JURD7250 Federal Constitutional Law

Transcription

1 JURD7250 Federal Constitutional Law Table of Contents The Constitution... 1 High Court & Constitutional Interpretation... 3 Literalism and Legalism... 3 Legalism... 4 Literalism/Textualism... 5 Originalism... 5 Living Constitutionalism... 7 Compromise Positions... 8 Judicial Activism... 9 Freedom of Interstate Trade and Commerce (s 92) Individual Rights Theory Cole v Whitfield Developments Since Cole v Whitfield Precedent and Overruling Cth Legislative Powers The Division of Legislative Power Implied Immunities of Instrumentalities (agent or body representing) Reserved State Powers The Engineers Case The Jumbunna Principle Characterisation Characterisation Dual Characterisation Interaction Between Heads of Power Primary Rule No Reading Down Secondary Rule The Exception Subject Matter and Purpose Powers Subject Matter Power Sufficient Connection Role of Purpose Incidental Powers Purpose Powers Constitutional Limitations Trade and Commerce Power (s 51(i)) Scope Incidental Aspect Corporations Power (s 51(xx)) Which Corporations? Foreign Corporation Trading and Financial Corporations Scope of the Power Taxation Power (s 51(ii)) What is a Tax?... 61

2 Fees for Services Grants Power (s 96) Early Cases Uniform Tax Cases Limits on the Power External Affairs Power (s 51(xxix)) Relations with Other Countries Matters External to Australia International Law Other than Treaties Implementing Treaties First Approaches Entering into Treaties First Approaches Implementing Treaties Modern Jurisprudence The Expanding Power Power Confirmed International Recommendations Defence Power (s 51(vi)) Nature of the Power Scope of the Power in War Scope of the Power Post-War Scope of the Power in Times of Peace Cold War Communist Party Case Terrorism and National Security Races Power (s 51(xxvi)) Cth Power in Relation to Aboriginal People Special Laws Deemed Necessary for People of Any Race For the Benefit of a Race? Inconsistency Tests of Inconsistency Manufacturing Inconsistency Manufacturing Consistency Reading Down and Severance Reading Down Severance Federal Compact Melbourne Corporation Principle Restatement I: Two Principles Restatement II: One Principle Express Guarantees: Trial by Jury Express Guarantees: Freedom of Religion Freedom of Political Communication History and Murphy Catalyst Launch of the Implied Freedom Expansion and Division Implied Freedom Confirmed Expressive Conduct Politics of Protest

3 Lange s Two Questions Burdens on Political Communication Legitimate Ends and Proportionate Means Judicial and Non-Judicial Detention Introduction Origins Incompatibility Doctrine Preventative Detention Protective Detention Immigration Detention Control Orders

4 The Constitution Key features of the AUS Constitution: 1. SOP - Executive and legislature not as separate b/c executive drawn from leg. Based on the responsible government basis of Westminster. Implied in Chapters 1-3. Thin recognition within the Constitution. Overlaid on text, traditional approach. The US constitution has strict SOP, reflected in articles. AUS uses chapters to imply a SOP. SOP comes from structure of Constitution, not text itself. 2. Responsible government. Responsible government entails: a. Parliamentary democracy b. Executive accountability 3. Monarchy/GG powers (Chapter II) Monarchical element, ceremonial powers, reserve powers (not written or identified hard to recognise limits on dumping monarchy). Not much on actual powers of GG. Acts on advice and consent of executive (esp. PM). Section 61 reflects responsible government and also demonstrates limits on how it s applied (i.e. not formally recognised). 4. Federalism a. Holding together (e.g. Iraq, if it worked) Big part of post-conflict design approach b. Coming together AUS approach came together for trade within AUS. Second order concern was to prevent invasion together. c. Also consider symmetric/asymmetric (AUS is symmetric) Section 51 most important for federalism. We have Federal with defined powers, states with the residue of powers. Section 107 compliments this. 5. Rights few express rights included d. S 51(xxxi) just terms for just terms for acquisition of property. Dubious as in in section about legislative powers, not really a right e. S 117 freedom of interstate travel f. S 116 freedom of religion g. S 80 trial by jury (limited) Implied rights: h. Implied right to vote if franchised (ss 7, 24) i. Freedom of political communication Items that should be included in a modern AUS Constitution: 1. Head of government determination (PM) 2. Third generation rights (e.g. right to water, environmental rights s 100 for water rights) (ICCPR- 1 st gen; ICESCR 2 nd gen; group, indigenous and self-governance rights 3 rd gen) a. Equality before law/non-discrimination b. Speech c. Stronger religion d. Privacy e. Freedom from degrading treatment f. Housing g. Marriage equality 1

