Federal Constitutional Law

Transcription

1 1 Federal Constitutional Law Interpretation (scope) Natural + ordinary meaning of words: Engineers Is it supported by a Cth head of power? Characterisation Legal operation: Bank Nationalisation case Tests of characterisation Purpose powers: proportionality (appropriate and adapted) Is a law/section of a law constitutional? Does it breach a prohibition/limitation on the exercise of the power? NB: incidental power attached to each head of power Must be necessarty to effectuate main purpose of a power (D'Emden v Pedder) Test: sufficient connection + appropriate and adapted (Burton v Honan) Express e.g. s 116 Implied e.g. Melbourne Corporation principle Subject powers: sufficient connection Reading down Can the law/section be saved from invalidity? Severance

2 2 Constitutional interpretation and characterisation Law/section of a law unconstitutional if: How do we determine if a law comes under a head of power? Not supported by a head of power Interpretation Breaches a prohibition/limitation on the exercise of the - What does the subject of the power permit? power - What is the scope of the power? Cannot be read down or severed Characterisation - What is the subject of the law? Principles (Grain Pool): 1. The constitutional text is to be construed with all the generality which 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 legal operation of the law must be examined to determine if there is a sufficient connection b/w the law and the head of power 4. In a case where the law answers the description of being w/ respect to two subject matters, one of which is not a subject matter appearing in s 51, it will be valid despite no independent connection b/w the two subject matters 5. If a sufficient connection w/ the 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 Interpretation Constitution is a statute; therefore subject to principles of statutory interpretation (see Engineers case) Words taken as having their plain and natural meaning; limitations of power not there in the text will not be read into the Constitution: Engineers Characterisation Question is whether the law fairly answers to the description of a law with respect to the subject matter of a power Look at the actual operation of the law in question in creating, changing, regulating or abolishing rights, duties, powers or privileges : Bank of NSW v Cth per Latham CJ Motive behind the legislation is irrelevant: Murphyores

3 3 - In this case, the Court held that s 51(xxxv) is in terms to general that it extends to all industrial disputes in fact extending beyond limits of any one State. Nothing in s 107 (saving the power of state parliaments) which could cut down the operation of s 51(xxxv) and thus not allow it to apply to State govts themselves. Note: historical sources can sometimes be used to shed light on the meaning of words if meaning is not otherwise clear (Cole v Whitfield) Connotation-denotation distinction is used: - Connotation = the central or core meaning at the time of framing; denotation = circumference; the meaning the words bear today - The meaning or core characteristics of an expression should be ascertained as if fixed at 1900, but once so ascertained, it may come to include new things over time (Eastman; Street v QLD Bar Association) Note also: heads of power are not read down against each other (with some exceptions) - Controversial in Work Choices case, as statutory interpretation requires that a statute is read as a whole Dual characterisation It will be enough if the law fairly answers the description of a law with respect to one given subject matter appearing in s 51, regardless of whether it may equally be described as a law with respect to other subject matters: Actors & Announcers Equity Association So long as a law can be described, as a law with respect to a specific subject matter that is w/in power (intra vires), it does not matter that it might also be described by some other characterisation (i.e. which is ultra vires) that might cast doubt on its validity (see Fairfax; Murphyores) Subject matters powers Test = sufficient connection (is a law sufficiently connected with the subject powers as interpreted so that it is a law on that subject? Dingjan: If a connection exists b/w the law and a s 51 head of power, the law will be w/ respect to that head of power, unless the connection is so insubstantial, tenuous or distant that it cannot sensibly be described as a law w/ respect to the head of power So long as the subject matter of a law is itself clearly located w/in the ambit of the constitutional grant of power, the way that Parliament deals w/ that subject matter, and its purpose in doing so, are judicially irrelevant (see Australian National Airways) Purpose powers What the Cth is authorised to do is to pursue that specified purpose, and its legislation will be valid if it can reasonably be considered conducive to that purpose Test of characterisation is one of proportionality (whether the law is appropriate and adapted or proportionate to the purpose)

4 4 Incidental power Each head of power in s 51 contains an implied incidental power (D Emden v Pedder; Grannall v Marrickville Margarine) - Grannall: every legislative power has the authority to legislate in relation to acts, matters and things the control of which is necessary to effectuate its main purpose; thus has power to make laws governing or affecting many matters that are incidental or ancillary to the subjectmatter - Burton v Honan: incidental power permits regulations, including the creation of offences and penalties to enforce Cth laws - O Sullivan v Noarlunga Meat: incidental power involves regulation of matters that are not directly on the subject of the power So, when you have provisions in an Act which look like they re not supported by a head of power, they could be exercises of the incidental power. Then need to ask whether their regulation is incidentally necessary to the exercise of the main head of power. Test for applicability of incidental power = sufficiency of connection AND appropriate and adapted (Burton v Honan; O Sullivan) - An enactment might therefore be invalid b/c the provisions drive it beyond the application of the incidental power (i.e. the connection w/ the legislative power becomes tenuous; the legislation goes too far/ is disproportionate): Davis v Cth; Burton v Honan

5 5 Reading down and severance Reading down So far as it is reasonably possible to do so legislation should be construed as being w/in power Reading down = narrowing meaning of a term/provision so that it can apply in a manner that is constitutionally valid (e.g. Wilson case) - In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs law was amended and person who could prepare a report was read down so as to not include federal judge Severance Where reading down not possible, a court may still sever the offending parts of an Act, leaving the remainder with a valid operation - But must be possible as a matter of language - i.e. if there is a need for substation rather than exclusion of words, no severance - Can t change legal effect - If 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, then yes, no severance - Also If intention is that the statute should stand or fall as a whole, severance is not possible Work Choices: - If the invalidated portions are relative few and specific, surgery involving particular invalidation and reading down will be available and appropriate - Where, however, the resulting invalidation is substantial and would strike down key provisions of a comprehensive and integrated legislative measure, the invocation of statutory or constitutional principles of severance will be inappropriate

6 If impossible to obey both laws: Ex Parte Daniell 6 Section 109 Inconsistency Direct inconsistency If one law confers right; other takes it away: Colin v Bradley Bros Conflicting Cth and State criminal laws If Cth law excludes from criminality actions that the State law renders criminal, then the State law will be invalid (Dickson v The Queen Evinced by express intention NB: if purpose of Cth law would be undermined by the application of State law; this may indicate an intention to cover the field: Goulden Subject matter (e.g. intl obligations): see Vikauskus v Niland If Cth law "covers the field" Detailed regulations (not conclusive): O'Sullivan v Noarlunga Meat State law inconsistent w/ federal law? On same subject? (characterisation process) Indirect inconsistency If provision for concurrent operation of State laws = Cth enactment does not intend to cover the field: GMAC case Operational inconsistency? Cth law allows a Minister to make a decision/order which may be inconsistent w/ a State law; unless the field covered, no inconsistency until such a decision is made Manufactured inconsistency? Conflicting Cth and State criminal laws If Cth law validly suported by head of power, then it is not a bare attempt to exlcude State power: Bayside If no evinced intention to cover the field, and the Cth law more stringent than the State law, then no conflict and they can operate concurrently (Momcilovic v The Queen) Manufactured consistency? Cth can only clear field prospectively, not retrospectively: Metwally