Topic 1: Perspectives on the Constitution In 1999 a constitutional referendum vote was held for the purpose of establishing a republic in Australia Australia was uninhabited, Terra Nullius The Australian Courts Act 1828 (UK) established that the laws of England were applicable to conditions in Australia The Australian Constitution Act 1842 was the first time that some steps were taken to representative government in Australia Soon Australian colonies were able to draw up their own constitution bills The final constitution bill was approved by the Federal Convention 1898 Commonwealth of Australia Constitution Act 1900 Received the royal assent on July 1900 and the Commonwealth of Australia was proclaimed to come into existence on 1st of January 1901

Colonial context of the introduction of English Laws Australia’s constitutional system has evolved from the initial introduction of English laws to the ‘settled colony’ Based on terra nullius Which has now been repudiated by the HC in Mabo v Queensland (2) The Australian Constitutions Act 1850 gave to the Australian colonies the power to draw up their own constitutional documents These Constitutional Acts established in the colonies

Beginnings of federal government As the states each had their own constitutional documents, there was a need felt to establish some sort of general assembly or a central legislative authority to deliberate and legislate on matters of common interest A convention of the Australian colonies was held in Sydney in 1883 Recommended that the UK establish a federal authority in Australia- Federal Council of Australasia Act 1885 This act made provisions for an executive body and a legislature This was the first major step amongst the colonies

The Sydney Convention 1891 In 1890 NSW joined the federal movement The convention also approved the framing of a federal Constitution Spelt out the nature of the three organs of the federal government Bicameral Parliament comprising the House of Representatives and the Senate The federal executive was to be headed by the GG who would have appointed advisors The judicial power was to be reposed in a High Court of Appeal

Referenda and enactment of the Constitutional Bill

If the Constitution Bill was approved in referenda in three or more colonies it would be submitted to the UK parliament for enactment Received royal assent on July 9 1900 The Commonwealth of Australia was finally proclaimed to come into existence on 1 January 1901

Commonwealth Constitution, Statute of Westminster, and Australia Act Colonial Laws Validity Act 1865 (UK)- Australia was not independent at 1900 but a self-government colony’ within the British empire The Statute of Westminster Act 1931 (UK) repealed the doctrine of repugnancy enacted by CLVA, gave the power to alter or repeal British statutes that applied in Australia The fully terminated UK parliaments power to legislate for Australia The sequence of independence was achieved through an evolutionary process S 128- the constitution is capable of amendment by the procedure which involves the Australian people, without reference to the United Kingdom- can hold referendums S 61- the Commonwealth Constitution vested executive power in the monarch and was made exercisable by the GG The provisions of Statute of Westminster 1931, declaration of Commonwealth Parliament’s capacity to enact all kinds of all laws were sufficient to confer independence as well as the Australia Act 1986 The long process whereby Australia achieved, first autonomy and then independence will not be complete until Australia becomes a republic

Section 128- holding of referendums The Commonwealth Constitution can be amended only by a law passed by the Commonwealth Parliament and approved by the majority of leaders in Australia Must be passed by an absolute majority of both houses of the Commonwealth Parliament Passed by a majority of voters nationally and voters in a majority of the states The time period of submitting a proposed law for alteration of the constitution after it’s passage in parliament is not less than two months and not more than six months If there is a disagreement between the two houses the G-G can still submit the proposed law to the voters Must be approved by the majority of the electors in that state

The Referendum (Machinery Provisions) Act 1984 (Cth) A referendum for changing the Constitution is held in accordance with the procedures set out in this act Since federation s 128 has not been very effective in bringing about desired change Of 44 proposed laws, only eight were successful A certain orthodoxy is that Australia is a frozen continent Must be passed by absolute majorities in both houses of parliament and passed by people at a referendum in which there must be a majority of voters nationally and a majority of voters in a majority of states voting in favour for it Haven’t been very successful in Australia

Republic Since 1993 two successive governments have tried to establish a republic in Australia Australia is a monarchy not a republic The Queen is the Head of State in Australia The Constitution should be amended so as to clearly define and delimit the powers of the head of state so that the Australian people know precisely the powers and duties of the head of state that they are being called upon to elect Two issues whether we should become a republic and what model of republicanism should be put to the voters to consider against the current system of government Bipartisan Model The referendum was held on 6th November 1999, voters were asked to vote yes or no on two proposals By large majorities Australians voted no to both proposals Although Australia is an independent country, its legal identity is that of a constitutional monarchy

Topic 2: Constitutional Concepts Parliamentary Sovereignty Means the supremacy of the parliament to enact legislation to the exclusion of the other organs of government Dicey was the most vigorous advocate of parliamentary sovereignty was AV Dicey Dicey- views that it should be seen as more to be a constitutional supremacy Modern parliamentary models do not conform to his model His conception of Parliament was that British Constitution parliament had the right to make or unmake any laws Positive and negative

Extraterritoriality A feature of a law that enables it to have an operation outside the territory of the enacting legislature S 51 (i) trade and commerce S 51 (xx) fisheries in Australian waters S 51 (xxix) on external affairs Historically linked with the statute of Westminster 1931- section 3 enacted the competence of the Commonwealth to make extraterritorial laws v Commonwealth (Seas and Submerged Lands Case) Several issues relating to the rights of the Cth over the territorial sea and the continental shelf came before the HC Seas and Submerged Lands Act 1973 The majority found the Act valid therefore the Cth had sovereignty over the territorial sea from the low water mark to three nautical miles seawards and also had sovereign rights over the continental shelf Cannot act inconsistently to the Act such as directing, regulating conduct or activities in that area

Separation of Powers Requires that governmental powers be distributed among the legislature, the executive and the judiciary The judicial power of the Cth is vested by and exercised under Chap III Lim – the parliament could not interfere with the judicial process by attempting to direct that judicial power A strict separation of judicial and non-judicial powers were upheld by the HHB in R v Kirby: Ex Parte Boilmakers Society of Australia (boilmakers case) The Cth Act authorised the commonwealth to exercise the powers to make industrial awards and enforce those awards. Found the vesting of judicial and non-judicial functions in the CCCA was impermissible under the Commonwealth. The majority of the HC decided that the CCCA could not validly excercise the judicial power of the Commonwealth Attempts to overcome the rigidity of the boilmakers case, has seen the laying down of exceptions to its application