5 High Court & Constitutional Interpretation Literalism and Legalism Range of factors used in interpreting the Cons (referred to as modalities by Bobbitt): 1. Text language of the Constitution itself Narrow v broad 2. History a. Original meaning (old dictionaries, common law and equity cases for how lawyers understood it at the time)(narrow interpretation) b. Original intentions (convention debates)(broad interpretation) BUT what level of generality do you apply to the framers? E.g. intention to regulate finical transactions for Cth or only considering banking in the way understood in 1890s when Constitution was written? 3. Common law, Constitutional precedents a. Specific decisions by HCA e.g. Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 gives preference for broad reading of s 51 b. General interpretative pples or leanings 4. The structure of Constitution or intertextual comparisons (e.g. word used elsewhere within Constitution, see if we can get meaning from elsewhere) 5. Values or policy (policy also linked to consequences) 6. Practical consequences 7. International law (plausible theory/impact on Constitutional interpretation but NOT accepted within AUS Constitutional interpretation, plays a small role in constitutional law) The relevance of specific factors varies from case to case. Origins (statutes: parliament; Constitution: public participatory involvement) Entrenchment/mode of change Fundamental nature of the Constitution sets preconditions of all other laws and statutes created. Also superior/hierarchy Expressed norms and values of a people/population (MAYBE, for small c) Long lasting. Constitution needs to change to the times and last for all time If the argument is made that the Constitution is a special document, it is less likely to be a strict legalist argument, more likely to think living Constitution. As a result, a constitutional decision is different to a simple common law decision in that the Constitution must be interpreted requires an act of judgment. Further, statutes can override common law decisions, not so much for Constitution (s 128). Constitutional decisions start with a text i.e. statutory interpretation, while common law starts with precedent. Interpretive theory: 1. What s in/out legalism v realism/functionalism 2. How do we deal with change originalism (meaning as per 1900 dictionary v intentions of framers) v living constitutionalism. Connotation and denotation is the most common approach HCA adopts today. 3

6 Literalism: take words or statements at their face value/literal meaning. Focusses on text (factor 1) only. Legalism Literalism within a context of traditional legal pples and techniques, all sources for interpreting an instrument come from a self-contained body of law; closed system of legal reasoning (J. Shklar 1986). Ignores: factors 5-7 (policy, values, consequences), only uses factors 1-4 in some combination Benefits: consistency (comes from body of knowledge); allows us to maintain our view of judges as objective, consistent, predictable (in both appearance and substance) Legalism is seen to have dominated the HCA since the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129, where it stated that the Constitution must be read naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, at the statute law which preceded it. CJ Dixon Swearing in Speech (1952): Cts sole function is to interpret the Constitutional description of a power or role and determine if valid i.e. cts have a passive role of declaring what is and isn t the law. Supports the use of strict and complete legalism. Gleeson (2000): there is no alternative to legalism. It is the only approach to be adopted, all others are not considered to be law. Gummow (2011): In supporting the use of legalism to interpret the Constitution, Dixon was not rejecting the use of the structure of Constitution or intertextual comparisons. Instead, he was attempting to highlight the different approach in logic and reasoning taken by the courts/judiciary. The different role of the cts means that the executive and legislature are free to use a different approach. Explaining this different understanding became very necessary in light of the unpopular decision in Australian Communist Party v Commonwealth (1951) 83 CLR 1. Although legalism is defined as drawing on a pre-defied body of authoritative legal texts to determine the legal answer to any issue, there is still a choice involved. Each judge decides between two (or more) choices presented by the legal authoritative body and determines what the law ought to be. Judging will always involve a measure of personal choice and thus also responsibility. Mason (1986): values always part of a decision or interpretation. Promoted a more open policy alternative approach. If we don t talk about policy, doesn t mean not using it in interpreation. All judges influenced by personal preferences and policy, better to be open transparent predicable in future. Can also criticise and debate in policy terms. Other alternatives to legalism: Legal realism (recognition of personal views and beliefs in the making of a decision) 4

