the subjects of
manufacture or production or as articles of commerce". Hence, although the tax in this case did not directly
refer to the quantity or value of the chicory produced, the land area has a "natural, although not a necessary"
relation to the quantity produced, and it is a "controlling element". This was formulated with reference to the
framers of the Constitution, who adopted an excise as "a tax directly affecting commodities"
(1993) 176 CLR
555
Relevant Sections: s 51(ii), s54/55, s81-83
Case summary/Quote:
-
Two Commonwealth Acts, the Training Guarantee Act 1990 and the Training Guarantee (Administration) Act
1990 mandated a minimum amount an employer had to spend training their workforce. Further, employers had
to pay any shortfall in the amount that had to be spent in training and the actual amount to the government.
Northern Suburbs General Cemetery Reserve Trust did not spend the minimum amount, and had to pay the
difference to the government. They argued the Act was unconstitutional because it was not a valid law with
respect to taxation. If the laws achieved their purpose, then no revenue would actually be collected by the
Commonwealth. Further, looking at the statements of objectives of the Acts, raising revenue was not an
objective.
-
Per Mason CJ, Deane, Toohey and Gaudron JJ:
o The laws were made pursuant to the taxation power. Although revenue raising was not a stated
objective, it intrinsically was an objective of the Acts. More importantly, if a law on its face is one with
respect to taxation, the law does not cease to have that character simply because parliament seeks to
achieve a purpose not within Commonwealth power.
22
o The plaintiffs argued that the money paid was not a tax but a fee for services. The court held that it was
not a fee for services because the connection between the service and the fee was too remote. The court
could not determine for what service the fee was paid.
(1936) 54 CLR 657
Relevant Sections: 51(ii), 92, 99 (Discrimination between the states)
Case summary/Quote:
-
It may be noted that the discrimination which is forbidden by s 51 (II) includes discrimination between parts of
the same State.
-
Dixon J, in the consideration of this case, my opinion has fluctuated, but I have reached the conclusion that, in
specifying ports in four States only for the purpose of the Transport Workers (Seamen) Regulations, SR 1935
(No 125), the Commonwealth, by a regulation of commerce, gave preference to those States or parts thereof
over the other States, contrary to s 99 of the Constitution, and that a declaration to that effect ought to be made
o In Crowe v Commonwealth, (1935) ALR 445, I said that in relation to trade and commerce, as
distinguished from revenue, the preference referred to by s 99 is evidently some tangible advantage
obtainable in the course of trading or commercial operations, or at least some material or sensible
benefit of a commercial or trading character. I intended the expression "trading or commercial
operations" to bear a very wide and general meaning. It includes the activities which attend carriage by
sea or land. Further consideration has confirmed me in the view which I then expressed. I repeat that the
preference may consist in a greater tendency to promote trade, in furnishing some incentive or facility,
or in relieving from some burden or impediment. But it is, perhaps, desirable to notice that the phrase is
not "give a preference," but "give preference."
Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548
Relevant Sections: s51(ii), 99
Case summary/Quote:
-
Fortescue challenged validity of 4 CTH acts/regs in relation to taxes/excises etc.
23
-
Fortescue principally argued that the impugned legislation discriminated between States, contrary to the
Commonwealth Constitution s 51(ii), and gave preference to one State over another, contrary to the
Constitution s 99. This was on the basis that, where minerals resource rent tax (MRRT) was payable, the
formula by which it was calculated meant that miners in different States may be liable for different amounts of
MRRT, despite conducting identical operations. The Court concluded that the MRRT Legislation did not
discriminate between States. It noted that the fact that a miner would pay a different amount of MRRT if that
miner conducted identical operations in another State did not demonstrate discrimination
-
"Section 99 of the Constitution does not prohibit discrimination between the States, but merely prohibits
preference by one State or any part of a State over another by the Commonwealth in the exercise of any power
which is itself not discriminatory between the States" [at para 70].
-
In this quote, the High Court of Australia is referring to Section 99 of the Australian Constitution, which
prohibits the Commonwealth from giving preference to any state or part of a state in the exercise of any power
conferred by the Constitution. The court is emphasizing that this provision does not prohibit discrimination
between the states by the Commonwealth, but only prohibits the Commonwealth from giving preference to one
state or part of a state over another. This means that the Commonwealth can impose taxes or other measures
that have different effects on different states, as long as it does not give preference to one state or part of a state
over another.
8 CLR 156
Relevant Sections: s51(ii), s61, s116
This reaffirms Pape. Commonwealth needs a head of power to
spend.
Case summary/Quote:
-
Background:
-
As part of the National School Chaplaincy Programme, the Commonwealth government entered into a contract
with a company, Scripture Union Queensland, for the provision of chaplaincy services at a State school in
Queensland. The contract was described as the Darling Heights Funding Agreement. Ronald Williams, the
father of four children attending the school, brought proceedings in the High Court challenging the validity of
the funding agreement and the making of payments under the funding agreement. Mr Williams contended that
the Commonwealth did not have power under s 61 of the Constitution to enter into the funding agreement, and
that the funding agreement was prohibited by s 116 of the Constitution.[1]: para 2
-
LEXUS NEXUS
-
Determination on special case.
24
-
Respondent Commonwealth of Australia entered into funding agreement with public company for provision of
chaplaincy services at school in Queensland pursuant to Commonwealth's National School Chaplaincy
Program (NSCP).
-
Chaplaincy services included assisting school and community 'in supporting spiritual wellbeing of students' and
being approachable by all students, staff and members of school community of all religious affiliations'.
-
Funding for NSCP provided under funding arrangements administered by respondent and not by legislation.
-
Applicant father of children enrolled in school in which NSCP was implemented sought declaration respondent
did not have authority to make payments to public company pursuant to funding agreement or other similar
agreement.
-
Claimed had standing because had special interest in subject because applicant's children attended school in
respect of which funds have been expended by respondent.
-
Claimed expenditure for NSCP did not fall within any ordinary and recognised functions of respondent.
-
Claimed payments of moneys under funding agreement were not authorised as enterprise or activity peculiarly
adapted to Australian government and could not be described as spending on ordinary annual services of
government.
-
Claimed funding agreement was means of carrying out or implementing new policy by entering into contract.
-
Claimed respondent did not have unlimited capacity to enter into contract.
-
Claimed agreement did not constitute 'benefits to student' because not possible to demonstrate any benefit to
any particular student at any particular time.
-
Claimed payments to private company pursuant to funding agreement prohibited by Commonwealth
Constitution s 116 because eligibility criteria imposed religious test as qualification for office of chaplains.
-
Respondent claimed applicant had no standing to challenge matters and consequently intervention by States
was of no consequence.
-
Claimed subject matter of agreement covered by Constitution s 51(xxiiiA) because agreement provided for
involved provision of benefits to students.
-
Claimed power of executive government to enter into funding agreement and to make payments to private
company pursuant to agreement and NSCP derived from Constitution s 61.
-
Claimed making of funding agreement and payments to private company were within executive power and
covered by Constitution s 51(xxiiiA) because agreement provided for provision of benefits to students.
-
Claimed respondent possessed capacities, in common with legal person, including capacity to obtain
information, to spend money lawfully available to be spent or enter into contracts.
-
Held, making the determination (6:1):
-
(i) Did the applicant have standing to challenge the funding agreement and the payments to the private
company?
25
o Per Gummow and Bell JJ (Crennan, Kiefel, Heydon and French CJ agreeing): The applicant had
standing to challenge the validity of the funding agreement. The applicant was extensively supported by
the states of Victoria and Western Australia who each exercised the right of intervention given by the
(CTH) Judiciary Act 1903 s 78A.
o Per Heydon J: The applicant had a special interest in having a judicial determination of the validity of
payment made for the period during which the applicant's children attended school.
-
(ii) Was the funding agreement invalid and payments made under it unlawful by reason that the funding
agreement and those payments were beyond the executive power of the respondent under the Constitution s 61?
o Per French CJ (Gummow, Bell and Crennan JJ agreeing): Yes. The Constitution section 61 did not
empower the respondent, in the absence of statutory authority, to contract for or undertake the
challenged expenditure on chaplaincy services.
o Per Heydon J (dissenting): The respondent did not need statutory authority to pay money to carry out
the NSCP pursuant to the contract because the NSCP did not create rights and obligations which
conflict with existing rights and obligations or with State or federal law. In any event, the applicant
failed to identify the source and nature of any limitations of executive power.
-
(iii) Did the funding agreement fall within legislative heads of power of the Constitution ss 51(xx) and
51(xxiiA)? (Benefits to students, maternity allowances etc etc)
o Per Hayne J: No. The provision of payment for a chaplain to a school was not a form of 'benefits to
student'. The payments made under the NSCP were made to provide a service to which students may
resort and from which they may derive advantage.
o Per Kiefel J: The benefits provided to students in reliance on s 51(xxxiiiA) must be provided to students
as a class.
o Per Heydon J (dissenting): The Constitution s 51(xxiiiA) conferred power to enact legislation
permitting the respondent to provide non-monetary benefits to students by financing others to provide
those benefits.
-
(iv) Did the executive have an unlimited capacity to enter into contracts and pay money pursuant to such
contracts?
o Per Gummow and Bell JJ: No. The executive power of the respondent did not extend to enabling it to
enter into contracts and undertake expenditure of public moneys.
o Per French CJ: The respondent was not just another legal person with contractual capacity. Character of
the respondent government as a national government did not entitle it to enter into any such field of
activity by executive action alone. Such an extension of respondent executive powers would
correspondingly reduce those of the States and compromise 'truly federal government'.
26
o Per Hayne J: The extent to which the respondent may enter into agreements and dispose of property did
not depend on assumptions about its capacities but must be ascertained by interpreting the Constitution.
o Per Crennan J: If the respondent had unrestricted power to enter into such agreements, the respondent
would be able to implement new policies without the processes of scrutiny and debate from the
Parliament.
o Kiefel J: The Constitution s 96 confirmed that the executive power was not unlimited. The executive
was not authorised by the Constitution to expand its powers by contract.
-
(v) Were the payments made by the respondent pursuant to the funding agreement prohibited by the
Constitution s 116?
o Per Gummow and Bell JJ (Hayne, Kiefel, Crennan JJ and French CJ agreeing): No. Chaplains engaged
by the private company did not hold office under the Commonwealth. The chaplain did not enter into
any contractual or other arrangement with the respondent. It was not sufficient to render the chaplain as
a holder of an office under the respondent merely because the respondent funded the employment of the
chaplain
(2014) 252 CLR 416
Relevant Sections: s51(ii), s61, s116
Case summary/Quote:
-
Within days of Williams (No 1), the Commonwealth Parliament reacted by passing the Financial Framework
Legislation Amendment Act (No 3) 2012 (Cth) (FFLA Act) .
-
The FFLA Act purported to give the Commonwealth Government a general power to spend money for any
purpose specified in regulations, which are made by the Executive rather than by Parliament. Professor Anne
Twomey, Professor of Constitutional Law at the University of Sydney, described the FFLA Act as the
Parliament’s “act of hara-kiri”,[1] since its effect was to give the Executive the power to “spend money on
whatever it wished without the need for further legislation or parliamentary scrutiny”.
-
Unsurprisingly, the Commonwealth then made regulations purporting to authorise a suite of “arrangements,
grants and programs”, including the chaplaincy program.
-
On its face, this meant that the chaplaincy program no longer fell afoul of the High Court’s reasoning in
Williams (No 1), since it was authorised by legislation.
27
-
However, undeterred, Mr Williams commenced a new High Court proceeding, challenging the constitutionality
of the FFLA Act provisions and the regulations.
-
LEXUS NEXUS
-
Determination on special case.
-
Respondent Commonwealth of Australia entered into funding agreement with public company for provision of
chaplaincy services at school in Queensland.
-
Funding agreement was made under National School Chaplaincy and Student Welfare Program.
-
Applicant parent of children enrolled in school in which chaplaincy services were implemented challenged
payment of money made by Commonwealth to public company.
-
Applicant successful in claim that funding agreement and payments made under agreement were not supported
by executive power of Commonwealth.
-
Parliament enacted (CTH) Financial Framework Legislation Amendment Act (No 3) 2012 (FFLAA) which
amended (CTH) Financial Management and Accountability Act 1997 (FMAA) and (CTH) Financial
Management and Accountability Regulations 1997 (FMAR) intended to provide legislative support for making
of agreements and payments.
-
In instant proceeding, applicant challenged validity of provisions of FMAA and FMAR entitled
'Supplementary powers to make commitments to spend public money etc', which was inserted by FFLAA.
-
Respondents claimed Appropriation Acts for years 2011-2012, 2012-2013 and 2013-2014 authorised making
of funding agreement by providing that amounts appropriated by those Appropriation Acts may be applied to
outcome identified as National School Chaplaincy and Student Welfare Program.
-
Held, making the determination (6:0):
-
(i) Was the funding agreement supported by the Appropriation Acts?
o Per French CJ, Hayne, Kiefel, Bell and Keane JJ (Crennan J agreeing): This question was unnecessary
to answer because the conclusions reached about the validity of the impugned provisions of the FMAA,
the FMAR and the FFLAA would apply equally to the Appropriation Acts if they otherwise provided
authority for the making of the agreement and payments in issue.
-
(ii) Were the impugned provisions wholly invalid?
o Per French CJ, Hayne, Kiefel, Bell and Keane JJ (Crennan J agreeing): Yes. In operation with respect to
the funding agreement and with respect to payments made under the funding agreement, none of
FMAA s 32B, FMAR Pt 5AA and sched 1AA of FFLAA Sch 1 item 9 were valid laws of
Commonwealth.
-
(iii) Was the Commonwealth's entry into, and expenditure of moneys under, the funding agreement, supported
by the executive power of the Commonwealth?
28
o Per French CJ, Hayne, Kiefel, Bell and Keane JJ: No. The agreement providing for payments to the
public company was invalid, because it was beyond the executive power of the Commonwealth and that
the making of the relevant payments by the Commonwealth to the public company under that
agreement was not supported by the executive power of the Commonwealth under the Commonwealth
Constitution s 61.
o Per Crennan J (dissenting on this point): Yes. It was not necessary for this Court to express any views
about the wisdom of governments providing services to school communities and students which support
the wellbeing of students. The Court's task was limited to determining whether the National School
Chaplaincy and Student Welfare Program was sufficiently connected to s 51(xxiiiA), which was relied
upon by the Commonwealth as a relevant head of power to support validity.
-
(iv) Did the applicant have standing to challenge the making of payments?
o Per French CJ, Hayne, Kiefel, Bell and Keane JJ (Crennan J agreeing): Yes. The applicant has standing
to challenge the making of payment, in the circumstances of the case, and to the extent necessary for the
determination of the matter.
-
(v) Was the making of the payments identified in the question unlawful?
o Per French CJ, Hayne, Kiefel, Bell and Keane JJ (Crennan J agreeing): Yes. The making of payments
was unlawful because it was not authorised by statute and was beyond the executive power of the
Commonwealth.
Week 4 – THE CROWN, THE EXECUTIVE POWER AND NATIONAL SECURITY 51(vi), (xxxix) 61
Book – Pages 432 – 484
-
and/or
class/lectures
Crown plays role in society (Has this power – vested in the crown). protector, conferred title/take land away,
treaties, disputes (adjudicator), makes the laws, law enforcer, taxes, currency.
-
The crown was brought into the Australian constitution. 1901 (we federated).
o S61 – execute and maintain the constitution. Very important. The job of the crown is to execute and
maintain the constitution. It constitutes the nation state. Constitutional order.
-
Crown comes first. The constitution brings it in.
-
(Making war and peace etc…). Though parliament controls purse strings… so hard to sustain war if Parliament
doesn’t support…
-
Parliament can’t do anything about prerogative powers.
29
-
Desuetude – No longer really used. Power belonging to crown that has fallen into such disuse that it isn’t used
anymore.
Relevant sections of the constitution
-
The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and
may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner
dissolve the House of Representatives.
-
Summoning Parliament
o After any general election the Parliament shall be summoned to meet not later than thirty days after the
day appointed for the return of the writs.
-
First session
o The Parliament shall be summoned to meet not later than six months after the establishment of the
Commonwealth.
-
Every House of Representatives shall continue for three years from the first meeting of the House, and no
longer, but may be sooner dissolved by the Governor-General.
-
matters incidental to the execution of any power vested by this Constitution in the Parliament or in either
House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department
or officer of the Commonwealth.
-
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General
as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the
laws of the Commonwealth.
-
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as
the Governor-General in Council may establish.
-
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the
Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.
-
Ministers to sit in Parliament
30
o After the first general election no Minister of State shall hold office for a longer period than three
months unless he is or becomes a senator or a member of the House of Representatives.
-
The command in chief of the naval and military forces of the Commonwealth is vested in the GovernorGeneral as the Queen’s representative.
-
This Constitution shall not be altered except in the following manner:
-
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the
Parliament, and not less than two nor more than six months after its passage through both Houses the proposed
law shall be submitted in each State and Territory to the electors qualified to vote for the election of members
of the House of Representatives.
-
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails
to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an
interval of three months the first-mentioned House in the same or the next session again passes the proposed
law by an absolute majority with or without any amendment which has been made or agreed to by the other
House, and such other House rejects or fails to pass it or passes it with any amendment to which the first
mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the
first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to
the electors in each State and Territory qualified to vote for the election of the House of Representatives.
-
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament
prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform
throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be
counted in any State in which adult suffrage prevails.
-
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority
of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the
Queen’s assent.
-
No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the
minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or
otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in
31
relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed
law.
-
In this section, Territory means any territory referred to in section one hundred and twenty-two of this
Constitution in respect of which there is in force a law allowing its representation in the House of
Representatives
Relevant cases
(1918) 25 CLR 32
Relevant Sections:
s51(vi), s61
Case summary/Quote:
-
This case goes to show how far, or how much power the executive will have in times of war
-
Isaacs, Powers and Rich JJ at 46
o "In the allocation and distribution of powers effected by the Constitution of the Commonwealth the
Defence power is exclusively assigned to the Commonwealth. It is a matter of common knowledge that
the necessity of a single authority for the defence of Australia was one of the urgent, perhaps the most
urgent, of all the needs for the establishment of the Commonwealth. That power now rests in the one
hand so far as Australian authority extends”
-
LEXUS NEXUS
-
Appeal against decision of Supreme Court of New South Wales.
-
Wheat broker operating in New South Wales made sales of wheat to persons in various states.
-
Government of New South Wales interfered with contracts and broker suffered loss.
-
Government claimed acts done in exercise of Royal prerogative in time of war.
-
Wheat Pool Scheme to export wheat to United Kingdom approved by Prime Minister.
-
Scheme involved no element of compulsion or interference.
-
Jury found that object of Government's actions was not for benefit of nation.
-
Supreme Court found in favour of respondent Treasurer of New South Wales.
-
Whether acts of Government made under provisions of Scheme.
-
Held, allowing the appeal:
o (i) Even assuming that the exercise of the Royal prerogative in war time could justify acts of the nature
of those complained of, the national defence is entrusted to the Commonwealth alone, and the State
Government has no power to use the prerogative. Further, that the acts complained of were not done by
the New South Wales Government as agent of the Commonwealth, nor even as part of the Wheat Pool
Scheme.
o (ii) There was no evidence to sustain the finding of the jury
32
(2009) 238 CLR 1
Relevant Sections: 59(xxxix), 61
Background: 2009 – legislation passed govt to give $900 if taxable income less than $100000.
Cheques go out, Pape brings action to HC to stop payments to say no general spending power under the constitution
that allows the govt to secure this money.
-
Nowhere under constitution, general power to spend money
-
By majority – is in constitution, a power, a nationhood power under s61.
o What is nationhood power? S61 execute and maintain constitution. Incidental power s51(xxxix) allows
for laws to be enacted to assist in the execution of powers incidental to the government of the
commonwealth.
o S51(xxxix) when added to s61, creates this legislative power for the parliament to enact legislation that
helps the government in its constitutional duty. To execute and maintain the constitution, which means
to protect that which the constitution constitutes which is the nation state.
o Power of govt to make laws to keep the nation together.
Case summary/Quote:
o French CJ [at 328] quoted Mason J in Davis v Commonwealth (1974) 131 CLR 477 that s 61 ‘[498]
enables the Crown to undertake all executive action which is appropriate to the position of the
Commonwealth’
o Gummow, Crennan and Bell JJ [83] “… the phrase “maintenance of this Constitution” in s 61…
[conveys] the idea of the protection of the body politic or nation of Australia…”
o Gummow, Crennan and Bell JJ [89] The Executive Government is the arm of the government
capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis…’
Relevant Sections: 51(xxxix) and 61
Background: A ship rescues persons off the coast of Australia. They could be considered ‘non lawful
citizens’. The commonwealth decided to detain them and prevent them access to Australia. There was statutory
powers under the Migration Act, however it was argued that the rescuers detention wasn’t lawful, that the
legislation under the Migration Act, acted as an abrogation against the prerogative powers of the crown to
refuse and expel aliens (essentially in a nutshell). That the Act focused more on the citizens rights to become
refugees etc. On final appeal from the Commonwealth, it was determined that the Commonwealth was acting
within the executive powers under s61, that the Migration Act didn’t abrogate that.
Case summary/Quote:
-
162 The key issues on this appeal are:
33
o 1. Whether the executive power of the Commonwealth authorised and supported the expulsion of the
rescuees and their detention for that purpose.
o 2. If there was no such executive power, whether the rescuees were subject to a restraint attributable to
the Commonwealth and amenable to habeas corpus.
-
178 The modern relationship of the power to the prerogatives of the Crown was stated by Mason J in Barton v
The Commonwealth (1974) 131 CLR 477 at 498:
o s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and
maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to
undertake all executive action which is appropriate to the position of the Commonwealth under the
Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the
prerogative powers of the Crown, that is, the powers accorded
-
180 Brennan J saw the phrase as assigning to the Executive government functions relating "not only to the
institutions of government but more generally to the protection and advancement of the Australian nation" referring to Burns v Ransley (1949) 79 CLR 101 at 109-110 and Australian Communist Party v The
Commonwealth (1951) 83 CLR 1 at 187-188.
Week 5 – DEFENCE AND EXTERNAL AFFAIRS
Book – Pages 933 – 1012
and/or
51(vi), (xxix) and 122
class/lectures
o Seas / submerged case (important) and Tas Dams (Mason’s Judgement – International concern)
-
s61: “The executive power of the Commonwealth is vested in the Queen and is exercisable by the GovernorGeneral as the Queen's representative, and extends to the execution and maintenance of this Constitution, and
of the laws of the Commonwealth”
-
S68: “The command in chief of the naval and military forces of the Commonwealth is vested in the GovernorGeneral as the Queen's representative”
In addition to ss 61 and 68, look at the Commonwealth role re the States:
-
S114: "A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any
naval or military force....”
-
s.119: "The Commonwealth shall protect every State against invasion and, on the application of the Executive
Government of the State, against domestic violence.”
34
-
Parliament: section 51 confers "power to make laws for the peace, order, and good government of the
Commonwealth with respect to:
o (vi) the naval and military defence of the Commonwealth and of the several States, and the control of
the forces to execute and maintain the laws of the Commonwealth;
o (xxvii) immigration and emigration;
o (xxvii) the influx of criminals;
o (xxix) external affairs;
o "In all countries and in all ages, it has often been found necessary to suspend or modify temporarily
constitutional practices, and to commit extraordinary powers to persons in authority, in the supreme
ordeal and grave peril of national war."
-
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by
the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the
Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such
territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Relevant sections of the constitution
-
A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or
military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the
Commonwealth impose any tax on property of any kind belonging to a State.
-
The Commonwealth shall protect every State against invasion and, on the application of the Executive
Government of the State, against domestic violence.
-
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
o (vi) the naval and military defence of the Commonwealth and of the several States, and the control of
the forces to execute and maintain the laws of the Commonwealth;
35
-
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;
-
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General
as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the
laws of the Commonwealth.
-
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by
the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the
Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such
territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Relevant cases
(1916) 21 CLR 433
Relevant Sections: 51(vi), (xxxix), 61
Background: Farey v Burvett concerned another provision of the War Precautions Act which provided for the
making of regulations prescribing and regulating the conditions of the disposal or use of any property, goods or things
as were thought desirable for the more effective prosecution of the war or the effective defence of the Commonwealth
(War Precautions Act 1914 (Cth) s 4(1A)(b). The regulation in question fixed the maximum price at which bread
could be sold. Mr Farey, a baker, was convicted of breaching that regulation.
Case summary/Quote:
Barton J at 449
-
“The test of whether the defence power was engaged was said by the Court to be whether the measure was
“capable” of aiding the defence of the Commonwealth; see also Griffith CJ at 441 and Higgins J at 460; or
even that it “may conceivably ... even incidentally” aid the defence of the Commonwealth (at 455 per Isaacs J)
Barton J at 477
-
“It is a common error to suppose that the defence of a country is limited to the protection of its shores when
invasion is actually made or attempted. There is much more hope for the country which, at need, sends its
armies or its ships, or both, abroad, to engage, to overcome if possible, or to cripple the enemy in whatever
field he may be found. One is safer from a burglar if he can grapple with him at the gate without waiting until
he has entered the house, and one's belongings are by this means infinitely safer. Success in a distant field is
36
therefore often the surest means of saving one's own country from invasion. Next, attack may be, and often is,
the best defence. This needs no proof. Now, these principles do not apply to the operations of troops and
warships alone. In these days the strategy of war is not so limited. It applies to war by many other methods
devised to assist in the subjection of the enemy”
Isaacs J at 454
-
“A war imperilling our very existence, involving not the internal development of progress, but the array of the
whole community in mortal combat with the common enemy, is a fact of such transcendent and dominating
character as to take precedence of every other fact of life. It is the ultima ratio of the nation. The defence
power then has gone beyond the stage of preparation; and passing into action becomes the pivot of the
Constitution, because it is the bulwark of the State. Its limits then are bounded only by the requirements of selfpreservation….
-
The best protection all the rights and powers so jealously, and in ordinary times So justifiably, defended can
have, so far as Australia is concerned, is the very Commonwealth power that is now sought to be limited. The
Constitution cannot be so construed as to contemplate its own destruction or, what amounts to the same thing,
to cripple by checks and balances the ultimate power which is created for the undeniable purpose of preserving
at all hazards and by all available means the inviolability of the Commonwealth and of the several Stales."
Griffith CJ at 440
-
"The first question, then, is what is the nature and extent of the power conferred by pl. VI…. As to the
suggested limitation by the context, the words "naval" and "military” are not words of limitation, but rather of
extension, showing that the subject matter includes all kinds of warlike operations.
-
…In my opinion the word "defence" of itself includes all acts of such a kind as may be done in the United
Kingdom, either under the authority of Parliament or under the Royal Prerogative, for the purpose of the
defence of the realm, except so far as they are prohibited by other provisions of the Constitution.
-
This, then, is the subject matter with respect to which power to legislate is given. It includes preparation for
war in time of peace, and any such action in time of war as may conduce to the successful prosecution of the
war and defeat of the enemy. This is the constant and invariable meaning of the term. It is obvious, however,
that the question whether a particular legislative act is within it may fall to be determined upon very different
considerations in time of war and time of peace."
-
Defence includes every act which in the opinion of the proper authority is conducive to the public security.
Those who are entrusted with the ultimate power of guarding the national safety are not bound to subordinate
that consideration to any other."
37
Relevant sections: s51 (xxxix) – External affairs, s61
Background: A case talking about the extradition of Australian citizens from Brazil. Was it constitutional for
us to ask them to send the crooks over despite having no extradition treaty. The external affairs and 61 of the
constitution allowed it. It fell within a prerogative right, which isn’t displaced by statute as per below.
Quotes:
(page 481)
-
A prerogative right is displaced by statute only if the statute bears upon the precise subject matter of the
prerogative and regulates it differently from the way in which it was previously regulated: Attorney-General
v. De Keyser's Royal Hotel Ltd. (13).
Mason J at page 498.
-
By s. 61 the executive power of the Common-wealth was vested in the Crown. It extends to the execution and
maintenance of the Constitution and of the laws of the Common-wealth. It enables the Crown to undertake all
executive action which is appropriate to the position of the Commonwealth under the Constitution and to the
spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that
is, the powers accorded to the Crown by the common law
(1988) 166 CLR 79
Relevant Sections:
s51(xxxix) and 61
Case summary/Quote:
-
Determination on demurrer.
-
(CTH) Australian Bicentennial Authority Act 1980 (Act) related to Australian Bicentennial Authority which
was company limited by guarantee and registered under (ACT) Companies Ordinance 1962.
-
Commonwealth incorporated company for purpose of carrying out and implementing plan or program for
commemoration of Australia's bicentenary.
-
First plaintiff owned and operated printing and design business.
-
Designed and printed for sale business articles or clothing bearing name of Authority and certain symbols and
expressions prescribed under Act s 22.
-
Second and third plaintiffs intended to retail and distribute articles of clothing.
38
-
First plaintiff requested Authority to consent in writing to use of prescribed words, symbols and expressions
and Authority declined to give consent.
-
Plaintiffs claimed Act ss 22 and 23 and appropriation of moneys by first defendant for purposes of celebration
of bicentenary beyond power of Commonwealth Parliament.
-
Defendants demurred to statement of claim.
-
Held, making the determination:
o (i)Per Mason CJ, Deane and Gaudron JJ (Wilson, Dawson and Toohey JJ agreeing): The
commemoration of the bicentenary was a matter falling within the peculiar province of the
Commonwealth in its capacity as the national and federal government. That was not to say that the
States had no interest or no part to play in the commemoration. Clearly they had such an interest and
such a part to play, whether as part of an exercise in co-operative federalism or otherwise. But the
interest of the States in the commemoration of the bicentenary was of a more limited character. It could
not be allowed to obscure the plain fact that the commemoration of the bicentenary was pre-eminently
the business and the concern of the Commonwealth as the national government and as such fell fairly
and squarely within the federal executive power. The executive power extended to the incorporation of
a company as a means for carrying out and implementing a plan or program for the commemoration.
