70616: Australian Constitutional Law
Final exam revision
Contents
What is in the exam? .................................................................................................................................... 5
Interpretation of the Constitution ................................................................................................................ 6
Characterisation of the law ........................................................................................................................... 7
Subject matter powers - sufficient connection test ................................................................................. 7
As in the Bank Nationalisation Case ..................................................................................................... 7
As in Fairfax (1965) ............................................................................................................................... 7
As in Herald (1966)................................................................................................................................ 7
As in Murphyores (1976) ....................................................................................................................... 7
In Re Dingjan (1995).............................................................................................................................. 8
Purposive powers + - Reasonably appropriate and adapted test............................................................. 9
Subject Matter Powers ............................................................................................................................... 10
The Race Power ...................................................................................................................................... 10
Koowarta ............................................................................................................................................. 10
Tasmanian Dams ................................................................................................................................. 10
Western Australia v Commonwealth .................................................................................................. 10
Kartinyeri............................................................................................................................................. 10
Trade and Commerce Power .................................................................................................................. 11
Definition of Trade and Commerce..................................................................................................... 11
Required to be interstate or overseas ................................................................................................ 11
Intrastate trade ................................................................................................................................... 11
Corporations Power ................................................................................................................................ 13
Constitutional Corporations................................................................................................................ 13
Power to incorporate .......................................................................................................................... 13
Scope ................................................................................................................................................... 13
Implied Incidental Power .................................................................................................................... 14
Purposive Powers........................................................................................................................................ 17
Nationhood ............................................................................................................................................. 17
External Affairs ........................................................................................................................................ 19
Physically external............................................................................................................................... 19
International Relations/relationships with other countries ............................................................... 19
Matters of international concern ....................................................................................................... 19
Treaties/external affairs...................................................................................................................... 19
Grants Power .............................................................................................................................................. 22
S52 – regarding commonwealth land ......................................................................................................... 22
The Territories Power ................................................................................................................................. 23
The States.................................................................................................................................................... 24
Commonwealth laws affecting the state ................................................................................................ 24
State laws affecting the commonwealth ................................................................................................ 24
Inconsistency of laws .............................................................................................................................. 25
Implied Incidental Power ............................................................................................................................ 26
Chapter 3 Courts and the Separation of power .......................................................................................... 27
Does the Commonwealth Act create a Court? ....................................................................................... 27
a)
Is it constituted in accordance with Chapter III? ........................................................................ 27
b)
Is it exercising the judicial power of the Commonwealth?......................................................... 27
Does the Cth. Act create a tribunal that is not a Chapter III court? ....................................................... 28
a)
Is it exercising judicial power of the Commonwealth? ............................................................... 28
b)
Are the members of the tribunal Chapter III judges? ................................................................. 28
c)
Are the judges acting in their personal capacity or their judicial capacity? ............................... 28
Does the State Act create a court? ......................................................................................................... 29
Rights and Freedoms .................................................................................................................................. 31
Freedom of religion................................................................................................................................. 31
Acquisition of property on just terms ..................................................................................................... 32
Implied Freedom of political Communication ........................................................................................ 33
Implied Right to Due Process, Fair Trial & Equality............................................................................. 34
Constitutional Law
Problem Question
Is there a C’th
Law?
The Race Power
Trade and
Commerce Power
Subject Matter
Power
Characterize that
law
What does the act
actually do?
Corporations Power
External Affairs
Nationhood
Physically External
International
Relations
Treaties
Implied incidental
power
Purposive Power
Is the law
Sufficiently
connected to the
subject matter?
Is the law
reasonably and
appropriately
adapted?
Gross Valid
Territories
Grants
Can be conditional
Conditions may be
enforced
Plenary Power
Acceptance cannot
be enforced
Gross valid
Is the law
breaching
constitutional
controls?
Melbourne
Corporation (state v
federal)
Separation of
Powers
Rights and
Freedoms
Is there a state
law?
Is there an
inconsistancy?
Direct
Covering the feild
Net Valid
Rights
What is in the exam?


Characterising a law
o Heads of power
 The race power
 Trade and commerce
 Corporations
 External affairs
 Nationhood
 The territories power
 Grants power
 S52
o Other issues
 Separation of powers
 Judiciary
o Chapter 3 courts and the exercise of the judicial power of the
commonwealth
o Judges acting in persona designate
 Rights and Freedoms
 Free trade between states
 Freedom of religion
 Freedom of political communication
o Freedom to gather/travel
 Limited right to vote
 Right to a fair trial
 Right to a trial by jury
 Acquisition of property on just terms
 Melbourne Corporation
 Retrospectivity – Polyukovic, limited by university of Wollongong v metwally
[can’t use retro to claim that inconsistency didn’t happen]
 Reading down a law s15A interpretation act
Inconstancy between state and federal laws
o Vanilla
 Explicit inconsistency
 “covering the field”
Interpretation of the Constitution