7 Literalism/Textualism Uses language + historical meaning of words (factors 1 and 2(a)) to interpret the Constitution. Type of legalism but one that gives preference for the text itself. Predominantly supported by Heydon and CJ Barwick. Benefits: anyone who picks up the Constitution should be able to read and understand it and relate to it based on the text only. The Constitution needs to be objective and publically accessible. This approach also connects to canonical status or origins of the Constitution as the text. Issues: often can t relate to the text or the text is broad (indeterminacy). The Constitution doesn t just give us answers, needs to be interpreted. Also, over time, the practice of law and society changes does it still fit with our practice of law? Retirement of Sir Garfield Barwick (1981): favoured literalism by advocating that the HCA must give words their full and fair meaning. JD Heydon (2007): interpretation of the law relies upon more than just literalist notions, draws from the historical context at the time of writing the legal instrument (based on Engineers Case (1920)). Originalism Uses text and language plus original intention (factors 1 +2(b)) to interpret the Constitution; interpretation should adhere to the original intent or understanding of the text. Places higher focus on the intentions that the text itself. Justice Scalia most associated with it, Justice Thomas (US) also. Within AUS, Prof. Greg Craven and Justice Callinan promote the approach. Tasmania v Commonwealth and Victoria (Drawbacks Case) (1904) 1 CLR 329 is example of gap b/w textualism and originalism. Benefits: represents what was actually intended by the document; textual originalism incorporates the approach used in other documents (e.g. wills, deeds etc). That s the document drafted, carrying over the law as it was intended by the democratic drafters, objective i.e. judges not making it up. Issues: merits in 1890 s may not be the same now in 2014 (democratic deficit problem i.e. dead hand); range of intentions held by drafters which do we chose? Intention is indeterminate, not historically recoverable and may never have existed in the first place (see Work Choices Case); Incomplete didn t consider current problems; Change how is change considered and incorporated? Originalists claim can just amend Constitution if needed via s 128. Incremental accommodation can also act to incorporate change into the meaning/interpretation of the Constitution. One method is to use or argue for ambulatory language (p. 196) i.e. interpretation of the language to include later developments is originalist in that the meaning in the 1900s was taken to include or incorporate later meanings. R v Brislan; Ex parte Williams (1935) 54 CLR 262 Taken to include radio with postal, telegraphic, telephonic and other like services. Jones v Commonwealth (No 2) (1965) 112 CLR 206 Same words expanded to include television. 5

8 Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 Patents (s 51(xviii)) read to extended to planet variety rights, novel IP form. Change can also be accommodated via connotation v denotation. The connotation of words in the Constitution is fixed as at the 1900s (e.g. marriage= lifelong union between two consenting adults) while its denotation may be subject to change as different kinds of instances or new instances arise (e.g. male and female, same sex now). Core characteristics are fixed as at 1900s but these characteristics may come to include new developments over time. Street v Queensland Bar Association (1989) 168 CLR 461 (Dawson J) Attributes which the words signify will not vary, but as time passes new and different things may be seen to possess these attributes sufficiently to justify application of the words to them. Attorney-General (NSW) v Brewery Employees Union of NSW (Union Label Case) (9108) 6 CLR 469 (dissenting, now the common approach) (Higgins J) So long as these developments relate to the same subject matter the power of the Parliament will continue to extend to them. The usage in the 1900s gives us the central type, it does not give us the circumference of the power. Davis v Commonwealth (1988) 166 CLR 79 Conceded that there may have been an increase in the denotation of the power since Union Label Case decided Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 Notion of adopting 1900s boundaries on powers is insufficient to accommodate dynamism in some areas (e.g. s 51(xviii copyrights, patents etc)) that were known in Two types of originalism: 1. Intentional originalism (establish the subjective intention of the framers) 2. Textual originalism (determine the meaning of the words at the time of writing the document and the general understandings of the time) S. Fish (2008): Intention is one thing BUT what binds us are the words of the law/legislation/constitution it is only the laws which they enact which bind us. G. Craven (1990): words are designed to convey intention need to consider original intent. Use of original intent in AUS is easier than the US for three reasons: 1. Founded by democracy not revolution constitutional intention of framers is more solid 2. Easier to determine intentions from 1890s than the 1700s 3. Literalism is less attractive within the HCA than in the US New South Wales v Cth (Work Choices Case) (2006) 229 CLR 1: to pursue the framers intention is to pursue a mirage. It is based on the assumption that it is possible and/or useful to establish a single collective intention about a dispute that was not even present at the time of framing. It is not possible 6

