Constitutional Law Notes

Table of Contents Answer Plan

5

Characterisation

6

SUBJECT MATTER POWERS: SUFFICIENT CONNECTION TEST

6

If no sufficient connection - try implied power

6

If it is a Purposive power - Appropriate and Adapted test

7

DUAL AND MULTIPLE CHARACTERISATION

7

Trade and Commerce Power

9

HEAD OF POWER

9

INTERPRETATION - SCOPE OF POWER

9

Meaning of ‘trade and commerce’

9

Where s 51(i) does not have power

10

‘with other countries’

10

‘among the states’

10

CHARACTERISATION

10

LIMITATIONS

10

Nationhood Power

13

HEAD OF POWER

13

INTERPRETATION - SCOPE OF POWER

13

1. Protection of the Nation

13

2. Advancement of the Nation

13

3. No interference with federal balance

13

CHARACTERISATION

13

LIMITATIONS

14

External Affairs Power

16

HEAD OF POWER

16

INTERPRETATION

16

1. Geographic externality [Subject matter: applying the test of ‘s ufficient connection’]

16

2. International comity: purposive power

16

3. Treaty enactment: applying a treaty is a purposive power

16

Entering (and existing) treaties

17

4. Matters of international concern: purposive power

17

CHARACTERISATION

18

1. Geographic externality: subject matter power

18

2. ‘International’ externality: purposive power

18

LIMITATIONS

18

Aliens Power

21

HEAD OF POWER: ALIENS POWER

21

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What is an alien?

21

Can a person born in Australia still be an ‘a lien’?

21

SCOPE

21

Executive power

21

CHARACTERISATION

22

LIMITATIONS

22

Race Power

24

HEAD OF POWER

24

SCOPE

24

1. Does the law relate to a particular race or races?

24

2. Is the law special (i.e. does the law discriminate bet ween one or more groups of people from, and give different treatment to the people of the particular race? 24 3. Was the law deemed necessary by Parliament? Is the law to the benefit of the racial group targeted?

24 24

CHARACTERISATION

25

LIMITATIONS

25

Judicial Power of Commonwealth

26

DEFINITION OF JUDICIAL POWER

26

APPROACH

26

CH III ⎼ THE JUDICIARY

26

Remuneration

27

Tenure

27

INDICIA (INDICATORS) OF JUDICIAL POWER

27

PROHIBITORY RULES

27

PERMISSIVE RULES

28

SEPARATION OF JUDICIAL POWER

29

Principle

29

Administrative body v judicial power

29

Persona designata: exception to Boilermakers

30

Incompatibility doctrine

30

Casualised Judiciary

30

Power to determine criminal guilt is exclusive to Ch III courts

30

Separation of powers & States

31

DETENTIONS

31

Protective

31

Immigration

31

Preventive

31

IMPARTIALITY, INDEPENDENCE & INTEGRITY

31

REMEDIES

31

ACCESS TO CONSTITUTIONAL JUSTICE

31

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Matters

31

Standing

31

Intergovernmental Immunities

32

POSITION BEFORE ENGINEERS CASE

32

Implied immunity of instrumentalities

32

Reserved state powers

32

AMALGAMATED SOCIETY OF ENGINEERS V ADELAIDE STEAMSHIP (1920)

32

LAW LIMITATIONS

32

State prerogatives

32

Taxation

32

MELBOURNE CORPORATION PRINCIPLE

32

REFORMULATED MELB. CORP.

33

STATE LAW + CTH GOVT.

33

Executive Spending Power

34

Implied Freedom of Political Communication

35

NO RIGHT TO FREE SPEECH

35

LANGE V ABC

35

How to know if this implied freedom has been breached?

35

FREEDOM OF POLITICAL COMMUNICATION

35

CASES APPLYING ‘LANGE' TEST

35

MCCLOY V NSW (2015): NEW TEST

36

Acquisition on Just Terms

37

INTERPRETATION

37

Power and continence guarantee

37

States

37

Territories

37

STEPS

37

WHAT IS PROPERTY?

37

ACQUISITION

38

JUST TERMS

38

LIMITATIONS

40

Incongruity

40

s 80: Trial by Jury (Express Right)

41

INTERPRETATION

41

When are proceedings on indictment?

41

Other features

41

LIMITATIONS

41

ACCUSED'S RIGHTS TO WAIVE

41

s 116: Freedom of Religion

42

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SCOPE

42

1. Establishing any religion

42

What is a religion for the purposes of s 116?

42

Scientology case: 5 indicia

42

What constitutes establishment of a religion?

42

2. Imposing any religions observance

42

3. Prohibiting the free exercise of any religion

42

4. No religious test

42

s 109: Inconsistency of Laws

43

REQUIREMENTS

43

HOW IS A ‘LAW’ DEFINED FOR THE PURPOSES OF S 109?

43

LAWS MUST BE VALID AND OPERATIVE

43

Valid

43

Operative

43

TESTS FOR INCONSISTENCY

43

Direct inconsistency

43

‘Cover the field’ inconsistency

45

Step 1: How to Identify the Field?

45

Step 2: Does the Cth Law Express an Intention to Cover the Field?

45

Step 3: Does the Cth law express an intention to not cover the field

45

No retrospective inclusion

45

Notes

48

IMPLIED INCIDENTAL POWER

48

READING DOWN OF LAWS

48

SEVERANCE

48

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Answer Plan 1. What does the Commonwealth legislation in question actually do? First, always consider the Commonwealth law. • Quick summary of facts and issues (material facts + legislation are all relevant facts to be discussed in relation to the problem questions) 2. Identify the head(s) of power that could reasonably be invoked to support a Commonwealth law. If the Commonwealth law can be characterised under many heads of powers, can list all the possible heads of powers BUT only go through the characterisation of the head of power which is most persuasive + obvious. 3. HCA’s interpretation of the power (any authority?) • Look at the scope of the grant of power • Samples: ‣ Section 51 [subsection] of the Constitution enables the Commonwealth parliament to [the purpose of the legislation] → the scope of [head power] has been considered by HCA on a number of occasions. ‣ e.g. the legislation power to enact the Act comes from s 51(i) trade and commerce [head of power] to control the trade of medical grade face masks. In order to do so, the Act is to regulate the selling price, make the standard, and grant license to sell of medical grade face masks. ‣ Stated purpose of the Act was to [insert purpose of legislation]. The Commonwealth Parliament, in passing the law, was reacting to a perceived problem within the community [name], and therefore, was using its discretion to deem this law necessary. 4. Characterisation of the law (a) Non purposive powers: subject matter powers (b) Purposive or implied incidental powers 5. Constitutional Limitation(s) (a) Express limitations i) s 51(xxxi): Acquisition of just terms ii) s 80: Jury trials (b) Implied limitations

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Implied freedom of political communication ii) Melbourne Corporation doctrine iii) Separation of power i)

EXTRA STEPS IF THERE IS A STATE LAW 6. Is there a State law? • Characterisation of state laws must be done in pursuant of the State Constitution 7. What is the source of authority for that State Law? NSW can make a law about [insert power] because it has plenary powers: Union Steamship; s 5 of NSW Constitution, which states, the state government can make any law with respect to the “peace, welfare and good government”. 8. Are there any Constitutional limits on the exercise of that power? Constitutional limits imposable on state laws: (1) interference with judicial power: Kable, (2) purport to apply to & control the Cth: Cigamatic, (3) infringement on the implied freedom of political communication: Bob Brown v State of Tasmania 9. Is the State law inconsistent with the Commonwealth?

Characterisation • Characterisation is the process of determining whether a Commonwealth law comes within the scope of the legislative powers conferred upon the Commonwealth Parliament by the Constitution: Tasmania Dam Case • The Court always asks itself a question that whether the law relates to the subject matter or purpose of the head of power in a way that allows it to be described as a law ‘with respect to’ that head of power: Grain Pool v WA NOTE: what the parliament wants the law to achieve is not relevant, it is what the words of the law actually says and how it is operative → intention of parliament is irrelevant if it is not enshrined into the wording of the law. STEPS TO CHARACTERISE A CTH ACT 1. Ask what does the Cth Act in question actually do? 2. Is the subject matter covered by a Commonwealth head of power? Here, the issue of how the Court has interpreted the power will be relevant. 3. Is it subject matter power or purpose power? 4. If it is a SUBJECT MATTER power, does the Cth Act have a sufficient connection to the subject matter? (Kitto J in Fairfax: ‘Is it in real substance a law upon, “with respect to”, one or more of the enumerated subjects?’) → the words “with respect to” comes directly from the Constitution s 51. 5. If no sufficient connection but by invoking the implied incidental power, it can be brought into the subject matter if it is “appropriated and adapted” to the purpose. 6. If it is a purpose power, use the proportionality test (i.e. is it reasonably appropriated and adapted?)

S U B J E C T M AT T E R P O W E R S : S U F F I C I E N T CONNECTION TEST • The test is that whether there is a sufficient connection between the law and the head of power: Fairfax v Commissioner of Taxation (1965) • Whether a law is one “with respect to” a legislative power granted to the Commonwealth by

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ascertaining its substantive or direct legal operation (i.e. by determining the rights, duties, obligations, powers and privileges which is the purpose of effects of the law: Fairfax v Commissioner of Taxation (1965) ‣ Look to the rights, duties, powers and privileges which the law changes, regulates or abolishes: Fairfax v Commissioner of Taxation ‣ Ulterior motive of the legislature, the purpose or the indirect consequences which the law seeks to achieve (either social or economical) are IRRELEVANT: Fairfax v Commissioner of Taxation - policy is irrelevant: Murphyores Pty Ltd v Commonwealth (1976) ✴ For example, it was irrelevant that the acknowledged policy of Parliament in enacting the law was to increase investments in public securities → law could still be characterised as a law “with respect to” taxation (head of power) as the law imposed a liability to pay tax. • Commonwealth law must possess a substantial connection with the relevant head of Commonwealth power: Herald & Weekly Times Ltd v Commonwealth (1966); Tasmanian Dam Case (1983) ‣ Court may also consider the practical effect or operation of a law: Tasmanian Dam Case (1983) RESPONSE PLAN The [head of power] is a subject matter power. To characterise under this head of power, it must meet the sufficient connection test. As per Kitto J in Fairfax, ‘once it appears that a law has an actual and immediate operation within a field assigned as a subject of power, that is enough’. Based on the facts [Apply facts], it is relevant that there is an intention that aligns with the subject matter. Hence, the test is satisfied.

If no sufficient connection - try implied power If there is no sufficient connection, implied power can be invoked to make the subject matter (express grant of power) effective: Nationwide News v Wills (1992)

• Implied incidental power broadens the power that already exists: “attached to any power, there is an implied power wide enough to make grant effective”. • The test of ‘appropriate and adapted’ must be satisfied: R v Burgess ‣ Where a law is incidental to the subject matter of a Commonwealth legislative power, it must be reasonably appropriate and adapted to some object/purpose within that power: Nationwide News v Wills (1992) ‣ Whatever is incidental to subject matter MUST BE necessary for the reasonable fulfilment of that legislative power: Grannall v Marrickville Margarine (1955) • In determining whether the requirement of reasonable proportionality is satisfied, the court will ascertain whether, and to what extent, the law goes beyond what is ‘reasonably necessary’ or ‘conceivably desirable’ for the achievement of the legislative object sought to be obtained. • In doing so, the court will ascertain whether the law causes adverse consequences unrelated to the achievement of that object and, in particular, whether those adverse consequences result in the infringement of fundamental values traditionally protected by the law (such as freedom of expression). • Implied incidental power (exists in ss 39 of s 51): only exercisable by the Judiciary → while expressed incidental power can be exercised by the Executive (O’Sullivan) ‣ Operation of s 51(xxxix) is an express incidental power, ‘nationhood’ power conferred on executive power on ‘nationhood’ power. • ‘Reasonably appropriate and adapted” is a 3 steptest. EXAMPLE In respect to trade and commerce, the implied incidental power can be invoked to regulate steps preparatory or ancillary to trade and commerce like manufacturing: Grannall v Marrickville Margarine (1955) [including penalties: Burton v Honan (1952)] → in O’Sullivan v Noarlunga Meat (1954), the law regulating the packaging of exported beef is valid because the preparation of the beef was so intrinsically connected to the export of beef overseas that it fell within trade and commerce.

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• VOID AB INITIO: the law is void from the beginning if the Court finds it invalid [s 15 of Acts of Interpretation]. If it is a Purposive power - Appropriate and Adapted test RESPONSE PLAN The [External Affairs/Nationhood/Defence power] is a purposive power. To characterise under this head of power, it must meet the ‘reasonably appropriate and adapted’ test: Richardson v Forestry Commission. [Apply facts] shows that [the proposed legislation’s purpose] can be reasonably seen as achieving with the purpose of the head power. Only 3 purposive powers in the Constitution: defence [s 51(vi)], external affairs [s 51(xxix)] and nationhood (s 61 and s 51(xxxix)] • HCA apply special considerations to the characterisation process where HCA determined that these powers involve the notion of purpose/ object, or an incidental power. • Court looks at: (1) the direct legal operation of the law, (2) the law’s purposes or object when it tries to characterise a law with respect to a purposive power: Richardson v Forestry Commission (1988) • A law made in exercise of a purposive power will be valid if it is reasonably capable of being regarded as appropriate and adapted to the object which gives the law its character with respect to the relevant head of power. • The court considers: ‣ Purpose of the power ‣ Purpose of the law ‣ Whether the law can reasonably be seen as being appropriate and adapted to achieve the purpose of the power • Proportionality test (similar to reasonably appropriate and adapted test, same nature of injury, but the court is reluctant to conclude they are interchangeable) MAY BE used where the extent to which a law operates determines its validity. ‣ This is to see how far Parliament has gone in exercising its power.

DUAL AND MULTIPLE CHARACTERISATION • Legislation within Commonwealth power might also be characterised as dealing with many heads of power: Tasmanian Dam Case

EXAMPLES 1. In Airlines of New South Wales v New South Wales (no 2) (1965), when the Commonwealth uses s 51(xxix): external affairs power to enact a treaty into domestic law, the law must be ‘appropriate and adapted to’ the objective of implementing the treaty → i.e. Cth must show that the law has the purpose of implementing the treaty. 2. In Commonwealth v Tasmania (1983), a law will be held to give effect to the treaty if it is ‘appropriate and adapted’ to the implementation of the treaty, even if it is intra vires to s 51(xxix) [intra vires = beyond the power of]. • A law can be fairly characterised as being a law “with respect to” a subject matter that is within Cth power, even if it might also be characterised as bearing upon some other subject matter: Fairfax v Commissioner of Taxation • Cth is able to, in the legitimate exercise of a power, make laws which have a consequential and indirect effect on matters standing outside the power not in s 51: Murphyores Pty Ltd v Commonwealth (1976) ‣ In Murphyores, the legislation was related to export [under s 51(i): trade and commerce power] and environmental matter [Cth don’t have legislative power]. ‣ Not relevant that the main subject was environmental regulation & Cth was using s 51(i) as a tool to legislate on the subject it otherwise wouldn’t have access to. NOTE: dual characterisation does not affect validity of the law as long as it has a subject which falls within an enumerated power.

