Fundamentals of Australian Constitutional Law The Constitution Main types of Constitutional Case... 14

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1 Table of Contents Fundamentals of Australian Constitutional Law The Constitution Main types of Constitutional Case Fundamentals of Constitutional Law Overview of Principles Precedent and Overruling Australian Agricultural Co v Federated Engine-Drivers & Firemen s Association ( Engine-Driver s Case ) (1913) 17 CLR John v Federal Commissioner of Taxation (1989) 166 CLR Wurridjal v Commonwealth (2009) 237 CLR Stevens v Head (1993) 176 CLR Queensland v Commonwealth (Second Territory Senators Case) (1977) 139 CLR Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR Reading Down and Severence Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR The High Court and Constitutional Interpretation (A) ) The Division of Legislative Power Conflicts: A) Pre-Engineers: Implied Immunity of instrumentalities doctrine D Emden v Pedder (1904) 1 CLR Deakin v Webb (1904) 1 CLR Municipal Council of Sydney v Commonwealth (Municipal Rates Case) (1904) 1 CLR Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railways Servants Case) (1906) 4 CLR Attorney-General of NSW v Collector of Customs for NSW (Steel Rails Case) (1908) 5 CLR R v Sutton (Wire Netting Case) (1908) 5 CLR B) Pre-Engineers: Reserved State Powers Docrtine R v Barger (1908) 6 CLR Attorney-General (NSW) v Brewery Employees Union of NSW (Union Label Case) (1908) 6 CLR P a g e

2 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR ) The Engineers Case Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR ) The Jumbunna Principle taking a broad interpretation Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR Pape v Commissioner of Taxation [2009] HCA The high court and constitutional interpretation (B) Originalism Literalism and Legalism Judicial Choice United States v Carolene Products Co 304 US 144 (1938) The Dead hand & the living tree: use of historical material Tasmania v Commonwealth and Victoria (Drawbacks Case) (1904) 1 CLR The Dead hand & the living tree: Intention of the framers NSW v Commonwealth (Work Choices Case) (2006) 229 CLR THe Dead hand & the living Tree: Textualsm Eastman v The Queen (2000) 203 CLR THe Dead hand & the living Tree: Incremental Accommodation Street v Queensland Bar Association (1989) 168 CLR THe Dead hand & the living Tree: Purposive Interpretation Brownlee v The Queen (2001) 207 CLR Re Wakim; Ex parte McNally (Cross-vesting Case) (1999) 198 CLR THe Dead hand & the living Tree Strategic Compromise? The High court and characterisation ) Characterisation United States v Butler 297 us 1 (1936) Bank of NSW v Commonwealth (Bank Nationalisation Case) ) Dual Characterisation R v Barger (1908) 6 CLR P a g e

3 Melbourne Corporation v Commonwealth (1947) 74 CLR Fairfax v Federal Commissioner of Taxation (1965) 114 CLR New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR ) Interactions between heads of power Pidoto v Victoria (1943) 68 CLR New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR ) Subject Matter and Purpose Powers (Intro) Stenhouse v Coleman (1944) 69 CLR A) Subject Matter Powers Sufficient Connection Re F; Ex Parte F (1986) 161 CLR Re Dingjan; Ex parte Wagner Grain Pool of Western Australia v Commonwealth (2000) 202 CLR B) Subject Matter Powers The role of Purpose Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR C) Subject Matter Powers D Emden v Pedder (1904) 1 CLR Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR Burton v Honan (1952) 86 CLR A) Proportionality Purpose Powers and Limitations b) Purpose powers proportionality c) Beyond purpose powers SUBJECT MATTER incidental powers Nationwide News Pty Ltd v Willis (1992) 177 CLR Leask v Commonwealth (1996) 187 CLR Theory: distinguishing between subject matter and purpose powers Constitutional Limitations Inconsistency of Laws (Section 109) The meaning of invalid and prevail P a g e

4 Constitution s The Tests of Inconsistency Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR Ex parte McLean (1930) 43 CLR Colvin v Bradley Brother (1943) 68 CLR Telstra Corporation Ltd v Worthing (1997) 197 CLR Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR Australian Mutual Provident Society v Goulden (1986) 160 CLR Operational Inconsistency APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR Applying Test 3 covering the field Relationships between the tests Manufacturing Consistency: Clearing the field R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR Viskauskas v Niland (1983) 153 CLR University of Wollongong v Metwally (1984) 158 CLR Momcilovic v The Queen (2011) 245 CLR Class Notes Manufacturing Inconsistency West v Commissioner of Taxation (NSW) (1937) 56 CLR Wenn v Attorney-General (Vic) (1948) 77 CLR Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR Airlines of New South Wales v NSW (No 2) (Second Airlines Case) (1965) 113 CLR Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR Week 6 EXTERNAL AFFAIRS Power Constitution s 51 (xxix) ) Relationships with Other CouNTries P a g e