The broader interpretation of the constitution is favoured:
We are interpreting a Constitution broad and general in its terms … the court should in my opinion,
always lean to the broader interpretation unless there is something in the context or the rest of the
Constitution to indicate a narrower interpretation is better
Dixon J in the Bank Nationalisation Case [interpretation of banking power; held: power to be construed
broadly]
Characterisation of the law
A law must be characterised in order to be valid.
Subject matter powers are characterised via the sufficient connection test, purposive powers are
characterised via the reasonably appropriate and adapted test
Subject matter powers - sufficient connection test
The sufficient connection test is used to characterise a law under a subject matter power.
As long as the law can be characterised as being a law with respect to a subject matter which is within
power it does not matter that it might also be characterised as bearing upon some other subject matter
not within
To characterise a law the focus should be on the direct legal operation of the law
In characterising a law the court is not concerned with the policy it embodies but only whether it can
fairly be described as a law with respect to a specified subject matter – is there a sufficient connection
between the law and the head of power. Do not examine the motives which inspire it or the
consequences which flow from it.
As in the Bank Nationalisation Case
 The subject matter of the head of power is construed broadly
 The commonwealth may make any law within this subject matter
Dixon J in the Bank Nationalisation Case [limit of banking power]
As in Fairfax (1965)
1. What is the law with respect to?
2. What does it do?
3. What does it command or prescribe
Once it appears that a law has an actual and immediate operation within a field assigned to the CW
as a subject of power that is enough …That it discloses another purpose that lies outside power is not
sufficient to invalidate it
Kitto J in Fairfax v Commr of Taxation [involving taxation and superannuation]
As in Herald (1966)
Since s51 of the constitution allows for laws “with respect to”, a substantial connection is sufficient.
Kitto J in Herald v Weekly Times [involving whether the law was with regards to television licences or
those who hold them]
As in Murphyores (1976)
Policy is irrelevant
That the law is dealing centrally with a topic, that it deals with other topics is fine.
it is enough that the law deals with the permitted topic and it does not cease to deal with that topic …
account…It is now far too late to say that a law should be characterised by reference to the motives
which inspire it or the consequences which flow from it.
It is no objection to the validity of a law otherwise within power that it touches or affects a topic on
which the Commonwealth has no power to legislate
Mason J in Murphyores [involving the export of sand]
In Re Dingjan (1995)
This case was regarding subcontractors under the corporation’s power.
A requirement for actual connection was held by 4/3 of the court.
Gaudron J, in minority, says all you need is an express intention to get a sufficient connection.
Gaudron’s broad view has been propagated (e.g. in Workchoices)
Purposive powers + - Reasonably appropriate and adapted test
This test is used to characterize purposive powers (e.g. defense, nationhood); we ask is the Act
appropriate and adapted to the purpose of the power.
This test is also used in the implied incidental power.
does it go beyond what is reasonably appropriate and adapted to its purpose
McHugh J in Nationwide News
Where it’s (1) a purposive power or (2) where the law impinges on an express or implied freedom or
prohibition you can examine the law to see whether it is appropriate and adapted
Brennan in Cunliffe
Majority - the proportionality test is not relevant to non-purposive power
BUT Brennan, Kirby and McHugh all said proportionality may have a role to play in determining
sufficient connection
Leask
Subject Matter Powers
Subject matter powers are powers that are in respect to a subject head of power (as contrasted to those
with respect to a purposive head of power, e.g. defence, nationhood).
They are characterised via the sufficient connection test.
The Race Power
S 51.
The Parliament shall, subject to this Constitution have power to make laws for the peace,
order, and good government of the Commonwealth with respect to:
Sub S (xxvi) the people of any race for, whom it is deemed necessary to make special laws.
Koowarta
This case was regarding the validity of the racial discrimination act. It was held not to be valid under this
head of power (but valid under external affairs) since there was a requirement that a law made under
this head of power be:


A special law
Specific to a certain race
Tasmanian Dams
A race is:


A group of people with common history/ancestry/culture/religion/physical similarities (Brennan)
All of the people that make up the identity of a race (Dean)
A special law is:

Special in its operation, not necessarily its terms (Brennan)
Western Australia v Commonwealth
Even when it confers a benefit generally, if it confers particular benefit to a particular race, it is within
the power.
Kartinyeri
Gaudron J discussed that the race power is only valid where there is a relevant difference between
races: covers positive and negative legislation
Gaudron J: it would not be appropriate or adapted for a negative law to be put in place regarding
aborigines
Kirby J: s51(xxvi) is ambiguous, and should thus be interpreted in the light of Australia’s international
treaty obligations/international law, and, thus, that negative racial laws should not be allowed.
Trade and Commerce Power
S 51.
The Parliament shall, subject to this Constitution have power to make laws for the peace,
order, and good government of the Commonwealth with respect to:
Sub S (i)
Trade and commerce with other countries, and among the states
This power is construed broadly.
This power may be used to create government trading enterprises (Australian National Airways Pty Ltd v
The Commonwealth)
Definition of Trade and Commerce
The words “trade” and “commerce” are given their popular meanings (W&A McArthur Ltd v
Queensland)
This is defined broadly, including:



navigation, shipping and rail assets of the state (s98)
intangibles (Bank of NSW v Commonwealth)
goods in preparation for trade (Granall v Marrickville Margarine; Beal v Marrickville Margarine)
Required to be interstate or overseas
Any export regulation falls within this scope (Murphyores v Commonwealth – export subject to
environment)
Intrastate trade
There is no direct power here to support intrastate trade regulations (R v Burgess; Ex Parte Henry;
Airlines of NSW v the State of NSW & Anor (No 2))
However, intrastate trade may be allowed where:



it is inseparably connected to interstate trade and commerce (Menzies in Redfern v Dunlop
Rubber)
it can be as distant so as to satisfy that it is “not too remote … that there is no real relationship”
(Windeyer in Redfern v Dunlop Rubber)
it it intrinsically economically connected with interstate trade (Minister for Justice (Ex rel Ansett)
v Australian National Airlines Commission)
Trade and
commerce with
other countries, and
among the states
S51(i)
S51(i)
Trade and Commerce
Does the activity
regulated fall within the
definition of trade and
commerce?
Yes
No
Principle of
harmonious
interpretation (trade
in 51(i) = trade in
51(xx), 92, etc.)
The words trade and
commerce are given
their popular
meanings
Transport for
reward is part of
trade/commerce
S98
W&A
McArthur Ltd
v
Queensland
W&A
McArthur Ltd
v
Queensland
The Gov’t may
authorise the
creation of a
government trading
enterprise
Australian
National Airways
Pty Ltd v The
Commonwealth
This power covers
tangible and
intangible goods
Bank of New
South Wales v
Commonwealth
Regulation of
production may be
incidental to trade/
commerce
Granall v
Marrickville
Margarine Pty
Ltd .
This power allows
the government to
ban/regulate
import/exports
Murphyores Inc
Pty Ltd v The
Commonwealth
This power does not
expressly allow the
C’th to regulate
intrastate trade/
commerce
R v Burgess; Ex
Parte Henry
Does the legislation fall
within the scope of the
trade and commerce
power?
No
But: intrastate trade
may be regulated
where it is
ineseperably
connected with
interstate trade
The relationship
must be not so
remote that it is no
longer real
Redfern v
Dunlop Rubber
Australia Pty Ltd
But: the distinction
between intra and
interstate trade
must be maintained
The implied
incidental power
may not be used to
erode this difference
Minister for
Justice (Ex rel
Ansett Transport
v Australian
National Airlines
Commission
Yes
The law is invalid
The law is validly
characterised as a law
with respect to trade and
commerce
Corporations Power
S 51.
The Parliament shall, subject to this Constitution have power to make laws for the peace,
order, and good government of the Commonwealth with respect to:
Sub S (xx)
foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth
Constitutional Corporations
Foreign Corporations:

Outside of Australia (ownership) (R v Judges of the Federal Court of Australia Ex Parte Western
Australian National Football League) (NSW v the Commonwealth (the Incorporation Case))
Trading Corporations

Trading defined in the modern sense (Actors and Announcers Equity Association v Fontana Films
Pty Ltd)
Financial Corporations