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Trade and Commerce Power Subject Matter Power 
 Section 51: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect of: (i) Trade and commerce with other countries, and among the states

The power is commonly referred to as the ‘interstate and overseas trade and commerce power’.

HEAD OF POWER • Section 51(i) is one of the overlapping powers dealing w/ topics of trade and commerce. ‣ Cth also enjoys power to regulate: - s 51(v): postal, telegraphic, telephonic and other like services - s 51(v): broadcasting - s 51(ix): quarantine - s 51(x): currency - s 51(xiii): banking other than State banking - s 51(xiv): insurance other than State insurance - s 51(xvi): bills of exchange and promissory notes - s 51(xvii): bankruptcy and insolvency - s 51(xviii): copyright, patent of invention and design, trademark - s 51(xx): foreign, trading or financial corporations • Additionally, ‣ Cth could use ‘s 51(vi): defence power’ to seize international trading operations to control terrorists. ‣ Regulate foreign investment by non-resident individuals using ‘s 51(xix): aliens power’ or industrial relations in trading entities: s 51(xxxv). ‣ Cth can use s 122: territories power to regulate trade and commerce within Territories, within Territories and between Territories - States - overseas. • If dealing with steps preparatory or ancillary to trade like manufacturing, production or export for international trade and commerce OR to regulate

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things and activities that are physically located within a state → use implied incidental power. • Allows for interstate commerce (between states) but not intrastate (within one state only). • Cth’s trade and commerce power (TAC) has been used (for interstate and overseas TAC) to regulate: ‣ import and export trade ‣ trade practices ‣ operation of federal govt. business enterprises ‣ international shipping ‣ aviation ‣ regulation of interstate road transport “with other countries, and among the states” → doesn’t allow for regulation of intrastate (within states): Murphyores

INTERPRETATION - SCOPE OF POWER Meaning of ‘trade and commerce’ • Give the words ‘trade and commerce’ their popular meaning → where any business relationship amounts to trade and commerce: W&A McArthur v Queensland • s 51(i) is a power regulating navigation, shipping and railways (the property of any State): W&A McArthur v Queensland • It covers intangibles as well as the movement of goods or persons. It extends s 51(i) to a wide range of activities such as supply of gas, communication (telegraph, telephone and other wireless means), and broadcasting (television and visual signals): Bank of NSW v Cth (1948) ‣ confine subject matter to physical things and persons would be incompatible with all modern developments: Bank of NSW v Cth (1948) Transport for reward is a type of trade and • commerce (e.g. commercial cargo): Australian National Airways v Cth (1945) • Cth can authorise the creation of a government trading enterprise: Australian National Airways v Cth (1945) • Preparation of goods for trade can be covered by TAC (implied incidental power can justify the validity) BUT generally, manufacture is considered trade and commerce: Granall v Marrickville Margarine; Beal v Marrickville Margarine

Where s 51(i) does not have power • [Apply facts] → s 51(i) does not have the power to regulate the ‘national economy’: Pape v Commissioner of Taxation (2009) ‣ there need to be a definable relationship of the substantial economic effect on the trade between states or with other countries. OR • [Apply facts] → s 51(i) does not have the power to regulate activities preparatory to trade: Granall v Marrickville Margarine (1955) ‣ production, manufacture and importation are activities preparatory = generally not trade: Beal v Marrickville Margarine (1966) [but possibly can use implied power to regulate preparatory activities which can be identified as being done for export: O’Sullivan v Noarlunga Meat Ltd (1954)]. ‘with other countries’ • Section 51(i) enables Cth to ‘prohibit, regulate and control the importation and exportation of goods’ for ay purpose: Murphyores Pty Ltd v Commonwealth (1976) • Parliament or delegated person decides who may export and what may be exported (Parliament decides the means and criteria for selection): Murphyores Pty Ltd v Commonwealth (1976) ‣ NOTE: activities in preparation for trade → apply incidental power ‘among the states’ • No direct power to regulate intrastate: R v Burgess (wording of power don’t permit), BUT Cth can manoeuvre around this. ‣ Use incidental power to regulate the activity or goods physically located within the State IF they are sufficiently connected to interstate or overseas trade or commerce: Redfern v Dunlop Rubber Australia Pty Ltd (1964) ‣ Where the trade of goods involves both interstate/overseas + intrastate = no clear distinction between which certain unit would be used for exportation or intrastate sale = Cth can regulate intrastate and commerce (proportionality test may apply): R v Burgess • Physical connection = can’t separate interstate and intrastate if they belong in the same building • Economic connection = incidental power is not accepted (connection not strong enough): O’Sullivan v Noarlunga Meat (1954)

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CHARACTERISATION RESPONSE PLAN 1. ‘Trade and commerce’ is a subject matter power. 2. To characterise under this head power, the law must meet sufficient connection test: Fairfax v Commissioner of Taxation. To determine whether it is sufficiently connected, look at the rights, duties, powers and privileges that the law affects: Bank of NSW v Cth (1948) [there must be a sufficient connection between the matter, thing or activity to be regulated (including intrastate matters) and interstate and overseas trade provided by s 51(i): O’Sullivan v Noarlunga Meat (1954)]. Mere economic relationship is not supported by sufficient connection. 3. [Apply facts] shows that [the legislation’s intention] aligns with the subject matter → the test is satisfied. OR 1. No express power to regulate matters under s 51(i) → use implied incidental power. • Incidental power = implied grant of power wide enough to make express grant effective: • Appropriate and adapted test (Nationwide News v Wills (1992)): is it appropriate and adapted for trade and commerce with other countries, or among the state? 2. Cth can use its incidental power to regulate things/activities that are physically located within a State so long as they are sufficiently connected to interstate or overseas trade and commerce: Redfern v Dunlop Rubber Australia Pty Ltd (1964). • Where there is no clear distinction between which unit would be used for intrastate sale or exportation, Cth can regulate intrastate trade because it falls within head of power: R v Burgess. • Cth can invoke incidental power to legislate with respect to supervision & control of all acts/ processes involved in the export of goods and services: O’Sullivan v Noarlunga Meat (1954)

LIMITATIONS 1. s 92 prohibits restrictions on interstate trade where the purpose of legislation is to discriminate against interstate borders [trade needs to be free]

2. s 99 Cth shall not, by any law or regulation of trade, commerce or revenue, give preference to one state or part thereof over another state or part thereof. 3. s 100 Cth shall not, by any law or regulation or commerce, abridge the right of a state or the residents therein to the reasonably use of the waters of rivers for conservation or irrigation. Limitation on geographical requirements of power 4. s 51(i) is not a general power to regulate the national economy: Pape v Commissioner of Taxation (2009
 W&A MCARTHUR V QUEENSLAND (1920) • P was soft-goods business trading in calico, sheeting and sheets. • Agents would travel w/ goods from NSW to QLD to act on P’s behalf. • QLD Commissioner of Prices wished to prosecute agents for breaching fixed prices. • P brought action on grounds that state could not impose restrictions on interstate trade (s 92). • Obiter from majority: s 51(i) and s 92 both embrace all that is ordinarily comprised within the term ‘trade and commerce’ when taking place ‘among the States’ → HC struck down legislation as negotiations is part of everyday business. MURPHYORES PTY LTD V COMMONWEALTH (1976) • M (sand mining) applied for export permit under Fed customs. They were denied + argued s 51(i) cannot prohibit on environmental grounds. Rejected by court. • Policy of Cth is irrelevant → HC looks at rights that the law creates, affects or destroys “with respect to” → regulation was characterised as TAC because it relates to other countries: it is enough that the law deals with the permitted topic + does not cease to deal w/ that topic but factors extraneous (irrelevant) to the topic may be taken into account in the relaxation of prohibition. BANK OF NSW V CTH (1948) • Labour Govt. attempted to nationalise private banks in Australia & constitutional validity of legislation was challenged → HC held law invalid: (1) mechanism used to nationalise banks was not on “just terms” outside scope of s 51(xxxi), (2) there is a positive right on the banks to engage in interstate banking, operation of constitutional freedom of interstate TAC (s 92).

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O’SULLIVAN V NOURLUNGA MEAT LTD (1954) • s 52(a) of the Metropolitan and Export Abattoirs Act 1936-1952 (SA) + regulations required licenses for slaughtering and processing of meat → D argued SA act inconsistent with Federal neat export regulations: if Fed’s legislation valid exercise of s 51(i). • Fullagar J: Cth possesses no specific power for slaughterhouses, but the trade and commerce power allows for the regulation of the quality of meat for export → laws were within incidental power → “all matters which may affect beneficially or adversely that export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of Cth”. • Cth don’t have express power to regulate treatment of beef carcasses in abattoir. BUT can prescribe standards if the meat is destined for export trade. GRANALL V MARRICKVILLE MARGARINE • Regulation of production may be incidental to regulation of trade → “nothing which has been said above implies that under the power conferred by s 51(i) of the Constitution … the Cth can never reach or touch production”. PAPE V COMMISSIONER OF TAXATION (2009) • Bryan Pape sued Commissioner of Taxation alleging that he was entitled to a tax bonus of $250 from D under s 7 of Tax Bonus for Working Australians Act (No 2) 2009 (Cth). • Payment of tax bonus was characterised as a gift, not authorised (on grounds that the Act was not a law with respect to taxation as provided by para (ii) or any other para of s 51 of the Constitution → invalid. • Gummow, Crennan Bell JJ: Act may be supported by s 61 and 51(xxxix) of the Constitution, but question is: (1) whether there is a need for an immediate fiscal stimulus to the national economy, (2) whether legislation falls within executive power and incidental exercise of executive power under s 51(xxxix) BEAL V MARRICKVILLE MARGARINE • B argue MM failed to comply with State dairy industry regulations of quota on production. MM argued that regulations infringed s 92 as manufacturing processes specifically fulfil orders from interstate customers. • Held: rejected → “manufacturer is usually a trader because part of his business is to sell his products, but to manufacture is not, of itself, trade”.

R V BURGESS • Vernon William Burgess, officer at Civil Aviation Department in Sydney, charged Henry Goya Henry (pilot) for flying over Mascot. Cth passed the Air Navigation Regulations under the Air Navigation Act 1920. • Validity of sections were challenged on basis that it could not rely on trade & commerce power. • Dixon J: Act requires that interstate flying be controlled as a whole. • Evatt & McTiernan JJ: Cth has power to legislate w/ respect to trade and commerce, allowing interstate trade through air transport, due to the “sufficiently proximate relationship w/ such trade”.

AUSTRALIAN NATIONAL AIRWAYS V CTH (ANA CASE) • Australian National Airlines Act 1945: power to establish, maintain and operate airlines services for the transport for reward of passengers and goods between Territories and other places in Aus. • Issue: whether the provision allowing interstate airlines was valid. • Law authorising transport service for interstate trade is covered by s 51(i) → flexible application • If limitation exists, needed to be imported into the power.

REDFERN V DUNLOP RUBBER AUSTRALIA PTY LTD (1964) • Australian Industries Preservation Act 1906 (Cth) made people liable for conduct w/ intention or result of retraining interstate/overseas trade and commerce. P argued at D’s restrictive trade agreement made P unable to buy tyres at wholesale price. D argued Act unconstitutional as it applied to agreements which involved BOTH intrastate and interstate. • Taylor J: Not valid objection that some contracts or combinations may be found to relate also to other matters → can extend to intermingling situations BUT not purely intrastate arrangement. • Menzies J: Cth’s power extend to intrastate trade as it is inseparably connected w/ interstate trade and commerce → BUT does not enable person (making arrangements relating to trade) to put these arrangements beyond Cth’s control. • Windeyer J: for law to validly regulate intrastate trade, ‘the connexion (b/ween intrastate and overseas/ interstate trade or commerce) must not be so remote or insignificant that there is no real relationship”.

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Nationhood Power Purpose Power
 Section 61 executive power: The executive power of the Commonwealth is vested in the Queen and is exercisable by the GovernorGeneral as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Section 51(xxxix) express incidental power: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect of: (xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House therefore, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

HEAD OF POWER • Nationhood power enables the Cth to make laws about or in relation to the Australian nation. It is part of the executive power of the Commonwealth. • Source of power is not clear → either implied in the Constitution, or comes from the executive power in s 61 + incidental power in s 51(xxxix): Davis v Cth (1988)

INTERPRETATION - SCOPE OF POWER 1. Protection of the Nation • Nationhood power gives executive power to create legislation to protect the Nation: Burns v Ransley (1949) → able to make laws in regards to seditious words, the Executive has the power to make laws for the protection of Australia and the Constitution AGAINST seditious acts and words. Contrastingly, the Court in Communist Party Case held legislation was invalid because it specifically targeted at specific bodies and not directed as a nation.