There was no constitutional bar to the setting up of a corporate authority to achieve this object or
purpose in preference to executive action through a Ministry of the Crown. Certainly there was no such
bar to the incorporation of a company in the Australian Capital Territory. The Commonwealth
Constitution s 51(xxxix) enabled the Parliament to legislate in aid of an exercise of the executive
power. So, once it was accepted that the executive power extended to the incorporation of the Authority
with the object set out in its memorandum of association, s.51(xxxix) authorised legislation regulating
the administration and procedures of the Authority and conferring on it such powers and protection as
may be appropriate to such an authority. Per Brennan J: It was entirely appropriate to treat the
Constitution s 61, in conjunction with s 51(xxxix), as authorising the Commonwealth to
commemorate the bicentenary of the first European settlement in Australia. It was unnecessary to dwell
on the implications of that event for the history of Australia to reach that conclusion.
233 CLR 307
Relevant Sections:
s51(vi), Chapter III courts
Case summary/Quote:
-
Facts:
o The plaintiff, Mr Thomas, was subjected to an interim control order by a federal Magistrate (per div
104 of the Criminal Code (CTH))
39
o Thomas required to stay at his residence between midnight and Sam each night, to report to the
Victorian police three times a week, not to contact members of certain listed terrorist organisations, and
not to use email, mobile phone or the internet technology that had not been approved by the Counter
Terrorism Coordinator of the Federal Police.
o The magistrate granted control order only after finding ex parte:
▪
Thomas trained with Al Qaeda in the use of explosives and automatic weapons; without the
control order, Thomas' skills and knowledge could provide a potential resource for the
preparation of a 'terrorist act'
o A confirmation hearing to test these findings
o Thomas challenged Division 104 as (1) beyond Defence power & (2) the making of control orders was
contrary to Ch III
-
The Commonwealth's Case:
o 1. Mr Thomas has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist
organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code
Act 1995. Mr Thomas also admitted that while at the Al Qa'ida training camp he undertook weapons
training, including the use of explosives and learned how to assemble and shoot various automatic
weapons.
o 2. There are good reasons to believe that given Mr Thomas has received training with Al Qa'ida he is
now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa'ida or
related terrorist cells, Training has provided Mr Thomas with the capability to execute or assist with the
execution directly or indirectly of any terrorist acts.
o 3. Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who
will nurture him during his reintegration into the community. Mr Thomas's links with extremists such
as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas's
vulnerabilities.
o 4. Furthermore, the mere fact that Mr Thomas has trained in Al Qa'ida training camps, and associated
with senior Al Qa'ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his
skills and experiences to guide them in achieving their potentially extremist objectives.
o 5. The controls set out in this interim control order statement will protect the public and substantially
assist in preventing a terrorist act. Without these controls, Mr Thomas's knowledge and skills could
provide a potential resource for the planning or preparation of a terrorist act."
-
CTH argument was that Div 104 was valid as:
o applications for control orders must be heard in open court; the burden of proof lies on the AFP and the
rules of evidence apply;
40
o a person who is the subject of an application for a control order must, prior to the confirmation hearing,
be given the documents that were provided to the Attorney-General for the purpose of seeking the
Attorney's consent to the application for the interim control order, together with any other details
required to enable the person to understand and respond to the substance of the facts, matters and
circumstances that would form the basis for the confirmation order; at the hearing, the AFP and the
person subject to the order and/or his or her legal representatives may adduce evidence, cross-examine
witnesses and make submissions;
o and the control order made against Thomas can be appealed through the courts
-
Decision:
-
High Court held Div 104 to be valid. Gleeson C]:
o "The power to make laws with respect to the naval and military defence of the Commonwealth and of
the several States, and the control of the forces to execute and maintain the laws of the Commonwealth,
is not limited to defence against aggression from a foreign nation; it is not limited to external threats"
-
A control order has the purpose of protecting the public from a terrorist act. Real judicial task for the Court court must be satisfied on B of P that:
o making order would substantially assist in preventing a terrorist act, or that the person has provided
training to, or received training from, a listed terrorist organisation.
o obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary
o Div 104 is supported by the Defence power and the External Affairs power
o No Ch Ill problem as "Applications for control orders are made in open court, subject to the power to
close the court under the court's general statutory powers. The rules of evidence apply. The burden of
proof is on the applicant."
-
Callinan J:
o Deals extensively with the caselaw esp the Communist Party case
o Language of s.51 (vi) is expansive
o There is no issue with the making of control orders
o Courts are often required to make orders ex parte
o No constitutional issue raised by making of control orders
▪
"Already in Australia there have been persons convicted or charged of conspiring or planning
to undertake terrorist activities in this country. Much of this is a matter of public record”
▪
"Defence is not something of concern to a nation only in times of a declared war. Nations
necessarily maintain standing armies in times even of apparent tranquility, Threats to people
and property against which the Commonwealth may, and must defend itself, can be internal as
well as external."
41
The effect of Thomas v Mowbray on Defence Power
-
Casts serious doubt on whether the Australian Communist Party (1951) 83 CLR 1 is still good law in
Australia?
-
Raised issue of whether the Defence Power waxes or wanes post-Sept 11?
-
Raised issue of what laws and orders infringing on civil liberties can be made consistent with Ch II?
(1951) 83 CLR 1
Relevant Sections:
s51(vi), s51(xxxix), s61. Defence powers not engaged to get rid of communist party
Case summary/Quote:
-
In the general election held on 10 December 1949, Prime Minister Robert Menzies led a Liberal-Country Party
coalition to government pledged to dissolving the Communist Party of Australia.[2] The party had been banned
before: following the Molotov-Ribbentrop Pact, the party had opposed Australian involvement in the Second
World War in 1939, which gave Menzies' United Australia Party-Country Party government the opportunity to
dissolve it on 15 June 1940 under the National Security (Subversive Associations) Regulations 1940, (Cth)
relying on the defence power of the Constitution of Australia. These regulations were invalidated by the High
Court in the Jehovah's Witnesses case (Adelaide Company of Jehovah's Witnesses Inc v Commonwealth
(1943) 67 CLR 116.) Before that, the ban on the Communist Party (now supporting the war after the invasion
of the Soviet Union) was lifted by the Curtin government in December 1942.[2]: 630–3
-
The Communist Party Dissolution Bill was brought into the House of Representatives by Prime Minister
Menzies on 27 April 1950.[3]
-
The Bill began with a long preamble with nine 'recitals', which: "(a) cited the three powers principally relied
upon: section 51(vi) of the Constitution (the defence power), section 51(xxxix) (the express incidental power),
and section 61 (the executive power); "(b) summarised the case against the Communist Party by reference to its
objectives and activities: it was said to engage in activities designed, in accordance with 'the basic theory of
communism, as expounded by Marx and Lenin', to create a 'revolutionary situation' enabling it 'to seize power
and establish a dictatorship of the proletariat.' To this end, it engaged in 'activities ... designed to ... overthrow
... the established system of government in Australia and the attainment of economic, industrial or political
ends by force, ... intimidation or [fraud]', especially espionage, sabotage, treason or subversion, and promoted
strikes to disrupt production in industries vital to Australia's security and defence, including coal-mining, steel,
engineering, building, transport and power; and "(c) asserted that the measures taken by the Bill were necessary
for Australia's defence and security and the execution and maintenance of its Constitution and laws, thereby
tying the Bill's operative provisions to the powers cited in (a)."[2]: 638
42
-
The Bill went on to (1) declare unlawful the Australian Communist Party, confiscating without compensation
the property of the party; (2) deal with "affiliated organizations" (including any attempt to reconstitute the
party) by purporting to empower the Governor-General (in effect, the Executive) to declare unlawful affiliated
bodies if satisfied that their existence was prejudicial to security and defence which resulted in dissolution and
seizure of its property; evidence supporting a declaration had to be considered (not necessarily accepted as
proof) by a committee of Government appointees and affected organisations could only gain relief by proving
to a Court that they were not an affiliate but were unable to challenge security declarations; further, it created
an offence for a person knowingly to be an officer or member of an unlawful association and liable to 5 years
imprisonment; and (3) persons could be declared to be a communist or Party officer or member and to be
engaged, or 'likely to engage', in activities prejudicial to the security and defence of Australia: such declared
persons could not be employed by the Commonwealth or a Commonwealth authority, nor could they hold
office in a union in an industry declared by the governor-general to be 'vital to the security and defence of
Australia.'[2]: 639–640
-
The Bill was subjected to vigorous debate. In the House of Representatives, the Government accepted some
Opposition amendments but rejected the Opposition-controlled Senate amendments.[4]
-
A re-drafted Communist Party Dissolution Bill [No. 2] was introduced by Menzies on Thursday, 28 September
1950.[5] In his second reading speech, Menzies threatened a double dissolution of Parliament if the Senate
again rejected the measure. The Labor Party Opposition allowed it passage through the Senate on 19 October
1950 and the Government wasted no time in gaining royal assent and making the Act operative the following
day.
(1975) 135 CLR 337
Relevant Sections:
s51(xxix)
Case summary/Quote:
-
Post-war United Nations convention/conferences on the Law of the Sea defined national rights to & extent of
territorial seas and continental shelves extended to a 3 mile limit, to police mining and fishing rights in
territorial seas.
-
Territorial sea is measured from the coastal low water mark => national governments have sovereign rights to
mineral and fishing resources in TS
-
1973: Parliament enacted the Seas and Submerged Lands Act, declaring the Commonwealth's sovereignty over
the territorial sea, the airspace above it, and the seabed below
-
The validity of this Act was challenged by the States in the High Court
43
-
Question of whether s.51 (xxix) can support the Act
-
Barwick CJ:
o External affairs is a larger expression than foreign affairs, though the expressions are often used
interchangeably.
o the description "external affairs" covers a larger area of legislative power than would the description
"foreign affairs"
o The description of the subject matter of the power and the preference for external affairs rather than
foreign affairs in the Constitution was doubtless designed to include within the subject matter intercolonial matters which in Imperial days may not have been regarded as foreign affairs,
o Not limited to the making of arrangements with other nations or the implementation of such
international arrangements as may properly be made in Australia's interest with other nations
o Power extends to any affair which in its nature is external to the continent of Australia and the island of
Tasmania
o Very existence of a Territorial Sea depends on international agreement
o Only the Commonwealth has *international personality" to agree
-
Barwick CJ at 360
o “External affairs is a larger expression than foreign affairs, though the expressions are often used
interchangeably. In my opinion, the description "external affairs" covers a larger area a legislative
power than would the description "foreign affairs" The description of the subject matter of the power
and the preference for external affairs rather than foreign affairs in the Constitution was doubtless
designed to include within the subject matter inter-colonial matters which in Imperial days may not
have been regarded as foreign affairs. But the motive of the choice of the description will not govern
the content of the legislative power. That is not limited, in my opinion to the making of arrangements
with other nations or the implementation of such international arrangements as may properly be made
in Australia's interest with other nations, though doubtless these may be the most frequent
manifestations of the exercise of the power. The power extends, in my opinion, to any affair which in its
native is external to the continent of Australia and the island of Tasmania subject always to the
Constitution as a whole. For this purpose, the continent of Australia and the island of Tasmania are, in
my opinion, bounded by the low- water mark on the coasts. On this question, have expressed myself in
Reg y Bull (1974) ICA 23, (1974) 131 CER 203, at p 219. I agree with the Supreme Court of the United
States in thinking that, in this area of discourse, the low-water mark is passed, the international domain
is reached' United States -(1950) USSC 75, (1950) 339 US 707. at p 719”
44
(1983) 158 CLR 1
Relevant Sections:
s51(xxix), nationhood, 51(xx – corporations), 51(xxxi), s51(xxvi), 109, 110
Case summary/Quote:
-
Construction of a dam and associated works by the Hydro-Electric Commission of Tasmania was authorised by
the (TAS) Gordon River Hydro-Electric Power Development Act 1982.
-
The works would affect a small proportion of a very large area (the Western Tasmania Wilderness), almost
entirely unalienated Crown land, proclaimed as three national parks under the (TAS) National Parks and
Wildlife Act 1970 and originally constituted under earlier legislation.
-
By proclamation made in August 1982 a relatively small area of the parks was excised from the parks and
vested in the Commission.
-
A further even smaller area was proposed to be excised in 1990.
-
The World Heritage Commission decided in December 1982 to enter the Wilderness Area in the World
Heritage list maintained under the Convention for the Protection of the World Cultural and Natural Heritage, a
convention into which Australia had entered and which it had ratified.
-
Thereafter, in conformity with a policy of the Commonwealth Government to stop construction of the dam, the
Governor-General, acting in exercise of the power conferred by s 69 of the (CTH) National Parks and Wildlife
Conservation Act 1975, made the World Heritage (Western Tasmania Wilderness) Regulations 1983 and the
Commonwealth Parliament enacted the World Heritage Properties Conservation Act 1983 and regulations and
proclamations were made thereunder.
-
Either the World Heritage (Western Tasmania Wilderness) Regulations, or the World Heritage Properties
Conservation Act and its associated promulgations, would, if valid, render it unlawful to construct the dam
except with the consent of a Commonwealth Minister.
-
Held:
o (i) External affairs power (Constitutions 51(xxix)).
o (ii) Per Gibbs CJ, Mason, Murphy, Brennan and Deane JJ, (Dawson J dissenting): Section 51(xxix) of
the Constitution authorises Commonwealth laws which implement an obligation in a treaty or
convention which Australia has bona fide entered into and ratified, including laws having a purely
domestic operation with no international character apart from the treaty or convention.
o (iii) Per Wilson J: Only those obligations resting on the Commonwealth of such a quality that a failure
to implement threatens serious disruption to its international relationships will attract the external
affairs power in cases where the subject matter would otherwise be of purely domestic concern within
45
the province of the States. Different views expressed as to the determinant of whether a, treaty or
convention imposes an obligation.
o (iv) Per Gibbs CJ, Mason, Murphy, Brennan and Deane JJ, (Wilson and Dawson JJ dissenting): Section
69 of the National Parks and Wildlife Conservation Act 1975 is within the external affairs power in so
far as it authorises the making of regulations for and in relation to giving effect to the World Heritage
Convention.
o (v) Per Gibbs CJ, Wilson, Deane and Dawson JJ, (Mason, Murphy and Brennan JJ dissenting): The
World Heritage (Western Tasmania) Regulations are wholly invalid.
▪
(vi) Per Gibbs CJ, Wilson and Dawson JJ: As not falling within the external affairs power.
▪
(vii) Per Deane J: As providing for acquisition of property and not providing just terms.
o (viii) Per Mason, Murphy, Brennan and Deane JJ, (Gibbs CJ, Wilson and Dawson JJ dissenting):
Section 9(1)(h) of the World Heritage Properties Conservation Act 1983 and provisions in s 6 of the
Act and the Regulations and Proclamations under the Act relevant to the decision in the case were
within the external affairs power, in respect of other provisions in ss 6 and 9, a majority held that some
were invalid and that it was unnecessary to determine the validity of others.
o (ix) Inherent power derived from nationhood. Per Gibbs CJ, Wilson, Deane and Dawson JJ: An implied
inherent power of the Commonwealth derived from nationhood, if and to the extent that it exists, could
not support coercive measures for the protection or conservation of property in Australia because that
property was part of the heritage of the Australian nation. Section 6(2)(e) of the World Heritage
Conservation Act can not be supported by reference to such a power.
o (x) Corporations power (Constitution s 51(xx)). (a) Per Mason, Murphy and Deane JJ (Wilson and
Dawson JJ dissenting): The corporations power (Constitution s 51(xx)) extends to regulation of the
activities of trading corporations, not being trading activities. Section 10 of the World Heritage
Properties Conservation Act is within the power. (b) Per Gibbs CJ and Brennan J: Section 10(4),
dealing with the trading activities of trading corporations, is within power. (c) Per Gibbs CJ:
Subsections (2) and (3) were not within the constitutional power as the nature of the corporation was
not a sufficient element therein. (d) Per Brennan J (expressly not deciding): Whether a law which
prohibits a trading corporation from doing something unconnected with its trading operations is a law
with respect to trading corporations. (e) Per Mason, Murphy, Brennan and Deane JJ, (Gibbs CJ, Wilson
and Dawson JJ dissenting): The Hydro-Electric Commission set up under the (TAS) Hydro-Electric
Commission Act 1944 is, by reason of its large scale activities of selling electric power, a trading
corporation within the meaning of s 51(xx) of the Constitution.
o (xi) Special laws for people of any race. Constitutions 51(xxvi). (a) Per Mason, Murphy, Brennan and
Deane JJ, (Gibbs CJ, Wilson and Dawson JJ dissenting): Sections 8 and 11, protecting 'aboriginal sites',
ie sites (1) which are situated within identified property (property which is part of the cultural or
national heritage) and (2) protection or conservation of which is, whether by reason of the presence on
the site of artefacts or relics or otherwise, of particular significance to the people of the aboriginal race,
46
are within s 51(xxvi) of the Constitution. (b) Per Gibbs CJ, Wilson and Dawson JJ, (Mason, Murphy
and Brennan JJ dissenting): Sections 8 and 11 are invalid, as not being within s 51(xxvi). (c) Per Deane
J: As providing for acquisition of property and not providing just terms.
o (xii) Acquisition of property on just terms (Constitutions 51(xxxi)). (a) Per Mason, Murphy and
Brennan JJ: The prohibition of development of the affected property without the consent of a
Commonwealth Minister effected by ss 9, 10 and 11 of the World Heritage Properties Conservation Act
did not constitute acquisition of property within the meaning of s 5 1(xxxi) of the Constitution. (b) Per
Deane J: There had been a purported acquisition of property for the purposes of the Commonwealth by
the operation of the World Heritage (Western Tasmania Wilderness) Regulations 1983 upon the and of
the Hydro-Electric Commission and by the operation of a declaration that two caves and an
archaeological site as property to which the provisions of the World Heritage Properties Conservation
Act. The property purportedly acquired consisted of the benefit of the prohibition, which the
Commonwealth could enforce or relax, of the exercise of those rights of use and development of land
which would be involved in the doing of the specified Acts. Section 17 of the Act did not provide just
terms.
o (xiii) Guarantee of State right to use river waters (Constitution s 100). (a) By Mason, Murphy, Brennan
and Deane JJ: The prohibition in s 100 of the Constitution (which provides that the Commonwealth
shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any
part thereof over another State or part thereof) is confined to laws made, or capable of being made,
under ss 51(i) and 98. Neither s 10 nor any other section of the World Heritage Properties Conservation
Act infringed s 100 of the Constitution.
o (xiv) By Deane J: Section 109 of the Constitution did not have the effect that the (TAS) Gordon River
Hydro- Electric Power Development Act 1982 was wholly invalid.
o (xv) Interpretation of the legislative powers granted by ss 51 and 52 of the Constitution and validity of
Commonwealth laws considered generally and reference made to (a) the application of a power in
changing circumstances, (b) leaning towards a broad interpretation, (c) implied prohibitions, (d)
characterisation of laws, (c) validity of laws affecting prerogatives of the Crown in right of a State, (f)
the Crown prerogative in respect of waste lands of the Crown, (g) presumption of validity of
Commonwealth laws, (h) presumption of facts essential to validity, (i) the fallacy of reserved State
powers, and (j) the conception of the federal balance.
o (xvi) Consideration of construction of treaties generally and by Dawson J of the basis of the
Commonwealth power to make treaties. Reference made to the extent to which it is permissible to have
regard to preparatory work (travaux preparatoires) and the effect of the federal clause in the World
Heritage Convention.
o (xvii) Per majority: Accordingly, ss 9(1)(h) and 10(4) of the World Heritage Properties Act were valid,
with the result that the dam could not be constructed without the consent of a Commonwealth Minister
47
(1915) 20 CLR 299
Relevant Sections: 51 (vi), 51 (xxxix), 61
Background: During WW I, an order was made by detention of Mr Wallach under the War Precautions Act.
He was detained for over 4 years. The Courts found it valid. During war time, the defence powers were
broadened.
Case summary/Quote:
Justice Higgins observed that (at 310)
-
“In all countries and in all ages, it has often been found necessary to suspend or modify temporarily
constitutional practices, and to commit extraordinary powers to persons in authority, in the supreme ordeal
and grave peril of national war”.
Higgins J at (310-311)
-
“that extraordinary measures infringing the rule of law have been considered permissible during wartime,
when the continued existence of the nation as we know it is threatened.”
(1944) 69 CLR 457
Relevant Sections: s51(vi)
Case summary/Quote:
-
To understand this case, first understand farey v Burvett. That the rising of the price of bread was constitutional
in times of war.
-
Proceedings were instituted against Myrtle Grove Stenhouse before a Police Magistrate, for a breach of the
Bread Industry (New South Wales) Order, made on 22nd June, 1942, under reg 59 of the National Security
(General) Regulations, which Regulations were made under the National Security Act 1939–1943. The order
provides, inter alia (cl 9), that a person shall not distribute or cause to be distributed any bread in any area to
which the order applies unless he is the holder of a current licence authorising him to distribute bread in that
area, or is employed by the holder of a licence to distribute bread. Clause 14 provides that — "A person shall
not carry on the business of a master baker or bread distributor in contravention of this order." Mrs Stenhouse
was charged with the offence of carrying on the business of a master baker without the authority of a licence as
required by the order. It was proved that she did so carry on that business, and she was convicted. She obtained
a statutory prohibition in the Supreme Court of New South Wales, upon the ground, "that the said conviction
was contrary to law in that the Bread Industry (New South Wales) Order made under the National Security
(General) Regulations is ultra vires the National Security Act 1939–1943."
48
-
The case was attacked on 3 fronts. Namely, it didn’t fall within the defence power.
o “In the first place, it was argued that the production of goods, at least for civilian use, was not a matter
which fell within the defence power of the Commonwealth Parliament. In my opinion this general
proposition cannot be supported. It was held during the last war, in Farey v Burvett, (1916) 21 CLR
433 , 22 ALR 201, that the Commonwealth Parliament might validly provide means for fixing the price
of bread intended for civilian consumption. The same reasoning leads to the conclusion that the
Commonwealth Parliament can provide means for controlling the production of bread, which is the
most obvious necessity of life, both for the armed forces and for the civilian population”.
o
o In the second place, it was contended that the regulation was too wide, in that it authorised the making
of orders for the purpose of "maintaining supplies essential to the life of the community." It was urged
that this provision went beyond the subject of "securing the public safety and the defence of the
Commonwealth and matters necessary or convenient to be prescribed for the more effectual
prosecution of the war" — the words of the National Security Act. In my opinion this argument also
fails. The maintenance of supplies and services essential to the life of the community is, I think, plainly
and necessarily a matter having a most direct connection with the war. If the life of the community
cannot be maintained, the armed forces cannot be maintained
o In the third place, it was argued that reg 59 is too wide in that its application depends, as shown by its
initial words and by the definition of "essential articles," upon the opinion of a Minister. The regulation
is not limited to a power of making orders which are necessary in the interests of the defence of the
Commonwealth, etc., but allows the making of orders which "appear to a Minister" to be necessary in
the interests of the defence of the Commonwealth, etc. Therefore, it is said, the regulation purports to
authorise the making of orders merely upon the basis of the opinion of the Minister as to their necessity
for the purposes specified, quite irrespective of whether or not in fact that necessity in fact exists.
o Rule to remember: I suppose, if laws are created in a war effort for the protection of the country, this
would undoubtedly affect the individual person. As highlighted above, ‘If the life of the community
cannot be maintained, the armed forces cannot be maintained’.
Week 6 – JUDICIAL POWER OF COMMONWEALTH
Book – Pages 586 – 704
and/or
71, 73, 75, 77
class/lectures
-
Trade and commerce and tax is important.
-
99 Elliott case… Chicory case (defining a tax)
49
o The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the
High Court of Australia, and in such other federal courts as the Parliament creates, and in such other
courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many
other Justices, not less than two, as the Parliament prescribes.
▪
Vested – a right that is settled or secured in the possession of a person – an absolute ownership
that is not in any way contingent on any other person, thing or matter
-
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament
prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:
o of any Justice or Justices exercising the original jurisdiction of the High Court;
o of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State,
or of any other court of any State from which at the establishment of the Commonwealth an appeal lies
to the Queen in Council;
o of the Inter-State Commission, but as to questions of law only;
-
and the judgment of the High Court in all such cases shall be final and conclusive.
-
In all matters:
o arising under any treaty;
o affecting consuls or other representatives of other countries;
o in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
o between States, or between residents of different States, or between a State and a resident of another
State;
o in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the
Commonwealth;
the High Court shall have original jurisdiction.
-
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
o defining the jurisdiction of any federal court other than the High Court;
o defining the extent to which the jurisdiction of any federal court shall be exclusive of that which
belongs to or is invested in the courts of the States;
o investing any court of a State with federal jurisdiction.
50
-
“Jurisdiction is the power of a court or judge to entertain an action, petition or other proceeding” – Earl Jowitt,
The Dictionary of English Law (1959) at 1030
-
AKA the power of a Court to hear and decide a case and make an order that binds the parties
-
“Apart from these considerations, I am of the opinion that the words ‘judicial power’ as used in sec. 71 of the
Constitution mean the power which every sovereign authority must of necessity have to decide controversies
between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The
exercise of this power does not begin until some tribunal which has power to give a binding and authoritative
decision (whether subject to appeal or not) is called upon to take action”.
-
Huddart, Parker & Co v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ
-
“Chapter III is headed “the Judicature” and vests the judicial power of the Commonwealth not in the Sovereign
simply, or as he may in Parliament direct, but in specific organs, namely, Courts strictly called. They are the
High Court, such other federal Courts as Parliament creates, and such other Courts as it invests with federal
jurisdiction. There is a mandate to create a High Court; there is a discretionary power to invest with federal
jurisdiction such Courts as Parliament finds already in existence, that is, State Courts. But that exhausts the
judicature. And as to federal Courts, the Justices are to have a specific tenure. And distinct command of the
Constitution is that whatever judicial power – that is, in the contrasted sense – is to be exerted in the name of
the Commonwealth, must be exercised by these strictly so called judicial tribunals”
-
Summary
-
The Boilermakers case, decided by the High Court in 1956, has long been synonymous with the separation of
powers in Australia. In Boilermakers a High Court majority applied the separation doctrine to find that the
Commonwealth Court of Conciliation and Arbitration could not validly exercise judicial functions. According
to their Honours, the Arbitration Court had been established primarily as an arbitral authority and although its
judges had life tenure it was not constitutionally possible to give it ‘any part of the strictly judicial power of the
Commonwealth’. This included the power to interpret and enforce industrial awards. For the Boilermakers'
Society of Australia – the applicant in the High Court proceedings – this was a significant victory for it meant
that the Arbitration Court could not penalise the union for its involvement in strike action in breach of award.
-
Despite its prominence, the legal significance of Boilermakers is not always understood. It was not the first
case to recognise that the Australian Constitution incorporates a separation of federal judicial power from
legislative and executive power. Before 1920 it was already apparent that the judicial power of the
Commonwealth could only be exercised by the courts listed in s. 71 of the Constitution: the High Court, federal
51
courts created by Parliament, and courts invested with federal jurisdiction (‘Chapter III courts’). This is
commonly described as the ‘first limb’ of the separation of federal judicial power.
-
I believe Parliament made a court under s51(35).
-
Section 51(35) - conciliation and arbitration for the prevention and settlement of industrial disputes extending
beyond the limits of any one State
-
The argument was that Parliament could not do this (Exercising judicial power along with arbitral – settling
disputes powers), as only Chapter III Courts could give out judicial power. The separation of powers must
remain.
-
Was held: Judicial power cannot be granted to an arbitral body to enforce awards and punish for contempt in
the manner of a Ch III Court.
-
Dixon CJ, McTiernan, Fullagar and Kitto JJ at 296
o Judicial power can only be invested in a court created by ss. 71 and 72
o Federal Judicature must be both ‘paramount and limited’
o Chapter III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial
power of the Commonwealth by a body established fur purposes foreign to the judicial power,
notwithstanding that it is organised as a court and in a manner which might otherwise satisfy ss. 71 and
72, and that Chap III does not allow a combination with judicial power of functions which are not
ancillary or incidental to its exercise but are foreign to it”
-
A federal constitution must be rigid – Separation of powers. Constitution must be adhered to. If you try
and mix judicial and non-judicial powers, shouldn’t bother.
-
Can only exercise Judicial powers in a Chapter III Court.
-
War crimes Act 1945 (Cth): Any person that committed a war crime during WWII was guilty of an indictable
offence.
-
War crimes Amendment Act 1988 (Cth) repealed parts and replaced parts of the 1945 act to provide for
Australian citizens and German occupation of the former USSR and eastern Europe.
-
Polyukovich (An Australian citizen originally from Belarus) was charged under the Act with committing war
crimes in the Ukraine in 1942-43
-
Polyukovich’s lawyers argued:
o Law not supported by the Defence and External affairs powers.
o Law criminalised past conduct and thus enacted a Bill of Attainder, and was invalid because of Ch III
of the constitution.
-
Mason CJ, Dawson, Toohey and McHugh JJ held the law valid
-
Mason CJ:
o Law is supported by the ‘external affairs power’ power
52
o Criminal conduct which took place outside Australia and makes that conduct a criminal offence is a law
with respect to external affairs
o Australia has an interest or concern stemming from Australia’s participation in WWII
o Australian Parliament may criminalise past conduct – no prohibition in Constitution
o There is no legislative judgment – criminal trial still to occur per judicial process
-
Toohey J:
o Retrospective criminal laws do not offend Chapter III
-
McHugh J:
o A law which creates a criminal offence but operate retrospectively is not the same as a Bill of Attainder
or a Bill of Pains and Penalties
-
Question of amendment to the Migration Act that directed the detention of certain non-citizens
-
Can the Parliament effectively order the detention of persons?