9 to extract from the debates a single attribute of how the framers intended the Constitution to function in light of social, legal and economic developments since the time of writing. Callinan (dissenting): intention of the framers should be used to interpret the Constitution only to the extent that they can be seen to be generally consensual. Heydon (2007): textual originalism agrees with theories that have been used since the 1900s about the construction of documents (wills, deeds etc). Based on the meaning of language used in a particular context look at same language choices in other legal contexts to establish what the meaning of the word was at the time of writing. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 (McHugh J): The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood without conscious advertence, by reason of their common language or culture. Living Constitutionalism Opposite of originalism. Also called the living tree or the purposive approach. Advocated by J Kirby, Mason. Also Barak. Say that Constitution is not an ordinary statute. This approach is a form of interpretation that reads language with a view for accommodating change (technology and values) Rejects factor 2 above and uses history only to determine the broad purposes of the Constitution. Allows for subtle impact of democracy and changes over time. Issues: whose values should be included? Judicial subjectivity and opinions. Too much power to judges (activism), gives judges power to make up the law. Weems v United States [217 US 349, 373 (1909)] [A] principle to be vital must be capable of wider application than the mischief which gave it birth. Gompers v United States [233 US 604 (1914)] Oliver Wendall Holmes But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by consulting their origin and the line of their growth. A. Barak (2005): Interpretation should be guided by the subjective and objective purpose of the constitution. Objective purpose may be found in its structure or in precedent. Combined together, these form the ultimate purpose. However, objective purpose is favoured as it reflects modern perspectives. A. Inglis Clark (1997): Social and politics change have to apply the Constitution to new situations must be read and construed not as the will and intentions at the time of writing but as declaring the will and intentions of the present inheritors and possessors of sovereign power. Sir A. Mason (1986): Constitution needs to be applied to situations unforseen by founders. It is expressed in broad terms, intended to apply in changing conditions. Should be construed liberally unless a narrower interpretation is indicated for its purpose. 7

10 Brownlee v the Queen (2001) 207 CLR 278 (Kirby J) [T]he text of the Constitution must be given meaning as its words are perceived by succeeding generations of Australians, reflected in the this Court,, it is imperative to keep the mind open to the possibility that a new context, presenting different needs and circumstances and fresh insights, may convince the Court, in later times and of later composition, that its predecessors had adopted an erroneous view of the Constitution. Re Wakim; Ex parte McNally (Cross-vesting Case) (1999) 198 CLR 511 (McHugh J) Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts. Compromise Positions A compromise position b/w originalism and living constitution is that of moderate originalism (p. 210) (difference b/w other types of originalist). Goldsworthy (1997): Moderate originalism differs in three ways: 1. Meaning of the Constitution depends on evidence of the founder intentions which was readily available in Enactment intentions, not application intentions, are what matter 3. Founders intentions cannot answer all situations. If founders do not address situation at hand, judges need to act creatively and consider legal doctrines and pples, public policy and notions of justice. Raises issues of whose intentions from 1900 drafters of Constitution, endorsing voters, Imperial Parliament who enacted it? Also raises issues of being governed by the dead hand of the past BUT Constitution can be changed (s 128). Alternative to the living tree as there is only so far it can take us, there must be a root and trunk and that is the original document and intention. Constitution can also be given a flexible interpretation via: Distinction b/w the connotation of a word and its denotation Difference b/w enactment and application intentions of the framers Today, HCA judges support an eclectic approach - legalists but will consider values etc, give different weights to factors 1-4 in each case. Most eclectic on use of modalities and ability to accommodate change. In interpreting the Constitution, implications can be drawn from the structure of the Constitution(e.g. SOP). Legalists do not outright reject them as factor 4 above (the structure of Constitution or 8

11 intertextual comparisons) considers structure. However, other smaller groups (i.e. textualists and literalists) reject implications and leanings. Judicial Activism Activism is a political label used to attack legitimacy of judicial decision making. It is not intellectually coherent. There are (generally) simply better or worse interpretations of the Constitution. The meaning of activism is generally: 1. Activism/robust v deference/restrained to other branches (Executive, Legislature) OR 2. Activism v objective/legitimate interpretation (see mythical monsters section by French (2008) p no single right answer just reflects interpretative choice) Usually wrong it s not the situation that cts/judges are making a choice where there was none available. There is usually a choice to be made between options. It is not the deliberate imposition of the judge s own preferences in defiance of the Constitution (K. Roosevelt 2006). Discussion of activism needs to consider: 1. Method of interpretation (i.e. how did the cts get to their final decision) 2. How active is the ct bench (i.e. how often are they really going beyond making a choice between various legal options) A legalist may say that a realist using policy is a more activist approach i.e. using sources or modalities that should not be considered or used in decision making. Gaegler (2009): the cts should be unevenly differential. The cts cannot use activism to promote a set of social or cultural values but can be used to protect the basic requirements of a democracy e.g. right to vote, minority representation etc i.e. activism can be used when the cts can see that there is clearly something defective in the political process. 9