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2. Advancement of the Nation • Nationhood power can be used for the advancement of the nation: Davis, but should be limited to the principles of Federalism: Pape • AAP case recognised that the nationhood power is for the benefit of the nation + it is a power that can have appropriation of funds attached to it → Govt. can spend money when exercising nationhood power. • However, it must be peculiarly adapted to the federal govt. = it should not be more appropriate for the state to enact the legislation: Pape v Commissioner of Taxation (2009) • At present, not enough case law to determine detailed criteria → precise tests could be developed as more cases are decided: Davis 3. No interference with federal balance • Must be something only the federal govt. could achieve + complete: AAP Case (Mason J) • Something more than mere convenience → can’t be a disagreement between states and fed government or where it would make more sense for states to act: Tasmania Dam Case (Barwick CJ, confirmed by Deane J) • Cth can regulate territorial waters of Australia: Seas and Submerged Land Case (Barwich J)

CHARACTERISATION • Once the matter falls within a head of power, it does not matter whether the legislation goes beyond what is necessary or desirable: Leask v Commonwealth RESPONSE PLAN 1. ‘Nationhood’ power is a purpose power. To characterise under this head power, the law must meet reasonably appropriate and adapted test → is the law reasonably appropriate and adapted to the character and status of the Cth as a national govt?: Richardson v Forestry Commission; Davis v Commonwealth 2. [Apply facts] shows that [the proposed legislation’s purpose] can be reasonably seen as aching w/ the purpose of the Commonwealth as a national govt. and is not punitive in nature: Davis v Cth

LIMITATIONS • In Davis v Commonwealth, Court held that there was a limit to exercise of power by the Executive. Various sections that gave exclusive rights to words, symbols and trademarks went beyond what was reasonably necessary → court applied purposive test: legislation went beyond the purpose of what Cth intended to achieve (celebrate the bicentenary) when it tried to grant exclusive use of words. • Melbourne Corporation Principle: immunity of states from Commonwealth legislation that would destroy or curtail their continued existence or their capacity to functions as governments • Power can only be used for the benefit of the nation (benefit defined by Parliament): Davis v Commonwealth • Power is not unlimited: executive power is limited to the distribution of powers affected by the Constitution: AAP Case (Mason CJ); Commonwealth v Colonial Combing, Spinning & Weaving Co. ‣ “in scope, it [nationhood power] is not unlimited and that its content does not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution.” ‣ Must be something only the Cth govt. can achieve → shouldn’t be something that would be more appropriate for stated to legislate on. • All other limitations (expressed + implied) NOTE: only senior ministers are in the cabinet → makes decisions about the most important things behind closed doors (allow them to have real frank discussions without being held responsible outside cabinet = freedom of discussions). A court can’t adjudicate on decisions of the cabinet: a law is judicable but the decisions + rationales behind such law is not disputable in court. NOTE: when a law is incidental under subject matter power, apply proportionality test. BURNS V RANSLEY (1949) • Member of Communist Party of Australia said that in any war between Soviet and West, CPA would support Soviets: Burns was convicted of uttering seditious words. • Latham CJ: “while the Parliament has no power to pass a law to suppress or punish political criticism … excitement to disaffection against a govt. goes beyond political criticism - Cth has the power to make law to protect”. • His arrest was valid under the sedition law.

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TEOH V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1995) • Teoh (Malaysian citizen) married and had 4 children + 3 more children with his partner. Before his temporary permit ended, he applied to become citizen of Australia. • He was charged w/ heroin possession before his citizenship was approved and his application failed → he didn't meet the character test and deported. • He argued that since the Executive signed CROC, they can’t cancel his citizenship because then they failed to acknowledge the 7 children dependent on him (when signing a treaty, Executive makes a conscious decision to take the treaty into account). • HELD: HCA found that even if an international treaty had not been the subject of legislation, mere fact of a govt. entering into treaty created a legitimate expectation that the governmental decision-makers would act consistently w/ the terms of treaty → ‘legitimate expectation’ can be removed by Executive decree & not followed in subsequent case (Ex Parte Lam): there is no doctrine of legitimate expectation on legislature from ratification of treaty. COMMUNIST PARTY CASE (1951) • Legislation was invalid because it was too specific about certain people and named bodies → not directed at the nation. DAVIS V COMMONWEALTH (1988) • Lou Davis, an Aboriginal Australian, sought to market Bicentennial t-shirts bearing messages such as ‘200 years of suppression and depression’. • Australian Bicentennial Authority Act 1980 (Cth) ss 22 & 23: restricted Davis from use of any symbol/logo associated with the Bicentennial (e.g. 1788, 1988, Bicentenary, Bicentennial, Sydney, Melbourne, First Settlement, 200) w/out Bicentennial Authority’s consent. • Brennan J: “it extends to the advancement of the nation whereby its strength is fostered”. • Wilson, Dawson and Toohey J dissented: “it couldn't go beyond self-protection, there is no implied legislative power in the nationhood power • Mason, Gaudron and Deane J: “the power could be extended beyond self-protection and there is a legislative power”. • HELD: the legislation was invalid because it gave the executive exclusive grant to use words → extend beyond what was reasonably necessary and what the Cth intended to do (celebrate bicentenary).

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External Affairs Power Subject & Purposive Power Section 51: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect of: (xxix) External affairs

HEAD OF POWER “The pursuit and advancement of comity with foreign government and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs”: Thomas v Mowbray (Gummow and Crennan JJ)

INTERPRETATION The s 51 (xxix) ’external affairs’ power is broadly interpreted as including the legislative power of the Cth to enact domestic laws giving effect to any treaty, irrespective of the topic of the treaty, and to allow Parliament to regulate any activity occurring outside of Australia. There are 4 aspects of the power. [apply appropriate one to problem question] 1. Geographic externality [Subject matter: applying the test of ‘sufficient connection’] • The Cth can legislate on matters which are physically external to Australia. • Geographic externality is a broad power applying to laws used to regulate persons, places, matters or things geographically external to Australia: Polyhukovich v the Commonwealth ‣ Territories outside of Australia is of itself sufficient to bring a matter or thing within the phrase “external affairs” for the purposes of s 51(xxxi), meaning no more factor is needed to determine whether it is sufficient: Horta v Cth (1994) Question remained is that whether geographical • externality requires some sufficient connection between Australia and other countries → Callinan, Heydon and Kirby JJ showed that there is doubts: XYZ v Cth

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• Power has retrospective effect: Polyhukovich v the Commonwealth 4. International comity: purposive power • Power directed at legislation aimed at preserving Australia’s relations with other nations. • Doctrine to comity: nations accept each other’s sovereignty • Cth has ability to legislate Australian relationships with other nation states. • [Apply facts] any matter that regarded something that was outside of Australia, including other Dominions of the Crown, fall within external affairs: R v Sharkey • Protection of comity between nations is an aspect of external affairs → external affairs power provides for the enactment of laws that punish act done in violation of international comity: R v Sharkey ‣ Rule of law in R v Sharkey extended to international persons and organisations, in particular the United Nation and other global organisations relating to the kinds of concerns Australia may have: Koowarta (1982) • Power can be used to pass Cth legislation to recognise or exclude the operation of foreign laws in Australia (also cover extradition): Kirmani v Captain Cook Cruises (No 1) (1985) • External affairs power need either a binding obligation or a doctrine of comity: Industrial Relations Act Case • ‘International concern’ is vague, should be approached with caution and need proof (e.g. clear expression by the international community or need to adhere to international practice): Polyhukovich 5. Treaty enactment: applying a treaty is a purposive power • Treaties enactment involves the changing of domestic law by implementing international instruments such as treaties, obligations and agreements that Australia is subjected to be a party to. ‣ It is part of the prerogative power of the Executive to enter treaties. However, treaties are not self-executing, mere signing or ratification of a treaty had no effect on domestic law: Victoria v Commonwealth (‘AAP Case’)

‣ Tr e a t i e s c a n i n f l u e n c e s t a t u t o r y

interpretation when there is ambiguity in the domestic law: Chu Kheng Lim v Minister for Immigration (1992) ‣ Treaties can influence administrative decision-making but in a controversial and ineffective way: Teoh v Minister for Immigration and Ethnic Affairs (1995) ‣ Treaties/international law can influence constitutional interpretation. International law is a legitimate and important influence on the development of common + Constitutional law, especially when international law declares the existence of universal and fundamental rights: Newcrest Mining (WA) v Cth (1997) • Scope of treaty enactment is part of external affairs power. ‣ Cth is authorised the implementation of treaties: R v Burgess ‣ s 51(xxix) is not limited to matters covered by other paragraphs in s 51: R v Burgess - Cth can sign any kind of treaty regardless whether it is about trade and commerce, corporation, race, etc. - Parliament may also legislate to carry out recommendations and draft conventions agreed upon by international organisations: - Head of power incorporates other heads of powers (e.g. in Tasmanian Dam case, law is coupled w/ corporations power). ‣ [Apply facts] is sufficient as it deals with the matter of international concern and the treaty itself is sufficient as an evidence of international concern w/ other countries: Koowarta; Tasmanian Dams. ‣ Power may be limited when the law is with respect to ‘matters of sufficient international significance’ (Starke J) or ‘indisputable international in character’ (Dixon J): R v Burgess. - Content of a treaty is not a limitation on the scope of ‘external affairs’ power: Tasmanian Dams Case - As long as treaty was entered into w/ other countries, the fact that it related to matters of purely domestic concern did not affect the ability of Cth to enact into law: Koowarta • Domestic law must conform to the treaty ‣ In order to be intra vires (within the power) of s 51(xxix), domestic legislation that was

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based on a treaty has to be either in conformity w/, or reasonable incidental to, the terms of treaty: R v Burgess. ‣ Meticulous adherence to the terms of treaty is not required, so long as legislation was an ‘appropriate and effective means’ of carrying out treaty obligations: R v Poole. - Domestic law is not necessary to follow word by word of the treaty. - ‘Capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it w/ the character of a law with respect to external affairs’: Tasmanian Dam case (Deane J) ‣ BUT the law will be held invalid if the provisions of the legislation is substantially inconsistent w/ the treaty: Victoria v Commonwealth (‘AAP Case’) ENTERING (AND EXISTING) TREATIES • Entering treaties ⎼ Executive has the power to enter treaties (forms part of the prerogative power of the Crown: s 61). 1996 reforms have included a role for parliament: ‣ Tabling of treaties in Parliament before signing [alerts/informs Parliament on the existence of Australia’s ramification to the treaty] + processes to alert states to the existence of treaties (Parliamentary Joint Standing Committee on Treaties formed. • Exiting treaties ⎼ do they have power to exit treaties? No: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. 4. Matters of international concern: purposive power • Matters of international concern will still attract ‘external affairs’ power even in the absence of a treaty: Tasmanian Dam case ‣ There is a possibility for matters of international concern to exist → RDA relates to matters of international concerns: Koowarta (NOTE: there is a fear that Cth could abuse ‘external affairs’ power to take away power from the states)

CHARACTERISATION

LIMITATIONS

1. Geographic externality: subject matter power

• s 51(xxix) is ‘subject to’ the Constitution and its express + implied constitutional limitations: Victoria v Commonwealth (1996) • If the Cth exercises its external affairs power to implement treaty obligations (which are void or unlawful under international law), it may still be valid because mere geographical externality is enough: Horta v the Commonwealth (1994) • Cth may not cite an international obligation as a sham or circuitous device to attract legislative power: Horta → Cth must enter treaties in bona fide (genuine). • Australian federalism ‣ ‘ E x t e r n a l a ff a i r s ’ p o w e r expanded w/ growth of A u s t r a l i a ’s i n t e r n a t i o n a l personality. ‣ Federalism restrict the construction of ‘external affairs’: Tasmanian Dam Case • Melbourne Corporation Principle ‣ Court upheld a challenge under the Melbourne Corp. doctrine. Federal provisions were read down so that the State power to regulate these matters were preserved: Victoria v Commonwealth (1996) • Scope of external affairs power is not restricted by s 51(i) ‘trade and commerce’: Airlines of New South Wales v New South Wales (No 2) (‘Airlines (No 2)’) (1965)

RESPONSE PLAN 1. Sufficient connection test must be applied as it is a subject matter power ⎼ look to rights, duties, obligations and privileges which legislation changes, regulates or abolishes: Fairfax 2. [Apply facts] is sufficient as the matter of the legislation deals territorially outside Australia, no more factors needed to be taken into consideration as matters territorially outside is of itself sufficient: Horta (Regulation of exploration + exploitation of petroleum in Timor Gap as it had substantial nexus to Australia → Kirby J questions whether geographical externality requires some sufficient connection between Australia and other countries) BUT XYZ v Cth raises doubts. • Any persons, places, matters or things external to Australia → Cth has the power to legislate (BROAD INTERPRETATION): Seas and Submerged Lands case 2. ‘International’ externality: purposive power RESPONSE PLAN 1. Apply reasonably appropriate and adapted test because international externality is a purposive power: Richardson v Forestry Commission. To be intra vires s 51(xxix), domestic legislation must either be in conformity w/, or reasonably incidental to the terms of the treaty: R v Burgess. 2. TREATY PART: DOMESTIC LAW MUST CONFORM TO TREATY • [Apply facts] does not need to be meticulously adhered to words of treaty: R v Poole, if the legislation observes the spirit of the treaty, then the link is sufficient: Tasmanian Dams Case (World Heritage Act is valid to protect the culturally significant area for ATSI). If a provision of the law is substantially inconsistent w/ the treaty, then the law is invalid: Victoria v Cth ‣ Domestic law is not required to follow word by word of the treaty. ‣ If the implementation demonstrates a deficiency which is so substantial as to make it inconsistent with the Convention, then the law may not be characterised as a law with respect to external affairs. 3. IF RELATES TO OTHER HEADS OF POWER: repeat the Characterisation steps • General rule regarding dual characterisation: Strickland v Rocla Concrete Pipes (1971) → as long as the law is within one power, it doesn’t matter that it (impliedly) falls outside another. • Exception: if the Act falls within one power, but expressly excluded by another power, it cannot be valid: Wurridjal v Cth [2009].

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R V SHARKEY (1949) • Sharkey was charged with uttering seditious words against the Queen. It was a crime for it to occur within ‘any of the King’s dominions (including Australia)’. Sharkey argued that it was an invalid provision as the matter was outside of Australia. • Court found the regulation of sedition (against Australia and British Crown, i.e. other Cth countries) did form part of international relations of Aus, supported by the external affairs power.

NSW V COMMONWEALTH (‘SEA AND SUBMERGED LAND CASE’) • ISSUE: whether s 51(xxix) entitled the Cth to assert its sovereignty over the Australian territorial sea (majority agreed it did) + to the extent of the application of the Geneva Convention (McTiernan J applying it & Jacobs J refusing). • HELD: assertion of sovereignty over a continental shelf was within power since idea of rights over them emerged distinctly as a product of international relations & international law. • Barwick CJ: “upon the enactment of the Constitution, any rights or powers which the former colonies might have had in the territorial sea, seabed and airspace or in the continental shelf and include became vested in Cth. • Stephens J: “not only does external affairs include treaties but other matters of non-consensual character → conduct of a nation + its nationals that affect other nations and its relations w/ them are also included” XYZ V COMMONWEALTH [2006] • Legislation that made penal child sex offences committed overseas was challenged. A Melb man, XYZ, was arrested in Melbourne in 2002 in relation to offences said to have been committed in Thailand in 2001. • ISSUE: whether mere geographical externality is sufficient to attract s 51(xxix). • Gummow, Hayne and Crennan JJ: mere geographical externality was required • Callinan and Heydon JJ: rejected the view. • Kirby J: left question open. VICTORIA V COMMONWEALTH (1996) A ‘ AP CASE’ • Validity of legislation excluding the operation of British Imperial Act in Australia is challenged. • HC held that this law fall under the external affairs power → clarification of international law is valid. • Barwick CJ: “some powers, legislative and executive, are inherent in the fact of nationhood and of international personality … they arise from the very formation of Cth as a polity and its emergence as an international state”. • French CJ: “it has to be capable of serving the proper purposes of a national government. On the other hand, the exigencies of ‘national government’ cannot be invoked to set aside the distribution of powers between the 3 branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions.

