Table of Contents
Fundamentals of Australian Constitutional Law ...... 14
The Constitution ...... 14
Main types of Constitutional Case ...... 14
Fundamentals of Constitutional Law ...... 16
Overview of Principles ...... 16
Precedent and Overruling ...... 16
Australian Agricultural Co v Federated Engine-Drivers & Firemen’s Association (‘Engine-Driver’s Case’) (1913) 17 CLR 261 ...... 17
John v Federal Commissioner of Taxation (1989) 166 CLR 417 ...... 17
Wurridjal v Commonwealth (2009) 237 CLR 309...... 18
Stevens v Head (1993) 176 CLR 433 ...... 19
Queensland v Commonwealth (Second Territory Senators Case) (1977) 139 CLR 585 ...... 19
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 ...... 20
Reading Down and Severence ...... 21
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 ...... 22
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 ...... 22
The High Court and Constitutional Interpretation (A) ...... 23
1) The Division of Legislative Power ...... 23
Conflicts: ...... 23
2A) Pre-Engineers: Implied Immunity of instrumentalities doctrine ...... 24
D’Emden v Pedder (1904) 1 CLR 91 ...... 24
Deakin v Webb (1904) 1 CLR 585 ...... 24
Municipal Council of Sydney v Commonwealth (Municipal Rates Case) (1904) 1 CLR 208 ...... 25
Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railways Servants’ Case) (1906) 4 CLR 488 ...... 25
Attorney-General of NSW v Collector of Customs for NSW (Steel Rails Case) (1908) 5 CLR 818 ...... 25
R v Sutton (Wire Netting Case) (1908) 5 CLR 789 ...... 26
2B) Pre-Engineers: Reserved State Powers Docrtine ...... 26
R v Barger (1908) 6 CLR 41 ...... 27
Attorney-General (NSW) v Brewery Employees Union of NSW (Union Label Case) (1908) 6 CLR 469 .... 27
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Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 ...... 27
3) The Engineers’ Case ...... 28
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129 . 28
Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 35 ...... 29
4) The Jumbunna Principle – taking a broad interpretation ...... 29
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 ...... 30
Pape v Commissioner of Taxation [2009] HCA 23 ...... 30
The high court and constitutional interpretation (B) ...... 31
Originalism ...... 32
Literalism and Legalism ...... 32
Judicial Choice ...... 33
United States v Carolene Products Co 304 US 144 (1938)...... 35
The Dead hand & the living tree: use of historical material ...... 36
Tasmania v Commonwealth and Victoria (Drawbacks Case) (1904) 1 CLR 329 ...... 36
The Dead hand & the living tree: Intention of the framers ...... 36
NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1 ...... 37
THe Dead hand & the living Tree: Textualsm ...... 38
Eastman v The Queen (2000) 203 CLR 1 ...... 38
THe Dead hand & the living Tree: Incremental Accommodation ...... 39
Street v Queensland Bar Association (1989) 168 CLR 461 ...... 39
THe Dead hand & the living Tree: Purposive Interpretation ...... 40
Brownlee v The Queen (2001) 207 CLR 278 ...... 42
Re Wakim; Ex parte McNally (Cross-vesting Case) (1999) 198 CLR 511 ...... 43
THe Dead hand & the living Tree – Strategic Compromise? ...... 43
The High court and characterisation ...... 46
1) Characterisation ...... 46
United States v Butler 297 us 1 (1936) ...... 46
Bank of NSW v Commonwealth (Bank Nationalisation Case) ...... 48
2) Dual Characterisation ...... 49
R v Barger (1908) 6 CLR 41 ...... 49
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Melbourne Corporation v Commonwealth (1947) 74 CLR 31 ...... 49
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 ...... 49
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 ...... 50
Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 ...... 51
Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 ...... 51
Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 ...... 52
3) Interactions between heads of power ...... 52
Pidoto v Victoria (1943) 68 CLR 87 ...... 53
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 ...... 53
4) Subject Matter and Purpose Powers (Intro) ...... 54
Stenhouse v Coleman (1944) 69 CLR 457 ...... 54
5A) Subject Matter Powers – Sufficient Connection ...... 55
Re F; Ex Parte F (1986) 161 CLR 376...... 55
Re Dingjan; Ex parte Wagner ...... 56
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479...... 56
5B) Subject Matter Powers – The role of Purpose ...... 57
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29...... 57
5C) Subject Matter Powers ...... 57
D’Emden v Pedder (1904) 1 CLR 91...... 57
Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55...... 57
