Monash Law Students’ Society
!
STUDENT TUTORIAL
PROGRAM 2015
Constitutional Law
SKETCH NOTES
!
!
!
DISCLAIMER – PLEASE READ BEFORE CONSULTING THESE
NOTES
!
1. The following SketchNotes have been prepared and provided by a law student
as a skeleton or sketch of the course material for this unit;
!
2. It is the responsibility of users to make note of any changes to course content;
!
3. SketchNotes may exclude some topics, cases and legislation and may therefore
be inconsistent with current Faculty of Law course content or recent
developments in the law;
!
4. Neither the Law Students' Society nor its sponsors endorse or take responsibility
for the quality or accuracy of these SketchNotes;
!
5. SketchNotes should not be solely relied upon;
!
6. SketchNotes are to provide users with a basis from which they can create
individual and extensive notes for their own assessments;
!
7. SketchNotes are not to be replicated, either in part or in full, during Faculty of
Law assessments for this unit;
!
8. SketchNotes are designed to be used as a teaching aid in the Student Tutorial
Program;
!
9. For copyright reasons, SketchNotes are not to be printed or altered by users;
!
10.It is against the Monash Law Students' Society's policy to provide further
materials to law students in relation to course content for this subject. Student
may not make any such request to the Monash Law Students' Society or it its
student tutors;
!
11.It is against the Monash Law Students’ Society’s policy for students to contact
tutors directly via email. Any requests for further assistance outside of tutorials
must be made to Pearl Jin at tutorials@monashlss.com. Questions regarding
course content should be made to the relevant Faculty lecturers or tutors;
!
12.The aim of the Student Tutorial Program is to facilitate collaborative learning
!
!
!
and increase student exposure to practice problems. It's role is not to
substitute Faculty teaching or provide a way for students to pass assessments
without engaging in course content;
13.If you have any questions, please do not hesitate to contact Pearl Jin at
tutorials@monashlss.com
!
INFORMATION FOR STUDENT USE
NAME: Cameron Royse
SUBJECT: Constitutional Law (LAW3201)
STUDIED: Semester 2, 2013
LECTURER: Ronli Sifris
Topics included in the Semester 1, 2014 Reading Guide which are not referred to in these
notes:
Introduction to constitutional law.
Cases included in the Semester 1, 2015 Reading Guide which are not referred to in these notes:
McCawley v R [1920]
R v Barger (1908)
Re Australian Education Union; ex parte Victoria (1995)
R v Wakim; ex parte McNally (1999)
Betfair v Western Australia (2008)
Wotton v Queensland (2012)
Unions NSW v New South Wales [2013]
Commonwealth v Australian Capital Territory [2013]
!
!
!
!
!
!
!
STATE PLENARY LEG POWER : GENERAL
• Vic has plenary legislative power (s 2(1) AA; Union Steamship), so it can prima
facie pass any law it wants(s 16 Vic Consti).
• However, a law may be found invalid on the basis of:
• ET;
• Vic Charter;
• Manner & Form;
• SJP;
• IGIs;
• IFPC; or
• s 92.
!
STATE PLENARY LEG POWER : ET
!
Vic Pt prima facie has the power to make ET laws 2(1) AA.
!
(1) ET law?
• An ET law is a law that purports to be effective outside the boarders of Aus.
!
(2) Effective ET law?
• Union Steamship: for validity there must be a nexus b/n operation of the
law and Vic, but that the threshold is low.
• “Even a remote and general connection” between the subject
matter and the legislation will suffice.
• compare Union Steamship: NSW ship - law dealt with ship anywhere in world.
Sufficient nexus.
• POLICY: Kirby J Mobil Oil v Vic limit on extraterretoriality is where conflict arises
b/n jurisdictions of states.
!
!
STATE PLENARY LEG POWER : CHRR
!
(1) How does CHRR apply to Lx?
• Exec must make statement of compatibility when making laws (s28 CHRR)
• Judiciary can make declarations of inconsistency under s36 CHRR which requires
response from a minister s37 CHRR
!
STATE PLENARY LEG POWER : RPs
!
• Previous Govts can impose active restrictions on the current parliament through
restrictive procedures (RPs) (s 6 AA).
• A RP is a procedure which purports to modify the procedure required by govt to
pass a law
!
!
!
• Exam: If L1 contains a RP, failure to comply may make L2 unenforceable.
!
(1) Does L1 contain a valid MF provision which restircts L2?
• Exam: What is restrictive? Look to wording of provisions.
• Must not be an abdication of of Pts power; this is a matter of degree and depends
of the nature of the law in question: West Lakes King CJ: look at:
• the extent of the RP
• the importance of the subject matter being protected. West Lakes King CJ
• (NB test in West Lakes King CJ - whilst only applied for special maj RP in
that case, always argue that should apply to all RPs)
!
!
(1.1) Examples of acceptable/unacceptable RPs
• Acceptable:
• Absolute Maj: absolute maj of both houses is not an abdication of power
where the content of the law is something as fundamental as electoral
distribution rules.
• Special maj: higher special maj are acceptable where the matter is of
fundamental importance
• Referenda: Trethowan -referenda OK because maintain the rep nature of govt
by giving decision making to ppl.
• NB this consistent with s128 fed consti.
• Unacceptable:
• Extra parliamentary bodies:
• grey are might arise where the extra parliamentary body is non
representative or representative? e.g. POLICY should approval from local
council = representative body? c.f. company West Lakes.
• K restrictions: gvt not competent to fetter future exec’ action with K: The
Amphirite; see also West Lakes
!
(2) Does MF provision L2 come within the scope of L1’s RP?
!
(3) Is L1 doubly entrenched
• Unless L1 itself subject to RP it will simply be repealed by L2 as far as it is
consistent Trethowan
• Is the s subject to RP?? Look to wording.
!
(4) Does L2 deal with CPP of Pt?
• only RP which restrict law making with respect to consti, powers or procedure
allowed: s6 AA
!
(4.1) Of the Pt?
• Must concern pt not other arms of power (i.e. judiciary/exec)
!
(4.2) Constitution?
• must relate to Pt’s nature and composition (Dixon J Trethowan)
!
!
!
• E.g.
• Changing bi-->unicameral pt Trethowan; Taylor
• Features that give pt rep character Marquet
• Electoral boundaries and distribution Marquet
• Changing the voting system Marquet
(4.3) Powers?
• No definitive HCA authority on ‘powers’ in this context. One plausible meaning:
power means L2 must ‘deal with its own leg authority’ Threthowan
• i.e. L2 doesn’t have to relate to all powers but must relate to some
restriction/expansion of law making power. See Dixon J in Trethowan
!
(4.4) Procedure?
• Pt’s own conduct and internal procedure (Trethowan)
• e.g. form laws (sitting requirement/ rules on how to conduct pt/requiring
express c.f. implied repeal etc.) or changing maj requirements. West Lakes
!
!
CHARACTERISATION OF CTH POWER: GENERAL
!
• The Cth has limited powers which are enumerated in the federal consti (c.f. state
which is plenary). Thus a law will not be valid unless it is with respect to a Cth
head of power.
• The Cth will seek to rely on (EA/Corp/Grants/HoP) to support validity Lx. P will
point to (IGIs/SOJP/IFPC/FITC) which may render Lx invalid.
!
(1) Characterisation generally
• After Federation, the HCA initially upheld a reserved state powers doctrine
limiting Commonwealth heads of power - R v Barger. However, from The
Engineer’s Case, that doctrine has been rejected.