12 Freedom of Interstate Trade and Commerce (s 92) History: Cole v Whitfield permitted the use of history/convention debates BUT only to: 1. Define a word at the time of writing 2. Determine the subject to which the language was directed (objective purpose of the relevant provisions) 3. Determine the nature and objectives of movement towards Federation (objective purpose of Constitution in general)(common defence and common trade were the two big motivations behind Constitution) Precedent/Stare Decisis: Weak (Wurridjal per French) or strong (Second Territory Senators Case) but not very strong (Engine-Drivers) Four factors to consider per John: 1. Consistency of application 2. Strength of majority 3. Workability 4. Reliability Freedom of Trade and Commerce: S 92 prohibits discriminatory burdens of a protectionist kind on interstate trade and commerce (Cole v Whitfield (1988)). 1. Is there trade or commerce? 2. Is there discrimination against out of state commerce (legally/formal (Bath) or informal distinctions b/w inter and intra state trade (Cole; Castlemaine; Betfair) 3. Does the law have a legitimate non-protectionist objective/purpose? Does it advance or is rationally related to a legitimate non-protectionist purpose. Protectionist is a specific economic idea to protect economy from forces of market-based competition. 4. Is the law appropriate and adapted or not disproportionate (Castlemaine) or proportionate (Betfair) to achieving this objective? a. Is it rationally related to its objective? b. Is it narrowly tailored to its objective or is there a regulatory alternative the is less restrictive of onter-state trade and commerce and plausibly as effective? i. Where do we find other alternatives? (Betfair: other states) ii. Hoe doe we assess their effectiveness? Freedom of Interstate trade and commerce is derived from s 92 of the Constitution: Trade within the Commonwealth to be free On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, 11

13 be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation. This section has at its core that trade and commerce among the states by internal carriage or ocean navigation (i.e. goods being transported, 30% AUS economy is goods based) absolutely free. Pulling out core meaning (as done here) is a structural analysis/modality. Individual Rights Theory Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 The Banking Act 1947 (Cth) s 46 sought to phase out private banks, left only with nationalised banks. Challenged under s 92. Held: seeking to nationalise the banks was incompatible with the freedom to conduct business interstate. Used precedent (James v Cowan (1930) 43 CLR 386 (HCA); James v Commonwealth [1936] AC 578 (Privy)) to argue for an individual rights approach [T]he freedom guaranteed by s 92 is a persona right attaching to the individual. Further, the rights idea was supported by the HCA grouping of s 92 with ss 116 (religious freedom) and 117 (freedom of residence) BUT these sections are not in the same chapter argument against this approach (intertextual structural readings). In deciding this case, the HCA decided that banking was/is trade and commerce for the purposes of s 92 adopted a broad view of trade and commerce will include services. This view was echoed by the Privy Council. Commonwealth v Bank of New South Wales (Bank Nationalisation Case) [1950] AC 235 The business of banking is a part of the trade, commerce and intercourse of modern society and, in so far as it is carried on by means of inter-state transactions, is within the ambit of s 92. Outlined two general pples: 1. Regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom (i.e. some regulation is acceptable) 2. S 92 is violated only when a legislative or executive act operates to restrict such trade, commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote The test to be applied: 1. Whether the effect of the Act is in a particular respect direct or remote 2. Whether in its true character it is regulatory i.e. regulation is okay. The Privy Council took absolutely free in s 92 to mean that some restrictions are okay, not totally free from all restrictions. The decision permits indirect or incidental restrictions on the individual right to engage in interstate trade and commerce. A pragmatic approach as to what constituted regulation was adopted by the HCA. Further, the validity of the legislation was determined by the direct legal effect, not the economic or practical effect. S 92 often litigated b/c trade based have significant funds behind it or b/c money is likely to be won. 12

