CONSTITUTIONAL LAW NOTE
Topic 1, 2 – The Structure of Parliament and Legislative Procedures o The Structure ...... 3 o Duration and Membership ...... 5 o Standard Legislative Procedures: Commonwealth and States ...... 8 o Commonwealth Alternative Procedures (section 57) ...... 10 o Commonwealth Restrictive Procedures (section 128) ...... 13 o Special Procedures for Financial Legislation (section 53, 54, 55) ...... 15 o State Restrictive Procedures ...... 19
Topic 3 – Characterisation and Interpretation o Principles of Constitutional Interpretation ...... 25 o The Process of Characterisation ...... 28
Topic 4 – Financial and Economic Powers o Taxation Power – section 51(ii) ...... 33 o Grants Power – section 96 ...... 36 o Appropriation Power – section 81 ...... 38 o Corporations Power – section 51(xx) ...... 41
Topic 5 – External Affairs Power – section 51(xxix) o Matters External to Australia ...... 49 o Extraterritorial Competence of the States ...... 51 o Relations with Other Countries ...... 52 o Treaty Implementation ...... 53
Topic 6 – The Executive Power o The Crown ...... 59 o The Prerogative Power ...... 65 o The Implied Nationhood Power ...... 67 o The Commonwealth Executive Capacities ...... 71
Topic 7 – The Inconsistency of Laws o The Meaning of Inconsistency ...... 73 o Direct Inconsistency ...... 74 o Indirect Inconsistency ...... 77 o Inconsistent Criminal Penalties ...... 81
Topic 8 – Intergovernmental Immunities o First period ...... 84 o Second period (Engineers’ case) ...... 85 o Third period (Melbourne Corporation case) ...... 85 o Melbourne Corporation doctrine reformulated ...... 88
Topic 9 – Constitutional Rights o Just Terms for the Acquisition of Property – section 51(xxxi) ...... 92 o Trial by Jury – section 80 ...... 96 o Freedom of Religion – section 116 ...... 99 o Freedom of Interstate Discrimination – section 117 ...... 103 o Implied Freedom of Political Communication ...... 105 o Voting Rights ...... 112
Topic 10 – Commonwealth Separation of Powers o Separation of Judicial Power (two principles) ...... 115 o Exception to Boilermakers’ principle (Persona Designata) ...... 118 o Preventative Detention and Chapter III Constitution ...... 123 o Separation between Executive and Legislative Powers ...... 125
Topic 11 – State Separation of Powers o Kable Principle ...... 126 o The resurgence of Kable since 2008 ...... 132 o The New Direction for Kable ...... 134
1. The corporations power - section 51(xx): Section 51 – Legislative Power of the Parliament 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: (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
- There are two fundamental questions relating to the power: o What types of corporation does the Commonwealth Parliament have control? o What aspects of these corporations’ affairs are subject to Commonwealth control? - Under the doctrine of reserved powers (before the Engineers’ case), the majority of judges held that s 51(xx) allowed the parliament to legislate so as to control the legal capacity of corporations, but not so as to control those corporate activities – Moorehead (1909)
Changes in the interpretation of s 51(xx): - The impact of the Reserved Powers doctrine: Huddart Parker v Moorehead (1909) - The rejection of the Reserved Powers doctrine: Strickland v Rocla Concrete Pipes (1971)
a. Types of corporations the Commonwealth can legislate: What are trading and financial corporations? - The HC developed two tests: o The purposes (‘intended activities’) test: A corporation is to be characterised by reference to its purposes, rather than its activities. o The ‘actual activities’ test: A corporation is characterised as a trading or financial corporation by reference to its activities. Ie, trading or financial activities must form a substantial or significant, but not necessarily predominant, proportion of its activities.
R v Trade Practices Tribunal; Ex parte St George County Council The purpose test Facts (p. 310): - The SGCC was a body corporate set up under the Local Government Act 1919 (NSW) to buy and sell electricity in an NSW district. - It also sold electrical appliances for profit. - SGCC argued that it was not a ‘trading corporation’ but a public service organisation. Held: - Majority: SCGG was not a trading corporation - “It is necessary to determine the true character of the corporation, upon a consideration of all the circumstances that throw light on the purpose for which it was formed.” (Gibbs J)
R v Federal Court of Australia; Ex parte WA National Football League (Adamson’s Case) (1979) The ‘actual activities’ test Facts: - Adamson was a professional AFL footballer employed by the West Perth Football Club. He wished to transfer clubs to Norwood Football Club (SA). - Both the WA and SA football leagues were incorporated under their respective state laws for the purpose of promoting football (a non-profit objective). - BUT substantial income was generated by both leagues from gate receipts, broadcasting, fees, advertising, membership subscriptions etc. - Adamson’s release was refused. Adamson alleged that the WA football league, the SA football league and the West Perth Club breached the Trade Practices Act 1974 (Cth) by preventing him playing for Norwood in the SA league. Held: - The Leagues and the Club were ‘trading corporations’ by reference to their actual activities. A majority of the High Court declined to follow the approach taken in St George County Council (1974) - Mason J (with whom Jacobs J agreed): ‘“Trading corporation” is not and never has been a term of art…Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation. … Whether the trading activities of a particular corporation are sufficient to warrant its being characterised as a trading corporation is very much a question of fact and degree. … I do not limit the concept of trading to buying and selling at a profit; it extends to business activities carried out with a view to earning revenue.’