• The court will not judge the merits of or the motives behind the law in question:
Murphyores; Australian Communist Party.
!
(1.1) Direct v Indirect characterisation
• Direct: In assessing validity, judges nowadays prefer to look at the direct effect
of the law and not its consequences or purpose, Kitto J in Fairfax; Murphyores.
Hence the characterisation of a law will be determined by the nature of the
obligation, right or privilege the law regulates, changes or abolishes.
• Indirect: As long as part of the law falls within/is ‘reasonably connected to’ a
HoP, then dual characterisation of the law is permissible. Fairfax
!
(1.2) Purposive v non purposive
• Purposive v non-purposive: a hop that has a specific power e.g. s51(vi) defence.
• NB tax is not a purposive hop.
!
!
!
(1.3) Which test to follow? The following tests are applied depending on the
above:
• Direct + non purp --> Direct Legal Operation/Sufficient Connection test
• Incidental + non purp --> DLO/SC/(Proportionality?).
• Direct + incidental purp --> proportionality.
!
(1.4) Can the law be expressly/impliedly characterised as a law relating to
incidental exercise of cth power?
• If a law cannot be characterised as being ‘with regard to’ the heart of a HoP, it
may still be constitutionally valid through the incidental scope of the Cth’s
powers if it is ancillary or incidental to the express subject matter: s51(xxxix)
• Look at the law and ask whether matters incidental to the execution of Lx
‘directly affects’ HoP/’conducive to it/’reasonably necessary’ to effectuation of
HoP’s purpose. see also O’Sullivan v Noarlunga Meats per Fullagar J
• Alternative argument that can be made is that there is an implied authority
to pass Lx as Cth has authority to leg in relation to actsm matters and things
the control of which is found necessary to effectuate a HoP’s main purpose:
Grannal v Marrackveille Marg.
!
(2) Proportionality
• Per Dawson J in Leask v Cmth proportionality test is only for purposive powers.
However given the decision in Nationwide News it is most likely that a court will
apply the test to laws relating to the incidental scope of non-purposive powers.
• TEST: Can the law reasonably be regarded as appropriate and adapted to the
fulfillment of the Head of Power? Leask v Cth; see also Nationwide News
· Relevant only for purposive powers
· Disproportion is a ‘sub-test… that may prove helpful in determining
whether the subject matter of the impugned law is sufficiently
connected” to the HoP (McHugh J in Leask) see also Australian
Communist Party
· Irrelevant in characterising core aspects of non-purposive powers (Leask)
· Proportionality is only “one of several considerations that may be taken
into account in determining” incidental aspect of non-purposive powers
(Gaudron J in Leask)
!
CTH POWER: EXTERNAL AFFAIRS POWER s51(xxix)
!
Exam: For Lx to be valid it must be supported by a HoP. Cth may argue that act(lx)
is valid under the EA power s51(xxix) AA.
!
(1) Treaty Implication
• Cth may submit that Lx falls under EA power because it implements int’ treaty x.
• Prima facie Cth has prerogative power to ratify any int (treaty) under s61 (Tas
Dams) regardless of subject matter (Tas dams; Richardson).
!
(1.1) Bona fide?
!
!
• Cth can’t ratify a treaty that is merely designed to confer leg power beyond the
Cth’s enumerated grant (Brennan J Koowarta)
• Less likely to be bona fide where (Brennan J Koowarta):
• Evinces a desire to enter into sth usually covered by state jurisdiction
(prisons/schools/hospitals/roads).
• Enacted new law right after signing a treaty.
• There is an ongoing fed/state dispute re (e.g. hospital funding etc).
• More likely to be bona fide where: The subject matter of treatyx is an
important international issue.
• However note that:
• the principles of good faith are only a ‘frail sheild’ Gibbs CJ Koowarta; and
• POLICY Under the Fairfax approach to characterization, courts are unlikely to
look into the motives behind political decision making.
!
(1.2) Treaty Obligation?
• Only outright obligations under int’ treaties can be implemented into domestic
law Tas Dams per Gibbs CJ Brennan and Wilson JJ.
• However, obligation imposing language is not expected to have the same level of
precision as domestic laws: Tas Dams per Mason Deane and Murphy JJ; see also
Richardson per Wilson J.
!
(1.2.1) Treaty necessary?
• High court held in ILO Cth can leg with respect to lower-level international
documents where they directly refer to an existing treaty.
• This may also extend to recommendations made by subsidiary organisation etc
see: Tas Dam per Murphy J.
!
(1.2.2) Obligation necessary?
• Yet to be cofirmed, however it is questionable whether the need for an
obligation at all is no longer relevant as:
• Mere ‘recommendations’ were satisfactory to be implemented into domestic
law in ILO
• ILO follows the obiter of Mason Murphy Deane JJ in Tas Dams which cast
doubt onto whether there is need to have an obligation at all.
• However it is unclear whether the HC will follow this given the doubt cast by the
decision of Pape v COT of Taxation and the divided sphere of academic opinion.
!
(1.2.3) Incidental argument
• Even if a law is found to impose no obligation, if the law effects a purpose
incidental to an obligation under the treaty it may still be valid: Richardson
Mason CJ Brennan J
• Compare: law protecting forest sufficiently incidental to obligations
protecting currently listed world heritage sites Richardson.
!
(1.3) Sufficiently specific?
!
!
• The article of the treaty relied upon must pass the ‘specificity crieterion’ set out
by the HC in ILO. In assessing this, the courts look at:
• Broad language: does the treaty suggest steps required to carry out treaty?
• Wide discretion: are there many different ways to achieve a treaty?
• International consensus: is there an international consensus about how to
achieve x? if so less specificity required.
• NB - consensus can change with time e.g. AIDS.
• However, even if the article fails the specifity criterion, the limit imposed by the
test in ILO may not very strong on grounds of POLICY as
• International treaties are inherently vague see Tas Dams per Mason Deane and
Murphy JJ
• Where there is an easily identifiable subject matter to be addressed in a
treaty the fact that the language used is vague should not undermine this.
!
(1.4) Conformity of Lx with treaty?
• Given EA is purposive (ILO; Richardson), lawx must be R capable of being
appropriate and adapted to implementing the treaty: Deane J Tas Dams; ILO
maj.
• Lawx may not conform with treaty where:
• Law undermines purpose of treaty.
• Law proposes extremely harsh penalty
• Law impacts on fundamental human rights Richardson per Deane & Gourdron
JJ
• Compare impeding on the rights of freehold land owners Richardson
• However note that:
• It is not the court’s place to dictate the best way to implement a treaty - only
requirement is R implementation: Richardson
• in any case the obligations imposed by treaties are not the ‘outer limits’ of
the law given Cth can implement laws incidental to treaty obligations see
above Richardson Deane J.
!
(1.4.1) Partial/deficient implementation?
• As long as deficit in implementation of treaty is not so substantial as to deny the
law the character of the measure implementing the treaty, the law will remain
valid: ILO
!
(2) Matter of international concern?
• If Cth cannot leg’ on basis of treaty implementation, a law may still be valid if it
relates to a matter of ‘international concern’.
• Whilst the law surrounding what is an international concern is uncertain (see XYZ
per Heydon and Callinan JJ), Cth may rely on Murphy J in Tas Dam who indicated
that this limb alone is suff’ to support an exercise of the EA power.
!
(2.1) Int’ concern?
• Factors pointing toward sth being of international concern.
!
!