5 R v Sharkey (1949) 79 CLR NSW v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR Thomas v Mowbray (2007) 233 CLR ) Matters External to Australia Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR Horta v Commonwealth (1994) 181 CLR XYZ v Commonwealth (2006) 227 CLR Pape v Commissioner of Taxation (2009) 238 CLR ) International Law Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR Thomas v Mowbray (2007) 233 CLR ) The implementation of treaties A) Initial Approach R v Burgess; Ex parte Henry (1936) 55 CLR B) The Expanding Power Koowarta v Bjelke-Peterson (1982) 153 CLR 168 NO CLEAR MAJORITY Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR C) The Power Confirmed Richardson v Forestry Commission (1988) 164 CLR Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR THE FUCKING TEST Conformity Doctrine International Recommendations Pape v Commissioner of Taxation (2009) 238 CLR Approaching a problem question (Alby s notes) The Trade and Commerce Power Constitution s 51(i) The Definition of Trade and Commerce W & A McArthur Ltd v Queensland (1920) 28 CLR Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR R v Burgess; Ex parte Henry (1936) 55 CLR P a g e

6 Airlines of NSW Pty Ltd v New South Wales (No 2) (Second Airlines Case) (1965) 113 CLR Incidental Aspect Wragg v NSW (1953) 88 CLR O Sullivan v Noarlunga Meat Ltd (1954) 92 CLR Airlines of NSW v NSW (No 2) (1965) 113 CLR Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR Pape The Geographical Requirement The Corporations Power Constitution s 51(xx) Corporations Power: the Early Approach Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR Corporations Power: the New Approach Strickland v Rocla Concrete Pipes (1971) 124 CLR ) What is a Constitutional Corporation? Commonwealth v Tasmania (Tasmanian Dam Case) (1993) 158 CLR ) What Activities or Affairs May be Regulated? Concrete Pipes Case Commonwealth v Tasmania (Tasmanian Dam Case) (1993) 158 CLR Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) Re Dingjan; Ex Parte Wagner (1995) 183 CLR NSW v Commonwealth (Work Choices Case) (2006) 229 CLR NSW v Commonwealth (Incorporation Case) (1990) 169 CLR The Trade and Commerce Power v corporations POWER The Races Power Constitution s 51 (xxvi) Interpreting s 51(xxvi) Special Laws Koowarta v Bjelke-Peterson (1982) 153 CLR Tasmanian Dam Case (1983) 158 CLR P a g e

7 Native title act case Test Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR For the Benefit of a Race? Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (1998) 195 CLR The Defence Power (NEW IN COURSE) Fundamental characteristics The Elasticity of the Defence Power & Judicial Notice Andrews v Howell (1941) 65 CLR Stenhouse v Coleman (1944) 69 CLR Defence power WartimE Farey v Burvett (1916) 21 CLR Dawson v Commonwealth (1946) 73 CLR Victorian Chamber of Manufacturers v Commonwealth (Women s Employment Case) (1943) 67 CLR R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Victoria (1944) 68 CLR Australian Woollen Mills Ltd v Commonwealth (1944) 69 CLR Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR Defence Power Post-War and increasing tension R v Foster (1949) 79 CLR Illawarra District Council v Wickham (1959) 101 CLR Defence power Peace time Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR Attorney-General (Vic) v Commonwealth (Clothing Factory Case) (1935) 52 CLR Defence Power Cold War Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR Marcus Clark & Co Ltd v Commonwealth (Capital Issues Case) (1952) 87 CLR Defence power - Terrorism and National Security Thomas v Mowbray (2007) 233 CLR CLASS NOTES: The Taxation Power P a g e

8 Is it a Tax? General Approach Positive Requirements Principlies By a Public Authority For a Public Purpose Exaction Must be Compulsory Exaction Must be Enforceable by Law Positive Requirements Cases Air Caledonie International v Commonwealth (1988) 165 CLR Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR Luton v Lessels (2002) 210 CLR Roy Morgan Research Pty Ltd v Federal Commission of Taxation (2011) 244 CLR Negative Requirements Constitution s Harper v Victoria (1966) 114 CLR Parton v Milk Board (Vic) (1949) 80 CLR Air Caledonie International v Commonwealth (1988) Airservices Australia v Canadian International Ltd (1999) 202 CLR Consequences Not a Tax? Justiciability and scope Class NOtes The Grants Power General approach Limitations on Grants power ) Discrimination (between states) Victoria v The Commonwealth (Federal Roads case) (1926) Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR WR Moran Pty Ltd (1939) v Deputy Federal Commissioner of Taxation (NSW) P a g e