-
Brennan, Deane and Dawson JJ:
o Chapter III Courts exercise judicial power consistently with both the essential character of courts and
judicial substance
o Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from
executive and legislative powers
o Thus, it is well settled that the grants of legislative power contained in s51. Constitution, which are
expressly ‘subject to the provisions of the constitution as a whole, do not permit the conferral upon any
organ of the executive government of any part of the judicial power of the Commonwealth. Nor do those
grants of legislative power extend to the making of a law which requires or authorises the court in
which the judicial power of the commonwealth is exclusively vested to exercise judicial power in a
manner which is inconsistent with the essential character of a court with the nature of judicial power
o There are some functions which, by reason of their nature or because of historical considerations, have
become established as essentially and exclusively judicial in character. The most important of them is
the adjudgment and punishment of criminal guilt under a law of the commonwealth
o In exclusively entrusting to the courts designated by Ch III, the function of the adjudgment and
punishment of criminal guilt under a law of the commonwealth, the constitution’s concern is with
substance and not mere form
-
Chu kim – no power to direct a court as to its manner of jurisdiction. No law that tells a court that
person must be detained…
o In summary, the Court found that Commonwealth government has the power to make laws with respect
to the deportation of non-citizens under the Constitution, but that this power is subject to limits imposed
53
by the Constitution, such as the requirement that the deportation must be for a purpose authorized by
the Constitution and the protection of the rights of non-citizens.
-
Kables – architect and structure… cant have parliament conferring upon courts functions that are
repugnant/incompatible with the exercise of judicial power.
-
ITC case – court must have power to control their own proceedings. ‘inter partes’ hearing etc… ex parte
proceedings must have some means of the other party to challenge it and be heard.
Relevant sections of the constitution
o The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the
High Court of Australia, and in such other federal courts as the Parliament creates, and in such other
courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many
other Justices, not less than two, as the Parliament prescribes.
▪
Vested – a right that is settled or secured in the possession of a person – an absolute ownership
that is not in any way contingent on any other person, thing or matter
-
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament
prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:
o of any Justice or Justices exercising the original jurisdiction of the High Court;
o of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State,
or of any other court of any State from which at the establishment of the Commonwealth an appeal lies
to the Queen in Council;
o of the Inter-State Commission, but as to questions of law only;
-
and the judgment of the High Court in all such cases shall be final and conclusive.
In all matters:
o arising under any treaty;
o affecting consuls or other representatives of other countries;
o in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
o between States, or between residents of different States, or between a State and a resident of another
State;
o in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the
Commonwealth;
the High Court shall have original jurisdiction.
54
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
-
defining the jurisdiction of any federal court other than the High Court;
-
defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or
is invested in the courts of the States;
-
investing any court of a State with federal jurisdiction.
Relevant cases
(1995) 183 CLR 245
Relevant Sections:
71, 72
Principle: ch ii courts (this HREOC tribunal) can not legislate (try and pass a law/statute) that allows them to
become a ch iii court (The registering of the decision in the Federal Court would have made it binding) HCA
said no.
Case summary/Quote:
-
Arguments on the validity of the Human Rights and Equal Opportunity Commission (HREOC) hearing and
determining matters. They were a commission.
-
They were exercising Ch III Courts, in that, s71 deems who has been vested with judicial power. HCA, Federal
Courts created by Parliament etc.
-
Because this commission was ultimately exercising judicial power in contradiction to 71, 72, the decisions that
it made were invalid.
-
The plaintiff's challenge to particular provisions of the Act is based upon the proposition that they provide for
an exercise of judicial power otherwise than in conformity with Ch.III of the Commonwealth Constitution in
that the power is exercised by the Commission which is not a court established pursuant to s71 and constituted
in accordance with s72 of the Constitution. The plaintiff further argues that the correctness of this proposition
is not affected by the provisions for review by the Federal Court.
-
To determine this argument it is first necessary to consider the relevant steps in the operations of the
Commission. In doing so, it is also necessary to bear in mind that, in the words of Griffith CJ in Huddart,
Parker and Co Proprietary Ltd v Moorehead24: "[t]he exercise of [judicial] power does not begin until some
tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is
called upon to take action.”
55
-
it has always been accepted that the punishment of criminal offences and the trial of actions for breach of
contract and for wrongs are inalienable exercises of judicial power.
-
The validity of that proposition rests not only on history and precedent but also on the principle that the
process of the trial results in a binding and authoritative judicial determination which ascertains the rights of
the parties37. So, when A alleges that he or she has suffered loss or damage as a result of B's unlawful conduct
and a court determines that B is to pay a sum of money to A by way of compensation, there is an exercise of
judicial power.
-
In the present case, the determinations by the Commission for the payment of damages by the appellant and
ATSIC were made by reference to the application of the pre-existing principles and standards prescribed by the
provisions of s9 and s15 of the Act. Accordingly, the only distinction between the determination supposed in the
last sentence of the preceding paragraph and the determinations by the Commission in the present case is that
the Commission's determinations only become binding on the parties and enforceable after registration of the
determinations in the Federal Court. Upon registration they become binding on the parties and have effect as if
they were an order of the Federal Court. However, the determinations cannot be enforced until the expiration
of the normal application and review period.
-
If the respondent to a determination does not apply for a review within 28 days of the registration of the
determination, then the determination is enforceable at the expiration of that time unless leave to apply is
granted after that time by the Federal Court. And, if the Commission finds the complaint substantiated and yet
declares under s25Z(1)(b)(vii) that it would be inappropriate for any further action to be taken in the matter,
the determination is binding and enforceable upon registration in the Federal Court because a successful
complainant is given no right to invoke the review procedure.
-
(at 12) Turning to the case before the Court, whatever might be the enforceability of a declaration that the
plaintiff "do apologise", a declaration that the plaintiff "do pay the sum of $2 500" to the third defendant, once
registered, attracts the operation of s53 of the Federal Court of Australia Act 1976 (Cth). By that section, a
person in whose favour a judgment is given is entitled to the same remedies for enforcement, by execution or
otherwise, as are allowed by the laws of the State or Territory applicable. In the present case, this means New
South Wales. S53 does not affect the operation of any provision made by or under any other Act or the Rules of
Court for the execution and enforcement of judgments of the Court40. But s25ZAB goes beyond providing the
machinery for the enforcement of a determination. It purports to give a registered determination effect "as if it
were an order made by the Federal Court". A judicial order made by the Federal Court takes effect as an
exercise of Commonwealth judicial power, but a determination by the Commission is neither made nor
registered in the exercise of judicial power. An exercise of executive power by the Commission and the
performance of an administrative function by the Registrar of the Federal Court simply cannot create an order
56
which takes effect as an exercise of judicial power; conversely, an order which takes effect as an exercise of
judicial power cannot be made except after the making of a judicial determination. Thus, s25ZAB purports to
prescribe what the Constitution does not permit.
-
The Commonwealth submits, however, that the provisions relating to review of a determination by the Federal
Court operate in such a way that a determination, even when registered, does not constitute an exercise of
judicial power by the Commission. This submission, which was put at the forefront of the Commonwealth's
argument, should be considered in the context of the interlocking provisions relating to inquiries and to review
and enforcement of determinations (that is, Divs 3 and 4 of PtIII of the Act).
-
(From another case) - In Brandy v Human Rights and Equal Opportunity Commission, the mere registration in
the Federal Court of the determination by the Commission gave it the effect of an order of that Court.
Registration, an administrative act, converted a non-binding administrative determination into a determination
of the character identified by Kitto J, namely a binding, authoritative and curially enforceable determination. It
followed that the legislation which so provided contravened Ch III.
(1999) 197 CLR 83
Relevant Sections: 71, 72
Case summary/Quote:
-
Appeal against finding of Full Bench of Federal Court that s 37 Superannuation (Resolution of Complaints)
Act 1993 (Cth) invalid.
-
Where Superannuation Complaints Tribunal had made decision setting aside decision of trustees of
superannuation fund under s 37 Superannuation (Resolution of Complaints) Act.
-
Where trustees of fund had effected deed of variation which stated that actions of trustees were to be in
compliance with Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry
(Supervision) Regulations.
-
Where Federal Court held s 37 invalid in that it purports to confer judicial power of Commonwealth on
Superannuation Complaints Tribunal in contravention of chapter III constitution.
-
Whether Superannuation Complaints Tribunal was purporting to exercise judicial power in making
determination
-
Whether s 37 confers judicial power on Superannuation Complaints Tribunal.
-
Held: Appeal allowed, matter returned to Federal Court for making of final orders.
-
S 37 Superannuation (Resolution of Complaints) Act does not confer judicial power on Superannuation
Complaints Tribunal.
57
Tribunal was not purporting to exercise judicial power in making determinatio
(1970) 123 CLR 361
Relevant Sections:
71, 72
Case summary/Quote:
-
If a tribunal is exercising administrative function, it wont be considered impugning Ch III courts. Read
below.
-
In my opinion, none of the provisions of the Trade Practices Act 1965–1968 (Cth) is repugnant to Ch III of the
Constitution, and the establishment of the Trade Practices Tribunal is not open to attack on the ground that the
members are not given by the Act the specific tenure enacted by s 72(ii) of the Constitution.
-
The proceedings to which the order nisi for prohibition relates were instituted under s 47. The validity of this
section is not impugned. The institution of proceedings under s 47 is a ministerial act. The provisions of the
Act which are called in question on the ground that they are repugnant to Ch III begin with s 49. In my view,
the nature of the function assigned by this section cannot be properly understood without reading with it ss 47
and 51.
-
These sections are in Pt VI of the Act, the heading of which is: "Examination of Agreements and Practices by
the Tribunal." S 47 limits the Tribunal's function of "examination" to
o (1) agreements which the Commissioner has reason to believe are examinable agreements and which he
is of opinion contain restrictions contrary to the public interest; and
o (2) to practices which he has reason to believe are examinable and are contrary to the public interest.
-
The proceedings now in question were instituted in respect of monopolization, a term defined by s 37 and an
examinable practice referred to in s 36. The institution of the proceedings is within s 7A of the Act. The effect
of s 49 is to interpose a quasi-judicial inquiry by the Tribunal between the Commissioner's consideration under
s 47 and the operation of s 51 (which depends upon the determination under s 49).
-
The execution of the mandate given by the section to the Tribunal involves adjudication. But it is commonplace
in the field of administrative law that adjudication is not distinctive of judicial power exclusively: and it is not
necessarily inconsistent with true executive or administrative action. "The power and function of finally
determining matters of fact and even of discretion are not solely indicative of judicial action. That is an
attribute common to administrative bodies, to subordinate bodies that are adjuncts to legislation, and to judicial
bodies": Federal Commissioner of Taxation v Munro, per Isaacs J (1926) 38 CLR 153, at p 176.
58
-
A determination under s 49 is not in my opinion a judicial act. It is the factum on which the operation of s 51
depends. Proceedings under s 47 are not, in my view, a civil or criminal suit; the document which the
Commissioner files to commence proceedings is not a pleading seeking the protection or enforcement of a right
nor claiming judicial relief. I think that s 49 is not an attempt by the Parliament to exert the power conferred by
s 77(i) of the Constitution to define the jurisdiction of the Trade Practices Tribunal (as if it were a "federal
court"), in a "matter" arising under the Trade Practices Act.
-
In the joint judgment in the case re The Judiciary Act 1903–1920 and re The Navigation Act 1912–1920 (1921)
29 CLR 257, at p 265, the following statement is made: " . . . we do not think that the word 'matter' in s 76
means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion
there can be no matter within the meaning of the section unless there is some immediate right, duty or liability
to be established by the determination of the Court."
-
The judgment continues: "The word 'matter' is used several times in Ch III of the Constitution (ss 73, 74, 75,
76, 77), and always, we think, with the same meaning." After referring to opinions expressed in South
Australia v Victoria (1911) 12 CLR 667, their Honours said, in the joint judgment mentioned above (1921) 29
CLR, at p 266: "All these opinions indicate that a matter under the judicature provisions of the Constitution
must involve some right or privilege or protection given by law, or the prevention, redress or punishment of
some act inhibited by law."
-
None of the provisions of the Trade Practices Act 1965–1968 assigns jurisdiction to the Tribunal in any
"matter" within the meaning of Ch III arising under the Act. The dominant statutory functions of the Tribunal
are appropriate exclusively to administrative action. They pertain to trade and commerce. "Courts do not
execute or maintain laws relating to trade and commerce": New South Wales v The Commonwealth, per Isaacs
J (1915) 20 CLR 54, at p 93.
-
In my opinion the order nisi should be discharged.
(1977) 138 CLR 1
Relevant Sections:
71, 72, 73 etc
Case summary/Quote:
-
This case follows Trade Practices Tribunal in discussing the difference between judicial and administrative
powers.
59
-
Power of Registrar to order removal from register.
-
Whether judicial or administrative power.
-
Section 23(1) of the (CTH) Trade Marks Act 1955 provides that the High Court or the Registrar may, on
application by a person aggrieved, order a trade mark to be removed from the register, in respect of any of the
goods in respect of which it is registered, on either of the grounds set out in paragraphs (a) and (b) of the subsection.
-
Held:
o (i) The power exercised by the Registrar under the section is administrative.
o (ii) Difference between judicial power and administrative power, and the question whether the power
which s 23(1) confers on the High Court is judicial, considered
(1992) 176 CLR 1
Relevant Sections:
Principles: The executive/parliament can’t create statutes that forbid/direct a Court to take a particular course
of action. I.e (the section that said, the Courts can not release this person etc etc…) overall, the detention was
lawful, due to other powers (external affairs, immigration, whatever it was), but the other bodies
(executive/parliament) can’t force a Court to do something or not do something. This is the basis of the
separation of powers.
Case summary/Quote:
-
The executive can detain persons involuntarily (basically exercising ch iii jurisdiction) but it entirely
depends on the circumstances. Here, in this case, the power of 51(xix) deportation and such of
immigrants played a significant role.
-
The plaintiffs were Cambodian nationals who arrived in Australian waters by boat. The group of plaintiffs
arrived on separate boats, in 1989 and 1990, respectively. They arrived without valid entry permits and their
applications for refugee status were rejected in April 1992.1 They were detained in custody from the time of
their arrival.2
-
The plaintiffs sought judicial review of their adverse refugee status determinations and were successful. In
April 1992, the Federal Court set aside the decision of the Minister and ordered him to reconsider.3 However,
immediately before the decision was reconsidered, a new Division 4B was inserted into the Migration Act 1958
60
(Cth) (‘the Act’), the effect of which was to ensure that the plaintiffs remained in detention and were unable to
be released by a court.4
-
The new Division 4B, which became operative in May 1992, provided that non-citizens who arrived in
Australian waters by boat without a visa or entry permit – a class of persons classified by the Act as
“designated persons” – must be compulsorily detained until they are removed from Australia or granted an
entry permit.5 The Division further prohibited a court from ordering the release from custody of a designated
person.6 This meant that the plaintiffs remained in detention and that their avenues for judicial review had been
closed.
-
The plaintiffs brought proceedings in the High Court to challenge their detention
-
Key issue
-
The key issue in this case were whether the detention regime established by Division 4B violated the
constitutional separation of powers by conferring a judicial function on the executive.
-
Summary of the relevant law
-
The plaintiffs’ detention was purportedly authorised by the following provisions of the Act, which were in
force at the time:
o Section 54K, which defined a “designated person” as, in summary, a non-citizen who: arrived in
Australian territorial waters by boat between 19 November 1989 and 1 December 1992, arrived without
a visa and who had not been granted an entry permit.8
o Section 54L, which provided that a designated person must be kept in custody and can be released from
custody “if, and only if” the person is removed from Australia or granted an entry permit. 9
o Section 54R, which provided that “a court is not to order the release from custody of a designated
person”.10
o Prior to the coming into force of the new Division 4B, the plaintiffs’ detention was authorised by
section 88 of the Act, which provided that any person who arrived in Australia by boat, “being a
stowaway or a person whom an authorized officer reasonably believes to be seeking to enter Australia
in circumstances in which the person would become an illegal entrant” may be kept in custody
-
Plaintiff argued it was constitutional under s51(xix)
-
Decision
61
-
The High Court found, unanimously, that sections 54K and 54L were constitutionally valid and therefore that
the plaintiffs’ detention was lawful.14 In reaching this conclusion, the majority – made up of the joint
judgment of Brennan, Deane and Dawson JJ, with Mason CJ agreeing on this point – formulated the following
principle regarding the power of the executive to detain: “the involuntary detention of a citizen in custody by
the state is penal or punitive in character and, under our system of government, exists only as an incident of the
exclusively judicial function of adjudging and punishing criminal guilt.”15 Importantly, the court went on to
state that there exists, at least in times of peace, a constitutional immunity from involuntary detention at the
hands of the executive.16 The joint judgment of Brennan, Deane and Dawson JJ has subsequently been taken
as the leading judgment in this case, and their formulation of the constitutional limits on executive detention is
now considered to be the main principle for which this case stands (the ‘Lim principle’).
-
However, the joint judgment stated that this immunity does not apply to non-citizens due to their vulnerability
to deportation.17 The majority then further clarified the principle by stating that the executive has the power
under section 51(xix) of the Constitution to detain non-citizens for the purposes of deportation or exclusion but
that the detention must be limited to what is “reasonably capable of being seen as necessary” to achieve that
purpose”.18 If a regime of detention could be considered reasonably capable of being seen as necessary to
carry out a legitimate purpose related to deportation or exclusion, the law will be characterised as incidental to
the aliens power. If it goes beyond what can be seen as necessary to effect such a purpose, it may be considered
punitive and therefore amount to an unlawful conferral of judicial power on the executive. On these facts, the
court found that sections 54K and 54L created a detention regime that was indeed so limited, and therefore that
they do not violate Chapter III of the Constitution.19
-
In a separate majority judgment, Gaudron J formulated a similar principle by holding that in order for executive
detention to be lawful, the law must be sufficiently connected to the regulation of aliens – i.e. it must be
capable of being characterised as falling under the power in section 51(xix) of the Constitution – and it must
‘appropriate and adapted’ to regulating the entry and/or departure of aliens.20 The notion that the purpose of
the detention must be ‘appropriate and adapted’ to the regulation of aliens represents a proportionality
requirement similar to that of the joint judgment but expressed in slightly different terms.
-
While the Court found that the major provisions operative on the plaintiffs’ detention to be valid, a majority of
the justices (Mason CJ, Toohey and McHugh JJ dissenting) found that section 54R was invalid as it purported
to prevent a court from ordering the release of a designated person even when that person’s detention was
unlawful.21 They held that a provision with this effect is unconstitutional as it attempts to interfere with the
courts’ constitutionally-entrenched power of judicial review. Mason CJ agreed that, read literally, section 54R
did restrict a court from acting when designated persons were held unlawfully, however he held that the section
could be read down so as to apply only to lawful detention
62
-
Brennan CJ, Deane and Dawson JJ said "The involuntary detention of a citizen in custody by the State is penal
or punitive in character and, under our system of government, exists only as an incident of the exclusively
judicial function of adjudging and punishing criminal guilt”.
-
(1996) 189 CLR 51
Relevant Sections: Chapter iii courts, rivalry in jurisdiction between executive exercising judicial power
Case summary/Quote:
-
Community Protection Act 1994 (NSW) authorised the Supreme Court of NSW to order detention of an
individual if Court was satisfied that the person was a significant danger to the public
-
Act was amended to authorise the detention of Gregory Kable who had killed his wife and sent threatening
letters to people whilst in prison
-
In 1995, the Supreme Court made an order under the Act that Kable be detained for 6 months.
-
Was the Supreme Court’s order consistent with being a Ch III Court?
-
Courts look backwards. Parliament looks forward.
-
Read Gaudron J and McHugh J’s findings.
-
Brennan J
No.
o The Constitution requires that the exercise of a power to detain a person for the protection of the
community must be for the purpose of obtaining the person's release as soon as the ground of detention
ceases to exist. The detention must be for the purpose of preventing the person's release into the
community if he or she will continue to be a danger to the community and not for punishment."
-
Gaudron J
o The Constitution requires that the exercise of a power to detain a person be for a purpose authorised by
the Constitution. The power to detain a person for punishment is not an end in itself. It must be
ancillary to the exercise of some other constitutional power."
▪
This quote emphasizes the point that the detention of a person must be for a purpose that is
authorized by the Constitution and not for the purpose of punishment. The power to detain must
be ancillary to the exercise of some other constitutional power such as protection of the
community.
-
McHugh
o "The Constitution does not empower the Commonwealth to make a law for the detention of a person
because the person has committed a crime or because it is feared that he or she may commit a crime in
the future."
63
▪
This quote highlights the limitation of the Commonwealth power to make laws for the detention
of a person, as it can only be done for protection of the community and not for punishment of
crime committed or for fear of future crime. The power to detain a person must be for a specific
constitutional purpose and not just because the person has committed a crime or may commit a
crime in the future.
-
Summary
o found that the Commonwealth government could not make a law for the detention of a person under the
Dangerous Prisoners (Sexual Offenders) Act because it exceeded the limits of the Commonwealth's
power to make laws with respect to "the detention of criminals" as outlined in the Constitution.
o The Constitution of Australia divides power between the Commonwealth government and the State
governments. The Commonwealth government has the power to make laws with respect to certain
specified areas, such as defense, trade and commerce, and the detention of criminals. However, the
Constitution also provides that the States have residual powers to make laws in all other areas not
specifically given to the Commonwealth government.
o In the Kable case, the Court found that the Commonwealth government's power to make laws with
respect to the detention of criminals is limited to the protection of the community from the actions of
dangerous individuals, and not for the purpose of punishment. The Dangerous Prisoners (Sexual
Offenders) Act, which allowed for the continued detention of prisoners who had been convicted of
serious violent crimes and were deemed to be a danger to the community, was found to exceed this
limit. The Court held that the law was unconstitutional as it exceeded the limits of the Commonwealth's
power.
o So, the Commonwealth government couldn't make this law because the law was not for the protection
of the community, it was for punishment, which is not within the limits of the Commonwealth's power
to make laws with respect to detention of criminals as per the Australian Constitution
o Public view was a big thing. The Judiciary couldn’t be seen as ‘subservient’ to the executive.
(2007) 233 CLR 307
Relevant Sections:
s51(vi), Chapter III courts
Case summary/Quote:
-
Facts:
64
o The plaintiff, Mr Thomas, was subjected to an interim control order by a federal Magistrate (per div
104 of the Criminal Code (CTH))
o Thomas required to stay at his residence between midnight and Sam each night, to report to the
Victorian police three times a week, not to contact members of certain listed terrorist organisations, and
not to use email, mobile phone or the internet technology that had not been approved by the Counter
Terrorism Coordinator of the Federal Police.
o The magistrate granted control order only after finding ex parte:
▪
Thomas trained with Al Qaeda in the use of explosives and automatic weapons; without the
control order, Thomas' skills and knowledge could provide a potential resource for the
preparation of a 'terrorist act'
o A confirmation hearing to test these findings
o Thomas challenged Division 104 as (1) beyond Defence power & (2) the making of control orders was
contrary to Ch III
-
The Commonwealth's Case:
o 1. Mr Thomas has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist
organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code
Act 1995. Mr Thomas also admitted that while at the Al Qa'ida training camp he undertook weapons
training, including the use of explosives and learned how to assemble and shoot various automatic
weapons.
o 2. There are good reasons to believe that given Mr Thomas has received training with Al Qa'ida he is
now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa'ida or
related terrorist cells, Training has provided Mr Thomas with the capability to execute or assist with the
execution directly or indirectly of any terrorist acts.
o 3. Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who
will nurture him during his reintegration into the community. Mr Thomas's links with extremists such
as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas's
vulnerabilities.
o 4. Furthermore, the mere fact that Mr Thomas has trained in Al Qa'ida training camps, and associated
with senior Al Qa'ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his
skills and experiences to guide them in achieving their potentially extremist objectives.
o 5. The controls set out in this interim control order statement will protect the public and substantially
assist in preventing a terrorist act. Without these controls, Mr Thomas's knowledge and skills could
provide a potential resource for the planning or preparation of a terrorist act."
-
CTH argument was that Div 104 was valid as:
65
o applications for control orders must be heard in open court; the burden of proof lies on the AFP and the
rules of evidence apply;
o a person who is the subject of an application for a control order must, prior to the confirmation hearing,
be given the documents that were provided to the Attorney-General for the purpose of seeking the
Attorney's consent to the application for the interim control order, together with any other details
required to enable the person to understand and respond to the substance of the facts, matters and
circumstances that would form the basis for the confirmation order; at the hearing, the AFP and the
person subject to the order and/or his or her legal representatives may adduce evidence, cross-examine
witnesses and make submissions;
o and the control order made against Thomas can be appealed through the courts
-
Decision:
-
High Court held Div 104 to be valid. Gleeson C]:
o "The power to make laws with respect to the naval and military defence of the Commonwealth and of
the several States, and the control of the forces to execute and maintain the laws of the Commonwealth,
is not limited to defence against aggression from a foreign nation; it is not limited to external threats"
-
A control order has the purpose of protecting the public from a terrorist act. Real judicial task for the Court court must be satisfied on B of P that:
o making order would substantially assist in preventing a terrorist act, or that the person has provided
training to, or received training from, a listed terrorist organisation.
o obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary
o Div 104 is supported by the Defence power and the External Affairs power
o No Ch Ill problem as "Applications for control orders are made in open court, subject to the power to
close the court under the court's general statutory powers. The rules of evidence apply. The burden of
proof is on the applicant."
-
Callinan J:
o Deals extensively with the caselaw esp the Communist Party case
o Language of s.51 (vi) is expansive
o There is no issue with the making of control orders
o Courts are often required to make orders ex parte
o No constitutional issue raised by making of control orders
▪
"Already in Australia there have been persons convicted or charged of conspiring or planning
to undertake terrorist activities in this country. Much of this is a matter of public record”
▪
"Defence is not something of concern to a nation only in times of a declared war. Nations
necessarily maintain standing armies in times even of apparent tranquility, Threats to people
66
and property against which the Commonwealth may, and must defend itself, can be internal as
well as external."
The effect of Thomas v Mowbray on Defence Power
-
Casts serious doubt on whether the Australian Communist Party (1951) 83 CLR 1 is still good law in
Australia?
-
Raised issue of whether the Defence Power waxes or wanes post-Sept 11?
-
Raised issue of what laws and orders infringing on civil liberties can be made consistent with Ch II?
-
Relevant Sections:
-
Case summary/Quote:
-
Criminal Assets Recovery Act 1990 (NSW) empowered NSW Crime Commission to apply to the SC of NSW
‘ex parte’ for a restraining order in respect of some or all of the property of a person suspected of having
committed a serious offence
-
In short, if accompanied with affidavit of person doing bad stuff, the courts MUST make the order.
-
The Act had no provisions that allowed for a person affected to challenge the restraining order
-
Did it breach Ch III ?
-
French CJ:
o Yes. The absence of the Court’s power to order an inter partes hearing denies the Court the power to
afford fairness between the parties.
o Procedural fairness or natural justice lie at the heart of the judicial function
-
Heydon J
o Yes – it is repugnant to deny the Court the power to hear an application to dissolve a restraining order
o The lack of power to remedy injustice is repugnant to the judicial process
(1909) 8 CLR 330
Relevant Sections:
chapter iii courts, 51(xx) corporations power
Case summary/Quote:
-
This case originated out of the prosecution of a cartel under anti-trust legislation. The cartel, the “Coal Vend”
cartel, operated in Newcastle between 1872 and 1880 and was effective in raising the price of coal from 7
shillings to 14 shillings a ton.
67
-
A new Coal Vend cartel began in around 1906 that had horizontal (coal miners) and vertical (shipping
companies) dimensions.
-
The coal miners were organised as the Associated Northern Collieries, which comprised the vast majority of all
of the proprietors of coal mines in Newcastle and Maitland.
-
Huddart, Parker & Co (Huddart) was a major Australian coastal shipping company at a time when shipping
was the main means of interstate and trans-Tasman transport. William Appleton was Huddart’s manager.
-
Sections 4 and 7 of the Anti-Trust Act were directed towards conduct in relation to “trade or commerce with
other countries or among the States”, relying on the Constitution’s trade and commerce power.
-
Sections 5 and 8 of the Act were directed to conduct of foreign, trading or financial corporations, relying on the
corporations power.
-
Huddart was suspected of contravening subsections 5(1) and 8(1) of the Act.
-
Appleton was told that the contraventions were of subsections 4(1)(a) and 7(1) of the Act.
-
Huddart and Appleton were found to have contravened the Act
-
Issues
-
Huddart and Appleton appealed to the High Court and challenged the convictions on three grounds:
o sections 5 and 8 of the Act were beyond the corporations power of the Commonwealth;
o section 15B was an exercise of judicial power and beyond the power of the Commonwealth to make;
and
o Huddart, Parker and Appleton were denied natural justice in not being given an opportunity to be heard.
-
Held
o The High Court held unanimously that the power of inquiry or investigation was not the exercise of
judicial power. Griffiths CJ held at page 357 that “judicial power” means the power to:
▪
“decide controversies between its subjects, or between itself and its subjects, whether the rights
relate to life, liberty or property. The exercise of this power does not begin until some tribunal
which has power to give a binding and authoritative decision (whether subject to appeal or not)
is called upon to take action.”
▪
The High Court held that the corporations power did not allow the Parliament to make laws
controlling the intra-State trading operations of foreign, trading or financial corporations. Each
member of the Court held that the corporations power does not permit the Commonwealth
Parliament power to create corporations (see section 51(xx)’s adjective: “formed”)
68
(1991) 173 CLR 167
Relevant Sections:
Case summary/Quote:
-
Application for declaration.
-
Applicant sought declaration Corporations and Securities Panel (Panel) established under (CTH) Australian
Securities Commission Act 1989 s 171 could not validly exercised powers referred to by Corporations Law of
Victoria (Corporations Law) ss 733 and 734 because would exercise judicial power contrary to Constitution ss
71 and 72.
-
Corporations Law s 733 entitled Panel to make declaration regarding acquisition of company shares in
unacceptable circumstances.
-
Corporations Law s 734 entitled Panel to make orders consequential to declaration under s 733.