What is a foreign corporation? - A corporation formed outside the limits of the Commonwealth (ie overseas): see NSW v Commonwealth (‘Incorporation Case’) (1990) - This means that a corporation formed under the law of a foreign country is capable of being regulated by the corporations power - The corporation does NOT have to be characterised as a ‘trading’ or ‘financial’ corporation to fall within the ambit of the power. What matters is that the corporation carries on some business INSIDE Australia.
What is a trading corporation? Communications... and Allied Services Union of Australia v Queensland Rail (2015) A trading corporation = based on the actual activities + its statutory purposes The purpose test and actual activity test might be interchangeable Facts: - The Queensland Rail Transit Authority Act 2013 (Qld) stipulated that the QRTA ‘is not a body corporate’ (s 6(2)). The QRTA supplied personnel to Queensland Rail Ltd. - The Union wanted the Fair Work Act 2009 (Cth) to apply to the QRTA and argued that it was a s51(xx) trading corporation. Held: - Both the corporation’s actual activities and its statutory purposes pointed to it being a trading corporation. - The QRTA’s actual activities included the supply of labour services while its statutory purposes included managing railways and providing rail transport services as a commercial enterprise. - Joint Judgment: ‘no matter whether attention is directed to the constitution and purposes of the Authority, or what it now does, or some combination of those considerations, the Authority must be found to be a trading corporation’. [40] - Gageler J: ‘The basic point that the constitutional description of trading is capable of being applied to a corporation either by reference to its substantial trading purpose (irrespective of activity) or by reference to its substantial trading activity (irrespective of purpose) is sound in principle and is supported by authority.’
What is a financial corporation? State Superannuation Board v Trade Practices Tribunal (1982) - ‘Financial corporation’ is not a term of art. - The term ‘financial corporation’ does ‘no more than describe a corporation which engages in financial activities or perhaps is intended to do so’. - HCA endorsed activities test: Finance does NOT need to be the predominant activity of the corporation, but a ‘substantial proportion’ of the activity.
b. The scope of the corporations power – section 51(xx): - Two different formulations emerge from the judgments: o Narrow: The limitation to trading and financial corporations means that the activities to be regulated must be linked to trading and finance in some way. That is, can only regulate trading activities of trading corporations (not all activities). Reformulated in Work Choices (2006) by the plaintiff as being a ‘distinctive character’ test. o Wide: As long as it is a relevant corporation being regulated, then any activities can be regulated. Reformulated in Work Choices by the plaintiff as an ‘object of command’ test.
Strickland v Rocla Concrete Pipes (1971) - The Commonwealth can regulate at least the trading activities of trading corporations (as well as the financial activities of financial corporations) - Defines the ‘core’ of the Commonwealth’s power with respect to constitutional corporations - Barwick CJ: We were invited in the argument of these appeals to set as it were the outer limits of the reach of the power under this paragraph of s 51. This for my part I am not prepared to do: and indeed I do not regard the Court as justified in doing so…The law develops case by case, the Court in each case deciding so much as is necessary to dispose of the case before it’
Actors Equity v Fontana Films (1982) - Can the Commonwealth regulate secondary boycotts of s 51(xx) corporations? Held: - This provision of Trade Practices Act regulated conduct of others (in this case, the union) rather than conduct of corporations - However, the provision was valid because conduct regulated is directed to protecting trading corps in their trading activities. ‘[T]he law in the present case does not regulate or govern the activities of trading corporations; it regulates the conduct of others. But the conduct to which the law is directed is conduct designed to cause, and likely to cause, substantial loss or damage to the business of a trading corporation formed within the limits of the Commonwealth.’ (Gibbs CJ, Hanks 316)
Commonwealth v Tasmania (Tasmanian Dams Case) (1983) - Section 10 of the World Heritage Act 1983 (Cth) effectively prohibited excavation work necessary for the construction of the dam without the consent of the Minister. - Could the Commonwealth regulate ‘activities undertaken for purposes of its trading activities’ by s 51(xx) corporations? That is, activities that were one-step removed from the trading activity itself? Held: - Section 10(4): valid (5:2) - Section 10(2): o Mason, Murphy and Deane JJ: broad view o Gibbs CJ, Wilson and Dawson: narrow view o Brennan J: unnecessary to decide
