Week 1: 1.1 INTRODUCTION

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1 Week 1: 1.1 INTRODUCTION A. Structure of the Constitution Ch 1 - The Parliament *** PtV The Powers of Parliament (s51) Ch 2 - The Executive Government Ch 3 - The Judicature Ch 4 - Finance and Trade Ch 5 - The States Ch 6 - New States Ch 7 - Miscellaneous Ch 8 - Alteration of the Constitution B. Federalism and the Engineers case Some areas are exclusive to the Commonwealth: so if a State attempts to legislate on this topic, the law will be invalid. However, though Cth is supreme as recognised by s109 Inconsistency, the Constitution reflects that Australia is a federation. S106 recognises that the States have their own Constitutions, and that they will continue after Federation. A law will be unconstitutional if 1) It is not supported by a head of power 2) If it breaches an express or implied limitation or prohibition on the exercise of power. Amalgamated Society of Engineer s v Adelaide Steamship Co Ltd (1920) (Engineers Case) Literal interpretation and legalism Held Overthrows the implied immunities and reserved State powers doctrines. S107 does not reserve any powers, State laws are not immune from Cth laws. S109 means Cth laws have supremacy. LEGALISM AND TEXTUALISM. The Constitution is a piece of statute and should be interpreted as such. The settled rules of construction: 1. Golden or universal rule: exclude consideration of everything except the state of the law as it was when the Statute was passed, and the light to be got by reading it as a whole. The safe course is to read the language in its natural sense. Victoria v Commonwealth (Payroll Tax case) (1971) 2.5% tax on wages paid by employers Held That the Cth would as time went on, enter progressively, directly or indirectly into fields that had formerly been occupied by the States. The Constitution is not an ordinary statute but a fundamental law. Principles based on the interpretation of a written Constitution may vary and develop in response to changing circumstances.

2 1.2 CONSTITUTIONAL INTERPRETATION AND CHARACTERISATION 1. Has the Commonwealth passed a law within the conferred power? CHARACTERISE THE LAW Determine subject matter by reference to the nature of the rights, duties, powers and privileges which it creates, changes, regulates or abolishes (Fairfax v FCT per Kitto J; Grain Pool) b) Look to practical as well as legal effect to determine if there is a sufficient connection between the law and the head of power (Grain Pool) i) Subject Matter Power sufficient connection: ascertain whether the law, so characterised, has a sufficient connection to the HOP (Re Dingjan; Ex Parte Wagener). Establishing a sufficient connection is a matter of degree (Leask v Cth) ii) Purpose Powers reasonable proportionality: ascertain whether the law in question is reasonably appropriate and adapted to the Constitutional purpose contained in the HOP (Polyukhovich v Cth) c) Incidental power: Parliament has capacity to legislate in relation to acts, matters or things which are appropriate and adapted to effect its main purpose has power to make laws that are reasonably incidental or ancillary to the subject matter directly in power (Nationwide News Mason) Express Incidental Power s 51(xxxix) provides Parliament with the power to legislate with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament or in the Government of the Cth, or in the Federal Judicature, or in any department or officer of the Cth. Implied - authority to legislate in relations to things necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affect many matters that are incidental or ancillary to the subject matter (Grannall v Marrickville Margarine Pty Ltd) sufficient connection = look to the purpose of the power and potentially whether the law is an appropriate or proportion means of carrying that power into effect HOWEVER the true role of proportionality in this process is currently uncertain (Leask v Cth) d) Interaction between Heads of Power: Each head of power should be construed independently according to its natural meaning such that one head of power cannot be used to limit the scope of another (Workchoices) Where a law can be characterised with respect to another HOP that contains a positive prohibition or restriction, the HOP to which the attaches will be construed as subject to the limitation (Workchoices) Dual characterisation: if the law operates immediately upon a field within power, then that is enough, even if it reveals a purpose/operation outside power (Fairfax) 2. Does it conform to the express/implied limitations of power? a) Cannot recite yourself into power (Communist Party Case) b) Purpose doesn t matter for non-purposive powers (Murphyores) c) Religious discrimination (s 116: DOGS Case) 2