Again, in the modern sense (Re Ku Ring Gai Cooperative Building Society (No 2)) (State
Superannuation Board v Trade Practices Commission)
Whether a corporation is within one of these categories may be inferred by its actual activities or stated
intensions (R v Trade Practices Tribunal; Ex Parte St George St Council).
These activities need not be a predominant part of the business (R v Judges of the Federal Court of
Australia Ex Parte Western Australian National Football League) (State Superannuation Board v Trade
Practices Commission)
If the company does nothing (e.g. a “shelf company”), its intended activities define it (Fencott v Muller).
Power to incorporate
The government has no express right to incorporate under this power (NSW v The Commonwealth (The
Incorporation Case) but it may do so incidental to other powers (Strickland v Rocla Concrete Pipes Ltd).
Scope
Traditionally, narrow (Huddart, Parker & Co Pty Ltd v Moorehead); then broader, regulating the Trading
and Financial activities of Trading and Financial organisations (Strickland v Rocla Concrete Pipes Ltd; R v
The Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd). Then allowing regulation
of “persons who harm the interests” of constitutional corporations (Actors and Announcers Equity
Association v Fontana Films Pty Ltd). Then, allowing the regulation of any external activity of a
consititutional corporation (Strickland v Rocla Concrete Pipes) (Commonwealth v Tasmania (the
Tasmanian Dam case)).
Now, very broad, allowing for the regulation, even, of internal issues (Workchoices). Kirby J, in minority,
spoke of the necessity to maintain federal balance with this power, in light of the interstate industrial
dispute power.
Implied Incidental Power
So long as there is a reasonable connection between a law’s direct legal operation and some matter
directly within section 51(xx) of the Constitution, the law will be one with respect to the subject
matter of section 51(xx) of the Constitution – Fencott v Muller
foreign corporations,
and trading or financial
corporations formed
within the limits of the
Commonwealth
S51(xx)
Corporations
Is the corporation a
trading, financial or
foreign corporation?
What is a trading,
foreign or financial
corporation?
Trade is defined by
its popular meaning.
Buying an selling is
central to trade
No
(Adamson’s
case)
R v TPT, ex
parte St
George
Council
Financial
corporations deal
with “money
dealings”
Re Ku-RingGai CoOperative
Building
Society
Or deal with finance
for commercial
purposes (e.g. loans,
hire/purchase,
credit)
State
Superannuati
on Board v
TPC
Yes
How do you define
the type of
corporation?
Is the legislation within
the scope of ss(xx)?
This power extends
to
Foreign corporations
are incorporated
outside of Australia
(Adamson’s
case)
The favored test is
the activities test,
note, the activity
does not have to be
the main business
activity
(Adamson’s
case)
Otherwise, the
purpose test is used
(e.g. for shelf
companies)
Fencott v
Muller
the regulation of the
activities, functions,
relationships and
the business of a
corporation
Gaudron J in
Re Pacific
Coal
the creation of
rights, and privileges
… the imposition of
obligations
Confirmed in
Workchoices
the regulation of the
conduct of those
through whom it
acts, its employees
and shareholders
No
Yes
the regulation of
those whose
conduct is or is
capable of affecting
This power does not
extend to
The law is invalid
The law is validly
characterised as a law
with respect to
constitutional
corporations
Incorporate or
control
incorporation
Incorporatio
ns Case
State
Superannuati
on Board v
TPC
Purposive Powers
Use the reasonably appropriate and adapted test.
Nationhood
S 61
The executive power of the Commonwealth is vested in the Queen and is exercisable by
the Governor-General as the Queen’s representative, and extends to the execution and
maintenance of this Constitution, and of the laws of the Commonwealth
S 51
The Parliament shall, subject to this Constitution, have power to make laws…with
respect to:
Sub s xxxix
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
Nationhood power is the Power of the Commonwealth (specifically, the executive) to make laws based
on Commonwealth as a nation.




The nationhood power is used for the advancement of the nation.
o Brennan J in Davis v Commonwealth (1988): ‘it extends to the advancement of the
nation whereby its strength is fostered’.
This was first promoted in Victoria v The Commonwealth and Hayden (1975) by Mason J:
o ‘there is to be deduced from the existence and character of the Commonwealth as a
national government and from the presence of ss 51(xxxix) and 61 a capacity to engage
in enterprises and activities peculiarly adapted to the government of a nation and which
cannot otherwise be carried on for the benefit of the nation’.
This scope of the nationhood power was confirmed in Pape v Commonwealth (2009); however
the court unanimously stated that the power has to be limited by the principles of Federalism.
o French CJ: ‘It has to be capable of serving the proper purposes of a national government.
On the other hand, the exigencies of “national government” cannot be invoked to set
aside the distribution of powers between the Commonwealth and the States and
between the three branches of government for which this Constitution provides, nor to
abrogate constitutional prohibitions’.
At present, not enough case law to determine detailed criteria, however “as cases are decided,
perhaps precise tests will be developed”: Davis v The Commonwealth (1988).
Must be peculiarly adapted to the federal government (e.g. it shouldn’t be more appropriate for the
state to enact the legislation) (Pape).
This has to be balanced with federalism (Pape)
Heydon, in Pape, said nationhood does not exist
External Affairs
Parts of external affairs are purposive, and parts are subject matter.
S51
The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to:
Sub S (xxix) External affairs
This gives the commonwealth the power to:




Legislate on matters/affairs which are physically external to Australia (a this is a non-purposive
power)
Legislate re Australian relationships with other nation states (this is a purposive power)
Change Australian law so as to address matters of an international concern (this is a purposive
power)
Change domestic law so as to implement international agreements/treaties that Aust is a party
to (this is a purposive power)
Physically external
This is a non-purposive power.
The commonwealth may legislate on persons, places, matters or things physically external to Australia
(the Seas and Submerged Lands Case).
e.g. War crimes and retrospectivity (Polyhukovich v The Commonwealth)
International Relations/relationships with other countries
e.g. illegalising the “excitement of disaffection” against allies (R v Sharkey)
NB: international law flavours legislative interpretation when there is uncertainty as to its meaning
(Teoh v Minister for Immigration)
This may be extended to constitutional interpretation (Newcrest Mining (WA) Limited v The
Commonwealth per Kirby)
Matters of international concern
May be legislated on (Tasmanian Dams)
Treaties/external affairs
?Requirement for note of treaty in legislation?
The executive has sole power over external affairs, which can be legislated via the incidental power
(Barton v Commonwealth; Tasmanian Dams), including treaties, customary international law, etc.
Is purposive (reasonably and appropriately adapted) (Commonwealth v Tasmania; Victoria v
Commonwealth)
The treaty




