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Theory
Melbourne Corporation Principle
1. Doctrine of Implied Immunity of Instrumentalities
a. Commonwealth and States are separate sovereign entities within the ambit of their authority
subject to the Imperial connection and the provisions of the Cth (D’Emden v Pedder)
i. Both the Cth and States are not bound by the other’s legislation unless expressly provided
for in the Constitution or necessarily implied
b. Engineers expressly overruled the doctrine of implied immunity of instrumentalities
c. Melbourne Corporations brings back a limited form of this doctrine
i. The implied limitation on Cth power is said to derive from the Constitutional assumption of
the continuing existence of the States, their co-existence as independent entities within the
Cth, and the functioning of their governments (Clarke)
2. International Law and the Federal Balance (Koowarta v Bjelke-Peterson) (fed using external affairs power
to take over state powers)
a. Gibbs CJ (dissent)
i. If s 51(xxix) empowers Parliament to legislate to give effect to every international
agreement which the executive may choose to make, the Cth would be able to acquire
unlimited legislative power
1. There would be no field of power which the Cth could not make and federal balance
achieved by Constitution could be entirely destroyed
ii. From Engineers, error to read s 107 as reserving any power from the Cth
iii. BUT no single power should be construed to give the Cth a universal power of legislation
which would render absurd the assignment of particular carefully defined powers to that
Parliament (Bank of NSW v Cth)
iv. No effective safeguard would be provided if accepted that “the entry into the convention
was merely a device to procure for the Cth an additional domestic jurisdiction” (Burgess)
v. Not enough to establish bad faith by showing that Parliament knew it had no legislative
power to deal with the subject-matter of the treaty except that under s 51(xxix) once the
treaty was concluded
1. Bona fides would at best be a frail shield, and available in rare cases
vi. Narrower approach preferred – a law which gives effect within Australia to an international
agreement will only be valid if the agreement is with respect to a matter which itself can be
described as an external affair
b. Stephen J
i. The quality of being of international concern remains as a valid criterion of whether a
particular subject-matter forms a part of a nation’s “external affairs”
3. Melbourne Corporation Principle
a. Melbourne Corporation Case
i. Dixon J
1. Prima facie rule is that a power to legislate with respect to a given subject enables
the Parliament to make laws which, upon that subject, affect the operations of the
States and their agencies
2. Qualified – where it is not a law of general application, and the law discriminates
against the States, or a law that places a special disability or burden on an activity or
operation of a state, in particular with respect to the execution of state
constitutional powers, then that it is something else altogether
3. Two aspects:
a. The law is directed towards controlling or restricting the States by placing a
particular burden or disability upon the State
b. Possible that by controlling the states, the connection between the law and
the head of power becomes so insubstantial, tenuous or distant that it no
longer becomes ‘with respect to’ a particular subject matter
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b.
c.
d.
e.
4. Even though s 109 puts the Cth in a superior position to the States, it does not mean
that State governments are a branch office of the federal parliament. It retains its
character as independent entities notwithstanding the Cth superiority
5. As a consequence, unless a given legislative power appears from its content, context
or subject matter s to intend, it should not be understood as authorizing the Cth to
make a law aimed at the restriction of a State in the exercise of its executive
authority
6. Basis of limitation: derived from the federal compact
ii. Starke J
1. Beyond the power of either Cth or State to abolish or destroy the other
2. Test: whether Cth is curtailing or interfering in a substantive matter the exercise of
the constitutional power by the State
iii. Latham CJ and Williams J
1. Basis of limitation: question of characterisation – if a law is direct towards restricting
or controlling the states, it does not fall within the HOP (similar to Engineers)
iv. Rich J
1. Invalid if Cth action prevents State from continuing to exist or function – 2 instances:
a. Where they single out states and impose restrictions upon them
b. Law of general application will impose such burdens that it will prevent the
states from carrying out its governmental duties
Qld Electricity Commission v Cth
i. Mason J
1. Discrimination limb: not every law that deprives a State of a right, privilege or
benefit that it enjoys will amount to discrimination.