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THOMAS V MOWBRAY • Jack Thomas (Jihad Jack) had control orders places on him (authorised by Crimes Act Cth) after terrorist charges against him were dismissed. Thomas agreed that the sections which created the control orders were outside Cth power and not constitutionally valid • ISSUE: whether terrorist acts under Pt 5.3 of CCC fell with def. of external affairs. Relevant provisions criminalised intimidate of public/ section of the public of a country outside Australia. • HELD: legislation valid = ‘commission of terrorist acts’ are such a matter → national security can be promoted by reciprocal co-operation w/ other states in combating international terrorism. • Kirby J: terrorism was a matter of concern to the community of nations but provision invalid since they did not affect ‘international relations’. HORTA V CTH • Aus. negotiated and signed a treaty w/ Indonesia, regulating the petroleum rich sea bed between Australia and East Timor. P in Horta claimed that treaty was illegal in international law and Cth could not rely on external affairs power to legislate to give effect to the treaty. • “Regardless of whether the mere fact that a matter or thing is territorially outside of Australia is of itself sufficient to bring a matter or thing within the phrase of ‘External affairs’ … the area of Timor Gap and exploration for petroleum resources within that area all fall within the phrase.” R (MILLER) V SECRETARY OF STATE FOR EXITING THE EU • BREXIT case: where UK govt. plan to exit the EU through the executive act (Executive just notified the EU of UK’s withdrawal from treaty) • HELD: Executive could not do that → European treaties have become part of UK’s domestic law: Exec. decision to take all of EU treaty laws out of UK’s domestic law was not valid → Exec. does not have power to exit treaties.

POLYHUKOVICH V THE COMMONWEALTH (THE WAR CRIMES CASE) (1991) 172 CLR 501 • In 1988, the Commonwealth legislated to make Australian citizens or permanent residents prosecutable for ‘war crimes’ that had taken place in Europe during World War II. • Ivan Polyhukovich was accused of participating in a massacre of around 850 people from the Jewish ghetto of Serniki in Ukraine 1942 + being personally responsible for deaths of 23 people. Under the Hawke government, a special unit was set up to charge people who escaped to other countries to avoid war crimes → Ivan P was charged with killing 6 people + searched under the amended War Crimes Act. He challenged the legislation as unconstitutional. • Mason CJ, Deane, Dawson and McHugh JJ: mere externality is sufficient. • Deane: external affairs power is not of interest by the states → if the Commonwealth don’t get the power and the states have no interest to exercise that power, then there would be a gap. • Toohey J: need some connection + the mere fact that Australia was involved in WWII is sufficient. • Gaudron J: must be some element of Australian interest or concern → the fact that Parliament legislated in the area is sufficient to show this.

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Aliens Power Subject Matter Power
 Section 51: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect of: (xix) naturalisation and aliens (xxvii) immigration and emigration

HEAD OF POWER: ALIENS POWER • The ‘aliens’ power is a power to regulate the process by which an alien becomes an Australian national: Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002). • Cth may ‘create and define the concept of Australian citizenship’: Koroitamana v Commonwealth (2006). • Parliament has power to determine which categories of persons shall be treated as aliens → its discretion is limited by the constitutional concept of alienage: Singh v Commonwealth (2004). ‣ Power must be within the ordinary understanding of the word ‘alien’: Pochi v Macphee (1982). What is an alien? • Alien is synonymous with ‘non-citizen’: Nolan v Minister for Immigration (1988), position is altered in Re Patterson; Ex parte Taylor (2001), and reversed in Shaw v Minister for Immigration and Multicultural Affairs to favour Nolan. ‣ Persons born out of Australia of parents who are not Australian citizens and haven’t been naturalised under Australian law; or a person who has ceased to be a citizen by an act or process of denaturalisation: Nolan ‣ Alien is used as a descriptive word to describe a person’s lack of relationship with a country: Nolan • An alien = a person who owes obligations to a sovereign power other than Australia: Singh v Cth (Justices Gummow, Hayne and Heydon)

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Can a person born in Australia still be an ‘alien’? • A person who is born in Australia to migrant parents might still be considered aliens under s 51(xix): Singh v Commonwealth of Australia

SCOPE • Aliens power was seen to be an exceptionally wide power: Chu Kheng Lim • Persons absorbed into the community are beyond the reach of the immigration power, but not beyond the aliens power: Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002). Executive power • Aliens power can be used in conjunction with, or alternatively to, s 51(xxvii) ‘immigration power’ in order to (1) exclude aliens from a country, (2) prescribe the conditions under which they may enter the country, and (3) deport them. • Parliament has power to enact a law for the deportation of aliens: Pochi v Macphee (1982) • Aliens power authorised a law that conferred upon the executive authority a power to detain aliens for deportation purposes → this authority was an incident to executive power: Chu Kheng Lim • Mandatory administrative detention of asylum seekers, pending determination of their applications or their removal from Australia, was supported by the aliens power: Al-Kateb v Godwin (2004) • Intolerable conditions in detention centres do not make detention punitive: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs

SINGH V COMMONWEALTH OF AUSTRALIA • Common law principle of jus soli (birthright citizenship) → but Citizenship Act was amended in 1986 to deny citizenship to children born in Australia to parents who are not Australian citizens or permanent residents. Tania Singh was born in immigration detention and was facing removal. • HELD: valid under ‘aliens power

CHARACTERISATION RESPONSE PLAN 1. ‘Aliens power’ is a subject matter power → apply sufficient connection test. 2. ‘Aliens power’ has a wide scope: Chu Kheng Lim 3. [Apply facts] there is sufficient connection because the individuals in question are noncitizens. A legislation that is about aliens can validly (whatever its terms) apply to aliens → as long as the law does not infringe on any express or implied prohibitions of Constitution: Chu Kheng Lim 4. Parliament can make laws that impose burdens or obligations: Chu Kheng Lim and detention of aliens are permitted: Al-Kateb v Godwin

AL-KATEB V GODWIN • Al-Kateb is stateless (no citizenship) ⎼ a Palestinian born in Kuwait (Kuwait would not give a citizenship to a Palestinian born in Kuwait). After 4 years of detention, Al-Kateb gave up seeing citizenship and sought detention. No country would accept him → argued that Chu Kheng Lim does not provide for indefinite detention. • Majority HELD: detention of aliens is constitutional as long as legislation suggests on its face a constitutional purpose (relates to executive powers to exclude, admit and deport aliens). • Minority read s 196 down ⎼ Gleeson J: “s 196 authorises detention only for certain stated purposes: whether the person should be granted a visa or to prepare a non-citizen for removal.” → neither of these purposes apply to Al-Kateb because he can’t be removed and isn’t eligible for visa.

LIMITATIONS • Main limitation is separation of powers but administrative detention of aliens does not infringe Chapter III: Chu Kheng Lim ‣ “Power can be conferred on the Executive [by legislation] without infringement of Ch III’s exclusive vesting of the judicial power of the Cth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of Cth. When conferred upon the Executive, it takes its character from the executive power to exclude, admit and deport of which it is an incident … If the detention … cannot properly be seen as an incident of the executive powers … [it] will be of a punitive nature and contravene Ch III’s insistence that the judicial power of the Cth be vested exclusively in the courts”.

TASMANIAN DAM CASE • Aus. ratified Convention for Protection of Natural Heritage + legislation enacted to implement. Legislation prohibited destruction of property suitable for inclusion in World Heritage List. Regulations made to prohibit construction of dam + associated works. • ISSUE: whether ‘external affairs’ power can be exercised to prevent construction of dam → Cth argued Act was authorised by s 51(xxix) as the existence of an international treaty was sufficient to attract power. • HELD: regulations were invalid as it went beyond what was reasonable + appropriate to implement convention → there needed to be ‘reasonable proportionality b/ween the designated purpose or object & the means which the law embodies for achieving or procuring it.

KOOWARTA V BJELKE-PETERSEN • Koowarta, Aboriginal person, purchase crown-lease land (there was a law under the Bjelke-Petersen Govt. to stop sale) → Koowarta argued that the refusal was not in accordance to Cth’s RDA: was there a source of power to justify RDA’s legislation? • HELD: RDA was valid under ‘external affairs’ power because Cth has signed ICCPR → they are allowed to make laws about subjects they otherwise couldn’t (NOTE: was not valid under ‘race’ power). • Mason, Murphy & Brennan (confirmed in Tasmanian Dams): legislation enacting treaty to domestic law is constitutional valid as long as it deals w/ the matter as one of international concern and treaty itself is sufficient as evidence of the international concern → existence of a treaty determined the matter as one of international concern & made it an appropriate matter for Fed. legislative power (human rights is both international and domestic in nature). • Gibbs, Aiken + Wilson (minority view): a treaty can only be adopted if it is “indisputably international in character”.

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CHU KHENG LIM V MINISTER FOR IMMIGRATION, LOCAL GOVT. AND ETHNIC AFFAIRS (1992) • Legislation mandated the detention of the Cambodian boat people for 273 days or until they either left the country or were granted an entry permit. In s 54R, the legislation purported to direct that no court could order the release of a designated person. • Lim argued: only a court can authorise the punitive detention of a person. Administrative detention is a wrongful interference in the judicial process → this legislation is a usurpation by the legislature of the judicial power vested in the courts by s 71 of the Constitution. • Brennan, Deane and Dawson JJ: “the legislative power … is in expressed in unqualified terms. It prima facie encompasses the enactment of a law with respect to non-citizens generally.” • Toohey J referred to it as a plenary power. • McHugh J: “if a law of the Parliament can be characterised as a law with respect to aliens, it is valid whatever its terms, provided that the law does not infringe any express or implied prohibition in the Constitution … Parliament can make laws imposing burdens, obligations and disqualifications on aliens which could not be imposed on members of the community who are not aliens.” • Gaudron J promoted a confined interpretation: “A law which operates on or by reference to aliens is a valid law with respect to aliens”. • HELD: valid under aliens power → detention is not punitive (i.e. for the protection of the nation), citizens have a constitutional immunity from detention not exercised by judiciary BUT the same rights don’t apply to aliens + does not infringe Ch III of the constitution.

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Race Power Subject Matter Power Section 51(xxix): The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect of: (xxvi) the people of any race for, whom it is deemed necessary to make special laws.

HEAD OF POWER Under this power, a law will be valid if it (1) relates to a race of people, (2) discriminates between one or more groups and other groups, (3) the law is deemed necessary for that group, (4) is for the benefit of the racial group targeted. • Aim of provision was to make it possible for Cth to deal with any alien race and to authorise discriminatory laws → provisions may not be made wit good intention (e.g. allowing the segregation of people or force them into particular professions) • Purpose of power is now constrain by ‘capacity to make good laws’. • Referendum in 1967: Australians voted to remove words ‘of Aboriginal race’. • Using this HoP, Cth can legislate with regard to specific classes of people who fall within the category of a race.

• It is likely that the HCA would consider membership of a race as based on more than simple biology. 2. Is the law special (i.e. does the law discriminate between one or more groups of people from, and give different treatment to the people of the particular race? • A special law is special in its operation, not necessarily its term: Tasmanian Dams (Brennan J) • [Discuss on facts] The law must discriminate by treating the group subjected to the law differently to other groups.

3. Was the law deemed necessary by Parliament? • The legislation must be deemed necessary by Parliament, not the courts: WA v Commonwealth • s 51(xxvi) could be used either for the benefit or to the detriment of members of a race: Koowarta; Tasmanian Dams Case, but the principle object of the power should confer benefits: Brennan J IS

THE LAW TO THE BENEFIT OF THE RACIAL GROUP

TARGETED?

• The concept of detrimental legislation has been debated & the general conclusion is that the race power is ‘wide enough to authorise both advantageous and disadvantageous laws’: Kartinyeri v Commonwealth (Gaudron J)

SCOPE 1. Does the law relate to a particular race or races? • A race is a group of people with common history/ ancestry/culture/religion/physical similarities: Tasmanian Dams (Brennan J), or all of the people that make up the identity of a race: Tasmanian Dams (Deane J) • The law must deal with a particular race or races, power does not permit laws that is general about race or only dealing with the subject matter of race: Koowarta • Law can relate to a particular subgroup of a particular race (e.g. a particular community):

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KARTINYERI V COMMONWEALTH • P challenged the validity of Hindmarsh Island Bridge Act on basis that it discriminated against Ngarrindjeri people and not authorised under race power. • Gaudron J: race power has a purposive element in that the laws had to be ‘necessary’ (i.e. appropriate and adapted for the needs of a particular race. • Gummow and Hayne: discriminatory laws could be made but power does not support a law enacted in manifest abuse of parliament’s power • Kirby J (in dissent): power could not be used to impose a disadvantage on originalist and nonoriginalist (i.e. depends upon contemporary values and human rights) reasons.

CHARACTERISATION RESPONSE PLAN 1. ‘Race power’ is a subject matter power and is to be considered broadly: Tasmanian Dams → apply sufficient connection test. It must be demonstrated that the law in question is sufficiently connected to or incidental to the power/powers invoked to support it in order to be valid: Re Dingjan; Ex parte Wagner (1995) 2. [Apply facts: what did the law intend to do, is there a specific group of people are they targeted?] For a law to be valid under ‘race power’, it must relate to a particular race: Koowarta, it must treat the targeted group of people differently to other groups: Tasmanian Dams, and Parliament must deem this law necessary: WA v Commonwealth. A law invoked by the race power does not necessarily need to be for the benefit of the targeted group of people.

LIMITATIONS • ‘Race power’ is subjected to the constitutional restrictions imposed by the separation of judicial power → e.g. Cth is prohibited from legislating directly for Aboriginal justice mechanisms in the States • s 116 of the Constitution (however, unlikely to limit HoP even if some aspects of Aboriginal customary laws constitute a religion within the meaning of s 116. TASMANIAN DAMS • Tasmanian govt. wished to build a dam in an area which was declared as a World Heritage site. Cth enacted legislation preventing clearing and building on those sites. TAS claimed Cth was taking powers from states and subject matter was too broad for Cth to legislate. Cth invoked external affairs + race powers. • Held: s 8(1) of the legislation was enacted as a special law for the people of Aboriginal race (by preserving archaeological relics), so it was valid. KOOWARTA V BJELKE-PETERSEN • Queensland govt. was accused to be discriminatory by blocking sale of land to an Aboriginal group under s 9 and 12 of RDA → QLD govt. argue that the race power invalidated this legislation • Held: RDA applied to all races (not specific to a particular race) so race power doesn’t cover, but RDA was validated by external affairs power.