14 Cole v Whitfield The above approach to s 92 was overruled and modified by Cole v Whitfield. Cole v Whitfield (1988) 165 CLR 360 Involved crayfish regulation. Tasmania and SA had different size limits being imposed on crayfish for sale. The challenge came from the regulations prohibiting the sale of small crayfish in Tasmania prevented sale of crayfish caught in SA. Held: regulation did not infringe on s 92. The current law had no discriminatory protectionist purpose as it appeared on the face of the law. Overruled the individual rights theory and endorsed free trade view of s 92 that says s 92 prohibits discriminatory burdens of a protectionist kind on interstate trade and commerce. Free trade was taken to be an absence of protectionism, i.e., the protection of domestic industries against foreign competition. (based on historical meaning and current meaning). Cole included informal discrimination, places extra requirements on out of state trade. Law held to be valid impossible to enforce TAS law if you distinguish b/w where Cray caught as they all look the same. In reaching this view, the HCA relied upon the text itself, history (e.g. how the phrase absolutely free was understood in 1891) and structure (e.g. grouped s 92 not with other rights-based sections (ss 116 & 117) but with ss 51(i), 90, 99 and 102 to show the desire of the founders was to prevent protectionist views and approaches). The HCA concluded that ss 51(i) and 92 can be better reconciled together under a free trade approach as opposed to an individual rights approach. While s 92 allows for free trade, it is hard to reconcile with the fact the Cth can regulate regarding trade under s 51(i) if free trade under s 92 is seen as an individual right. How can a person have a right but the Cth can also regulate to control the right?! There was a greater trust when creating the Constitution that the Cth would look at free trade issues from a national perspective and not regulate to protect the specific state industry/interests. Cole v Whitfield was also significant in that it permitted the use of history/convention debates for the first time. BUT convention debates can only be used to: 1. Define a word at the time of writing 2. Determine the subject to which the language was directed (objective purpose of the relevant provisions) 3. Determine the nature and objectives of movement towards Federation (objective purpose of Constitution in general)(common defence and common trade were the two big motivations behind Constitution) The convention debate records cannot be used to substitute the subjective meanings of the individual framers for the text or the interpretation of the Constitution. The ct can only use intentions that were shared in a publically verifiable way. In summary, Cole v Whitfield stands for: 1. The modern free trade interpretation 2. The use of historical debates/documents for three approved purposes (but not for one purpose) NOTE: Cole was decided in 1988, 2 years after the Australia Acts abolished appeals to the Privy Council. It is likely that if this case was heard any earlier that the Privy Council would have overruled the HCA and favoured the individual rights approach. 13

15 Cole essentially over-rules precedent, by using one overruling to justify the second overruling. The issue was getting over precedent! Developments Since Cole v Whitfield What is a discriminatory measure? It can be formal/ de jure/facial or informal/de facto/practical types of discrimination Formal: laws that explicitly distinguish b/w state of origin Informal: burden that is differential on interstate goods etc Cole enforces against both formal and informal discrimination. The modern test based on Cole is whether the law imposes discriminatory burdens of a protectionist kind against interstate trade: 1. Is law imposing a discriminatory burden on interstate trade or commerce? (formal or informal distinctions b/w inter and intra state trade) 2. Is it protectionist? a. Does it advance or is rationally related to a legitimate non-protectionist purpose. Protectionist is a specific economic idea to protect economy from forces of market-based competition. b. If so, are the means chosen necessary or appropriate and adapted (Castlemaine) (not disproportionate response) A law will be discriminatory of it imposes a competitive disadvantage on an interstate supplier of goods and services as compared with intrastate suppliers of similar goods and services OR of different goods and services which may appeal to a similar class of consumer. A law will be protectionist if it restricts or impairs competition. (textbook, p. 1222). Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 Business Franchise (Tobacco) Act (VIC) provided for retail tobacconist s licenses. Under s 10(1) the license fees included an ad valorem fee of 25% of the value of the tobacco sold in the period other than tobacco purchased in VIC from the holder of a wholesale tobacco merchant s licence or a group wholesale tobacco merchant s license. In effect, the Victorian law imposed licence fees on retail tobacconists calculated as percentage of value of tobacco sold, but exempted tobacco purchased from Vic wholesalers where licence fees had been already paid. The scheme was established to ensure fees were not paid more than once. The objective was to equalize the taxes. Prior to this, the interstate goods had an advantage of paying fewer taxes. This regulation wanted to equalize it. The equalization consideration was held not to be relevant. Held: held to infringe s 92. Discriminatory against interstate trade on the face of the law as it only applies to out of state wholesalers. Majority (Mason CJ, Brennan, Deane and Gaudron JJ) held it to be protectionist as the law offsets the disadvantage present against Vic wholesalers from the competitive disadvantage of out of state whole sales. Minority (Wilson, Dawson and Toohey JJ) accepted the equalization measure argument. 14