Construction Power - railway construction and extension in any State with the consent of that State; Conciliation and Arbitration - conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; Power - matters in respect of which this Constitution makes provision until the Parliament otherwise provides; Interstate Parliamentary Power - matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; of Powers of the United Kingdom - 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; Incidental - matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
Constitutional Checklist Are we dealing with Corporations Power? Is the Company incorporated? Yes – its a Constitutional Corporation Is the Commonwealth regulating act ‘preliminary to trade’ Company is incorporated but not trading Yes, per Commonwealth v Tasmania No, ignore. Is the company trading? Current Activities Test Detail examples of what it is trading Is the Commonwealth Regulating trading activities? S51(xx) Strickland v Rocla Concrete Pipes Can only regulate activities which are ‘trading activities’ Is sufficient connection to trading? NSW v Commonwealth (Work Choices) ‘Objects of Commands Test’ Can regulate internal powers and internal agreements Incidental Scope of the Power? Has the corporation engaged in trading? No - cant held a organisation liable for conduct it has not engaged in Actors Equity case Yes, comes within scope of incidental power NSW v Commonwealth ‘enough to simply relate to the business’ No – its not incorporated yet Is the Commonwealth attempting to regulate Not permissible within the of the s51(xx) power NSW v Commonwealth (Incorporation Case) Cannot regulate pre-incorporation
Is the State attempting to bind a Commonwealth? Yes Can a State law bind the Commonwealth? Cannot bind unless some capacity, necessity or express authority provided. Pirrie v McFalane rejected rule in Adelaide Steamship (which said could bind absolutely) Pirrie said State law could bind if enacted for a specific purpose Upheld in A. V Hayden Cigamatic Immunity? Commonwealth v Cigamatic Commonwealth stood as primary creditor over the States. Cigamatic Improved? Ex Defence Housing Authority HCA Stated Parliaments could not legislate to affect capacity of Commonwealth ‘Reverse Melbourne Corp Doctrine’ Capacity? – State law singles out Commonwealth for ‘special treatment’ Exercise of Capacity? Crown is bound by state law except where inconsistency Commonwealth v Bogle Commonwealth is bound where if State law doesn’t discriminate (subject to inconsistency) S109? – Inconsistency of Laws Commonwealth can pass a law which would supersede a state law – usually avoids problems. Are there any exceptions? S64 Judiciary Act Provides States have rights Commonwealth bound to same laws as private citizens Maguire v Simpson Removes Immunity – removes Cigamatic Only a suit – s64 refers to only a ‘suit’ – inferring not within jurisidictional confinements of a court S52(i) – Power to create laws? Public places – R v Philips – Cth has ultimate power. Trial
The Incidental Scope of Power Incidental Powers – If a law cannot be characterised as ‘with respect to’ the heart or core of a topic, it may still be constitutional valid if it comes within the incidental scope of the Head of Power. There must be a ‘sufficient connection’ with the subject matter of the power and regulating it must be ‘reasonably necessary’ Heads of Power s51 – There are s39 subsections to s51 – each which describes a head of power through which Parliament has the power to make laws. Primary Heads of Power S51(i) – Interstate Trade and Commerce Power S51(xx) – The Corporations Power S51(xxix) – External Affairs S51(ii) – The Taxation Power Express Incidental Power – This is conferred in s51(xxxix) which grants a general power to legislate on ‘matters incidental to the execution of any power’ contained within the Parliament, executive or judiciary Grannal v Marrackville Margarine Pty Ltd (1955) 93 CLR 55 legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.’ Implied Incidental Power – Each of the other heads of power in s51 carries an ‘implied incidental power’ to deal with matters that are ancillary or incidental to the express subject matter. If the matter is deemed ancillary or incidental to the core purpose of the legislative power – then it is an implied incidental power. Cunliffe v Commonwealth (1994) 182 CLR 272 ‘the core and incidental aspects of a power are not separated the power is an entirety’
Matters of International Concern or Customary Law (refer also next page – treaties) The external affairs power also provides the Commonwealth which the power to legislate on ‘matters of international concern’ or to ‘give full effect to rules of customary international law’ Customary Laws - customary laws are accepted by many nations as legally binding and therefore they become ‘customary’ In XYZ v Commonwealth – Callinan and Heydon JJ – Suggested that would be great complexity in the Commonwealth determining whether a matter is of ‘international concern’ and how to determine the level of scope for such a concern. Kirby J gave a lengthly discussion on the topic – but concluded it was ‘still undeveloped’ and would be ‘revisited’. Full Power to Legislate – Without further authority, it infers that the even if there is no treaty in place, and the matter is not extraterritorial – nor affecting relations with another nation – the Commonwealth may still be able to regulate a topic or issue if it is deemed to be ‘of international concern’. REFER TO Incorporate all International Treaties into Domestic Law? (page after next) – **** Koowarta v Bjelke-Petersen**** **** Tasmanian Dams Case **** 3. What is the effect of international treaties on Australian law?