3 d) Implied freedom of political communication (Levy; Coleman v Power) e) Integral immunities discrimination against the states (Melb Corp) f) Freedom of interstate trade and commerce (s 92) g) Taxing provision in otherwise non-taxing statute (s 55) h) Taxing provision in amending statute (prohibition in s 55) DEFINING LIMITS OF THE POWER Interpretation of the power: the issue is always: one of subject matter determined by reference to the rights, duties, powers and privileges which it changes, regulates or abolishes Fairfax v FCT ). Constitution must be interpreted with all the generality allowed by the text (Grain Pool). Cth heads of power are to be interpreted in accordance with the natural meaning of the words, thus any limitation on the scope of those powers is not to be implied unless that implication follows necessarily or logically from the text (Engineers). A. Use of historical materials This was very strongly rejected in both Tasmania Drawbacks and Municipal Council of Sydney v Cth. Finally in 1988 though, in Cole v Whitfield the judges allowed recourse to the debates in aiding interpretation of s92 - Regard could be had to the history of the constitutional provision, including the relevant Convention Debates. for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature of objectives of the movement toward federation, but not for the purpose of substituting for the meaning of the words and the scope and effect if such could be established which the founding fathers subjectively intended the section to have. B. Intention of the framers Cole v Whitfield opened the way to the US approach names ORIGINALISM - Interpretation of the Constitution should adhere to its original intent or the original understanding of its text. The Court is not willing to countenance INTENTIONAL ORIGINALISM: - an attempt to establish what was in fact the subjective intention of the framers. Craven argues intentional originalism gives positive guidance towards objective results. o Appeals to this kind of interpretation usually fail. E.g. Work Choices As to the scope of 51(xx) the judges refused to draw any inferences from the Debates at all. The Court IS willing to accept TEXTUAL ORIGINALISM (USSC Scalia J advocate). The words are on the page; the intention is either embodied in them or hidden from us in some psychological black hole. (subjective) Intention leads away from the solidity of the text, and opens judges up to speculation not to mention pursuance of their own objectives and desired. o C. Textualism Don t know the meaning? 1. Consult a dictionary. 2. If it is an older word, find out what it would have been taken to mean by a reasonable informed person at the time of production. 3

4 Here the focus is on the constitutional text, with no attempt to discover the subjective intentions of its authors, but simply with an attempt to establish the meaning that its language would have had according to the general understandings of the time. Original public meaning (Richard Kay). Golden rule: read the words in their plain and ordinary sense in the context of the whole statute. Heydon J writing extra-judicially agreed with O Connor J s judgement in Drawbacks : Also applauded by McHugh J in Eastman v The Queen - If the words aren t clear or produce ambiguity, injustice or manifest absurdity? o Recourse must be had to the context and scheme of the whole Act or Constitution. No political considerations are involved. Constitution must be read naturally in light of the common law which preceded it. - This rule assume writers/framers wanted the meaning to be that of the words only; if they didn t they would have made it expressly clear. - However, a law is assumed not to abrogate rights unless the contrary is made expressly clear (principle of legality). - An Act will be assumed to conform to IL unless the contrary is crystal clear. D. Incremental Accommodation Every Act will be read as conforming to the Constitution as far as possible. Each Act shall be construed as being within power so far as it is possible (s15a Acts Interpretation Act). Connotation of words is fixed as at 1900, and the denotation may be subject to change as new instances or different kinds of instances arise. - these approaches offer ways of adjusting that meaning to accommodate later developments. E.g. Ambulatory language postal and other like services understood to incorporate later meanings. - Evolution in meanings are permitted where the new meanings or applications share the essential characteristics of the words used in 1900 and fall within the purposes underlying those constitutional words. - This enabled by the fact that the Constitution typically states concepts and purposes at a sufficiently high level of abstraction. E. Purposive interpretation Progressivism living tree. Living tree comes from Canada: We update the Constitution according to the standards and values of the present. Current values from IL sheds light on the Constitution (see Kirby J). F. Characterisation Cth laws Don t look at what the Act says, look at what it does. 1. You need to ascertain the nature of the law in question (i.e what it does e.g. what rights, powers, privileges, duties, immunities or interests it grants, removes or limits). 2. You need to determine whether the law in question falls within the scope of one or more heads of Commonwealth legislative power. G. Dual characterisation It is possible for a law to have two purposes/characters. (Murphyores) Once a law has actual and immediate operation within A head of power, that is enough (Melbourne Corporation; Fairfax v FCT) 4