A treaty requires drafting, signing, ratification and legislating into Australian law. Ratification is
an executive act, not a legislative one.
Treaties need to be executed into law (Victoria v Commonwealth)
They can be about anything (R v Burgess; Ex Parte Henry) (Koowarta) (Tasmanian Dams)
Need not be lawful (Horta v Commonwealth)
Implementation of the treaty (i.e. legislating)

Domestic law must conform to the treaty
o Includes power to legislate incidentally to the treaty (R v Burgess; Ex Parte Henry)
o Adherence need not be meticulous, as long as the purpose of the treaty is effected (R v
Poole; Ex Parte Henry)
Limitation

A treaty may not be signed as a “sham or circuitous device to attract legislative power”
(Koowarta, R v Burgess; Ex parte Henry, Horta v Commonwealth)
S51(xxix)
External Affairs
Is the subject matter of
the law physically external
to Australia?
External affairs
Non-Purposive
Power
Polyhukovich
v The
Commonwea
lth
the Seas and
Submerged
Lands Case
no
Is it a law that affects
international relations?
E.g. no
badmouthing allies
R v Sharkey
Is it a law that deals with
“matters of international
concern”
E.g. international
environment
Tasmanian
Dams
Is the law effecting a
treaty?
Executive signs
treaties
Barton v C’th
Treaty is not
automatically
executed (i.e. it
must be legislated)
Victoria v
C’th
Treaty need not be
legal and can be
about anything
Horta v C’th
Legislation must
conform with the
law (can be
incidental)
R v Burgess;
Ex Parte
Henry
Adherence need not
be meticulous, as
long as it effects the
purpose of the
treaty
R v Poole; Ex
Parte Henry
The treaty may not
be signed as a ruse
to obtain power
Koowarta
no
yes
No
The law is invalid
The law is validly
characterised as a
law with respect to
external affairs
Tasmanian
Dams
R v Burgess;
Ex Parte
Henry
Horta v C’th
Grants Power
S96
During a period of ten years after the establishment of the Commonwealth and
thereafter until the Parliament otherwise provides, the Parliament may grant financial
assistance to any State on such terms and conditions as Parliament thinks fit.
This is not limited, but advised by ss 99, 51(ii) [taxation], 51(iii) [excises] (DCT NSW v Moran)
It cannot be used discriminatorily (Moran v DCT)
They are allowed to be conditional (the First Uniform Tax Case)
It does not make laws, only allows for grants (Melbourne Corporation)
The conditions may be enforced (Tax 2) but state acceptance of a grant cannot enforced (i.e. this is not a
coercive power) (Tax 2)
Fine for schools (e.g. outside scope of religion, because didn’t enforce a religion) (DOGS)
S52 – regarding commonwealth land
S52
The Parliament shall, subject to this Constitution, have exclusive power to make laws for
the peace, order, and good government of the Commonwealth with respect to:
(i)
the seat of government of the Commonwealth, and all places acquired
by the Commonwealth for public purposes;
(ii)
matters relating to any department of the public service the control of
which is by this Constitution transferred to the Executive Government
of the Commonwealth;
(iii)
other matters declared by this Constitution to be within the exclusive
power of the Parliament.
The Territories Power








s 122
Government of territories 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
terms which it thinks fit.
S111
States may surrender territory The Parliament of a State may surrender any part of the
State to the Commonwealth; and upon such surrender, and the acceptance thereof by
the Commonwealth, such part of the State shall become subject to the exclusive
jurisdiction of the Commonwealth.
This allows the government to make a territory (Capital Duplicators Pty Ltd v Australian Capital
Territory) and a legislature for that territory, which has plenary power (Berwick Ltd v Gray)
Commonwealth may deny any legislation within 6 months
Commonwealth may legislate over the state (paramount laws)
The commonwealth has plenary power (not subject to the constitution like the powers under
s51) (Spratt v Hermes) … it is unqualified (Teori Tau v Commonwealth)
If a an act allows self government, Tau is overruled (e.g. NT and ACT in their respective “selfgovernment” acts)
The Territories power may be limited so that the constitution remains whole (Capital
Duplicators) and is limited by political communications (Lange v ABC)
Freedom of interstate trade applies to territories (self government acts)
Territorial courts aren’t an exercise of the judicial power of the commonwealth, and thus aren’t
chapter 3 courts, but are subject to the Kable doctrine.
The States
NSW may make a law about anything as long as it goes to “peace order and good government” s5 NSW
Const (plenary).
Originally, neither state nor commonwealth could legislate to affect one another (Re Tracy; Ex Parte
Ryan). Further, the reserve powers doctrine meant to preserve residual state power (s107, R v Barger).
Both of these principles were overturned in the Engineer’s Case (and Fairfax v Commr of Taxation).
The state and the commonwealth are still limited as to their dealings with one another via the
Melbourne Corporation Principle, whereby neither party may obstruct the other from exercising their
powers nor interfere with their operation.
Commonwealth laws affecting the state
A commonwealth law may legislate on the states unless (QEC v Commonwealth)