-
Panel's adjudication under Corporations Law s 733 took policy considerations into account.
-
Panel's adjudication under Corporations Law s 733 not exercise of judicial power because declaration under s
733 did not resolve actual or potential controversy regarding existing rights but rather created new rights and
obligations.
-
Fact adjudication under Corporations Law s 733 or order under s 734 subject to judicial review suggested Panel
not exercising judicial power.
-
Application dismissed
WEEK 7 – IMPLIED FREEDOM OF POLITICAL COMMUNICATION
7, 24, 128 (We generally have
implied freedom. Unless certain circumstances).
Book – Pages 1328 – 1405
and/or
lecture slides
o An implied freedom, not found expressly in the constitution
o Miller v TCN Channel 9 (1986): Gibbs CJ, Mason, Brennan, Deane and Dawson JJ rejected
existence of an implied freedom of political communication. Murphy J was the only judge who held the
implied freedom existed.
69
-
Had amendments imposing total ban on political adverts on radio & tv during federal elections, territory
elections and state/government elections
o Did this infringe the implied freedom?
-
HCA (5:2) held invalid.
o Mason CJ, Deane, Toohey, Gaudron & McHugh JJ (majority) confirmed the existence of the implied
freedom of political communication.
o Brennan J (in dissent): agreed that the implication existed, but found the restrictions/law to be
reasonable
o Dawson J (in dissent): no such implication can be drawn from the constitution.
-
Sections 7 and 24 and 128 – House of reps and senates voted by people. Implication we have political
freedom of speech.
-
Mason CJ – Only by free communication can a citizen criticise govt decision and action, and seek to change
things.
-
Doctrines of representative and responsible government are not free standing; they are deduced from
constitution
-
Source of implied freedom is text of constitution. Terms of constitution provide for representative and
responsible government. S7, 24, 128 etc
-
Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, Kirby JJ
o Implied freedom operates not only during election periods.
o Symbiotic relationship between Constitution and the common law.
▪
Constitution provides authority for statutes and may affect common laws content. Constitution
is informed by common law.
▪
But common law must conform to constitution.
o Expanded the common law defence of qualified privilege. The whole of Australian community has an
interest in giving & receiving info, opinions concerning govt and political matters.
o So the interest of the entire Australian community in knowing the truth is now constitutionally
protected.
-
The Lange Test
o Does the law effectively burden freedom of communication about govt/political matters in either its
term or effect?
o If ‘yes’, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which
is compatible with systems of govt prescribed by constitution? (eg. Are there less drastic measures
available?)
-
If yes to #1, and No to #2, then the law is invalid.
70
-
# 1 remains.
-
# 2 – If ‘yes’, is the law reasonably appropriate and adapted to serve a legitimate end, in a manner which is
compatible with system of govt prescribed by Constitution?
o McHugh J – This is consistent with ACTV v Cth, as it is the manner of achieving the end, as much as
the end itself, that must be compatible.
-
Clarified # 2 of the test
o 1. The object of the impugned law is compatible with constitutionally prescribed system of govt
o 2. The law is reasonably appropriate and adapted to achieving that legitimate object
o Both involve proportionality analysis.
▪
Consider history, context, purpose, principle of legitimacy etc
-
Implied freedoms does apply at State levels
-
Concepts of representative govt: MPs exercise people’s sovereign power – ACTV v Cth
-
Implied freedom of political communications is an indispensable incident of constitutionally prescribed system
of govt – Lange v ABC
-
Significant interaction between Cth & States govts. Issues are agitated at both State and Cth levels. Govts
cooperate (eg COAG) political matters in Australia increasingly integrated.
-
National politics parties exist. Support for a party at State level may impact its national support.
-
French CJ, Kiefel, Bell and Keane JJ
o Refined second limb of Lange test, incorporating a structured, 3-part proportionality test
▪
# 1 same
▪
# 2 Compatibility testing: Are law’s purpose and the means adopted to achieve that purpose
legitimate (ie compatible with constitutionally prescribed system of representative govt)?
▪
# 3 Proportionality testing: Is the law reasonably appropriate and adapted to advance that
legitimate object? There are 3 stages.
•
Suitable: law has rational connection to provision’s purpose
o ‘appropriateness’ or ‘fit’ – not a value judgement. Does the impugned provision
have a rational connection with the law’s legitimate purpose?
•
Necessary: There is no obvious and compelling alternative, reasonably practicable
means to achieve same purpose with less restrictive effect on that freedom
o Are there other obvious and compelling, equally effective means that can achieve
the legislative object with impinges less on the freedom? (Unions NSW
71
•
Adequate in its balance: a value judgement, balancing the importance of the law’s
purpose with the extent of restriction the law has to freedom.
o Is the burden undue, considering its effect on the freedom and the public
importance of purpose sought to be achieved? The greater the restriction, the
greater the public interest purpose must be for the law to be proportionate.
▪
If law does not meet these 3 criteria of proportionality testing, Q3’s answer will be No, and
law is NOT valid.
o Re did the Test…. Again … (this was powers of police to move on protesters etc) adopted and used in
LibertyWorks v Cth [2021] HCA 18
-
#1 same
-
#2 Compatibility testing: is the law’s purpose legitimate (ie compatible with constitutionally prescribed
system of representative govt?)
o If yes, go to 3. If NO, law is NOT valid
-
#3 Proportionality testing: Is the law reasonably appropriate and adapted to advance that legitimate object
(compatible with the constitutionally prescribed system of representative govt)?
Relevant sections of the constitution
-
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting,
until the Parliament otherwise provides, as one electorate.
-
But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland,
if that State be an Original State, may make laws dividing the State into divisions and determining the number
of senators to be chosen for each division, and in the absence of such provision the State shall be one
electorate.
-
Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may
make laws increasing or diminishing the number of senators for each State, but so that equal representation of
the several Original States shall be maintained and that no Original State shall have less than six senators.
-
The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall
be certified by the Governor to the Governor-General
72
-
The House of Representatives shall be composed of members directly chosen by the people of the
Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the
senators.
-
The number of members chosen in the several States shall be in proportion to the respective numbers of their
people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following
manner:
o (i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown
by the latest statistics of the Commonwealth, by twice the number of the senators:
o (ii.) The number of members to be chosen in each State shall be determined by dividing the number of
the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on
such division there is a remainder greater than one-half of the quota, one more member shall be chosen
in the State.
-
But notwithstanding anything in this section, five members at least shall be chosen in each Original State.
-
This Constitution shall not be altered except in the following manner:
-
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the
Parliament, and not less than two nor more than six months after its passage through both Houses the proposed
law shall be submitted in each State and Territory to the electors qualified to vote for the election of members
of the House of Representatives.
-
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails
to pass it or passes it with any amendment to which the first-mentioned House will not agree, and if after an
interval of three months the first-mentioned House in the same or the next session again passes the proposed
law by an absolute majority with or without any amendment which has been made or agreed to by the other
House, and such other House rejects or fails to pass it or passes it with any amendment to which the firstmentioned House will not agree, the Governor‑General may submit the proposed law as last proposed by the
first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to
the electors in each State and Territory qualified to vote for the election of the House of Representatives.
-
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament
prescribes. But until the qualification of electors of members of the House of Representatives becomes
73
uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law
shall be counted in any State in which adult suffrage prevails.
-
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority
of all the electors voting also approve the proposed law, it shall be presented to the Governor‑General for the
Queen’s assent.
-
No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the
minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or
otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in
relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed
law.
-
In this section, “Territory” means any territory referred to in section one hundred and twenty-two of this
Constitution in respect of which there is in force a law allowing its representation in the House of
Representatives.
Relevant cases
(1992) 177 CLR 106
Relevant Sections:
Case summary/Quote:
-
Had amendments imposing total ban on political adverts on radio & tv during federal elections, territory
elections and state/government elections
o Did this infringe the implied freedom?
-
HCA (5:2) held invalid.
o Mason CJ, Deane, Toohey, Gaudron & McHugh JJ (majority) confirmed the existence of the implied
freedom of political communication.
o Brennan J (in dissent): agreed that the implication existed, but found the restrictions/law to be
reasonable
-
Dawson J (in dissent): no such implication can be drawn from the constitution
-
Sections 7 and 24 and 128 – House of reps and senates voted by people. Implication we have political
freedom of speech.
-
Mason CJ – Only by free communication can a citizen criticise govt decision and action, and seek to change
things.
74
(1997)189 CLR 520
Relevant Sections:
Case summary/Quote:
-
Doctrines of representative and responsible government are not free standing; they are deduced from
constitution
-
Source of implied freedom is text of constitution. Terms of constitution provide for representative and
responsible government. S7, 24, 128 etc
-
Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, Kirby JJ
o Implied freedom operates not only during election periods.
o Symbiotic relationship between Constitution and the common law.
▪
Constitution provides authority for statutes and may affect common laws content. Constitution
is informed by common law.
▪
But common law must conform to constitution.
o Expanded the common law defence of qualified privilege. The whole of Australian community has an
interest in giving & receiving info, opinions concerning govt and political matters.
o So the interest of the entire Australian community in knowing the truth is now constitutionally
protected.
-
The Lange Test
o Does the law effectively burden freedom of communication about govt/political matters in either its
term or effect?
o If ‘yes’, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which
is compatible with systems of govt prescribed by constitution? (eg. Are there less drastic measures
available?)
▪
If yes to #1, and No to #2, then the law is invalid
(2004) 220 CLR 1
Relevant Sections:
Case summary/Quote:
-
Coleman v Power (2004) modified Lange test
-
# 1 remains.
-
# 2 – If ‘yes’, is the law reasonably appropriate and adapted to serve a legitimate end, in a manner which is
compatible with system of govt prescribed by Constitution?
75
McHugh J – This is consistent with ACTV v Cth, as it is the manner of achieving the end, as much as the end itself,
that must be compatible
(2013) 249 CLR 92
Relevant Sections:
Case summary/Quote:
-
Monis v Then Queen (2013)
-
Clarified # 2 of the test
o 1. The object of the impugned law is compatible with constitutionally prescribed system of govt
o 2. The law is reasonably appropriate and adapted to achieving that legitimate object
o Both involve proportionality analysis.
▪
Consider history, context, purpose, principle of legitimacy etc
(2013) 252 CLR 530
Relevant Sections:
Case summary/Quote:
-
Unions NSW v NSW (2013)
-
Implied freedoms does apply at State levels
-
Concepts of representative govt: MPs exercise people’s sovereign power – ACTV v Cth
-
Implied freedom of political communications is an indispensable incident of constitutionally prescribed system
of govt – Lange v ABC
-
Significant interaction between Cth & States govts. Issues are agitated at both State and Cth levels. Govts
cooperate (eg COAG) political matters in Australia increasingly integrated.
-
National politics parties exist. Support for a party at State level may impact its national support
Relevant Sections:
Case summary/Quote:
-
McCloy v NSW (2015)
76
-
French CJ, Kiefel, Bell and Keane JJ
o Refined second limb of Lange test, incorporating a structured, 3-part proportionality test
▪
# 1 same
▪
# 2 Compatibility testing: Are law’s purpose and the means adopted to achieve that purpose
legitimate (ie compatible with constitutionally prescribed system of representative govt)?
▪
# 3 Proportionality testing: Is the law reasonably appropriate and adapted to advance that
legitimate object? There are 3 stages.
•
Suitable: law has rational connection to provision’s purpose
o ‘appropriateness’ or ‘fit’ – not a value judgement. Does the impugned provision
have a rational connection with the law’s legitimate purpose?
•
Necessary: There is no obvious and compelling alternative, reasonably practicable
means to achieve same purpose with less restrictive effect on that freedom
o Are there other obvious and compelling, equally effective means that can achieve
the legislative object with impinges less on the freedom? (Unions NSW
•
Adequate in its balance: a value judgement, balancing the importance of the law’s
purpose with the extent of restriction the law has to freedom.
o Is the burden undue, considering its effect on the freedom and the public
importance of purpose sought to be achieved? The greater the restriction, the
greater the public interest purpose must be for the law to be proportionate.
If law does not meet these 3 criteria of proportionality testing, Q3’s answer will be No, and law is NOT valid
(2017) 261 CLR 328
Relevant Sections:
Case summary/Quote:
-
Brown v TAS [2017] – Re did the Test…. Again … (this was powers of police to move on protesters etc)
adopted and used in LibertyWorks v Cth [2021] HCA 18
-
#1 same
-
#2 Compatibility testing: is the law’s purpose legitimate (ie compatible with constitutionally prescribed
system of representative govt?)
o If yes, go to 3. If NO, law is NOT valid
-
#3 Proportionality testing: Is the law reasonably appropriate and adapted to advance that legitimate object
(compatible with the constitutionally prescribed system of representative govt)?
77
-
The Lange test in Brown v TAS, simplified, asked whether the law burdens freedom of communication about
government/political matters, and if it does, is that law reasonably appropriate and adapted to achieve the
legitimate object. This involved looking at proportionality; Suitability, necessity and if the law was considered
adequate (in a balancing exercise) with the purpose to be achieved.
WEEK 8 – CHAPTER III AND THE SEPARATION OF POWERS; FEDERAL JURISDICTION
Book – Pages 586 – 903, 264 – 274, 437 – 464
-
and/or
lecture slides
"Jurisdiction is the power of a court or judge to entertain an action, petition or other proceeding"
o Earl Jowitt, The Dictionary of English Law (1959) at 1030
-
AKA the power conferred by law on a court to hear and decide a case or make an order ....
o "Jurisdiction gets you before a Judge. ... A lack of Jurisdiction gets you thrown out of Court with an
adverse costs order"
▪
-
Unknown But Very Wise Barrister
"Apart from these considerations, I am of opinion that the words "judicial power" as used in sec. 71 of the
Constitution mean the power which every sovereign authority must of necessity have to decide controversies
between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The
exercise of this power does not begin until some tribunal which has power to give a binding and authoritative
decision (whether subject to appeal or not) is called upon to take action."
o Huddart, Parker & Co v Moorehead (1909) 8 CLR 330 at 357 per Griffith CI
-
Legislative Power (Ch I) = Prospective
o Laws made for general application to everyone
o Laws made for the future
-
Judicial Power (Ch Ill) = Retrospective
o Cases heard now about particular past matters & grievances
o Courts make law that binds Parties for the future
o Law is made by looking at the past
-
Jurisdiction => the authority to decide
78
-
Matter => the determination of rights, duties, liabilities and obligations in a legal proceeding
-
Jurisdiction & Matter => the authoritative determination of rights, duties, liabilities and obligations
-
A matter is therefore ordinarily concerned with some immediate right, duty or liability to be established by the
determination of the Court.
-
A matter is not advisory or hypothetical
-
Bill of Attainder: a law enacted by a legislature that declares a person is guilty of a crime (usually treason) and
requires the person suffer the death penalty
-
Bill of Pains and Penalties: a law imposing a punishment less than the death penalty
-
Part Xll was introduced into Judiciary Act for the High Court to determine validity of laws referred to it by the
Governor-General
-
Question arose as to whether the "reference" by a G-G to the High Court was sufficient to raise a "matter"
-
Is a matter synonymous with any legal proceeding?
-
Knox C), Gavan Duffy, Powers, Rich and Starke JJ:
o Parliament seeks an authoritative declaration of law
o This is a judicial function and can only be exercised in accord with Ch iii.
o Judicial function requires a presence of ‘matter’
o No matter exists unless some immediate right, duty or liability can be established by the Court.
o There is nothing in Ch. Ill that provides for the Parliament to confer "jurisdiction upon the High Court
to determine abstract questions of law without the right or duty of any body or person being involved"
-
Mason C), Dawson, Toohey and McHugh JJ held the law valid.
-
Mason CJ:
o Law is supported by the ‘external affairs’ power
o Criminal conduct which took place outside Australia and makes that conduct a criminal offence is a law
with respect to external affair
o Australian Parliament may criminalise past conduct - no prohibition in Constitution
o There is no legislative judgment - criminal trial still to occur per judicial process
-
Toohey J: retrospective criminal laws do not offend Ch Ill
-
McHugh J; A law which creates a criminal offence but operates retrospectively is not the same as a Bill of
Attainder or a Bill of Pains and Penalties
-
Question was whether a federal court can be invested with state jurisdiction
79
-
Corporations Law was a self-contained code enacted by the Cth & all States
-
In effect, this meant that States would be conferring jurisdiction on federal courts
-
Challenge made to the former law's conferral of jurisdiction
-
McHugh J;
o Cth Parliament cannot give a federal court a State jurisdiction
o Federal government means weak government (Dicey)
o There is no provision for States to confer their own jurisdiction on federal courts
o The absence of an express power to invest jurisdiction = No power
o Only remedy is constitutional amendment via s128
-
Gummow & Hayne JJ
o Convenience and efficiency are meaningless for constitutional validity
o Legislation cannot supplement the powers given by the Constitution, only complement
-
Question was review of an AT decision
-
Ms Seniet Abebe is Ethiopian & arrived in Australia in 1997 without a passport.
-
She was taken into custody where she applied for a refugee visa
-
Australia is a signatory to the United Nations Convention Relating to the Status of Refugees and its attendant
Protocol.
-
Australia is obliged not to return/refoule a non-citizen because of a 'well founded fear of persecution'
-
Migration Act amended to deny jurisdiction to the Federal Court
-
Gleeson Cl and McHugh J:
o Parliament can confer or withdraw jurisdiction as it wishes
o Parliament can create courts with narrow or broad jurisdictions
o Parliament can provide for as few or many remedies as it wishes
o Parliament cannot oust the constitution jurisdiction of the High Court
o Logically, denying the Federal Court jurisdiction will mean applications for relief under 575(v) as that
jurisdiction is constitutionally entrenched
Relevant sections of the constitution
Relevant cases
(1956) 94 CLR 254
-
Summary
The Boilermakers case, decided by the High Court in 1956, has long been synonymous with the separation of
powers in Australia. In Boilermakers a High Court majority applied the separation doctrine to find that the
Commonwealth Court of Conciliation and Arbitration could not validly exercise judicial functions. According
to their Honours, the Arbitration Court had been established primarily as an arbitral authority and although its
judges had life tenure it was not constitutionally possible to give it ‘any part of the strictly judicial power of the
80
Commonwealth’. This included the power to interpret and enforce industrial awards. For the Boilermakers'
Society of Australia – the applicant in the High Court proceedings – this was a significant victory for it meant
that the Arbitration Court could not penalise the union for its involvement in strike action in breach of award.
-
Despite its prominence, the legal significance of Boilermakers is not always understood. It was not the first
case to recognise that the Australian Constitution incorporates a separation of federal judicial power from
legislative and executive power. Before 1920 it was already apparent that the judicial power of the
Commonwealth could only be exercised by the courts listed in s. 71 of the Constitution: the High Court, federal
courts created by Parliament, and courts invested with federal jurisdiction (‘Chapter III courts’). This is
commonly described as the ‘first limb’ of the separation of federal judicial power.
-
I believe Parliament made a court under s51(35).
-
Section 51(35) - conciliation and arbitration for the prevention and settlement of industrial disputes extending
beyond the limits of any one State
-
The argument was that Parliament could not do this (Exercising judicial power along with arbitral – settling
disputes powers), as only Chapter III Courts could give out judicial power. The separation of powers must
remain.
-
Was held: Judicial power cannot be granted to an arbitral body to enforce awards and punish for contempt in
the manner of a Ch III Court.
-
Dixon CJ, McTiernan, Fullagar and Kitto JJ at 296
o Judicial power can only be invested in a court created by ss. 71 and 72
o Federal Judicature must be both ‘paramount and limited’
o Chapter III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial
power of the Commonwealth by a body established fur purposes foreign to the judicial power,
notwithstanding that it is organised as a court and in a manner which might otherwise satisfy ss. 71 and
72, and that Chap III does not allow a combination with judicial power of functions which are not
ancillary or incidental to its exercise but are foreign to it”
-
A federal constitution must be rigid – Separation of powers. Constitution must be adhered to. If you try
and mix judicial and non-judicial powers, shouldn’t bother.
-
Can only exercise Judicial powers in a Chapter III Court
(1918) 25 CLR 434
Relevant Sections: 71, 72,
Case summary/Quote:
81
-
What this shows, is even the high court judges are at disagreements to the interpretation of s 71, 72…
This case asked whether the Court of Conciliation and Arbitration, was exercising ch iii jurisdiction.
Some said yes, some said no, some on the fence.
-
Application for determination of case stated.
-
Applicant sought order directing penalty against respondent for breach of award.
-
Award made by President of Commonwealth Court of Conciliation and Arbitration concerning industrial
dispute.
-
Applicant alleged breach consisted of failure to pay travelling time at fixed rate to employee.
-
Constitutional issues raised concerning validity of court constitution.
-
Whether constitution of Commonwealth Court of Conciliation and Arbitration beyond powers of Parliament.
-
Whether award invalid by reason of provisions concerning appointment of President.
-
Whether award enforceable by court.
-
Held, determining the case stated:
o (i) Per Griffith CJ and Barton J: The Commonwealth Court of Conciliation and Arbitration was a court
exercising part of the judicial power of the Commonwealth in respect both of its arbitral and its
enforcing powers.
o (ii) Per Griffith CJ: Section 12(1) of the (CTH) Commonwealth Conciliation and Arbitration Act 1904
was not at variance with Commonwealth Constitution s 72 and the appointment of the President
pursuant to that section was a valid appointment.
o (iii) Per Barton J: Section 12(1) was in violation of Commonwealth Constitution s 72 and the awards of
the President appointed in terms of s 12 were invalid and unenforceable.
o (iv) Per Isaacs, Powers and Rich JJ: The arbitral functions of the Court of Conciliation and Arbitration
are not part of the judicial power and section 12(1) of the Act, and an appointment in terms thereof was
valid so far only as the exercise of the arbitral powers are concerned, and that Act is invalid in so far as
it purports to confer powers of enforcement upon a President so appointed.
o (v) Per Higgins J: Section 72 of the Commonwealth Constitution did not preclude the appointment of a
justice for a term of years. Section 12(1) of the Act was therefore valid, whether the powers of the court
were or were not part of the judicial power.
o (vi) Per Gavan Duffy J: Under Commonwealth Constitution s 72 a justice may be appointed for any
term. Section 12(1) of the Act was therefore valid
-
Barton J
o The first matter to be considered is whether the name of "court," which is used throughout the Act, is
correctly applied, that is, whether the tribunal to which it is applied is in law a court exercising part of
the judicial power of the Commonwealth. It is urged that the tribunal is created under the power granted
82
in s 51, subs (XXXV) of the Constitution, and is therefore not one of the Courts designated as such by
the Constitution in the sections referred to. Outside these sections the Constitution gives no authority to
allocate any of the judicial power to other tribunals than those mentioned in s 71. If in the execution of
its authority under s 51, subs (XXXV), the Parliament creates a tribunal having judicial power, that subsection does not take the tribunal out of the category of Federal Courts created by the Parliament.
-
(1996) 189 CLR 51
Relevant Sections: Chapter iii courts, rivalry in jurisdiction between executive exercising judicial power
Case summary/Quote:
-
Community Protection Act 1994 (NSW) authorised the Supreme Court of NSW to order detention of an
individual if Court was satisfied that the person was a significant danger to the public
-
Act was amended to authorise the detention of Gregory Kable who had killed his wife and sent threatening
letters to people whilst in prison
-
In 1995, the Supreme Court made an order under the Act that Kable be detained for 6 months.
-
Was the Supreme Court’s order consistent with being a Ch III Court?
-
Courts look backwards. Parliament looks forward.
-
Read Gaudron J and McHugh J’s findings.
-
Brennan J
No.
o The Constitution requires that the exercise of a power to detain a person for the protection of the
community must be for the purpose of obtaining the person's release as soon as the ground of detention
ceases to exist. The detention must be for the purpose of preventing the person's release into the
community if he or she will continue to be a danger to the community and not for punishment."
-
Gaudron J
o The Constitution requires that the exercise of a power to detain a person be for a purpose authorised by
the Constitution. The power to detain a person for punishment is not an end in itself. It must be
ancillary to the exercise of some other constitutional power."
▪
This quote emphasizes the point that the detention of a person must be for a purpose that is
authorized by the Constitution and not for the purpose of punishment. The power to detain must
be ancillary to the exercise of some other constitutional power such as protection of the
community.
-
McHugh
83
o "The Constitution does not empower the Commonwealth to make a law for the detention of a person
because the person has committed a crime or because it is feared that he or she may commit a crime in
the future."
▪
This quote highlights the limitation of the Commonwealth power to make laws for the detention
of a person, as it can only be done for protection of the community and not for punishment of
crime committed or for fear of future crime. The power to detain a person must be for a specific
constitutional purpose and not just because the person has committed a crime or may commit a
crime in the future.
-
Summary
o found that the Commonwealth government could not make a law for the detention of a person under the
Dangerous Prisoners (Sexual Offenders) Act because it exceeded the limits of the Commonwealth's
power to make laws with respect to "the detention of criminals" as outlined in the Constitution.
o The Constitution of Australia divides power between the Commonwealth government and the State
governments. The Commonwealth government has the power to make laws with respect to certain
specified areas, such as defense, trade and commerce, and the detention of criminals. However, the
Constitution also provides that the States have residual powers to make laws in all other areas not
specifically given to the Commonwealth government.
o In the Kable case, the Court found that the Commonwealth government's power to make laws with
respect to the detention of criminals is limited to the protection of the community from the actions of
dangerous individuals, and not for the purpose of punishment. The Dangerous Prisoners (Sexual
Offenders) Act, which allowed for the continued detention of prisoners who had been convicted of
serious violent crimes and were deemed to be a danger to the community, was found to exceed this
limit. The Court held that the law was unconstitutional as it exceeded the limits of the Commonwealth's
power.
o So, the Commonwealth government couldn't make this law because the law was not for the protection
of the community, it was for punishment, which is not within the limits of the Commonwealth's power
to make laws with respect to detention of criminals as per the Australian Constitution
-
Public view was a big thing. The Judiciary couldn’t be seen as ‘subservient’ to the executive
(1942) 66 CLR 452
Relevant Sections:
84
Case summary/Quote:
-
Court martials / military courts not affected by ch iii Courts/jurisdictional power. Falls within defence
power.
-
Application for writ of habeas corpus or writ of prohibition.
-
Two seamen convicted by court martial for murder committed on board vessel of Commonwealth Naval
Forces.
-
Sentenced to death and detained in custody in Sydney.
-
Rear-admiral issued direction for court-martial pursuant to authority conferred by Governor-General of
Commonwealth.
-
Rear-admiral held similar authority to make direction under Lords Commissioners of Admiralty.
-
Order in Council required all vessels and seamen of Naval Forces transferred to King's Naval Forces.
-
Rule nisi made by applicant for respondent to show cause why writ of habeas corpus or order of prohibition
should not issue.
-
Applicants claimed court martial had no power to give death sentence pursuant to (CTH) Defence Act 19031941 s 98.
-
Claimed court martial directed pursuant to Australian authority alone.
-
Claimed matter outside (IMP) Imperial Naval Discipline Act 1866 s 45 which provided for punishment by
death.
-
Claimed transfer of forces to King's forces had no effect on application of Australian law to prisoners.
-
Claimed failure of natural justice at court martial.
-
Whether transfer of vessel to Admiralty had effect that Imperial Act applicable.
-
Whether jurisdiction of court to grant writ of habeas corpus.
-
Held, dismissing the application:
o (i) The court had jurisdiction to entertain an application by prisoners for writ of habeas corpus directed
to the members of the court-martial pursuant to an interpretation of the Commonwealth Constitution.
o (ii) The transfer of the seamen to the King's forces placed them at the disposal of the Admiralty within
the meaning of (IMP) Naval Discipline (Dominion Naval Forces) Act 1911 s 1(1) so that the provisions
of the (IMP) Naval Discipline Act 1866 s 45 applied, and so that the (CTH) Defence Act 1903-1941 s
98 was inapplicable by reason of its inconsistency with the Imperial enactment and s 42(2) of the
Defence Act.(iii) Accordingly, the court-martial had power to impose the sentence of death.
(1921) 29 CLR 257
Relevant Sections: 51(xxxix), 61, 71, 72, 73, 74 etc
Case summary/Quote:
85
-
The GG wanted advice from the HCA if an act was valid. The HCA said it wasn’t in a position to say so. And
it wasn’t in the power of incidental and 61 for the GG to have the HCA give an opinion on it.
o Background was there was an act that was enacted but not yet proclaimed. And the boys wanted an
opinion as to how far the scope of that act would extend (Essentially). The HCA said get fucked.
-
Referral of question of Constitutional validity to High Court by Governor-General.
-
Whether (CTH) Navigation Act 1912 ss 14, 43, 44, 135, 136, 288 and 293 valid enactments of Parliament.
-
Held:
o (i) Declarations constitute judicial functions and the High Court is not competent to exercise such
functions unless forming part of the judicial power of the Commonwealth under the Commonwealth
Constitution.
o (ii) There was no jurisdiction for the High Court to determine abstract questions of law without the right
or duty of any body or person being involved
(1999) 197 CLR 510
Relevant Sections:
Case summary/Quote:
-
Abebe arose from the Refugee Review Tribunal (the Tribunal) refusing to grant refugee status to the applicant
on the grounds she had lied during the interview process, undermining her credibility. The applicant sought
judicial review of the decision on the grounds of being denied natural justice and that no reasonable authority
could have made such a decision.[2][3]
-
The Federal Court held that her review grounds were unavailable due to amendments made to the Migration
Act removing various grounds of review for cases heard before Federal Courts.
-
Abebe then applied to the High Court in its original jurisdiction for review of the RRT's decision. Additionally,
her application asked the court to rule that the aforementioned amendments to the act were unconstitutional.
-
A majority of the court held that the Parliament's amendments were constitutionally valid. It commented within
the judgement that restricting federal courts in this way would inevitably cause problems for the High Court in
managing workload and procedure.
-
In effect, appeals based on the grounds excluded by amendments to the Migration Act; would be able to be
taken up directly by the High Court, so long as they fell within one of the section 75 constitutional writs.