Cases Western Australia v Commonwealth

• 6 judges said that even when a law confers a benefit generally, it still need to be of special significance to a particular race in order to be within power. • Native Title Act 1993 (except one provision) was supported by race power ⎼ the law “confers a right/benefit or imposes an obligation/disadvantage especially on the people of a particular race” (i.e. it was a benefit protective of native title).

Walker v NSW

• No relationship between Aboriginal customary laws and native title rights ⎼ if govt. wants to make discriminatory laws, it could do so as long as it is specifically to Aboriginal people.

Kruger v Commonwealth (Stolen Generation Case) (1997)

• P argued that there was an implied right of equality within the Constitution: laws regarding the removal of Aboriginal children were invalidated by this right ⎼ in breach of s 116. • Court held that substantial equality is not provided by the Constitution & s 116 is for the creation of religion not concerned w/ the practice of established religions.

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Judicial Power of Commonwealth Limitation
 ‣ Do the judges have s 72 tenure?: Waterside

Section 71 The judicial power of the Cth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

DEFINITION OF JUDICIAL POWER • The words ‘judicial power’ as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. • The exercise of this power does not begin until some tribunal (which has power to give abiding and authoritative decision → whether subject to appeal or not) is called upon to take action: Huddert, Parker & Co Pty Ltd v Moorehead (1909) (Griffith CJ) • An exercise of public authority: TCL Air Conditioner (Zhongshan) v Judges of Federal Court of Australia (2013) ‣ ‘A coercive governmental power, not exercised by mutual agreement between the parties (to a decision’: French CJ & Gaegler J

APPROACH • Key points ‣ Chapter III is a source of limitation on legislative power ‣ Only courts can exercise Ch. III (judicial) power ‣ Ch. III courts can only exercise Ch. III power: Boilermakers ‣ However, courts can also exercise non-judicial power, which is incidental to the exercise of judicial power (persona designata) • Question 1: Judicial power of Cth can only be vested in a Ch III Court. ‣ Is the body referred to as a court?

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Workers; Wheat Case - IF YES → then the body can exercise Chapter III power. - IF NO → then the body can’t exercise judicial power. • Question 2: Federal Ch III court cannot be vested with anything other than federal judicial power. ‣ Are the powers vested in the body judicial? - IF YES → only a Ch. III can exercise these judicial powers. - IF NO → a Ch. III court cannot exercise these non-judicial powers ‣ Are the powers vested in the body incidental to the judicial power of the Commonwealth? - IF YES → only Ch. III courts themselves can exercise powers incidental to Chapter III.

CH III ⎼ THE JUDICIARY Section 72 Judges’ appointment, tenure, and remuneration The Justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor-General in Council; (ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. • s 71 provides that Cth judicial power shall be vested in a Federal Supreme Court, called the High Court. • s 72 allows for the appointment of judges by the GG in counsel ‣ s 72(ii) provides for removal of judges by a majority vote at a joint sitting of Parliament for misbehaviour or incapacity.

‣ s 72(iii) sets a mandatory retirement age of

•

•

•

•

judges at 70. s 73 provides that the High Court shall have jurisdiction to hear and determine appeals from all courts exercising federal jurisdiction and appeals from the decisions of a single High Court judge. ss 75 & 76 provide that HCA shall have original jurisdiction (i.e. first court to hear the specified matters under s 75 ⎼ cases start and finish in HC only). ‣ Constitutional matters ‣ Cases involving fed. parliament, relationship between law and states, relationship between Cth and states ‣ Disputes between states ‣ International treaties ‣ Writ of Mandamus or prohibition or injunction ⎼ legal remedies s 77 allows Parliament to define the jurisdiction of all courts (including federal courts) other than HCA. Original jurisdiction of HCA is constitutionally unassailable by the Executive: Abebe v Cth [1999]; Plaintiff S157/2002 v Cth [2003] ‣ Executive and legislature cannot remove the original jurisdiction of HC by any legislation

Remuneration • Security or remuneration is essential for judicial independence (which is essential for separation of power): Austin v Cth; North Australian Aboriginal Legal Aid v Bradley ‣ Austin: Austin was a Supreme Court judge + Fed. parliament introduced new tax legislation causing judges to receive less superannuation → Austin argued unconstitutional because State judges are treated differently. Tenure • Chap III judges must have s 72 tenure (crucial for judicial power): Waterside Workers Federation of Aus. v JW Alexander Ltd

INDICIA (INDICATORS) OF JUDICIAL POWER Power derived from a sovereign authority: Huddart Parker v Moorehead

• Body making the decision must have the power to make the decision by the actual law of Parliament • Law, itself, is not binding and authoritative ⎼ requires exercise of judicial power to enforce: TLC Air Conditioner

A controversy about exisiting legal rights and duties ⎼ ‘A matter’

Creation of new rights will not satisfy this element: Luton v Lessels • ss 75 and 76 deal with the jurisdiction of the federal courts in respect of matters • Courts will not actively seek out disputes: Alexander v Hamilton

Inter Partes

• Decision of the court will be reached w/ the parties present.

Binding and authoritativ e decision: Huddart Parker v Moorehead

• Judicial process is to resolve a matter ⎼ need a binding & authoritative effect to force.

Performed in a judicial manner

• Decision must be exercised in accordance to legal principle: R v Commonwealth Court of Concilation and Arbitration

PROHIBITORY RULES 1. Judicial power of Cth shall not be vested in bodies not designated in Ch III • Parliament vests federal judicial power to courts. • Language of the Constitution prevents the possibility of vesting vesting judicial power: Boilermakers Case (1956) 2. Judicial power may be vested in courts in the strict sense • A body is regarded as a court if its main function/ functions are judicial: Alexander’s Case (1918) 3. Federal courts that exercise judicial power must conform to s 72 • The court must be constituted as provided in s 72: Alexander’s Case (1918) • Requirements: ‣ Federal judges are appointed by GG.

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‣ Removal can only be done by the GG on an

address of both houses of Parliament on the grounds of proved misbehaviour or incapacity ‣ Remuneration of judges must be fixed and not diminish. • Tenure for life (until 70) → can’t appoint judges for a finite term: Alexander’s Case (1918) 4. A court may delegate judicial power but must not abdicate judicial power • Relieve the Court from some of their work by assigning non-contentious aspects of jurisdiction to officials who are not judges. • Delegation of judicial powers to those who are not judges is valid upon proving that (1) delegation is not so extensive that it can only longer be said that judges constitute the Court, (2) delegation must not be inconsistent w/ the obligation of the court to act judicially and the decisions must be subject to review or appeal by a judge • Structure of Court must not change • Person the power is delegated to must be an official of the Court. 5. Judicial powers not within Ch III must not be vested in HC or other federal courts • Express vesting of some powers means the exclusion of other powers: Re Judiciary Act (power to determine validity of laws referred to by GG was a judicial power outside Ch III, it is not exercisable by HCA). RE JUDICIARY AND NAVIGATION ACTS • Judiciary and Navigation Act purported to allow the GG to refer a question of law to courts to be determined. The Court could ask other counsel for assistance → was this valid? • HELD: a matter has to be within the purposes stipulated in ss 75 and 76 (a subject matter to be determined by legal proceeding: no matter unless there is some immediate right, duty or liability to be established by Court → matters for the purposes of Constitution does not extend to advisory opinions.

7. Parliament must not vest non-judicial power in Ch III courts • Non-judicial power is expressly vested in other bodies, and so they can’t be vested in Ch III courts (this works vice versa): Boilermakers • Exceptions ‣ Non-judicial power may be given to State courts provided that it is not incompatible w/ the exercise of federal judicial power: Kable, Fardon, Baker ‣ Non-judicial power can’t be given to HCA or federal courts unless it’s incidental to exercise of judicial power: Bond, Thornton, Davison 8. State parliaments must not vest in State courts non-judicial powers that are incompatible with their exercise of federal judicial power • Separation of powers rule applies to state courts: Kable • State parliaments can give courts non-judicial powers as long as they don’t threaten the character of the courts as bodies w/ primary function being judicial + must not undermine courts’ capacity by diminishing public confidence: Alexander’s case 9. Parliament must not remove from courts the jurisdiction that the Constitution has directly vested in them • Right to appeal to HCA cannot be removed as it is enshrined in s 73 of Constitution: Cockle v Isaksen • Original jurisdiction cannot be removed: Lim v Minister of Immigration 10. Parliament must not direct the way courts exercise judicial power • Parliament cannot direct the manner and outcome of the exercise of judicial power (i.e. cannot try to change or predetermine outcomes): Kable • Legislation should not impose a judgement on the court or intervene in judicial proceedings: Colder v Bull

PERMISSIVE RULES 6. Federal courts cannot exercise State judicial power except in cases of ‘accrued jurisdiction’ • Federal courts can exercise judicial power in cases in which both Fed. & State jurisdiction arise in the same controversy.

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1. ‘Persona designata rule’ • A judge can exercise non-judicial power in personal capacity: Hilton v Wells • There are 2 conditions: Grollo v Palmer ‣ Compatibility ‣ Consent

2. Judicial power can be vested in courts martial for cases of military offences • Power outside Ch III may be given to a military tribunal: White v Director of Military Prosecutions • A service offence may also be a ‘civil’ offence triable under a Ch III court • Offence committed by a military serviceman is triable by a court martial ⎼ service status theory • Offence connected to the purpose of maintaining military discipline is triable by court martial ⎼ service connection theory: Alpert 3. Parliament may exercise judicial power in relation to its own powers, privileges and immunities • Contempt of parliament: parliament decides what is contempt (e.g. false evidence to a committee of Parliament, stopping a member from getting into parliament). • s 49 of Parliamentary Privileges Act allows parliament to exercise judicial power in relation to these acts. 4. Superior courts may make rules of procedure • Courts have power to regulate their own procedures: R v Davison ‣ Making procedural rules is “an extreme example of a function that may given to courts as an incident of judicial power/ dealt w/ directly as an exercise of legislative power’.

SEPARATION OF JUDICIAL POWER • There is a strict buffer between the judiciary and other arms of government: Wheat Case • No separation of powers at State level: BLF v Minister of Industrial Relations Principle • Separation of powers is reflected in the chapter division of the Australian Constitution • Chapter III courts must comply w/ Chapter III requirements, and only Ch III courts can exercise Ch III powers: Wheat Case

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1. Does the Cth 2. Does the Cth Act create a Act creates a court? tribunal that is If yes, is the not a Chapter III Court court constituted (tenure, in accordance remuneration)? with Chapter III If yes, is it (tenure, exercising judicial remuneration)? power of the Cth? If yes, invalid If yes, is the If no, are the court exercising members of the the judicial tribunal Ch III power of the judges? Cth? If yes, then ask If yes, valid if they are If not acting in their exercising personal judicial power, capacity or is the court judicial exercising noncapacity → judicial power? personal → if yes, then capacity is invalid. okay.

3. Does the State Act create a court? If yes, does it matter if it is exercising non-judicial power? No, except when it is exercising federal jurisdiction (i.e. judicial power of the Cth) → in that case, it may not act in a way that is repugnant to the judicial power of Cth: Kable

Administrative body v judicial power • Non-judicial body cannot exercise judicial power of Ch III court, and vice versa: Boilermakers case ‣ Arbitration court was an executive body, vested merely with the power of arbitration and conciliation (this is not Ch III judicial power) - Separation of powers means legislature cannot vest executive bodies & tribunals w/ judicial power (although legislature may create courts): Boilermakers’ Case (Dixon CJ, McTiernan, Fullagar, Kitto JJ) ‣ Arbitral power is derived from a voluntary agreement by the parties who submitted their dispute to private arbitration → judicial power is coercive and public: TLC Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) ‣ All courts are subjected to supervisory jurisdiction of Federal Courts: Kirk v Industrial Relations Commission of New South Wales (case went to an “industrial court”, designed to be non-judicial → Court found it unconstitutional if the court was not

subject to supervisory jurisdiction of Fed courts) • Vesting functions of a court in tribunals may undermine a person’s right to a fair hearing by a properly constituted judicial body: Brandy v Human Rights & Equal Opportunity Commission BRANDY V HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION • HREOC was making an enforceable ruling (the order for damages was enforceable once it was registered w/ a Federal Court, in absence of any appeal against the order) → THIS IS PUNITIVE (exclusive role of Ch III courts). • A law enabling administrative commission to exercise Ch III court’s function is invalid

Exceptions • Tribunal schemes where parties elect whether to be bound by the decision of a tribunal (i.e. so that they would be subject to something like arbitral power set out in Boilermakers): Attorney-General (Cth) v Breckler • Where a tribunal merely exercises ‘administrative’ power over statutory criteria (as in Child Support Registrar Case), as opposed to the determination of substantive rights and liberties: Luton v Lessels • Where a tribunal regulates an activity rather than determining its legality: Attorney-General (Cth) v Alinta Limited • Territories courts (because not established under Ch III) but under s 122 ‘territories power’ • Military tribunals are executive bodies allowed to exercise judicial power mainly because of no alternative: Haskins v the Commonwealth Persona designata: exception to Boilermakers • Federal judges may occupy non-judicial posts if they do so as ‘designated persons’, not as members of their court: ‣ Must look at nature of power conferred → (1) if it is judicial, then judge is exercising judicial capacity; (2) if it is administrative, judge is acting in personal capacity. ‣ Another test: whether in undertaking their duties, being judge is part of those duties or whether it is a qualification of them. • Two conditions are imposed: Grollo v Palmer ‣ Compatibility → the administrative function the judge is given to do must not undermine his/her exercise of judicial power ‣ Consent → the judge must give consent

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Incompatibility doctrine • Legitimate exercise of persona designata requires: consent of the individual judge must not be incompatible with judicial function and responsibilities: Grollo v Palmer • Appointments to positions of persona designata rule are subjected to the incompatible doctrine. • Incompatibility doctrine says that any power is incompatible with the exercise of judicial power is void and unconstitutional: Kable • Judges cannot be appointed persona designata in circumstances where it would interfere with their power as judges: Wilson v Minister for Aboriginal and Torres Straight Islander Affairs KABLE V DPP • Legislature attempted to predetermine the case, court could only make the order & had no discretion to make any changes. • Toohey J: law was invalid because State Supreme Courts exercise judicial power of Cth → those courts can’t be required to perform tasks incompatible w/ the judicial function under s 77(iii) WILSON V MINISTER FOR ABORIGINAL AND TORRES STRAIGHT ISLANDER AFFAIRS • Appointment of a Federal Court judge as a reporter under the Aboriginal and Torres Strait Islander Heritage Protection Act was incompatible w/ the Federal Courts’ responsibility to exercise the judicial power of Cth. Judge would actually have to report to a Minister in exercising non-judicial functions, thereby compromising independence → politicalising the judiciary. • Kirby J (dissenting): if a judge is appointed to perform the actions of the executive, the job is too similar to judiciary functions rather than appointing a judge to perform the functions of the police.