Wheat Case: The interstate Commission could not be invested with ‘judicial power’

Topic 3: The High Court and Judicial Review Judicial Review is a review or scrutiny of a governmental action in a judicial forum. The Australian constitutional system has recognised that the HC is vested with judicial review since the earliest days of federation Judicial review of legislation is the practice by which the court reviews the legality or constitutionality of a statute passed by the legislature HC undertakes examination of the validity Nowhere in the constitution does it specifically mention that the HC has the power to engage in judicial review (not specifically vested) It was argued that it was introduced by history and sustained in acquiescence It was the intent of the framers of the constitution-judicial review is a fundamental intention of the framers Judicial power is the power to adjudicate on controversies relating to the constitution and the law If inconsistent with constitution it will declare it (the Act) invalid S 75 and 76 of the constitution require the HC to give judgements only with respect to subject matters set out in these sections

Interpretation and enforcement of Constitution HC justices are appointed by the GG and retirement age is 70 years A justice in the HC can only be dismissed by the GG Excused for misbehaviour or incapacity S 71: the number of justices prescribing the HC must be at least three, number of seven S 71 states that judicial power is vested within the HC So can the commonwealth parliament and other courts which have been vested with federal jurisdiction such as the Family Court and the Federal Court The Commonwealth Parliament can also invest state and territory courts with federal juristiction This power within lower courts can be removed by the HC by s 40 of the Judiciary Act 1903 HC cannot give advisory opinions

S 75: Subject matters Treaty Commonwealth suing or someone suing the commonwealth Between states Between state and resident of another state Injunction is sought against an officer

S 76: Interpretation of consti Any laws made by the parliament Admiralty and maritime jurisdiction

High Court is the final Court of appeal Privy Council Limitation of Appeals Act 1968 and Privy Council Act 1975 abolished appeals to the privy council

Marbury v Madison Logic Duty of the court to say what the law is Necessary to expound and interpret the law Court must decide on the extent and operation of each Upheld in Communist Party v Commonwealth In that case it was held the Communist Party Dissolution Act was unconstitutional

Advisory Opinions Case In 1910 the Judiciary Act 1903 was amended to enable the GG to ask the HC for advisory opinions on constitutional questions In this case the HC decided it was not within their scope to give advisory opinions As the matter concerning the case was not within s75 or s76 Wasn’t a matter arising under the constitution or its interpretation This was upheld in Commonwealth v Queensland Another case involving IVF treatment were they were required to be married or in a de-facto relationship Argued the law was inconsistent with the RDA Majority of the HC said it was not a matter for the HC to decide

Topic 4 : Commonwealth Executive The queens powers are exercised by her representatives the GG of the Commonwealth and the governors of the states. The Executive Power of the Commonwealth is entrenched in s 61. Section 62 of the Commonwealth Constitution provides for the establishment of the executive council. the GG powers are to be exercised upon advice of his or her ministers but may act without or contrary to ministerial advice Sometimes the GG’s powers are referred to as reserve powers Section 64 of the constitution relating to the appointment of ministers including dismissal of PM Controversy over the ability to dismiss a prime minister Section 61: executive power is vested with the queen and is exercisable by the GG The consti entrenches the requirement of advice to the GG by the executive council , other powers seem to vest powers in the GG alone These are commonly referred to as ‘reserve powers’ – the power to appoint ministers (s 64) and power to effect a double dissolution of parliament (s 57) S 32, s 64, s 72, s 67 Power to appoint a pm, dismiss a pm , dissolve parliament Dismissal of PM Whitlam by GG Kerr in 1975, Kerr has been argued to act while there will still other convievable options The power to dismiss a PM only arises where the PM has been defeated in the House of Reps on a vote of no confidence, or where the government persists in unconstitutional conduct

Scope of s 61 Victoria v Commonwealth and Hayden Debate on the meaning of s 61 of the Constitution and the scope of the executive Barton v Commonwealth: upheld a wider scope of s 61 giving it broad powers AAP Case: the issue was the legality of an executive policy to set up the Australia Assistance Plan. Whether s 61 authorised the exec to implement such a scheme. Majority held it was.

Pape v Commissioner of Taxation the validity of the Tax Bonus for Working Australians was challenged. The tax bonus for one-off bonus payment to taxpayers as part of ‘fiscal stimulus packages’ in response to the GFC (argued it wasn’t within the purposes for the government). Arguments for were also based on trade and commerce power, taxation power and external affairs power Minority argued it was beyond the power of the executive Held it was within the scope of s 61 however doesn’t relate to all economy matters

Topic 5: Structure and procedures of Parliament S1 of the constitution, vests legislative power in the Federal Parliament, which comprises of the queen, a senate and a House of Representatives. Queen’s powers are exercised by the GG S 7 of the Constitution, the senate is composed of an equal number of senators from each state for a period of six years

Attorney-General (Cth); Ex Parte McKinlay v Commonwealth The expression ‘directly chosen by the people of the Commonwealth’ Implied that the principle of ‘one vote, one value’ be followed

Western Australia v Commonwealth (First Territorial Senators Case) In regards to the inclusion of senators from the territories in the Senate of the Commonwealth Parliament In 1973 Parliament passed the Senate (Representation of Territories) Act 1973 (Cth)- this act provided for the representation of territories in the senate This act was challenged before the HC by Western Australia and NSW The constitution held by s 7 that there should be an equal number of senators from each state, and that senators are to have a term of six years It also provided in s 24 that the size of the house of reps be twice the size of the senate Senate (Representation of Territories) Act 1973 s 4 also provided for the inclusion of two senators each from the ACT and NT The majority found the Commonwealth Act valid One of the problems that the majority of the HC in this case had to overcome was the absence of any reference to the territories in the Constitution The permanent deprivation of representation by membership in the Senate or the House of Reps is a serious exclusion from the democratic process The houses are the principal organs of our democracy- their decisions are vital to every Australian Their importance to the people of the territories is not less than the importance of the people in the states There should be representation from the territories in both the Senate and House of Reps