Burton v Honan (1952) 86 CLR 169...... 58
6A) Proportionality – Purpose Powers and Limitations ...... 59
6b) Purpose powers – proportionality ...... 60
6c) ‘Beyond’ purpose powers – SUBJECT MATTER incidental powers ...... 63
Nationwide News Pty Ltd v Willis (1992) 177 CLR 1...... 63
Leask v Commonwealth (1996) 187 CLR 579...... 64
Theory: distinguishing between subject matter and purpose powers ...... 65
Constitutional Limitations ...... 65
Inconsistency of Laws (Section 109) ...... 66
The meaning of ‘invalid’ and ‘prevail’ ...... 66
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Constitution s 109 ...... 66
The Tests of Inconsistency ...... 66
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 ...... 67
Ex parte McLean (1930) 43 CLR 472 ...... 67
Colvin v Bradley Brother (1943) 68 CLR 151 ...... 68
Telstra Corporation Ltd v Worthing (1997) 197 CLR 61...... 68
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47...... 68
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237...... 69
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330...... 70
Operational Inconsistency ...... 70
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322...... 71
Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392...... 71
Applying Test 3 ‘covering the field’ ...... 72
Relationships between the tests ...... 73
Manufacturing Consistency: Clearing the field ...... 75
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545...... 75
Viskauskas v Niland (1983) 153 CLR 280...... 75
University of Wollongong v Metwally (1984) 158 CLR 447...... 75
Momcilovic v The Queen (2011) 245 CLR 1 ...... 76
Class Notes ...... 77
Manufacturing Inconsistency ...... 77
West v Commissioner of Taxation (NSW) (1937) 56 CLR 657...... 77
Wenn v Attorney-General (Vic) (1948) 77 CLR 84...... 78
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453...... 78
Airlines of New South Wales v NSW (No 2) (Second Airlines Case) (1965) 113 CLR 54 ...... 78
Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595...... 79
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1...... 79
Week 6 – EXTERNAL AFFAIRS Power ...... 80
Constitution s 51 (xxix) ...... 80
1) Relationships with Other CouNTries ...... 80
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R v Sharkey (1949) 79 CLR 121...... 80
NSW v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337...... 80
Thomas v Mowbray (2007) 233 CLR 307...... 81
2) Matters External to Australia ...... 81
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501...... 81
Horta v Commonwealth (1994) 181 CLR 183...... 82
XYZ v Commonwealth (2006) 227 CLR 532 ...... 83
Pape v Commissioner of Taxation (2009) 238 CLR 1 ...... 83
3) International Law ...... 84
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501...... 84
Thomas v Mowbray (2007) 233 CLR 307 ...... 84
4) The implementation of treaties ...... 85
A) Initial Approach ...... 85
R v Burgess; Ex parte Henry (1936) 55 CLR 608...... 86
B) The Expanding Power ...... 87
Koowarta v Bjelke-Peterson (1982) 153 CLR 168 NO CLEAR MAJORITY ...... 87
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1...... 89
C) The Power Confirmed ...... 91
Richardson v Forestry Commission (1988) 164 CLR 261...... 91
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416...... 92
THE FUCKING TEST Conformity Doctrine ...... 93
International ‘Recommendations’ ...... 94
Pape v Commissioner of Taxation (2009) 238 CLR 1...... 94
Approaching a problem question (Alby’s notes) ...... 95
The Trade and Commerce Power ...... 96
Constitution s 51(i) ...... 96
The Definition of Trade and Commerce ...... 96
W & A McArthur Ltd v Queensland (1920) 28 CLR 530...... 96
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29...... 97
R v Burgess; Ex parte Henry (1936) 55 CLR 608 ...... 98
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Airlines of NSW Pty Ltd v New South Wales (No 2) (Second Airlines Case) (1965) 113 CLR 54...... 99
‘Incidental’ Aspect ...... 100
Wragg v NSW (1953) 88 CLR 353...... 100
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 ...... 101
Airlines of NSW v NSW (No 2) (1965) 113 CLR 54 ...... 102
Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492...... 102
Pape ...... 103
The Geographical Requirement ...... 103
The Corporations Power ...... 104
Constitution s 51(xx) ...... 104
Corporations Power: the Early Approach ...... 104
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 ...... 104
Corporations Power: the New Approach ...... 104
Strickland v Rocla Concrete Pipes (1971) 124 CLR 468 ...... 104
1) What is a Constitutional Corporation? ...... 105