• Topic of international debate discussion and negotiation Koowarta per Mason
J
• Topic that may affect Aus’ relations with other nations. Poly per Stephen J
• Where there has been concern expressed by the world’s scientific community
Tas Dams Murphy J
• Burning international concern Tas Dams Gibbs CJ.
!
• Look at the prevalence of issue in the world at the moment e.g. writings
judgements etc as well as the no. of countries that have ratified the
treaty. Tas Dams Wilson J.
• Where there is widespread international support for the issue ILO.
• However, it should be noted that a maj has never relied on this limb alone to
satisfy the EA power see: XYZ per Heydon and Callinan JJ.
• ‘underdeveloped doctrine in Australia’ XYZ per Kirby J.
!
!
(3) Extraterritorial Laws
• Cth has power to leg’ on matters outside Aus’ boarders: s3 Statute of
Westminster.
!
(3.1) Outside boundary of Aus?
• Where acts/subject matter etc is beyond the territorial waters of Aus it is
external and will fall under the EA power: Poly; ILO; see also Seas and
Submerged Lands Case.
• Compare: War crimes in Eu during WWII Poly.
!
(3.2) Nexus requirement?
• Unlikely to be a nexus requirement anymore as:
• HC has held that s51(xxix) confers a plenary ET power on the Cth as the ‘word
external is precise and unqualified’ ILO; maj in Poly.
• Even if there were nexus requirement, the threshold is low as only a genuine
connection need be established Toohey J Poly; and
• compare: WWII war crimes in Europe had sufficient social/political
implications on Aus - nexus satisfied: Poly.
!
(4) Relations with other countries
• Laws relating to Aus’ relations with other (countries/int’ organisations) will most
likely also fall under this limb of the EA power Sharkey.
• Given Brennan J’s judgement in Koowarta - and the fact that Sharkey
concerned relations with other countries in the Commonwealth, it is most
likely that if this branch of EA power is accepted, that it would apply to Aus’
relations with int’ organisation as well as foreign countries.
!
(4.1) Connection to international relations?
!
!
• There will be a connection between a law and its relations with other countries
where:
• law relates to an important part of the management of the external affairs of
the Cth Sharkey Latham CJ
• POLICY: Zines - would also apply to laws that govern maintaining a hostile
relationship with another country.
• However there is an argument to be had that the question of int’ relations is
overly subjective XYZ per Callinan and Heydon JJ c.f. Kirby J and that it is not
the place of the court to make decisions about international relations.
!
(5) Conclusion
!
CTH POWER: CORPORATIONS POWER s51(xx)
Cth may argue that act(x) is valid under the Corps power s51(xxx) AA.
(1) Consti corp?
• Exam: The law must realte to consti corps (CC) and the corp in question must
also be a CC.
• A CC is a foreign, trading or financial corp.
!
(1.1) Foreign corp?
• Since .. is an entity formed under foreign law, it is a foreign corp
!
(1.2) Trading corp?
• Current test is the ‘current activities test’: is trading is a substantial or
significant porrtion of the corp’s activities which are trading in nature? Adamson
• Courts take the following into consideration:
• Trading a suff’ significant proportion of ...’s overall acttivies? Tas Dams
• Revenue-gaining activity will be seen as trading even if profit is not derived
Adamson Mason J
• Where trade not primary activity: activities will amount to trading even
where element of trade is ‘so slight and incidental’ to some other activity:
Adamson
• Question is one of degree: Mason J Adamoson
• compare :
• other activities parallel to trading souvenirs and tickets by West Perth FC:
Adamson;
• providing electricity alongside exercising semi-governmental powers: Tas
Dams.
!
(1.3) Financial corp?
• Similarly, in applying the current activities test: Adamson approved in State
Super Cth must show that financial activities are a substantial or significant
!
!
!
proportion of the corp’s activities which are trading in nature. Adamson; State
Super
• look to whether subject of the transactions corp engages in is finance or
whether finance is involved only to purchase goods/services: State Super
• Compare:
• engaging in financial activities to provide super benefits: State super
• Borrowing or lending: Re Ku-ring gai (cited in State Super).
(1.4) Inactive/shelf corp?
• If x is found to be an inactive/shelf corp, whilst P may submit, may still be a CC
on the basis was made for the purpose of trading/financial activities: Fencott v
Muller
• Look for
• Any relevant evidence e.g. corp’s constitution and articles: Fencott
• Any subjective intention of the corp’s representatives Fencott MIN
!
(2) Is act directed at Consti corp?
• Look to wording and practical effect of Lawx.
• where law purports to apply to ‘all corps’, it is likely that the court will
refuse to read down the provision and find it invalid Concrete Pipes
• However where words capable of being construed in a more limited sense
i.e. ... Concrete Pipes Barwick CJ.
!
(3) Core scope?
• Each provision of lawx must be within the core and incidental scopes of s51(xx)
• Following Gaudron J’s test in Pacific Coal (affirmed in Workchoices) if lawx is
directed at a consti corp, it is entitled to legislate to x as if it affects:
• Regulation of: activities/functions/relationships/business of a corporation;
• The creation of rights/privileges belonging to a consti corp and the imposition
of obligations on it Pacific Coal per Gaurdon J (affirmed in Workchoices)
• Compare:
• Minimum entitlements of employment relating to: basic pay and casual
loadings/ord hours of wor/annual leave/personal leave/parental leave/other
entitlements
• restriction of the dealings between union officials and contractors who
provided services for CCs.
!
(3.1) Limitation on core scope?
• Cth cannot legislate on forming corporations, as power is limited to ‘formed’
corps (Incorporation case)
• However in Workchoices the MAJ stated that s51(xx) was limited to regulating
the external relationship of a consti corp, not its internal relationships (e.g.
between directors and shareholders)
• Since dual characterisation is acceptable, the scope of the power is not limited
by other powers, such as the Industrial Relations Power (Work Choices). So even
if the law fits in with IR as well, this does not prevent it from falling under the
Core of the Corps Power.
!
!
!
(4) Incidental scope?
• Lawx may also fall within the incidental scope of s51(xx)
• Incidental scope of the power extends to:
• regulating the conduct of those through whom a consti corp acts (i.e.
employees and shareholders)
• Regulating those whose conduct is/isn’t capable of affecting its activities/
functions/relations or business Re Pacific Coal; Workchoices
• Compare:
• Enabling recovery of damage from any natural person involved in
consti corps misleading and deceptive conduct: Fencott.
!
(4.1) Natural person?
• Laws re natural persons:
• Can’t limit natural persons in their personal capacity: Work Choices
• Can regulate on conduct which is merely capable of effecting CCs - even if
there is only a small chance of CC being affected: Re Pacific Coal;
Workchoices
!
(5) Conclusion
!
GRANTS POWER s96
!
(1) Intro
• Cth mat submit that lawx is supported by the grants hop (s96 AA) as actx is
granting a ... grant.
• General revenue grant: provided to states for general budget
• Special assistance grant: given for special purpose e.g. natural disasters.
• Specific purpose grant: come with specific conditions attached to them e.g.
$ given for the E-Q railway tunnel.
!
(2) Scope
• Prima facie, Cth can give states grants based on any conditions it wants: Fed
Roads (cited in 2nd UTC).
• Acceptable conditions:
• State merely acts as conduit?
• Cth can make grants even if the state is simply a conduit to allow giving of
money to a particular organisation/class of persons: Moran; DOGS.
• Compare: giving of grant effectively lessening the demans on the treasury
of the state: DOGS per Barwick CJ.
• Distinguish b/n states? !