It discriminates against the states or places special disabilities on them
o Unless that discrimination places the states on equal footing (Mason J in QEC v
Commonwealth)
o Determined by looking at the substance of the law (Re Australian Education Union; Ex
parte Victoria)
Discrimination is not proved if the law only has greater practical effect on one state (WA v
Commonwealth)
A Commonwealth Act of general application that operates to destroy or curtail continued
existence of the States or their capacity to function as governments’ is invalid.
o The Commonwealth law has to directly effect the existence of a state power (WA v
Commonwealth)
o A Commonwealth law cannot take people, money, etc. which the state requires off the
state (WA v Commonwealth)
o

State laws affecting the commonwealth
The commonwealth is basically immune to state legislation if the immunity is incidental to a head of
power (s109); that is, unless:


The law is administrative (Dixon J, dissenting in Uther v FCT, confirmed in Commonwealth v
Cigamatic)
S80 of the judiciary act applies
Note, the state may make a law that has extra-territorial application s2(1) Australia Act (Pearce v
Florenca)
Inconsistency of laws
S 109
Inconsistency of laws. 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.
Basically, the Commonwealth law prevails if there is an inconsistency. Where the head of power is
concurrent, the commonwealth law will override the state law if it is valid and there is an inconsistency
(s109). Where the head of power discussed is an exclusive power (e.g. currency, defense, s52 (seat of
Government), acquisition of property on just terms), only the commonwealth may legislate (and it is
immune in those areas) (Worthing v Rowell and Muston Pty Ltd).
Law, here, describes statute only (Engineers, Felton v Milligan), there are exceptions:
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Industrial awards (ex Parte McLean)
Court rules (Flaherty v Girgis)
A law with respect to a territory may override state law (Lamshed v Lake), but not a law of the
territories (NT v GPAO)
The constitution is not a s109 law (Re Colina)
Administrative decisions are not law (Airlines of NSW v NSW)
Where there is a direct or indirect inconsistency, the state law is invalid to that extent:
NB: different punishments for the same crime is not enough to establish inconsistency (McWater v Day),
but in Hume v Palmer, this was contradicted. McWater v Day is Authority.
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There is a direct inconsistency if:
o “one law requires what the other forbids” (Telstra Corp v Worthing)
o Or if both laws cannot be obeyed simultaneously
One law takes away rights given by another (or vice versa) (Mabo v Q’land) (WA v
Commonwealth)
There is an indirect inconsistency if the commonwealth wants to “cover the field”
o “If a competent legislature expressly or impliedly evinces its intention to cover the whole
field, that is a conclusive test of inconsistency where another legislature assumes to
enter to any extent upon the same field…” (Clyde Engineering v Cowborn)
o There may be an express intention to cover the field (R v Credit Tribunal; Ex parte
General Motors Acceptance Corporation)
o Or an implied one (Clyde Engineering)
 Take into account wording and level of detail (Wenn v Attorney General)
 The breadth of the legislation (ABC v Industrial Court of South Australia)
 Whether the subject matter is a federal or state one (R v Lowenthal; Ex Parte
Black)
Implied Incidental Power
S51(xxxix)
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
Every head of power includes
Every power and every control the denial of which would render the grant ineffective
D’Emden v. Pedder (1904)
every legislative power carries with it the authority to legislate in relation to acts, matters and things
the control of which is found necessary to effectuate its main purpose, and thus carries with it power
to make laws governing or affecting many matters that are incidental or ancillary to the subject
matter
Granall v Marrickville Margarine Pty Ltd (1955)
Chapter 3 Courts and the Separation of power
Does the Commonwealth Act create a Court?
a) Is it constituted in accordance with Chapter III?
 Only Chap III courts can exercise Chap III powers: New South Wales v Commonwealth
(the Wheat case) (1915).
 s 71: The judicial power of the Commonwealth shall be vested in a Federal Supreme
Court, to be called the High Court of Australia, and in such other federal courts as the
Parliament creates, and in such other courts as it invests with federal jurisdiction. The
High Court shall consist of a Chief Justice, and so many other Justices, not less than two,
as Parliament prescribes.
 s 79: Number of judges: The federal jurisdiction of any court may be exercised by such
number of judges as the Parliament prescribes.
 s 72: Judges Appointment, Tenure and Remuneration
o The Justices of the High Court and of the other courts created by the Parliament
i. Shall be appointed by the Governor-General in Council:
ii. Shall not be removed except by the Governor-General in Council… on the
ground of proved misbehaviour or incapacity:
iii. Sub-section provides for:
i. Fixed remuneration;
ii. Appointment of tenure until aged 70;
iii. Cannot become a judge once aged 70.
b)
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Is it exercising the judicial power of the Commonwealth?
s 75: establishes jurisdiction of the High Court;
