S 51 (xx) - Corporations Power
S 51: “The Parliament shall, subject to this Constitution, have power to make laws … with
respect to: - (xx) Foreign corporations, and trading or financial corporations formed within the
limits of the Commonwealth”
Question 1  Constitutional Corporations
• S 51(xx) applies to;
1. Foreign corporations
2. Trading corporations formed within the limits of the Commonwealth
3. Financial corporations formed within the limits of the Commonwealth
What is a corporation?
• Established by State or federal law
o Commonwealth cannot create corporations through general law, except for specific
powers given by specific powers under s 51.
• Private companies are incorporated (established) by being registered under the various
Corporation Acts
o All the same, based off the Corporations Act 2001 (Cth) or
o Incorporated under a special statute. E.g. University of Queensland Act 1998 (Qld)
o Local authorities are incorporated under local government Acts. E.g. City of Brisbane
Act
Foreign Corporations
• It will be regarded as a corporation if, under foreign law, it is an entity separate from its
members – Adamson (1979)
Trading Corporations
Corporations engaged exclusively in trade within a State
•
•
•
Can be legislated for  (Concrete Pipes Case) (1971)
o Early High Court had ruled that s 51(xx) power did not extend to corporations that
conducted only intra-State trade. Huddart Parker (1908)
o Based on the reserved powers doctrine
Concrete Pipes Case concerned whether certain provisions of the Trade Practices Act dealing
with anti-competition agreements applied to a corporation doing business exclusively within
Queensland
o The High Court overruled Huddart Parker as wrongly decided on the basis of the
discredited reserved powers doctrine
Hence corporations trading exclusively within a State is subject to the s 51(xx) power
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Tests of ‘trading corporation’  Apply all 3 Tests
1. Nature of the corporation is determined by the purpose for which it was set
up
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•
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Menzies and Gibbs JJ in R v Trade Practices Tribunal: Ex parte St George County Council
(1974)
o One of the functions of the Council under the Act was to supply electricity to the
residents
o The profits that the Council made were required to be applied to specified public
purposes
Gibbs J: the Council was established for ‘the purposes of local government to provide an
essential service to the inhabitants ... Under conditions thought most likely to prove
beneficial to them’.
o Hence the Council was not a trading corporation
Menzies J agreeing: suggested that even public corporations such as Snowy River Hydroelectric Authority is not a trading corporation (at 553) (set up to generate electricity)
o A school may have a tuck shop, a University a book shop. These activities do not
make them trading corporations
2. Predominant and characteristic activity
•
•
Barwick CJ and Stephen J adopted this test in St George County Council Case
Barwick CJ :
1. “A corporation whose predominant and characteristic activity is trading whether in
goods or services will satisfy the description
2. The ends for which the corporation trades as its predominant activity is irrelevant
3. Current activity, not the stated purpose matters
4. Does not matter if it is a State or municipal Corporation
E.g.  (A corporation set up for a charitable purpose, uses trade to achieve this, is the
corporation’s principle activity trading? Yes).
• Stephen J:
1. Agreed that the predominant activity is what matters
2. However, the court should consider both the statutory purpose and current activity to
determine predominant activity
Accepting Isaacs J’s view in Huddart Parker v Moorehead
The fact that something has one purpose, “cannot alter the nature of the
added capacities which are inherently different.”
Decision:
• Held by majority that the Council was not a trading corporation
•
Barwick CJ and Stephen J dissenting.
2
3. Trading activities are a ‘substantial’ or ‘not insignificant’ part of its
operations
•
•
•
Mason and Murphy JJ in (Adamson’s Case) (1979)
Held by majority of 4:3 that the football leagues were trading corporations
o Under their rules, a player could not transfer from one club to another without the
consent of the club
o The rule prevented Adamson from leaving his SA club to join a WA club, even
though not under contract.
o Both leagues were prosecuted under s 45(2) of the Trade Practices Act (Cth)
 Argued unsuccessfully that they were not trading corporations
Endorsed by Deane J in State Superannuation Board v TPC (1982)
o 3:2 majority that the State Superannuation Board was a constitutional corporation
o However, Gibbs CJ and Wilson J (in minority) continued to apply Tests 1 and 2 that
looks to the purpose of creating the corporation and predominant activity
o They found that the superannuation fund was not a constitutional corporation
because its predominant or characteristic activity was governmental in nature, and
engaged in trade to satisfy this activity. (pp 297-98)
Examples of trading companies
• Football leagues (At least under tests 2 and 3)  Adamson’s Case
• State Superannuation Board (Under test 3, maybe not 2)  State Superannuation Board
Case
• Hydro Electric Commission of Tasmania Tasmaninian Dams Case
• Company whose memorandum and articles indicate that it was set up to trade Fencott v
Muller (1983) even though yet to trade
(Minority thought that it was unsafe to go by the constitution of the company)
Financial Corporations
• Deane J’s description in Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978)
provided the best description
• Mason, Murphy and Deane JJ approved in State Superannuation Board v Trade Practices
Commission (1982)
Corporation that engages in commercial dealing in finance
 A corporation deals commercially in finance when it conducts, ‘transactions in which the
subject of the transaction is finance (such as borrowing or lending money) as distinct
from transactions such as the purchase or sale of particular goods’. Deane J
•
Applies if financial dealing is a substantial part of its activity State Superannuation Board v
TPC
A corporation formed to provide superannuation benefits for its employees and associated
employers may be a financial corporation if it engages in financial activities in order to provide or
augment the superannuation benefits.  Superannuation Board v Trade Practices Commission
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Exception to Financial Institutions
• Commonwealth is precluded by s 51(xiii) from regulating State Banks - Bourke v State Bank
of New South Wales (1990)
Question 2  Laws Parliament can make with respect to constitutional
corporations
•
The High Court has refused to indicate the outer limits of the power with respect to
constitutional corporations
o It determines the limits case by case - Actors & Announcers Equity Association v
Fontana Films Pty Ltd (1982)
Determined Limits
1. No Power with Respect to Incorporation
• The High Court has clearly established that Parliament cannot legislate with respect to
incorporation of companies generally (Incorporation Case) (1990)
3 Reasons
1. The words ‘formed within the Commonwealth’ refers to corporations already formed
2. S 51(xiii) expressly gave power to make law with respect to incorporation of banks (expressio
unius exclusio alterius)  Express inclusion, implicitly excludes.
3. Parliament could hardly be said to have power to legislate on formation of foreign
corporations
2. Parliament Cannot Make Law to Abolish Corporations
• Parliament may regulate the conduct of activities of corporations but not ban them (Banking Case) (1948)
Parliament May Establish Commonwealth Corporations under other Heads of Power
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•
•
E.g. the ABC, NBN are created under s 51(v): ‘Postal, telegraphic, telephonic, and other like
services’
Australian National Airways created under s 51(i) approved in Australian National Airways
Pty Ltd v Commonwealth (No 1) (Airlines Case) (1945)
Commonwealth Bank was established under s 51(xiii)
3. Extent of power to regulate corporations – two tests
The ‘distinctive character’ test  Discarded in Work Choices Case
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•
•
The law in question must have the quality that relates it to the distinct character of the
corporation
Thus if the law is with respect to a trading corporation, it must have something to do with
the trading activities, financial, financial activities, foreign, being foreign.
In the Work Choices Case, the majority took the view that this would make the meaning of s
51(xx) unstable
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Object of statutory command test  The Dominant Test
•
•
The majority in Work Choices (2006) adopted the minority view of Gaudron J in Re
Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) "I
have no doubt that the power extends to the regulation of the activities, functions,
relationships and the business of a corporation described in that sub-section … its
employees and shareholders and, also, the regulation of those whose conduct is or is
capable of affecting its activities, functions, relationships or business."
The law is valid under s 51(xx) if the focus of statutory command is a constitutional
corporation
o Also supports a law that is directed to protecting constitutional corporations from
conduct intended and likely to cause loss or damage to the corporation.
(Fontana Films)
4. May regulate purely intra-state activities of trading corporations
• In Strickland v Rocla Concrete Pipes Ltd (1971) overruled Huddart Parker v Moorehead on
this due to Engineers and its reliance on reserved powers.
o Note however, that if the purely intra-State activity is banking, Parliament has no
power because of the bar in s 51(xiii)
5. Regulation of activities of third parties in relation to constitutional corporations
• For example secondary boycott of corporations Actors and Announces Equity v Fontana
Films (1982)
o Gibbs J: The prohibited conduct is sufficiently relevant for the prohibition of it to be
described as a law with respect to the subject of constitutional corporation
 (Applying statutory command test).
Limits to the power to regulate third parties
Can be used to prevent deceptive use of a corporation’s symbols, but going so far as to monopolise
symbols and expressions such as 200 is excessive.  Mason CJ, Deane J and Gaudron J in Davis V
Commonwealth 1998
6. Regulation of industrial relations by corporations power – The Work Choices Case
• Argument against use of corporations power to extend to (state) internal industrial relations
disputed based on the fact it is not meant to deal with internal elements of corporations.
• Rejected, based on Engineers and Statutory Command Test
o Would add a new filter to the test.
o Indirectly based on discredited reserved powers doctrine.
• Majority accepting Gaudron J’s view in Re Pacific Coal “laws prescribing the industrial
rights and obligations of [constitutional] corporations and their employees and
the means by which they are to conduct their industrial relations” are laws with
respect to constitutional corporations.”
•
Argument that existence of specific IR power in s 51(xxxv) precludes use of s 51(xx) rejected
because;
o S 51(xxxv) deals with is a narrower subject of conciliation and arbitration of interState industrial disputes (para 203)
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o
•
•
•
A law may bear several characters. The fact that it deals with industrial relations
does not mean that it is not a law on constitutional corporations (para 204)
(Multiple-characterisation per Murphyores).
Generally the majority maintained that the rejection of the plaintiffs’ arguments ‘is
favoured by a consideration of the text and structure of the Constitution and by the
course of authority in this Court since at least the demise of the reserved powers
doctrine in 1920.’
Justice Callinan and Justice Kirby wrote strong dissenting judgments
o In the course of his dissent, Callinan J called into question the expedient use of
Engineers case to advance Commonwealth powers
o “There is nothing in the text or the structure of the Constitution to suggest that
the Commonwealth's powers should be enlarged, by successive decisions of
this Court, so that the Parliament of each State is progressively reduced until
it becomes no more than an impotent debating society. This Court too is a
creature of the Constitution. Its powers are defined in Ch III, and legislation
made under it. The Court goes beyond power if it reshapes the federation. By
doing that it also subverts the sacred and exclusive role of the people to do so
under s 128”
Kirby J also rejected the slavish adherence to the Engineers’ case and asserted that the
Constitution must be interpreted according to the needs of the times
o Kirby J found that the power in s 51(xx) ‘takes on a reduced scope from what it
otherwise might have had if para (xxxv) had not appeared in the Constitution
at all’.
Express inclusion, implied exclusion.
Other Limits on the Corporations Power
• Like all other powers given in s 51, the corporations power ‘is subject to this Constitution’
• Nationwide News v Wills (1992): powers in s 51 are subject to the implied freedom of
communication
• Melbourne Corporation Case: cannot impair the capacity of the States to function as States
• All the Chapter III limitations apply to s 51 powers
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Taxation and Spending Power
1.
2.
3.
4.
Is it a tax or customs and excise duty?
Does it comply with appropriate procedural requirements?
Does the tax discriminate?
Has the tax been properly appropriated?
BASIC CONSTITUTIONAL PRINCIPLES CONCERNING TAXATION AND
SPENDING
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A person’s liberty or property rights cannot be taken away except under the authority of law
Entick v Carrington and R v Somerset County Council
o No taxation is possible except under the authority of an Act of Parliament
All government revenue must be paid into the Consolidated Revenue Fund (CRF) s.81
Commonwealth expenditure takes priority in applying CRF funds – s. 82
Money can be drawn from the Treasury only under an appropriation law - s.83
Appropriation bills for ordinary annual services of government (OASG) must deal only with
such appropriations s.54
Power to Impose Tax
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S. 51(ii): Parliament has power to make laws for ‘taxation; but so as not to discriminate
between States or parts of States’.
Power to impose duties of customs and excise belong exclusively to the Commonwealth s.90.
In theory there cannot be a conflict between valid federal tax law and valid State tax law due
to differing purposes Victoria v Cth (1957)
Commonwealth acquired a virtual monopoly of income tax by the Uniform Tax Scheme
1942.
o Under this scheme, the Commonwealth has priority over tax payment and the States
receive reimbursement on condition that they do not impose income tax.
o The 4 Acts that formed the scheme were upheld in the First Uniform Tax Case
(1942)
Stage 1  IS THIS A TAX?
Standard definition Matthews v Chicory Marketing Board (1938)
A tax is;
(a) a compulsory exaction of money
(b) by a public authority
(c) for public purposes
Not exhaustive, per Air Caledonie v Commonwealth
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Element 1  Compulsory Exaction of Money
 The High Court has firmly re-iterated the element of compulsion
 “If the person required to pay the exaction:
1. Is given no choice about whether or not he acquires the services and
2. The amount of the exaction has no discernible relationship with the value of
what is acquired, the exaction is, at least to the extent that it exceeds that
value, properly to be seen as a tax.” Joint Majority in Air Caledonie
 If can avoid the payment, but a person would naturally prefer the outcome from paying, that
is essentially compulsory  AG NSW v Homebush Flour Mills