Subject Matter must be External - Commonwealth only implement a treaty under s 51(xxix) when its subject matter was itself an `external affair', - it concerned ET matters or relations with other nations. This Act did not concern such matters. International Concern - Commonwealth under s 51(xxix) could implement a treaty when it related to a matter of `international concern‘. The various UN and international actions regarding racial discrimination showed the topic as such a subject matter. Commonwealth vs Tasmania (Tasmanian Dams case) (1983) 158 CLR 1 Decision: A clear majority of Mason, Murphy, Deane and Brennan JJ confirmed that s 51(xxix) granted the Commonwealth the legislative power to incorporate all of its treaty obligations into Australian law. The Commonwealth was authorised to enact a law to implement the UNESCO Convention for the Protection of the World Cultural and Natural Heritage 1972 to stop the construction of a dam by the Tasmanian govt in a protected area. The thin majority in Tasmanian Dams in favour of the broad interpretation of the scope of s 51(xxix) in Koowarta was converted into unanimous acceptance in Richardson v Forestry Commission (1988) 164 CLR 261. Interpretation – Richardson v Forestry Commission (1988) 164 CLR 261 The thin majority in Tasmanian Dams was in favour the broad interpretation of the scope of s51(xxix) – and this was unanimously accepted in Richardson v Forestry Commission (1988) 164 CLR 261. In this case, HCA found that external affairs powers will uphold laws which are structured to remove Australia’s ‘reasonably apprehended’ obligations under a treaty. Key – Commonwealth is able to legislate on matters which are ‘reasonably incidental’ to treaty obligations. Victoria v Commonwealth (ILO case) (1996) 187 CLR 416 The Majority view from the Tasmanian Dams case was upheld in relation to a Commonwealth industrial relations law which was implemented on the basis of an International Labour Organization standard.
An elastic power? Dependent on the Facts - The defence power has been termed an ‘elastic power which waxes and wanes and ebbs and flows’ by Dixon J in Stenhouse v Colemen (1944) 64 CLR 457 – since its application is highly dependent on the perceived necessity for its enforcement and defence of the Commonwealth. Based on per Thomas v Mowbray [2007] HCA 33 Strategic and international political assessments Probability of external aggression Probability of internal aggression Extreme Hostilities – The HCA indicated Farey v Burvett (1916) 21 CLR 433 that during extreme hostilities it will defer judgement to the Parliament [at 488-49] Defence Power in Peacetime The power has two limbs per the Communist Case – Primary Limb – This limb can be exercised by Parliament in times of war and of peace. Secondary Limb – This limb can only be exercised when Australia is involved in war. Immense Field – Exercise Secondary Limb - Exercise over the second limb would provide the Commonwealth with extreme power and ‘authority over an immense field’ Exercise Primary Limb - The primary limb which ‘cannot exist in the same form [as the secondary limb] in times of otensible peace’ per Fullagar J Primary Limb – The primary limb which is exercisable in peacetime – per R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 – allows the establishment and enforcement of a code of military law. This infers that it the defense power can be exercised to A statutory compulsion to render military service – Krygger v Williams (1912) 15 CLR 366 Legislative Control of Commodities in to facilitate Australian Military needs – Logan Downs Pty Ltd v Cmr of Taxation (1965) 112 CLR 177 Maintenance of discipline in armed forces – Re Tyler; Ex parte Foley (1994) 181 CLR 18