9 2) States as a Mere Agent Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR Victoria v Commonwealth (Second Uniform Tax case) (1957) ) Coercion (bad) vs Inducement (allowed) South Australia v Commonwealth (First Uniform Tax case) (1942) Victoria v Commonwealth (Second Uniform Tax case) (1957) Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR ) Financial Need Victoria v Commonwealth (Second Uniform Tax case) (1957): ) Implied Immunities South Australia v Commonwealth (First Uniform Tax case) Indirect effects Victoria v Commonwealth (Second Uniform Tax case) (1957): Summary - Constitutional Limitations General Notes Theory on rights and the law Express Guarantee Trial by Jury The Constitution, section 80 Trial by jury Summary of Section 80 issues Summary of s 80 authorities ) When does s 80 apply? R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR Kingswell v The Queen (1985) 159 CLR Cheng v The Queen (2000) 203 CLR ) When s80 applies, what is the substance of the s80 guarantee Brown v The Queen (1986) 160 CLR 171 When s80 applies, it cannot be waived Cheatle v The Queen (1993) 177 CLR 541 When s 80 applies, jury decision must be unanimous Re Colina; Ex parte Torney (1999) 200 CLR Brownlee v The Queen (2001) 207 CLR 278 jury can separate after they retire to consider their verdict Cheung v The Queen (2001) 209 CLR 1 Determining facts for sentencing reasons can be left to the judge (instead of Jury) P a g e

10 Fittock v The Queen (2003) 217 CLR 508; Ng v The Queen (2003) 217 CLR 521 using reserve jurors 173 R v LK (2010) 241 CLR 177 Finality of s 80 jury s verdicts not entrenched OTHER notes Express Guarantee Freedom of Religion The Constitution, section 116 Commonwealth not to legislate in respect of religion Krygger v Williams (1912) 15 CLR 366 [Free-exercise Clause] Adelaide Company of Jehovah s Witnesses Inc v Commonwealth (Jehovah s Witnesses Case) (1943) 67 CLR What is a religious institution? Church of The New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR Commonwealth not to be involved in running the religion Attorney-General (NSW) v Grant (1976) 135 CLR 587 no involvement in running the religion Purpose of the legislation (Split majority) Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 [Free exercise clause] Non-ESTABLISHMENT CLAUSE Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR Freedom of interstate trade and commerce s The Constitution, section 92 trade within the Commonwealth to be free Early approach Individual rights theory (OVERRULLED) Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR Commonwealth v Bank of NSW (Bank Nationalisation Case) [1950] AC New Approach to s Cole v Whitfield (1988) 165 CLR 360. [Rejection of the individual rights theory] Developments since Cole v Whitfield Bath v Alston Holdings (1988) 165 CLR Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR Betfair Pty Ltd v Western Australia (2008) 234 CLR Betfair Pty Ltd v Racing New South Wales (2012) 286 ALR Sportsbet v New South Wales (2012) 286 ALR Prohibiting interstate lotteries and s P a g e

11 Summary: The State of the Law at Present IMPLIED FREEDOM OF POLITICAL COMMUNICATION Implications in the constitution The Murphy Catalyst Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR A Freedom of Political Communication Nationwide News Pty Ltd v Wills (1992) 177 CLR Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR Common law of Defamation: Constitutional Solution Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR Common law of Defamation: Common Law Solution (Post-Theophanous) McGinty v Western Australia (1996) 186 CLR Levy (1997) Lange v Australian Broadcasting Corporation (1997) 189 CLR Modern Jurisprudence: The Test in Lange Applied Lange v Australian Broadcasting Corporation (1997) 189 CLR Brown v Classification Review Board (1998) 154 ALR 67. Applying test from Lange Coleman v Power (2004) 220 CLR Wotton v Queensland (2012) Monis v The Queen (2013) (Page 1311) Unions NSW v New South Wales (not in reading list) Mulholland v Australian Electoral Commission (2004) 220 CLR 181 (not in reading list) APLA Ltd v Legal Services Commissioner of NSW (2005) 224 CLR 322 (not in reading list) McCloy (not in reading list) Class Notes Political communication Judicial Power and Detention The Separation of Powers Doctrine Issues Outcomes P a g e

12 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs Kruger v Commonwealth (Stolen Generations Case) Al-Kateb v Godwin (2004) 219 CLR Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR Plaintiff M v Director General of Securities (2012) Control Order Thomas v Mowbray (2007) 233 CLR Post-Thomas Cases Incompatibility Doctrine (Test for state Courts) Applying the Incompatibility Doctrine Kable v DPP (NSW) (1996) Baker v The Queen (2004) 223 CLR Fardon v AG (Queensland) (2004) 223 CLR Bikie Cases Class Notes The Federal Compact Melbourne Corporation principle Exam Summary Background The Melbourne Corporation Principle Melbourne Corporation v Commonwealth (1947) 74 CLR Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353 [Ignore this case not important] Restatement: Two Principles Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR Queensland Electricity Commission v Commonwealth (1985) 159 CLR Re Lee; Ex parte Harper (1986) 160 CLR Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR Re Australian Education Union; Ex parte Victoria (1995) 184 CLR Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR P a g e