Constitutional Right to Vote? A qualified right to vote under the Constitution s 7 and s 24 was held by the HC in Roach v Electoral Commission In this case two statutes sought to deny prisoners the right to vote- were challenged as infringing the requirement in s 7 and 24 that ‘members of the parliament were directly chosen by the people’ The first statute held that prisoners serving longer than three years were disqualified from voting

In the second prisoners serving jail sentences for any period of time were not entitled to vote Although all members of the HC found the former law to be valid, the majority of the HC ruled that the later statute was invalid Concluded a right to vote can be derived from the principles of representative government

Section 41 of the Constitution and a substantive right to vote R v Pearson; Ex Parte Sipka In this case four persons were entitled to vote under the Commonwealth Electoral Act 1918 (Cth) Their claims for enrolment on the roll for Commonwealth electors were deferred until after the general election scheduled for 5th March 1983 There was an issue where there was only 24 hours after the announcement of the election for voters to enrol themselves Murphy J identified s 41 as having a continuous operation and guaranteeing every person the right to vote in elections for the Commonwealth Parliament It was however ruled in this case that the right to vote was not expressly guaranteed by the Constitution

Roach v Electoral Commissioner it was held there is an implied right to vote derived from the provisions of ss 7 and 24 Vicki Roach was convicted of offences under the Victorian Law and was sentenced to an effective term of 6 years imprisonment Thereby denying her the right to vote in federal elections Challenged this as being unconstitutional Held this was invalid and disenfranchisement of prisoners had to be for a substantiative reason Such notions are not extinguished by the mere fact of imprisonment Prisoners who are citizens and members of the Australian Community

One Vote-One Value Is directed to ensure each vote in an election should have approximately the same weight in determining the outcome of that election The majority of the HC in Ex rel McKinlay v Commonwealth rejected the argument that s 24 of the commonwealth required adherence to the principle of one vote one value It was also ruled in McGinty v Western Australia that no implication of voting equality in state elections could be derived from the system of representative government established by the Commonwealth Constitution HC ruled that s 24 does not incorporate a strict requirement to give effect to the principle one vote, one value

Disqualifying Conduct for a person being chosen, sitting in either house of the Parliament S 44 Allegiance to a foreign power or a citizen of another foreign power

Treason or conviction Undischarged bankruptcy or insolvency Holding an office of profit under the crown Having a direct or indirect pecuniary interest in a Crown contract

Section 44 (i)- being a citizen of a foreign power Sykes v Cleary- two of the respondents contested the elections for the Commonwealth Parliament- both respondents were citizens of Australia, but hadn’t announced their Swiss and Greek citizenships respectively The majority of the HC held that since neither of the respondents had taken steps to divest themselves of foreign citizenship, they were disqualified under s 44 (i) from being chosen or sitting as members of the house of reps The provision was designed to ensure that members of parliament did not have a split allegiance and were not as far as possible subject to any improper influence from foreign governments Sue v Hill: Had dual nationality in Britain and Australia. After her election she declared her renunciation of British Citizenship. Her election was challenged on the basis that at the time of nomination she was disqualified under s 44. Held Britain was a foreign power.

Section 44 (iv)-holding an office of profit under the Crown Sykes v Cleary – was employed as a secondary school teacher employed by the VIC Education Department but was on leave without pay At the time of his nomination he was a holder of an office of profit under the Crown Primarily aimed a permanent public servant who is a teacher falls within the categories of public servants whose public service duties are incompatible with the duties of a member of house of reps/senate Free v Kelly- Jackie Kelly was an officer of the Royal Australian Air Force at the time of her nomination for the general election of members of house of reps Under s 44 (iv) was incapable of being chosen as a member of the house of reps while serving as an officer of the RAAF at the time of her nomination as a candidate HC held she was disqualified under this provision

Section 44 (v): having pecuniary interest in any agreement with the public service In Re Webster Senator Webster was the managing director, secretary and manager of a company which sold goods to Commonwealth departments Chief Justice Barwick held that the Senator Webster was not disqualified because the company had only a series of agreements with the Public Service but not any continuing agreement Existence of separate short term Crown Contracts with a company of which a senator was a managing director did not disqualify him under the provisions

When there is a deadlock between the two houses The alternative procedure is provided by s 57 The house of reps passes a bill and sends it to the senate

Senate rejects it, fails to pass it, or passes it with unacceptable amendments After three months the house of reps again passes the bill, with or without amendments and again gives it to the senate The senate rejects the bill again or fails to pass it or does with unacceptable amendments The GG may then dissolve both houses of parliament If after this the bill is again deadlocked, the GG may convene a joint sitting of both houses of parliament and an absolute majority of senators and MP’s pass the bill Compliance with all requirements of s 57 has been strictly construed to (PMA’S CASE) Victoria v Commonwealth (PMA’s Case) Several states argued that the requirements of the alternative procedure were not fulfilled, because there had been no interval of three months between the first and second passage of the PMA bill in the House of Reps The mandatory requirement of the three month interval was breached and thus the Act in debate was not valid

Topic 6: Taxation and Grants Powers The taxation power of the Commonwealth is entrenched in s 51 (ii). A ‘tax’ is a compulsory exaction of money by a public authority for public purpose, enforceable by law. Not a payment for services rendered. Sections 53-56 provide the framework of the special legislative procedures to be followed by parliament for enacting taxation and other financial legislation. S 96- the Commonwealth can grant financial assistance to any state on such terms and conditions as the parliament thinks ‘fit’. S 51 (ii) Tax is not a payment for service or a fine Matthews v Chicory Marketing Board: A ‘tax’ is a compulsory exaction of money by a public authority for public purpose, enforceable by law Where a fee for service would be a levy on egg producers- Harper v Victoria Air Caledonie v Commonwealth: wasn’t a fee for service it was a tax S 90- power to the commonwealth to levy customs and excise duties S 99- commonwealth may not discriminate against or give preference to any state or part of a state

Requirements of a valid taxation legislation There are certain well defined procedures in passing taxation and other financial legislation S 53-56 S 54 & 55- no tacking rule (matters for which have nothing to do with the imposition of taxes are included into a taxation bill S 55 (1)- law imposing taxation should only deal with the imposition of taxation and no other extraneous provisions