• Cth can distinguish between states to ‘even.. the inequalities [between
states] in accordance with the judgement of Pt’ Moran per Latham CJ.
• Cth politically inducing/weakening state activity/distinguishing between
states?
• Per 1st UTC Cth can
• Politically induce a state to use/abstain from using its plenary power.
• Weaken or destroy state activity in some ares.
!
!
• No constitutional reason why cth can’t distinguish between startes
• However, Cth cannot
• legally coerce state into doing x: 1st UTC; or
• enact laws which amount to an abdication of State power: 2nd UTC.
!
(3) Limitations on s96?
!
(3.1) State’s powers.
• The state must be constitutionally capable of fulfilling the conditions imposed
under s96: 2nd UTC
• See eg breach of s116 in 1st UTC.
!
(3.2) Avoidance of consti restraints ‘Colourable Device’?
• Limitation arises where s96 is merely a ‘colourable device’.
• This will be the case where enacting a law embodies a complete disregard for
prohibitions in s51/nullifies inherent constitutional safeguards: Moran (Privy
Council).
• Examples of the limit being applied:
• Tax discrimination: Moran Act may not be used to discriminate against a
state tax under the guise of assisting a state with money: s51(ii); Moran
• Acquisition of prop on just terms: Cth may not enact a grant to avoid the
‘on just terms’ limitations on the acquisition of prop power: P J Magennis
!
(3.3) DOGS/ICM Agriculture Case Limitation
• Cth may use the s96 power to get States to do sth for which the Cth has no HoP,
the limit of the power per s96 is where the HoP is used to evade an express
prohibition in the constitution: DOGS Gibbs & Aiken JJ (in obiter).
• See eg
• Grant for state to pass a law that discriminates against a certain religion
(evasion of s116): DOGS per Gibbs & Aiken JJ.
• Grant so that states effectuate an acquisition of land on other than just
terms (evasion of s51(xxxi)): ICM Agriculture; see also PJ Magennis.
!
(4) Conclusion
!
IGI’S: STATE IMMUNITY FROM CTH LAW
NB Doesn’t apply to grants power. Moran; 1st UTC!!
• It is clear since Engineers that States are no longer immune from Cth law (c.f.
Baxter v Pedder)
• Currently, adopting a contextual interpretation of the constitution which requires
the ‘continued existence of the states (Dixon J Melbourne) The current approach
is the 2 stage Austin Approach (confirmed in Clarke) which is a merger of the
State Banking test.
• Exam: Statex may submit that Lawx is invalid as it breaches the principles of IGI.
!
(1) Stage 1: Eligible for IGI? ‘State’?
• State/agency/organisation/body/instrumentality/statutory corp are State
government instrumentalities and are eligible for immunity (QEC per Mason J).
!
!
!
• HCA in QEC was adamant that all such agencies are protected so that States
can chose the structure of entities through which they act.
• NB: irrelevant if agency acts independently of state, or if its assets/income
don’t belong to state (QEC)
(2) Stage 2: Ability to function?
• Courts look at the following factors to determine whether a law’s form substance
and actual operation ‘curtails’ the State’s capacity to function as a government
instrumentality Austin
• Effect on machinery of Govt: Native Title must affect the machinery of govt
by:
• Impairing the composition of the 3 branches of State govt’
• Impairing the capacity of the states to engage employees
• Impede the ability of states to acquire goods and services
• Impede ability of states to acquire land.
• Compare: making WA pay compensation for diminution of
extinguishments of Native Title not suff’ : Native Title
• Time restrictions: where leg’ has a lasting effect more likely to be a
curtailment: Richardson.
• Substantial interference: more substanital interferene, more likely a
curtailment
• Compare: 4.5% of land not suff’ Richardson.
• History: If burden has been placed in the past w/out problems - less likely to
be curtailment.
• Substantial Interference
• History: If the burden has been imposed in the past w/out problems less
likely to be a curtailment: Payroll Tax Case
• e.g. Vic was subject to payroll tax for 30 years with no apparent problems.
!
(2.1) Working conditions?
• When a law interferes with working conditions, the courts will look to the
following factors in determining whether a law’s form substance and actual
operation ‘curtails’ the State’s capacity to function as a government
instrumentality:
• Interference w/ working conditions + min wadge (AEU; ILO)
• Reg employees ≠ curtail
• higher echelon employees (ministrial assistants/advisors/high level stat.
officers holders/heads of depts’/judges/parliamentary officers) = curtail
• NB given that the employees ... perform functionx, statem may submit
based on Dawson J’s Dissent in AEU that interference with any employee =
curtail.
!
!
!
• Interference w/ hiring OR firing on redundancy grounds: (AEU; ILO) =
curtailment
• Per Dawson J’s Dissent in AEU that any interference with firing/hiring on
ANY grounds should constitute an interference.
• Interference w/ to recruit/retaining consti figures (e.g. state judges) =
curtailment (Austin)
!
• Compare
• reducing super of judges so they are no longer attracted to judicial
office: Austin
• reducing remuneration of SA parliamentarians so SA can no longer
attract suitable persons as legislators Clarke v CoT
(2.2) Discrimination?
• Whilst discrimination is merely one factor of the test in Austin the issue of
discrimination is often indicative of curtailment Austin per Kirby J
• Generally won’t amount to discrimination where
• singles out a particular industry: QEC
• conserves a particular type of land - not directed at state: Richardson
• Provides for, in its wording, it is capable of affecting any State: AEU
• compare: law only affects Vic but as capable of affecting any state - not
discrimination. AEU
• Likely to be discrimination where:
• singles out/names particular agency/state for a special disadvantage (State
Banking; see also ‘factor 1’ of French CJ’s judgement in Clarke)
• compare: state govs banned from banking without Fed treasurer’s
permission: State Banking.
• Indirectly discriminates against State in the sense that the law affects state/
agency disproportionately to everyone else QEC: Factor 2 of French CJ’s
judgement in Clarke)
• Compare: Law affecting both QEC and priv elec suppliers - but affected
QEC on a greater scale as QEC provided 97% of the electricity: QEC.
!
(2.3) Exception: ‘Rational Discrimination’?
• Whilst a law may be prima facie discriminatory, following QEC there is scope to
submit that the discrimination is reasonable.
• This is likely where the law is ‘reasonable’ in the sense that it doesn’t undermine
the fed system or is a mere device to get around the limitations on Cth power
(Zines)
• Compare:
• necessary part of broader conduct e.g. compulsory acquisition just terms:
QEC per Deane J
• Discharging treaty obligations e.g. heritage listed sites: Richardson per
Mason CJ and Brennan J (--> just so happened that law was in Tassie.)
• Hop regulates activity and it just so happens that state is affected because
it is involved with that activity: QEC per Deane J
• HoP necessitates different applications according to geography QEC per
Deane J
!
(2.4) Factors from French CJ’s test in Clarke
• Notwithstanding the result from the 2 stage Austin test, a law may more/less
likely to be found as curtailment given it’s conformity with French CJ’s test in
Clarke.
• Look at:
• Effect of Cth law upon capacity of the states to exercise their consti power
!
!
• Effect of the cth law on the exrecise of their functions bt the state
• What is the nature of the capacity or functions affected ?
• What is the subject matter of the law affecting the state?
!
(3) Conclusion
!
!
IGI’S: CTH IMMUNITY FROM STATE LAW
• Cigamatic established broad Cth immunity from State law, overturning HCA obiter
in Engineers (confirmed in Pirrie, Uther).