5 H. Interaction between heads of power: Primary rule - Each head of power should be construed independently according to its natural meaning, so that one head can t be used to limit the scope of another. Secondary rule restrictions that are expressly stated in one head of power, may restrict the scope of other heads of power - E.g. s51(xiii) banking, other than State banking - If it is a law affecting State banks, it is invalid if it can be classified as with respect to State banking: Bourke v State Bank of NSW CASES Tasmania v Commonwealth and Victoria (1904) (Drawbacks case) CL construction techniques Held While we do not inquire what the legislature meant, we ask only what the statute means, there are some liberal aspects: Historical facts surrounding bringing the law into existence, including the technical meaning of the language used in a legal context, subject matter of the legislation, what the law was at the time the statute was enacted, what particular deficiencies existed in the law before it was enacted. Eastman v The Queen (2000) Textualism or semantic intentionalism Held Agreed w Drawbacks; it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. Held that the two weren t necessarily inconsistent. The search is always for the objective intention of the framers, yet the meaning is also not necessarily the same as that which it had in Street v Qld Bar Association (1989) On connotation Held The connotation of a constitutional provision remains the same while its denotation changes as new things falling within [the] connotation come into existence or become known (Dawson J) Connotation = (criteria) core content/essential meaning, fixed as it was at Denotation = (identification of the things which come within it) the penumbra of meaning the meaning of the term that changes Bank of NSW v Commonwealth (1948) Bank Nationalisation Case Criticism of pith and substance Held Latham CJ: criticised pith and substance it is metaphorical; little illumination and is apt to mislead. Solves no difficulties. (endorsed by Privy Council) Dixon J: We are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. So, the Court should always lean to the broader interpretation unless there is something in the context/rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. The purpose of s 51 as a grant of power not a limitation of power; refused to impose artificial limits. *** Latham CJ qualified that: broad interpretation shouldn t undermine the federal distribution of powers. A law just referring to a subject matter or with possible application is not enough. The motives of Parliament are irrelevant objectivity! 5

6 Fairfax v Federal Commissioner of Taxation (1965) Move away from true characterisation Held Mason QC argued: [1). 2 purposes possible, 2) focus on legal operation] 1. So long as a law can fairly be characterised as being a law with respect to a subject matter that is within Cth power, it does not matter that it might also be characterised as bearing upon some other subject matter that is not within power. Only the first characterisation is relevant. 2. Adopted Latham s remarks in Bank Nationalisation Case: In characterisation; a law, focus on direct legal operation, which are ascertained from its text and from the legal rights and liabilities affected by it. (Doesn t matter what Parliament says it is) Kitto J preferred true nature and character of the legislation: Is it in its real substance a law upon, with respect to. NSW v Commonwealth (Work Choices Case) (2006) Limitations only express affect other heads of power Held Kirby J (dissent) seized on Kitto J s language in Fairfax to support his contention s51(xxxv) supported the Work Choices Act. Only express limitations in heads of power can affect other heads of power. Implied limitations drawn from limited wording do not have such an effect. Murphyores Incorporated Pty Ltd v Commonwealth (1976) Dual characterisation export, environmental Held Cth s real motive is irrelevant so long as the law can be characterised as being with respect to another head of power; There is nothing in the Constitution to support an implication that there is a limitation on the power of selection such as by reference to considerations of trading policy. Actors & Announcers Equity Association v Fontana Films (1982) Dual characterisation, no need for judicial choice Held If a law enacted by the federal legislature can be fairly described both as a law with respect to a grant of power to it and as a law with respect to a matter or matters left to the States, that will suffice to support its validity as a law of the Commonwealth. Stephen J argued that a law may be capable of dual characterisation avoids the need for judicial choice in identifying a single true character of a law, and the unpredictable results this might produce: 2+ characterisations is often reality. INTERACTION BETWEEN HEADS OF POWER Pidoto v Victoria One power doesn t fetter another Engineers Held Primary rule: Each head of power should be construed independently according to its natural meaning, so that one head can t be used to limit the scope of another. (Engineers) Secondary rule: restrictions that are expressly stated in one head of power, may restrict the scope of other heads of power 6