Air Services Australia v Canadian Airlines (1999)
 Held: Charges were imposed to cover the cost of services across the whole
range of users
 Charges were reasonably related to the expenses incurred
 The charges were not imposed to raise revenue
 Discrimination between users was on a rational basis
 Hence it was not a tax
Element 2 Imposed by a Public Authority
Air Caledonie v Cth (1998)
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
Imposition of a $5 Immigration Clearance Fee to be collected from all incoming passengers
tax as;
– No identifiable service rendered to returning citizens.
– Paid by airline regardless of if collected from passenger
Held: It was a tax and could not be passed as an amendment to the Migration Act.
– A key reason: it applied to returning citizens who did not need a licence to re-enter
Australia
– S 55 requirements will be read fairly strictly.
Air Services Australia v Canadian Airlines (1999) Air Service Australia set up by an Act,
government instrumentality.
Hermatite Petroleum v Victoria (1983)
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An exorbitant fee charged for granting a licence to operate an oil pipeline was held to be in
reality, a tax
In Australian Tape Manufacturers Case the tax was collected by the copyright owners
association
Mason CJ, Brennan, Deane and Gaudron JJ thought that the requirement of imposition by a
public authority was not a necessary element
 Even so, in this case the copyright owners were merely the collector, the tax was
imposed by Parliament
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Element 3 Requirement of public purpose
 Originated in Magna Carta 1215
 Doesn’t have to go directly into the CRF
Australian Tape Manufacturers v Commonwealth (1991)
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The majority (Mason CJ, Brennan, Deane and Gaudron JJ) held that the levy paid to copyright
owners was a tax
The tax was for a public purpose to bring about ‘a solution to a complex problem of
public importance’
Attorney - General (NSW) v Homebush Flour Mills (1937)
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Flour Acquisition Act 1931 (NSW) appropriated all flour produced in the state
– Producers had the right to compensation after the flour was sold
– Producers had to store them until it was sold
– It was cheaper for producers to buy back the flour themselves and sell it
Held: the scheme was a tax
– The scheme was set up to help poor farmers
– It was not a fee for service to the individual parties
What are not Taxes?
 Payment for services and fines and penalties for breaches of law are not taxes MacCormick v
FCT (1984)
– Re S 53: a law does not become a taxation law ‘by reason only of its containing
provisions for the imposition or appropriation of fines or other pecuniary
penalties, or for the demand or payment or appropriation of fees for licences,
or fees for services under the proposed law’ .
Quereshi v Minister of Immigration (2005)
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S 209 of the Migration Act authorised the recovery of the cost of detention from illegal
immigrants detained under the Act
o The immigrants are detained against their wishes and the services they receive are
not requested by them
Held by Kenny J: the charge was a fee for service and not a tax
o It could have been argued though that this was a tax as it was aimed at the public
purpose of enforcing the Migration Act and border control
The decision was not reviewed by the High Court
One Subject Requirement
State Chamber of Commerce & Industry v Cth (1987)
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Challenge to the Fringe Benefits Acts.
o Dealt with separate categories of fringe benefits at different rates.
Held: the question is one of fact and value judgment.
o Court deferred to Parliament’s understanding that it was all on one subject.
Strict requirement adhered to in Air Caledonie v Cth (1999)
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Stage 1 Continued  Is this a CUSTOM or EXCISE DUTY?
This is a powerful means of economic regulation as judicially acknowledged Hematite Petroleum Pty
Ltd v. Victoria (1983), Dickenson’s Arcade Pty Ltd v. Tasmania (1974)
Customs Duties
 Meaning of customs is quite straightforward. The tax applies at the point of import into or
export out of the country of goods.
 “The taxpayer is taxed by reason of, and by reference to, his importation or
exportation of goods.” – Fullagar J in Dennis Hotels v Victoria (1960)
 The Commonwealth imposes customs duties on different goods at different rates
 Must be the same throughout the Commonwealth per s 98
Excise Duties and Examples
 Current Broader view: Excise duty may be imposed at any point in the chain of distribution
 ‘A tax upon a commodity at any point in the course of distribution before it reaches
the consumer produces the same effect as a tax upon its manufacture or production’.
– Dixon J in Parton v Milk Board (Vic) (1949)
 Narrow view: it means a ‘duty analogous to a customs duty imposed upon goods either
in relation to quantity or value when produced or manufactured, and not in the
sense of a direct tax or personal tax’. - Griffith CJ in Peterswald v Bartley (1904)
 There need not be an arithmetical relation to quantity but a ‘close relation to the
production or manufacture, the sale or the consumption of the goods …’ Dixon J in In
Matthews v. Chicory Marketing Board (Vic) (1938)
Mechanism of Marketing Boards cannot be used to avoid the prohibition on states charging
excise duties
 A main method of avoiding the s 90 prohibition was to set up a marketing board for
particular commodities funded by charges levied on marketed goods – e.g. Chicory
Marketing Board Parton v. Milk Board (1949)
 Levy on owners of milk depots at the rate of ‘one quarter of a penny per gallon for
every gallon of milk so sold or distributed’.
 The High Court by 3:2 majority, struck down the law
Mechanism of Licensing Fees Allowable Under Strict Circumstances
Dennis Hotels Pty Ltd v. Victoria (1960)

Licences granted to hotel owners on payment of fees calculated on the cost of liquor
purchased by them in the preceding year.
 Upheld by majority as not excise
 A ‘tax is not a duty of excise unless the criterion of liability is the taking of a step
in a process of bringing into existence or to a consumable state, or passing them
down the line which reaches from the earliest stage in production to the point of
receipt by the consumer’ - Fullagar J at 559 (with Kitto and Taylor JJ agreeing)
 On this view, a tax based on the volume of past purchases of liquor was
disconnected from the chain of activity
 A key reason for its survival was the reliance on this kind of revenue source
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‘Considerations of certainty and the ability of governments to make
arrangements on the faith of the Court’s interpretation of the Constitution are
formidable arguments against a reconsideration of Dennis Hotels and
Dickenson’s Arcade’. - Mason CJ, Brennan, Deane and McHugh JJ in Capital
Duplicators (No 2) (1993)
Narrowing of the Dennis Hotels Mechanism
 Western Australia v. Chamberlain Industries Pty Ltd held that a tax on a vendor’s receipt for
the purchase price was an excise tax on the goods sold although calculated on periodic
returns.
Current Test
In Capital Duplicators (No. 2) the Court struck down an ACT tax on the video industry

