Australian Constitutional Law Contents What is in the exam?... Error! Bookmark not defined. Interpretation of the Constitution... Error! Bookmark not defined. Characterisation of the law... 3 Subject matter powers - sufficient connection test... 3 As in the Bank Nationalisation Case... 3 As in Fairfax (1965)... 3 As in Herald (1966)... 3 As in Murphyores (1976)... 3 In Re Dingjan (1995)... 4 Purposive powers + - Reasonably appropriate and adapted test... 4 Subject Matter Powers... Error! Bookmark not defined. The Race Power... Error! Bookmark not defined. Koowarta... Error! Bookmark not defined. Tasmanian Dams... Error! Bookmark not defined. Western Australia v Commonwealth... Error! Bookmark not defined. Kartinyeri... Error! Bookmark not defined. Trade and Commerce Power... Error! Bookmark not defined. Definition of Trade and Commerce... Error! Bookmark not defined. Required to be interstate or overseas... Error! Bookmark not defined. Intrastate trade... Error! Bookmark not defined. Corporations Power... 4 Constitutional Corporations... 5 Power to incorporate... 5 Scope... 5 Implied Incidental Power... 5 Purposive Powers... Error! Bookmark not defined. Nationhood... Error! Bookmark not defined. External Affairs... Error! Bookmark not defined. Physically external... Error! Bookmark not defined. International Relations/relationships with other countries... Error! Bookmark not defined.
Matters of international concern... Error! Bookmark not defined. Treaties/external affairs... Error! Bookmark not defined. Grants Power... Error! Bookmark not defined. S52 regarding commonwealth land... Error! Bookmark not defined. The Territories Power... Error! Bookmark not defined. The States... Error! Bookmark not defined. Commonwealth laws affecting the state... Error! Bookmark not defined. State laws affecting the commonwealth... Error! Bookmark not defined. Inconsistency of laws... Error! Bookmark not defined. Implied Incidental Power... Error! Bookmark not defined. Chapter 3 Courts and the Separation of power... Error! Bookmark not defined. Does the Commonwealth Act create a Court?... Error! Bookmark not defined. a) Is it constituted in accordance with Chapter III?... Error! Bookmark not defined. b) Is it exercising the judicial power of the Commonwealth?.. Error! Bookmark not defined. Does the Cth. Act create a tribunal that is not a Chapter III court?. Error! Bookmark not defined. a) Is it exercising judicial power of the Commonwealth?... Error! Bookmark not defined. b) Are the members of the tribunal Chapter III judges?... Error! Bookmark not defined. c) Are the judges acting in their personal capacity or their judicial capacity?error! Bookmark no Does the State Act create a court?... Error! Bookmark not defined. Rights and Freedoms... Error! Bookmark not defined. Freedom of religion... Error! Bookmark not defined. Acquisition of property on just terms... Error! Bookmark not defined. Implied Freedom of political Communication... Error! Bookmark not defined. Implied Right to Due Process, Fair Trial & Equality... Error! Bookmark not defined.
Characterisation of the law A law must be characterised in order to be valid. Subject matter powers are characterised via the sufficient connection test, purposive powers are characterised via the reasonably appropriate and adapted test Subject matter powers - sufficient connection test The sufficient connection test is used to characterise a law under a subject matter power. As long as the law can be characterised as being a law with respect to a subject matter which is within power it does not matter that it might also be characterised as bearing upon some other subject matter not within To characterise a law the focus should be on the direct legal operation of the law In characterising a law the court is not concerned with the policy it embodies but only whether it can fairly be described as a law with respect to a specified subject matter is there a sufficient connection between the law and the head of power. Do not examine the motives which inspire it or the consequences which flow from it. As in the Bank Nationalisation Case The subject matter of the head of power is construed broadly The commonwealth may make any law within this subject matter Dixon J in the Bank Nationalisation Case [limit of banking power] As in Fairfax (1965) 1. What is the law with respect to? 2. What does it do? 3. What does it command or prescribe Once it appears that a law has an actual and immediate operation within a field assigned to the CW as a subject of power that is enough That it discloses another purpose that lies outside power is not sufficient to invalidate it Kitto J in Fairfax v Commr of Taxation [involving taxation and superannuation] As in Herald (1966) Since s51 of the constitution allows for laws with respect to, a substantial connection is sufficient. Kitto J in Herald v Weekly Times [involving whether the law was with regards to television licences or those who hold them] As in Murphyores (1976) Policy is irrelevant That the law is dealing centrally with a topic, that it deals with other topics is fine.