Commonwealth v Tasmania (Tasmanian Dam Case) (1993) 158 CLR 1...... 107
2) What Activities or Affairs May be Regulated? ...... 108
Concrete Pipes Case ...... 108
Commonwealth v Tasmania (Tasmanian Dam Case) (1993) 158 CLR 1...... 108
Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) ...... 109
Re Dingjan; Ex Parte Wagner (1995) 183 CLR 323 ...... 109
NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1 ...... 110
NSW v Commonwealth (Incorporation Case) (1990) 169 CLR 482...... 111
The Trade and Commerce Power v cORPORATIONS POWER ...... 113
The Races Power ...... 114
Constitution s 51 (xxvi) ...... 114
Interpreting s 51(xxvi) ...... 114
‘Special Laws’ ...... 114
Koowarta v Bjelke-Peterson (1982) 153 CLR 168 – ...... 114
Tasmanian Dam Case (1983) 158 CLR 1 – ...... 115
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Native title act case Test ...... 116
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373...... 116
For the Benefit of a Race? ...... 117
Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (1998) 195 CLR 337...... 117
The Defence Power (NEW IN COURSE) ...... 121
Fundamental characteristics ...... 121
The Elasticity of the Defence Power & Judicial Notice ...... 122
Andrews v Howell (1941) 65 CLR 255...... 122
Stenhouse v Coleman (1944) 69 CLR 457...... 123
Defence power – WartimE ...... 123
Farey v Burvett (1916) 21 CLR 433 ...... 124
Dawson v Commonwealth (1946) 73 CLR 157...... 124
Victorian Chamber of Manufacturers v Commonwealth (Women’s Employment Case) (1943) 67 CLR 347...... 126
R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Victoria (1944) 68 CLR 485...... 127
Australian Woollen Mills Ltd v Commonwealth (1944) 69 CLR 476...... 127
Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR 161...... 128
Defence Power – Post-War and increasing tension ...... 128
R v Foster (1949) 79 CLR 43...... 128
Illawarra District Council v Wickham (1959) 101 CLR 467...... 129
Defence power – Peace time ...... 129
Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1...... 130
Attorney-General (Vic) v Commonwealth (Clothing Factory Case) (1935) 52 CLR 533 ...... 130
Defence Power – Cold War ...... 131
Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1...... 131
Marcus Clark & Co Ltd v Commonwealth (Capital Issues Case) (1952) 87 CLR 177...... 136
Defence power - Terrorism and National Security ...... 137
Thomas v Mowbray (2007) 233 CLR 307...... 137
CLASS NOTES: ...... 140
The Taxation Power ...... 141
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Is it a Tax? ...... 142
General Approach ...... 142
Positive Requirements – Principlies ...... 142
1. By a Public Authority ...... 142
2. For a Public Purpose ...... 143
3. Exaction Must be Compulsory...... 143
4. Exaction Must be Enforceable by Law ...... 143
Positive Requirements – Cases ...... 144
Air Caledonie International v Commonwealth (1988) 165 CLR 462...... 144
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480...... 145
Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555...... 146
Luton v Lessels (2002) 210 CLR 333...... 147
Roy Morgan Research Pty Ltd v Federal Commission of Taxation (2011) 244 CLR 97 ...... 148
Negative Requirements ...... 149
Constitution s 53 ...... 149
Harper v Victoria (1966) 114 CLR 361 ...... 149
Parton v Milk Board (Vic) (1949) 80 CLR 229 ...... 150
Air Caledonie International v Commonwealth (1988) ...... 150
Airservices Australia v Canadian International Ltd (1999) 202 CLR 133 ...... 151
Consequences ...... 152
Not a Tax? ...... 153
Justiciability and scope ...... 153
Class NOtes ...... 154
The Grants Power ...... 155
General approach ...... 155
Limitations on Grants power ...... 155
1) Discrimination (between states) ...... 155
Victoria v The Commonwealth (Federal Roads case) (1926) ...... 156
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735...... 156
WR Moran Pty Ltd (1939) v Deputy Federal Commissioner of Taxation (NSW) ...... 156
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2) States as a ‘Mere Agent’ ...... 157
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR 559...... 157
Victoria v Commonwealth (Second Uniform Tax case) (1957) ...... 158
3) Coercion (bad) vs Inducement (allowed) ...... 158
South Australia v Commonwealth (First Uniform Tax case) (1942) ...... 158
Victoria v Commonwealth (Second Uniform Tax case) (1957) ...... 159
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR 559...... 161
4) Financial Need ...... 162
Victoria v Commonwealth (Second Uniform Tax case) (1957): ...... 162
5) Implied Immunities ...... 162
South Australia v Commonwealth (First Uniform Tax case) Indirect effects ...... 162