Casualised Judiciary • s 72 defines Federal judges by the terms of their appointment (appointed by the GG-in-counsel + retirement age of 70 • Casual appointment of a judicial officer does not interfere with the ‘institutional integrity’ of a Ch III court: Forge v ASIC Power to determine criminal guilt is exclusive to Ch III courts • Cth cannot exclude the judicial power of Cth, especially in criminal matters: Chu Kheng Lim v Minister for Immigration Local Govt. (law which restricts the court’s power to order the release from

custody of a person whom the Executive has imprisonment is invalid) • Judicial power is infringed by legislation which removes power of Ch III Court to make a determination of criminal guilt upon incarceration: Polyhukovich • Parliament can change statutory rights at issue in pending litigation: Polyhukovich Separation of powers & States • No separation of judicial power under Ch III applies within States: Kable • State courts exercising Cth’s judicial power may not be given functions incompatible with the exercise of that power.

DETENTIONS Protective • Ch III has no application in the Territories ⎼ forceful removal is non-punitive and about the welfare and protection of Indigenous people: Kruger v Cth Immigration • Immigration detention is not an infringement on separation of powers → judicial power does not apply to aliens → s 51(xix) permits legislature to detain ‘non-citizens’ for the purposes of expulsion or deportment: Chu Kheng Lim • This power over aliens is restricted to “what is reasonably necessary for the purposes of deportation or application for an entry permit to be made or considered: Plaintiff M47/2012 v DirectorGeneral of Security • Non-citizens can be detained for infinite time: AlKateb Preventive FARDON • Law provided a statutory scheme to determine whether the person should be detained for longer term by using psychiatric report. Court found it was acceptable, unlike in Kable. • Control orders are judicial in character: Fardon • Distinctions from Kable ‣ Legislation did not single-out offenders (even though Minister had singled-out the offenders in the 2nd reading speech): Fardon

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‣ Some judicial discretion was retained in

allowing courts to change the outcome (criteria was impossible for an applicant to meet in Fardon)

IMPARTIALITY, INDEPENDENCE & INTEGRITY • A law that seeks to remove the ‘institutional integrity’ or ‘decisional independence’ from the Courts is invalid: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) • Practical removal of judicial review (even if not expressly stated) interferes w/ the decisional independence of a Ch III court: International Finance Trust Company Ltd v NSW Crime Commission • E.g. increased executive power over criminal process, secrecy & minimal judicial oversight SA V TOTANI There are 3 overlapping assumptions about Ch III: (i) Universal application through the Cth ⎼ rule of law (ii) State courts have federal jurisdiction (iii) Defining characteristics: independence, impartiality, fairness and adherence to open court principle Confirmed in Wainohu v NSW

REMEDIES When a law is found to be unconstitutional, P will usually seek: 1. Declaration of invalidity: James v Cth; Croome v Tas 2. Reading down and severance: Victoria v Cth; Strickland v Rocla Concrete Pipes Ltd ACCESS TO CONSTITUTIONAL JUSTICE Matters • A matter is a subject matter to be determined by legal proceeding: Re Judiciary and Navigation Acts (1921), Re Wakim; Ex Parte McNally (1999) Standing • Court determined whether application has sufficient standing: Croome v Tas

Intergovernmental Immunities Implied Common Law Limitation POSITION BEFORE ENGINEERS CASE Implied immunity of instrumentalities doctrine is implied by HCA, and stated ‘neither the Commonwealth or the States can legislate so as to control the other’. Implied immunity of instrumentalities There was an implied intergovernmental immunity against each jurisdiction’s laws (implied from federalism) → both states and Cth were immune to each other’s laws [used to protect states and their agencies from Cth interference]: D’Emder v Pedder (1904); Railways Servants Case (1906) D’EMDER V PEDDER • Cth officers did not have to pay state tax ⎼ Cth and state are not allowed to tax the other.

LAW LIMITATIONS

Reserved state powers Commonwealth legislations are to be ‘read down’ to prevent trespass on areas the Constitution reserves for the states: R v Barger (1908) R V BARGER • As the subject matter lie within State’s legislative power, Cth can’t have that power. • s 51 powers are read down to preserve state power even though subject matter falls within a HoP.

A M A L G A M AT E D ENGINEERS (1920)

V

S O C I E T Y

ADELAIDE

O F

STEAMSHIP

• Question: is the State bound by Cth.’s decision? Whether Cth’s industrial laws applied to State government instrumentalities? • HCA rejected doctrines of implied immunity and state reserved powers. ‣ Any constitutional implications must have its source either in the text/structure of the Constitution itself. ‣ Words of the Constitution are to be read in their natural & ordinary sense (e.g. where there are express restrictions, can’t imply).

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• The effect of the Engineers’ Case was the recognition of the limits of the residual state powers and expansion of Cth’s powers under 51 without any constraints to protect the State powers. • Doctrine of reserved state powers is rejected, unless reservation is explicitly stated: Fairfax • Doctrine of immunity of instrumentalities also rejected, because Cth Parliament can bind the states: Boilermakers • Exceptions (per Knox CJ, Isaacs, Rich and Starke JJ ‣ State prerogatives cannot be impacted adversely by a Cth law ‣ Taxation = no state immunity from Cth tax ‣ Discriminatory laws = Cth cannot discriminate against a State/s

Cth and the States could make laws that bind each other: Engineers’ case (i.e. a law may affect State govt.’s rights and functions if it falls within an enumerated HoP & doesn’t impose a burden on States) but there are exceptions. State prerogatives • State prerogatives are special powers of executive governments or Crowns. • If Cth attempt to impart state prerogatives, law would be found invalid: FCT v Official Liquidator for EO Farley (1940) BUT where Constitution makes an affirmative grant of power (s 51), Cth has the power to regulate subject matters that naturally affect prerogative power: FCT v Official Liquidator for EO Farley Taxation • s 51(xvii) ‘Bankruptcy’ + s 51(ii) ‘Taxation’ • Cth law must not discriminate between the States or parts of the States. • No State immunity from Cth tax except where taxes are directed specifically at states: Victoria v Cth

MELBOURNE CORPORATION PRINCIPLE Cth cannot enact laws that discriminate against the States by placing a special disability on them (i.e. Cth

legislation can’t operate to ‘destroy or curtail the continued existence of the States or their capacity to function as governments’): QEC v Cth

• When Cth law aims at determining number of employees, terms of appointments, terms & conditions of those employed at higher levels: Victoria v Cth

I.

Cth must not discriminate special burdens or disabilities on States Cth legislation can’t single a State out as the subject • of legislation: QEC v Cth • Taking away a state’s benefit which other states don’t have is not discriminatory: QEC v Cth (Mason J) • Principle protects the legislature + government + agencies that represent State govt. and agencies created by statute and controlled by State govt: QEC v Cth QEC V CTH • Cth specifically targeted at an industrial dispute between Electrical Trades Union + other electricity authorities → provided for an expedited settlement procedure by banning strikes & curtailing union rights. • Held: reaffirmed Melbourne Corporation

MELBOURNE CORPORATION V CTH • MC challenged constitutional validity of s 48 of Banking Act 1945 [it didn’t allow banks to provide services to states and their authorities w/ out consent of Cth’s Treasurer → MC argued that law was discriminatory and aimed at States & their authorities. • Held: Cth can’t impose a law that threaten the continued independent existence of the States.

II. Cth must not operate to ‘destroy or curtail the continued existence of the States or their •

• •

•

•

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capacity to function as governments. Powers of Cth do not extend to interfering w/ the constitutional and electoral processes of the States: ACTV (McHugh) Preventing political advertising does not curtail the functions of States: ACTV (Brennan in dissent) If a law is confined to min. wages + working conditions, it does not impair the states’ function: Re Australian Education Union Law is invalid if they unduly interfere w/ the performance of what are clearly State functions: Melbourne Corp. v Cth (Latham CJ) Law may curtail the functions of a state if it binds senior public servants (determination of wages + conditions may be curtailing if it constrains any government): Re Australian Education Union

REFORMULATED MELB. CORP. • Melb. Corp. principle no longer has two limbs: Austin v Cth • The test: was there a significantly sufficient impairment of the exercise by the State of its freedom to select the manner and method for discharge of its constitutional functions? AUSTIN V CTH • Superannuation taxed on judiciary based on certain salary amount. • Held: rejected the two-limb test from the Melb. Corp. doctrine and apply the ‘special burden’ + ‘curtailment of capacity of States to function as govt.’ are to be apply to the form & substance & actual operation of Cth law.

STATE LAW + CTH GOVT. • A State law is valid in its effect on the Cth, if it is not discriminatory nor impacting prerogatives: If a law is not discriminatory: reciprocal rule in Engineers Case • States can’t restrict the capacity of Cth to exercise its executive power as it is a power lying completely outside of State power: Uther v Federal Commissioner of Taxation • Legislative powers of State can’t extend to cover a prerogative of Cth: Cth v Cigamatic • States can’t affect federal fiscal right/legal rights of Cth in relation to its subjects: Cth v Cigamatic • A state law will validly affect the Cth where: ‣ General state laws affecting Cth in administrative acts: Pirrie ‣ s 80 of Judiciary Act ‣ Laws that affect rather than bind Cth as citizens: Bogle v Cth s 46 of Judiciary Act 1903: in any civil matter to • which Cth or State is a party, the rights of the parties will be the same → parties will be treated as private litigants.

o


Executive Spending Power Executive power
 • Executive power of the Cth includes a capacity, without statutory authority, to undertake functions common to legal persons (i.e. entering into contracts and spending money). • Assumption: if the Cth possess a legislative power with respect to ‘quarantine’ s 51(ix), the federal executive could enter into contracts and spend money on that subject. • Cth’s executive spending power has to be coextensive with the potential scope of legislative power: Williams v Cth (School Chaplains Case) • Cth’s executive power can only be supported by legislation actually enacted by Parliament: Williams v Cth (School Chaplains Case) • Williams v Cth (School Chaplains Case): ‣ William was the father of four children enrolled at the Darling Heights State School where they had a National School Chaplaincy Program (created by Cth to provide financial support for chaplaincy services in school). ‣ The program’s funding was provided by a Minister who went to ask a church, across the road, to hold the program in school → Minister didn’t create a bill of supply, so bill didn’t get chance to pass both houses of parliament to be scrutinised (as in the normal process). ‣ CTH’s submissions: executive power to spend money was essentially unlimited + the Funding agreement was validated by the mere existence of legislative capacity on the subject, for executive power is “limited to the object matters of the express grants of legislative power in ss 51, 52 and 122 of the Constitution”. ‣ This was misuse executive power so HCA struck down the Funding Agreement → no head of power = no legitimate executive action (there could only be when Parliament provides the executive with this power under Statute).

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Implied Freedom of Political Communication Limitation
 HCA has recognised that s 7, 24 and 128 creates a system of representative government, which gives rise to an implied freedom to communicate on matters of political and governmental concern: Nationwide News; ACTV; Theophanous; Stephens “Minorities are thus entitled to freedom in the peaceful expression of dissident views”: Davis v Cth (Brennan J) NO RIGHT TO FREE SPEECH • In ACTV, Brennan J said “the freedom cannot be understood as a personal right, the scope of which must be ascertained in order to discover what is left for legislative regulation”. • Freedom is best understood as a constitutional restriction on legislative power and the question is more generally as to the effect that the impugned legislation has upon the freedom. • Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by the Constitution: Nationwide News

LANGE V ABC • In 1991, P (a member of the NZ Parliament and former PM), brought defamation proceedings agains the ABC for alleging that he had been defamed during the Four Corners programme. AB relied on the implied freedom to discuss government and political matters as a defence. • HCA unanimously held in favour of P ‣ Freedom is not ‘confined to an election period’ & the freedom operates as a restriction on legislative power BUT it is not absolute & will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies: 1. The object of the law is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government. 2. Law is reasonably appropriate and adapted to achieving that legitimate object or end.

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How to know if this implied freedom has been breached? 1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? 2. If the law effectively burdens that freedom, is the law reasonable appropriate and adapted to serve a legitimate end … compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? If answer to (1) is YES and (2) is NO → law is invalid.

FREEDOM OF POLITICAL COMMUNICATION • Freedom of communication applies to invalidate any law (State, Cth, common) which limits freedom of discussion of Cth political affairs: Theophaneous • Implied freedom is based on principles of representative democracy → may give rise to any implications ‘necessary’ to sustain a representative government: Theophaneous • State constitutions embody representative govt., so freedom exists there → freedom extends to cover discussion of conduct of members of state legislature : Stephens • Defence of implied freedom was available against claims of defamation: Stephens • Materials, irrespective of political motivations, which facilitate criminal activity was a reasonable limit on the freedom: Brown • Does not cover hate speech: Aus. Capital Television v Cth

CASES APPLYING ‘LANGE' TEST Levy v Victoria

L, an animal rights activist, protested about the duck-shooting season in an restricted area (he didn’t have a license to enter the area). L was charged w/ summary offences. HELD: the law did infringe on the implied freedom but the law was proportionate to the purpose of public safety so L lost.

Coleman v Power

C was protesting in Townsville, and P arrested C for using insulting words in a public place. C was found guilty on all charges and argued that the legislation was invalid. HELD: upheld validity of the law but overturned the conviction → insulting words mean extreme language that provoke hate and anger.

Theophanous P sued publisher & Bruce Ruxton for v Herald & demotion arising out of letter written Weekly Times by Ruxton. Publisher claimed that the words were published pursuant Nationwide News v Wills

Nationwide was prosecuted for bringing a member of the Industrial Commission into disrepute under s 299 of Industrial Relations Act HELD: court struck down legislation making it an offence to use words calculated to bring a member of the Australian Industrial Relations Commission into disrepute.