The key difference for Dennis Hotels was the proximity of the criterion of calculation to the
date of production –based on returns 2 months before the licence period
The Court considered 3 factors;
1. Proximity of the criterion of calculation
2. The high rate of tax indicating the revenue raising nature of the tax and
not to fund the scheme
3. Absence of regulatory content
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In Ngo Ngo Ha v NSW High Court struck down the State tobacco licence fee as being an
excise duty, the fee of 100 % could not be regarded as a mere fee for a licence
 Also there was minimal regulatory content in the legislation
 Ha endorsed genuine franchise fees on alcohol and tobacco (upheld in Dennis
Hotels and Dickenson’s Arcade) but left open the question concerning petrol
franchise fees earlier sanctioned by H. C. in Sleigh Ltd v. South Australia (1977)
Stage 2  PROCEDURAL LIMITS ON TAXATION POWER
1. Taxation laws imposing taxation shall not originate in the Senate - s. 53
2. Senate cannot amend taxation laws – s. 53.
3. Senate may return a taxation bill with a request for amendment. HR need not comply –
s. 53.
4. Laws imposing tax must only deal with tax – s. 55 affirmed in Air Caledonie or is it a
Fringe Benefits Tax Case example?
5. Laws imposing tax (other than customs or excise) must deal with only one subject of
taxation.
6. The procedural limitation in s 55: “but laws imposing duties of customs shall deal with
duties of customs only, and laws imposing duties of excise shall deal with duties of
excise only”.
7. The power to impose customs and excise duties are exclusive to the Commonwealth
Parliament – s 90
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Stage 3  Discrimination
S 51 (ii) “taxation; but so as not to discriminate between States or parts of States”
S 99 “The Commonwealth shall not, by any law or regulation of trade, commerce,
or revenue, give preference to one State or any part thereof over another State or
any part thereof.”
R v Barger (1908)
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Manufacturer’s giving ‘fair and reasonable’ labour conditions exempted from excise duty.
Held: discriminatory as duty could differ from State to State
Elliot v Commonwealth (1935)
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At prescribed ports, seamen required to be licenced to be hired. Ports in WA and Tas not
prescribed.
Majority upheld the law. Preference was not between States but between Commonwealth
ports having regard to local conditions.
o Ports are Commonwealth land
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Tax laws may be used to regulate economic activity or change behaviour
Fairfax v Commissioner of Taxation (1965)
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Act upheld that provided  Income from superannuation funds were taxed unless they
were invested in prescribed public securities
Stage 4  Appropriated APPROPRIATION AND SPENDING
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Purposes not confined to subjects in s.51
High Court has given a very broad interpretation of ‘purposes of the Cth’ - AAP Case,
Combet
 E.g: Appropriation for the Australian Assistance Plan through grants to Regional
Councils approved in AAP Case (1975)
Under s 96, the Commonwealth may give ‘tied’ grants to States – on condition of
implementing some Commonwealth determined policy. Second Uniform Tax Case (1957)
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Degree of specificity of purpose – Combet v Cth (2005)
At issue: Government’s spending of public money on an advertising campaign to promote labour law
reforms
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$1,447,552 was appropriated for the departmental expenditure of the Department of
Employment and Workplace Relations
Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ: Department cannot spend money
any way it wished
Parliament to determine purpose and the degree of specificity of purpose
Appropriation for Ordinary Annual Services of Government (OASG)
 Senate cannot amend a bill for OASG – s 53
 There were arguments between Senate and HR about constitutes OASG
 Under the 1965 Compact the following are not OASG
 Construction of public works and buildings
 Acquisition of sites and buildings
 Items of plant and equipment
 Grants to States under s 96
 New policies not authorised by special law
The Senate can reject an OASG Bill
 In the 1975 Supply Crisis, the Whitlam Government’s Appropriations Bills were not passed
by Senate
 This led to the dismissal of the government by the G-G’
 The G-G acted on Barwick CJ’s advice given extrajudicially
 The Constitution is not explicit on this question, but in S 53: Except as provided in this
section, the Senate shall have equal power with the HR in respect of all proposed laws
GRANTS POWER UNDER S 96
‘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 the Parliament thinks fit.’
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The States are free to reject grants and the conditions
 However, The States Grants (Income Tax Reimbursement) Act 1942 (Cth), in
combination with the other legislation in the package, compelled the States to
accept the condition of not levying income tax in return for Commonwealth grants.
Act was upheld in the First Uniform Tax Case (1942)
The financial dependence so created has strengthened the hand of federal government to
make States do its bidding
The non-discrimination rule in s 99 has no application to s 96 grants - Deputy Federal
Commissioner for Taxation (NSW) v WR Moran (1939)
Conditions must not authorise taking property except on ‘just terms’ as required by
51(xxxi) ICM v Commonwealth (2009)
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FREEDOM OF INTERSTATE TRADE, COMMERCE AND INTERCOURSE
Protectionism before Federation
 Cole v Whitfield (1998) ‘ … principal goals of the movement towards the federation of
the Australian colonies included the elimination of intercolonial border duties and
discriminatory burdens and preferences in intercolonial trade…’ per the Joint Majority
Constitutional Requirements
1. Imposition of uniform duties of customs – s 88
2. Power to impose customs and excise duties made exclusive to Commonwealth
Parliament – s 90
3. Freedom of inter-state trade, commerce and intercourse – s 92
4. Prohibition of preference to one State over another by ‘any law or regulation of
trade, commerce, or revenue’ – s 99
5. Prohibition against law of commerce depriving access to water for irrigation – s 100
6. Grant of power to Commonwealth to regulate navigation, shipping and State railways
(s 98) and to forbid discriminatory or preferential railway tariffs (s 102)
SECTION 92 AS A LIMITATION ON LEGISLATIVE POWER
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Parliament has concurrent power (subject to the Constitution) to make law with respect to
‘trade and commerce with other countries, and among the States’ – s 51(i)
Federal law prevails in case of conflict – s 109
This power is subject to s 92:
‘On the imposition of uniform duties of customs, trade, commerce, and intercourse among
the States, whether by means of internal carriage or ocean navigation, shall be absolutely
free.’
Extends to air travel, through denotation of Constitution accepted in Jones v Commonwealth (No 2)
There is no ‘absolute freedom’ in Law
Early Interpretation of s 92 – “Free Trade Theory”
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Early cases struck down State laws that discriminated against out of State goods
E.g. HCA invalidated WA law that imposed higher licence fees on pubs selling imported
beer (from other states) – Fox v Robbins (1909)
Early cases did not consider non-discriminatory limits on inter-State trade
 However, they were thought not to prohibit non-discriminatory
limitations
 One consequence was that a State could legally monopolise a trade
through state created board.
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Rise of the ‘Individual Rights’ Theory
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The notion that a non-discriminatory limitation on trade may violate s 92 became known
as the ‘individual rights’ theory
 Limits undefined which lead to it being abandoned in the end.
Under this theory a monopoly is justified only if that was the sole practical and
reasonable means of regulating a trade James v Cth
James challenged an order of the SA Dried Fruits Board made under s 20 of the Dried
Fruits Act 1924 (SA) that prevented him from exporting his produce to other
states/overseas.
 The law did not discriminate but he argued successfully that it was a
limitation of freedom to trade interstate contrary to s 92 James v SA
(1927)
The SA Minister of Agriculture then acquired the produce under s 28 of the Act
 James challenged and won again in the High Court and the Privy
Council – James v. Cowan (1932)
Then the Commonwealth government acquired the produce under federal law
 James challenged and won again in HCA and PC - James v.
Commonwealth (1936)
Applied by the HCA and PC to invalidate the Banking Act 1947 (Cth)
 The Act sought to nationalise the banking industry
 Held to violate s 92 although it was non-discriminatory Cth v Bank of
NSW (1948)
 Regulation was permitted not prohibition of trade
Appropriate Tests for Individual Rights Theory
Legislation that directly inhibits free trade between the states is invalid Banking Case (1947)
 Even incidental effects, especially if just trying to circumvent the direct prohibition could
be invalid too.
Essence test of Dixon CJ in Hospital Provident Fund v Victoria
Law that burdens, restricts, or limits something forming part of trade, commerce or
intercourse is invalid.
Both were rejected by the joint majority in Cole v Whitfield
Financial Burden Theory
A law is only invalid if it imposes a custom or duty on interstate/international trade and commerce
Buck v Bavone
15
Cole v Whitfield (1988) – the ‘New Beginning’







the HCA rejected the individual rights theory and restated the law by an unanimous
judgment
 The law on s 92 was in, ”quite an unacceptable state of affairs”
Decision significant as it reversed Engineers approach of strictly literal interpretation
 Considerable consideration of process of creating the Constitution and
thus s 92
Intercourse, and trade and commerce considered two different limbs of s 92
S 92 will apply to laws supported by heads of power other than s 51 (i)
Regulations under the Fisheries Act 1959 (Tas) banned the taking, trading or
possession of crayfish smaller than the prescribed size
The law did not discriminate between crayfish taken in Tasmanian waters those taken
elsewhere
It did not advantage Tasmanian farmers
 It was a conservation measure
 Only practical way of achieving the objective.
Law invalid if it contains, “discriminatory burdens of a protectionist kind.”  Whether direct, or
indirect.  “If a law, Which may be otherwise justified by reference to an object which is not
protectionist, discriminates against interstate trade or commerce… to the extent it warrants
characertisation of the law as protectionist, … it nonetheless offends s 92.”
Analysis of Cole v Whitfield Test
 According to the C v W test, a law will fail only if it has all 3 of the following elements;
1. Burden on trade
2. Discrimination
3. Protection
 Absence of one element will save the law
 Laws that fail the test may take many new forms
 The Court identified, non-exhaustively, 4 examples of impermissible restrictions;
1. Tariffs that increase the price of imports
2. Quotas on imports
3. Differential railway rates
4. Subsidies for local goods
 Commonwealth law that equally burdens interstate and intrastate is valid, ie the
TPA/ACL Cole v Whitfield.
16
Other Examples of Impermissible Restrictions on Interstate Trade
5. Fiscal Equalisation Measures – Bath v Alston (1988)
 Victorian law imposed higher licence fees on wholesalers and retailers who sold
imported tobacco to neutralise their advantage.
 It claimed that the total burden on imported tobacco would be the same as the
burden on local tobacco when it reached the consumer.
 The Court, by a 4:3 majority, rejected this argument.
 According to the majority;
 If Queensland tobacco was subject to wholesale tax in Qld, the
Victorian scheme would place it at a disadvantage.
 If the Queensland tobacco was not subject to wholesale tax in
Queensland, the Victorian law would protect Victorian tobacco by
nullifying Queensland tobacco’s competitive edge.
 Thus a state may support its industries by lowering fees but not by giving subsidies
 Doesn’t matter that current factual circumstances mean protectionism is not
occurring. If the law gives the possibility due to discrimination, it conflicts with s 92.
6. Restrictions for the Wellbeing of the People of the State
Castlemaine Tooheys v. SA (1990)

Castlemaine Tooheys sold beer in non-refillable bottles and SA brewers sold in
refillable bottles
 The Court accepted that the scheme disadvantaged Bond in 2 ways;
1. Non refillable bottles carried a deposit of 15c while refillable bottles required a deposit of 4c
2. Non-refillable bottles had to be returned to the retailer to get the refund while refillable
bottles had to be returned to collection depots (extra burden on Castlemaine Tooheys beer
sellers)
 Court concluded that the practical effect was to limit Castlemaine Toohey’s market
share to 1 %
 SA claimed that the objects of the scheme was
o (a) litter control and
o (b) conservation
 Court found that the objects did not require different modes of returning bottles
 Court also found that SA natural resources were not conserved by the scheme as
Castlemaine Tooheys bottles were made outside the State
 Thus there was no link between the operation of the Act and its aim.
17
To be consistent with s 92 per Castlemaine Tooheys v SA;
1. The law must be necessary or appropriate and adapted to a legitimate object, i.e.
 either protection of the community from a real danger or threat to its welfare, or
 to the enhancement of its welfare.
2. The burden placed on interstate trade must be incidental, i.e. the law’s aim should not be to
impose such a burden. (It was incidental here).
3. Burden on interstate trade should not be disproportionate to the achievement of the legitimate
object
4. There is no reasonable non-discriminatory alternative means
Recently

These principles were affirmed in Betfair v WA (2008) Court unanimously struck down
WA law that prohibited:
(a) betting exchanges (using internet)
(b) betting with such exchanges
(c) publishing WA race fields without authorisation of the Minister



WA said that the scheme was to protect the integrity of the industry
WA also said that betting exchanges made no contribution to the industry
 The Court held that there were alternative non-discriminatory
means such as regulations adopted by Tasmania
Court also held that provision for gaining authorisation to publish race fields is illusory
as the minister was bound (by the party) to implement the policy of prohibition
Betfair v WA added 3 clarifications;
1. Presence of a non-discriminatory object does not save a law
2. Provision for discretionary exemptions will not save a law that has the
object of prohibition
3. A State must not within its geographic region enact legislation that will
adversely affect the national market  Seemingly rejects trade monopolies
upheld in Barley Marketing Board.
18
The Current Test
Betfair v Racing NSW [2012]