13 Two-Limbs no longer independent Modern Approach Austin v Commonwealth (2003) 215 CLR Clarke v Commissioner of Taxation (2009) 258 ALR Fortescue Metals Group Ltd v Commonwealth (2013) 300 ALR NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1. (YOU CAN IGNORE THIS) Implied freedom from arbtrary detention Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR Week 13 Class Notes Revision Last Class revision Past Exam Defence / Political comm / Religion / exteral affairs Mid-semester exam (external Affairs) P a g e

14 FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW THE CONSTITUTION Federalism is a key concept to the Constitution: the separation between federal and state governments, each with their own power. The Constitution is concerned with the separation of power doctrine this is important to limit the power each head of government has Express human rights in the constitution: Right to trial by jury, Freedom of religion, Right to vote Implied rights: Implied freedom of political communication, Implied right to vote What this course is about It is concerned with s 51 of the Constitution: the areas in which Parliament has the power to legislate o The powers in s 51 are NOT exclusive o The powers in s 52 ARE the exclusive Limits of power Judicial power and detention Main types of Constitutional Case Type 1: challenge to validity of Cth legislation on the basis that it is outside head of power Type 2: challenge to validity of Cth legislation on the basis that, although characterisable as falling within a head of power, it violates an express or implied limitation on the Cth s legislative power. Type 3: challenge to exercise of Cth executive power on the basis that it is contrary to Constitution. Type 4: challenge to validity of State legislation on the basis that it is inconsistent with valid Cth legislation or falls within exclusive Cth power. o These types of case may be combined with each other. o Person seeking to invalidate Cth law may combine types 1 and 2. o Person seeking to invalidate State legislation may have to overcome defence based on type 1 or 2 before arguing type 4. o Challenge may come from individuals aggrieved by law or from other governments in federal structure. o Challenge may be to entire statute or just particular provisions. 14 P a g e

15 Validity of State legislation 1. State Constitutions confer plenary power on State Parliaments, and these powers continue under s 106 of the Constitution. Thus State legislation on any topic will prima facie be valid. UNLESS 2. One of the following circumstances exists a) The State legislation is on a topic which is reserved to the exclusive legislative power of the Cth, namely The seat/places of Cth (s 52(i)) or the Cth public service (s 52(ii) Imposition of customs and excise duties (s 90) Defence (ss 51(vi) and 114) Coinage (ss 51(xii) and 115) b) The Cth has legislated over a topic over which it has been given power and that legislation is inconsistent with the State legislation (s 109 renders State legislation inoperative to the extent of the inconsistency) c) The state legislation infringes one of the express or implied freedoms contained in the Constitution, namely Interstate trade and commerce (s 92) Discrimination on grounds of residence of a State (s 117) Implied freedom of political communication Ch III s protection of the separation of judicial power of the Cth insofar as it applies to States (Kable) Validity of Commonwealth legislation 1. Legislation must fall within a topic over which the Cth has been granted legislative authority (an enumerated power in s 51, Cth exclusive power s 52, appropriations s 81, duties of customs and excise s 90, grants s 96, the Territories s 122). 2. Assuming that the legislation does relate to a topic above, it may nevertheless be invalid if it infringes an express or implied prohibition or freedom on the Constitution Prohibition of geographic discrimination in tax laws (s 51(ii)) Requirement of just terms of compensation upon acquisition of property (s 51(xxxi)) Right to trial by jury for indictable offences against Cth (s 80) Prohibition of interference with interstate commerce and intercourse (s 92) Prohibition of geographic preference in trade, commerce and revenue laws (s 99) Freedom of religion (s 116) Prohibition on discrimination on grounds of residence of a State (s 117) Implied rights to political communication and not to be subject to arbitrary detention The Melbourne Corporation principle Ch III s prohibition of interference with separation of judicial power 15 P a g e