Stephens v West Australian Newspaper

Involved discussions of state political matters. Majority found implied freedom

Brown v Classification Review Board

Publication in a student paper of instructions for shoplifting & publication was refused classification and was suppressed → argued that this was an infringement on freedom.

McCloy v NSW

McCloy had made political donations to candidate for 2011 election in excess of caps on campaign donations based on Act: he challenged the cap & ban on property developers to make any donations. HELD: Court dismissed McCloy’s challenge.

Aus. Capital Television v Cth

Laws sought to regulate how political advertising are delivered during election period, including prohibiting paid advertisements + mandating free ad time for each party.

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MCCLOY V NSW (2015): NEW TEST 1. Does the law burden the freedom of communication about government and politics? (i) If NO: then the law does not exceed the implied limitation and the enquiry as to validity ends. (ii) If YES: go to step 2. 2. Is its purpose legitimate and compatible with representative government? (i) Identify the purpose of the law and means adopted to achieve that purpose. (ii) Ask whether the purpose and means are compatible with the constitutionally prescribed system of representative government (i.e. do they adversely impinge on that system): Lange; Coleman a) If NO, then the law is invalid. b) If YES, go to question 3. 3. Is it reasonably appropriate and adapted to advance a legitimate object (proportionality)? Proportionality test determines whether the restriction which the provision imposes on the freedom is justified: McCloy v NSW Three stages of proportionality test to answer the question: McCloy (i) Suitable ⎼ whether the law/provision has a rational connection to the purported purpose (i.e. is the law actually aimed to the stated purpose?) (ii) Necessary ⎼ whether there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom. (iii) Adequate in its balance ⎼ to make a value judgement, ask whether the law is attempting to achieving the purpose is important enough to outweigh the extent of the restriction on the freedom.

Acquisition on Just Terms Limitation

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect of: (xxxi) the acquisition of property on just terms from any State or person for any purpose, in respect of which the Parliament has power to make laws s 51(xxxi) is a power to acquire property subjected to two conditions: 1. Acquisition be for a purpose in respect of which the Parliament has power to make laws (this power can only work in conjunction with other legislative powers: Mutual Pools and Staff Pty Ltd v Commonwealth (1994)) → derived from the content of the power. 2. Acquisition be on “just terms”: AG (Cth) v Schmidt (1961) • No circumstances will a Cth law provide for the acquisition of property except on just terms: Trade Practices Commission v Tooth (1979) Express constitutional source of power to acquire property. Not just a freedom or a right. E.g.: Cth can use defence power to acquire property for national security but must pay ‘just term’ for the property.

INTERPRETATION Power and continence guarantee s 51(xxxi) is a power and a constitutional guarantee of just compensation for property rights continent on its exercise: Bank of NSW v Commonwealth (1948) • Requirement of just terms operates at any time Cth makes compulsory acquisition of property: AG (Cth) v Schmidt (1961) States • If state land is otherwise lawfully acquired by Cth under s 51(xxxi), land is unburdened by any state prerogative rights (e.g. mineral royalties): Commonwealth v NSW (1923)

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• s 51(xxxi) does not stop States from acquiring property on compulsory basis: Pye v Renshaw (1951) • No ‘deeply rooted right’ to receive just compensation for property acquired under state legislation: Durham Holdings Pty Ltd v NSW (2001) ‣ A federal grant, supported by s 96 (for purpose of enabling the state to acquire property), would be subjected to s 51(xxxi) requirement of just terms: Pye v Renshaw (1951) Territories • Cth can use s 122 to acquire property in the Territories, s 51(xxxi) does not operate here: Teori Tau • If Cth uses s 122 to acquire property, it must pay just terms: Wurridjal v Commonwealth

STEPS 1. 2. 3. 4.

Is there another head of power to support the act? Is there any property being taken? Is there an acquisition? Has the acquisition been on just terms?

WHAT IS PROPERTY? • HC has given a broad construction to the word ‘property’, does not refer to a thing but a description of legal relationship with a thing. It refers to a degree of power that is recognised by law as power permissibly exercised over said thing: Yanner v Eaton • Property refers to “any interest in any property”, was not limited: Minister of State for the Army v Dalziel , and include full title and ownership, possession, real and personal property (rents, services, rights of way, use of land), tangible or intangible property: Bank of NSW v Commonwealth (1948). • Extends to anomalous interests, include the assumption and indefinite continuance of exclusive possession + control for the purposes of Cth of any subject of property: Bank of NSW v Commonwealth (1948) • Rights created by statutes can be property under s 51(xxxi): Wurridjal v Commonwealth

• Causes of actions (right to sue for compensation under tort) is a property right under s 51(xxxi): Georgiadis v Australian and Overseas Telecommunications Corp 91994) • No compulsory acquisition over property intended for collective use: Telstra Corporation Limited v Commonwealth Minister of State for the Army v Dalziel

Bank of NSW v Commonwealth

• Dalziel was a weekly tenant of vacant land in Sydney & used land as a commercial carpark. s 60H of the National Security (General) Regulations) authorised Cth to enter into exclusive possession of privately owned land for an indefinite period ⎼ Minister was authorised to determine compensation and it was directed that ‘loss of occupation/profits’ shall not be taken into account. HELD: element of property was satisfied, because property refers to ‘any interest in any prop Majority held that it was common knowledge that a swab left in a patient’s stomach after abdominal surgery would not have been there but for the surgeon’s negligence.

ACQUISITION • An acquisition is not the same as taking → taking involves deprivation of property (from perspective of its owner), while acquisition involves receipt for something (seen from perspective of the acquirer, i.e. give and take): JT International SA v Commonwealth (2002) • What does it include? ‣ Taking of title to property ‣ Taking of possession to property: Minister of State for the Army v Dalziel ‣ Taking of the reality of ownership: Bank of NSW v Commonwealth (1948) • Not necessary to permanently deprived, a temporary acquisition is also enough: Minister of State for the Army v Dalziel (i.e. Cth wasn’t taking away rights to land but was prevented Dalziel from using it) • A partial interest is also sufficient to prove acquisition: Minister of State for the Army v Dalziel

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• Acquisition includes taking of indefinite continued exclusive possession/control and giving that to Cth, Cth does not have to seize the property: Bank of NSW v Commonwealth • There could be no acquisition of a property that is always subjected to variation: Attorney General for the NT v Chaffey • Extinguishment, modification or deprivation of rights by itself does not constitute acquisition of property → has to prove some identifiable benefit or advantage from ownership/use has been obtained: Newcrest Mining (WA) v Commonwealth (1997)

JUST TERMS • Does the laws amount to a true attempt to provide fair and just standards of compensating or rehabilitating the individual as an owner of property? • Just terms connote fairness (terms must be just in the circumstance), do not necessarily equate to ‘market value’: Grace Bros v Cth (1946), but that’s a good starting point: Nelungaloo. • What is ‘fair and just’ is between the Community and the owner of the thing taken: Nelungaloo Pty Ltd v Cth • It is acceptable for a legislation to set up a regime to determine fair compensation. • Legislation may contain a ‘savings provision’ to state that Cth does not believe there is an acquisition of property BUT will compensate if there is is one (to save the legislation from invalidation). • All circumstances are taken into account: Cth v Tas • Property’s special nature is considered. Smith v ANL (2000) Facts

• Smith was employed by ANL. • An implied term of his contract of employment was the ANL would provide Smith with a safe workplace & ANL would not require him to undertake work which carried an unreasonable risk of injury. • He was injured at work in Dec 1988 and injury gave rise to causes of action in contract and tort. Smith proceeded an action on 9 Nov 1994. • 24.06.1993: Seafarers Rehabilitation and Compensation Act + Transitional Act came into force and barred Smith's action.

Is there property?

Acts restricted Smith’s common law rights (this is property) • “like any chose in action recognised at law or in equity, were classified as “property” for the operation of s 51(xxxi) of the Constitution”: at [20] (Gaudron and Gummow JJ). • “a right of action for damages for personal injury … is ‘property’ within the meaning of s 51(xxxi)”; [80] (Kirby J): “…choses in action are undoubtedly a form of property known to the law”; [195] (Callinan J).

Acquisition of Property?

Statutory intervention had taken Smith’s right to bring an action + ANL received benefits of not having to pay possible damages for Smith’s claims, if successful.

Are there just terms?

6 months window might be prejudiced against other employees. • The period of grace specified in s 13 was too short and its operation from one employee to the next too capricious to meet the constitutional requirement of just terms” (Gaudron and Gummow JJ)

Acquisition of Property?

There was a taking of Chaffey’s right to full compensation because what he is entitled to is reduced BUT: • The method for quantifying the amount of compensation payable to a worker by an employer had not been “fixed in permanent form at the date of injury to Mr Chaffey and was always subject to variation” • There could be no acquisition because Chaffey’s rights was always subjected to change (statutory right was not stable, Parliament was doing what they were always going to do

Are there just terms?

• No need to discuss.

Telstra Corporation Limited v Commonwealth (2008) Facts

• The Postmaster-General transferred the assets constituting the PSTN to the Australian Telecommunications Commission which was established by the Telecommunications Act 1975 (Cth) • Telstra was the eventual successor to the Commission. Section 11 of the Australian and Overseas Telecommunications Corporation Act 1991 (Cth) relevantly vested the assets of the PSTN in Telstra

Is there property?

Telstra’s statutory right to exclusive ownership of PSTN is property

Acquisition of Property?

Telstra argued that it has exclusive possession of PSTN, and no other carriers can access it. BUT: • The statute always provided other carriers access to the network. • Telstra thought it had something it never did so there was no acquitsition.

Are there just terms?

• No need to discuss.

Attorney-General for the NT v Chaffey Facts

Is there property?

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• Chaffey, a worker, was employed by Santos and was injured on 10.09.2003 → Santos accepted liability. • Chaffey was entitled under the Work Health Act 1986 (NT) to “such compensation as prescribed” for his injury. • A component of the prescribed compensation was calculated by reference to the “normal weekly earnings” of a worker and that expression was defined in s 49(1) by reference to the “remuneration” of the worker. [there was a reduction of the content of his right to compensation] Chaffey’s statutory right to the fixed compensation, as argued

LIMITATIONS Incongruity Acquisition of property on just term must be of a kind that permits just terms otherwise it falls outside the scope → can’t apply to a law imposing penalties. • Example: paying a fine for speeding → there is taking and receiving (so acquisition is satisfied), however, it doesn’t permit just terms because it is incongruent to the intention to deter people from speeding. Attorney-General for the NT v Emmerson • Court declared Emmerson a drug-trafficker under s 36A of the Misuse of Drugs Act (NT) • All real and personal property he owned or effectively controlled was forfeited to the Northern Territory under s 94 of the Criminal Property Forfeiture Act (NT) but a vast majority of his assets were acquired via legitimate means. HELD: The impugned provisions of the Forfeiture Act did not amount to an acquisition of property other than on just terms because the forfeiture effected by the Act was ‘imposed as punishment for crime’ ([75]), and therefore, consistent with prior authority, was an exaction of a kind in respect of which just terms compensation was an inconsistent or incongruous notion • Laws with respect to forfeiture in the courses of: ‣ Property of enemy aliens: Attorney-General for Cth v Schmidt (No 1) ‣ Incidental consequence of Parliament’s exercise of its power to determine superannuation benefit w/ respect to criminals: Mutual Pools and Staff v Commonwealth ‣ Enforcement of regulatory regimes: AttorneyGeneral for the NT v Emmerson ‣ Penalties of crimes: Re Director Public Prosecution; Ex parte Lawler • Enforcement of debt → Cth can seize property as collateral if there is a statutory lien when someones owes a debt to Cth: Airservices Australia v Canadian Airlines (1999) • If legislation amounted to regulation of the activities of the corporation rather than a taking of its property: Trade Practices Commission v Tooth (1979) If no just terms = acquisition under legislation is invalid.

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s 80: Trial by Jury (Express Right) Limitation Section 80 Trial by Jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every trial shall be in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

INTERPRETATION s 80 applies if there is a trial on indictment but leaves it to the parliament to determine whether any particular offence shall be tried on indictment or summarily: Kingswell v the Queen (Gibbs CJ, Wilson and Dawson JJ) When are proceedings on indictment? • Proceedings on indictment involve the norm/al setting out of charges against the accused on oath by a representative of the Queen before a jury (as opposed to summary proceedings (as opposed to summary proceedings which appear before a magistrate): R v Archdall and Roskruge; Ex parte Carrigan and Browne • Cth retains legislative discretion to determine whether Federal offences are to be tried summarily or on indictment ⎼ ‘words of s 80 were deliberately and carefully chosen to give the Parliament the capacity to avoid trial by jury when it wished to do so’: Cheung v the Queen Other features • Literal approach to interpretation of s 80 is endorsed: R v Archdall and Roskruge; Ex parte Carrigan and Browne • Common law has never recognised that an appeal can be made after acquittal by jury and this right is constitutionally guaranteed by s 80: R v Snow • No constitutional requirement that jury has to be made up by 12 members → minimum members to make up a jury can be reduced to 10, any further reductio violates s 80: Brownlee v the Queen • No constitutional requirement that jury cannot separate after they had leave to consider their verdict: Brownlee v the Queen

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• Jurors can be warned to resist external influences and if affected trial judge can make appropriate orders: Brownlee v the Queen • Unanimity was an essential characteristic: Cheatle v the Queen • Random and impartial selection is essential: Katsumo v the Queen • Reserve and additional juries are not unconstitutional: Ng v the Queen • Directed verdicts are constitutional: R v LK • Not all facts must be determined by a Jury, some can be done by the Judge sitting alone: Cheung v the Queen LIMITATIONS • s 80 does not apply to the States or Territories → express right is only guaranteed where a person is charged with a Cth offence (s 80 only applies to any law of the Cth): Byrne v the Queen; Kingswell v the Queen • s 80 does apply where States and Territories are hearing an indictable Cth offence • s 80 does not extent to courts martial: Re Tyler & Ors; Ex parte Foley ACCUSED'S RIGHTS TO WAIVE Brown the Queen • B was charged with federal drug offences and tried on indictment. He elected not to have a jury, and the trial judge ruled that s80 disabled him from making that election. He was tried and convicted. • HELD: on appeal to HC: the constitutional guarantee of trial by jury in s80 cannot be waived by the accused. The majority adopted a literal approach to the word ‘shall’ in s80 and concluded that the provision required proceedings on indictment for Cth offences to be tried by jury.

s 116: Freedom of Religion Limitation 
 Section 116 Freedom of religion The Commonwealth shall not 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 of any office or public trust under Ctb.