it is enough that the law deals with the permitted topic and it does not cease to deal with that topic account It is now far too late to say that a law should be characterised by reference to the motives which inspire it or the consequences which flow from it. It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate Mason J in Murphyores [involving the export of sand] In Re Dingjan (1995) This case was regarding subcontractors under the corporation s power. A requirement for actual connection was held by 4/3 of the court. Gaudron J, in minority, says all you need is an express intention to get a sufficient connection. Gaudron s broad view has been propagated (e.g. in Workchoices) Purposive powers + - Reasonably appropriate and adapted test This test is used to characterize purposive powers (e.g. defense, nationhood); we ask is the Act appropriate and adapted to the purpose of the power. This test is also used in the implied incidental power. does it go beyond what is reasonably appropriate and adapted to its purpose McHugh J in Nationwide News Brennan in Cunliffe Where it s (1) a purposive power or (2) where the law impinges on an express or implied freedom or prohibition you can examine the law to see whether it is appropriate and adapted Majority - the proportionality test is not relevant to non-purposive power BUT Brennan, Kirby and McHugh all said proportionality may have a role to play in determining sufficient connection Corporations Power S 51. The Parliament shall, subject to this Constitution have power to make laws for the peace, order, and good government of the Commonwealth with respect to: Sub S (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth
Constitutional Corporations Foreign Corporations: Outside of Australia (ownership) (R v Judges of the Federal Court of Australia Ex Parte Western Australian National Football League) (NSW v the Commonwealth (the Incorporation Case)) Trading Corporations Trading defined in the modern sense (Actors and Announcers Equity Association v Fontana Films Pty Ltd) Financial Corporations Again, in the modern sense (Re Ku Ring Gai Cooperative Building Society (No 2)) (State Superannuation Board v Trade Practices Commission) Whether a corporation is within one of these categories may be inferred by its actual activities or stated intensions (R v Trade Practices Tribunal; Ex Parte St George St Council). These activities need not be a predominant part of the business (R v Judges of the Federal Court of Australia Ex Parte Western Australian National Football League) (State Superannuation Board v Trade Practices Commission) If the company does nothing (e.g. a shelf company ), its intended activities define it (Fencott v Muller). Power to incorporate The government has no express right to incorporate under this power (NSW v The Commonwealth (The Incorporation Case) but it may do so incidental to other powers (Strickland v Rocla Concrete Pipes Ltd). Scope Traditionally, narrow (Huddart, Parker & Co Pty Ltd v Moorehead); then broader, regulating the Trading and Financial activities of Trading and Financial organisations (Strickland v Rocla Concrete Pipes Ltd; R v The Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd). Then allowing regulation of persons who harm the interests of constitutional corporations (Actors and Announcers Equity Association v Fontana Films Pty Ltd). Then, allowing the regulation of any external activity of a consititutional corporation (Strickland v Rocla Concrete Pipes) (Commonwealth v Tasmania (the Tasmanian Dam case)). Now, very broad, allowing for the regulation, even, of internal issues (Workchoices). Kirby J, in minority, spoke of the necessity to maintain federal balance with this power, in light of the interstate industrial dispute power. Implied Incidental Power So long as there is a reasonable connection between a law s direct legal operation and some matter directly within section 51(xx) of the Constitution, the law will be
one with respect to the subject matter of section 51(xx) of the Constitution Fencott v Muller