Victoria v Commonwealth (Second Uniform Tax case) (1957): ...... 162
Summary - Constitutional Limitations...... 163
General Notes ...... 163
Theory on rights and the law ...... 165
Express Guarantee – Trial by Jury ...... 166
The Constitution, section 80 – Trial by jury...... 166
Summary of Section 80 issues...... 166
Summary of s 80 authorities...... 167
1) When does s 80 apply? ...... 168
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556...... 168
Kingswell v The Queen (1985) 159 CLR 264...... 169
Cheng v The Queen (2000) 203 CLR 248...... 170
2) When s80 applies, what is the substance of the s80 guarantee ...... 171
Brown v The Queen (1986) 160 CLR 171 – When s80 applies, it cannot be waived ...... 171
Cheatle v The Queen (1993) 177 CLR 541 – When s 80 applies, jury decision must be unanimous ...... 172
Re Colina; Ex parte Torney (1999) 200 CLR 386...... 172
Brownlee v The Queen (2001) 207 CLR 278 – jury can separate after they retire to consider their verdict ...... 173
Cheung v The Queen (2001) 209 CLR 1 – Determining facts for sentencing reasons can be left to the judge (instead of Jury) ...... 173
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Fittock v The Queen (2003) 217 CLR 508; Ng v The Queen (2003) 217 CLR 521 – using reserve jurors 173
R v LK (2010) 241 CLR 177 – Finality of s 80 jury’s verdicts not entrenched ...... 173
OTHER notes ...... 173
Express Guarantee – Freedom of Religion ...... 175
The Constitution, section 116 – Commonwealth not to legislate in respect of religion...... 175
Krygger v Williams (1912) 15 CLR 366 [Free-exercise Clause] .... 175
Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses Case) (1943) 67 CLR 116...... 176
‘What is a religious institution’? ...... 177
Church of The New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120...... 177
Commonwealth not to be involved in ‘running’ the religion ...... 178
Attorney-General (NSW) v Grant (1976) 135 CLR 587 – no involvement in ‘running’ the religion ...... 178
‘Purpose’ of the legislation (Split majority) ...... 178
Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 [Free exercise clause] ...... 178
Non-ESTABLISHMENT CLAUSE ...... 180
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559...... 181
Freedom of interstate trade and commerce – s 92 ...... 183
The Constitution, section 92 – trade within the Commonwealth to be free...... 183
Early approach – Individual rights theory (OVERRULLED) ...... 183
Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1...... 183
Commonwealth v Bank of NSW (Bank Nationalisation Case) [1950] AC 235...... 184
New Approach to s 92 ...... 185
Cole v Whitfield (1988) 165 CLR 360. [Rejection of the individual rights theory] ..... 185
Developments since Cole v Whitfield ...... 191
Bath v Alston Holdings (1988) 165 CLR 411...... 191
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436...... 193
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418...... 195
Betfair Pty Ltd v Racing New South Wales (2012) 286 ALR 221 ...... 197
Sportsbet v New South Wales (2012) 286 ALR 404 ...... 198
Prohibiting interstate lotteries and s 92...... 198
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Summary: The State of the Law at Present...... 199
IMPLIED FREEDOM OF POLITICAL COMMUNICATION ...... 200
Implications in the constitution ...... 200
The ‘Murphy’ Catalyst ...... 200
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54...... 200
Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556...... 200
A Freedom of Political Communication ...... 201
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1...... 201
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106...... 202
Common law of Defamation: Constitutional Solution ...... 204
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104...... 204
Common law of Defamation: Common Law Solution (Post-Theophanous) ...... 205
McGinty v Western Australia (1996) 186 CLR 140...... 205
Levy (1997) ...... 205
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520...... 206
Modern Jurisprudence: The Test in Lange Applied ...... 206
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520...... 207
Brown v Classification Review Board (1998) 154 ALR 67. Applying test from Lange ...... 208
Coleman v Power (2004) 220 CLR 1...... 208
Wotton v Queensland (2012) ...... 209
Monis v The Queen (2013) (Page 1311) ...... 210
Unions NSW v New South Wales (not in reading list) ...... 211
Mulholland v Australian Electoral Commission (2004) 220 CLR 181 (not in reading list) ...... 212
APLA Ltd v Legal Services Commissioner of NSW (2005) 224 CLR 322 (not in reading list) ...... 212