It is an offence for a betting operator to use a NSW race field without the approval of
RNSW or HRNSW - s 33 of the Racing Administration Act 1998 (NSW)
 S 33A and regulations allowed the control bodies to levy fees for the
approvals
 The TAB and Bookmakers are required by agreement to pay 4-5%
cent of revenue to the control bodies for running the industry
 Betfair was not so required as it was based in Tas
The fee fixed for granting approval was 1.5% of the amount wagered
Betfair argued that the fee so calculated has a greater impact on it in comparison with
operators with higher margins.
 The argument in effect was that the uniform fee was discriminatory as it did not
recognise a relevant difference between operators
French CJ, Gummow, Hayne, Crennan and Bell JJ: The questions are;
(i) Does the uniform fee disregard a relevant difference between them? If so,
(ii) Whether the fee structure burdens interstate trade to its competitive
disadvantage? If so,
(iii) Whether the burden is reasonably necessary for t he State to achieve a
legitimate non-protectionist purpose.
The Court held against Betfair as it failed on (i) and (ii)


Although the scheme disadvantaged Betfair’s particular business model, it did not
disadvantage interstate trade
Betfair could have arranged itself so as to not be effected by the law in such a way.
7. State Monopolies
 In Barley Marketing Board (NSW) v Norman (1990) upheld a monopoly scheme under which
all barley grown in NSW vested in the Barley Marketing Board
 The decision was based on the rejection of the individual rights theory
 Court thought that where the commodity was a scarce resource, a State monopoly
may offend s 92
 In Betfair v WA the joint judgment thought that purely local commerce cannot be readily
distinguished at a practical level from interstate commerce.
 “constraint upon market forces operating within the national economy by
legal barriers protecting the domestic producer or trader”
 Joint judgment also thought that where there is a national market for goods or
services, State restrictions may offend s 92
 Likely State monopolies may not survive post- Betfair v WA
 But for now Barley Board is authority
19
FREEDOM OF INTERSTATE INTERCOURSE
Definition of Freedom
 Dean and Toohey JJ in Nationwide News v Wills (1992):
‘Freedom of inter-state intercourse is not confined to the physical movement or carriage of
goods or things among the States. It encompasses all of the modern forms of interstate
communication’



Includes a ‘personal freedom to pass to and fro among the States without
burden’ – Cole v Whitfield
Discrimination is not an essential feature of an impermissible burden on interstate intercourse – Brennan J in Nationwide
Does not include protection of, “business profit or pecuniary gain.” Banking
Case
Permissible Restrictions
Nationwide at 59 - a restriction is valid if:
1. The law is enacted chiefly for a purpose other than preventing or
impeding a crossing of a State border;
2. Imposition of the burden is appropriate and adapted to the fulfilment of
the other purpose; and
3. Impediment is an incidental and necessary consequence of the law’s
operation
More recently, “whether the impediment to such intercourse imposed by the regulations is
greater than is reasonably required to achieve the object of the regulations” Gleeson CJ and
Heydon J in APLA Ltd v Legal Services Commission
Where the Same Activity is Both Trade and Intercourse
 E.g. Television broadcasting
 In Nationwide the Commonwealth argued that in such a case the narrower test of freedom
of trade in C v W should apply
• Deane J and Toohey J rejected this proposition and held that this question must be
answered according to the dominant characterisation of the law
20
Trade and Commerce Power  s 51 (i)
Covers all forms of trade and commerce, not just exchange of goods McArthur v Queensland
If goods are headed overseas, Commonwealth regulation valid  O’Sullivan v Noarlunga Meat Ltd
If impossible to tell what is sold interstate and what is sold intrastate, Commonwealth can regulate
 Redfern v Dunlop
If can be separated though, Commonwealth cannot regulate intrastate activities  R v Burgess
Engineers allowed expansion of s 51 (i), such as in Huddart Parker v Commonwealth employers who
are engaged in interstate or overseas trade could be legislated for.
Trade and commerce are anything that involve the exchange of all things, “It covers intangibles as
well as movement of goods and persons.” Dixon J in Banking Case
Doesn’t extend to events preceding trade and commerce  Grannall v Marrickville Margarine
Trade with other countries, uncontroversial Murphyores v Commonwealth
21
Express Rights
Just Terms for Property Acquisition

S 51 (xxxi) grants the Commonwealth limited power to take property on just terms
o State government power is not so limited as the section does not apply to them.
Durhim Holdings Case
o S 18 of the Acquisition of Land Act 1967 (Qld)
 Could be repealed at any point by a normal act of state parliament
Federal Acquisitions Power
S 51 (xxxi) “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… 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.”
Specific
o
o
o
Acquisition with consent of a State, of any railways of the State on agreed terms s 51
(xxxiii)
Acquisition of State property connect with public service departments transferred to
the Commonwealth subject to compensation s 85
 Now exhausted, as only applied at Federation.
Acquisition of territory for the seat of government – s 125 (lead to the ACT).
General acquisitions power under s 51 (xxxi)
o
o
o
o
Authorising takings
Confers owners a right to just terms
Applies to territories under s 122 Wurridjal v Commonwealth (2009), overruling
Teori Tau v Commonwealth (1969), followed in Newcrest Mining v Commonwealth
(1997) power is, “plenary in quality, and unlimited and unqualified.”
If no compulsion, does not fall under s 51 (xxxiii) BMA v Commonwealth
Paragraph (xxxi) applies to all s 51 powers
 Commonwealth cannot acquire property under other s 51 heads of power without paying
just compensation  Attorney-General (Cth) v Schmidt
 Allowed exceptions for executive commandeering of property in time of actual war without
compensation.
o Justified under common law prerogative of the Crown Johnson Fear v
Commonwealth
o Clarified in Burmah Oil v Lord Advocate  Power only possible when enemy is
engaged, not when just approaching.
 Doesn’t apply to payment of on offences committed Mutual Pools v Commonwealth
o Nor tax, receive communal benefits.
 “May well not be susceptible of independent characterization as a law
with respect to the acquisition of property.” Deane and Guadron JJ
Mutual Pools
22
Purpose in respect of which Parliament has power to make laws

S 51 (xxxi) only applies to purposes in respect of which Parliament has power to make laws.
o Not just s 51 powers.
o S 52 for seat of government
o S 71 creating courts.
o Blakey v Cth (1953) allowed acquisition of offices.
High Court Interpretation of s 51 (xxxi)
1. The broad definition of “Property”
Exclusive possession without title amounts to property
Minister for Army v Dalziel (1944)
Land owned by bank of NSW, carpark run on vacant lot by Dalziel, he was allowed compensation on
just terms.
Company Shares
Bank Nationalisation Case




Commonwealth aimed to take over banks without paying compensation, authorised CBA to
compulsorily acquire shares in all the banks.
Provided for government appointed directors, to replace company directors.
No compensation was provided.
Held to be, “a circuitous device to acquire indirectly the substance of a propitiatory
interest” without compensation on just terms
Ships Requestioned in War Time
Is property, but allowed in Marine Board of Launceston v Navy Minister
Cause of Action Vested in an Injured Worker
Georgiadis v Australian & Overseas Telecommunications Co
Commonwealth Act established a more efficient system for compensation, but extinguished
common law action to damages.
Held to be unconstitutional.
“In substance, if not in form, a law for the acquisition of causes”
Rights Conferred by Statute are not property
Commonwealth v WMC Resources, ICM Agriculture v Commonwealth
“a right to compel the performance of a public law duty is not itself property, and the
modification or extinguishment of such a right and duty is not an acquisition of property.”
Brennan CJ in Commonwealth v WMC Resources
23
2. High Court’s Narrow Interpretation of “Acquisition”


Is compulsory under s 51 (xxxi)
Should be link between acquisition and purpose of Cth law Clunies-Ross v Commonwealth
Temporary Possession
 Is acquisition Dalziel
 Taking control, and deprivation/dispossession Bank Nationalisation Case
Need not take the property directly
 Transfer from A to B could be acquisition Collins v Hunter (1949)
 Magennis v Cth (1949)NSW under agreement acquired unoccupied property not on just
terms.
o Held to be a compensable acquisition.
o Act was held invalid.
Acquisition does not include regulation of economic activity that diminishes property value
 High Court has upheld many laws that diminish property value by limiting its use, but do not
transfer title to another party.
Examples



Ban on export of minerals mined Murphyores v Cth (1976)
Empowering lessee to obtain a renewal of lease against the wishes of the lessor Trade
Practices Commission v Tooth & Co (1979)
Fixing prices as so low as to deprive trader of any chance to trade BMA v Commonwealth
Acquisition does not include wealth transfers resulting from nature of the legislative power
exercised
 Nintendo v Centronic (1994)
o No copyright on integrated circuit.
o Later act vested copyright in Nintendo.
 Others could not use
 Prevented Centronic from using it, as they had in the past.
o Held No acquisition unders 51 (xxxi)
 It was a deprivation of prior benefit.
 Claimed that taking away right to fees from already earned before enacting an act, Court
held that no taking of any property, payment of service may be property under s 51 (xxxi)
o Right was statutory though, substitution with less valuable statutory right was not
an acquisition
o Health Insurance Commission v Peverill
 Upheld many times, Mutual Pools, ICM etc.
24
Limitation of Property Use
 Tasmanian Dam Case (1983)
o Commonwealth was essentially taking the rights of Tasmania to build a dam in the
Franklin river away.
o Mason, Murphy and Brennan JJ thought that the restriction of land use limited
Tasmania’s ownership rights, but did not result in the Commonwealth acquiring
property.
 Tasmania deprived of use, but land not taken.
 Owner has to be deprived of use, and government has to take the property
away.
 Deane J held there was an acquisition.
 Newcrest Mining (WA) v Cth (1997)
o Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ
 Legislative cancellation of Newcrest’s mining rights under their existing lease
was an acquisition of property, although the Commonwealth did not
physically take any property.
 Commonwealth acquired, ‘benefit of relief from the burden of
Newcrest’s rights to carry on, “operations for the recovery of
minerals”.’ Brennan CJ
 “No reason why the identifiable benefits… should correspond
precisely to that which was taken.” Gummow J
 Commonwealth v Western Australia (1999)
o Federal law prohibited entry into a designated defence practice area whenever an
authority was issued to conduct practices.
 Some of the affected land was State land.
 State claimed it deprived of access to minerals, thus its mineral
rights were acquired.
o Majority  Frequent or prolonged authorisations could amount to an acquisition of
property in the minerals.
 Depravation of use, not actually taking the minerals.
 Wasn’t frequent or prolonged in this case, thus action failed.
o Shows that High Court moving away from necessity of Commonwealth to take away
property.
 Callinan and Kirby JJ dissented, saying there was an acquisition of property.
 ICM v Cth (2009) (Plaintiff Failed)
o Plaintiff had right to water access under State license.
 New licenses lead to water entitlements being seriously decreased
 HC said no acquisition Ground water natural resource, State always had
power to limit the volume taken, its capacity to control the water resource
was not enlarged by the reduction in the plaintiff’s water entitlements.
 There is also no common law right to ground water.
o Distinguished Newcrest, saying Water and Minerals different. Minerals are exclusive,
so in Newcrest, the Commonwealth regained the minerals.
 Minister Administering the Water Management Act (2010)
o HC said ground water is not “water of rivers” within the meaning of s 100
25
Just Terms