s 76: establishes additional jurisdiction of the High Court;
s 77: establishes the power of Parliament to define the jurisdictions of courts.
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Definition of Judicial Power:
o It has never been possible to frame a definition of judicial power that at once exclusive
and exhaustive: R v Davison (1954).
o However, one starting point for the determination of the meaning of the phrase ‘judicial
power’ is to consider what powers were in the minds of the lawyers of the Constitution
at the time — that is, the connotation of the words at the time of Federation: see
Attorney-General for New South Wales v Brewery Employees Union of New South Wales
(the Union Label case) (1908) 6 CLR 469.
o Three historical judicial powers are:
 Judicial review;
 Determine criminal guilt; and
 Make binding and enforceable decision (involving legal rights).
o The historical approach to ‘judicial power’ was taken in R v Davison (1954).
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The power to determine criminal guilt is an exclusive power of courts: Chu Kheng Lim v
Minister for Immigration (1992); Waterside Workers’ Federation of Australia v J W Alexander Ltd
(1918).
o The judicial power of the Commonwealth is infringed by legislation which purports to
remove the power of a Chapter III Court to make a determination of criminal guilt
before incarceration: Polyukhovich v The Queen (1991).
o The Parliament can change statutory rights at issue in pending litigation: Polyukhovich v
Commonwealth (1991).
o Re Tracey; ex parte Ryan (1989): military tribunals can punish for breach of military
discipline (see above).
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Binding, Authoritative and Conclusive Decisions
o The word ‘binding’ refers to the enforceability of a decision. The principle that only a
Court exercising judicial power can make a legally enforceable decision was reconfirmed
in Brandy v Human Rights and Equal Opportunity Commission (1995).
o Authoritative means conclusive. Only a court can make a conclusive determination of
law: Luton v Lessels [2000].
o While the power of enforcement is exclusive to Courts, the power to make conclusive
determinations of legal rights does not preclude non-Chapter III bodies from making
decisions that affect legal rights, or even from making decisions based on their opinion
as to the applicability of laws to facts. However any legislative scheme which enables
non-Chapter III bodies to determine legal rights must not give the body a power to make
conclusive decisions — that is, a decision from which no appeal lies: Shell Company of
Australia Ltd v Federal Commissioner of Taxation (1930).
Does the Cth. Act create a tribunal that is not a Chapter III court?
a) Is it exercising judicial power of the Commonwealth?
 See above.
b) Are the members of the tribunal Chapter III judges?
 On facts.
c) Are the judges acting in their personal capacity or their judicial capacity?
 Persona Designata Rule:
o Federal judges may occupy non-judicial posts if they do so as ‘designated persons’ not
as members of their court: Hilton v Wells (1984).
 You must look at nature of power conferred; if it is judicial than the judge is
exercising judicial capacity, if it is administrative than the judge is acting in their
personal capacity.
 Another test is whether in undertaking their duties being a judge is part of
those duties, or whether it is a qualification of them.
 The majority in Grollo v Palmer (1995) affirmed Hilton v Wells (1984).
o Boilermakers was reiterated: judges cannot undertake non-judicial roles that would
jeopardise their roles as individual judges or as part of the judiciary. However, if the
o
persona designata rule applies, it was trusted that a judge would step aside if the case
came before them.
Brennan CJ, Deane, Dawson and Toohey JJ stated that there are two elements to the
persona designata rule:
 The judge must consent to the conferral of non judicial power; and
 The persona designata function cannot be incompatible with the judges
performance of their Chap III powers, or powers that would interfere with the
judiciary’s function as an institution [at 364-5].
Does the State Act create a court?
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States are not subject to any separation of powers: BLF v Minister of Industrial Relations (1986).
o However, States may not act in a way that is repugnant to the judicial power of the
Commonwealth: Kable v DPP (NSW) (1996).
 Note: this has only been applied once (in Kable). Importantly in Kable:
 The Supreme Court was exercising Federal jurisdiction; and
 The legislation in question specifically targeted one person.
Chapter 3 Courts
Does the
Commonwealth act
create a court?
Is constituted in
accordance with
Chapter 3?
Yes
Judges must have
tenure
s72
Judges may not be
removed
Yes
No
Judges must have
fixed remuneration
No
Is it exercising the
Judicial Power of the
Commonwealth?
No
Chu King Lim
v Minister for
Immigration
The power to make
Binding,
Authoritative and
Conclusive decisions
Brandy v
Human
Rights and
Equal
Opportunity
Commission
Yes
Invalid
Does the c’th act
create a tribunal that
is not a Ch3 court?
The power to
determine
innocence or guilt
Valid
Is it exercising the
judicial power of the
commonwealth?
Yes
Yes
No
Are the members of
the tribunal Ch3
judges?
Yes
No
Are the judges acting
in their personal
capacity or as