Austin v Cth
i. One-limb test endorsed – Cth laws will only be invalid if they impair the State’s capacity to
function as a polity
ii. Discrimination is not enough
Clarke
i. Hayne J
1. It is for a state to decide how and with what amount its parliamentarians are to be
remunerated
2. The law impairs the capacity of a state to choose between these various forms of
remuneration
3. The state has no real choice but to adopt a method of providing retirement benefits
that will enable parliamentarians to meet the tax liability specifically imposed on
them
ii. Gummow, Heydon, Kiefel and Bell JJ
1. One limitation – discrimination as an illustration of how it impairs the capacity of the
state to function in accordance with the constitutional conception of the Cth and
States as constituent entities
Workchoices
i. Callinan J
1. Amenable to broader ‘federal balance’ argument
a. Nothing to suggest that powers of the Cth should be enlarged “so that the
Parliament of each State is progressively reduced until it becomes no more
than important debating society”
b. Court is not permitted to ‘reshape the Constitution’
c. States are ‘substantial and permanent polities’ with full legislative and
judicial powers, and must remain so
2. Criticised majority judgment as ‘the reach of the corporations power, as validated by
the majority, has the capacity to obliterate powers of the State hitherto
unquestioned’
ii. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ
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1. What was discarded in Engineers was an approach to constitutional construction
that started with a view of the place to be accorded to the States formed
independently of the text; but did not establish that no implications can be drawn
from the Constitution
2. In this case, appeals were made to notions of federal balance – two points made:
a. As Dixon J said in Melb Corp, the position of the federal government is
necessarily stronger than of the States. The Cth is a government to which
enumerated powers have been affirmatively granted. The grant carries all
that is proper for its full effectuation. Then supremacy is given to the
legislative powers of the Cth
b. Dixon J in Melb Corp: framers ‘appear to have conceived the States as
bodies politic whose existence and nature are independent of the powers
allocated to them
3. Issue for majority: at which point are the powers of the federal Parliament and the
State be divided lest the federal balance be disturbed, and how is that point to be
identified?
f.
Summary
i. Melbourne Corporation principle provides the States an immunity from Cth laws which
would ‘impair the State to function as a constituent entity of the federal structure’ (Clarke)
1. Discrimination is a possible manifestation of this; not a standalone ground of
invalidity (Austin)
ii. Does not provide any broader guarantee of ‘federal balance’
Constitutional Interpretation
1. Jumbunna Coal
a. O’Connor J
i. Endorsed approach in McCulloch v Maryland
1. Let the end be legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the Constitution, are
constitutional
ii. Constitution is broad and general in its terms, intended to apply to the varying conditions
which the development of the community
iii. Should lean on the plenary interpretation unless there is something in the context or rest of
the Constitution to indicate the narrower interpretation will best carry out its object and
purpose
b. ANA Case
i. Interpreted to mean ‘construed with all the generality which the words used admit’
c. Comparison with Engineers
i. Both give wide reading of s 51
ii. Far more willing to look at PURPOSE of the Constitutional provision
iii. Willing to give s 51 a narrow interpretation if it served underlying purpose
d. Pape v Commissioner of Taxation
i. Heydon J (dissent)
1. Tried to rein in the approach of broad interpretation
2. Constitutional grants of power should not be given wide meaning where context
indicates otherwise. Context includes federal nature of Constitution and history of
its enactment
Judicial Detention
1. Chu Kheng Lim principle
a. Involuntary detention of a citizen may only be ordered by a court, in consequence of a judicial
finding of criminal responsibility
b. Expanding nature of exceptions has led to questions about whether there is an ‘immunity’ at all
(Gaudron J in Kruger)
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2. Kable
a. McHugh J
i. Invests State courts with federal judicial power
ii. Legislation directed to exercise of State jurisdiction – but incompatibility does not depend
upon intention; it depends on effect
iii. At Federal level, cannot give courts non-judicial function; At State level, it can exercise nonjudicial functions as long as the power is not incompatible with their federal functions
b. Dawson J (in dissent):
i. Acknowledges that State courts must exist, but Cth must take them as they find them
ii. May still invest federal judicial functions, but they are still State courts
iii. No incompatibility – no integration of State and Federal systems
iv. Suggestion of the idea that the words/existence of Ch III necessitates a denial of State power
is viewed as an abuse
c. Noted by Kirby J in Baker – a constitutional guard-dog that would bark but once?