McCloy (not in reading list) ...... 213
Class Notes – Political communication ...... 213
Judicial Power and Detention ...... 214
The Separation of Powers Doctrine ...... 214
Issues ...... 214
Outcomes ...... 214
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Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs ...... 214
Kruger v Commonwealth (Stolen Generations Case) ...... 215
Al-Kateb v Godwin (2004) 219 CLR 562...... 218
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486...... 224
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1...... 224
Plaintiff M47-2012 v Director General of Securities (2012) ...... 227
Control Order ...... 228
Thomas v Mowbray (2007) 233 CLR 307...... 228
Post-Thomas Cases ...... 231
Incompatibility Doctrine (Test for state Courts) ...... 232
Applying the Incompatibility Doctrine ...... 233
Kable v DPP (NSW) (1996) ...... 233
Baker v The Queen (2004) 223 CLR 513...... 236
Fardon v AG (Queensland) (2004) 223 CLR 575...... 238
Bikie Cases ...... 241
Class Notes ...... 244
The Federal Compact – Melbourne Corporation principle ...... 246
Exam Summary ...... 246
Background ...... 246
The Melbourne Corporation Principle ...... 247
Melbourne Corporation v Commonwealth (1947) 74 CLR 31...... 247
Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353 [Ignore this case – not important] ... 248
Restatement: Two Principles ...... 250
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1...... 250
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192...... 250
Re Lee; Ex parte Harper (1986) 160 CLR 430...... 251
Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249...... 251
Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188...... 252
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416...... 253
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Two-Limbs no longer independent Modern Approach ...... 253
Austin v Commonwealth (2003) 215 CLR 185...... 253
Clarke v Commissioner of Taxation (2009) 258 ALR 623...... 254
Fortescue Metals Group Ltd v Commonwealth (2013) 300 ALR 26 ...... 255
NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1. (YOU CAN IGNORE THIS) .. 255
Implied freedom from arbtrary detention ...... 256
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 .. 256
Week 13 Class Notes ...... 257
Revision ...... 258
Last Class – revision ...... 259
Past Exam – Defence / Political comm / Religion / exteral affairs ...... 260
Mid-semester exam (external Affairs) ...... 263
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FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW
THE CONSTITUTION
Federalism is a key concept to the Constitution: the separation between federal and state governments, each with their own power. The Constitution is concerned with the separation of power doctrine – this is important to limit the power each head of government has Express human rights in the constitution: Right to trial by jury, Freedom of religion, Right to vote Implied rights: Implied freedom of political communication, Implied right to vote
What this course is about It is concerned with s 51 of the Constitution: the areas in which Parliament has the power to legislate o The powers in s 51 are NOT exclusive o The powers in s 52 ARE the exclusive Limits of power Judicial power and detention
Main types of Constitutional Case Type 1: challenge to validity of Cth legislation on the basis that it is outside head of power Type 2: challenge to validity of Cth legislation on the basis that, although characterisable as falling within a head of power, it violates an express or implied limitation on the Cth’s legislative power. Type 3: challenge to exercise of Cth executive power on the basis that it is contrary to Constitution. Type 4: challenge to validity of State legislation on the basis that it is inconsistent with valid Cth legislation or falls within exclusive Cth power.
o These types of case may be combined with each other. o Person seeking to invalidate Cth law may combine types 1 and 2. o Person seeking to invalidate State legislation may have to overcome defence based on type 1 or 2 before arguing type 4. o Challenge may come from individuals aggrieved by law or from other governments in federal structure. o Challenge may be to entire statute or just particular provisions.
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Validity of State legislation
1. State Constitutions confer plenary power on State Parliaments, and these powers continue under s 106 of the Constitution. Thus State legislation on any topic will prima facie be valid.