Federal Jurisdictional power – particular State Supreme Courts. Extension of Incompatibility Doctrine in Wilson v Minister for Aboriginal Affairs case Outcomes from Kable Case Chapter II restricts the functions that Parliaments can confer upon State Courts that are vested with Federal Jurisdiction McHugh J Commented on the case in Fardon v Attorney-General Qld (2004) 223 CLR 575 Another is the circumstance with in Kable: legislation that purports to confer jurisdiction on State courts but compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction invested under Ch III impartially and competently. Subject to that proviso, when the Federal Parliament invests State courts with federal jurisdiction, it must take them as it finds them If the Parliament: Deprives Judicial Character - Judicial Appointments that deprive a court of judicial character, this precludes federal jurisdiction Per Forge v Australian Securities and Investments Comission [2006] HCA 44 Mixes Judicial Character – If Parliament provides a Court with functions that are mixed with those of the executive, it would be incompatible with federal jurisdictional functions. Degrades Judicial Appearance – If functions are conferred on a federal court that if carried out would ‘degrade’ or ‘undermine’ the public perception of independent and impartial judicial independence – this may affect the principle. Per Re Criminal proceeds Confiscation Act 2002 [2003] WCA 249 Per Nicholas v R (1998) 193 CLR 173 Future Cases & Kable Barker v R (2004) 223 CLR 513 case Facts: S13A Sentencing Act 1989 (NSW) governed the conditions upon which prisoners who had been given ‘life’ sentences could apply for parole. Under ss 13A(2), such prisoners could apply to SC for the determination of a minimum sentence. After that minimum sentence had been served, they would be able to apply for release on parole. Certain life prisoners (including Baker) were prevented from seek minimum term for his life sentence except under “special” circumstances. Decision: HCA rejected the challenge as Barker was not the sole target of the legislation. Additionally, the exercise of judicial had not in any way been reduced by the provision.
Charter of Rights Some states are ensuring that they preserve the doctrine of separation of powers through parliamentary action. Victorian Charter of Human Rights and Responsibilities Act 2006 – The purpose of this act is protect some aspects of judicial independence and the public perception of judicial integrity through its articulation and protection (albeit limited) of certain human rights Statements of Compatibility – The enactment of the Charter of Humans Rights 2006 (Vic) now means that each new Bill introduced to Parliament must have a Statement of Compatibility which definitively states whether the Bill is compliant with the Charter. Must take into Account – The executive must take into Account the Charter in all new laws and policies being considered under s38. Australian States are now considering similar Charters. Separation of Judicial Power in Territories Territory governments were understood as not limited by Chapter III principles. The Commonwealth has plenary power conferred in s 122, and thus is not ‘subject to this Constitution’ as other Commonwealth powers are. The relationship between Chapter III and s 122 was disjointed, and initially thought to deny any application of Chapter III federal jurisdictional concepts to the self governing territories; Per – R v Bernasconi (1915) 19 CLR 629 Attorney–General (Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529 Spratt v Hermes (1965) 114 CLR 226. The powers and status of Territory courts are not established by s 71 and s 72 of the Constitution, consequently Territorial judges are not required to hold tenure until 70 years of age, see Ex Parte Eastman (1999) 200 CLR 322.