16 FUNDAMENTALS OF CONSTITUTIONAL LAW Overview of Principles 1. Where it is legitimate to do so, a Cth law, rather than being invalidated, should be read down to remain intra vires. A law may be legitimately read down pursuant to s 15A of the Acts Interpretation Act only where there is a single, straightforward manner of doing so, consistent with the underlying Parliamentary purpose 2. Reading down and/or severance solutions proscribed by the impugned statute itself will not of themselves determine the High Court s course of action: Dowal v Murray (Stephen J) Reading down and severance are types of remedy that may be used by the High Court to avoid declaring a provision invalid, or to declare only so much of a statute invalid as is found to be in conflict with the Constitution. These techniques were developed in the Bootmakers Case (No 2) (1910) HCA with the purpose of giving effect, as far as possible, to Parliament s intention. This is reinforced by section 15A of the Acts Interpretation Act 1901 (Cth): Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. Difficulties in reading down: Menzies J in Concrete Pipes Case (1971) That section does not enable a law with respect to one matter to be construed as a law with respect to another matter in order to bring it within legislative power. The section does not authorize the judicial conversion of one law into another law. It is not open to ascribe fresh purposes to it, find another possible relevance to the subject. To do so would mean giving the provision a new operation for the purpose of saving it 3. If the applicant before the HCA wishes the court to overrule itself, it must satisfy the two step test: (1) seek leave as per Evda (2) evaluation of factors (see below, Hospital Contribution Fund (Gibbs J) and Wurridjal (French CJ)) PRECEDENT AND OVERRULING Should the HC be bound by its own decisions as per the stare decisis principle? Stare decisis and the HCA: The High Court in Australia is the apex court and accordingly has a supervisory responsibility for the sound development of the law. Whilst the doctrine of stare decisis would ordinarily mandate that a court must follow its own decisions, most apex courts have concluded that they should not be so bound. o Isaacs J made it clear that the courts are not bound see Engine Drivers Case below For the doctrine to apply, the HCA would need to develop rigid practice of abiding by its past decisions. Compare to reading down and severance Stare decisis and the HOL: An exception to this was found in the United Kingdom; the House of Lords was bound to follow its own decisions, ironically, because of the House s decision in London Tramways Co v London County Council [1898] AC 375. This created an interesting paradox: the rule which bound the 16 P a g e

17 house could only be abolished by overruling Tramways, which the judgment itself made impossible to do. The rule was eventually changed in a Practice Statement [1966] 1 WLR This gives weight to the idea that rules of precedent are only rules of practice. Australian Agricultural Co v Federated Engine-Drivers & Firemen s Association ( Engine-Driver s Case ) (1913) 17 CLR 261 The HCA may overrule a prior decision where it regards it to be manifestly wrong Isaacs J o A court is not, as a general rule, bound to follow its own previous rulings. It is bound only to follow the rulings of superior courts. o A prior decision does not constitute the law, but is only a judicial declaration as to what the law is o If an ordinary judicial declaration created an irreversible ruling, it would be tantamount to a legislative act. o It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right. o In my opinion, where the prior decision is manifestly wrong, then, irrespective of consequences, it is the paramount and sworn duty of this Court to declare the law truly. The HCA s current approach to overruling a past decision involves a two-stage procedure: 1. The party seeking overruling must formally request leave to do so: Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311. a. NB: Deane J dissented on this point, holding that counsel does not require permission of the court to present arguments relevant to their case 2. In considering whether to overrule a past decision, High Court will look at: a. how embedded that decision has become in the law; b. whether there were differences of opinion among the majority; c. whether the decision had produced no useful result, only leading to inconvenience; and d. whether it had been extensively relied on: Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56-8 (Gibbs CJ). John v Federal Commissioner of Taxation (1989) 166 CLR 417 Overruling a ruling on a constitutional matter: Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ: Reinforced that said in Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 o The earlier decision did not rest upon a long line of well-established authority. o If there is difference between the reasons of the justices which constituted the majority in one of the earlier decisions. If the earlier decision had not achieved a useful result, instead resulting in inconvenience. o If the earlier decisions had not been acted on in a way which would militate against reconsideration. 17 P a g e