UNLESS
2. One of the following circumstances exists a) The State legislation is on a topic which is reserved to the exclusive legislative power of the Cth, namely The seat/places of Cth (s 52(i)) or the Cth public service (s 52(ii) Imposition of customs and excise duties (s 90) Defence (ss 51(vi) and 114) Coinage (ss 51(xii) and 115) b) The Cth has legislated over a topic over which it has been given power and that legislation is inconsistent with the State legislation (s 109 renders State legislation inoperative to the extent of the inconsistency)
c) The state legislation infringes one of the express or implied freedoms contained in the Constitution , namely Interstate trade and commerce (s 92) Discrimination on grounds of residence of a State (s 117) Implied freedom of political communication Ch III’s protection of the separation of judicial power of the Cth insofar as it applies to States (Kable)
Validity of Commonwealth legislation
1. Legislation must fall within a topic over which the Cth has been granted legislative authority (an enumerated power in s 51, Cth exclusive power s 52, appropriations s 81, duties of customs and excise s 90, grants s 96, the Territories s 122).
2. Assuming that the legislation does relate to a topic above, it may nevertheless be invalid if it infringes an express or implied prohibition or freedom on the Constitution Prohibition of geographic discrimination in tax laws (s 51(ii)) Requirement of just terms of compensation upon acquisition of property (s 51(xxxi)) Right to trial by jury for indictable offences against Cth (s 80) Prohibition of interference with interstate commerce and intercourse (s 92) Prohibition of geographic preference in trade, commerce and revenue laws (s 99) Freedom of religion (s 116) Prohibition on discrimination on grounds of residence of a State (s 117) Implied rights to political communication and not to be subject to arbitrary detention The Melbourne Corporation principle Ch III’s prohibition of interference with separation of judicial power
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FUNDAMENTALS OF CONSTITUTIONAL LAW
Overview of Principles
1. Where it is legitimate to do so, a Cth law, rather than being invalidated, should be read down to remain intra vires. A law may be legitimately read down pursuant to s 15A of the Acts Interpretation Act only where there is a single, straightforward manner of doing so, consistent with the underlying Parliamentary purpose
2. Reading down and/or severance solutions proscribed by the impugned statute itself will not of themselves determine the High Court’s course of action: Dowal v Murray (Stephen J)
Reading down and severance are types of remedy that may be used by the High Court to avoid declaring a provision invalid, or to declare only so much of a statute invalid as is found to be in conflict with the Constitution. These techniques were developed in the Bootmakers’ Case (No 2) (1910) HCA with the purpose of giving effect, as far as possible, to Parliament’s intention.
This is reinforced by section 15A of the Acts Interpretation Act 1901 (Cth): “Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power”.
Difficulties in reading down: Menzies J in Concrete Pipes Case (1971)
That section does not enable a law with respect to one matter to be construed as a law with respect to another matter in order to bring it within legislative power. The section does not authorize the judicial conversion of one law into another law.
It is not open to ascribe fresh purposes to it, find another possible relevance to the subject. To do so would mean giving the provision a new operation for the purpose of saving it
3. If the applicant before the HCA wishes the court to overrule itself, it must satisfy the two step test: (1) seek leave as per Evda (2) ‘evaluation of factors’ (see below, Hospital Contribution Fund (Gibbs J) and Wurridjal (French CJ))
PRECEDENT AND OVERRULING
Should the HC be bound by its own decisions as per the ‘stare decisis’ principle?
Stare decisis and the HCA: The High Court in Australia is the ‘apex’ court and accordingly has a supervisory responsibility for the sound development of the law. Whilst the doctrine of stare decisis would ordinarily mandate that a court must follow its own decisions, most ‘apex’ courts have concluded that they should not be so bound. o Isaacs J made it clear that the courts are not bound see Engine Drivers Case below For the doctrine to apply, the HCA would need to develop rigid practice of abiding by its past decisions. Compare to reading down and severance
Stare decisis and the HOL: An exception to this was found in the United Kingdom; the House of Lords was bound to follow its own decisions, ironically, because of the House’s decision in London Tramways Co v London County Council [1898] AC 375. This created an interesting paradox: the rule which bound the
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house could only be abolished by overruling Tramways, which the judgment itself made impossible to do. The rule was eventually changed in a ‘Practice Statement’ [1966] 1 WLR 1234. This gives weight to the idea that rules of precedent are only rules of practice.
Australian Agricultural Co v Federated Engine-Drivers & Firemen’s Association (‘Engine-Driver’s Case’) (1913) 17 CLR 261 The HCA may overrule a prior decision where it regards it to be manifestly wrong Isaacs J o A court is not, as a general rule, bound to follow its own previous rulings. It is bound only to follow the rulings of superior courts. o A prior decision does not constitute the law, but is only a judicial declaration as to what the law is o If an ordinary judicial declaration created an irreversible ruling, it would be tantamount to a legislative act. o ‘It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right.’ o ‘In my opinion, where the prior decision is manifestly wrong, then, irrespective of consequences, it is the paramount and sworn duty of this Court to declare the law truly.’