S 55 (1) Air Caledonie International v Commonwealth A migration Act passengers were required to pay $5 for an immigration clearance fee It would be collected by an international air operator and transferred to the Commonwealth Even if the operator didn’t collect the fee, it was still to be paid to the Cth HC found it was a law imposing taxation and could not be validly enacted by the Migration Amendment Act

Australian Tape Manufacturers v Commonwealth An act imposed a royalty on a vendor of blank tapes when sold hired or otherwise distributed in Australia Payable to a collecting society A law imposing taxation and thus the section was invalid

S 55 (2) Requirement of inclusion of only one subject of taxation in a taxation legislation

Second Fringe Benefits Case: the plaintiff submitted that the legislation dealt with spate categories of benefits with different criteria. HC did not agree that the provisions of s 55 were infringed

Form/substance This method was originally used in the earliest era of decision making There are specific requirements principally in ss 53-56 of the constitution, for taxation legislation to be valid both in terms of content and the legislative procedures through which such laws are enacted Nature of the taxation statute in regards to its substance and form

R v Barger The substance and form approach was utilized Although the ETA in form appeared to be a taxation statute in substance it was directed towards industrial relations ETA was thus invalid as a taxation law

Osborne v Commonwealth The substance and form distinction was maintained but a contrary conclusion was reached Land Tax Act- the tax increased as the value of the land increased This Act was in form and substance considered a tax

Fairfax v Commissioner of Taxation The form/ substance approach wasn’t followed in later cases The view is that the taxation power under s 51 (ii) can be used to support legislation which would impinge upon a wide variety of social and economic situations Concerned whether exemption clauses in a taxation statute, directed to purposes other than taxation make it invalid As long as the commonwealth legislation is directly concerned with the imposition of taxation Act was amended so that income from superannuation funds was to be taxed unless those funds were invested in prescribed public securities Fairfax didn’t invest their funds in any of the prescribed public securities Although the amendment appeared to be a taxation law in ‘form’ it was in ‘substance’ directed at matters outside the scope of the taxation power

Must not discriminate or give preference to another state- s99 Cameron v Deputy Federal Commissioner of Taxation Act fixed differentiated average value of cattle and other animals for different states The actual price received by a taxpayer for his cattle was then measured against the differentiated fixed value The HC found that the taxation law was discriminatory

Commissioner of Taxation v Clyne Argued that an act discriminated between states or parts of states contrary to s 51 (ii) or part thereof to s 99

Was contrary to the non-discriminatory rule and non-preferential rule in ss 51 (ii) and s 99

Grants of Power s 96- ‘uniform tax cases’ This section provides that the Cth may grant financial assistance to any state on such terms and conditions such as the Parliament thinks fit Facilitates building of hospitals etc but also entails a significant degree of Cth control over government spending in various public projects throughout Australia Grants to states General revenue grants, specific purpose grants, and special assistance grants Victoria v Commonwealth (Federal Roads Case): VIC and SA said the legislation related to road construction and not to a conditional grant. Federal Aid Roads Act- the HC said the act was a valid enactment South Australia v Commonwealth (First Uniform Tax Case)-validity of four Commonwealth wartime laws was questioned, first a high rate of tax on incomes, and an offence to pay state taxes before paying the Cth. The HC upheld the validity of all acts. Challenged by SA that it as discriminatory and preferential. Was only meant to continue for the Second World War and one year after. But continued to operate and this continuation was challenged by Victoria Victoria v Commonwealth (Second Uniform Tax Case)- concerned the validity of two acts. Said the acts were valid. Thus the scope of the Cth’s grants power is quite broad and there are few if any restrictions on the power under s 96

Grants legislation and the constitutional prohibition in s 116 Cannot make any law for establishing any religion, imposing any religion etc Attorney-Gerneral (Victoria)(Dogs Case: legislation for providing financial grants for state denominational schools were challenged as constituting a law for ‘establishing any religion’. Payment to non-goverment and government schools including church run schools. The legislation under challenge was held not to establish a religion and did not offend the provisions of s 116.

Topic 7: Duties of Excise Power Taxes on the manufacture, production, sale and distribution of goods S 90 imposes exclusive power on the Commonwealth Parliament to impose excise duties Thus the states are excluded to impose such duties This power does not confer merely gives exclusiveness, s 51 (ii) and 51 (iii) grant the power Before federation each Australian colony imposed its own excise and customs duties Although the historical context might suggest that s 90 was only intended to effect the Commonwealth’s control over tariff policy, the scope of s 90 has come to encompass economic control at a broader level Was initially given a narrow scope : basis of an excise duty was expanded Parton v Milk Board: tax upon a commodity at any point in the course of distribution before it reached the consumer Dennis Hotels v Victoria: established the ‘criterion of liability’ test , a state levy on a commodity connected to a previous period of transaction was not an excise duty Ha followed Parton v Milk Board

Section 90 Can only be imposed by the commonwealth States are excluded A tax on production, manufacture, sale or distribution of goods

Narrow scope of excise duties in early cases One major reason for changing the original narrow scope of interpretation was the decision in Amalgamated Society of Engineers v Adelaide Steamship (Engineers Case) –which overruled the reserved powers doctrine Peterswald v Bartley: was the earliest case of excise duties. In this case the state of NSW imposed a flat-rate licence fee. The HC held this was not an excise duty, as it was not paid on goods during the process of manufacture in the state. This was a narrow view

Transition from narrow to broad The decision from Peterswald v Bartley was not continued by the HC in later decisions In Commonwealth and COR v South Australia (Petrol Case) was concerning a state tax on the first sale of petrol as an excise duty, argued that it wasn’t to do with production only reference to its sale. HC held it to be a duty of excise by relating it to quantity at the point of sale. It was essentially a ‘burden’ and a tax on production of goods –this was not followed in later decisions by the HC Matthews v Chicory Marketing Board: a tax of one pound imposed by Victorian Act for every half- acre of land planted with chicory was held to be an excise duty

Parton v Milk Board

The issue was whether a state tax on ‘dairymen’ relatable to the number of gallons of milk sold was an excise duty The tax was a payment for services rendered by the milk board The majority of the HC however did not agree that the state law was a payment for services It was held that the tax was an excise duty which the Victorian Act could impose Commodities exclusively on the Commonwealth Parliament, beyond reach of the state legislatures