Inconsistency – s109 What is s109? Definition – When a law of the Commonwealth and the States conflicts, the Commonwealth law takes precedence. S109 States ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of inconsistency, be invalid’ How to interpret s109? What is a law for the purposes of s109? A law refers to Acts of Parliament, Statute and Regulations. It does not include industrial awards or agreements unless they are expressly provided for within Commonwealth Statute (i.e. Industrial Relations Act 1988 (Cth)) Ex Parte McLean (193) 43 CLR 472 Are valid laws in operation in both Jurisdictions? Vires – If either the Commonwealth or the State law is found to be operating in excess of its powers – ultra vires – there is no need for a test of inconsistency as one is invalid. Carter v Egg and Egg Pulp Marketing Board (Vic) 1943 66 CLR 557 Has Commonwealth Statute Expressly Provided for Precedence? If Commonwealth Statute has expressly provided for precedence of Commonwealth Statute through the inclusion of a clause such as ‘an award or workplace agreement until this Act prevails over any law of a State or Territory ... to the extent of any inconsistency’ Then the law is invalid (i.e. go back to b. Above) Per Wenn v Attorney-General (Vic) (1948) 77 CLR 84 Per Western Australia v Commonwealth (Native Title) (1995) 183 CLR 373 What is the effect of s109? S109 invalidates State laws only to the extent, and only for the period, that an inconsistency remains – per Commonwealth v Western Australia (1999) 196 CLR 392. If consistency is permanent – the State act becomes ‘inoperable’ per Wenn v Attorney-General (Vic) 77 CLR 84 ‘Restoration’ – If not permanent, or an Commonwealth Act is repealed, then the conflicting State legislation will be ‘restored’ per Western Australia v Commonwealth (Native Title).
‘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’ A wide range of factors have been interpreted for this section – including what constitutes a religion and what is the ‘free exercise’ of a religion. Establishment of a Religion is no ‘official established’ religion in Australia and the establishment a new religion has been approached with strict narrowness by the HCA. Attorney-General (Vic) v Commonwealth (1981) 146 CLR 559 – stated the Commonwealth cannot support any one religion. Prohibiting Free Exercise Law cannot be anti-religious – No law can be anti-religious such that it is considered overt. Overt – The law must actually inhibit the freedom to practice religion. In Jehovah’s Witness case, Starke J stated at 155 ‘the liberty and freedom of religion guaranteed and protected by the constitution is subject to limitations which it is the function and the duty of Courts to expound’ Freedom of Communication (next page) Freedom of Communication Definition –
Defined in Theophanous v Herald and Weekly Ltd (1994) 182 CLR 104 at 124 ‘includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. Concept also includes discussion of political views and public conduct of persons who are engaged in activities that have become the subject of political debate ... Indeed in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices’ This was restricted to some degree to Federal or Constitutional Referenda in Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520 ‘be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of Government’ Although the Court did subsequently provide that it is open to interpretation. Entertainment – Entertainment is not considered ‘political’ – satirical commentary is considered to be protected as per the comments in the Theophanous case ‘[Reasonable] insults are as much a part of communications concerning political and government matters as is irony, humour or acerbic criticism.’ There are Limits to Freedom Can be expressly removed – The Freedom can be removed by laws that are design to achieve legitimate, reasonable, appropriate and purposeful objectives. If such laws are enacted do not achieve aims – it will infringe. Coleman v Power (2004) 220 CLR 1 Held: HCA found that while the law to prevent ‘insulting language in a public place’ was avlid for breaches of the peace – it went beyond what was reasonable for a ‘system of reasonable and representative government’. Manner and Form
What is validity of law? Definition – s128 provides that ‘this constitution shall not be altered except in the following manner.’ Source of Power – The source of power to entrench State laws used to s5 of the Colonial Laws Validty Act 1865 – but it is now s6 of the Australia Acts 1986 (Cth) and (UK) What does it provide? It provides that a law made after the commencement of the Australia Acts by 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 a manner and form as may from time to time be required by a law made by that Parliament. Difference between s128 and s6 Australia Act? S128 is directed at the validity of proposed laws – the legislative power to actually enact the law. S6 – not directed at the validity of proposed laws – rather to the and effect that laws are made by State Parliament. How are State constitutions different from the Commonwealth Constitution? Flexible – State Constitutions are flexible, and thus are not presumed to pose constraints on State legislative power Per Taylor, McCawley Plenary – State parliaments have plenary power (Union Steamship) Restrictions – State legislative power has certain restrictions imposed by the Commonwealth S52, s90 and s109 What is the Standard Procedure for pass of laws through Parliament? What are the respective powers in Victoria and the Commonwealth? Victoria – Victoria Constitution s15