Not market value.
Fair amount taking the property owner’s and public interests into account. Nelungaloo
o Occurred during WWII, when powers of Cth extended due to defence power. Dalziel
Recently, “the owners of property, compulsorily acquired… are not required to
sacrifice their property for less than it is worth.” Brennan J in Georgiadis v Overseas
Telco Corp (1994)
o In crisis ”Estimating the sum which a reasonably willing vendor would have
been prepared to accept and a reasonably willing purchaser would have been
prepared to pay for the property at the date of the acquisition”  Williams J in
Nelungaloo
Ultimately a matter for judicial discretion, but the tribunal deciding the compensation must;
o Be unbiased Bank of New South Wales Case
o Must give the property owner cause to be heard Commissioner of Police v Tanos
Circumvention of Just Terms Clause


Used s 96 tied grants to use States to take property in return for money on terms that aren’t
just.
o Legislative scheme invalidated in Magennis
 “The constitutional provision is not limited in terms to laws providing
for the acquisition of property by the Commonwealth itself.” Latham CJ
o Executive agreement acceptable
 Upheld in Pye v Renshaw (1951)
 Approved Latham CJ in SA v Cth (1942) – “The Commonwealth may
properly induce a State to exercise its powers… by offering a money
grant.”
Issue has recently reopened by High Court
o Relationship between s 51 (xxxi), s 61 and s 96 where informal arrangements made
between executive of States and Cth left open by three of the majority judges in ICM
v Commonwealth
 Likely to be reconsidered in Spencer v Cth (2010) when it returns to the High
Court.
26
Non-Discrimination on Religious Grounds – s 116
“The Commonwealth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any religion, and no
religious test shall be required as a qualification for any office or public trust under the
Commonwealth.”
1. Has no application to the states Kruger v Commonwealth
2. All acknowledgeable religion, “not… confined to the Judaic group of religions.” Mason CJ
and Brennan J in Church of New Faith v Commissioner of Pay-Roll Tax (Vic)
a. Belief in a superior being.
b. A set of rules to give effect to that belief.
But… “Religious conviction is not a solvent of legal obligation.”
c. Includes non-belief Latham CJ in Jehovah’s Witnesses Case
Establishment Clause Bars:
o Imposing any religious observances or establishing a religion.
o Religious test for any office or public trust under the Commonwealth
AG (Vic); Ex rel Black v Cth
o
o
o
o
o
High Court upheld public funding of religious schools
 General support of religions is okay.
Barwick CJ and Wilson J: “Establishment” meant establishment of a religion as a
national or Commonwealth institution.
 “The law must be a law for it [establishing a religion]” to be inconsistent
Gibbs and Mason JJ: Only bars erection of a religion as the official state religion.
 Gibbs Unsure whether it applies to s 122, likely, but “I need not finally
decide.”
 Would now, due to Wurridjal v Cth
Stephen J: Ban prohibits discrimination between religions.
Murphy J (in dissent): He followed US approach.
27
Free Exercise Clause
 Protects not only free exercise but also freedom not to have a religion  Jehovah’s Witness
Case
 Subject to limitations
o “reasonably necessary for the protection of the community in the interests of
social order” Rich J in Jehovah’s Witness Case
o “It is consistent… [with s 116]… to restrain actions and courses of conduct
which are inconsistent with the maintenance of civil government or prejudicial
to the continued existence of the community.” Latham CJ in Jehovah’s Witness
Case
 Laws of general application that incidentally impacts on religious freedom are not barred.
Only laws that are aimed at limiting religious freedom are disallowed Kruger

Krygger v Williams
o Krygger objected on religious grounds to undergo peacetime military training.
o S 143 (3) persons are forbidden by religion to bear arms are allotted to noncombatant duties.
o Krygger argued that military drills were as sinful as gambling or any other sin.
o The argument was rejected as the Act had provided for objection based on religious
grounds.
28
Implied Rights
Necessary implications
Are logically necessary given the Constitution;

S 73. ‘The High Court shall have jurisdiction, with such exceptions and subject to such
regulations as the Parliament prescribes, to hear and determine appeals from all
judgments, decrees, orders, and sentences … of the Supreme Court of any State …’
 It is a logical implication of s 73 that a party to a Supreme Court judgment is entitled
with leave to appeal to the High Court
 Held in Cockle v Isaksen (1959)

S 24. ‘The House of Representatives shall be composed of members directly chosen by the
people of the Commonwealth’
 It is a logical implication that people have a right to choose
 Held in Roach v Electoral Commissioner(2007)
Ban on Bills of Attainder



Ex post facto law  A law having retrospective effect
Australian Parliament is not sovereign
o The separation of powers prevents Parliament from enacting Bills of Attainder
o “a person should not be convicted of an offence save after a fair trial
according to the law.” Gaudron J in Dietrich v The Queen
Nullum crimen, nulla poena sine lege
The principle that a person must not be punished for a lawful act or suffer greater punishment
than what is prescribed by law is a fundamental demand of the rule of law
o It is universally recognised and expressed
It means:
1. There is no crime unless the law has prohibited the act
2. The punishment prescribed for a crime must not be increased after the commission

The principle is enshrined in the Art 15(1) of the International Covenant on Civil and Political
Rights (ICCPR)
Art 15 (1) of ICCPR: No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time when the criminal offence was
committed. If, subsequent to the commission of the offence, provision is made by law for
the imposition of the lighter penalty, the offender shall benefit thereby.
29
The Nuremberg Exception
 Defendants accused of war crimes and crimes against humanity pleaded the defence that they
were carrying out lawful orders.
 The Tribunal rejected the defence
 Their reason is enshrined in Art 15(2) of the ICCPR: ‘Nothing in this article shall
prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the
general principles of law recognized by the community of nations’
Polyukhovich v Commonwealth (1991)





The defendants were accused of War Crimes during World War II in the Ukraine
These were technically not offences under Australian law
 Physically external to Australia, victims were not Australia, Australian courts did not
have jurisdiction, not against Australian law.
The War Crimes Act 1945 (Cth) made these acts punishable in Australia
The Court upheld the Act on grounds that the Parliament did not determine guilt of the accused
but left it to the Court to do so, Hence it was not a bill of attainder
 Retrospective criminal law allowed as long as it doesn’t violate Ch III limits
 Upheld in Nicholas v The Queen
The Nuremberg exception was not used
 Nevertheless, all the judges who addressed the question (6 out of 7) held that bills of
attainder (ex post facto criminal laws) are unconstitutional on separation of powers
grounds
 Such a law will amount to a legislative usurpation of judicial power
 “The vesting of judicial power in Ch III courts, imports a
restraint on Parliament’s power to enact such laws [Bills of
attainder]” Mason CJ

Could be upheld to protect the community, Fardon but very strict requirements of
trial are necessary, and the law’s limitations on the individual must not be
disproportionate or ill-adapted to its protective nature Fardon
 Ex-post-facto law is acceptable for the state courts, to the extent it
doesn’t undermine their role in the federal judicial system.
30
Right to Fair Trial Before the Courts


The right to a fair trial before being deprived of life, liberty or property is an essential
attribute of the rule of law Dietrich v The Queen
Courts determining a dispute must act judicially
 That is, not arbitrarily but fairly Dietrich v The Queen
 “The requirement of fairness is…. Additional to the requirement
that a trial be conducted in accordance with the law.” Gaudron J in
Dietrich
 Admission/exclusion of certain evidence
 Adjournments
 Moving location of trial
 No general right to legal aid
o “Such a find is… inextricably linked to the facts of the
case” Mason CJ and McHugh J.
o

Deane and Toohey JJ in Leeth v Commonwealth (1992) Courts must ‘exhibit the
essential attributes of a court and observe ... the essential requirements of the
curial process, including the obligation to act judicially’.  Acceptance of
Alexander’s
o Deane J in Polyukhovich: Ch III is based ‘on the assumption of traditional judicial
procedures, remedies and methodology’.
o The power to lodge an appeal to the High Court with leave is an associated
constitutional entitlement Cockle v Isaksen
Recently, the High Court ruled that a State Parliament cannot remove the supervisory
jurisdiction of the Supreme Court – Kirk v IRC (2010)
 This decision strengthens the right to a fair trial under State law due to
Cockle providing for appeals from the Supreme Courts
The Ban on Executive Deprivation of Life, Liberty and Property
Australian Communist Party v Commonwealth (1951)

o
o
o
Arbitrary power was not conducive to maintain the Constitution but in fact
undermined the rule of law that supported the Constitution
 Thus, any executive act so offending would be invalid.
Communist Party Dissolution Act 1950 (Cth) was designed to ban the Australian
Communist Party, to liquidate its assets and to disqualify its members from public
office.
The deprivations were to be imposed by executive order of the Governor-General
The High Court invalidated the Act on the ground that it was not within defence
power in time of peace.
31
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992)

Brennan, Deane and Dawson reaffirmed the constitutional rule with respect to executive
detention
 ‘Involuntary detention in custody by the State is penal or punitive in character and,
under our system of government, exists only as an incident of the exclusively judicial
function of adjudging and punishing criminal guilt’.
 The following are not punitive according to Lim
o detention pending investigation and trial
o detention in cases of mental illness
o detention in cases of infectious disease
o detention in cases of illegal immigration
o detention in cases where refugee status is yet to be determined
o punishment by Parliament for contempt
o punishment by military tribunal for issues of military discipline
 They may be effected by the executive subject to the supervisory jurisdiction of the Courts
Freedom of Communication
Nationwide Newspapers v Wills (1992)


Concerned the publication of an article calculated to bring Australian Industrial Relations
Commission into disrepute by imputations of corruption.
 Act in question  Unanimously interpreted as penalising statements even if they
were true or were reasonable and justifiable criticism
Held by all the judges: Unconstitutional
 Dawson J
 Beyond the power conferred by s.51(xxxv) – industrial relations
 It was disproportionate to achievement of any legitimate end
 Mason CJ and McHugh J
 S.299(I)(d)(ii) lacked sufficient connection with s.51(xxxv) - lacked
proportionality
 Freedom of speech in relation to public affairs and institutions to be
taken into account in determining proportionality
 Brennan, Dean, Toohey and Gaudron JJ
 Section is sufficiently connected to s51(xxxv) – no lack of
proportionality
 However, all powers under s 51 are “subject to this Constitution”
 The Constitution contained an implied freedom of communication
subject to reasonable restrictions
 The act imposed an unreasonable restriction
32
Australian Capital Television v Cth (ACTV) (1992)
Australian Broadcasting Tribunal Bases of the Challenge:
 The law violated the implied freedom of communication
Decision:


Six of seven judges (Dawson J dissenting): Constitution guaranteed freedom of
communication
Mason CJ, Dean, Toohey, Gaudron, McHugh JJ (Brennan J disagreeing): Broadcasting Act’s
limitations unreasonably restricted that freedom
Two stage process of reasoning:
1. Constitutional provisions reveal an intent to set up a representative form of
government
2. Freedom of communication is essential to the functioning of this form of
government
Deane and Toohey JJ (Nationwide)


The very act of voting amounts to communication
There is a need for communication
 between the representative and the represented
 among the represented
 Communication and information on matters relating to government are essential to
representative democracy
 “The doctrine [of representative democracy] presupposes an ability of represented
and representatives to communicate…”
Mason CJ (ACTV)



“Indispensable to that accountability and that responsibility [of representative
government] is freedom of communication.”
“The concept of freedom to communicate with respect to public affairs and
political discussion does not lend itself to subdivision.”
– Inter-relationship of the various levels of government.
“Restriction must be no more than is reasonably necessary to achieve the protection
of the competing public interest.”
– Restrictions on mode are easier than on content to justify
– Supported by Brennan, Deane, Toohey, Gaudron JJ
33
Unanimous court in Lange v ABC
 “Freedom of communication on matters of government and politics is an
indispensable incident of a [representative government] ‘directly chosen by the
people.’”  Majority, regarding ss 7 and 24.
 “It cannot be confined to the election period.”
o “Electors would be deprived of the greater part of the information necessary to
make an effective choice at the election.”
 “it is a requirement and not a right of communication.”
Test for Validity of Law per Joint Majority of Lange;
o 1. “Does the law effectively burden freedom of communication about government
or political matters either in its terms, operation or effect?”
o 2. If the law does so, “is the law reasonably appropriate and adapted to serve a
legitimate end the fulfilment of which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible government..?”
 “Manner of achieving the end as much as the end itself that must be
compatible with the maintenance of the constitutionally prescribed system
of representative and responsible government.” McHugh J (Gummow, Kirby
and Hayne JJ agreeing) in Coleman v Power
 Banning an insult is not reasonable.
 Can read down an act’s effect.
 “A law that prevents citizens from having access to the media may
infringe the constitutional zone of freedom.” McHugh J in Levy v Victoria
Actions as Communications
Levy v Victoria (1997)
–
–
“Actions as well as words can communicate ideas.” Brennan J
Victorian law was a reasonable restriction of freedom to protect safety
Freedom of Communication Applies to State law
 Mason CJ, Deane, Toohey & Gaudron JJ in ACTV: Freedom of communication cannot be
subdivided to correspond with tiers of government
 Majority in Stephens WA Newspapers (1994): Freedom of communication extends to the
discussion of the conduct of members of State legislature
Freedom of communication is subject to reasonable restrictions
 Content refers to ideas or information communicated
 Mode refers to method of communication
 Restrictions on content are more difficult to justify than restrictions on mode (Mason CJ,
McHugh J in ACTV)
The Constitution does not protect commercial communications
• In APLA Ltd v Legal Services Commissioner (NSW) (2005), the High Court rejected a
challenge based on freedom of communication for banning advertising
• It was held that limiting the marketing of legal services is not incompatible with a system of
representative and responsible government
34
Freedom of Communication and Common Law of Defamation
Theophanous (1994)
•
Expanded the defence of qualified privilege to conform to the constitutional freedom of
communication recognised in ACTV etc
Refinement of the defence in Lange v ABC (1997)
“The common law rules of qualified privilege will then properly reflect the requirements… of
the Constitution.”

Defence applies where communication is to
o a wide audience Qualified privilege hadn’t applied.
o relates to government or political matter
• The statement must be reasonable. It is reasonable if:
1.
2.
3.
4.
There are reasonable grounds to believe it is true
Writer/publisher took reasonable steps to verify facts
Did not believe it to be untrue
Sought a response unless it was impractical or unnecessary to do so
Malice (improper purpose) defeats the defence


Intention to cause political damage is not improper purpose
Common law and statutes can expand the defence but not restrict it
Implied Freedom of Association
Obiter dicta in ACTV:



Mason CJ (139): Representative government depends on free communication between all
persons, groups and bodies
Gaudron J
o “the notion of a free society governed in accordance with the principles of
representative parliamentary democracy may entail freedom of movement,…
association, and, perhaps… speech generally.”
McHugh J (277): Conclusion to be drawn from ss. 7 and 24 is that the freedom of
participation, association and communication in relation to federal elections is protected by
the Constitution
Logical inference from ratio in ACTV
 Representative and responsible government is established by the Constitution
 Freedom of communication is essential to this form of government
 So is associating for political purposes?
35
LEGISLATIVE AND CONSTITUENT POWERS OF THE STATES
THE STATES
•
On Federation;
s106. The Constitution of each State of the Commonwealth shall, subject to this
Constitution, continue as at the establishment of the Commonwealth …until altered
in accordance with the Constitution of the State.
o S 52 powers taken away.
s107. Every power of the Parliament of a Colony … which has become or becomes a
State, shall, unless it is by this Constitution exclusively vested in the Parliament of
the Commonwealth or withdrawn from the Parliament of the State, continue as at the
establishment of the Commonwealth …
LEGISLATIVE POWER OF STATE PARLIAMENT
•
Legislative power is “to make laws for the peace welfare and good government of the
colony in all cases whatsoever”. - S 2 of the Constitution Act (Qld)
o Affirmed by the Privy Council with regards to India in R v Burah
 “was intended to have, plenary powers of legislation.” Lord Selborne
CONSTITUENT POWER OF STATE PARLIAMENTS
•
•
The power of State Parliaments to amend, by ordinary legislation, the Constitution Acts was
affirmed subject to certain limitations in the Colonial Laws Validity Act 1865 (Imp)
In McCawley v R [1920], the Privy Council held that State parliaments may make laws that
are inconsistent with Constitution without formally amending the Constitution
o But when a law concerns the “constitution, powers and procedure” of parliament,
manner and form requirements (if any) must be followed (s 5 of the CLVA)
o “the Legislature of Queensland is the master of its own household, except
insofar as its powers have in special cases been restricted.”
Limits on State legislative power before Australia Act 1986
1. State laws could not be repugnant to Imperial laws extending to the State (s.2 of CLVA)
“to the extent of repugnancy…. Be and remain absolutely void and
inoperative.”
2. UK Parliament had power to legislate for the States
3. States had no power to make laws having extra-territorial effect
4. Laws respecting the ‘constitution, powers and procedure’ of parliament must be ‘passed in
such manner and form as required by any Act of Parliament, letters patent, Order in
Council, or colonial law for the time being in force’ (s.5 CLVA) per McCawley v R
5. State legislatures could not legislate against the Commonwealth Constitution or
Commonwealth laws – Ss 106, 107, 108 and 109 of the Constitution
36
The position after the Australia Act 1986 (UK)
• UK Parliament has no power to legislate for the States (s.1)
• States have, “full power to make laws for the peace, order and good government of
the State” (s.2(1))
• States may legislate extra-territorially but has no power to engage in relations with foreign
countries (s.2(2))
• State laws are not void for repugnancy with UK law (s.3)
o Only post Australia Act
o Legislation that already existed and was void, would remain void.
• State legislative powers remain subject to the Commonwealth Constitution (s.5)
• Laws respecting the constitution, powers and procedure of parliament must be ‘made in
such manner and form as may from time to time be required by a law made by that
Parliament, whether made before or after the commencement of this Act’(s.6)
o Only laws following the Act must conform to manner and form of that parliament.
• State law cannot be disallowed by Her Majesty (s. 8)
• No State law is to be withheld for Her majesty’s pleasure (s. 9)
• Termination of the responsibility of UK government in relation to States matters (s.10)
• Termination of appeals to the Privy Council from decisions of State Supreme Courts (s.11)
• Can only be changed under the Australia Act if approved by the parliaments of the affected
states, never occurred and very unlikely. (s. 15)
THE MANNER AND FORM LIMITATION
Section 5 of CLVA: “Laws respecting the “constitution, powers and procedure” of parliament
must be ‘passed in such manner and form as required by any Act of Parliament, letters
patent, Order in Council, or colonial law for the time being in force’
Section 6 of the Australia Act:
“… a law made after the commencement of this Act by the Parliament of a State respecting
the constitution, powers or procedure of the Parliament of the State shall be of no force or
effect unless it is made in such manner and form as may from time to time be required by a
law made by that Parliament …”
Important differences between s 5 of CLVA and s 6 of Australia Act
1. S 6 of AA applies to Acts passed after the commencement of the AA – March 3, 1986 S 5 of
the CLVA applies to State Acts passed before March 3, 1986
2. Acts passed before March 3, 1986 must have satisfied manner and form requirements set by
‘any Act of Parliament (UK), letters patent, Order in Council, or colonial law’
 Acts passed after March 3, 1986 must have satisfied manner and
form requirements set ‘by that Parliament’ (Parliament of the State)
3. Section 6 of the Australia Act employs the words ‘made in such manner and form’ whereas
section 5 of the CLVA employs the words ‘passed in such manner and form’
 This change was made to eliminate any doubt that manner and form
obligations attached to extra-parliamentary requirements such as
referenda
37
Understanding ‘manner and form’ limitation
Q 1: Is the Act one respecting the “constitution, powers and procedure of parliament”?
Affecting the executive branch is not with regards to the constitution, powers and procedure
Trethowan
Constitution
•
•
Qualifications of members does not concern the “constitution” – WA v Wilsmore (1981)
following Clydesdale v Hughes
A change to the method of electoral distribution is a law respecting the ‘constitution’ of
parliament – Attorney-General (WA) v Marquet (2003)
o S 13 of the Electoral Distribution Act 1947 (WA): "It shall not be lawful to present to
the Governor for Her Majesty's assent any Bill to amend this Act, unless the second
and third readings of such Bill shall have been passed with the concurrence of an
absolute majority of the whole number of the members for the time being of the
Legislative Council and the Legislative Assembly respectively."
o In 2001, Electoral Distribution Act Repeal Bill was passed by LA by an absolute
majority and by the LC by a simple majority
o On appeal the HCA affirmed that s 13 was a manner and form provisions
o AG (WA) v Marquet joint judgment: s 6 of AA is not confined to laws which abolish a
House altogether, or take away the representative character of a State Parliament or
of one of its Houses
 The judges did not attempt to provide an exhaustive definition of
‘constitution’ within the meaning of s 6.
Powers
•
“Powers” include legislative power, power to punish for contempt of parliament and power
to conduct public inquiries
Procedure
•
“Procedure” refers to procedure for enacting bills including any referendum procedure
o S 6 of the Australia Act applies to referenda Trethowan
Q. 2: Is there a manner and form requirement prescribed in an earlier Act
• A referendum is a manner and form requirement - AG (NSW) v Trethowan (1931)
• A requirement that is too hard to meet is not a valid M & F requirement.
o It is a (disguised) attempt to limit future legislative power - West Lakes v SA [1980]
o Regarded as a limitation of the legislative power of future parliaments especially
when the protected Act does not concern a fundamental aspect of the constitution
o “There must be a point at which a special majority provision would appear as
an attempt to deprive the parliament of powers rather than as a measure to
prescribe the manner or form of their exercise. King CJ in Westlakes
• “Comalco” clauses requiring extra-parliamentary approval are not M & F - they are
abdications of legislative power Comalco v AG Qld [1976]
38
Q. 3: Is the M & F requirement mandatory and not merely directory?
• Failure to observe mandatory provisions makes an act void.
o Provision is considered mandatory if it affects rights
• Directory provisions impose obligations to observe, but non-observance does not
invalidate act. Clayton v Heffron
• Contrast with AG WA v Marquet
Q. 4: Does the M & F requirement apply to itself?
Q 5: Does the M & F provision apply to the later Act?
• S 13 of the Electoral Distribution Act 1947 (WA): “It shall not be lawful to present to the
Governor for Her Majesty's assent any Bill to amend this Act, unless …”
• The 2001 Bill sought to repeal the Act
 Held that amend included repeal in this context
• Gleeson CJ, Gummow, Hayne, and Heydon JJ: To read ‘amend’ to exclude ‘repeal’ would
defeat the evident purpose behind the introduction of the provision
o Would have led to an absurdity
AG WA v Marquet
Q. 6: Has the plaintiff standing to bring an action where M & F are not satisfied?
• A person has standing to challenge a law only if the law affects the person’s private right
• A person cannot sue to vindicate a public right or prevent a public wrong – ACF v Cth (1980)
• Public rights are vindicated by the Attorney-General
o A-G may also lend his name to an individual to sue (relator actions)
• S.53(5) of Constitution Act (Qld) gives standing to every elector to challenge a law passed
contrary to the referendum requirement in s. 53.
o Rights must be affected to bring an action still
Q.7: Can the Court stop by injunction, a law being enacted contrary to M & F requirements?
• Courts will strike down laws not complying with M & F
o Courts are reluctant to stop the legislative process by injunction when M & F are
being disregarded (Trethowan)
• S. 53(5) of the Constitution Act (Qld) empowers courts to grant injunctions to stop bills being
proceeded with contrary to the referendum requirement in s 53
o No precedent whether they will do so
Q.8: Can the Queensland parliament’s constitution, powers and procedures’ be changed
without a referendum?
• No, according to s. 53
• S. 53 of the Queensland Constitution Act: A bill that expressly or impliedly in any way affects
sections 1, 2, 2A, 11A, 11B and 53 shall not be presented for assent unless approved at a
referendum
o Ss 1, 2 and 2A deals with Parliament
o Ss 11 and 11 A deals with the office of the Governor and the executive branch
• The words ‘in any way affects’ have a broader compass than the words ‘constitution, powers
and procedure’
39
•
•
•
For the above reasons the question arises whether s 53 is binding on the Queensland
Parliament by virtue of s 6 of the Australia Act.
The answer depends on how we answer the next question
Referring to a Commonwealth Act does not amount to abdication of legislative ability, and
thus does not require a referenda R v Fukusato
Q. 9: Can M & F limits be imposed independently of s. 6 of the Australia Act?
The Issue:
•
S. 6 of the Australia Act applies only to law respecting the ‘constitution, powers and
procedure of parliament’
Can a sovereign parliament bind itself on any subject?
Two possible views
•
•
View 1: Sovereign can do anything including limiting its own power
View 2: Sovereign can do anything including repealing or disregarding its own previous
commands
Unhelpful authority
Clayton v Heffron
NSW Parliament has complete and unrestricted power to make laws including laws that change the
constitution.  It can bind itself?
This is inconclusive authority
Bribery Commissioner v Ranasinghe (PC)
•
•
Held: Ceylon Legislature has no power to ignore the conditions of law making  Can’t bind.
However, Ceylon legislature was not sovereign but limited by the Ceylon Constitution
o Hence this case is no authority for the proposition that a sovereign legislature can
bind itself
Reconstitution Theory
•
•
•
This theory holds that a sovereign parliament may reconstitute itself for the purpose of
dealing with specific subjects
o By doing so it can impose manner and form limitations upon itself independent of s
6 of the Australia Act
In Trethowan’s Case, Justices Rich and Dixon observed obiter that the NSW Parliament has
power to reconstitute itself for particular purposes
o “The constitution of the legislative body may be altered” Rich J
Fox Hunting Case lends some support to the reconstitution theory
o Jackson v H.M. Attorney-General (The Fox Hunters Case)[2005]
o However, Lord Steyn and Baroness Hale used the reconstitution theory to support
the conclusion
40
o
o
o
o
Lord Steyn in the Fox Hunting Case: “But, apart from the traditional method of law
making, Parliament acting as ordinarily constituted may functionally redistribute
legislative power in different ways. For example, Parliament could for specific
purposes provide for a two-thirds majority in the House of Commons and the House
of Lords. This would involve a redefinition of Parliament for a specific purpose. Such
redefinition could not be disregarded.”
 Parliament Act 1911(UK) drastically limited the power of the House of Lords.
 Parliament Act 1949 reduced the period to 1 year. This Act was passed by
Commons under the 1911 Act without Lords’ consent
 The Hunting Act 2004 was passed by Commons under the 1949 Act without
Lords’ consent
Argued: Commons + Queen is a subordinate body. It cannot increase its own power.
1949 Act is ultra vires the 1911 Act (hence not valid)
Held:
Commons + Queen is a subordinate body.
 Its powers are limited – e.g. it cannot abolish the House of Lords or lengthen
the life of Parliament
 But the express and implied limitations did not preclude the enactment of
the Parliament Act 1949 (which further reduced the power of the Lords)
The Queensland Position
•
•
•
The words ‘in any way affects’ has broader compass than ‘respecting the constitution,
powers and procedure’
A law containing a MFR that diminishes the power of Parliament, hence itself requires a
referendum
Assuming s 53 is valid, the Queensland Constitution Act cannot be amended with respect to
Parliament and the office of the Governor without a referendum
o Follows King’s CJ’s comment that for it to be of any use, “the entrenching clause
must itself be entrenched.”
Constitution Act 1867 (Qld) Extracts
Requirement for referendum
S 53 Certain measures to be supported by referendum
(1) A Bill that expressly or impliedly provides for the abolition of or alteration in the office of
Governor or that expressly or impliedly in any way affects any of the following sections of this Act
namely— sections 1, 2, 2A, 11A, 11B; and this section 53 shall not be presented for assent by or in
the name of the Queen unless it has first been approved by the electors in accordance with this
section and a Bill so assented to consequent upon its presentation in contravention of this
subsection shall be of no effect as an Act.
(2) On a day not sooner than two months after the passage through the Legislative Assembly of a Bill
of a kind referred to in subsection (1) the question for the approval or otherwise of the Bill shall be
submitted to the electors qualified to vote for the election of members of the Legislative Assembly
according to the provisions of the Elections Act 1915–1973 and of any Act amending the same or of
any Act in substitution therefor.
41
Such day shall be appointed by the Governor in Council by Order in Council.
(3) When the Bill is submitted to the electors the vote shall be taken in such manner as the
Parliament of Queensland prescribes.
(4) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for
reservation thereof for the signification of the Queen’s pleasure.
(5) Any person entitled to vote at a general election of members of the Legislative Assembly is
entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to
enforce the provisions of this section either before or after a Bill of a kind referred to in subsection
