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LAWS2150 – Federal Constitutional Law Table of Contents

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LAWS2150 – Federal Constitutional Law Table of Contents LAWS2150 – Federal Constitutional Law Table of Contents The Constitution ................................................................................................................................................ 3 Purposes of a Constitution ......................................................................................................................................... 3 Written and unwritten Constitutions .................................................................................................................... 3 Drafting the Constitution ........................................................................................................................................... 3 The High Court and Constitutional Interpretation ................................................................................ 3 Pre-Engineers Approach ............................................................................................................................................. 3 Implied Immunity of Instrumentalities ................................................................................................................................ 3 Reserved State Powers ................................................................................................................................................................. 4 The Engineers Case ....................................................................................................................................................... 5 The Jumbunna Principle ............................................................................................................................................. 6 Literalism, legalism and judicial choice .................................................................................................... 7 Legalism ........................................................................................................................................................................... 7 The dead hand and the living tree .......................................................................................................................... 8 (a) Use of Historical Materials .................................................................................................................................................. 8 (b) The Intention of the Framers ............................................................................................................................................. 8 (c) Textualism .................................................................................................................................................................................. 9 (d) Incremental Accommodation ............................................................................................................................................ 9 (e) Purposive Interpretation ..................................................................................................................................................... 9 Characterisation .............................................................................................................................................. 11 Characterisation .......................................................................................................................................................... 11 ‘Pith and substance’ ................................................................................................................................................... 11 Dual characterisation ................................................................................................................................................ 12 Interaction between Heads of Power ................................................................................................................... 13 Subject matter powers .............................................................................................................................................. 14 (a) Sufficient connection ........................................................................................................................................................... 14 (b) The role of purpose .............................................................................................................................................................. 14 (c) Incidental powers .................................................................................................................................................................. 15 Proportionality—purpose powers and limitations ........................................................................................ 15 (a) Purpose powers ..................................................................................................................................................................... 15 (b) Beyond purpose powers .................................................................................................................................................... 15 Precedent and overruling ........................................................................................................................................ 16 Reading down and severance ................................................................................................................................. 17 External Affairs Power – s 51(xxix) .......................................................................................................... 17 Relations with other countries .............................................................................................................................. 17 Matters external to Australia .................................................................................................................................. 18 Implementing treaties .............................................................................................................................................. 19 The expanding power ................................................................................................................................................ 20 The power confirmed ................................................................................................................................................ 20 International Recommendations .......................................................................................................................... 21 Trade and Commerce Power – s 51(i) ...................................................................................................... 22 Scope ............................................................................................................................................................................... 22 Incidental aspect ......................................................................................................................................................... 23 Corporations Power – s 51(xx) ................................................................................................................... 24 Which corporations? ................................................................................................................................................. 24 Reach of the power ..................................................................................................................................................... 26 Races Power – s 51(xxvi) .............................................................................................................................. 27 Beneficial laws only? ................................................................................................................................................. 27 1 ‘Special laws’; ‘deemed necessary’; for the ‘people of any race’ ................................................................. 28 Taxation Power – s 51(ii) ............................................................................................................................. 29 What is a tax? ................................................................................................................................................................ 30 Fees for Services .......................................................................................................................................................... 31 Grants Power – s 96 ........................................................................................................................................ 32 Defence Power – s 51(vi) .............................................................................................................................. 33 Nature of the power ................................................................................................................................................... 33 War .................................................................................................................................................................................. 34 Women during war ...................................................................................................................................................................... 34 Post-War .......................................................................................................................................................................
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