i. Suggestion that Kable was extreme, legislation would never be invalidated on this basis
again (McHugh J in Fardon)
ii. Barked again in IFCT; Totani
3. Subsequent Cases
a. Fardon
i. Gummow J
1. Alternative to Chu Kheng Lim: purpose not to punish, but to protect
2. If a similar scheme would be valid at the federal level, then the same principle can
be applied to the State level
ii. Kirby J (dissent)
1. Objects to the narrowing of Kable
b. Kruger
i. Gaudron J
1. Exceptions recognised in Lim are neither clear nor within precise and confined
categories
2. Acknowledgement by Brennan, Deane and Dawson JJ that the immunity does or
may not operate in war time is inconsistent with the notion of a ‘general immunity’
from involuntary detention deriving from Ch III
3. True position: subject to certain restrictions a law authorizing detention in custody,
divorced from any breach of the law, is not a law on a topic with respect to which s
51 confers legislative power
4. Because power to authorise detention in custody is not exclusively judicial in
character, Ch III is not the source of any such limitation
ii. Gummow J
1. A power od detention which is punitive in character and not consequent upon
adjudgment of criminal guilt by a court cannot be conferred upon the Executive by a
law of the Cth
a. If law characterized as punitive in nature, it attracts the operation of Ch III
c. Al-Kateb v Godwin
i. Hayne J
1. Whether law ‘reasonably capable of being seen as necessary’ for non-punitive
purpose may be more appropriate whether the law is a law ‘with respect to’ a
particular head of power
2. Relevant power not so confined as is implicit in the reasons in Chu Kheng Lim
3. ‘Constitutional immunity’ difficult to identify with any certainty. It is an assumption
which turns upon the connection between such detention and the relevant HOP
ii. McHugh J
1. Ch III is always infringed where the detention of a person other than by curial order
is authorised by a law of the Cth and imposes punishment
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2. “The justice or wisdom of the course taken by the Parliament is not examinable in
this or any other domestic court” because “it is not for the courts… to determine
whether the course taken by Parliament is unjust or contrary to basic human rights”
iii. Gummow J (dissenting)
1. Refers to McHugh in Chu Kheng Lim – although detention under a law of Parliament
is ordinarily charactised as punitive in character, it cannot be so characterized if the
purpose of the imprisonment is to achieve some legitimate non-punitive object…
but if imprisonment goes beyond what is reasonably necessary to achieve the nonpunitive object, it might be invalid because it infringed Ch III
2. Brennan, Deane, Dawson and McHugh JJ approach in Lim preferred (immunity
rather than characterization (Gaudron J))
d. Re Woolley
i. McHugh J
1. Goes too far to say that, subject to specified exceptions, detention by the Executive
is always penal or punitive and can only be achieved as the result of the exercise of
judicial power
2. The object for which the law authorises or requires the detention is an even
stronger indication of whether the detention is penal or punitive in nature
a. From Callinan J in Al-Kateb – the purpose of the law that authorizes
detention is the ‘yardstick’ for determining whether law is punitive in nature
3. Two-step process argued
a. Identify a legitimate non-punitive objective to which the law is directed; and
b. Whether the law is “reasonably necessary” or “reasonably capable of being
seen as necessary” or “appropriate and adapted” to achieve that purpose or
objective [considerations of proportionality]
4. New Test: a law that authorises detention will not offend the separation of powers
doctrine as long as its purpose is non-punitive (drawn from Al-Kateb – none of the
majority applied the preferred ‘reasonably capable of being seen as necessary’ test
5. Infringement of Ch III cannot be saved by asserting that its operation is
proportionate to an object that is compatible with Ch III
a. Otherwise, can invest in non-judicial tribunals
e. Thomas v Mowbray
i. Gleeson CJ
1. Not correct to say, as an absolute proposition, that under our system of
government, restrains on liberty exist only as an incident of adjudging and punishing
criminal guilt
ii. Gummow and Crennan JJ
1. Mere fact that a court is required to take into account considerations of policy when
exercising its discretion is not enough to make it a non-judicial function
a. Where legislation is enacted to effect a policy, inevitably consideration of
that policy cannot be excluded form the curial interpretative process
2. Nothing to suggest that the court is to act as a mere instrument of government
policy – does not infringe Ch III
iii. Kirby J (dissenting)
1. Exercise of judicial power governed by ‘defined or definable, ascertained or
ascertainable standard’ (Re Judiciary and Navigation Acts)
2. Invites court to prognosticate about the likely contribution of the order to the
prevention of a terrorist attack
a. Does not provide a legal standard – executive function only