(1) is presented for assent by or in the name of the Queen.
S 1 Legislative Assembly
There shall be within the said Colony of Queensland a Legislative Assembly.
S 2 Legislative Assembly constituted
Within the said Colony of Queensland Her Majesty shall have power by and with the advice and
consent of the said Assembly to make laws for the peace welfare and good government of the
colony in all cases whatsoever.
2A The Parliament
(1) The Parliament of Queensland consists of the Queen and the Legislative Assembly referred to in
sections 1 and 2.
(2) Every Bill, after its passage through the Legislative Assembly, shall be presented to the Governor
for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented
to by or in the name of the Queen.
11A Office of Governor
(1) The Queen’s representative in Queensland is the Governor who shall hold office during Her
Majesty’s pleasure.
(2) Abolition of or alteration in the office of Governor shall not be effected by an Act of the
Parliament except in accordance with section 53.
42
Amendment of the Commonwealth Constitution
Seven Ways to Change the Constitution
1.
2.
3.
4.
By amendment Bill passed by both Houses of Parliament and approved at a referendum
By the transfer of powers from States to the Commonwealth under s 51(xxxvii)
By creation of new legislative power by agreement of all the States under (xxxviii)
By change of initial constitutional provisions by Parliament as authorised by the Constitution
by use of words such ‘unless Parliament otherwise provides’ e.g. Qualification of electors
and members of Parliament (ss 30, 34)
5. By changes through judicial interpretation  Implied rights
6. State constitutions can be amended by State parliaments subject to manner and form
requirements being met
7. By revolution. Constitutional revolutions can be violent as in the American and French
Revolutions or peaceful as in the case of Australia
Constituent Power
•
•
•
Constituent power is the power to make a law that changes the constitution
Some legislatures have both constituent power and legislative power (NZ)
o Where a legislature has both powers there may be special manner and form
requirements to amend constitution.
In Australia the constituent body is the Parliament + Electorate (s.128)
The Concept of Sovereignty
•
•
•
UK Parliament is sovereign.
Commonwealth and State Constitutions were created by sovereign acts of the UK
Parliament.
Sovereignty is limitless power.
o All persons and authorities are subject to the sovereign’s law
o Sovereign is not bound by another’s law
o Sovereign is not bound by its own previous laws (It may change them at will)
o However, ‘limitlessness’ has limits
Limits of Sovereignty (For the UK)
•
•
•
•
•
Territorial limits. Other countries do not obey the sovereign’s laws
Practical political limits. UK Parliament cannot decree that all blue eyed persons be exiled
Limits imposed by general international law
Limits imposed by EU law
Sometimes UK Parliament cannot undo what it has done
o e.g. when it grants independence to a country
o Courts and officials of the independent country will no longer obey the UK
legislation
Hans Kelsen and the Basic Norm
• Norm is an ‘ought’ proposition. Norms are legal or non-legal
• A legal norm is one that has validity conferred by another valid norm.
43
•
•
o Behind every legal norm stands another legal norm.
Ultimately the whole system is based on a basic norm, a political fact
o Australia’s basic norm is s 128 of the Constitution
Change by revolution or by peaceful agreement
Evolution of Australian Independence
1788-1823
• Governor is virtual dictator of colony -holds legislative and executive power
o Only subject to royal orders and imperial legislation
o No legislature
• Governor responsible to Colonial Secretary who was responsible to British Parliament
1823-1828
• Advisory, Legislative Council established for NSW
o British Parliament retains legislative power
Australian Courts Act 1828
• Deprived Governor of power to legislate against the will of the LC
• English law applied in the colony as it existed on 25th July 1828
o After, Imperial laws applied only by ‘paramount force’
ie: if expressly or by necessary implication extended to the colony
1828-1865
• Colonies receive their own Constitution Acts (UK) - Elected Legislative Assemblies and partly
elected or appointed Legislative Councils
Colonial Laws Validity Act 1865 (CLVA)
• UK Acts apply if extended by express words or necessary intendment (s.1)
• Colonial laws that are repugnant to UK Acts extending to the colony are void and inoperative
(s.2)
• Colonial legislatures have power to make laws with respect to (a) courts and (b) the
constitution, powers and procedure of the legislature (s.5)
o Colonial legislatures must observe manner and form requirements in legislating with
respect to (b) above.
Federation 1900
• 6 Australian Colonies are federated under the Commonwealth of Australia Constitution Act
1900 (UK) – CACA
• S. 9 states that the Constitution of the Commonwealth of Australia shall be as follows and
sets out 128 sections.
o First 8 sections established the Commonwealth
• UK Parliament retains power to make law for the Commonwealth and the States
• Australia gained Dominion status
• Since then there were 2 ways to amend the Constitution:
1. S.128 procedure involving referendum
2. Act of UK Parliament amending the CACA.
44
Requirements of s 128
“This Constitution shall not be altered except in the following manner:”
1.
2.
3.
4.
5.
6.
A bill to amend the Constitution must originate in one or other of the Houses
The bill must be passed by an absolute majority of each House
If the bill is deadlocked, the Governor-General may refer it to a referendum
A deadlock occurs when one House passes twice and the other House rejects twice.
There must be an interval of 3 months between the first rejection and the second passing
Failure to pass and passing with unaccepted amendments equates to rejection
•
In 1914, certain amendments were passed twice by the Senate and twice rejected by the HR.
G-G refused to submit them to a referendum on the PM’s advice
If the bill is passed by both Houses, it shall be submitted to a referendum not less than 2
months and not more than 6 months after passage
All persons in States and in Territories entitled to vote at elections to the HR may vote in
referenda
Bill must be approved by (a) majority of all voters and (b) majorities in a majority of States
If the amendment:
•
•
•
•
(a) Diminishes the representation of the State in either House;
(b) Alters the limits (boundaries) of a State, then,
the approval of that State is essential
•
A Bill approved at a referendum must be presented to the G-G for royal assent
Statute of Westminster Adoption Act 1942 (Cth)
•
•
•
•
•
•
The Statute of Westminster was enacted by the UK Parliament in 1931
o Result of imperial conference in 1931 due to the increasing maturity of the
dominions such as Canada
It had to be adopted by the Australian Parliament to be effective in Australia. It was
adopted by Australia in 1942
o During WW2
S.2: CLVA not to apply to the Dominions
o Only to the Commonwealth, not the States (until Australia Act 1986)
o Cth law not void for repugnancy with British law
S.3: A Dominion has extra-territorial power
S.4: No UK Act to extend to a Dominion unless the Dominion requested and consented
to it.
S. 9: Such request must be made by Cth Parliament and (Executive) Government
Question: Could UK Parliament repeal the Statute of Westminster?
•
•
•
UK Parliament is said to be sovereign.
Could it repeal s 4 and s 9 and legislate for Australia even without a request?
Answer depends on whether the Australian Courts and other authorities would
recognise such repeal
o That is most unlikely
45
o
o
•
Politically it may not be possible
It is a question of fact.
 A minority of academics believe they can due to its sovereign nature.
The basic norm may have changed to s.128 because the power to request is subject to
control under s.128 by constitutional amendment
o The constituent power in Australia rests in the two houses of parliament, and
the electorate.
Australia Acts 1986
•
•
1.
2.
3.
4.
Object: to sever remaining constitutional links to UK except monarchy
To remove doubts about validity, the identical Act was passed by both UK and Australian
Parliaments.
o Monarchy still head of state
o Power to appoint Governor of each state and GG but nothing else.
• It involved a 4 stage process
State Parliaments enacted Australia Act (Request) Acts to give Cth power under s.51(xxxviii)
Cth enacted Australia Act 1986 (Cth)
Cth passed Australia Act (Request) Act (Cth) to request UK Parliament to enact an identical
Act (as per Statute of Westminster Act)
UK Parliament enacted Australia Act 1986 (UK)
What the Australia Acts Did
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S.1: No UK Acts to extend to Cth or States -Request provision of S/W repealed by s.12
S. 2: States given full legislative power
S. 3: CLVA limits on State legislative power removed. Repugnancy doctrine repealed
S. 6: Manner and form provisions concerning State parliaments re-enacted (s 5 of CLVA
was repealed)
S.7: State Governors given full powers.
o Queen may exercise such powers when present in the State. State Premiers to
advise Queen
S. 8: State laws not subject to disallowance by Queen
S.9: No withholding of assent by Governor or reservation for Queen’s pleasure.
S.10: Termination of UK government’s responsibility for government of States
S.11: Abolition of appeals to Privy Council
S.12: Request provisions of Statute of Westminster Act repealed
S.15: Method of repealing/amending AA Act (1) Only by Cth Parliament on request or
with concurrence of all State Parliaments
(3) Nothing in (1) prevents the exercise by Cth Parliament of any power conferred upon
it by a constitutional amendment under s.128
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CONSTITUENT POWER AFTER 1986
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UK Parliament has no constituent power (Request provision in Statute of Westminster
has been repealed)
Can UK Parliament repeal Australia Act (UK) and change the Constitution?
o Not likely. Basic Norm has changed again
That leaves s 128 has the only source of constituent power
But Professor Gilbert argues that s 15 of the Australia Act has created another source of
constituent power
Prof Gilbert’s 2nd source of Constituent Power:
Step 1: Cth Parliament amends s.15 (1) of the Australia Act (UK) on request of all States to grant the
Cth Parliament power to amend the Constitution by the same procedure
Step 2: Parliament under s.15 (1) enacts amendment of the Constitution on request of all the States
Note: Australia Act (Cth) cannot be used as it was made under s 51(xxxviii) which is ‘subject to the
Constitution’
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Gilbert thinks that this is not an obstacle to amending the UK Act which was enacted on
request under Statute of Westminster
S 15(1) as amended according Gilbert’s theory:
This Act or the Statute of Westminster 1931 or the Constitution of the Commonwealth of Australia,
as amended and in force from time to time, in so far as it is part of the law of the Commonwealth,
of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the
Commonwealth passed at the request or with the concurrence of the Parliaments of all the States
and, subject to subsection (3) below, only in that manner.
DISAGREEMENT WITH GILBERT’S WAY
Professor Lumb:
S.15 stands in an hierarchical relationship to s.128. s 128 trumps s 15 of the Australia Act
S.128 is the Basic Norm of the Constitution
Also:
Gilbert’s is a “bootstraps” argument May fail because the stream cannot rise above the source.
Relevance of (Fox Hunting Case) [2006]
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UK Parliament is a triumvirate – Queen, Lords and Commons (Queen in Parliament)
Parliament Act 1911 (UK): a Bill rejected by the House Lords over 3 sessions in 2 years
may be enacted by Queen in Commons (without the Lords)
o All three houses had agreed to this Act.
A bill was passed by Commons in 1947 to reduce the time that the Lords could delay
bills, from three sessions over two years to two sessions over one year
o After the Lords rejected the measure over 3 sessions and 2 years, the Commons
enacted it with royal assent – Parliament Act 1949
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The Hunting Act banned cruel forms of fox hunting
It was passed under Parliament Act 1949 after 1 year of House of Lords resistance
Constitutional Legal effect of the Hunting Act
• Challenged the validity of the Parliament Act 1949 arguing that the 1911 Act could only
have been changed by the triumvirate
• House of Lords (sitting as the court) declared both Parliament Act 1949 and the Hunting
Act as valid
o They approved the levitation by bootstraps
o With the limited power it had under Parliament Act 1911, it expanded its power
further.
• Key Reason: There has been a shift of the rule of recognition (Basic Norm) - Parliament
Act 1949 has been treated as valid over a long period
o The decision gives some credence to Gilbert’s theory
• But unlikely to be followed by the High Court because of the presence of s. 128
Can Australia Become a Republic?
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S.128 can be used to amend the Constitution but not the Commonwealth of Australia
Constitution Act (UK).
CACA cannot be changed by recourse to s.51(xxxviii) in a way that alters the
Constitution as that power is ‘subject to this Constitution’
o (To become a Republic)
S. 51(xxxviii) ‘Subject to this Constitution …The exercise within the
Commonwealth, at the request or with the concurrence of the Parliaments of all
the States directly concerned, of any power which can at the establishment of
this Constitution be exercised only by the Parliament of the United Kingdom or by
the Federal Council of Australasia”
May not be necessary to repeal or amend the CACA.
o If the Constitution itself is amended under s 128 to substitute a local Head of State
for the Queen and the Governor-General that may be sufficient
The Courts may hold that the CACA has no further use for the Constitution But what
about the preamble?
o Preamble  “Whereas the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on the blessing of
Almighty God, have agreed to unite in one indissoluble Federal
Commonwealth under the Crown of the United Kingdom of Great Britain and
Ireland, and under the Constitution hereby established …”
The preamble is not a part of the Act
Courts use the preamble as an aid to interpretation in cases of doubt
Preamble may be ignored
o If the preamble cannot be ignored, the stage is set for another constitutional
revolution
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Can a State Secede from Australia?
• There is no provision in the Constitution to permit a State to secede
• The secession of a State is possible only by the amendment of s 3 of the CACA which
establishes the Commonwealth constituting the 6 original States
• CACA could have been amended by the UK Parliament on request and consent of the
Commonwealth Parliament
• But Request provision was repealed by the Australia Act 1986
o Seems to be no way that the States can legally secede
• In 1933, more than two-thirds of the voters in Western Australia voted in favour of
secession
o A petition to the British Parliament to legislate for the secession was referred to a
joint select committee of the Lords and Commons.
o The committee concluded that the petition was not receivable according to
convention in the absence of a request by the Commonwealth government.
o Didn’t decide on the basis of law.
• The Canadian Supreme Court ruled in Reference re Secession of Quebec that the
Province of Quebec has no constitutional right of unilateral secession.
o The Court stated that if the people of Quebec democratically decided to secede,
the federal and other provincial governments have a constitutional duty to
negotiate the terms of a possible secession.
o A State may separate by force and establish its own basic norm (highly unlikely)
o Such a state will struggle to gain recognition as a state at international law
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