86
-
In addition, the court ruled unanimously that Abebe's unreliability at interview entitled the RRT to dismiss her
refugee claim
(1999) 198 CLR 511
Relevant Sections:
Case summary/Quote:
-
The jurisdiction that may be conferred on a federal court was prescribed by, and limited to, the heads of power
contained in ss 75 and 76 of the Constitution and that no other polity could confer jurisdiction on federal
courts.
WEEK 9 – INCONSISTENCIES OF LAWS
Book – Pages 394 – 429
-
and/or
109
class/lectures
Law: includes primary & subordinate legislation. Eg regs, excludes the common law; there is only 1 common
law in Australia (Lange) and statute law may override the common law
-
S109 issue arises only if a valid Cth law and a valid State law exist. If either law is invalid (Before s109 is
engaged), there is no inconsistency – per Latham CJ in Carter v Egg & Egg Pulp Marketing Board (Vic)
(1942). E.g Cth law is invalid due to lack of Cth head of power.
-
Invalid: means inoperative, rather than invalid for lack of legislative power. An otherwise valid State law is
made inoperative (i.e unenforceable, of no effect) by s.109
-
S 109 invalidity lasts so long as the inconsistency exists – Wa v Cth (Native Title Act Case)(1995). Once Cth
law ceases to operate, State law is then fully operative – Butler v A-G (Vic) (1961)
-
Dixon J’s Two Propositions in Victoria v Cth (1937)
-
1. When a valid State law would alter, impair or detract from the operation of a Cth law, then to that extent it is
invalid;
-
2. If it appears from the terms, the nature or subject matter of a Cth law that the Cth law is intended as a
complete statement of the law governing a matter or set of rights and duties, then a State law attempting to
regulate or apply to the same matter is regarded as a detraction from the Cth law’s full operation, and the State
law will be inconsistent.
o Direct Inconsistency:
▪
Test 1: It is impossible to obey both laws.
87
•
▪
Eg: You MUST do X: You must not do X.
Test 2: One law purports to confer legal right, privilege or entitlement that other law purports to
remove or diminish.
•
Eg: You can do X, you cannot do X. Doing Y is lawful, it is unlawful to do Y.
o Indirect Inconsistency:
▪
Test 3: Cth law evinces a legislative intention to “cover the field” & State law also operates in
the same field. The Cth’s law shall be all there is on that topic. If “Y” to both Q’s, inconsistency
arises:
•
Q1: Is Cth law intended to be exhaustive?
•
Q2: Does State law operate in the same field as Cth law?
R v Brisbane Licensing Court; Ex parte Daniel (1920)
o Cth Electoral Act 1918 (Cth): No vote or referendum in any State on the same day as a federal polling
day.
o Qld State law provided for State referendum on liquor trading hours on the same day as a federal
polling day.
o HCA (7:0) held Qld State law was inoperative under s.109.
Clyde Engineering v Cowburn (1926)
-
NSW State law:
o “Ordinary working hours” of 44 hrs/week with overtime entitlements thereafter.
-
Cth Award (Cth Act based on s51(xxxv)
o “Ordinary hours of duty” of 48 hrs/week without overtime
-
It was possible to literally obey both Cth & State laws:
o Employee works 44 hrs/week
o Employer pays full pay (for only 44 hrs)
-
Mr Cowburn worked 44 hrs/week (State)
-
His employer docked his pay (Cth)
-
Issue: Is there any inconsistency under s109?
-
Test 2 (“Rights test” of inconsistency):
o Formulated by Knox CJ & Gavan Duffy J
o One law purports to confer legal right, privilege or entitlement that other law purports to remove or
diminish
88
o 2 laws may be inconsistent although it may be possible to literally obey both
-
Test 3 (Cover the field)
o Formulated by Isaacs J
o Inconsistency arises where Cth evinces to “Cover the field”, & a State law attempts to enter the same
field. No need to compare provisions in detail – inconsistency arises by mere existence of both sets of
provisions
Ex parte McLean (1930)
-
Conciliation & Arbitration Act 1904 (Cth)
o S 44 specified max penalties for a person in breach of a Cth award
-
Masters & Servants Act 1902 (NSW)
o S4 specified different penalties for a person who neglects to fulfil a contract of service
-
Was there a s109 inconsistency?
-
Dixon J confirms ‘cover the field’….
Commercial Radio Coffs Harbour v Fuller (1986)
-
Broadcasting & Tv Act 1942 (Cth)
o Conditions on licence, requiring licensee erect antennas, but licensee not given any absolute authority to
do so.
-
Environmental Planning & Assessment Act 1979 (NSW)
o Regulated development of local areas
-
HCA considered all 3 tests in this case.
o Test 1: Cth law did not require licensee to disobey State laws. No inconsistency
o Test 2: Cth law only required licensee to do something; Cth law did not confer any legal right, that the
State law then diminished. No inconsistency
o Test 3: Cth and State laws were for totally different purposes. Different field. No inconsistency
Ansett v Wardley (1980)
-
Pilots Agreement, deemed a Cth Award under Conciliation & Arbitration Act 1904 (Cth) s 28
o Cl 6B allowed Ansett to dismiss pilots with <6 months service by giving 7 days written notice, without
needing reasons
-
Equal Opportunity Act 1977 (Vic)
o S18 outlawed sex discrimination
-
Ansett ordered to reinstate female pilot, Mrs Wardley, who was sacked using Cl 6B
89
-
Ansett argued Pilots Agreement gave it an unqualified right to dismiss pilots & Vic law was inconsistent with
Agreement
-
HCA (3:2) found no s109 inconsistency
o Stephen J (Majority, no inconsistency)
▪
Test 2: Cl 6B right to dismiss only in context of employment relationship only, not absolute
▪
Test 3: Pilots Agreement & Vic law were concerned with different subjects:
•
Pilot Agreement deal with industrial matters
•
Vic law dealt with social problems of [sex] discrimination
o Mason J (Majority, no inconsistency)
▪
Tests of inconsistency are interrelated; in any given case, inconsistency may be established by
more than one test.
▪
Cth did not intend to cover the field: Cl 6B does not deal with substantive right of dismissal.
Right of employer to dismiss under general law remains on foot modified by Vic Act.
o Aickin J (in dissent; Barwick CJ agreeing)
▪
This is an example of direct conflict:
•
Cl 6B allowed dismissal without reason; Hence Pilots Agreement was intended to deal
with all aspects of dismissal including the grounds for dismissal
-
•
But Vic Act outlawed dismissal on certain grounds (eg sex discrim)
•
Therefore Vic Act impairs, alters or detracts from Cl 6B operations.
Concept of ‘operational inconsistency’ first surfaced in Vic v Cth (The Kakariki)(1937)
o Scenario when on their face, provisions of Cth & State laws are not inconsistent.
o Powers conferred under both laws are so far unexercised
o The mere coexistence of executive or administrative powers do not necessarily establish inconsistency.
o But if during the exercise of Cth powers under Cth laws, inconsistency May emerge. i.e ‘operational
inconsistency’
Cth v WA (Mining Act Case) (1999)
-
Mining Act 1978 (WA)
o Authorisation may be granted for mining operations on land (inc. perimeter area)
-
Defence Act 1903 (Cth)
o Reg 51(1) allowed chief of staff to authorise defence operations in a perimeter area
-
HCA:
90
o Cth did not generally prohibit entry to a perimeter area, except when a defence operation was
authorised under Reg 51(1)
o There was no present inconsistency in this case
o Resulting inconsistency when defence operation was authorised under Reg 51() would render WA Act
inoperative for only so long as the inconsistency remains
o Cth Reg did not cover the field. It is not inevitable that both laws would operate inconsistency
Evatt J’s idea in West v Comm of Taxation (NSW) (1937)
o Attempts by Cth Parliament to manufacture inconsistency between Cth laws and State laws would often
result in Cth laws being ultra vires.
o Example of lawful attempt: R v Brisbane Licensing Court; Ex parte Daniell, but if Cth law purported to
prohibit holding of State referendum 6 months before a Cth election, That Cth law would be invalid
o S109 does not give Cth ‘general’ supremacy over the States
Airlines of NSW v NSW (No 2)
o Air Navigation Regulations 1947 (Cth):
▪
Reg 200B: Cth licensee given positive right to operate flights regardless of State laws
o Air Transport Act 1964 (NSW) required operators in NSW to be licensed
▪
Cth & NSW Govts adopted different policies, favouring different airlines
o HCA held Reg 200B was invalid. Cth law and NSW law were on different fields
o Had Reg 200B been held valid, the deadlock between Cth & NSW Govts would have been broken (by
Reg 200B)
o Only Kitto J based Reg 200B’s invalidity on ‘manufactured inconsistency’
▪
Character of Reg 200B was that of a law w.r.t the application of State laws, which is outside Cth
Parliament’s powers.
▪
Reg 200B purports to operate not be protecting a federal right from State interference, but by
supplementing an exemption from federal prohibition with a conferral of immunity from any
State laws.
Botany Municipal council v Federal Airports Corp (1992) – Manufactured inconsistency rejected
Work Choices Case (2006)
-
Gleeson CJ , Gummow, Hayne, Heydon & Crennan JJ (majority)
o S109 may operate where Cth has enacted…. Something
91
Viskauskas v Niland (1983)
-
Racial disciminiation act 1975 (Cth)
o No express declaration about Cth intention to cover the field (or not)
o Supported by s51(xxix) power to implement Australia’s obligation under international treaty
o S6: Act to bind Crown in all capacities
o S13. Outlawed racial discrimination w.r.t sale of goods & provision of services
-
Anti-Discrimination Act 1977 (NSW)
o S19 outlaws racial discrimination w.r.t sale of goods & provisions of services
-
Issue: Was NSW law inoperative as Cth law has covered the field?
-
HCA (5:0) NSW Act was inconsistent with Cth’s intention to cover the field (indirect inconsistency)
o Parties to international treaty undertook to eliminate all forms of racial discrimination
o Australia’s obligation could only be fulfilled if Cth law operated equally in all States
o Everything in Cth Acts points to Cth intending to legislate exhaustively (eg. S6)
o Even if that were not so, s9 & s 13 deal with the same subject of racial discrimination but provide
consequences that are not identical – Ex parte McLean
Uni of Wollongong v Metwally (1984)
-
One month after Viskauskas decision, Racial Discrimination Act 1975 (Cth) was amended:
o S6A(1):; This Act is not intended, and shall be deemed never to have been intended, to exclude / limit
State law
-
To try to retrospectively revive Anti-Discrimination Act 1977 (NSW) made inoperative in Viskauskas
-
Was s6A effective retrospectively?
-
HCA (unanimous)
o S6A could prospectively declare Cth’s intention not to cover the field
-
HCA (4:3)
o S6A could not retrospectively uncover the field to revive a State law already made invalid by s109.
Ordinary Cth law cannot prevail over Cth Constitution. Gibbs CJ, Murphy, Brennan & Deane JJ
o Mason, Wilson & Dawson JJ dissented. What Parliament could do prospectively, it could do
retrospectively.
Hume v Pamer (1926) 38 CLR 441
-
Different outcomes from same conduct (Same offence, different penalties)
-
HCA held NSW law invalid due to s109.
92
R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338
-
Criminal code (Qld) Crimes Act (Cth). – wilful damage to property generally (and to ‘Cth property’) – Very
similar conduct.
-
Issue: Could Cth and Qld criminal provision relating to damage to property operate concurrently?
-
HCA: No. inconsistent with ‘cth’ property.
Relevant sections of the constitution
-
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.
Relevant cases
(1926) 37 CLR 466
Relevant Sections: 109 – Relays the 3 tests
Case summary/Quote:
-
NSW State law:
o “Ordinary working hours” of 44 hrs/week with overtime entitlements thereafter.
-
Cth Award (Cth Act based on s51(xxxv)
o “Ordinary hours of duty” of 48 hrs/week without overtime
-
It was possible to literally obey both Cth & State laws:
o Employee works 44 hrs/week
o Employer pays full pay (for only 44 hrs)
-
Mr Cowburn worked 44 hrs/week (State)
-
His employer docked his pay (Cth)
-
Issue: Is there any inconsistency under s109?
-
Test 2 (“Rights test” of inconsistency):
o Formulated by Knox CJ & Gavan Duffy J
o One law purports to confer legal right, privilege or entitlement that other law purports to remove or
diminish
o 2 laws may be inconsistent although it may be possible to literally obey both
-
Test 3 (Cover the field)
o Formulated by Isaacs J
o Inconsistency arises where Cth evinces to “Cover the field”, & a State law attempts to enter the same
field. No need to compare provisions in detail – inconsistency arises by mere existence of both sets of
provisions
93
(1930) 43 CLR 472
Relevant Sections:
Case summary/Quote:
-
Conciliation & Arbitration Act 1904 (Cth)
o S 44 specified max penalties for a person in breach of a Cth award
-
Masters & Servants Act 1902 (NSW)
o S4 specified different penalties for a person who neglects to fulfil a contract of service
-
Was there a s109 inconsistency?
-
Dixon J confirms ‘cover the field’….
(1980) 142 CLR 237
Relevant Sections:
Case summary/Quote:
-
Pilots Agreement, deemed a Cth Award under Conciliation & Arbitration Act 1904 (Cth) s 28
o Cl 6B allowed Ansett to dismiss pilots with <6 months service by giving 7 days written notice, without
needing reasons
-
Equal Opportunity Act 1977 (Vic)
o S18 outlawed sex discrimination
-
Ansett ordered to reinstate female pilot, Mrs Wardley, who was sacked using Cl 6B
-
Ansett argued Pilots Agreement gave it an unqualified right to dismiss pilots & Vic law was inconsistent with
Agreement
-
HCA (3:2) found no s109 inconsistency
o Stephen J (Majority, no inconsistency)
▪
Test 2: Cl 6B right to dismiss only in context of employment relationship only, not absolute
▪
Test 3: Pilots Agreement & Vic law were concerned with different subjects:
•
Pilot Agreement deal with industrial matters
•
Vic law dealt with social problems of [sex] discrimination
o Mason J (Majority, no inconsistency)
▪
Tests of inconsistency are interrelated; in any given case, inconsistency may be established by
more than one test.
94
▪
Cth did not intend to cover the field: Cl 6B does not deal with substantive right of dismissal.
Right of employer to dismiss under general law remains on foot modified by Vic Act.
o Aickin J (in dissent; Barwick CJ agreeing)
▪
This is an example of direct conflict:
•
Cl 6B allowed dismissal without reason; Hence Pilots Agreement was intended to deal
with all aspects of dismissal including the grounds for dismissal
•
But Vic Act outlawed dismissal on certain grounds (eg sex discrim)
•
Therefore Vic Act impairs, alters or detracts from Cl 6B operations.
(1965) 113 CLR 54
Relevant Sections: 109
Case summary/Quote:
-
Spoke of both state and cth acts having to have licenses applied for, to fly the planes etc. There was
inconsistency between the acts.
-
Application for determination of case stated from single judge of High Court of Australia.
-
Plaintiff licensed airline operator within New South Wales held licences from respondent Commissioner for
Motor Transport.
-
Plaintiff commenced action in High Court seeking certain declaration and injunction.
-
Whether provisions of Air Navigation Regulations regs 6, 198, 199, 200B, 320A and 320B made under
authority of (CTH) Air Navigation Act 1920 (Navigation Act) s 26 valid laws of Commonwealth in relation to
regular public transport operations within state of NSW.
-
Whether Air Navigation Regulations inconsistent with provisions of (NSW)Air Transport Act 1964 (Transport
Act).
-
Held: Case stated determined (6:1).
-
In application to regular public transport solely within limits of NSW regs 198, 199, 320A, 320B valid and reg
200B invalid.
-
Provisions of Transport Act not inconsistent with valid Commonwealth regulations
-
Racial disciminiation act 1975 (Cth)
o No express declaration about Cth intention to cover the field (or not)
95
o Supported by s51(xxix) power to implement Australia’s obligation under international treaty
o S6: Act to bind Crown in all capacities
o S13. Outlawed racial discrimination w.r.t sale of goods & provision of services
-
Anti-Discrimination Act 1977 (NSW)
o S19 outlaws racial discrimination w.r.t sale of goods & provisions of services
-
Issue: Was NSW law inoperative as Cth law has covered the field?
-
HCA (5:0) NSW Act was inconsistent with Cth’s intention to cover the field (indirect inconsistency)
o Parties to international treaty undertook to eliminate all forms of racial discrimination
o Australia’s obligation could only be fulfilled if Cth law operated equally in all States
o Everything in Cth Acts points to Cth intending to legislate exhaustively (eg. S6)
o Even if that were not so, s9 & s 13 deal with the same subject of racial discrimination but provide
consequences that are not identical – Ex parte McLean
-
One month after Viskauskas decision, Racial Discrimination Act 1975 (Cth) was amended:
o S6A(1):; This Act is not intended, and shall be deemed never to have been intended, to exclude / limit
State law
-
To try to retrospectively revive Anti-Discrimination Act 1977 (NSW) made inoperative in Viskauskas
-
Was s6A effective retrospectively?
-
HCA (unanimous)
o S6A could prospectively declare Cth’s intention not to cover the field
-
HCA (4:3)
o S6A could not retrospectively uncover the field to revive a State law already made invalid by s109.
Ordinary Cth law cannot prevail over Cth Constitution. Gibbs CJ, Murphy, Brennan & Deane JJ
o Mason, Wilson & Dawson JJ dissented. What Parliament could do prospectively, it could do
retrospectively.
(1974) 131 CLR 338
Relevant Sections: 109
cover the field
Case summary/Quote:
-
Defendant charged with damaging property on cth land (Qld ACT)
o There is an equivalent provision under the relevant CTH crimes act.
-
Defendant went to High Court and argued that the Qld ACT was inoperative.
-
4:1 judges found this to be the case.
96
Relevant Sections:
Case summary/Quote:
-
Argued that there was inconsistencies between cth and state legislations. In relation to licences, broadcasting
and television etc etc bluh bluh.
-
Ultimately found there was no overlap. You could comply with both sets of statutes.
(1965) 114 CLR 226
Relevant Sections: 71, 72, 109, 122
Case summary/Quote:
-
Determination of case stated from single judge of Supreme Court of Australian Capital Territory.
-
Action for breach of (CTH) Post and Telegraph Act 1960 s 107(c) brought before respondent stipendiary
magistrate.
-
Appellant claimed respondent possessed no jurisdiction to hear charge under Ch III of Constitution of
Commonwealth of Australia.
-
Whether respondent possessed jurisdiction.
-
Held: Case stated determined (6:0).
-
Respondent possessed jurisdiction to hear and determine matter.
-
Section 122 Constitution permitted Commonwealth to authorise creation of courts with jurisdiction with
respect to occurrences in territory without observing s 72 Constitution in appointment of judicial officers
WEEK 10 – CORPORATIONS POWERS
Book – Pages 902 – 932
o
o
o
o
-
and/or
51(xx)
class/lectures
Foreign Corporations:
Corporations formed outside the limits of the Cth.
Trading or Financial Corporations formed within the limits of the Cth
Corporations formed within Australia
o
Under the Corporations Act 200 (Cth)
o
Or under another Australian statute *
Note: Must be a "trading or financial corporation" if it is not a foreign corporation.
97
o
How to identify a trading corporation?
o
R v Trade Practices Tribunal; Ex parte St George County Council (1974)
o
o
St George County Council, established under Local Government Act 1919 (NSW).
HCA (3:2): St George County Council was not a trading corporation.
o
2 majority judges: A trading corporation is one that was incorporated for the purpose of trading.
o
2 minority judges: The activities of a corporation determines whether it was a trading corporation.
o
R v Federal Court of Australia; Ex parte WA National Football League ("Adamson's Case") (1979)
o
Trade Practices Act 1974 (Cth): trading corps cannot make anti-competitive contracts.
o
Involved Brian Adamson, SA National Football League, WA National Football League & West
Perth Football Club.
o
Were the SANFL, WANFL & West Perth FC
"trading corporations"?
o
HCA (4:3) - Yes, they were.
o
Mason | (& Jacobs J): A corp is a trading corp when its trading activities form a sufficiently significant
proportion of its overall activities.
o
The principal activity of the Leagues: trading.
o
The Club's principal activity: to participate in the WA League, which is its main source of income.
o
Barwick C] (majority): A corp is a trading corp if trading is a substantial activity of that corp.
o
Murphy J (majority): A corp is a trading corp if its trading activity is not insubstantial, or if it the corp was
incorporated for the purpose of trading.
o
Stephen J (& Gibbs, Aickin JJ (minority): The Leagues & Clubs' trading activities were incidental to their nontrading purpose.
o
State Superannuation Board v Trade Practices Commission (1982)
o
Trade Practices Act 1974 (Cth) prohibited a trading or financial corp from engaging in the practice of
exclusive dealing.
o
The Board, responsible for managing a super fund for Vic govt employees, was set up under
Superannuation Act |958 (Vic).
o
Was the Board a "financial corporation"?
98
o
HCA (3:2) - Yes, it was.
o
Mason, Murphy & Deane ]J (majority):
o
HCA's approach in ascertaining what is a financial corporation" should be the same as its approach for
"trading corporation".
o
Activities Test established in Adamson. St George County Council's Purpose Test rejected, but may be
relevant for inactive corporations.
o
A corporation whose financial activities are a substantial part of its overall activities is a financial
corporation.
o
Fencott v Muller (1983)
o
Oakland was a "shelf company", was inactive after its formation. Its objects included engaging in
businesses & financial activities.
o
Issue: Was it a "trading corporation"?
o
o
HCA (4:3) - Yes, it was.
o
Mason, Murphy, Brennan & Deane ]J (majority): Examine inactive corp's constitution & objects
(Purpose Test).
-
Tasmanian Dam Case (1983)
o
Tas Hydro-Electric Commission, created by Hydro-Electric Commission Act |944 (Tas).
o
Commission had a regulatory role in licensing electricians etc. It also earned substantial profits, it
operated power stations, generated & sold electricity, & planned to build a dam on the Franklin river
system in Tas.
o
o
HCA majority: the Commission was a trading corp; was trading on a substantial scale.
E v Aust Red Cross Soc (1991) 27 FCR 310
o
FCA held that the Red Cross was a trading corp as it earned $2m in 1984-5 from sale of goods; Prince
Alfred Hospital was a trading corp - $3.7m from business activities, although it also got $|2m in State
funding.
o
Quickenden v O'Connor (2001) 109 FCR 243
o
o
FCAFC held UWA was a trading corp - 18% of its turnover came from trading activities.
Communications Union v Qld Rail (2015)
99
o
o
Qld Rail Transit Authority Act 2013 (Qld)
o
s 6(2): The Authority is not a body corporate.
o
The Authority does not represent the State, but had all the powers of an individual.
HCA held that s 6(2) was ineffective in removing Qld Rail from the scope of Fair Work Act 2009 (Cth) which
applied to constitutional corporations.
o
o
State Parliaments cannot limit Cth legislative power.
French CJ, Hayne, Kiefel, Bell, Keane & Nettle I):
o
Used the Activities Test: Qld Rail was a labour hire company and that was a trading activity.
o
Old Rail was constituted to engage in trading & be profitable (Purpose Test?).
o
o
Gageler J:
o
An entity's substantial trading purpose or substantial trading activity could make it a
"trading corporation”
o
Early View
o
Huddart, Parker & Co v Moorehead (1909)
o
Provisions in Australian Industries Preservation Act /906 (Cth) that prohibited corporations from
monopolising intra-State trade were held invalid by HCA.
o
Griffith CJ, Barton & O'Connor I|: Power over intra-State trade reserved to the States.
o
Post-Engineers: A Wider View
o
Strickland v Rocla Concrete Pipes Ltd (1971).
o
Impugned provisions of Trade Practices Act 1965 (Cth) regulated intra-State trading activities of
trading/financial corporations.
o
HCA disapproved Huddart, Parker:
o
Reserved State powers doctrine rejected in Engineers.
o
A law that affects a corporation's conduct in its intra-State trade is not automatically outside of s 51
(xx).
o
Actors Equity (1982)
o
Actors & Announcers Equity Association v Fontana Films (1982).
100
o
Trade Practices Act |974 (Cth) s 45D protected corporations against "secondary boycotts"
o
Impugned provision protected constitutional corporations rather than regulated them.
o
o
HCA: this was a valid law w.r.t. constitutional corporations.
o
s 51 (xx) can support laws that seek to protect a constitutional corporation from harm, even if the harm
is from natural persons
o
Mason ] stressed the need for a connection with the head of power:
o
A law that prohibits taxes on trading activities in general cannot be characterised as a law w.r.t. trading
corporations, even if it may affect trading corporations (too remote, indirect).
-
Tasmanian Dam Case (1983)
o
World Heritage Properties Conservation Act 1983 (Cth).
o
s 10(2) prohibited far-ranging listed activities.
o
Mason, Murphy & Deane ]J: Valid; s 51(xx) power is plenary.
o
Gibbs C], Wilson & Dawson JJ: Invalid; 10(2) had no connection with trading activities of
corps.
o
-
s 10(4) prohibited activities undertaken for purposes of corp's trading activities.
o
Gibbs C], Mason, Murphy, Brennan & Deane J: Valid
o
s 51(xx) supports laws concerning activities done by trading corp for purposes of trade.
Summary after Tasmanian Dam s 51 (xx) supports:
o Laws w.r.t. trading activities of trading corps (or financial activities of financial corps) - Concrete
Pipes.
o
Laws that protect trading corps from harm by natural persons - Actors Equity.
o
Laws w.r.t. activities done by trading/financial corp for purposes of trade/finance - Tasmanian Dam
majority 5.
-
Re Dingjan; Ex parte Wagner (1995)
o
Trading Corp -> Wagner (independent contractors; a partnership) -> Dingian (sub-contractors).
o
Dingjan & Union unhappy with new sub-contract's.
o
Industrial Relations Act |988 (Cth)
o
s 127C(I)(b) - power to set aside a contract relating to a constitutional corporation's biz.
o
o
HCA (4:3) held s 127C(I)(b) invalid.
o
Majority: law's connection to constitutional corps is too remote.
101
-
Work Choices Case (2006)
o
NSW v Cth (Work Choices Case) (2006).
o
Workplace Relations Amendment Work Choices) Act 2005 (Cth) amended Workplace Relations Act 1996
(Cth)
o
Largely based on s 51 (xx) power.
o
National system of industrial relations law.
o
Went far beyond regulating trading activities of constitutional corporations.
o
Attempted to regulate relationship between constitutional corporations & their employees.
-
NSW v Cth (Incorporation Case) (1990)
o
HCA (6: 1): Cth cannot use s 51 (xx) to legislate for the incorporation of companies.
o
"Trading or financial corporations formed within the limits of the Cth" held to refer to corporations already
formed.
o
o
-
The majority also referred to obiter in Huddart, Parker, and to the Convention Debates.
What does s 51 (xx) support?
o
Concrete Pipes.
o
Actors Equity.
o
Tasmanian Dam.
o
Work Choices.
What does s 51 (xx) not support?
o Actors Equity.
o Re Dingjan.
o Incorporation Case.
Relevant sections of the constitution
-
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
o (xx) Foreign corporations, and trading or financial corporations formed within the limits of the
Commonwealth
Relevant cases
(1971) 124 CLR 468
Relevant Sections:
102
Case summary/Quote:
Principle: Huddard not good law for corporations power.
-
Applications for leave to appeal from decision of Commonwealth Industrial Court (CIC) dismissing charges
laid under (CTH) Trade Practices Act 1965-1969.
-
Trading corporations formed in Australia parties to agreements relating to trade within Queensland said to be
examinable under Act.
-
Corporations charged with failing to furnish particulars of such agreements as required by s 43.
-
CIC dismissed charge holding itself bound by decision of High Court of Australia in Huddart Parker and Co
Pty Ltd v Moorehead and finding that legislative power of Commonwealth did not extend to enable Parliament
to make valid law controlling intrastate trading operations of foreign corporations and trading or financial
corporations formed within limits of Commonwealth.
-
Whether Huddart Parker correct construction of Constitution of the Commonwealth of Australia s 51(xx).
-
Whether CIC correctly dismissed charge.
-
Whether enactment of ss 35, 41, 42 and 43 valid exercise of power conferred by s 51(xx).
-
Held: Appeals dismissed (5:2).
o Huddart Parker should no longer be accepted as correct construction of s 51(xx).
o CIC correctly dismissed charge.
o Enactment of provisions not valid exercise of power
(1979) 143 CLR 190
Relevant Sections:
Case summary/Quote:
Principle: "Trading activities" are those that involve some form of buying and selling, and generate revenue,
regardless of whether carried out at a profit
Held:
(i) Per Barwick CJ, Stephen and Aickin JJ: The High Court has jurisdiction to grant prohibition to a federal
court whether or not a right of appeal to the High Court lies from orders made by that federal court.
103
(ii) The Parliament has not legislative power to create a jurisdiction to make any order under a statutory
provision which would exceed the relevant constitutional power. In relation to s 51(xx) (relating to trading
corporation) this means that the Parliament cannot give a federal court jurisdiction to make an order against a
corporation which does not satisfy the description in that paragraph requiring the corporation to do or abstain
from doing any act prescribed or forbidden by an Act depending on that paragraph for its constitutional
validity.
(iii) Where it does not appear on the face of the proceedings that the federal court for constitutional reasons
does not or could not have jurisdiction to make the order sought in the proceedings before it, the writ is not as
of right: its grant is discretionary.
(iv) The existence of a right of appeal to the High Court from the orders of the federal court is not relevant to
the exercise of the discretion to grant prohibition.
(v) Per Barwick CJ: Unless the facts necessary for decision of the question whether in truth the fact upon which
constitutional competence depends are admitted or indisputably proved, the High Court in general should defer
the consideration of an application for prohibition brought at the inception of proceedings before the federal
court until some later stage in or until the conclusion of those proceedings, allowing the federal court to
proceed meanwhile.
(vi) Per Aickin J: The alleged absence of jurisdiction appeared on the face of the proceedings in the relevant
sense.