Dennis Hotels v Victoria ‘criterion liability’ test -kirby Enacted a various scheme of liquor licensing Provided two bases for the charging of fees for liquor licences Dennis hotels was the licensee of a hotel in Victoria Sought to recover on the ground that the relevant provisions of the licensing Was invalid under s 90 of the Commonwealth Constitution A narrow majority upheld the validity of the annual licence fee

Dickenson’s Arcade v Tasmania Concerned the constitutionality of a retail tobacconist’s licence and tobacco consumption tax imposed by the Tobacco Act The consumption tax was fixed at a percentage of the value of the consumed tobacco and was payable by consumers before or after consumption of the tobacco Was an excise duty that Tasmania could not impose because of the prohibition of s 90 This invoked the precedent established in Dennis Hotels Consumption tax imposed by the Tobacco Act 1972 amounted to an excise duty

Phillp Morris The controversy was in relation to the licence fees imposed on tobacco wholesalers and retailers by the Business Franchise The majority held the HC in Phillip Morris found that the licence fees could not be identified as excise duties

Ha v New South Wales Reconsidered decisions in Dennis, Dickenson and Phillip Morris Rejected Phillip Morris Declined to overrule Dennis and Dickenson Fee under the Business Franchise Licences (Tobacco) Act $10 plus an amount equal to a specified percentage of the value of tobacco sold by the applicant during the month commencing The plaintiffs operated a duty free store in Sydney selling tobacco by retail HC held the tobacco retailers licence fee imposed by the state legislation was in the nature of an excise duty Upheld the majority established in Parton v Milk Board

Brennan J with the majority decided that the NSW tobacco retailer’s licence fee was an excise duty that the state could impose Alcohol and tobacco for the Commonwealth to regulate

Great example on pg 174 Topic 8: Tax and Commerce Section 51 (i) of the Constitution grants to the Cth the power to make laws relating to interstate and international trade and commerce. It also enables the Cth to enter into the field of trade and commerce. S 92 states that trade and commerce intercourse among states shall be ‘absolutely free’. S 51 (i) Concerns the Cth’s power to regulate intra-state commercial activities that are connected with interstate and international trade and commerce Regulation of activities, which are linked to interstate and international trade and commerce Ability of the Cth to engage in trade and commerce by relying on s 51 (i) Ordinary meaning of trade and commerce The ability of the Cth to regulate intrastate activities where those activities are integrated with interstate and overseas trade and commerce and its power to engage in trade and commerce Applies where it is not practicable to maintain a distinction between intrastate and interstate aspects of a particular commercial activity

O’Sullivan v Noarlunga Meat Defendant operated a slaughterhouse and abattoirs in SA for the purpose of exporting lamb. The registration certificate specified processing and storage conditions for export meat. The business was registered under the CMER Issue was whether the Cth could by the exercise of its trade and commerce power, control activities which though carried out intrastate were linked to international trade The majority of the HC ruled valid that the CMER Act could validly regulate intrastate processes of trade and commerce that were linked to international trade

Crowe v Commonwealth HC ruled valid Cth legislation directed to regulate the marketing of dried fruits at the overseas destination after it’s export from Australia . The Dried Fruits Export Control Act 1924 which empowered the Dried Fruits Control Board to license and impose conditions for the sale and distribution of dried fruit after export was beyond the scope of s 51 (i) It was held that overseas marketing of goods exported from Australia was an essential part of international trade and could be regulated by legislation

Swift Australian v Boyd-Parkinson A small part of slaughtered and processed poultry in a poultry farm in Qld was destined for export, while the rest was for intrastate consumption or trade interstate Only 5% of the products were exported, the rest sold in QLD and interstate Swifts plant was registered under CMER It was not however licences under the Poultry Industry Act which prohibited the slaughter of poultry for human consumption on premises The Poultry Act applied to other portions of processing

Unlike the decision in Sullivan the HC found that the Cth legislation only applied to regulating the export component of this trade

Airlines of NSW v NSW Regulation 199 made the Cth licence dependant on safety, regularity and efficiency of air navigation Airlines of NSW held a licence under the ANR but none under the relevant NSW law Started proceedings in the HC for a declaration of invalidity of the NSW legislation for inconsistency with ANR and a declaration that it was entitled to operate the dubbo-sydney route The HC found the regulations of the ANR valid

Australian National Airways v Commonwealth A certain Act established a statutory commission to run Trans-Australia Airlines an interstate air transport service Set up a service between Perth in WA and Darwin in the NT The HC decided that under the trade and commerce power, the Commonwealth could in addition to regulating interstate trade, also engage in those activities through its own corporation

S 92 Task of the HC to determine whether the guarantee related to an individual right (individual central) or a free trade (freedom of trade and commercial transactions from one state to the other)

Individual rights under s 92 W & A McArthur v Queensland- HC declared invalid a QLD statute fixing maximum prices for goods, including goods for interstate sale Stated s 92 guaranteed the freedom of an individual to carry on interstate trade Wasn’t continued for long James v Cowan-took the free trade approach Commonwealth v Bank of NSW- HC had to decide the validity of the Banking Act adopted the Individual Rights Theory

Adoption of the free trade theory under s 92 Cole v Whitfield: concerned interstate business in crayfish. A Tasmanian Act made it unlawful for any person to be in possession of cray fish below specified sizes. A Tasmanian crayfish farm purchased crayfish from SA trawler. Were fine for size under SA legislation but not under Tas legislation. Wasn’t discriminatory nor was it a transaction that attracted the provisions of s 92. Bath v Alston Holdings: Act introduced a licence fee for tobacco wholesalers. BFA was held to be discriminatory in a perfectionist sense because it encouraged retailers in Victoria to deal with wholesalers within the state and effect s 92

Castlemaine Tooheys v SA: SA legislation imposed different refundable deposits on empty beer bottles. The Bond group of companies, which brewed beer interstate and sold its beer in SA in non- refillable containers was at a commercial disadvantage in relation to SA competitors who sold in refillable containers. Was discrimination against interstate breweries.