7 Week 2: CHARACTERISATION SUBJECT MATTER AND PURPOSE POWERS TESTS: Subject matter power: sufficient connection Purpose power: proportionality (appropriate and adapted) S51 mainly includes subject matter powers. Purpose powers are the exception: Include - S51(vi) DEFENCE - S51(xxix) EXTERNAL AFFAIRS in so far as it enables the Cth to implement international treaties and conventions. - Nationhood? Still only a possibility. (Davis v Cth) Stenhouse v Coleman (1944) Dixon on defence purposive powers generally Held Involves the notion of purpose or object (the defence of Aus) unlike the other s51 powers to determine whether the legislation is valid. The exercise must be about whether the legislation operates on or affects the subject matter. Purpose powers: excludes from investigation the actual extrinsic motives and intentions of legislative authorities. The purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth. Re F; Ex parte F (1986) Extending Fam Court jurisdiction family to custody Held Mason and Deane JJ (in dissent) (now authoritative). fairly be described as a law wrt where one of 2 subjects is and the other not a s51 power. 1. Different grants of legislative power in s51 are not mutually exclusive and are not to be read down by reference to some presumption that they are. 2. A single law can possess more than one character in the sense that it can properly be characterised as a law with respect to more than one suject matter. Re Dingjan; Ex Parte Wagner (1995) Is a law wrt Held 1. The character of the law must be determined. That is done by reference to the rights, powers, liabilities and duties and privileges which it creates. 2. A judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s51. In determining whether the connection exists, the practical, as well as legal operation of the law must be examined. - If there is a connection, it will be with respect to that head of power UNLESS it is so insubstantial, tenuous or distant a connection that it cannot sensibly be described as a law with respect to that head of power. Grain Pool of WA v Commonwealth (2000)

8 CL construction Held 1. The constitutional test is to be construed with all the generality the words used admit. 2. The character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. 3. The practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power. 4. In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other is not a subject matter appearing in s51, it will be valid notwithstanding that there is no independent connection between the two subject matters (Mason & Deane in Re F; ex p F) 5. If a sufficient connection with a head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice. in construing for example trademarks, trademarks usage at 1900 gives us the central type, but not the circumference of the power (Union Label). PURPOSIVE POWERS: Is the law reasonably capable of being viewed as appropriate and adapted to achieve the relevant purpose? Proportionality test also applies where there are limits imposed on constitutional power. Express limits eg s 92 of the Constitution. A law may still be valid if it is reasonably appropriate and adapted to achieving a legitimate purpose (e.g. protection of public health or the environment) and the limitation on trade and commerce is only incidental to achieving that purpose. Implied limits eg implied freedom of political communication. A law that burdens the implied freedom may still be valid if it is proportional (see the new version of the test in McCloy). Australian National Airways Pty Ltd v Commonwealth (1945) What is relevant in construction Held Rich J: this Court is not in the smallest degree concerned to consider whether such a project is politically, economically, or socially desirable or undesirable. It is concerned only with the question whether it is within the constitutional powers of the Commonwealth Parliament to pass an Act... of the type which has been called in question. INCIDENTAL POWERS s51 Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have the power to make laws for the peace, order and good government of the Commonwealth with respect to: xxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. Extensions to the scope of subject matters have depended on incidental powers. There is an EXPRESS and IMPLIED incidental power (PH Lane suggests the express is then redundant). 8