(vii) Per Gibbs J: (1) The question whether the prosecutors were trading corporations was a jurisdictional,
preliminary or collateral fact which the High Court must decide for itself on an application for prohibition. (2)
When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction is
satisfied, that court is not obliged immediately to refrain from proceeding further, but can and should decide
whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive.
(3) The existence of a right of appeal does not bar the power of a superior court to grant prohibition. (4)
Prohibition is discretionary (at least where lack of jurisdiction is not patent) and in some cases it would be
convenient to defer the hearing of an application for prohibition until further proceedings had been taken in the
tribunal to which prohibition was sought.
(viii) Per Murphy J: The determination whether the Federal Court has jurisdiction may be made before the
Federal Court has decided whether it has jurisdiction, but this should usually be done only in a clear case and
even then a writ should not in general issue unless there is some reason to apprehend that the Federal Court will
decide the question wrongly in circumstances where the party seeking the writ will be prejudiced.
(ix) Per Mason and Jacobs JJ contra: The Federal Court of Australia has jurisdiction to decide whether the
prosecutors or any of them were trading corporations and as its decision was subject to an appeal to the High
104
Court under s 33 of the Federal Court of Australia Act 1976 it has not been armed with a conclusive power to
determine constitutional facts the exercise of which was unreviewable by the High Court. There was,
accordingly, no absence or excess of jurisdiction in the Federal Court which would justify the grant of
prohibition. Further, even if the existence of the appeal to the High Court had not afforded an absolute answer
to the case of prohibition, the existence of the right of appeal constituted a persuasive ground for refusing the
writ as a matter of discretion.
(x) Per Barwick CJ, Mason, Jacobs and Murphy JJ, (Gibbs, Stephen and Aickin JJ dissenting): The Western
Australian National League and the West Perth Club were trading corporations within the meaning of s 51(xx)
of the Constitution and the definition in s 4 of the (CTH) Trade Practices Act.
(xi) Per Barwick CJ: The refusal of a clearance was not in relation to interstate trade and commerce.
(xii) Per Barwick CJ: Criticism of the drafting practice of using statutory definitions in legislation expressed in
terms of the relevant constitutional power.
(1982) 150
CLR 169
Relevant Sections:
Case summary/Quote:
-
Trading corporations.
-
Validity of Commonwealth laws.
-
General matters.
-
Provisions as to onus of proof.
-
Words and phrases'trade'and 'business'.
-
Section 45(1)(b)(i) of the Trade Practices Act 1974 forbids one person, in concert with another, from engaging
in conduct which hinders or prevents the supply of goods or services by a third person to a corporation, or the
acquisition of goods or services by a third person from a corporation, where the conduct is engaged in for the
purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of
the corporation, or of a body corporate related to the corporation.
-
Section 45(5)(d) provides, 'If two or more persons (in this subsection referred to as the 'participants') each of
whom is a member or officer of the same organisation of employees (being an organisation that exists or is
carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its mergers in
relation to their employment) engage in conduct in concert with one another, whether or not the conduct is
engaged in concert with other persons, the organisation shall be deemed for the purposes of this Act to engage
105
in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for
which that conduct is engaged in by the participants, unless the organisation establishes that it took all
reasonable steps to prevent the participants from engaging in that conduct'.
-
Held:
-
(i) In its application to a trading corporation formed within the limits of Australia or a financial corporation so
formed s 45(1)(b)(i) is a valid exercise of the power conferred on the Commonwealth by s 51(xx) of the
Constitution (the corporations power).
-
(ii) Per Mason J (with whom Aickin J agreed): (1) Paragraph (ii) of s 45( 1 )(b) is also valid.
-
(2) (Murphy J contra) Operative provisions of the Act are invalid in their application to paragraph (d) of the
definition of 'corporation' in s 4(1) ('the holding company of a body corporate of a kind referred to in paragraph
(a), (b) or (c)').
-
(ii) Section 45(5)(d) was not an onus of proof provision.
-
(iii) Per Stephen, Mason, Aickin, Murphy and Brennan JJ, (Gibbs CJ and Wilson J dissenting): Section
45(5)(d) had a subject matter too remote from corporations to come within the corporations power.
-
It was invalid and 45(6)(d) fell with it to the extent that it had an operation consequential on 45(5)(d).
-
(iv) The following matters considered or referred to: the corporations power (Constitution, s 5 l(xx)) generally
and the extent to which its meaning has been defined by court decisions; the practice of the court in
approaching the solution of difficult problems of constitutional validity such as raised by s 51 (xx), gradually
and case by case; legislative powers such as s 51(xix) (aliens) and (xx) which are conferred by reference to
persons; the sufficiency for validity of Commonwealth legislation that, even though the law may bear several
characters, it may fairly be described as a law falling within a head of Commonwealth power; the meaning of
the words 'business' and 'trade'.
(1990) 169 CLR 482
Relevant Sections:
Case summary/Quote:
-
'Formed within the limits of the Commonwealth' in s 51(xx) means 'already formed'.
106
-
Relevance of Constitutional Convention debates in interpretation of Constitution.
-
Chapter 2 of the (CTH) Corporations Act 1989 provides for the constitution of trading and financial
corporations.
-
Application may be made for the incorporation of a company (including a proprietary company) pursuant to ss
114-25.
-
A company cannot be incorporated under these provisions unless it lodges an 'activities statement' to the effect
that the company, whether or not after a period of 'dormancy' under s 153(2), will wholly or substantially
engage in trading or financial activities (ss 9, 153 and 155).
-
Both the company and the Australian Securities Commission are obliged to apply for the winding up of the
company if it ceases to be a trading, financial or banking corporation (ss 156-8).
-
The court 'may' order the winding up of a company in such circumstances (s 459(1)).
-
A person may not carry on business through an 'outsize' partnership or association not duly incorporated under
the Act or some other law (s 112).
-
It is unlawful to incorporate a company under the company law of a State or Territory if the company will be,
on incorporation, a trading or financial corporation (s 114).
-
Chapter 5 of the Act, dealing with the external administration of companies, makes provision for schemes of
arrangement, receivership, official management and winding-up of companies.
-
Before the Act had been proclaimed to commence, the plaintiff States brought proceedings claiming that the
Act was invalid to the extent that it provided for the incorporation of companies, or prevented companies being
incorporated under the company law of a State.
-
The Commonwealth stated, during argument that Chapters 2 and 5 of the Act would not be proclaimed if the
challenged provisions were held to be invalid.
-
Held: per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ (Deane J dissenting):
o (i) The relevant provisions were not supported by s 51(xx) and were accordingly invalid as laws with
respect to trading or financial corporations formed within the limits of the Commonwealth.
o (ii) The words 'formed within the Commonwealth', having regard to their plain meaning in the context
of s 51(xx) and the drafting history of the placitum during the Convention debates, mean 'already
formed'.
-
Accordingly the Commonwealth cannot under s 51(xx) make a law for the incorporation of trading or financial
corporations, as distinct from regulating the activities of such corporations when created. Nor can it prohibit the
incorporation of a company under State law, notwithstanding that it will after incorporation be or become a
trading or financial corporation.
107
o (iii) Per Deane J (dissenting): Having regard to the established principle of the liberal interpretation of
constitutional provisions, a plenary legislative power with respect to corporations of a particular kind
extends to the creation and dissolution of such corporations.
-
The word 'formed' in s 51(xx) is intended to draw a contrast with foreign corporations and has no temporal
significance.
-
It is not legitimate to constrict the ordinary meaning of a constitutional provision by reference to statements
made by some of the participants in the Convention debates.
(2006) 229
CLR 1
Relevant Sections:
Case summary/Quote:
(1983) 158 CLR 1
Relevant Sections:
s51(xxix), nationhood, 51(xx – corporations), 51(xxxi), s51(xxvi), 109, 110
Case summary/Quote:
-
Construction of a dam and associated works by the Hydro-Electric Commission of Tasmania was authorised by
the (TAS) Gordon River Hydro-Electric Power Development Act 1982.
-
The works would affect a small proportion of a very large area (the Western Tasmania Wilderness), almost
entirely unalienated Crown land, proclaimed as three national parks under the (TAS) National Parks and
Wildlife Act 1970 and originally constituted under earlier legislation.
-
By proclamation made in August 1982 a relatively small area of the parks was excised from the parks and
vested in the Commission.
-
A further even smaller area was proposed to be excised in 1990.
-
The World Heritage Commission decided in December 1982 to enter the Wilderness Area in the World
Heritage list maintained under the Convention for the Protection of the World Cultural and Natural Heritage, a
convention into which Australia had entered and which it had ratified.
-
Thereafter, in conformity with a policy of the Commonwealth Government to stop construction of the dam, the
Governor-General, acting in exercise of the power conferred by s 69 of the (CTH) National Parks and Wildlife
Conservation Act 1975, made the World Heritage (Western Tasmania Wilderness) Regulations 1983 and the
Commonwealth Parliament enacted the World Heritage Properties Conservation Act 1983 and regulations and
proclamations were made thereunder.
108
-
Either the World Heritage (Western Tasmania Wilderness) Regulations, or the World Heritage Properties
Conservation Act and its associated promulgations, would, if valid, render it unlawful to construct the dam
except with the consent of a Commonwealth Minister.
-
Held:
o (i) External affairs power (Constitutions 51(xxix)).
o (ii) Per Gibbs CJ, Mason, Murphy, Brennan and Deane JJ, (Dawson J dissenting): Section 51(xxix) of
the Constitution authorises Commonwealth laws which implement an obligation in a treaty or
convention which Australia has bona fide entered into and ratified, including laws having a purely
domestic operation with no international character apart from the treaty or convention.
o (iii) Per Wilson J: Only those obligations resting on the Commonwealth of such a quality that a failure
to implement threatens serious disruption to its international relationships will attract the external
affairs power in cases where the subject matter would otherwise be of purely domestic concern within
the province of the States. Different views expressed as to the determinant of whether a, treaty or
convention imposes an obligation.
o (iv) Per Gibbs CJ, Mason, Murphy, Brennan and Deane JJ, (Wilson and Dawson JJ dissenting): Section
69 of the National Parks and Wildlife Conservation Act 1975 is within the external affairs power in so
far as it authorises the making of regulations for and in relation to giving effect to the World Heritage
Convention.
o (v) Per Gibbs CJ, Wilson, Deane and Dawson JJ, (Mason, Murphy and Brennan JJ dissenting): The
World Heritage (Western Tasmania) Regulations are wholly invalid.
▪
(vi) Per Gibbs CJ, Wilson and Dawson JJ: As not falling within the external affairs power.
▪
(vii) Per Deane J: As providing for acquisition of property and not providing just terms.
o (viii) Per Mason, Murphy, Brennan and Deane JJ, (Gibbs CJ, Wilson and Dawson JJ dissenting):
Section 9(1)(h) of the World Heritage Properties Conservation Act 1983 and provisions in s 6 of the
Act and the Regulations and Proclamations under the Act relevant to the decision in the case were
within the external affairs power, in respect of other provisions in ss 6 and 9, a majority held that some
were invalid and that it was unnecessary to determine the validity of others.
o (ix) Inherent power derived from nationhood. Per Gibbs CJ, Wilson, Deane and Dawson JJ: An implied
inherent power of the Commonwealth derived from nationhood, if and to the extent that it exists, could
not support coercive measures for the protection or conservation of property in Australia because that
property was part of the heritage of the Australian nation. Section 6(2)(e) of the World Heritage
Conservation Act can not be supported by reference to such a power.
o (x) Corporations power (Constitution s 51(xx)). (a) Per Mason, Murphy and Deane JJ (Wilson and
Dawson JJ dissenting): The corporations power (Constitution s 51(xx)) extends to regulation of the
activities of trading corporations, not being trading activities. Section 10 of the World Heritage
Properties Conservation Act is within the power. (b) Per Gibbs CJ and Brennan J: Section 10(4),
109
dealing with the trading activities of trading corporations, is within power. (c) Per Gibbs CJ:
Subsections (2) and (3) were not within the constitutional power as the nature of the corporation was
not a sufficient element therein. (d) Per Brennan J (expressly not deciding): Whether a law which
prohibits a trading corporation from doing something unconnected with its trading operations is a law
with respect to trading corporations. (e) Per Mason, Murphy, Brennan and Deane JJ, (Gibbs CJ, Wilson
and Dawson JJ dissenting): The Hydro-Electric Commission set up under the (TAS) Hydro-Electric
Commission Act 1944 is, by reason of its large scale activities of selling electric power, a trading
corporation within the meaning of s 51(xx) of the Constitution.
o (xi) Special laws for people of any race. Constitutions 51(xxvi). (a) Per Mason, Murphy, Brennan and
Deane JJ, (Gibbs CJ, Wilson and Dawson JJ dissenting): Sections 8 and 11, protecting 'aboriginal sites',
ie sites (1) which are situated within identified property (property which is part of the cultural or
national heritage) and (2) protection or conservation of which is, whether by reason of the presence on
the site of artefacts or relics or otherwise, of particular significance to the people of the aboriginal race,
are within s 51(xxvi) of the Constitution. (b) Per Gibbs CJ, Wilson and Dawson JJ, (Mason, Murphy
and Brennan JJ dissenting): Sections 8 and 11 are invalid, as not being within s 51(xxvi). (c) Per Deane
J: As providing for acquisition of property and not providing just terms.
o (xii) Acquisition of property on just terms (Constitutions 51(xxxi)). (a) Per Mason, Murphy and
Brennan JJ: The prohibition of development of the affected property without the consent of a
Commonwealth Minister effected by ss 9, 10 and 11 of the World Heritage Properties Conservation Act
did not constitute acquisition of property within the meaning of s 5 1(xxxi) of the Constitution. (b) Per
Deane J: There had been a purported acquisition of property for the purposes of the Commonwealth by
the operation of the World Heritage (Western Tasmania Wilderness) Regulations 1983 upon the and of
the Hydro-Electric Commission and by the operation of a declaration that two caves and an
archaeological site as property to which the provisions of the World Heritage Properties Conservation
Act. The property purportedly acquired consisted of the benefit of the prohibition, which the
Commonwealth could enforce or relax, of the exercise of those rights of use and development of land
which would be involved in the doing of the specified Acts. Section 17 of the Act did not provide just
terms.
o (xiii) Guarantee of State right to use river waters (Constitution s 100). (a) By Mason, Murphy, Brennan
and Deane JJ: The prohibition in s 100 of the Constitution (which provides that the Commonwealth
shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any
part thereof over another State or part thereof) is confined to laws made, or capable of being made,
under ss 51(i) and 98. Neither s 10 nor any other section of the World Heritage Properties Conservation
Act infringed s 100 of the Constitution.
o (xiv) By Deane J: Section 109 of the Constitution did not have the effect that the (TAS) Gordon River
Hydro- Electric Power Development Act 1982 was wholly invalid.
110
o (xv) Interpretation of the legislative powers granted by ss 51 and 52 of the Constitution and validity of
Commonwealth laws considered generally and reference made to (a) the application of a power in
changing circumstances, (b) leaning towards a broad interpretation, (c) implied prohibitions, (d)
characterisation of laws, (c) validity of laws affecting prerogatives of the Crown in right of a State, (f)
the Crown prerogative in respect of waste lands of the Crown, (g) presumption of validity of
Commonwealth laws, (h) presumption of facts essential to validity, (i) the fallacy of reserved State
powers, and (j) the conception of the federal balance.
o (xvi) Consideration of construction of treaties generally and by Dawson J of the basis of the
Commonwealth power to make treaties. Reference made to the extent to which it is permissible to have
regard to preparatory work (travaux preparatoires) and the effect of the federal clause in the World
Heritage Convention.
o (xvii) Per majority: Accordingly, ss 9(1)(h) and 10(4) of the World Heritage Properties Act were valid,
with the result that the dam could not be constructed without the consent of a Commonwealth Minister
Re Dingjan; ex parte Wagner (1995) 183 CLR 323
Relevant Sections:
Case summary/Quote:
(1996) 187 CLR 416
Relevant Sections:
Case summary/Quote:
WEEK 11 – DUTIES OF EXCISE
Book – Pages 1105 – 1126
o
and/or
class/lectures
Cth has concurrent power over taxation.
o
o
90
s 51: power to make laws ... w.r.t.(ii) taxation.
But Cth has exclusive power over excise.
o
s 90: Cth has exclusive power to levy duties of excise upon imposition of uniform customs duties (under s
88).
o
o
It is a type of tax (recall Matthews v Chicory Marketing Board, and all relevant cases!).
o
o
Uniform duties started on 8 Oct 190l.
If it is not a tax, then it cannot be an excise.
Both Excise & Customs are levied on goods.
111
o
o
Customs:
o
o
A tax on imported goods at point of entry.
Excise:
o
o
But not on services, land or transactions.
A tax on goods locally manufactured/produced within the jurisdiction (cf customs).
Peterswald v Bartley (1909)
o
Pre-Engineers (1920).
o
Narrow meaning given to excise.
o
Pre- 1900 NSW brewers' licence fee, set at a nominal flat fee regardless of quantity of beer produced.
o
o
o
HCA held licence fee was not an excise:
o
Yes, it is related to the production or manufacturing of goods.
o
But, it was not a tax on goods.
Griffith CJ:
o States may regulate the manufacture of an article, but it may not tax the thing itself.
o
o
It is a genuine regulatory/licensing regime:
o
Inspectors may enter premises, etc.
"Excise" when used in Cth Constitution is in conjunction with "on goods produced or manufactured in the
States'
o
Analogous to customs duty imposed upon goods in relation to guantity or value when produced or
manufactured; not a direct tax or personal tax.
o
HCA in Peterswald v Bartley:
o
Excise = indirect tax; not a personal tax.
o
Indirect tax = a tax that is ultimately passed on by the payer of the tax to the end-consumer of the commodity.
o
Is there any difference:
o
o
Taxed at production or manufacturing?
o
Taxed at any stage before reaching end-user?
Marketing of Primary Products Act 1935 (Vic) imposed a $1 levy on every half acre planted with chicory.
o
Levy not based on quantity or value of chicory actually produced.
112
o
Recall: it is an excise if imposed upon goods in relation to quantity or value.
o
Issue:
o
Was the levy, imposed based on area planted, an excise?
o
It was not based on actual chicory produced.
o
HCA (3:2): it was an excise, & so invalid.
o
Dixon J (majority):
o
The basis adopted for the levy has a natural, although not a necessary, relation to the quantity of commodity
produced.
o
The area planted is a "controlling element".
o
Planting is an essential step in production.
o
By adopting a narrow nature of excise, s 90 can be evaded by "
"unreal distinctions"
o
Latham CJ & McTiernan ] dissented.
o
Milk Board Act 1933 (Vic)
o
o
Milk Board funded by a levy on every milkman or depot owner who sells or distributes milk.
o
¼ penny per gallon of milk sold/distributed.
Note that this levy:
o
was not based on the production of milk.
o
was not levied on the manufacturer.
o
Yes, this levy was a tax.
o
Yes, this was a tax on goods (milk).
o
HCA (3:2): it was an excise, & so invalid.
o
Dixon J (majority):
o
This was not a licence fee but was a trading tax upon milk sold/distributed.
o
This was an indirect tax: a tax upon goods prior to reaching the consumer; no difference if it had been
imposed at manufacture or production.
o
o
A tax on consumers or consumption is not an excise.
Note Dixon J's obiter on backdating device:
o
" licensed victualler's licence fee calculated on the amount spent in previous year in purchasing liquor"
will not be seen as an excise.
o
Licence Act 1928 (Vic).
113
o
o
Victualler's licence: 6% of cost of all liquor purchased in the prior 12 mths ending June.
o
Temporary licence: €1 per day + 6% of cost of all liquor purchased for sale.
Recall Dixon I's obiter in Parton (1949):
o
"a licensed victualler's licence fee calculated on the amount spent in previous year in purchasing liquor"
not seen as an excise.
o
o
o
But: Rely on obiter, risky it is...
o
Both types of licence fees were challenged.
Dixon CJ, McTiernan & Windeyer ]J:
o
Both types of licence fees were excise duties;
o
both were invalid.
Fullagar, Kitto & Taylor J:
o
o
o
Both types of licence fees were not excise duties; both were valid.
Menzies I:
o
Victualler's licence was not an excise: valid.
o
Temporary licence was an excise: invalid.
Menzies (split):
o
Victualler's licence was not an excise as it was a tax on a person seeking a licence to sell liquor in the
future; not on liquor already purchase for sale.
o
Temporary licence was an excise as it was a tax on every purchase of liquor under that licence. Felt
constrained by Parton.
o
Problematic to identify the ratio in Dennis Hotels due to 3:3:1 split.
o
Tobacco Act 1972 (Tas) Pt III
o
Sale of tobacco prohibited without a licence.
o
Licence fee modelled after (valid) victualler's fee in Dennis Hotels.
o
HCA (5:1) held the Pt III fee was not an excise.
o
Barwick CJ (Pt Ill majority):
o
Law & facts here similar to Dennis Hotels.
o
Felt bound to apply, "without any great satisfaction", the decision in Dennis Hotels.
114
o
Tobacco Act 1972 (Tas) Pt II
o
"Consumption tax" imposed at 7.5% of value of tobacco consumed.
o Payable at time of consumption only if it had not already been paid.
o
Tobacco Regulations 1972 (Tas)
o Authorised licensed retailers to collect the consumption tax.
o
Payment of the tax was not required at point of sale.
o
Tax could be paid after actual consumption, by lodging a return to the Commissioner.
o
Menzies, Gibbs & Stephen JJ: the tax was not an excise.
o
McTiernan J, "consumption tax" was an excise.
o
Barwick CJ: This tax was not on consumption at all - it was an excise.
o
Mason:"consumption tax" was not an excise. But the Regs' way of collecting the tax made it an excise.
o
Split 3:3 - Barwick C]'s opinion prevailed.
o
See Judiciary Act 1903 (Cth) s 23(2)(b).
o
Pipelines Act 1967 (Vic)
o Construction or operation of petroleum gas pipeline lawful only if licensed.
o A licensee must pay operating fee to operate a pipeline.
o Fee was $35/km up until 198l.
o
Pipelines (Fees) Act 1981 (Vic)
o Amended the 1967 Act.
o Raised the fee to $10M for a trunk pipeline.
o
Australian Capital Territory (Self-Government) Act 1988 (Cth).
o
Business Franchise ("X" Videos) Act 1990 (ACT).
o
Did Cth Constitution s 90 preclude Cth Parliament from vesting its excise power in the ACT Parliament?
o
HCA (3:2): s 90 prohibition extends to the Territories.
o
Business Franchise (*X" Videos) Act 1990 (ACT).
o Dennis Hotels-style licensing fee for sale of X-rated videos
o Licence fee: 40% of value in the month 2 months before the licence period
o "Advance fee" for first 2 months payable based on estimate of videos to be sold.
o
Issue: Did the fees infringe s 90?
115
o ACT (with SA): let's go back to Peterswald.
o Other States wanted Dennis Hotels & Dickenson's Arcade ("franchise cases") status quo.
o
HCA (4:3): licence fees were an excise.
o
Mason CJ, Brennan, Deane & McHugh JJ:
o Principal aim of scheme: revenue raising rather than regulation to protect the public.
o
40% fee was higher than in franchise cases.
o Close proximity of prior period.
o The fees were an excise.
o Dennis Hotels & Dickenson's Arcade were not reconsidered.
o
Dawson, Toohey & Gaudron JJ:
o An excise is a tax upon goods manufactured or produced locally.
o
Business Franchise Licences (Tobacco) Act 1987 (NSW)
o
Sale of tobacco prohibited without a licence.
o Retailer's licence fee: $10 + a specified % of the value of tobacco sold during the mth starting 2 mths
prior to licence period.
o The specified % was 30% in 1989.
o In 1995, the specified % was 100%.
o
Licence fee was challenged.
o
All States & Territories asked HCA to reconsider its s 90 interpretation.
o Choose either Peterswald or Parton, please?
-
HCA (4:3) held that the fee was an excise; thus invalid under s 90.
o
Brennan CJ, McHugh, Gummow & Kirby JJ:
o
The practical operation or substance of impugned law is to be examined when a contravention of
constitutional prohibition is alleged.
o Rejected idea that alcohol & tobacco were "special fields" that invited regulatory control.
o
Brennan C], McHugh, Gummow & Kirby JJ:
o
The Dennis Hotels formula was an "insubstantial cloak" that was increasingly used by the States to
impose high tax rates.
o The 100% fee here was for revenue raising.
▪
It was not a mere licence fee.
116
o
Minimal provisions for regulatory control of sale of tobacco.
o
No return to narrow view in Peterswald.
o
Dawson, Toohey & Gaudron ]J (dissent):
o
Definition of excise should be as per Peterswald.
o A tax imposed upon distribution of goods which falls indiscriminately upon locally produced &
imported goods has no protectionist element;
thus not an excise.
o The licence fee here applied to tobacco products regardless whether they were imported or locally
produced: free trade amongst the States cannot possibly be affected by the NSW licence fee.
-
The end of franchise fees as a source of real revenue for the States & Territories.
-
State, Territory & Cth govts eventually agreed to the introduction of the Goods and Services Tax.
o GST is a Cth tax, collected by the Cth.
o GST then distributed wholly to the States & Territories.
Relevant sections 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.
On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or
of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any
grant of or agreement for any such bounty lawfully made by or under the authority of the Government of
any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred
and ninety-eight, and not otherwise
Relevant cases
(1960) 104 CLR 529
Relevant Sections:
Case summary/Quote:
(1983) 151 CLR 599
Relevant Sections:
117
Case summary/Quote:
(1993) 178 CLR 561
Relevant Sections:
Case summary/Quote:
(1997) 189 CLR 465
Relevant Sections:
Case summary/Quote:
WEEK 12 – FREEDOM OF INTERSTATE TRADE
Book – Pages – 1263 – 1294
-
and/or
92
class/lectures
Constitution s 92:
o On the imposition of uniform duties of customs,
▪
trade, commerce,
▪
and intercourse
▪
among the States,
o whether by means of internal carriage or ocean navigation,
o shall be absolutely free.
-
Concept of free trade among the States is central to Australia as a federation.
-
The language used in s 92 is simple yet scenarios that it applies to are complex and varied.
-
s 92 has a long history of inconsistent interpretation by HCA & PC.
-
"Reboot" of s 92: Unanimous HCA judgment in Cole v Whitfield (1988).
-
The task of the Court in interpreting s 92 was akin to explaining the elliptical & expounding the
unexpressed per Rich J in James v Cowan (1930).
-
What does "absolutely free" mean?
o See BW for 6 possible meanings given by Menzies (Cth A-G).
o E.g. absolutely free from all laws of every description?
-
Individual rights theory.
o 'Criterion of operation' test.
118
o 'Practical effect' test.
-
Free trade theory.
o > "Few would deny that, somewhere along the line, things have gone wrong" per Deane ] in Miller
v TCN Channel Nine Pty Ltd (1986).
-
Fisheries Act 1959 (Tas)
o Sea Fisheries Regulations (Tas) reg 31(1)(d): outlawed taking, buying, selling, possession of
crayfish under a minimum size.
-
SA had similar restrictions, but due to difference in conditions, SA had a lower minimum size compared to
Tas.
-
Whitfield imported SA crayfish into Tas that were above SA minimum size, but below Tas minimum size.
-
HCA (unanimous):
-
Reg was valid and did not infringe s 92.
-
Looked at the Convention Debates to ascertain meaning and purpose of s 92.
o Purpose of s 92 is to create a free trade area where Cth & States cannot prevent people, goods &
communications moving across State lines.
o Enemies of free trade: border taxes, discrimination & preferences.
-
HCA (unanimous):
o s 92 does not guarantee anarchy.
o s 92 protects interstate trade & commerce from discriminatory burdens of a protectionist kind.
▪
When s 92 is interpreted this way, it sits more easily with plenary power conferred by s
51(i).
▪
Not every departure from equality of treatment would automatically infringe s 92.
o S 92 discrimination may arise from legal operation of a law or from the practical effect of that law.
-
HCA (unanimous):
o When looking at a State law:
▪
If the State law applies both intra and interState trade & commerce, then it is less likely to be
protectionist.
▪
But the State law may nonetheless be protectionist if the law in effect discriminates in
favour of intrastate trade, even if the State law's object is non-protectionist in nature.
119
-
All these elements must be satisfied:
o There must be a burden on interstate trade.
▪
E.g. price restrictions, quota, limits etc.
o It must discriminate against interstate trade.
o The discrimination is of a protectionist kind.
▪
i.e. looking after the intrastate trader.
-
Apparent Discrimination
-
Business Franchise (Tobacco) Act 1974 (Vic)
o Licence fee includes a 25% ad valorem fee of value of tobacco sold in relevant period other than
essentially Victorian tobacco.
▪
Vic wholesalers already paid wholesale licence fees which had an ad valorem component.
▪
Note: This would infringe s 90 now.
o Discrimination on the face of it?
Yes.
o Discrimination in its practical effect?
-
Same bench as in Cole v Whitfield: Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron J.
-
Held (4:3) that the Act infringed s 92.
o Unanimous in holding that the Act was discriminating in its application.
o Was it discrimination of a protectionist kind?
-
▪
If yes, would infringe s 92;
▪
If not, s 92 not infringed.
Mason C], Brennan, Deane & Gaudron JJ:
o Law was protectionist too - s 92 infringed.
1. If non-Vic wholesalers paid their home state's fee plus the Vic fee: non-Vic tobacco would be
more expensive to sell in Vic.
2. If non-Vic wholesalers paid nothing in their home state, the impugned law effectively protected
Vic wholesalers from competition from cheaper non-Vic tobacco.
-
Wilson, Dawson and Toohey JJ:
o Law was not protectionist: Cost of Victorian tobacco was effectively equal to interstate tobacco.
120
-
Covert & Disproportionate
o Bond Brewing Group had breweries outside of SA; aimed to increase market share in SA.
o Bond used mainly un-refillable bottles; local SA traders used mainly refillable bottles.
o Bond's market share in SA rose to 10% in 1986.
o Beverage Container Act Amendment Act |986 (SA)
▪
Made sale of beer in non-refillable bottles commercially disadvantageous.