• Exam: the Cth will seek to rely on the tests in RRT Henderson which distinguishes
(1) Governmental capacities (that are immune) from (2) the exercise of
capacities (subject to State law).
Henderson
!
(1) Cth Body: Eligible for IGI?
• Agency/organisation/body/instrumentality/statutory corp are Cth government
instrumentalities and are eligible for immunity (QEC per Mason J).
!
(2) Limitations?
• Courts will look at the following to determine whether the law amounts to a
limitation on capacities/exercise on capacities. RTT
• Relationship with citizens as an equal:
• given ... law treats them equally: regs exercise of capacities
• given ... law discriminates: regs capacities
• Position of privilege/unique power: altering/removing privilege: regs
capacities
• E.g. of unique powers:
• Cth be a creditor of first priority (prerogative power): Cigamatic
• Allow delegated legislation by experts (61);
• Appoint civil servants(67);
• appoint HC/FC judges (72);
• Collect/ control duties of customs/excise within the Cth exec (86);
• Defend nation against external threat (61).
• (State) compare: regulation of exercise of capacity (which is allowed): NSW
Tenancies Act which subjects the Cth to the same rules as everyone else (RTT)
• (Cth) compare: reg of capacity (not allowed): Laws diminishing Cth’s powers
under s61 and its prerogative powers: Henderson; RTT.
!
(3) Exception?
• Per Cigamatic, two main exceptions to Cth immunity.
!
(3.1) Civil Exception: s64 JA
• If laws surround a suit in a chapter 3 court (RTT), exception arises as Cth should
be subject to the same rights and liabilities as reg subjects (s64 Judiciary Act) Cigamatic.
• However it should be noted that as s64 JA is an ordinary piece of leg, it could
easily be overturned - and is hence a mere concession to state power.
!
!
!
Furthermore it only applies ‘as nearly as possible’ hence there is likely to be
sufficient room for t the Cth to escape its operation.
(3.2) Criminal Exception
• As state criminal law can bind Cth servants Pirrie, Cth will most likely be bound
by state criminal laws.
• compare:
• air force personal driving on Vic roads without a license: no
immunity :Pirrie
• Agents of AISS committed offenses during training exercises in Vic: no
immunity: Hayden.
!
!
(4) Conclusion
!
SJP: STATE FROM CTH
!
(1) Intro
• Exam: P may submit that lawx breaches SJP. SJP is sourced from the structure of
ch I II and III about the Leg Exec and Judiciary respectively in its text (ss1,
61,71); Boilmakers.
!
(2) Non JP? (NB can look at the state cases for factors)
• Whilst Griffith CJ in Huddart gave an earlier interpretation of JP - to be binding
and authoritative rulings on controversies, the courts now look at a multitude of
factors subsequent to Huddart to determine whether a law confers JP.
!
(2.1) Enforceability
• If a law confers powers of decision making which is as binding as if it were made
by a ChIII court, the power is more likely to be JP: Brandy v HREOC; see also
Munro per Isaacs J
• Compare: Being able to appeal not in itself non-JP c.f. if there was a process
to have a hearing de novo upon review (would = Non-JP) Brandy
• However if the law still requires ChIII court endorsement to be effective, power
is less likely to be JP: AG v Alinta
!
(2.2) Binding/conclusive decisions
• Law confers final and conclusive decision making powers: Judicial
• compare: Being able to appeal not in itself non-JP c.f. if there was a process
to have a hearing de novo upon review --> not conclusive at the tribunal
stage. Brandy
• Law doesn’t confer a right of appeal in an appellate jur rather an original (de
novo) jur --> Non-JP
!
(2.3) Determination of existing rights/duties
• More likely to be non-JP where the power creates new rights and duties based on
discretion rather than existing rights.
!
!
• More likely to be JP where confers powers which identify and declare existing
rights and obligations arising from past conduct: Thomas v Mobray; see also
Waterside Workers
• However even if the law prima facie creates new rights and duties based on
discretion rather than existing rights, given the HCA rec. that Js traditionally
have had such powers, power will hence most likely = JP: Thomas v Mowbray
!
(2.4) Width of discretion
• More likely to be JP where power involves the application of legal criteria and
appropriate legal discretion: Thomas v Mowbray
• NB Reasonableness is an appropriate legal criteriaon
• Orders restraining liberty are a familiar part of JP: compare Protecting public
from terrorists attack under s104.4 Thomas v Mowbray
• However where power involves too wide an application of a the court’s
discretion, more likely to be non-JP.
• Thomas v Mowbray
• MAJ threshold = ‘so vague as to be incapable of judicial application’
• per Haynes J (Dissent): would require courts to apply its own
idiosyncratic notion as to what is just...
• s104.4 meets this ‘criterion unlike any that hitherto has been engaged
in the exercise of JP’
• per Kirby J (Dissent): s104.4 ‘would require discretions that... are
unchecked and unguided..’
!
(2.5) Quelling controversy
• Power more likely to be JP where decision maker acts as impartial umpire to
settle controversies between two parites: Mowbray
• Exception to this is an ex parte hearing as D is not there: see e.g. Hilton v
Wells
!
(2.6) Historical consid
• If court has a historical power to do x it is more likely to be found as a JP:
Mowbray
!
(2.7) Crime/civil wrong/K dispute
• If law relates to crime/civil wrong/K dispute, it is more likely to be inherently a
conferral of JP.
!
(2.8) conclusion: does lawx confer JP?
!
(3) Is ... a chIII court?
• The court must determine whether courtx is a chIII court.
• Established Ch III courts include: HCA/FCs/State supreme courts (Kable) i.e.
‘such other courts as it invests with fed jurisdiction’
• Indications for finding Ch III court:
• Tenure: Ch III justices must have tenure until 70 y.o: s72 AA; Waterside;
Brandy.
!
!
!
• Intention/Purpose of court: Was purposes which court was set up JP or
non JP? Boilmakers
• Compare:
• Setting up to make industrial awards = non JP purpose Boilmakers
• Decisions registered with fed court set up to be enforceable - non
JP Brandy
• Individual judge: if judge comes from ChIII court, conferring power on an
individual federal judge, is tantamount to conferring it on a federal court,
hence more likely = ChIII court (Hilton v Wells )
(4) Principle 1: Only Ch III court can exercise JP
• If power is judicial/part of power is judicial a lawmight be breaching SJP if
courtx is not a Ch III Court (Wheat Case)
• However if courtx is a Ch III court, the judicial aspect of power is valid but
the non-judicial aspect of power is not valid OR s
• Similarly if courtx is not a Ch III court, the judicial aspect of power is prima
facie invalid. However, there are some exceptions to the principle which may
validate the law. (Wheat Case; Brandy --> see below...
!
(4.1) Exception 1: historical/discrete?
• Certain non-judicial bodies have been able to exercise judicial power in the past
• E.g.
• Contempt of Parliament (i.e. when there is contempt of pmt, pmt can
undertake its own proceedings) (Richards)
• Public service disciplinary tribunals (White)
• Court martial, e.g. military (Bevan)
!
(4.2) Exception 2: delegation of JP?
• JP may be delegated under supervision by a Ch. III court to one of its officers (so
judge is still essentially part of non ch III court)
• This delegation is subject to two conditions being satisfied (Harris v Caladine):
• 1. Judges must continue to bear the major responsibly for exercise of JP in
relation to contested/important matters.
• Compare: Harris JP delegated to Registrars was for uncontested divorce
disputes.