Topic 9: Corporations Power Corporations power s51 of the constitution Gives the Commonwealth the power to make laws in regards to foreign corporations and trading or financial corporation’s formed within the limits of the commonwealth This is one of the major sources of the Commonwealths power to regulate economic activity S 51 (i) commercial transactions S 51 (xx) corporate persons If the activities of a corporation were predominantly trading or financial the corporations power applied Although may apply where some non-trading activities were undertaken for the purposes of trading

S 51 (xx) was initially interpreted narrowly by the HC Huddart Parker v Moorhead was overruled by Strickland v Rolca Concrete This thus broadened the scope of s 51 (xx) Identification of corporations and purposes and activities of these bodies The purpose test and the activities test

Purpose Test Was used in R v Trade Practices Tribunal & Ex Parte St George County Council Was rejected in R v Federal Court, Ex Parte Western Australian Football League These cases affirmed that the activities test should be the appropriate method for identifying corporations Pre-trading activities have also been held to be within the incidental scope of corporations power

Huddart Parker v Moorhead Australian Australian Industries Practices Legislation: First restrictive trade practices legislation Huddart was a private shipping company incorporated in Victoria, it also traded in coal

Concrete Pipes Case Strickland v Rocta Concrete Pipes Contention of s 35 of TPA Rocta had an agreement with two others to reduce competition in trade of business pipes in Qld Didn’t register according to TPA HC upheld a broad and expansive interpretation of s 51 (xx) Enabled the Commonwealth to make laws directed not only at trading and financial corporation’s but also activities ancillary or contingent upon activities

Identifying Financial Corporations S 51 is the basis for the TPA legislation

If the activities of a corporation were predominantly ‘trading’ or ‘financial’ the corporations power applied Relied on the activities test rather than the purpose test

St George County Council St George County Council was constructed solely for the purpose of selling electricity and electrical appliances- from which it made a large profit Alleged monopolisation of trade The majority of the court applied the purpose test to identify a trading corporation This was overruled in R v Federal Court of Australia: Adamsons Case Which held the activities test was more appropriate method for identifying trading/financial corporations

Adamsons Case Professional footballer registered with West Perth Football Club wanted to play for a SA club When they refused to transfer, he bought an action under the TPA saying they were restraining trade The club maintained that they were not a trading corporation Majority stated that the activities of the club were commercial in nature and thus were trading corporations This was upheld in Superannuation Board v Trade Practices Commission –the superannuation board was identified as a financial corporation

Fencott v Miller The activities test was unable to be used because it was a ‘shelf’ company and had not conducted any ‘activities’ Thus can then revert back to the purpose test

Degree of trading and financial activities Fact and degree As long as the trading is not insubstantial

Pre-trading Activities for later trading Commonwealth could regulate pre-trading activities of trading corporations-if they were undertaken for the purposes of a corporation’s trading activities Tasmania Dam case Activities that had a sufficient or reasonable connection with trading or financial corporations

Actors v Fontana Films Fontana films applied to FC for an injunction against actors to restrain them from exerting pressure on theatrical agencies to not supply actors to it FC granted an injunction

Re Dinnigan: Ex Parte Wagner S 51 (xx) extended only to matters that had a sufficient or significant connection with constitutional corporations. Wagner’s independent contractors had sub contractors relating to the business of a constitutional corporation

Sufficiency of connection with trading activities NSW V Commonwealth (work choices case) A law relating to the industrial rights and obligations of corporations and their employees is a law with respect to constitutional corporations HC found the provisions of the workplace Relations Act Valid

NSW v Commonwealth Corporations Case Regulation of arrangements, regulate it detrimental effect on other clubs Can it incorporate new corporations Invalid as being outside the scope of the corporations power in s 51

Topic 10: External Affairs S 51 (xxix) of the constitution and relates to the authority of Cth to legislate with respect to external affairs. Relations with other countries, affairs externally to Australia, translating international treaty obligations into domestic laws. Used by the Cth to enact laws to carry out Australia’s treaty obligations. Translation of treaty obligations into domestic law. Early Decision R v Burgess: Ex Parte Henry: it was held that external affairs denoted the whole series of relationship that might exist between nations in times of peace. It included measures designed to promote friendly relations with any or all of the nations

Polyukhovich v Commonwealth HC upheld amendments to the War Crimes Act 1942 relying on the provisions of s 51 (xxix) These amendments provided that certain acts of violence committed in Europe during WWII were punishable as crimes in Australia, because the geographical location of the acts was physically external to Australia

New South Wales v Commonwealth (Sea’s and submerged Lands Case) HC characterised external affairs power a wide grant of plenary legislative power Affairs include matters and things as well as relationships

Translating international treaty obligations into domestic law The power to implement international treaties into domestic legislation was observed in Rv Burgess; Ex Parte Henry. In this case it was also examined that the treaty must conform to its purposes and objectives. “conformity of legislation to the treaty” test. However ambiguities have arose Koorwarta v Bjelke-Petersen: HC gave the widest possible scope to the external affairs power in implementing international treaties. This case concerned the validity of the RDA, RDA was implemented to give effect to Australia’s commitment under the International Convention on the elimination of all forms of RD, ruled the provisions were valid. Argued it was a matter of international concern and was therefore a part of a nations external affairs. Commonwealth v Tasmania (Tasmania Dams Case):rejected the international concern approach. This has been consistently followed in later decisions. The law must conform to the treaty. Parliament cannot depart from the provisions of the treaty.

Victoria v Commonwealth (Industrial Relations Case) also followed the requirement of conformity rule. Industrial relations legislation adopted by the Commonwealth pursuant to s 51 (xxix) of the constitution was challenged by Victoria and other states. These statutes were enacted to implement a number of conventions and recommendations of the International Labour Organisation.