New South Wales v Commonwealth (the Work Choices Case’) (2006) Scope of section 51(xx) corporations power Broad interpretation (an object of command test) Facts: - The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended the Workplace Relations Act 1996 (Cth). - The 2005 Amendment Act purported to regulate the employment contracts and conditions of employees of constitutional corporations. - The constitutional basis for the 1996 Act was the conciliation and arbitration power in s 51(xxxv) of the Constitution, but the 2005 Act was enacted in reliance on the corporations power. - The Act had the effect of displacing State industrial relations laws. The States argued that there was no specific head of the power for the Commonwealth to regulate all the industrial relations activities of trading corporations. Held: - Relying on Gaudron J in Pacific Coal (2000), the majority adopted a wide interpretation of s 51(xx), holding that it extends to: o The regulation of the activities, functions, relationships and the business of a s 51(xx) corporation; o The creation of rights and privileges of those corporations; o The imposition of obligations on those corporations; o The regulation of those through whom these corporations act, their employees and shareholders; and o The regulation of those whose conduct is or is capable of affecting the activities, functions, relationships and businesses of those corps (Hanks 335) - Majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ): o Rejected the ‘distinctive character’ test (ie Cth limited to regulating the trading activities of trading corporations): o ‘It is an approach which would read the power as confined to making laws with respect to the trading activities of Australian trading corporations and the financial activities of Australian financial corporations. But that, of course, is NOT what s 51(xx) says.’ (Hanks 334) o Rejected the notion of a “federal balance” (restrict the Commonwealth power) o [195]: ‘Thus when it is said that there is a point at which the legislative powers of the federal Parliament and the legislative powers of the States are to be divided lest the federal balance be disturbed, how is that point to be identified?’ o [196]: ‘But to be valuable, the proposition, that a particular construction of s 51(xx) would or would not impermissibly alter the federal balance, must have content, and the plaintiffs made no attempt to define that content.’
IMPLIED FREEDOM OF POLITICAL COMMUNICATION
7 The Senate The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
24 Constitution of House of Representatives The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.
- Key Dates in Development of case-law: o 1992: Nationwide News v Wills and Australian Capital Television v Commonwealth o 1997: Lange v Australian Broadcasting Corporation: HC unanimously agreed two-step test for determining if implied right had been contravened. o 2004: Coleman v Power: modified the Lange test. o 2015: McCloy v NSW: modified Lange test to include structured proportionality Nationwide News Pty Ltd v Wills (1992) (Hanks 1183) - The question was over the validity of a provision of the Industrial Relations Act 1988 (Cth) which made it an offence to use words calculated to bring a member of the Commission into disrepute. - The defences which were ordinarily available to persons charged with contempt or accused of defamation (eg ‘fair comment’ or ‘honest and reasonable mistake of fact’) were not available under the Act.
ACTV v Commonwealth (1992) (Hanks 1185-1198) - The Political Broadcasts and Political Disclosures Act 1991 (Cth) imposed a blanket prohibition on political advertisements on radio or TV during federal election period. - Free air time was to be provided, at least 90% of which was allocated to political parties currently in parliament. News & current affairs etc items were not affected. ACTV claimed the relevant legislation was invalid.
Sir Garfield Barwick, ‘Parliamentary Democracy in Australia’ (1995) Western Australian Law Review - ‘No knowledgeable mind could doubt that the entrenchment of a constitutional right of free speech in the individual was not only unnecessary but inconsistent with the maintenance of parliamentary democracy. Such a mind could scarcely have imagined that there was any implication of an entrenched individual right in the Constitution. No word in the document suggests it. But it has been so decided. ‘
1. The scope of “Political Communication”: Theophanous v Herald & Weekly Times Ltd (1994) The scope of political discussion Facts: - Andrew Theophanous MP commenced proceedings for defamation over the publication of an article which questioned his judgment and conduct. - Among the defences raised was the claim that the freedom extended to the publication of material relating to the performance/suitability of MPs. Held (a 4:3 majority): - The publication is protected due to the implied freedom of political discussion - The publication fell within the concept of political discussion: ‘Political discussion includes discussion of the conduct, policies, fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is NOT exhausted by political publications and addresses which are calculated to influence choices.’ (Mason CJ, Toohey and Gaudron JJ) - The political discussion is NOT limited to matters relating to the Commonwealth because of the interrelationship of Commonwealth and State powers