18 Wurridjal v Commonwealth (2009) 237 CLR 309. No error requirement in overruling prior HCA decisions: When deciding whether to overrule a decision, rather than identifying criteria such as manifestly or clearly wrong, the tribunal should weight factors for and against overruling. This should be informed by a conservative cautionary principle to ensure continuity of the law. The identification of error in a prior decision of the High Court is not a necessary precondition to overruling that decision. To say that one interpretation (or constructional choice) is preferable to another is not always to say that the alternative [in this case, previous] interpretation is wrong. Reasonable minds can differ on a point of constitutional interpretation. Chief Justice Dixon in Attorney-General v Schmidt (1961) CLR 361 at 370 once spoke how earlier decisions may be weakened by subsequent decisions, or in light of experience Cf. Mason J in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 13: If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute. Leslie Zines, The High Court and the Constitution (Butterworths, 4 ed 1997) Stare decisis in constitutional decisions: At the level of the High Court, the principle of stare decisis is regarded as having less force than in other areas of the law because the parliament cannot rectify the consequences of a decision of the High Court on the Constitution. While Parliament can pass amendments to clarify ordinary legislation in non-constitutional matters, the Parliament cannot correct erroneous constitutional interpretations (other than through s 128). Some jurists (eg Barwick CJ and Murphy J) have expressed the view that no judicially devised formula can be used as a substitute for the Constitution. Others raise the concern that departing from principles and doctrines established in judicial declarations would undermine the authority of the court. However, the view was expressed in Hughes and Vale Pty Ltd v New South Wales (No 1) (1953) 87 CLR 49 at 76 (McTiernan J), that the needs of succeeding generations may justify departure from an established principle. Fresh interpretations of grants of legislative power and of constitutional guarantees may be needed to new or changed conditions. Example of overruled decision: - Breavington v Godleman (1988) 169 CLR 41: Deane, Wilson and Gaudron JJ argued that s 118 of the Constitution required that when an action was brought in any other Australian jurisdiction, the outcome must be governed by the lex loci deliciti (the law of the place of the tort). - McKain v RM Miller & Co (SA) Pty Ltd (1991) 174 CLR 1: the majority did not accept this approach. - Stevens v Head (1993) 176 CLR 433: Deane and Gaudron JJ adhered to their position in Breavington v Godleman. - John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503: Gleeson CJ, McHugh, Gaudron, Gummow and Hayne JJ effectively overruled McKain v Miller and Stevens v Head. They commented (at 533) that reconsideration is not precluded by the fact that McKain and Stevens have not stood for very long 18 P a g e

19 Stevens v Head (1993) 176 CLR 433 Deane J A majority decision of the High Court should generally be treated by an individual member of the Court as being binding upon him/her, as on all other Australian courts. However, in matters of constitutional importance, the members of the High Court are obliged to adhere to what they see as the requirements of the Constitution. [Deane J adhered to the views which he expressed in Breavington v Godleman.] [NB In Coleman v Power (2004) 220 CLR 1 at 109, Callinan J quoted Deane J in Stevens v Head in support of the view that where an individual justice of the HCA is conscientiously of the view that a prior judicial pronouncement of the Court is incompatible with the Constitution, the absence of any challenge to that pronouncement, and the fact that it is recent and unanimous, may not relieve him/ her of the necessity of deciding whether he/ she is bound not to follow it.] Gaudron J If s 118 is to have constitutional significance in the context of covering cl 3, whereby the people of Australia were united in a Federal Commonwealth, it must be interpreted to mean that the laws of the state which govern an act as it happens also govern the legal consequences of that act. The view of the majority in McKain is fundamentally wrong. NOTE: Gaudron stuck to her guns about this, and in the case John Pfeiffer highlighted above, her view was adopted by the majority. Queensland v Commonwealth (Second Territory Senators Case) (1977) 139 CLR 585 Departure from precedent cannot be justified merely by a change in the bench Summary: This case concerned whether it was appropriate to review a constitutional case that was decided two years earlier, and which had not conflicted with, or been followed by, any other case. o The issue of territorial representation in the Senate had been decided in Western Australia v Commonwealth (First Territory Senators case) (1975) 134 CLR 201 (interpretation of ss 7, 122 of the Constitution). o The issue was re-litigated after Barwick CJ expressly invited such litigation in A-G (NSW); Ex rel McKellar v Commonwealth (1977) 139 CLR 527, 532, taking advantage of impending retirement of McTiernan J. o New judge, Aikin J (replacing McTiernan J), voted with Barwick CJ, but 2 of the original 3- judge minority, Gibbs & Stephen JJ, abided by precedent set in earlier case The Second Territory Senators Case is understood as entrenching the tradition that High Court will not overrule a decision merely because the composition of the Court has changed but this is almost inevitably the reason why past decisions are overruled. It seems to depend on how blatantly attributable to changed composition of Bench the overruling is. Barwick CJ The HCA should not be bound in point of precedent, but only in point of conviction by its prior decisions. In the case of the constitution, it is the duty of each Justice to give effect to what they believe the Constitution provides. The area of constitutional law is pre-eminently an area where the paramount consideration is the maintenance of the constitution itself The Constitution may, itself, be rigid but that does not require rigidity on the part of those interpreting it. If convinced of error, the duty to express what is the proper construction is paramount. 19 P a g e