• 2. The judges have a duty to review/appeal the decisions
• Compare: Harris Delegation of orders to Family Court Registrars, who
exercised JP – despite a breach of Wheat Principle, because: it is practical
to do so
!
(5) Principle 2: Ch III may not exercise non-JP
!
• If power is non-judicial/part of power is non-judicial a lawmight be breaching SJP
if courtx is not a Ch III Court (Boilermakers)
• However if courtx is not a Ch III court, the judicial aspect of power is valid
but the non-judicial aspect of power is not valid (Boilermakers) OR s
!
!
!
• Similarly if courtx is a Ch III court, the judicial aspect of power is prima facie
invalid. However, there are some exceptions to the principle which may
validate the law. (Hilton v Wells)--> see below...
(5.1) Exception 1:Incidental power?
• Exception exists where the non-JP exercised is incidental or ancillary to the
exercise of J’s primary JP: Boilmakers; affirmed in Joske
• Compare: Industrial court given discretionary powers to adjust circumstances
after an order made --> valid because the discretionary powers temper the
effect of orders (primary JP) : Joske
!
(5.2) Exception 2: Persona Designata Exception
• Exception also exists where non-JP power exercised may be given to J on the
basis that they are acting in their personal capacity. Grollo; Wilson
!
(5.2.1) Consent
• A non-J function cannot be conferred without the judge’s consent (Grollo v
Palmer).
• Look for: did the judge consent??
!
(5.2.2) Incompatibility
• Non-JP can’t be given if it’s incompatible with J’s performance or proper
discharge of their responsibilities as an “institution exercising power” (Grollo +
Wilson).
• Per Grollo court will look at
• Time : time commitments are heavy with non-JP -> incompatible (compare
approval of ex parte applications out of hours: Grollo = compatible)
• Compromised integrity: If non-JP functions compromise ability to perform JP
-> incompatible.
• Public confidence in judiciary: incompatible if
• integrity of judicial system -> incompatible
• capacity of J to perform JP with integrity
• McHugh J (dissent) Grollo : performing secret ‘ex parte’ applications
weakens reality of independence and thus public confidence in
judiciary.
• Or alternatively per Wilson court will look at
• 1.Integral :
• 2.Independence: Is non-JP done independently of instruction/advice/wish of
leg/exec other than a law or instrument under a law? Compare Wilson unclear
whether Mathews J was necessarily req to act independently of MP or not...
• 3.Discretion: If discretion under non JP function exercised on political
grounds (i.e. not expressly/impliedly prescribed by law)
• Relevant: was role done judicially (i.e. without bias/giving all parties a
fair go)
• Compare: Mathews J didn’t have to adhere to judicial standards..
• Exam: On balance of the two cases’ tests, it is most likely that court will find
(incompatibility or not).
!
!
!
(6) Conclusion
SJP: CTH FROM STATE
!
!
!
(1) Intro
• Originally SJP wasn’t an issue for the states (Collingwood; BCE & BLF). However
McHugh J’s judgement in Kable changed this and today SJP resticts state Pts in
order to uphold public confidence in the independence of all courts with Fed Jur.
• IFT and Fardon have adapted the original Kale test, so the state must show that
function given to court/J (Wainohu) substantially impairs the court/J’s
institutional integrity making it incompatible with its role as a fed Jur body
(Totani per French CJ)
!
(2) ChII court?
• Look at whether the court is vested with fed jur power: Totani; Hilton v Wells or
is capable of being able to exercise fed jur (compare Mags’ court Totani) to
determine whether is a ChII court.
• Look at factors above under ChII court- don’t forget that conferral on fed J is
tantamount to conferral on fed court.
• The following Courts are capable of being vested with federal jurisdiction:
• Supreme Court – Kable;
• Magistrates’ Court- Totani; and
• Other State Courts– K-Generation.
!
(3) Incompatibility
• Court will look at the following factors to determine whether the power that Pt
is trying to confer is incompatible with court/J’s role as a fed jur body as it
would undermine public confidence.
!
(3.1) Ad hominem?
• Does law single out one person for special treatment (Kable) c.f. a legitimate
class of people (e.g. serious sex offenders in prison) Fardon? If so more likely to
be incompatible.
• POLICY- more likely to be incompatible where the object of the leg is to
punish the individual or a small group of individuals: Fardon per Kirby J (in
dissent).
!
(3.2) Integrity/Impartiality/Independence compromised?
• Is State court/J is effectively acting as the ‘alter ego’ of the Pt/exec Fardon If so
more likely to be incompatible
• Look for:
• Court being conscripted to effectuate a political function: Totani
• Power undermining ability to discharge fed capacity ‘impartially and
competently’ Fardon
• Power affecting the appearance of impartiality and integrity: Wainohu per
French CJ; see also Kable per McHugh J
!
!
!
(3.3) No genuine adjudicative process?
• Is there no genuine adjudicative process? Look at:
• the adj task is ‘so confined and so heavily dependent on the exec ( compare
AG’s role in declaring organisation) the court’s task is trivial Totiani per
Gummow J
• the power deprives D of natural justice and discretion in procedural fairness
IFT.
• court need not give reasons to effect power Wainohu
• the function does(Fardon) doesn’t (Kable) require the court to adopt the
normal rules of evidence
• the court is (Fardon: ‘unacceptable risk’? ) isn’t (Kable) required required
to make a determination of a judicial question.
• the court does (Fardon: could make 1/3 orders) doesn’t (Kable) have
discretion to make different orders.
!
(3.4) Burden of proof?
• “Balance of Probabilities” --> Kable breach of SJP
• “High Degree of Probability” --> Fardon no breach of SJP
!
(3.5) Decision on future conduct?
• There is a policy argument to be had that per Thomas v Mowbray a decision on
future conduct is by virtue of historical reasons a judicial function (see also
Fardon per Kirby J (in dissent)).
• However per Kable the taking of prophylactic measures is inherently a function
of the exec and is hence a factor in shown a breach of SJP as the courts should
be restricted to the retrospective measures.
!
(3.6) Discretion
• Less discretion conferred on court/J is a strong indication of breach of SJP as it is
repugnant to JP.
• Compare:
• AG’s power essentially made court a ‘rubber stamp’ Totiani per Gummow J
• Removal of SC’s discretion to modify the mode of hearing to make it fair,
i.e. only give a yes or no decision to order - IFT
!
(3.7) Valid conferral of NJP? Momcilovic
• (If exam situation is like Momcilovic) ie. deal with the advisory nature of the
declarations under s36(2) Vic Charter... or something like that. Have to have a
look at the differences between MAJ and MIN arguments and apply to case
• MAJ: valid conferral because:
• the exercise of NJP doesn’t affect the rights and liabilities of the parties
before the courts nor does it affect the CL or effect the validity of the
statutory provision (French CJ & Bell J) or
• it is an incidental aspect of the exercise of normal interpretive tasks - JP.
(Crennan & Kiefel JJ)
• MIN: invalid conferral because not incidental to exercise of JP and is merely
advisory - making it impermissible (Gummow, Hayne, Heydon JJ (in dissent)).
!
!
!
(3.8) Relevance of the Wilson/Grollo tests?
• If confers a non JP to J as a persona designata the court may look to the cases of
Wilson and Grollo in order to determine whether power incompatible.
• see above.
!
(4) Conclusion
• Breach of State SJP is difficult to est’ to the extent that Kable has been named a
consti guard dog that ‘barks but once’ Barker per Kirby J.