The HCA’s current approach to overruling a past decision involves a two-stage procedure:
1. The party seeking overruling must formally request leave to do so: Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311. a. NB: Deane J dissented on this point, holding that counsel does not require permission of the court to present arguments relevant to their case 2. In considering whether to overrule a past decision, High Court will look at: a. how embedded that decision has become in the law; b. whether there were differences of opinion among the majority; c. whether the decision had produced no useful result, only leading to inconvenience; and d. whether it had been extensively relied on: Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56-8 (Gibbs CJ).
John v Federal Commissioner of Taxation (1989) 166 CLR 417 Overruling a ruling on a constitutional matter: Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ: Reinforced that said in Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 o The earlier decision did not rest upon a long line of well-established authority. o If there is difference between the reasons of the justices which constituted the majority in one of the earlier decisions. If the earlier decision had not achieved a useful result, instead resulting in inconvenience. o If the earlier decisions had not been acted on in a way which would militate against reconsideration.
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Wurridjal v Commonwealth (2009) 237 CLR 309. No error requirement in overruling prior HCA decisions: When deciding whether to overrule a decision, rather than identifying criteria such as “manifestly” or “clearly” wrong, the tribunal should weight factors for and against overruling. This should be informed by a conservative cautionary principle to ensure continuity of the law. The identification of error in a prior decision of the High Court is not a necessary precondition to overruling that decision. To say that one interpretation (or constructional choice) is preferable to another is not always to say that the alternative [in this case, previous] interpretation is wrong. Reasonable minds can differ on a point of constitutional interpretation. Chief Justice Dixon in Attorney-General v Schmidt (1961) CLR 361 at 370 once spoke how earlier decisions may be ‘weakened’ by subsequent decisions, or in light of experience
Cf. Mason J in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 13: ‘If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute’.
Leslie Zines, The High Court and the Constitution (Butterworths, 4 ed 1997)
Stare decisis in constitutional decisions: At the level of the High Court, the principle of stare decisis is regarded as having less force than in other areas of the law because the parliament cannot rectify the consequences of a decision of the High Court on the Constitution. While Parliament can pass amendments to clarify ordinary legislation in non-constitutional matters, the Parliament cannot correct erroneous constitutional interpretations (other than through s 128). Some jurists (eg Barwick CJ and Murphy J) have expressed the view that no judicially devised formula can be used as a substitute for the Constitution. Others raise the concern that departing from principles and doctrines established in judicial declarations would undermine the authority of the court. However, the view was expressed in Hughes and Vale Pty Ltd v New South Wales (No 1) (1953) 87 CLR 49 at 76 (McTiernan J), that the needs of succeeding generations may justify departure from an established principle. ‘Fresh interpretations of grants of legislative power and of constitutional guarantees may be needed to new or changed conditions’.
Example of overruled decision:
- Breavington v Godleman (1988) 169 CLR 41: Deane, Wilson and Gaudron JJ argued that s 118 of the Constitution required that when an action was brought in any other Australian jurisdiction, the outcome must be governed by the lex loci deliciti (the law of the place of the tort). - McKain v RM Miller & Co (SA) Pty Ltd (1991) 174 CLR 1: the majority did not accept this approach. - Stevens v Head (1993) 176 CLR 433: Deane and Gaudron JJ adhered to their position in Breavington v Godleman. - John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503: Gleeson CJ, McHugh, Gaudron, Gummow and Hayne JJ effectively overruled McKain v Miller and Stevens v Head. They commented (at 533) that ‘reconsideration… is not precluded by the fact that McKain and Stevens have not stood for very long’
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Stevens v Head (1993) 176 CLR 433 Deane J A majority decision of the High Court should generally be treated by an individual member of the Court as being binding upon him/her, as on all other Australian courts. However, in matters of constitutional importance, the members of the High Court are obliged to adhere to what they see as the requirements of the Constitution. [Deane J adhered to the views which he expressed in Breavington v Godleman.] [NB In Coleman v Power (2004) 220 CLR 1 at 109, Callinan J quoted Deane J in Stevens v Head in support of the view that where an individual justice of the HCA is conscientiously of the view that a prior judicial pronouncement of the Court is incompatible with the Constitution, the absence of any challenge to that pronouncement, and the fact that it is recent and unanimous, may not relieve him/ her of the necessity of deciding whether he/ she is bound not to follow it.] Gaudron J If s 118 is to have constitutional significance in the context of covering cl 3, whereby the people of Australia were united in a Federal Commonwealth, it must be interpreted to mean that the laws of the state which govern an act as it happens also govern the legal consequences of that act. The view of the majority in McKain is fundamentally wrong. NOTE: Gaudron stuck to her guns about this, and in the case John Pfeiffer highlighted above, her view was adopted by the majority.