SCOPE KRUGER V CTH • A Northern Territory ordinance authorised the removal of Aboriginal children from their natural parents → plaintiffs argued this to be a law that prohibits the free exercise of any religion. • HELD: there need to be a clear intention that the law was made to directly regulate religious conduct. It cannot be concluded that Aboriginals Ordinance 1918 (NT) was a law ‘for prohibiting the free exercise of any religion’. s 116 contains 4 guarantees: 1. Establishing any religion WHAT IS A RELIGION FOR THE PURPOSES OF S 116? • Might be a system of beliefs or statement of doctrine and might prescribe a code of conduct or it might involve a prescribed ritual or religious observance, and need not involve belief in a deity: Adelaide Co of Jehovah’s Witnesses v Cth • s 116 includes persons who have no religion: Adelaide Co of Jehovah’s Witnesses v Cth SCIENTOLOGY CASE: 5 INDICIA 1. Belief in the supernatural 2. Ideas about man's relationship to the supernatural 3. Requires adherence to codes of conduct 4. Constitute an identifiable group 5. Adherents see their collection of ideas and/or practices as constituting a religion. WHAT CONSTITUTES ESTABLISHMENT OF A RELIGION? • s 116 prohibits only those laws which have an express purpose the establishment of a single religion as a state religion → does not prevent Cth providing financial assistances to schools that are operating on

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a religious basis: AG (Vic); ex rel Black v Commonwealth (DOGS Case) ‣ Legislature intended to adopt a narrow notion of establishment (defined as 'the rights and duties of the civil magistrate to maintain and support an establishment of religion in accordance with God's word. 2. Imposing any religions observance No HC decision which consider this particular clause. • BUT the federal law requiring a witness at a Royal Commission to swear an oath or make a solemn affirmation to tell the truth and be guilty of an offence (on default) could impose a type of religious observance on persons, thus infringing s 116: R v Winneke; Ex parte Gallager 3. Prohibiting the free exercise of any religion s 116 is concerned only with laws which ban religious practices or otherwise forbid the free exercise of religion: Kruger v Cth; i.e. a law which requires a man do something that would otherwise be forbidden in his religion does fall within the scope of s 116. • Attracting invalidity of law under s 166 requires that the law in question must have the purpose of achieving an objective which the freedom forbids: Kruger v Cth (Brennan J). • s 116 deals with the making of law and whether that law prohibits the free exercise of any religion, it does not deal with the administration of a law: Kruger • Freedom is not absolute and must be weighed against public interest: Kryger v Williams; Jehovah’s Witness Case 4. No religious test • William v Cth: requirement in guideline that school chaplains be recognised by a religious institution was a religious test for office → rejected by Court [chaplains were engaged by SUQ using a contract so did not hold office].
 KRYGER V WILLIAMS • Cth Act introduced a system of compulsory Military Training, stipulating that anybody who fails to attend was committing an offence but s 143(3) allows non-combatant duties for religious objection. • Edward Kryger declined duty as it opposed the will of God. • HELD: it is ridiculous to say that to require him to attend training would inhibit his free exercise of religious

s 109: Inconsistency of Laws Limitation on State law
 Section 109 Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Application of s 109 presupposes the existence of a valid State law and a valid Cth law. Logically, questions concerning the validity of a Cth law need to be resolved before applying s 109. • Effect of s 109 is to render a State law inoperative → once inconsistency is removed (or federal law is repealed), State law is revived: Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) affirmed in Butler v AG (1961) • s 109 is a mechanism to resolve conflicts between Cth and States (not Cth and Territory laws).

REQUIREMENTS To have inconsistencies between a federal and state law, you will need: 1. A valid Commonwealth law ⎼ was it made within power? 2. A valid state law ⎼ to show that a state law is valid, must say that it was made under s 5 of State Constitution where the words “peace, order and good government” has plenary power, meaning that State parliament can legislate (i.e. it is a valid law): Unions Steamship 3. An inconsistency between the two laws.

HOW IS A ‘LAW’ DEFINED FOR THE PURPOSES OF S 109? • Expressions “a law of the State” and “a law of the Cth” are sufficiently general to be capable of applying to inconsistencies involve not only a statute (or its provisions) but also an industrial order, award or other legislative instrument or regulation made under a statute: Jemena Asset Management (3) Pty Ltd v Coinvest Limited • A ‘law’ includes subordinate or delegated legislation but does not include common law: Felton v Mulligan (1971)

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• Commonwealth has legislative supremacy, and Acts of the State or Federal Parliament are considered laws: Engineers’ Case • Rules of the courts developed by the courts as incident of from their statutory jurisdiction are laws: Flaherty v Girgis • ‘Law’ does not include Commonwealth Constitution: Re Colina; Ex parte Torney (1999), or administrative decisions made by public servants exercising executive powers: Airlines of NSW v NSW (1964) • ‘Law’ includes Cth laws passed in relation to specific territories under s 122: Lamshed v Lake (1958)

LAWS MUST BE VALID AND OPERATIVE Valid s 109 only operates where there is a valid federal and state law: Bayside Council v Telstra Corporation Ltd → an invalid law is void ab initio: South Australia v Commonwealth (the First Uniform Tax) (1942) Operative s 109 has no operation where only one law relevantly operates (a law that is still operating): Butler v Attorney-General of Victoria (1961)

TESTS FOR INCONSISTENCY Direct inconsistency • Does a State law conflict with a Cth law because, for example, the 2 laws impose obligations incapable of simultaneous obedience (dual obedience rule) or because the State law ‘alters, impairs or detracts’ from the operation of Cth law (rights and duties rule)? • NOTE: operational inconsistency could arise if simultaneous attempts were made in exercise of the powers conferred by both the Cth and State acts: Victoria v Commonwealth (1937) ‣ Operational inconsistency could arise even when Cth does not have exclusive authority: if authorities from Cth and State sought to exercise their powers simultaneously, there would be an inconsistency in the operation of the 2 acts → if that’s the case, federal law prevails


DUAL OBEDIENCE RULE EXPLAN Where there is a direct inconsistency (i.e. -ATION the two laws have contradictory provisions on the same subject matter), it is impossible to comply simultaneously with the duties or obligations imposed by both laws: R v Licensing Court of Brisbane; Ex parte Daniell (1920) FACTS

ISSUE

Was s 13 of the State Act inconsistent w s 329 of Cth Act?

JUDGE-

• Latham CJ: there is no inconsistency in express terms between two sections. • Dixon J: nothing in language of s 329 or its subject matter to suggest Cth has exclusive power of determining whether owner ought to remove it, if a wreck falls within the description to which the section relates.

HELD

State law and Cth can operate concurrently subject to one qualification: • Did Cth manifested an exclusive authority to cover the field + intentionally excluded the operation of the state law? → HCA didn’t think Cth manifested an exclusive authority. • HOWEVER, there is still inconsistency in the operation of the 2 acts and Cth law prevails. “ALTERS, IMPAIRS OR DETRACTS” RULE

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CASE FACTS

Victoria v Commonwealth (1937) • 28.01.1937: steamships, Caradale and Kakariki, collided and as a consequence, Kakariki sunk within the boundaries of Port Phillip in Victoria. • s 329 of Navigation Act 1912-1935 (Cth): Minister could require the owner of a wreck on or near the coast of Australia to remove it and if owner does not comply, Minister could remove the wreck himself and recover the cost of removal from owner. • s 13 of Marine Act 1920 (Vic): if any ship was sunk in a port within Victoria and owner/master did not clear the port or remove the wreck within a time fixed by port officer/harbour master, a warrant could be issued for the removal of wreck + costs then be recovered.

CASE

MENTS

EXPLAN State law conflicts with Federal law if state law alters, impairs or detracts from -ATION the operation of Cth law to the extent that it undermines the Cth law: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) Australian Mutual Provident Society v Goulden (1945) • Golden had been totally blind since birth. AMP was registered under the Life Insurance Act 1945 (Cth) to carry on a life insurance business. • AMP insured Goulden. It agreed to pay a stipulated amount on the anniversary of the policy immediately preceding Goulden’s 65th birthday or upon his earlier death. G asked AMP to amend his policy to include a ‘waiver of premium benefit’. Upon total disablement, this benefit would mean that AMP would waive the payment of each premium falling due during the uninterrupted continuance of the disablement. AMP refused. • G lodged a complaint w/ the NSW Counsellor for Equal Opportunity, who then referred the complaint to the Equal Opportunity Tribunal established under the Anti-Discrimination Act 1977 (NSW), s 49K(1): “It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a physically handicapped person on the ground of his physical impairment”.

ISSUE

Was s 49K of the State Act inconsistent with the Commonwealth Act?

JUDGE-

“it would alter, impair or detract from the Commonwealth scheme of regulation established by the Act if a registered life insurance company was effectively precluded by the legislation of a State from classifying different risks differently, from setting different premiums for different risks or from refusing to insure risks which were outside the class of risk in respect of which it wished to offer insurance"

MENTS

HELD

State law was inconsistent with Commonwealth Act because it prevented the AMP (who was complying by the Cth Act) from categorising different risks) → state law had ‘altered, impaired and detracted’ the operation of the Cth Act.

‘Cover the field’ inconsistency Where the Cth intended to cover the field and a State purports to legislate in that field: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd → ‘cover the field’ = Cth intends its legislation to be the exclusive law on the topic • Breath of the federal provision may signal intent to cover the field: ABC v Industrial Court of SA (the Act was not detailed in application to temporary employees but breath of the law implied that it covered the field). • Intention to cover the field may manifest where Fed. laws deal w/ Fed. matters: R v Loewenthal • Differing penalties is sufficient to ground an inconsistency argument: Hume v Palmer, but must ascertain whether Parliament intended to cover the field: Dickinson v the Queen STEP 1: HOW TO IDENTIFY THE FIELD? If the laws can be characterised as applying to the same subject matter, do they apply to the same matter in the same circumstances and in the same way? STEP 2: DOES THE CTH LAW EXPRESS AN INTENTION TO COVER THE FIELD? • Cth may include in its legislation a clause expressly excluding the operation of state legislation OR • Cth may imply intention to cover the field Implied intention Examine nature and scope of the Cth legislation. • Can be exhaustive, detailed (more detailed = narrower the field) or broad • Detailed provisions may indicate intention to cover the field: Ex parte McLean • If Cth intends to cover the entire field, whole of State Act is overridden: Clyde Engineering v Cowburn Expressed intention The intention to cover the field was expressly stated in the legislation. E.g. in Wenn v AG, s 24(2) of the Cth Act states “the provisions of the division shall apply in exclusion of any provision providing for preference in

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any matter relating to employment of discharged members of the forces”.

Inclusion of state law This is where there is an express intention to allow State law to cover the field → only express inclusion: Re Credit Tribunal ex p GMAC Acceptance Corp (s 75 of Cth Act stated that Part V was not intended to exclude or limit the concurrent operation of any law of a State or Territory). STEP 3: DOES

THE

CTH

LAW EXPRESS AN INTENTION TO

NOT COVER THE FIELD

There can be no inconsistencies when, on analysis, the Cth has not expressed any intention to regulate a topic: TA Robinson & Sons Pty Ltd v Haylor No retrospective inclusion • Cth cannot amend the law to invoke retrospective inclusion: Viskauskas v Niland • Cth may express intention not to cover the field prospectively, they can’t do it retrospectively: Uni of Wollongong v Metwally VISKAUSKAS V NILAND • Cth amended RDA so that the Act “was not intended and shall be deemed never to have been intended” to exclusive the operation of the State Act after court found original Act covered the field, rendering State’s ADA inconsistent

COVER THE FIELD’ EXPLAN ATION

Where the Cth intended to cover the field and a State purports to legislate in that field: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd

CASE FACTS

John Holland Pty Ltd v Victorian Workcover Authority (2009) • 24.09.2008: inspector under Occupational Health and Safety Act 2004 (Vic) charged John w/ offences against ss 21 and 23, relating to safety of a working environment. • Objects of Occupational Health and Safety 1991 (Cth): “to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of nonCommonwealth licensees”. • Offences were alleged to have been committed in October 2006. At the time of the alleged offending, John was not a non-Commonwealth licensee but became one on 01.01.2007 (therefore, an employer within the meaning of Cth Act).

ISSUE

Was there an inconsistency between State and Cth law?

APPLY

• Do they both regulate the same subject matter? YES, both laws operate in the same field after 01.07.2007. • Court found that Holland committed the offence prior to operation of Cth so he fell outside the scope of fed law and no inconsistency → s 4 of Cth Act had no work to do (no effect on the operation of a State law that applied to a person before he/she came within the field of operation of Cth Act.

TEST

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Notes IMPLIED INCIDENTAL POWER • Each HoP has an implied incidental area. A law ‘with respect to’ a HoP might fall either in the core area of the power or the implied incidental area of the power. • ‘Everything which is incidental to the main purpose of a power is contained within the power: Burton v Honan • The implied incidental power needs to be distinguished from the express incidental power set out in s 51(xxxix) which concerns matters arising in the execution of Cth legislative, executive and judicial powers: Burton v Honan

READING DOWN OF LAWS • So far as it is reasonably possible to do so, legislation should be construed as being within power. • Where an Act is so general as to apply to mattes beyond power, the court will construe it in a more limited sense and will confine its meaning. • The general principle of statutory interpretation is: if it is possible to read down the meaning of the law, so its narrower application is constitutional valid even though the broader interpretation is invalid, then the HC will read down the law. ‣ Wilson v Minister for Aboriginal and Torres Strait Island Affairs: “person” was read down so not to include “federal judges” • If reading down the legislation would amount to a rewording of legislature’s intention, court will not read down: Pidoto v Victoria

SEVERANCE • An unconstitutional section of an Act may be severed from the rest of the Act (thus, saving the Act). But, these questions must be asked. • In severance possible as matter of language ‣ Would there need to be a substitution rather than excision of words? If yes, no severance ‣ Would the result be to change a legal effect? If yes, no severance ‣ Is the remainder of statutory text, or part of it, so interdependent with the severed words that to remove them would change the whole effect of the law? If yes, no severance

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‣ Would severance be in accordance with the

apparent intention of the legislature, as revealed in the terms of the whole Act? If intention is that the statute should stand or fall as a whole, severance is not possible • Work choice case: If the invalidated portions are relatively few and specific, surgery (i.e. severance) will be available and appropriate. However, where the resulting invalidation is substantial and would strike down key provisions of a comprehensive and integrated legislative measures, severance will be inappropriate. • “Judicial surgery” should not involve the court’s performing a legislative task (i.e. HC cannot go and amending legislation, this is not judicial role): Work choice case