judges?
Personal Capacity
Judicial capacity
Are the judges acting
in persona designata
acting in a manner
incompatible to
being a judge?
Invalid
Grollo v
Palmer
Valid
Lutton v
Lessels
Rights and Freedoms
All minor rights and freedoms, see lecture slides.
Freedom of religion
S116
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.
What is a religion?
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belief in a supernatural Being
the acceptance of canons of conduct in order to give effect to that belief (the Scientology Case,
Mason and Brennan)
Murphy gave a broader view
The commonwealth cannot establish a religion as a state religion (DOGS)
The commonwealth shall allow the free exercise of religion
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A religious person isn’t obligated to vote
But may be obligated to serve in the military (i.e. it depends on seriousness of duty) (Judd v
McKeon)
Acquisition of property on just terms
S51(xxxi)
the acquisition of property on just terms from any State or person for any purpose in
respect of which the Parliament has power to make laws;
What is property?
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The HC has given a broad construction to the word ‘property’.
o property refers to “any interest in any property” and was not limited (Minister of State
for the Army v Dalziel)
o Therefore, property could include full title and ownership, possession, both real and
personal property and tangible or intangible property.
What is acquisition?
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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 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 (Bank of NSW)
refusing renewal of a lease is not acquisition (TPA v Tooth)
includes refusing a cause of action (Georgiadis)
What are just terms?
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Market Value (PJ Magennis)
Implied Freedom of political Communication
HC through the 1990’s developed a principle that because s7, 24 and 128 create a system of
representative government, there was implicit within the Constitution a freedom to communicate on
matters of political and governmental concern (Nationwide News; ACTV; Theophanous; Stephens). In
Davis v Cth Brennan J stated that “minorities are thus entitled to freedom in the peaceful expression of
dissident views.”
There is an implied right to political communication.
This is derived from the right to vote and responsible government (McGinty, Langer) in Lange v ABC this
was discounted, with representative government seen as fluid.
Test is from Lange, modified by Coleman v Power
1. Does the law effectively burden freedom of communication about government or political
matters either in its terms, operation or effect?
2. Is the law reasonably appropriate and adapted to serve a legitimate end?
This applies to defamation (Robert v Bass)
In Levy v Vic McHugh J held hat “the constitutional implication does more than protect rational
argument and peaceful conduct that conveys political or governmental messages. It protects false,
unreasoned and emotional communications.” However, in this case the law was proportionate to the
public safety and hence the plaintiff was unsuccessful. In Robert v Bass, the court reiterated the position
in Lange that the constitutional freedom confers no right on individuals but invalidates any statutory
rule that is inconsistent with the freedom.
Implied Right to Due Process, Fair Trial & Equality
Ch III courts must exercise their functions in accordance with principles of natural justice, that is, a
person must be given a fair trial and a hearing that is free from vice (Wilson v Minister for Aboriginal &
Torres Strait Islander Affairs). In Leeth v Cth, Gaudron J held that it was “an essential feature of judicial
power that it should be exercised in accordance with the judicial process.” Consequently, there is an
implied constitutional right to a fair trial. In Dietrich v The Queen the court held that it would be a
miscarriage of justice if an accused person, charged with a serious criminal offence and unable to afford
legal representation, was refused adjournment until representation was available.
Publicity is to be seen as the authentic hallmark of the judicial process, that is, judicial power should be
under public scrutiny (McPherson v McPherson; approved by Gibbs J in Russell v Russell). While there
will be exceptions (e.g. family matters where children are involved, sexual assault offences etc) it is very
difficult for a government to justify imposing a blanket ban on an open court. It would most likely be
found to be inconsistent with the exercise of judicial power to have all matters of a particular court
behind closed doors.
The extent of an implied constitutional right of equality is limited. In Leeth v Cth Mason CJ, Dawson and
McHugh held that there is no general requirement contained in the Constitution that the common law
should have a unified approach. Although Deane and Toohey JJ dissented, claiming the laws were
discriminatory and unconstitutional, the majority held that while there may be an implied right of
equality to be treated the same that does not extend to issues such as the different procedural laws that
are put in place by the State.
This has been extended to include a potential right of freedom of association and travel (Gaudron in
minority in Kruger v Commonwealth), though it hasn’t gained momentum