▪
The Act's object was environmental protection & conservation of resources. SA argued that
interstate trade restriction was incidental to Act's object.
▪
Cole v Whitfield dicta: a law may protect a legitimate local interest (e.g. prescribe standard
for products).
-
SA Govt conceded that difference between refund rates for refillable and un-refillable bottles was higher
than what was needed to achieve Act's object.
-
HCA held that the law was protectionist.
o While there was no overt discrimination, the law protected local brewers, who used refillable
bottles, from interstate brewers like Bond, who mainly used un-refillable bottles.
o The Act went further than merely discouraging the use of non-refillable bottles.
-
Mason CJ, Brennan, Deane, Dawson & Toohey J:
o States are not denied by s 92 the power to legislate for the well-being of its people.
o A law may protect a legitimate local interest so long as it is appropriate & adapted to protect the
community from a real danger or threat (i.e. non-protectionist aims).
o Here, it was not and s 92 was thus infringed.
-
"New Economy"
o Betting exchanges: internet-based; new economy not limited to state lines.
o Gambling Control Act 1993 (Tas) regulated / licensed betting exchanges.
o Betfair held a Tas betting exchange licence.
o Betting Control Act 1954 (WA) prohibited betting exchanges within & outside WA.
o Racing & Wagering WA (RWWA) was Betfair's competitor in WA.
-
HCA held WA Act infringed s 92.
o Although WA Act applied equally to WA and non-WA operators, it protected RWWA from
competition from Betfair.
121
o "New economy" is internet-based where state lines are essentially ignored - s 92 is focused on
(protection of State markets.
o WA Act applied not only to WA residents.
o WA Act was disproportionate: it was not appropriate and adapted to the Act's object.
▪
-
WA prohibition compared with Tas regulatory path.
Racing Administration Act 1998 (NSW)
o It did not forbid betting exchanges.
o Approval for non-NSW betting exchanges not illusory.
o Fees imposed were apparently neutral, based on an operator's wagering turnover.
o Regs required relevant authorities to disregard an operator's location when setting fees.
-
Betfair claimed Act has a larger impact on its operations due to its low-cost structure.
Betfair Pty Ltd v Racing NSW (Betfair No 2) (2012)
-
HCA (7:0) upheld the NSW Act.
o Discrimination without protectionism is insufficient to infringes 92.
o Individual rights theory remains discredited.
o s 92 invalidity does not rest on an individual trader's (i.e. Betfair's) own business model.
o Real question is whether there is a discrimination of a protectionist nature.
o Betfair's own business model may be relevant if it was representative of affected interstate traders
(recap Castlemaine Tooheys).
-
Emergency Management Act 2005 (WA)
o s 56: Minister could declare a state of emergency, after considering State Emergency Coordinator's
advice, & if satisfied that an emergency was occurring, & that extraordinary measures were needed
to prevent or minimize loss of life or harm to health.
o Quarantine (Closing the Border) Directions (WA), made under s 67 of the Act
▪
-
Prohibited people from moving in or out of WA, with some exceptions.
All 5 HCA judges:
o “Trade, commerce and intercourse" is a composite phrase that gives rise to one high level test (not 2
separate tests as in Cole v Whitfield).
o Test the constitutional validity of the statute. If the statutory provisions in the primary Act are valid,
then the validity of subordinate legislation or Directions is an administrative law question.
-
The single high levels 92 test:
122
o Does the impugned law, in its legal or practical operation, discriminate against interstate trade and
commerce or interstate movement (intercourse), as opposed to intrastate trade and commerce or
movement/intercourse?
▪
If yes, is there justification, at the standard of "reasonable necessity"?
▪
Is the law reasonably necessary to achieve a legitimate non-discriminatory object?
o For trade & commerce, the focus remains on discriminatory burdens of a protectionist kind (Cole v
Whitfield).
o For intercourse, the focus is on differential burdens (of any kind on interstate intercourse, in
comparison to intrastate intercourse).
-
Kiefel CJ, Keane & Edelman J (but not Gageler & Gordon JJ ): Structured proportionality test is to be used
to determine "reasonable necessity'
1. Is the law 'suitable"?
o Does it have a rational connection to a non-discriminatory purpose, so as to further it?
2. Is the chosen means reasonably necessary' to achieve the non-discriminatory purpose?
o Are there no obvious and compelling alternative reasonably practicable means to achieve the
purpose to the same extent but with a lesser burden on the freedom?
3. Is the law adequate in its balance?
a. Does the importance of achieving the purpose outweigh the impact of the restriction on the
freedom?
-
Approach of Kiefel CJ & Keane J: See [76]-[80].
-
Discrimination
o Sections 56 & 67 were not directed at interstate movement
o But the effect of s 67 could be to hinder interstate movement, and to that extent discriminate against
it.
o Justification was therefore needed.
-
Approach of Kiefel CJ & Keane J:
-
Justification
1. Is the law 'suitable? No doubt that a law restricting the movement of people into a State is suitable in
preventing infected people from bringing the disease into the State.
2. Is the chosen means reasonably necessary' to achieve the non-discriminatory purpose? FA's findings
leave little room for debate about effective alternative.
3. Is the law 'adequate in its balance? The importance of protection of health & life amply justifies these
severe measures.
123
Relevant sections of the constitution
4. 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.
5. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform
duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a
State, shall, on thence passing into another State within two years after the imposition of such duties, be
liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty
paid in respect of the goods on their importation
Relevant cases
(1988) 165 CLR 360
Relevant Sections:
Case summary/Quote:
(1988) 165 CLR 411
Relevant Sections:
Case summary/Quote:
(1990) 171 CLR 182
Relevant Sections:
Case summary/Quote:
(1990) 169 CLR 436
Relevant Sections:
Case summary/Quote:
(2008) 234 CLR 418
Relevant Sections:
Case summary/Quote:
(2012) 249 CLR 217
Relevant Sections:
Case summary/Quote:
124
(2021) 95 ALJR 229
Relevant Sections:
Case summary/Quote:
WEEK 13 – COMMONWEALTH-STATE RELATIONS
Book – Pages 1156 – 1204
and/or
106, 107, 108, 109
class/lectures
-
Constitution constitutes both Commonwealth and the States
-
Constitution provides for both the Commonwealth and for the States
-
Section 51 confers specific powers on the Parliament
o "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:....”
o Note the State Parliaments continue on with their power:
▪
106 - State Constitutions continue unless altered by State
▪
107 - State Parliaments keep their legislative powers
▪
108 - State Laws continue in force
▪
109-CTH law > State law to extent of inconsistency
-
What limits are there on what the Commonwealth can do to the States?
-
When must the Commonwealth comply with State law?
Dixon J dissents:
-
"For it is not a question whether the power of the Parliament of a Colony becoming a State continues as at the
establishment of the Commonwealth. The Colony of New South Wales 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 uno ictu* 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 old colonial power. The Federal
constitution does not give it. Surely it is for the peace, orde rand good government of the Commonwealth, not
for the peace, welfare and good government of New South Wales, to say what shall be the relative situation of
private rights and of the public rights of the Crown representing the Commonwealth, where they come into
conflict. It is a question of the fiscal and governmental rights of the Commonwealth and, as such, is one over
which the State has no power."
o * "At one blow" / all at once, ie simultaneously
o NB: Dixon's view will prevail and become law in Cigamatic (1962) 108 CLR 372 - ie the
125
States have no power to regulate the Commonwealth in the Commonwealth's domain but cf Henderson's Case
-
Banking Act 1945 (Cth) sought to require States and Local Govts to do banking with the (CTH Govt's)
Commonwealth Bank
-
Melbourne Corporation was required to bank with CBA
-
Could the CTH's legislation mandate who States did business with?
-
Latham CJ
o Question is does CTH law unduly interfere with State's power?
o Discrimination is insufficient - must single out the States
-
Dixon J
o Federal power of taxation cannot be used to specially burden the States
o Constitution assumes continued existence of States
o Powers are distributed between the Commonwealth and the States
o Commonwealth cannot specially burden another Constitutional actor
o States continue as bodies politic independent of powers allocated to them
-
Starke J
o Australian Constitution denies CTH & States authority to abolish each other
-
CTH payroll tax was imposed on the wages of State public servants
-
Did this single out or unduly interfere with State's operations?
-
Barwick CJ
o CTH has no power to legislate against the States
-
Windeyer J
o Law cannot satisfy s.51 if it is directed to preventing States' carrying out their functions as part of the
Commonwealth
-
Gibbs J
o Payroll tax is a law of general application
o Cannot be shown that paying payroll tax has prevented the States from carrying out their functions
o No special burden is carried by the States
126
-
Specific CTH legislation enacted to deal with an industrial dispute in Queensland
-
Aim was to establish a special procedure to settle the Queensland dispute
-
Mason J
o Constitution prohibits
▪
(1) discrimination that places special burdens or disabilities on a state; and
▪
(2) general laws that will destroy or curtail the continued existence of the States or their capacity
to function as Governments
o Prohibition extends to agencies of the State as well as the State
-
Deane J
o If a law imposes a burden or disability on a State/instrumentality, then the law will ordinarily suffice to
establish discrimination
-
CTH Act provided for a minimum wage as a safety net for all Australian workers who did not live in a State or
Territory with an industrial arbitration system
-
Question whether this provision discriminated against the States that had chosen not to have a minimum wage
provision?
Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ
o Provisions are of general application
o Do not distinguish between State employees or other employees
o Criteria for operation of the law is based on an individual worker NOT State
o Substance and operation of the law is to be examined
o No discrimination or burden on the State
-
CTH Act imposed a superannuation contributions surcharge that was to be paid by the recipient, not the
provider
-
Law applied to State high income earners, not private high income earners
-
Particular effect was for a substantial charge to be paid by retiring state Judges
-
Did this impose an impermissible burden on States' judges?
-
Gaudron, Gummow and Hayne JJ
127
o Substance and operation of the law is to be examined
o Is there a special burden on/curtailment of States' capacity to function?
o Judiciary is a fundamental aspect of the State
o Law burdens State judges impermissibly
-
McHugh J
o Federal law discriminates against States in a way that interferes with State functions
o Judiciary of a State is an essential function of State government
-
CTH Defence Housing Authority owned/leased properties to ADF personnel
-
A leased unit was purchased by Dr Henderson, who sought to inspect the Unit
-
The Defence Housing Authority objected to Dr Henderson's entry
-
Dr Henderson relied on his rights under the Residential Tenancies Act (NSW)
-
Did the Residential Tenancies Act (RTA) apply to the CTH's Defence Department?
-
Dawson, Toohey and Gaudron JJ
o No State law can discriminate against the CTH and impose disabilities
o This case has no aspects of discrimination against the CTH
o The DHA operates in a legal system in which the Residential Tenancies Act forms a part
o The RTA does not alter or interfere with any aspect of CTH activity
o The RTA merely regulates the operation of the DHA in NSW
-
The Constitution creates both of the Commonwealth and the States and neither can burden/destroy the other
-
Commonwealth laws of general application apply validly to the States
-
Commonwealth cannot impose disabilities on the States:
o A. by enacting special laws targeting a State; and
o B. by enacting general laws that have the effect of destroy/curtail the continued existence of the States
or their capacity to function as Governments
-
State laws can regulate the Commonwealth as any other entity but the States cannot target/burden the
Commonwealth.
In short: the Commonwealth and the States are created by the same Constitution and both have to live together
128
Relevant sections of the constitution
-
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the
establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be,
until altered in accordance with the Constitution of the State.
-
Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this
Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of
the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the
State, as the case may be.
-
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the
powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the
State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the
State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the
Colony had until the Colony became a State.
-
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.
Relevant cases
(1947) 74 CLR 31
Relevant Sections:
Case summary/Quote:
(1971) 122 CLR 353
Relevant Sections:
Case summary/Quote:
(1985) 159 CLR 192
Relevant Sections:
129
Case summary/Quote:
(1996) 187 CLR 416
Relevant Sections:
Case summary/Quote:
(2003) 215 CLR 185
Relevant Sections:
Case summary/Quote:
Re The Residential Tenancies Tribunal of NSW & Henderson; ex parte The Defence Housing Authority
(1997) 190 CLR 410
Relevant Sections:
Case summary/Quote:
(1947) 74 CLR
508
Relevant Sections:
Case summary/Quote:
(1920) 28 CLR 129
-
Case summary/Quote:
o Constitution is the political compact of the whole of Australia people:
▪
“That instrument is the political compact of the whole of the people of Australia, enacted into
binding law by the Imperial Parliament, and its chief and special duty of this Court faithfully to
expound and give effect to it according to its own terms, finding the intention from the words of
the compact, and upholding it throughout precisely as framed” (at 142)
-
Constitution is the Australian people’s & elections fix problems not Courts:
o “When the people of Australia, to use the words of the Constitution itself, “united in a Federal
Commonwealth”, they took power to control by ordinary constitutional means any attempt on the part
of the national Parliament to misuse its powers. If it be conceivable that the representatives of the
people of Australia as a whole would ever proceed to use their national powers to injure the people of
Australia considered sectionally, it is certainly within the power of the people themselves to resent and
reverse what may be done. No protection of this Court in such a case is necessary or proper”. (at 151152
130
(1962) 108 CLR 372
Relevant Sections:
Case summary/Quote:
(1925) 36 CLR 170
Relevant Sections:
Case summary/Quote:
MISCELLANEOUS CASES NOT ‘REQUIRED’ BUT RECOMMENDED FOR END EXAM
Relevant Sections:
Case summary/Quote:
Relevant Sections:
Case summary/Quote:
Relevant Sections:
Case summary/Quote:
Relevant Sections:
Case summary/Quote:
Relevant Sections:
Case summary/Quote:
Relevant Sections:
Case summary/Quote:
Relevant Sections:
131
Case summary/Quote:
Relevant Sections:
Case summary/Quote:
Assignment
(Defence powers, external affairs, acquisition on just terms)
Defence powers
Page 8 (58(3) – Communist party).
Relevantly, McTiernan J commented on the extent to which the defence power could be used to limit civil liberties
generally:
-
In a period of grave emergency the opinion of Parliament that any person or body of persons is a danger to
the safety of the Commonwealth would be sufficient to bring his or their civil liberties under the
control of the Commonwealth; but in time of peace or when there is no immediate or present danger
of war, the position is otherwise because the Constitution has not specifically given the Parliament
power to make laws for the general control of civil liberties and it cannot be regarded as incidental to
the purpose of defence to impose such a control in peace time.48 His Honour went on to note that ‘the
general control of civil liberty which the Commonwealth may be entitled to exercise in war time
under the defence power is among the first of war-time powers that would be denied to it when the transition
from war to peace sets in’.49
Lloyd v Wallach (1915) 20 CLR 299 at 310 (Detained for 4 years. 6 months after armistice)
Justice Higgins observed that:
-
“In all countries and in all ages, it has often been found necessary to suspend or modify temporarily
constitutional practices, and to commit extraordinary powers to persons in authority, in the supreme ordeal and
grave peril of national war”.
That case concerned s 4(1) of the War Precautions Act 1914 (Cth) which permitted the Governor-General to make
regulations for securing the safety of the public and the defence of the Commonwealth by reference to specific
objectives.
A regulation made under the Act16 provided that any naturalised person could be detained in military custody, on the
order of the Minister, if the Minister “has reason to believe” that the person is “disaffected or disloyal”.
132
DETENTION OF PERSONS
The Minister asserted such a belief about Franz Wallach, a German-born naturalised British subject who had
immigrated to Australia in 1893. The High Court rejected an argument that the regulations which could be made were
limited to the specific purposes stated in the Act. The majority held that there could be no challenge to the basis upon
which the Minister formed his belief. Justice Isaacs said that the Minister “is the sole judge of what circumstances are
material and sufficient to base his mental conclusion upon” and he is presumed not to act capriciously or arbitrarily
(ibid at 308-9). Mr Wallach was not released until 1919.
Similar approaches occurred in 1917 in R (Zadig) v Halliday [1917] AC 260 (2 years detained) and in World War II
in Liversidge v Anderson [1942] AC 206 (1 year 7 months). Lord Atkins dissented and said it was wrong… the
speeches are peppered with wartime justifications and acknowledgements that the regulation might not be construed in
the same way in peace time. It would of course not be until 1980, in the Rossminster case, that Lord Diplock would
pronounce that Lord Atkin had been right and the majority had been “expediently and, at that time, perhaps, excusably
wrong” (R v Inland Revenue Commissioners ex parte Rossminster Ltd [1980] AC 952 at 1011). The same might
be said of the approach in Lloyd v Wallach.
A most important decision during World War I was Farey v Burvett (1916) 21 CLR 433, when the scope of the
defence power was first explained by the Court. The Court gave it a very broad reach, so much so that in 1929 the
Royal Commission on the Constitution was able to state that “[i]n time of war the Commonwealth Parliament may
pass any law, or may give the Executive authority to make any regulation, which it considers necessary for the safety
of the country. The Commonwealth in time of war was, for practical purposes, a unified government”. (Report of the
Royal Commission on the Constitution (Government Printer, 1929) at 120)
Farey v Burvett concerned another provision of the War Precautions Act which provided for the making of regulations
prescribing and regulating the conditions of the disposal or use of any property, goods or things as were thought
desirable for the more effective prosecution of the war or the effective defence of the Commonwealth (War
Precautions Act 1914 (Cth) s 4(1A)(b). The regulation in question fixed the maximum price at which bread could be
sold. Mr Farey, a baker, was convicted of breaching that regulation. Later, in 1939, Prime Minister Menzies was to
comment that some lawyers might have been surprised that a regulation of this kind fell within the defence power
(Australia, House of Representatives, Parliamentary Debates (Hansard) 7 September 1939 at 164).
The test of whether the defence power was engaged was said by the Court to be whether the measure was “capable” of
aiding the defence of the Commonwealth (Farey v Burvett (1916) 21 CLR 433 at 449 (Barton J); see also at 441
(Griffith CJ), 460 (Higgins J); or even that it “may conceivably ... even incidentally” aid the defence of the
Commonwealth (Farey v Burvett (1916) 21 CLR 433 at 455 (Isaacs J).
133
Farey v Burvett (1916) 21 CLR 433 at 477 per Barton J
‘Next, attack may be, and often is, the best defence. This needs no proof. Now, these principles do not apply to the
operations of troops and warships alone. In these days the strategy of war is not so limited. It applies to war by many
other methods devised to assist in the subjection of the enemy…’
that extraordinary measures infringing the rule of law have been considered permissible during wartime, when the
continued existence of the nation as we know it is threatened (Lloyd v Wallach 20 CLR 299, 310 per Higgins J Ibid
310-311 per Higgins J.)
Executive enlarges in times of war/crisis:
-
"Defence includes every act which in the opinion of the proper authority is conducive to the public security.
Those who are entrusted with the ultimate power of guarding the national safety are not bound to subordinate
that consideration to any other." Welsbach Light Co v Commonwealth (1916) 22 CLR 268 at 280 per
Isaacs J
Trust in Crown/Executive to protect the Nation:
-
"Those who are responsible for the national security must be the sole judges of what the national security
requires." ~ The Zamora (1916) 2 AC 77 at 107 per Lord Parker, quoted with approval in Joseph v Colonial
Treasurer (NSW) (1918) 25 CLR 32 at 46 per Isaacs, Powers and Rich JJ.
SPREADING MEDIA STUFF
In 1918 the Court had applied Farey v Burvett in Sickerdick v Ashton (1918) 25 CLR 506 to uphold a regulation
which prohibited the publication of statements likely to prejudice recruitment in the war.
In 1941 freedom of speech was again in issue in Wishart v Fraser (1941) 64 CLR 470. The Court appeared to
maintain the position it had taken in the First World War. It dismissed a challenge to a provision, which mirrored s 4
of the War Precautions Act (National Security Act 1939 (Cth) s 5), under which an offence of “endeavouring to cause
dissatisfaction” among persons engaged in the service of the King or Commonwealth was created.
There must be a connection between the publications and the ‘war’. It’s required there to be a “real connection” (R v
Commonwealth Court of Conciliation and Arbitration; ex parte Victoria (1942) 66 CLR 488 at 507 (Latham CJ)
134
between the regulation and the power. In R v Commonwealth Courts… The Court said the regulation had nothing to
do with public safety and the defence of the Commonwealth (at 515 (Starke J), 532-3 (Williams J))
This is not to say that the Justices necessarily considered that at times of emergency a broader view of these powers
might not be countenanced. In Stenhouse v Coleman (1944) 69 CLR 457 at 472, Justice Dixon referred to the defence
power as “elastic”. In Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 273, Justice Kitto
referred to it as “expanding and contracting” in times of war and peace and said that its “waxing and waning” would
have been evident in recent years. The judgments of Justices Dixon (at 194-5 Communist Party) and Fullagar (254-5
Communist party) suggest the possibility that the Court could revert to its former stance in times of heightened danger
and emergency.
Justice Dixon in particular does not appear to have excluded this possibility when he said (194-5), by reference to
Lloyd v Wallach (1915) 20 CLR 299, that in such times the power might sustain the detention of persons whom a
minister “believes to be disaffected or of hostile associations”. The point is, it might not do so in time of peace.
Pape v Commissioner of Taxation (2009) 238 CLR 1 at 328 French CJ quoted Mason J in Davis v Commonwealth
(1974) 131 CLR 477 that s 61 ‘[498] enables the Crown to undertake all executive action which is appropriate to the
position of the Commonwealth’
Gummow, Crennan and Bell JJ [83] “… the phrase “maintenance of this Constitution” in s 61… [conveys] the idea
of the protection of the body politic or nation of Australia…”
Gummow, Crennan and Bell JJ [89] The Executive Government is the arm of the government capable of and
empowered to respond to a crisis be it war, natural disaster or a financial crisis…’
External affairs / Treaties
In Airlines of N.S.W. Pty. Ltd. v. New South Wales [No. 2] 96 , Barwick C.J. said that:
“ … where a law is to be justified under the external affairs power by reference to the existence of a treaty or
convention, the limits of the exercise of the power will be set by the terms of that treaty or convention, that is to say,
the Commonwealth will be limited to making laws to perform the obligations, or to secure the benefits which the treaty
imposes or confers on Australia. Whilst the choice of the legislative means by which the treaty or convention shall be
implemented is for the legislative authority, it is for this Court to determine whether particular provisions, when
challenged, are appropriate and adapted to that end
Tasmanian Dams case – Mason J at 131
135
I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject-matter of
the treaty as if that subject-matter were a new and independent head of Commonwealth legislative power. The law
must conform to the treaty and carry its provisions into effect…(at 132) Parliament may [not] depart from the
provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or
is inconsistent with it…
Deane J at 268
On the other hand, if the relevant law “partially” implements the treaty in the sense that it contains provisions which
are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those
terms, it would be extremely unlikely that the law could properly be characterized as a law with respect to external
affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to
the treaty.
Murphy J at 170
The power to make laws for the peace, order and good government of the Commonwealth with respect to external
affairs authorizes the Parliament to make laws with respect to external affairs which govern conduct, in as well as
outside, Australia. The core of Tasmania's case was that the construction of the dam and the regulation of the
southwest area of Tasmania were purely domestic or internal affairs of the State. However, it is elementary that
Australia's external affairs may be also internal affairs (see Burgess 56 ; New South Wales v. The Commonwealth
(“the Sea and Submerged Lands Case”) 57 and Koowarta); examples are control of traffic in drugs of dependence,
diplomatic immunity, preservation of endangered species and preservation of human rights.
Acquisition on Just Terms
Tasmanian Dams case
Mason J at 145 - The emphasis in s. 51(xxxi) is not on a “taking” of private property but on the acquisition of
property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that
legislation adversely affects or terminates a preexisting right that an owner enjoys in relation to his property; there
must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or
insubstantial it may be. The effect of s. 51(xxxi) was correctly stated by Dixon J. in Bank of N.S.W. v. The
Commonwealth (“the Banks Case”) 26 :
“… s. 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate
or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in
136
action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and
indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject
of property. Section 51(xxxi) serves a double purpose. It provides the Commonwealth Parliament with a legislative
power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual
or the State, affected with a protection against governmental interferences with his proprietary rights without just
recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and
applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was
designed to effect.”
Brennan J at 248 - Unless proprietary rights are acquired, par. (xxxi) is immaterial to the validity of the impugned
Commonwealth measures. Though the Act conferred a power upon the Minister to consent to the doing of acts which
were otherwise prohibited on or in relation to land, that power was not a proprietary right. In my opinion, the
Commonwealth acquired no property from Tasmania. It follows that the question of just terms does not arise.
Deane J at 286-288
On its own case, it has set out to protect and conserve the H.E.C. land as a natural park. If there were any reason in
principle which prevented the achievement of that objective, by the imposition of restrictions, from ever constituting
an acquisition of property, the safeguard of s. 51(xxxi) would be ineffective to preclude the Commonwealth from
effectively dedicating the property of others to its purposes without compensation whenever such dedication could be
achieved by the imposition of carefully-worded restrictions upon an owner's use and enjoyment of his land. In my
view, there is no such reason in principle. The benefit of a restrictive covenant, which prohibits the doing of certain
acts without consent and which ensures that the burdened land remains in a state which the person entitled to enforce
the covenant desires to have preserved for purposes of his **287 own, can constitute a valuable asset. It is incorporeal
but it is, nonetheless, property. There is no reason in principle why, if “property” is used in a wide sense to include
“innominate and anomalous” interests, a corresponding benefit under a legislative scheme cannot, in an appropriate
case, be regarded as property.
In the present case, the Commonwealth has, under Commonwealth Act and Regulations, obtained the benefit of a
prohibition, which the Commonwealth alone can lift, of the doing of the specified acts upon the H.E.C. land. The
range of the prohibited acts is such that the practical effect of the benefit obtained by the Commonwealth is that the
Commonwealth can ensure, by proceedings for penalties and injunctive relief if necessary, that the land remains in the
condition which the Commonwealth, for its own purposes, desires to have conserved. In these circumstances, the
obtaining by the Commonwealth of the benefit acquired under the Regulations is properly to be seen as a purported
acquisition of property for a purpose in respect of which the Parliament has power to make laws. The “property”
purportedly acquired consists of the benefit of the prohibition of the exercise of the rights of use and development of
137
the land which would be involved in the doing of any of the specified acts. The purpose for which that property has
been purportedly acquired is the “application of the property in or towards carrying out” Australia's obligations under
the Convention: see Schmidt 51. The compensation which would represent “just terms” for that acquisition of
property would be the difference between the value of the H.E.C. land without and with the restrictions.
Conclusion
Per Deane J., Mason, Murphy and Brennan JJ. contra, Gibbs C.J., Wilson and Dawson JJ. not deciding: (1) The
prohibitions imposed by the World Heritage (Western Tasmania Wilderness) Regulations and the World Heritage
Properties Conservation Act, s. 11 constituted an acquisition of property within the meaning of s. 51(xxxi) of the
Constitution, the property in question being the benefit of the prohibition of the exercise of the right to use and develop
the land. But the limited nature of the restrictions upon activity imposed by ss. 9(1)(h) and 10 (including those
prescribed for the purposes of sub-s. (2)(m)) precluded the proclamations in respect of those provisions from
constituting an acquisition of property.
(2) The acquisition was not on just terms because s. 17 did not confer an immediate right to be paid compensation and
hence was intrinsically unfair. Sections 8, 11, 13(7) and 14(5) were for that reason invalid
Exam prep
(44, 1975 decision, 51(xxxix)/61/ and nationhood)
Section 44 – Disqualification
-
44. Disqualification
Any person who:
(i)
is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a
citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii)
is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any
offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or
longer; or
(iii)
is an undischarged bankrupt or insolvent; or
(iv)
holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of
any of the revenues of the Commonwealth: or
(v)
has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth
otherwise than as a member and in common with the other members of an incorporated company consisting
of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
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But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the
Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a
pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an
officer or member of the naval or military forces of the Commonwealth by any person whose services are
not wholly employed by the Commonwealth.
-
Section 44 of the Constitution becomes a significant issue for Australians wishing to enter the political arena.
This is due to a significant portion of the population consists of first-generation immigrants, many who can’t
remove their non-Australian nationality. (This point was raised in the Constitution commission in 1988)
-
Many Australians don’t know about their dual nationalities, with there being no precise mechanism to find out
how many are in this category. (Acknowledged in that same Constitution commission).
-
In Canarvans case, The Court accepted the approach to treat s 44(i) as though it had two limbs, being two
severable bases for ineligibility (Re Canavan (2017) 349 ALR 534, 540–1 [20]–[23]):
o 1. acknowledgement of allegiance to a foreign power; and
o 2. citizenship, or entitlement to the rights of citizenship, of a foreign power.
o In the first limb, the words “under any acknowledgment” capture any “person who has formally or
informally acknowledged allegiance, obedience or adherence to a foreign power and who has not
withdrawn or revoked that acknowledgment” (Nile v Wood (1987) 167 CLR 133 at 140
▪
Actual and constructive notice/acknowledgement?
o Subject or citizen – the role of the foreign law: (paragraph 37) - Whether a person has the status of a
subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so
because it is only the law of the foreign power that can be the source of the status of citizenship or of
the rights and duties involved in that status.
o In Sue v Hill, Gleeson CJ, Gummow and Hayne JJ referred with approval to the reasoning of Brennan
and Gaudron JJ in Sykes v Cleary ((1992) 176 CLR 77 at 112-114, 135-136). in confirming the
proposition that s 44(i) looks to the relevant foreign law to determine whether a candidate is a foreign
citizen ((1999) 199 CLR 462 at 486-487 [47]).
o Renouncing your citizenship (of a foreign subject) isn’t enough to suggest you’ve taken
reasonable steps: (paragraph 66) - It is evident that this view did not commend itself to the other five
Justices, who proceeded on the basis that a unilateral renunciation was not sufficient to terminate the
status of citizenship under the foreign law.