Vic and other states challenged the legislation saying they were not matters of international concern or any relevant external affair Rejected the argument of the states, and upheld the precedent from Tasmanian Dams Case) The legislation implementing a treaty must prescribe a regime to realise the objectives of the treaty Must be considered appropriate and adapted to implementing the treaty

Topic 11: Inconsistency of Laws 1) Characterise the two sets of laws 2) Apply Cover the field test- indirect inconsistency Concerned with inconsistency of Commonwealth and state laws through the medium of s 109. Inconsistency arises because of the sharing of legislative powers between the Commonwealth and states. The Commonwealth will always prevail. Clyde Engineering v Cowburn 1926: the meaning of inconsistency 1)Simultaneous obedience to the two laws is impossible- direct 2)Where one law takes away a right or privilege conferred by the other law- direct 3)Where a state law invades a field which a Commonwealth law intends to cover- Indirect Recognised inconsistency can exist even with simultaneous obedience possible Facts: State law provided for maximum ‘ordinary’ working hours for workers in the engineering industry to be 44 hours a week with overtime. Commonwealth was 48 hours with no overtime Inconsistent- cover the field test

1) Deals with direct inconsistency which is relatively easy to resolve Indirect Inconsistency An issue arises as to when there is an indirect inconsistency when a state law invades a Commonwealth Law Some overlap or duplication Commonwealth may leave some aspects of the subject matter un-enacted because of policy considerations HC has developed the ‘cover the field test’ The latter will prevail and the former will be considered inconsistent or invalid- s 109 Includes subordinate and federal and industrial laws State enters a field that the Commonwealth intends to cover If can operate simultaneously- obedience to both laws possible (Federated Sawmill v James Moore, Australia Boot Trade v Whybrow

ExParte McLean Indirect inconsistency depended on the intention of the paramount legislature to express by its enactment , exhaustively or exclusively what the law should be on a particular matter If Commonwealth express such intention this is inconsistent with state

Ansett v Wardley No inconsistency between Commonwealth and state Pilot dismissed (female) Equal Opportunity Act and APA dealt with entirely different subject matters- no inconsistency arose in the absence of an express mention

NSW v Commonwealth (hospital benefits case) No inconsistency Alleged inconsistency between National Health Act 1953 (Cth) and two state acts Health Insurance Levies Act 1982 (NSW) and Hospital Benefits Levy (Vic) Cth was directed at imposing regulations of HBO’s, the states imposed a levy on all HBO’s to be calculated on a no. of members and income

Commonwealth v Western Australia (Mining Case) Majority held that the defence regulations did not manifest an intention to cover the field with respect to rights and obligations of persons other than those acting for on or behalf of Cth (no inconsistency)

Australian Mutual Provident Society v Goulden Ruled there was inconsistency between ADA 1977 (NSW) and Life Insurances Act 1945 (Cth) Insurer declined to vary the policy of a disabled life insurance holder relying on the relevant provision of the Life Insurances Act ADA provided for no discrimination of disabled people with respect to goods and services

University of Wollongong v Metwally A retrospective amendment of a Cth The amendment was made so the state act covering the same field would be inconsistent Acts ADA 1977 (NSW) RDA 1975 Cth Inconsistency could not be negatived by retrospective amendment Metwally postgraduate from Egypt, studying at Wollongong University complained to EOT about racial discrimination from members of University including lecturer Based on provisions of ADA- awarded $46,000 In Viskauskos v Niland: RDA was intended to be a complete statement of law on RD RDA amended in 1983 do that Part II of the ADA was no longer invalid So thus the majority of Part II of ADA inconsistent with RDA and s 109 invalidated it Could not be overridden by Cth enacting 1983 amendment Minority said it wasn’t to circumvent s 109 merely to remove the inconsistency

Topic 12: Intergovernmental Immunities Relates to the impact of Commonwealth and State Laws on each other’s executive agencies. Consti doesn’t address this the HC has had to develop this theme. Originally they were both immune from each others laws. Originally involved the reserved powers doctrine. The Engineers Case is one of the most important HC decisions and the foundation of the Contemporary Law on Commonwealth- state relations. The Commonwealth must not discriminate or impair its essential functions (upon the state) Amalgamated Society of Engineers v Adalaide (Engineers Case) The HC overruled previous decisions and doctrines on intergovernmental immunities in particular the reserved powers doctrine This implied that the states and the Commonwealth had an equal partnership However the decision in this case was that the Commonwealth Parliament had power under the Constitution to make laws binding on the states However since that the HC has accepted that there can be some limitations to the strict rule ‘non discrimination’ Concerned s 51 (xxxv)

After Engineers Case The HC has been cautious in preventing a wholesale takeover of the functions and responsibilities of the states Applied in many cases to hold the relevant Commonwealth Legislation invalid as being discriminatory or affecting the essential functions of the state

Prohibition against discrimination and curtailment of state governmental capacity Melbourne Corporation v Commonwealth (State Banking Case) Commonwealth law applying to the states would be invalid if It singles out states or agencies for imposition of restrictions that prevents them from performing their essential functions (is discriminatory against the states) Where the states or their agencies are not singled out, they are subjected to specific legal provisions of general application that would impede or impair their essential functions Commonwealth Bank Act said they had to obtain written consent from the federal treasurer before opening a bank Melbourne Corporation refused HC said the Commonwealth Parliament cannot single out state gov or agencies

AEU Case Changes to the industrial relations system of the state of Victoria and its application to a number of public sector employees were in dispute Redundancy packages-unions, teachers etc wanted their claims to be covered The majority of the HC held that the decision of the Victorian Government to offer redundancy should not be overridden by federal laws

Austin v Commonwealth

A new interpretation of the state banking principle The test should be: does the commonwealth law impair the capacity of the state to function as a government? Involved Commonwealth Superannuation Legislation The majority upheld the challenge and ruled the Commonwealth Legislation was invalid for breaching state immunity Such criteria as ‘special burden’ and ‘curtailment’ of ‘capacity’ of the states ‘to function as governments’

Instances where state immunity could not be infringed Victoria v Commonwealth (Payroll tax) : all seven judges in this case applied the State Banking Case principle but found the legislation was valid Native Title Case

Reciprocal Rule Suggested state legislation would bind the Commonwealth just as Commonwealth legislation binds the states, however the Commonwealth might protect itself against state legislation by enacting inconsistent law

Cigmatic Case Proceedings arose out of a claim by the Commonwealth that payment of debts, owed to it by NSW company had gone into liquidation, had priority over creditors Companies Act 1936 debts owed to unsecured creditors were to be discharged pari passu (that is equally without preference) By majority the HC held that a state act could not be directed to regulate the legal rights of the Commonwealth