• In Fardon; Baker the fat that the Acts not ad hominem (although it may target a
small group) is largely determinative. It was noticed in Fardon that only in very
rare cases will the Kable principle apply. see also Baker per Gleeson J
!
STATE: TRADE AND COMMERCE (TC) S92
P may submit that lawx is invalid due to s92. s92 prescribes that TC be ‘absolutely
free’ between states. In essence it prohibits discrimination between interstate TC
as well as state protectionism.
Mason CJ in Cole established the current 4 step test in a judicial ‘tidy up’ of the
previous ‘individual rights’ approach (see e.g. Miller)
!
(1) Burden?
• Court must look at whether lawx imposes a fiscal burden on interstate TC: Cole.
• Compare:
• Fiscal Burden:
• Tax exemption for buying from local tobacco wholesaler (Bath)
• Large tax on non-refillable bottles (Castlemaine)
• Non-fiscal burden:
• Banning import/export of undersized crayfish (Cole)
• Banning WA customers from betting online with Betting exchanges:
Betfair 1
!
(2) Is the burden discriminatory?
• A law can be discriminatory in the sense that it discriminates the trade and not
the trader: Betfair 2 either legally through express terms ‘on its face’ or
factually in practical effect Cole
• Look at whether law applies to all states equally or unequally? Cole
• Compare:
• Non discrimination:
• Banning undersized crayfish: not discriminatory if the crayfish are
the same size everywhere: Cole
• Discrimination
• Banning undersized crayfish: discriminatory if the crayfish are not
the same size everywhere: Cole
• Higher tax for selling interstate tobacco: direct discrimination Bath
MAJ
• NB MIN criticized that MAJ failed to look at the practical effect
of the law - which clearly shows that law wasn’t discrim: Bath
MIN
!
!
!
• Banning WA customers from betting exchanges online: discrim as it
protected a product of the ‘same kind’ (i.e. intra-state ordinary
betting agencies: Betfair
• In this case HC found betting exchanges and agencies to be of
the ‘same kind’ Betfair
• Refusing permission to national betting agencies to public WA races
- but granting it to local agencies but granting it to local agencies:
Betfair
(3) Protectionist?
• In determining whether law protectionist court will look at the economic
consequences for TC of the same kind (Cole affirmed in Betfair) c.f. individual
trader Betfair 2 per Kiefel J.
• Test: Is local market advantage conferred or interstate market advantage
removed? Bath
• Doesn’t matter if product being governed is not the same things as the thing
which actually causes protectionism Barley (compare: exporting cheap
material to protect manufacturers)
• Compare:
• Not protectionist
• Banning poss’ of undersized crayfish - all states subject to same
restrictions Cole
• any disadvantage resulting from traders own pricing structures and low
margins Betfair 2
• (export) Scheme regulating sale of NSW not protectionism because
everyone treated the same. Barley
• Protectionist
• POLICY Mere fact that state law is inconsistent with the rest of the
nation - may be in itself enough to show protectionism as Betfair
implied that s92 discourages ‘idiosyncratic state regulation’
• Mere restriction on competition : Betfair 1
• Tax on retail tobacco bought interstate even through Vic tobacco had
25% wholesale tax on it before reaching retailer Bath.
• (export) ban/restriction on export of material poss’ by a state to
favour local manufacturers most likely protectionist Barley (obiter)
!
(4) Non-protectionist purpose?
• Even if law is protectionist, it may still be valid if it can show that it’s
appropriate and adapted to a legitimate non-protectionist purpose
(Castlemaine; Betfair)
• However Betfair endorsed the reasonable necessity test in Cole so this higher
standard may have to be reached.
!
(4.1) Objective of law?
• What is objective of law? In exam: state objective.
• Is it an illegitimate objective (compare illegitimate enhancing one state’s
economy Betfair) or a legitimate objective?
!
!
!
• Compare legitimate:
• Cth preventing danger threat to welfare or enhancing welfare :
Castlemaine
• Reducing litter: Castlemaine
• Conserving resources through recycling: Castlemaine
• protecting and conserving an important and vluale natural resouce: Cole.
(4.2) Necessary means for achieving that purpose?
• If a law serves a legitimate objective, is it disproportionate or appropriate and
adapted to a legitimate purpose (Castlemaine; Betfair)?
• disproportionate:
• Given... there is clearly an alternative, non-discriminatory means for
achieving the same end: Castlemaine
• Given... the law only goes a very small way to achieve the desired end:
Castlemaine (compare energy saving through reusable bottles trivial)
• corruption not meaningfully reduced by stopping betting exchanges in
Betfair
• proportionate:
• Given (distinguish above cases + look at facts of Cole; Betfair) it is
most likely to be REASONABLY necessary: Cole; Betfair
!
(5) Conclusion
STATE/COM: IFPC
• Exam: P may submit that lawx is invalid as it breaches IFPC (ACTV; Nationwide).
Confirmed in Lange, the freedom is drawn from ss7, 24, 64 & 128 AA which
prescribes responsible and representative govt’ which itself can only be effected
through FPC.
!
(1) Burden on PC?
• Courts will look at following factors to determine whether law burdens political
communication in the sense that it relates to the ability ability for the people to
communicate with each other wrt matters that could affect their choice in
FEDERAL elections or consti referenda (Lange).
!
(1.1) Form of communication
• All forms/methods of communication are within the scope of the IFPC: ACTV
• Exam: In this case as P .... insert method... their communication will clearly
come within the scope of ACTV - compare:
• Incl. signs, symbols, gestures and images (Levy, McHugh)
• Incl. non-verbal conduct (Levy, Brennan)
• Incl. “lifting a flag in battle, raising a hand against advancing tanks, wearing
symbols of dissent, participating in a silent vigil, public prayer and
meditation, turning away from a speaker, boycotting a big public
event” (Levy, Kirby)
• Theophanus- throw light on the performance on federal minister- executive
branch
• Monis letter/written communication
!
!
!
• Publicly preaching/haranguing passers by AG for SA v City of Adelaide.
(1.2) Political?
• Given the broad interpretation of what matters can be included under the IFPC
(see e.g.Theophanus ...) almost all comments/acts/etc will most likely come
within the scope of the IFPC Lange.
• A highly political matter (Theophanus)
• Comments about NZ PM (b.c of shared Cmth History) (Lange) --> so fairly
broad
• Insulting the exec govt (Coleman)
• Discussion of matters relating to Aboriginal and indigenous affairs, including
perceived or alleged injustices, involved discussions about government or
political matters (Wotton, majority + Kiefel J)
• Need not be a federal matter - State police/NZ PM (Lange; Coleman)
• Street preaching about religion = Political; AG for SA v City of Adelaide.
• Expressing views on dead soldiers’ conduct = Political Monis
!
(2) Legitimate burden?
• IFPC is not an absolute right (unlike eg USA) so law will still be valid if it is
reasonably appropriate and adapted to a legitimate end in a manner
compatible with maintaining the Consi’ rep and resp gov: Lange; Coleman.
!
(2.1) Legitimate end?
• Compare/distinguish previous cases to determine whether lawx is compatible
with responsible govt: Lange.
• Legit burdens
• Protecting reputation of govt’ figues/public service from defamation:
Lange; Theo; Stephens
• Improving standard of political debate/reducing campagin expenses and
reliance of politicians on donations ACTV.
• Public safety:
• Coleman per Heydon J ‘protecting the peace’
• Wotton need to consider community safety
• Langer protecting the voting system
• Levy: protection of people in hunting areas.
• AG for SA protecting safety/comfort of people in public areas from
harassment.