-
Summary of construction of s44: (paragraphs 70-71)
Section 44(i) operates to render “incapable of being chosen or of sitting” persons who have the status of subject
or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the
law of the foreign power in question. Proof of a candidate's knowledge of his or her foreign citizenship status
(or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not
necessary to bring about the disqualifying operation of s 44(i).
139
-
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a
foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is
contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law
from participation in representative government. Where it can be demonstrated that the person has taken all
steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her
power, the constitutional imperative is engaged
-
The constitution is to be read in its literal and plain meaning (Engineer’s case), this would create difficulties
when interpreting section 44. It has been accepted that if the individual has taken ‘all reasonable steps’ to
denounce their dual-citizenship, they have standing to run for their relevant political position.
1975 decision and the powers of the governor general
Whitlam dismissal case
s5, 28, 61, 64
(Example of constitutional powers)
1972 – Whitlam (PM) govt won power.
1949-1972 – coalition govt.
-
Oil crisis, inflation from Vietnam war.
1974 early election – Whitlam wins, reduced majority… Whitlam doesn’t control senate. Opposition did.
1975 – Whitlam still has more problems. Still political issues, senate against him.
-
Whitlam govt gets out of control. Fraser (Leader of opposition) basically has his senators stop the budget in the
senate. (We have to go through both houses to have a budget appropriated)
o Supply = a supply of money. PM’s job for the crown for the ordinary operation of the govt.
o The budget goes through appropriation bills that get voted in that unlocks the treasury to provide money
1975 – Aust very wealthy country. The problem the federal govt has is because senate blocking budget, there is no
money appropriated for the ordinary services of the govt.
-
By October, starting to run out of money. Questions about whether public servants can be paid.
o Going to run out by November.
-
GG has problem. I represent the monarch. The fed govt is mine. My PM can’t get money.
o Whitlam has to go see Kerr (GG).
▪
GG says you either get money from senate or you advise you want a election, the people resolve
this at election or you resign and I get a new PM.
o Whitlam convinced Kerr wouldn’t do anything… Was adamant he was elected year before, won’t go to
an early election, so won’t advise Kerr to resolve impasse.
o 11.11.1975 Whitlam goes to see GG thinking he was going to advise about half seat election… Kerr is
waiting there for a letter for dismissal.
o Fraser appointed as caretaker – will have my ministers pass the bills.
Funnily enough, Whitlam went back to his lodge for a lunch. Unbeknownst to his ministers that he had been sacked. A
number of appropriation bills went through that day and passed.
140
Whitlam called for a vote of no confidence. A double dissolution occurred; Fraser won in a landslide.
-
During the Whitlam government in 1975, there was the constitutional issue of section 57, whereby supply bills,
that were originating in the house of representatives, were not being passed through the senate (They had this
constitutional power under section 53). With Australia going through an oil crisis and inflation from the
Vietnam war, this was becoming an issue as the government was running out of money for use in ordinary
government services. They had passed the house of representatives twice, but still refused by the senate;
Largely due to Fraser (opposition leader) advising his senators to refuse the supply bills. GG did have the
option to dissolve both houses under section 57, but in the circumstances, wasn’t pragmatic as it would take
many months before there was a possible solution and the GG needed a ‘speedy resolution’; further, the PM
and opposition weren’t seeing eye to eye. GG spoke with CJ Barwick in relation to his constitutional rights and
duties. GG advised Whitlam had two options; call for a general election, or resign. If he chooses neither, the
GG can withdraw his commission as Prime Minister.
-
This occurred. The GG exercised his powers under section 64 of the constitution. Relevantly, the key line in
that section is ‘Such officers shall hold office during the pleasure of the Governor-General’. The GG needed to
remove Whitlam to ensure the supply bills were passing and the ordinary services of the government would go
ahead. He also removed his Ministers.
-
After the sacking of Whitlam, the GG exercised his powers under section 5 and 28 of the constitution,
proroguing the Parliament (suspending), and dissolving it. Section 28 discusses the duration of the house of
representative members but may be sooner dissolved by the Governor General. Caretaker government was
established. GG asked Fraser if he wanted to consider the double dissolution under section 57 which occurred.
-
This was exercised, and under Section 32 way of a writ a calling for a general election occurred. The
opposition leader, Fraser was elected and informed he would ensure the supply bills would come through,
becoming the new PM.
Sections 51(xxix), 61, and nationhood
(1918) 25 CLR 32
Relevant Sections:
Case summary/Quote:
Isaacs, Powers and Rich JJ at 46
-
"In the allocation and distribution of powers effected by the Constitution of the Commonwealth the Defence
power is exclusively assigned to the Commonwealth. It is a matter of common knowledge that the necessity of
a single authority for the defence of Australia was one of the urgent, perhaps the most urgent, of all the needs
for the establishment of the Commonwealth. That power now rests in the one hand so far as Australian
authority extends”
141
(2009) 238 CLR 1
Relevant Sections: 59(xxxix), 61
Background: 2009 – legislation passed govt to give $900 if taxable income less than $100000.
Cheques go out, Pape brings action to HC to stop payments to say no general spending power under the constitution
that allows the govt to secure this money.
-
Nowhere under constitution, general power to spend money
-
By majority – is in constitution, a power, a nationhood power.
o What is nationhood power? S61 execute and maintain constitution. Incidental power s51(xxxix) allows
for laws to be enacted to assist in the execution of powers incidental to the government of the
commonwealth.
o S51(xxxix) when added to s61, creates this legislative power for the parliament to enact legislation that
helps the government in its constitutional duty. To execute and maintain the constitution, which means
to protect that which the constitution constitutes which is the nation state.
o Power of govt to make laws to keep the nation together.
Case summary/Quote:
French CJ [at 328] quoted Mason J in Davis v Commonwealth (1974) 131 CLR 477 that s 61 ‘[498] enables the
Crown to undertake all executive action which is appropriate to the position of the Commonwealth’
Gummow, Crennan and Bell JJ [83] “… the phrase “maintenance of this Constitution” in s 61… [conveys] the idea
of the protection of the body politic or nation of Australia…”
Gummow, Crennan and Bell JJ [89] The Executive Government is the arm of the government capable of and
empowered to respond to a crisis be it war, natural disaster or a financial crisis…’
Relevant Sections: 51(xxxix) and 61
Background: A ship rescues persons off the coast of Australia. They could be considered ‘non lawful
citizens’. The commonwealth decided to detain them and prevent them access to Australia. There was statutory
powers under the Migration Act, however it was argued that the rescuers detention wasn’t lawful, that the
legislation under the Migration Act, acted as an abrogation against the prerogative powers of the crown to
refuse and expel aliens (essentially in a nutshell). That the Act focused more on the citizens rights to become
refugees etc. On final appeal from the Commonwealth, it was determined that the Commonwealth was acting
within the executive powers under s61, that the Migration Act didn’t abrogate that.
Case summary/Quote:
162 The key issues on this appeal are:
142
-
1. Whether the executive power of the Commonwealth authorised and supported the expulsion of the rescuees
and their detention for that purpose.
-
2. If there was no such executive power, whether the rescuees were subject to a restraint attributable to the
Commonwealth and amenable to habeas corpus.
178 The modern relationship of the power to the prerogatives of the Crown was stated by Mason J in Barton v The
Commonwealth (1974) 131 CLR 477 at 498:
-
s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and
maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all
executive action which is appropriate to the position of the Commonwealth under the Constitution and to the
spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that
is, the powers accorded
180 Brennan J saw the phrase as assigning to the Executive government functions relating "not only to the institutions
of government but more generally to the protection and advancement of the Australian nation" - referring to Burns v
Ransley (1949) 79 CLR 101 at 109-110 and Australian Communist Party v The Commonwealth (1951) 83 CLR 1
at 187-188.
The nationhood power, is primary focused on section 51(xxix) – incidental, and 61 of the constitution. It involves
exercising functions/laws that largely have has their scope/intent, the protection of the nation state.
Read that stolen generation case
Background
Further information: Stolen Generations
Indigenous Australians have lived in the Northern Territory for at least 40,000 years.[3] In 1863 the Territory came
under the control of South Australia which in 1910 passed the Northern Territory Aboriginals Act 1910.[4] The Act
claimed to be for the "Protection and Control" of the Aboriginal people of the Territory. Under the Act, the "Chief
Protector of Aboriginals" was appointed as the legal guardian of every child whose mother was Aboriginal,[4]: s 9 and
had the power to confine such children to a reserve or Aboriginal institution.[4]: s 16 That is, Indigenous children
could be removed by Administrative order, whereas non-Indigenous children at the time could only be removed by
order of a Court.[5] This policy of removing Indigenous children from their family continued when control of the
Northern Territory was transferred from South Australia to the federal government.[6] The Aboriginals Ordinance
1918[7] extended these powers, putting Aboriginal females under the total control of the Chief Protector.[8] Most of
the Aboriginal institutions were operated by churches.[3] From 1964 indigenous children could only be removed under
the same circumstances as non-Indigenous children, however, the conditions of life for Indigenous people put them at
143
greater risk of having their children removed on the ground of neglect or destitution. In 1971 97% of Territory children
in foster care were Indigenous.[8]
In 1997 the Human Rights and Equal Opportunity Commission published the Bringing Them Home report on its
inquiry into the separation of Aboriginal and Torres Strait Islander children from their families.[9] The report made a
range of recommendations, including apologies from governments, churches and charities involved, the payment of
monetary compensation and that the federal government legislate to implement the Genocide Convention with full
domestic effect.[10]
Argument in the High Court
The plaintiffs were seeking compensation from the Commonwealth for wrongful imprisonment and deprivation of
liberty. For seven of the plaintiffs, Alec Kruger, Hilda Muir, Connie Cole, Peter Hansen, Kim Hill, George Ernest
Bray, Janet Zita Wallace and Marjorie Foster, the claim was based on their removal from their families while they
were children between 1925 and 1944.[11] The claim of the eighth plaintiff, Rosie Napangardi McClary, was based on
her being a mother whose daughter had been removed. One of the barriers for members of the Stolen Generations
obtaining compensation was that their removal was authorised by the 1918 Ordinance, a barrier the plaintiffs sought to
remove by challenging the legality of the ordinance.[12]
In the High Court the plaintiffs argued that the ordinance was invalid because it
infringed the doctrine of separation of powers;
offended the common law doctrine of legal equality;
restricted their freedom of movement and association;
the removal of children constituted genocide; and
144
Removal prevented children from the free exercise of their religion.
Decision
Separation of power
The plaintiffs argument involved two propositions, that judicial power could only be exercised by a Chapter III
Court,[13] and that the removal and detention of people was exclusively a judicial power. That the federal judicial
power could only be exercised by a court followed the 1915 decision of the High Court in New South Wales v
Commonwealth (The Wheat Case), that the structure of the Constitution required the strict insulation of judicial power
such that only a court established under Chapter III of the constitution can exercise the judicial power of the
Commonwealth.[14] The reasoning in the Wheat Case was taken further in Waterside Workers' Federation of
Australia v J W Alexander Ltd where a majority of judges, Griffith CJ, Barton, Isaacs, Powers and Rich JJ, held that
the power to enforce awards, being convictions for offences and the imposition of penalties and punishments, were
matters appertaining exclusively to judicial power.[15] The High Court reinforced the doctrine in the Boilermakers'
Case, holding that only a Chapter III Court could exercise judicial powers and that a Chapter III Court was only
permitted to exercise judicial power.[16] It had previously been held however that the territories were not a part of that
federal judicial power.[17]
Authority for the second proposition came from Chu Kheng Lim v Minister for Immigration,[18] where Brennan CJ,
Deane and Dawson JJ said "The involuntary detention of a citizen in custody by the State is penal or punitive in
character and, under our system of government, exists only as an incident of the exclusively judicial function of
adjudging and punishing criminal guilt.[18]
All judges dismissed the separation of powers argument, their reasons differed. Brennan CJ, Dawson and McHugh JJ
held that the separation of powers doctrine did not apply to the power to make laws for a territory under section 122 of
the Constitution and thus did not decide whether detention was a judicial power. Brennan CJ held that the territories
were not part of the federal system that involved the distribution of powers between the Commonwealth and the
States.[2]: p. 43 Dawson J, McHugh J agreeing, held that section 122 of the Constitution permitted the Parliament to
create courts that were not federal courts and not exercising federal jurisdiction. Dawson J doubted that the actions
were of a judicial rather than an executive character.[2]: p. 62
145
Toohey, Gaudron and Gummow JJ held that the removal of Indigenous children was not the exercise of judicial power
and did not decide whether the separation of powers doctrine applied. Toohey J held that the proposition that the
separation of powers doctrine extended to the territories was very persuasive, however his Honour did not determine
the question on that basis because "judged by the values and standards prevailing at the time" the Ordinance had a
welfare purpose and thus were neither puniative nor the exercise of judicial power.[2]: p. 84 Gaudron J similarly based
her decision on the finding that the power to authorise detention in custody was not exclusively judicial power.[2]: p.
110 Gummow J held that at the time the detention was seen as necessary for a legitimate non-punitive purpose and
was not the exercise of judicial power.[2]: p. 162
Implied right of legal equality
The plaintiffs sought remedies consistent with the dissenting judgements of Deane and Toohey JJ, and Gaudron J in a
separate judgment in Leeth v Commonwealth,[19] However, in this case only Toohey J held there was a right of
substantive equality; Gaudron J departed from her position in Leeth to support procedural equality only. Gaudron J
was accompanied by Dawson, McHugh and Gummow JJ. Brennan CJ did not consider this issue, as he found that such
a right could not apply to the territories, as they were creations of parliament.
Per Dawson J, the due process afforded by the existence of Chapter III courts is of a "procedural rather than
substantive nature". As for the existence of discrimination in the Constitution, he disagreed with the notion that
because there were provisions protecting the States from discriminatory Commonwealth laws,[20] there should be
applicable laws for individuals, on the basis that these protections were founded on different considerations.
Furthermore, where the Constitution has prescribed equality, it has done so explicitly, such as the section 92
prohibition against discrimination of a protectionist kind. However, he recognised that Deane and Toohey JJ based
their doctrine of equality on "considerations of a more fundamental kind".
Dawson J also attacked the notion that legal equality might arise from the Constitution as a free agreement of the
people; he noted that there was a degree of equality lacking, with regards to women and Aboriginals. In relation to the
common law, even if there were a common law right of substantive equality, the Commonwealth parliament has the
ability to usurp the common law otherwise its concurrent power will be less than that of the States. Finally, even with
the existence of Chapter III courts, it is not possible to declare a law invalid because it is substantively unequal.
146
Freedom of movement and association
The claim for freedom of movement was not based on the express right such as the freedom of interstate commercial
travel,[21] but rather an implied right flowing from the implied freedom of political communication, a freedom that
may be subject to limitations that are reasonably appropriate and adapted to serve a legitimate end.[22] Toohey,
Gaudron, and McHugh JJ held that association and movement were inherent in political communication such that there
was an implied freedom of movement and association. Toohey J held that considering the standards and perceptions
prevailing at the time of the 1918 Ordinance, it was not necessarily invalid.[2]: p. 93 McHugh J held that the right was
intimately connected with voting, and because the people of the Northern Territory, whether indigenous or not, could
not vote at that time, freedom of movement did not apply to people in the Northern Territory.[2]: p. 142 Gaudron J was
the only judge to have held that any part of the 1918 Ordinance was invalid, holding that sections 6, 16 and 67(1)(c)
were invalid as they were not necessary for the attainment of some overriding purpose. These were the sections that
permitted the Chief Protector to take children into custody, and to confine them to a reserve or Aboriginal
institution.[2]: p. 129
Brennan CJ and Dawson J did not decide whether or not there was an implied freedom of movement and association.
Brennan CJ held that the provisions were not directed to impeding political communication and so were not
invalid.[2]: p. 45 Dawson J held that because people in a Territory did not have the right to vote, there was no right for
freedom of movement to attach to.[2]: p. 70 Gummow J took the narrowest interpretation,[11] holding that there was
not a right to freedom of movement and familial association, and even if such rights existed, the 1918 Ordinance did
not infringe them.[2]: p. 157
Freedom from genocide
The Bringing Them Home report had found that the removal of Indigenous children was genocide,[5] as defined in the
Genocide Convention which was ratified by Australia in 1949,[23] but has not been implemented with legislation in
Australia.[2]: p. 159 Article 2 of the Genocide Convention defines genocide as acts committed with intent to destroy a
national, ethnical, racial or religious group, including:
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(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to
another group.[24]
A majority of the High Court, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, found that the 1918 Ordinance
required action to be taken in the best interests of the Aboriginal people and thus did not authorise genocide. Thus is, if
genocidal acts occurred, they were beyond the power given by the 1918 Ordinance.[12] Gaudron J went further and
held that genocide was so fundamentally abhorrent that the Australian Parliament did not have the Constitutional
power to make laws authorising acts of genocide.[2]: p. 107 Her Honour was however the only judge to find a right to
freedom from genocide.[12]
Dawson J, in addition to holding that the 1918 Ordinance did not authorise genocide, held that section 122 of the
Constitution is 'unlimited in terms of subject matter' in contrast to the heads of power under section 51. Therefore the
proper construction of the section contains no restriction on legislative power, as the plaintiff argued.[2]: p. 73 [11]
Gummow J agreed with this expansive interpretation of section 122.[2]: p. 159
Freedom of Religion
Section 116 of the Constitution states:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or
for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office
or public trust under the Commonwealth.[25]
The plaintiffs did not argue that making Aboriginal children attend a church run institution was the imposition of
religious observance, but that the system of spiritual beliefs and practices of the Aboriginal people was a religion and
the laws prohibited Aboriginal children from the free exercise of that religion by separating them from indigenous
culture. The Bringing Them Home report had found that Aboriginal children were removed because their
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Aboriginality was 'a problem' and to prevent the children from acquiring Aboriginal 'habits', culture and traditions.[5]
This argument was rejected by the High Court, with the majority, Brennan CJ,[2]: p. 40 Dawson J,[2]: p. 60–1 Toohey
J,[2]: p. 86 and Gummow J,[2]: p. 161 holding section 116 was directed to the purpose of a law and not to the effect of
the law, and that the challenged laws did not have the purpose of restricting the practise of religion. held that none of
the laws had that prohibited purpose. Gaudron J agreed with the majority that section 116 was directed to the purpose
of the legislation, but that the purpose of the 1918 Ordinance could not be determined on the material before the High
Court.[2]: p. 134 Gummow J similarly left open the possibility that section 116 prohibited the use of concealed means
or circuitous devices, but that would have to be established by evidence before a law could be found to be
invalid.[2]: p. 161
Aftermath
The High Court upheld the validity of the 1918 Ordinance but that removal could only occur if it was considered as
being best interests of the Aboriginal child, "judged by the values and standards prevailing at the time". In this way the
Court left open the possibility that the removal of some Aboriginal children may not have been authorised by the 1918
Ordinance. Only one member of the Stolen Generations, Bruce Trevorrow in South Australia,[26] has obtained
compensation as a result of litigation.[1] Limited compensation schemes have been implemented in New South Wales
and South Australia
Further from book
o ‘marks the external boundaries of the Commonwealth executive power, so far as that is conferred by the
Constitution, but it leaves entirely untouched the definition of that power and its ascertainment in any
given instance’. As Brennan J said in Davis v The Commonwealth,(1988) 166 CLR ‘the scope of s 61
has not been charted nor … is its scope amenable to exhaustive definition’
-
Section 61 contemplates that the Commonwealth Executive will exercise powers directly conferred by the
Constitution (see, for example, ss 5, 58, 64, 72), and powers conferred by statute (which, in practical terms, is
the most important contemporary source of power
-
A broader view of s 61 was taken by Isaacs and Starke JJ in the Wooltops case, reading s 61 as having
transferred to the Governor-General all the inherent powers of the Crown in relation to the Commonwealth of
Australia. This broader view gained adherents over the years and was adopted by the High Court in Barton v
The Commonwealth. In that case, the Court held that the executive power of the Commonwealth, exercisable
149
by the Governor-General, included the prerogative power to request a foreign country to return to Australia a
fugitive offender, where Australia had no extradition treaty with that country, even though the power to make
the request had not been ‘assigned’ to the Governor-General. Mason J said that the executive power of the
Commonwealth:
o enables the Crown to undertake all executive action which is appropriate to the position of the
Commonwealth under the Constitution and to the spheres of responsibility vested in it by the
Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the
Crown by the common law
-
The ‘nationhood’ power was firmly established by the decision in Davis v The Commonwealth (1988) 166 CLR 79
The plaintiffs challenged legislation that authorised a company, incorporated by the Executive in the Australian
Capital Territory, to organise celebrations of the bicentenary of European settlement in Australia. The justices
again articulated the tension between the federal distribution of governmental responsibilities and the pressure
for coordinated national action on an increasing range of issues (a tension reflected in the views of Mason and
Jacobs JJ in the AAP case), but the justices showed a distinct preference for the ‘national’ considerations
-
The nationhood power was mentioned briefly in Williams v The Commonwealth (No 1). As discussed in
below, the issue in that case was the scope of the Commonwealth Executive’s power to enter into contracts and
spend public money on a school chaplains program without specific statutory authorisation. The implied
nationhood power could not be relied on in Williams (No 1). The school chaplaincy program was very different
from the payments considered in Pape, because the Commonwealth’s program was operating in the same field
as State programs.
-
French J, with whom Beaumont J agreed, held that the Executive did not need statutory authority — the
Executive had power under s 61 of the Constitution to prevent entry into Australia of non-citizens, that
authority being central to the sovereignty of Australia and not having been expressly and clearly abrogated by
statute.
o Dissenting judges in CPCF v Minister for Immigration stated it was at least doubtful whether the
Commonwealth had any non-statutory power to detain a non-citizen to prevent the non-citizen from
entering Australia (Kiefel J).
o This dissent is directly contrary to the Tampa case, which might suggest it isn’t great law to base further
incidents on where there may not be a majority in the High Court.
150
-
The following sections of the Commonwealth Constitution provide for, or imply a system of, responsible
-
government: ss 6, 44(iv), 49, 53, 57, 62, 63, 64 and 83. (See, for example, Lange v Australian Broadcasting
Corporation (1997) 189 CLR 520, 558–559; Winterton, op cit (1983), p 4. State constitutions make similar
provision)
-
In Lange v Australian Broadcasting Corporation, the Court said: (at 558-559)
o Sections 62 and 64 of the Constitution combine to provide for the executive power of the
Commonwealth … to be exercised ‘on the initiative and advice’ of Ministers and to limit to three
months the period in which a Minister of State may hold office without being or becoming a senator or
a member of the House of Representatives …
o The requirement that the Parliament meet at least annually, the provision for control of supply by the
legislature, the requirement that Ministers be members of the legislature, the privilege of freedom of
speech in debate, and the power to coerce the provision of information provide the means of enforcing
the responsibility of the Executive to the organs of government
-
In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51, 69) Mason CJ
referred to ‘the fundamental principle of public law that no tax can be levied by the executive government
without parliamentary authority, a principle which traces back to the Bill of Rights 1688 (Imp)’.
-
In Suntory (Aust) Pty Ltd v Commissioner of Taxation, (2009) 177 FCR 140 the Full Court of the Federal Court
accepted ‘the fundamental principle’, derived from Bowles v Bank of England,379 Attorney-General v Wilts
United Dairies Ltd380 and the Wooltops case,381 that ‘taxes can only be levied by act of Parliament’,
-
In Brown v West (1990) 169 CLR 195 the High Court said: ‘An appropriation made by a valid law is the necessary
authority for the Executive Government to take moneys out of the Consolidated Revenue Fund.
-
Section 83 of the Commonwealth Constitution provides that ‘[n]o money shall be drawn from the Treasury of
the Commonwealth except under appropriation made by law’. Consequently, as the High Court observed in
Brown v Westthe power to authorise expenditure is held exclusively by the Commonwealth Parliament, and ss
81 and 83 assure ‘to the people the effective control of the public purse’.401 Section 83 ‘expresses the
principle that parliamentary authority is required for the expenditure of any moneys by the Crown’.
-
The ‘law’ referred to in s 83 is an Act of the Commonwealth Parliament passed in accordance with the
procedures specified in ss 53, 54 and 56 of the Commonwealth Constitution: that is, originating in the House of
Representatives after a recommendation of the Governor-General and, if the House authorises expenditure ‘for
151
the ordinary annual services of the Government’, dealing only with that expenditure and incapable of
amendment by the Senate.
-
An Appropriation Act has the legal effect of removing a barrier to government expenditure, of unlocking the
-
Commonwealth’s Consolidated Revenue Fund or the States’ Consolidated Funds, but it does not confer power
on the Executive to spend the appropriated money.(Pape). The power to spend the money must be found
elsewhere. Nor does an Appropriation Act have the effect of obliging the government to withdraw and spend
the money, or of giving the potential payee of the money a cause of action on which to sue the government so
as to compel the expenditure.
-
On 15 October 1975, the Senate resolved not to proceed further with legislation to give effect to the Labor
ministry’s financial program, including the appropriation Bills, until the ministry agreed to a general election
for the House of Representatives (Senate debates, 15 October 1975), p 1156).
-
The ministry and the House of Representatives refused to accede to that demand and, on 11 November 1975,
-
Prime Minister Gough Whitlam called on Governor-General John Kerr with the intention of advising the
Governor-General to request State governors to issue writs (under s 12 of the Commonwealth Constitution) for
a half-Senate election.
-
Kerr immediately informed Whitlam that he had terminated the latter’s commission, because Whitlam had
‘persisted in [his] attitude’ not to ‘resign or advise an election of the House of Representatives or a double
dissolution’.
-
Immediately after terminating Whitlam’s commission, Kerr commissioned Opposition Leader Malcolm Fraser
as a caretaker Prime Minister on condition that Fraser obtain passage of the appropriation Bills and advise the
Governor-General to dissolve both the Senate and the House of Representatives. The appropriation Bills were
passed through the Senate and transmitted to the Governor-General for royal assent within a matter of minutes
-
When Fraser announced his commission to the House of Representatives (at about the time the Senate was
passing the appropriation Bills), the House formally resolved ‘its want of confidence’ in Fraser and requested
the Speaker to advise the Governor-General to commission Whitlam to form a government
-
The Governor-General proceeded to dissolve the House of Representatives and the Senate under s 57 of the
Commonwealth Constitution, on the advice of Fraser. The Governor-General’s proclamation cited 21 Bills as
152
having fulfilled the requirements of s 57. Each of those Bills had been supported by the former Labor
Government and opposed by the former Liberal/National Country Opposition, led by Fraser, who (as Prime
Minister) countersigned the double dissolution proclamation
-
At the time of Whitlam’s dismissal, Kerr issued an extensive statement, claiming that his initiative was dictated
by the principles of responsible government. Parliamentary control of expenditure was, he said, ‘a fundamental
feature of our system of responsible government’, so that a government denied supply by the Parliament could
not govern. This was clear, the Governor-General continued, where ‘the popularly elected lower House’
refused to pass supply legislation, but it should also apply whenever an upper House with power to do so
refused to pass an appropriation Bill: the government should then either resign or go to an election, this being
‘a necessary consequence of parliamentary control of appropriation and expenditure’.
-
The basic legal proposition used to support Kerr’s 1975 initiative was that s 61 of the Commonwealth
Constitution gave the Governor-General the responsibility to maintain the Constitution and s 64 gave the
Governor-General the power to appoint and dismiss ministers. In support of the Governor-General’s action,
Kerr and Barwick also pointed to s 53, which preserved the power of the Senate to reject appropriation
legislation. Those provisions must prevail over any conventions, they said.
-
The States have an implied immunity from certain Commonwealth laws, commonly described as the
Melbourne Corporation doctrine. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 In addition, each State
has a specific immunity from Commonwealth taxes on property belonging to the State, under s 114 of the
Commonwealth Constitution.
-
Immunity from Commonwealth legislation was Melbourne Corporation v the Commonwealth. The High Court
held (with McTiernan J dissenting) that a Commonwealth law,(Banking Act) which provided that a bank could
not conduct any business for a State or a State authority without the written consent of the Commonwealth
Treasurer, was invalid. There were three different approaches in the reasoning of the majority justices
o One approach (adopted by Dixon J) was that a Commonwealth law could not validly impose a special
burden on a State, if it was a burden to which others were not subject. That discriminatory operation
was contrary to a limit on Commonwealth legislative power implied from the federal structure of the
Commonwealth Constitution.
▪
(a) Dixon J held that the Commonwealth Constitution was founded on ‘the conception of a
central government and a number of State governments separately organised’ and ‘predicates
153
their continued existence as independent entities’. From that, Dixon J drew an implication that
the Commonwealth could not single out the States.
o A second approach (adopted by Rich and Starke JJ) was that a Commonwealth law could not prevent a
State from functioning as a government. Starke J said (in a passage picked up in later cases) that
Commonwealth legislation or executive action could not curtail or interfere in a substantial manner with
the exercise of constitutional power
o A third approach (adopted by Latham CJ and Williams J) was that the Commonwealth law, in singling
out a State, was not properly characterised as a law with respect to banking. Rather, their Honours held,
it was a law with respect to the States, which was beyond the power of the Commonwealth Parliament.
That approach — which attempts to ascribe a single, or essential, character to a law — was followed by
several justices in Victoria v The Commonwealth (the Payroll Tax case); however, later cases have
firmly established that a law may have several different characters.
o In 1985, Mason J distilled the previous discussion of the Melbourne Corporation doctrine into two
limbs:
▪
(a) The first limb prohibits discrimination which involves the placing on the States of special
burdens or disabilities.
▪
(b) The second limb prohibits laws of general application that operate to destroy or curtail the
continued existence of the States or their capacity to function as governments.
-
That single test approach was adopted in Clarke (2009). That test was formulated in Fortescue Metals v The
Commonwealth in the following terms:
o [A]s the decisions in Austin and Clarke each demonstrate, the Melbourne Corporation principle requires
consideration of whether impugned legislation is directed at States, imposing some special disability or
burden on the exercise of powers and fulfilment of functions of the States which curtails their capacity
to function as governments’.
154