Re Residential Tenancies Tribunal of NSW ; Ex Parte Defence Housing Authority Residential Tenancies Act 1987 The act conferred functions on the Residential Tenancies Tribunal of NSW with respect to landlords and tenants The majority ruled that the Act did not restrict or modify the executive capacities of the Commonwealth but merely regulated the activities carried out in the exercise of Commonwealth capacities A state law can regulate activities carried out in the exercise of the Commonwealths capacity

Good Example pg 305 Topic 13: Individual Human Rights and the Constitution When the constitutional conventions were held there was debate over whether to include a bill of rights. This was however rejected. There was an argument that it was unnecessary in light of the Commonwealth’s limited legislative powers. Individual Rights under the Constitution Rights of persons against the community, the government or the state based on moral, ethical, social, economic and political values of liberty, equality, dignity, respect etc When they are upheld by statute or constitutional rights-they are legally enforceable Right to the acquisition of property (s 51 xxxxi) Trial by jury in indictable offences (s 80) Rights in respect of religion (s 116) Prohibition of inter-state discrimination (s 117) Difference between rights (upheld under law) and liberty (unregulated-residual) In countries that don’t have rights recognised by statute or the constitution such as Australia , the concept of liberties, comprehended by the common law that is relied upon to explain the entitlements or claims of citizens against the government

Origins and evolution of individual rights Edward Arnold states before the evolution of individual rights the idea of ‘natural rights’ was formed (rights which belonged to human beings as God’s will for the world The revolutionary struggles in 18th Century Europe and America transformed this abstract idea into concrete formulations of individual rights as claims upon the state These claims were transformed into positive rights

Classification of individual rights Can be classified into civil, political and economic rights Civil: right to life, equality and non-discrimination, freedom from cruel or degrading punishment, right to personal liberty, thought of conscious and religious belief, freedom of association and assembly Political: vote, hold public office, right to take part in the conduct of public affairs Economic: free choice of employment, just favourable conditions of work, non-discrimination in employment, equal pay for equal work, right to form trade unions for protection of employment Economic rights are included in international human rights documents not generally in constitutions or statute

International Bill of rights Universal Declaration of Human Rights 1948 Fundamental human rights and freedoms to apply internationally- 30 articles

Domestic bills or charters of rights

The Bill of rights of the US and the Charter of rights and freedoms of Canada are examples of constitutional bills of rights Bill of Rights 1688 (UK) Magna Carta 1215 Purpose is to set out a catalogue of individual rights that are enforceable against unjustified governmental action

Scope of s 51 (xxxi) Similar to the cluster or rights under the US Fifth Amendment That these do not form a part of a catalogue of entrenched rights As expressed these constitute one of the legislative heads of power of the Cth Provisions are not only directed to individuals but states as well Only applies to Cth law not state laws Minister of State of the Army v Dalziel: operated a car park on a vacant land in Sydney owned by the Bank of NSW, as a weekly tenant. During WWII army came and took possession, Daziel claimed compensation to cover his rental payments and loss of profits. Wasn’t entitled to this recovery. HC argued the word property extended to use and possession.

Acquisitions which lie outside the scope of s 51 Re Director of Public Prosecutions; Ex Parte Lawler: Fisheries Management Act 1991 (Cth) made it an offence for a person to use a foreign boat for commercial fishing in the Australian fishing zone without a licence. A court order could order for the forfeiture of that boat, this was argued that this was within the scope of 51. HC rejected this argument. Theophanous v Commonwealth: The plaintiff had been a member of the Cth parliament and entitled to retirement superannuation benefits under the Parliamentary Contribution Superannuation Act, compulsory acquisition not on just terms Health Insurance Commission v Peverill: HC ruled that the retrospective reduction in the amount of benefits payable to a medical practitioner did not amounted to an acquisition

Acquisitions and common law damages Georgiadis v Australian and Overseas Telecommunications Corporation: the plaintiff sued his employer, Telecom for injuries sustained by him during the course of employment. There was a right to sue for damages as the HC ruled there was an acquisition of property in the circumstances of the case

HC and their decision on ‘implied rights’ HC has held that certain implications of rights can be derived from the text and structure of the Cth Freedom of political communication-not absolute A right to vote was upheld

Freedom of political communication

Nation wide News v Wills : It was argued that the relevant provisions of the Industrial Relations Act were contrary to the implied guarantee in the Commonwealth Constitution of freedom of political criticism of Government Institutions. HC agreed and found the provisions invalid Australian Capital Television: Act imposed a ban on political advertising in radio and TV for a specified election period. The HC found the new provisions of the Act infringed the implied freedom of political discussion Theophanous v Herald: may lead to a defence to actions for defamation- pg 326 Levy and Lange: HC ruled the legislation was appropriate and adapted to the fulfilment of a legitimate legislative objective

Representative Government and implied rights relating to voting and electoral process A right to vote and equality of voting power could be derived from the system of representative government McGinty v Western Australia: denied that an implication of voting equality could arise from the system of representative government, but upheld an implied right to vote Roach v Electoral Commissioner: upheld an implied right to vote, prisoner case Langer v Commonwealth: plaintiff contended that he was constitutionally entitled to urge voters to fill in their ballot papers, this would result in a diminished expression of a voters preference Mullohand v AEC: The commonwealth Act allowed the AEC to deregister a political party in certain circumstances. This contention was unanimously rejected by the HC (their freedom of political communication was impermissibly burdened by this process.

Debate on an Australian Bill of Rights Was discussed in the Constitution Conventions 1890 Demands that the rights of individuals be articulated in either statutory form or entrenched in the Constitution Considered unnecessary in light of the Commonwealth’s limited legislative powers- that rights proposed were never going to be under threat First time took place in 1944 and again in 1988 both failed Attempts to adopt statutory bills as seen in 1973 and 1985 The first one established a Human Rights Commissioner but failed due to the double dissolution of parliament BABRA 1985-withdrawn from parliament The provisions outlined before in regard to personal rights only have a limited application in protection Guarantee is only available against the commonwealth not the states and territories RDA and ADA and SDA Australia is a party to a number of international agreements relating to human rights including the International Covenant on Civil and Political Rights Australia thus has international obligations to ensure adequate protection of individual rights in the country