20 The recency of the Court s former decisions is not a quality which precludes critical examination of those decisions, or indeed, departure from them. Gibbs J The statement of Isaacs J in the Engine-Driver s case 1 does not give a Justice carte blanche to disregard the decisions and reasoning of his predecessors. It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. However, it may be said that on the one hand, the court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been reaffirmed more than once. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed. The only reason for reconsidering the decision in Western Australia v Commonwealth, given only two years ago, is that in the interim period, the composition of the HC changed Changes in the number of appointed Justices can never of themselves furnish a reason for review of a previous decision : The Tramways Case (No 1) (1914) 18 CLR 54 (Barton J). Still less should the replacement of one Justice by another (ie changes in the composition of the bench) in itself justify the review of an earlier decision. Therefore I am bound to follow the earlier decision in Western Australia v Commonwealth, although in my view it was wrongly decided. NB: such precepts have not always been observed. In Re Patterson Patterson; Ex parte Taylor (2001) 207 CLR 391, McHugh, Kirby and Callinan JJ joined Gaudron J, who had dissented alone in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 in overruling Nolan. However, in February 2003, Gaudron J resigned from the bench and was replaced by Heydon J. Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, Heydon J joined Gleeson CJ, Gummow and Hayne JJ in overruling Patterson and reinstating Nolan (McHugh, Kirby, Callinan JJ in dissent). Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 Kirby J (minority) This court should not use chance happenings affecting its composition to change its recent statements of the governing law. The rule of obedience to a majority holding of the Court on a particular point of law has not been uniformly treated as applying in the same way to a constitutional ruling. If precedent is not afforded due weight, every time the composition of the bench changes, all constitutional matters may be submitted for redetermination until the dissenter s view is accepted. Gleeson CJ, Gummow and Hayne JJ The Court should be taken as having departed from a previous decision (particularly one involving the interpretation of the Constitution) only where that which purportedly has been overthrown has been replaced by some fresh doctrine. On that approach to the matter Patterson plainly fails to pass muster. The ruling of the 4 judges in Re Patterson had not been authoritative, as the 4 judges had given different emphases to the factual elements on which the application of their ruling depended. US position on prospective overruling : The explicit recognition in the US Supreme Court that overruling changes the law, in a way that is incompatible with the declaratory theory of law, has led to acceptance of the 1 Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law. 20 P a g e

21 practice of prospective overruling. This enabled the Court to specify the precise point of time at which the new law is to displace the old. Australian position on prospective overruling : This Court has no power to overrule cases prospectively, as such a course would be inconsistent with judicial power : Ngo Ngo Ha v New South Wales (1997) 189 CLR 465 (Brennan CJ, McHugh, Gummow and Kirby JJ; Dawson, Toohey and Gaudron JJ agreeing). READING DOWN AND SEVERENCE What happens if a legislative provision is found to be invalid? As stated in the First Uniform Tax Case, if a law is shown to be unconstitutional, it will be held by the court to be void ab initio and never to have had any effect. IT is more difficult to deal with laws only parts of which are invalid. Where possible, a court must sever invalid parts of a law from the valid, so as to leave the rest of the law in operation. Reading down and severance are types of remedies that may be used by the HCA to avoid declaring a provision invalid, or to declare only so much of a statute invalid as is found to be in conflict with the Constitution if reading a provision in a certain way would make it unconstitutional, you can t read it in that way. As much as they can, courts attempt to give effect to a statute: if the application of a particular provision would be invalid, they may preserve the validity of the provision in its other applications, reading it down so that it does not apply where it cannot; o E.g. where a statute authorises a Minister to confer certain functions on a person but the Constitution forbids those functions to be performed by a judge, the Court orders that person should be read as excluding a judge (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1). where this is not possible, a court may sever the offending portion of the Act, so long as the rest of the statute is capable of operating on its own if not, the entire statute must be declared invalid. These techniques were developed in the Bootmakers Case (No 2) (1910) 11 CLR 1 with the purpose of giving effect, as far as possible, to Parliament s intention Always consider reading down and severing in the alternative Acts Interpretation Act 1901 (Cth) Section 15A: Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. Note: Section 46 of the Acts Interpretation Act 1901 (Cth) states the same in the regard to subordinate legislation. Examples of where courts have read down provisions to save the legislation include: Wilson (above); and Russell v Russell (1976) 134 CLR 495: the permissible limits of the jurisdiction of the Family Court were read down. Severance is a standard legal technique for preserving those parts of a document that can stand independently of other parts that have been found to be unlawful: 21 P a g e