• Monis per Kiefel; Crennan & Bell JJ protection from extremely offensive
communication
• Non-legit burdens
• Merely outlawing offensive communication: Monis per French CJ, Heydon
& Hayne JJ.
• Protection of the authority of industrial relations commission Nationwide
• A leg objective unrelated to rep and resp govt: Coleman.
• Law banning all political communication in the interest of national
security: Coleman c.f. if its the only way to protect rep/resp gvt .
!
!
• However, even though the law may be prima facie support an illegitimate
burden, In certain cases, court may read down and restrict law’s application to
to certain circumstances : Coleman per Kirby Hayne & Gummow JJ
!
(2.2) Legitimate means?
• In considering the proportionality and reasonableness of the means to effect
the burden (above) Court will look at whether law should be struck down if it is
not appropriate and adapted to achieving the aim for which it is design to
achieve Coleman; Levy
• Restrictions aimed at mode of communication? i.e. looking at time/
place/manner - is the burden imposed to protect purpose of law?
• Compare
• Prohibiting insulting words Coleman; Monis per Kiefel Crennan &
Bell JJ , especially those which are likely to provoke phys
retaliations Coleman or which are considered extremely offensive
Monis per Kiefel Crennan & Bell JJ in order to preserve public
safety/order.
• requiring a license to prevent injury to person Levy.
• prevention of the use of post to transmit seriously offensive
comments Monis
• Restricts ideas and info there must be a ‘compelling justification’ to
impose a burden on ideas and information as prima facie (complete)
restriction of PC goes against the objective of law with a system of
representative govt. Coleman
• Compare
• Broad drafting which prohibits all insulting words to preserve public
order/safety : Coleman per McHugh J
• Total prohibition of PC in the interest of national security unless
there is no other way which rep/resp govt could be protected:
Coleman per McHugh J
!
(3) Conclusion
!
IMPLIED VOTING RIGHTS
• Exam: P may submit that lawx breaches their implied right to vote (drawn from
ss7, 24 AA) which requires MPs to be chosen ‘directly by the people (Roach v
AEC) However electors can still be disqualified where there is ‘substantial
reason’ (Gummow Kirby Crennan JJ)
!
(1) Substantial Reason
• In order to show that there is a substantial reason for disqualifying person/
groupx from voting. It must be shown that
• (I) the law's goal is consistent with maintaining rep and resp govt; and
• (II) the means used are appropriate and reasonably adapted Roach per,
Gummow, Kirby & Crennan JJ).
!
(2.1) Legitimate aim?
• Exam: What is the aim? Is the aim legitimate? Roach; Rowe
!
!
!
• Compare:
• No: No substantial reason for restricting voting rights off all prisoners
Roach or denying electors extra days for enrollment after the calling of a
fed election: Rowe.
• Yes: Rowe per Kiefel J (in dissent) - provisions served legit objects of fraud
prevention and of seeking greater compliance with electoral obligations.
(2.2) Legitimate means?
• Exam: What are the means? Are they appropriate and adapted means to
achieving the aim?: Roach; Rowe
• Not legitimate:
• Roach: restricting all prisoners’ voting rights c.f. just serious offenders
(who served >3years) not proportionate.
• Rowe: means of cutting of time for enrollment was not proportionate tot
the aim of ensuring integrity/admin effciciency of the electoral process.
• Legitimate: Rowe MIN distinguish Roach on the basis that prisoners were
completely denied right to vote c.f. only denied to vote if they failed to
enroll within a certain period.
!
(3) Conclusion
!
INCONSISTENCY s109
!
(1) Intro
• Exam: There appears to be an inconsistency between state law x and cth law x. P
will argue that the state law is invalid under s109 (s122 for territories).
!
(1.1) Law for the purpose of s109?
• Is it a law or not? Compare:
• Admin orders are not laws for the purposes of s109 Airlines Act NSW
• The Common Law is not law for the purposes of s109.
• Acts of Pt are laws for the purposes of s109 e.g. Relationships Act 2008
• Subordinate or delegated leg are laws for the purposes of s109 compare
Relationships (Fees) Regulations 2009
• Given the HC’s tendency to read Cth legislation broadly see e.g. Ansett most
likely that most things will be read broadly and will be considered a law for the
purpose of determining inconsistency.
!
(2) Direct test: Simultaneous obedience test
• If it can be shown that it is impossible to obey both state and Cth law, there will
be inconsistency under s109 Ex Parte Daniell; McBain v Vic
!
(3) Direct test : Conferral/diminishment of rights test
• It the State law takes away or diminishes rights conferred by the
Commonwealth law, per Clyde Enginerring; Clavin v Bradlyey Bros there will be
inconsistency. Compare:
!
!
• Simultaneous obedience yet diminishment of rights compare diminishment
of rights by the difference in working hours conferred under Cth leg. 44 v 48
- invalid. Clyde Engineering
• Diminishes rights of employers and employees:
• Offence for women to run milling machines whilst Cth law allowed
employment of female millers Calvin v Bradley Bros.
• Equal opportunity v unlimited right to dismiss temporary employees Ansett
v Wardely
• Diminishes rights of peoples conferred by Cth leg : Impact of abolishment of
Qld la on s10 Racial Discimination Act: Mabo No.1
• POLICY: inconsistency may be more readily found where states diminish
rights retrospectively: Mabo No1 (QLD tried to retrospectively abolish NT)
!
(4) Covering the field/indirect test
• Failing the direct tests above, if it can be shown that the Cth evinces an
intention to cover the field either expressly or by implication, the State law is
invalid: Clyde Engineering per Isaacs J
!
(4.1) Intention?
• Exam: the court will look at whether Cth merely intended for law to be
supplementary to State law or whether Cth expressed an intention to govern the
matter in question : Ex Parte Mclean per Dixon J.
!
(4.2) Cth field characterised
• Narrow reading: Compare: Airlines of NSW inconsistency can’t arise where the
purposes of the law are dissimilar and don’t overlap (compare law re air
navigation/safety and law re public transport and industry competition).
• Broad reading: Compare: where both laws relate to similar fields there is more
likely to be an ‘infringement’ on the field covered by the Cth lawx. Ex Parte
Mclean per Dixon J compare: ‘slaughtering stock for export’ O’sullivan v
Noarlunga
!
(4.3) Does state law attempt to regulate the same subject matter?
• Exam: Make a factual argument/common sense argument comparing the two
laws and tentatively conclude.
• NB The broader the characterisation of the field, above, the more likely that
the State law will encroach.
!
(4.4) Does Cth intend to CTF?
• Exam: P must also show that Cth intends to set out the ‘exhaustive expression’
on the matter: Ansett.
!
(4.4.1) Express intention to CTF?
• Test: do the words of lawx demonstrate that Cth either intends to oust the
operation of any State Law or to complement State Law?
• Compare Momcilovic - Victorian Criminal Code s 300.4 is ‘not intended to
exclude or limit the concurrent operation’ of any State or Territory laws.
!
!
!
(4.4.2) Implied intention to CTF?
• In the absense of an express intention, the courts will look at the following to
determine whether there is an implied intention to CTF:
• the detail of the legislative regime, (eg see O’Sullivan) (not decisive but an
influential factor).
• the subject matter of the legislation (eg see Viskauskas v Niland 1983).
• Compare: Cth legislation involved the implementation of an antidiscrimination treaty. the implementation of international obligations
more likely than not require that the Cth intend to have a uniform regime:
Viskauskas.
!
(5) Conclusion
!
!