Queensland v Commonwealth (Second Territory Senators Case) (1977) 139 CLR 585 Departure from precedent cannot be justified merely by a change in the bench Summary: This case concerned whether it was appropriate to review a constitutional case that was decided two years earlier, and which had not conflicted with, or been followed by, any other case. o The issue of territorial representation in the Senate had been decided in Western Australia v Commonwealth (First Territory Senators case) (1975) 134 CLR 201 (interpretation of ss 7, 122 of the Constitution). o The issue was re-litigated after Barwick CJ expressly invited such litigation in A-G (NSW); Ex rel McKellar v Commonwealth (1977) 139 CLR 527, 532, taking advantage of impending retirement of McTiernan J. o New judge, Aikin J (replacing McTiernan J), voted with Barwick CJ, but 2 of the original 3- judge minority, Gibbs & Stephen JJ, abided by precedent set in earlier case The Second Territory Senators Case is understood as entrenching the tradition that High Court will not overrule a decision merely because the composition of the Court has changed – but this is almost inevitably the reason why past decisions are overruled. It seems to depend on how blatantly attributable to changed composition of Bench the overruling is. Barwick CJ The HCA ‘should not be bound in point of precedent, but only in point of conviction by its prior decisions.’ In the case of the constitution, it is the duty of each Justice to give effect to what they believe the Constitution provides. The area of constitutional law is pre-eminently an area where the paramount consideration is the maintenance of the constitution itself The Constitution may, itself, be rigid but that does not require rigidity on the part of those interpreting it. If convinced of error, the duty to express what is the proper construction is paramount.
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The recency of the Court’s former decisions is not a quality which precludes critical examination of those decisions, or indeed, departure from them. Gibbs J The statement of Isaacs J in the Engine-Driver’s case1 does not give a Justice carte blanche to disregard the decisions and reasoning of his predecessors. It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. However, it may be said that on the one hand, the court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been reaffirmed more than once. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed. The only reason for reconsidering the decision in Western Australia v Commonwealth, given only two years ago, is that in the interim period, the composition of the HC changed ‘Changes in the number of appointed Justices can never of themselves furnish a reason for review of a previous decision’: The Tramways Case (No 1) (1914) 18 CLR 54 (Barton J). Still less should the replacement of one Justice by another (ie changes in the composition of the bench) in itself justify the review of an earlier decision. Therefore I am bound to follow the earlier decision in Western Australia v Commonwealth, although in my view it was wrongly decided. NB: such precepts have not always been observed. In Re Patterson Patterson; Ex parte Taylor (2001) 207 CLR 391, McHugh, Kirby and Callinan JJ joined Gaudron J, who had dissented alone in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 in overruling Nolan. However, in February 2003, Gaudron J resigned from the bench and was replaced by Heydon J. Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, Heydon J joined Gleeson CJ, Gummow and Hayne JJ in overruling Patterson and reinstating Nolan (McHugh, Kirby, Callinan JJ in dissent).
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 Kirby J (minority) ‘This court should not use chance happenings affecting its composition to change its recent statements of the governing law’. The rule of obedience to a majority holding of the Court on a particular point of law has not been uniformly treated as applying in the same way to a constitutional ruling. If precedent is not afforded due weight, every time the composition of the bench changes, all constitutional matters may be submitted for redetermination until the dissenter’s view is accepted. Gleeson CJ, Gummow and Hayne JJ The Court should be taken as having departed from a previous decision (particularly one involving the interpretation of the Constitution) only where that which purportedly has been overthrown has been replaced by some fresh doctrine. ‘On that approach to the matter…Patterson plainly fails to pass muster’. The ruling of the 4 judges in Re Patterson had not been ‘authoritative’, as the 4 judges had given different emphases to the factual elements on which the application of their ruling depended.
US position on ‘prospective overruling’: The explicit recognition in the US Supreme Court that overruling changes the law, in a way that is incompatible with the declaratory theory of law, has led to acceptance of the
1 ‘Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law.’
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