22 In constitutional law, this means that the High Court must specify precisely which parts of the statute it declares invalid, and which not. Severance may only be used where the rest of the statute is capable of operating on its own if not, the entire statute must be declared invalid. NB: The High Court has been reluctant to sever legislation where it was found that it would be too complicated to do so: Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) 124 CLR Parliament cannot direct courts to reconstruct out of the ruins of one invalid law of general application a number of valid laws of particular application : Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) 124 CLR 468, 506 (Menzies J). Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 Limitations on the application of Section 15A Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ: It is well settled that s 15A cannot be applied to effect a partial validation of a provision which extends beyond power unless the operation of the remaining parts of the law remains unchanged Nor can it (s 15A) be applied to a law expressed in general terms if it appears that the law was intended to operate fully and completely according to its terms, or not at all Workplace Relations Act 1996 (Cth) Section 7A: 1) unless the contrary intention appears, if a provision of this Act; a) would, apart from this section, have an invalid application; but b) also has at least one valid application It is the parliament s intention that the provision is not to have the invalid application, but is to have every valid application New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 Kirby J: If the Court concludes that the challenged law was intended to operate fully and completely according to its terms, or not at all, the court will not, under the guise of interpretation and severance, uphold what would effectively be a new and different law. If the invalidated portions are relatively few and specific, surgery involving particular invalidation and reading down will be available and appropriate, as it was in the Industrial Relations Act Case 2 A majority of the HCA held that the complex arrangement, which required the Court to draw out from the TPA s 35 (for example) one law aided by s 7(1)(a) (applying to all persons and corporations, but only in interstate trade), and a different law aided by s 7(2) (applying to both interstate and intrastate trade, but only s 51(xx) corporations ) went beyond any legitimate technique of severance or reading down under s 15A of the Acts Interpretation Act. 22 P a g e

23 THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION (A) The High Court gets its power to interpret the constitution from o Section 76(i) of the Constitution o Section 30(a) of the Judiciary Act. Interpreting the Constitution has important consequences and the court s reasoning must be seen to be legitimate invalidating legislation contradicts the wishes of Parliament and the elected representatives. The Court s method needs to be neutral, influenced only by legal considerations (not personal) 1) THE DIVISION OF LEGISLATIVE POWER The framers of the Australian Constitution opted for an American model: Enumerate the Commonwealth Parliament s powers, both concurrent (s 51) and exclusive (e.g. ss 52 & 90) Leave the unspecified legislative power ( residual power ) of State Parliaments, which have not been expressly removed by conferral of exclusive legislative power on Commonwealth Parliament, to continue - s 107 The arrangement is one of concurrent powers, whereby even if the Commonwealth is granted power by Section 51, the States will normally still maintain their power in that area by virtue of Section 107 Conflicts: S 109 of the Constitution provides that where there is conflict, the Cth legislation will prevail. However, in the event of a dispute between the Cth and State(s) over the ambit of powers, the issues are: 1) was Cth legislation within concurrent or exclusive power (and not contrary to any express or implied limitation)? characterisation issue 2) assuming State legislation is within power, is it inconsistent with Cth legislation? inconsistency issue 23 P a g e

24 2A) PRE-ENGINEERS: IMPLIED IMMUNITY OF INSTRUMENTALITIES DOCTRINE The implied immunity of instrumentalities doctrine: This doctrine meant that both the States and the Commonwealth were normally to be immune from each other s laws. Commonwealth legislation therefore did not bind State government officials and vice versa unless expressly provided for in Constitution or necessarily implied by Constitution. THIS HAS BEEN OVERTHROWN In 1920 the Engineers Case disposed of the doctrine, allowing State laws to be binding on the Commonwealth and vice versa. Prior to this decision, the doctrine was believed to be necessarily implied in the very idea of federalism reciprocal immunity being necessary for the smooth running of government. Each state considered itself to be sovereign. Commonwealth agencies and personnel immune from State laws: D Emden v Pedder (1904) 1 CLR 91 D Emden, the Commonwealth s Deputy Postmaster-General for TAS, gave a receipt for his Cth salary to a Cth officer without paying the stamp duty required by TAS law. The Court held that the State law could not apply because Cth officers and procedures were necessarily immune from State laws. Griffith CJ (for the Court) The Commonwealth and the States are sovereign and are only subject to the restrictions imposed by the Imperial connection and the provisions of the Constitution. The Constitution allows the Commonwealth to exercise its powers without any interference or restrictions, except those provided for in the Constitution. State attempts to fetter this power must therefore be considered to be inoperative Deakin v Webb (1904) 1 CLR 585 The High Court applied the immunities doctrine to hold that a Commonwealth Cabinet Minister was not liable to State income tax Griffith CJ (for the Court) In order to give effect to the federal laws (those governing how much a minister should be paid), the Commonwealth Ministers must be immune from state based taxation. State taxation of federal salaries is open to 2 objections: (i) it interferes with Commonwealth agencies; (ii) it interferes with the freedom of action of the Commonwealth in the transfer of its officers from State to State. Reaffirmed: In Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087, the court reaffirmed the implied immunities doctrine, holding that a Commonwealth customs officer did not have to pay State income tax. 3 3 Higgins J dissented on the ground that he was bound by Webb v Outtrim [1907] AC 81; Isaacs J dissented on the ground that although the basic principle in D Emden v Pedder was correct, the State income tax did not interfere with the Commonwealth s constitutional functions. 24 P a g e