Laws1116 Condensed Summary


  • Foundation (Agreement of Colonies to unite – union not a division)
  • Representative System (Responsible Government – Bicameral at both levels)
  • Division of Power (via enumerated Cth powers – states surrender specific powers)
  • Economic Union (Free trade throughout Australia)
  • Amendment of the Constitution (dual majority requirement)
  • Influenced primarily by Swiss/US systems – Germany a cautionary tale

Federal Influences

  • Montesquieu – Separation of Powers (French Philosopher)
  • Madison – nature of a Federal Cth (US founder, nationalist turned federalist)
  • Bryce – factual analysis of US system (British jurist, historian, and politician – primary Australian influence)
  • Freeman – History of Federation (British historian)
  • Dicey – Lawyer’s take on rule of law/parliamentary sovereignty (British lawyer/professor)

Australian Influences

  • Just – overview of federalism for the conferences – commissioned by Clark
  • Clark – wrote the first draft constitution, influenced by US
  • Baker – wrote other guides, more critical of responsible government/separation of powers
  • Griffith CJ – first CJ of the HC, most respected lawyer during federation conferences
  • Isaacs and Higgins – 4th/5th members of the HC, fervent nationalists, lost most of their arguments leading up to federation, got revenge in Engineer’s Case
  • Quick and Garran – authors of first annotated guide to the constitution – originally nationalists who developed more federal leanings over process

How is Federalism embodied in the Australian Constitution?

  • Pre-amble
  • Senate (24 - representatives of the state) & House (7 - of the people)
  • Alteration of the Constitution (128 - dual majority)
  • Continuation of State Powers (106-108)
  • Specific Enumeration powers surrendered to the Cth (51, 52)
  • Cth laws *only* prevail to the extent of inconsistency (109)

Reserved Powers (Rejected)

  • Implied Immunity of Cth from States (D’emden v Pedder – Can’t tax Cth Postmaster)
  • Implied Immunity of State from Cth (Railway Servants – Industrial Relations/Arbitration power can’t be used when State is employer)
  • Narrow Interpretation of Heads of Power (R v Barger – Tax scheme designed to implement labor laws outside of Cth power held unconstitutional)

Implied State Immunity (Modern Version)

  • Reserved Powers Doctrine rejected (Engineer’s Case – industrial relations dispute – arbitration power COULD bind governments, all heads of power to be read broadly)
  • Limited form of immunity re-introduced (Melbourne Corporations – 2 limbs, discrimination against states via special burdens/disabilities, and prohibition against general laws that would destroy/curtail the function/existence of the states)
  • Special discriminatory Burden (Queensland Electricity Commission v Cth – arbitration power specifically targeted at Queensland industrial dispute)
  • Significantly curtail the function of the states (Re Australian Education Union – key/high level government employees unable to be affected by Cth contract law protection)
  • Discrimination must go beyond geographic/historic considerations and actually affect the political functions of the state (Native Title Act – WA subjected to greater burden due to larger amount of crown land)
  • Transition to Single Limb (Austin v Cth – Cth tax change could not affect State Judge remuneration – combines both limbs into a single ‘substantially affect the ability of the state(s) to function as government(s)’ test)

Inconsistency between Cth and State laws (s 109)

  • Requires a direct conflict on an area both can legislate – only affects the state law to the extent of the inconsistency
  • Inconsistent law goes dormant, rather than being struck down
  • Can be a direct conflict of duties (R v Licensing Court of Brisbane – can’t have State referenda on the same day as Cth election)
  • Can be an indirect modification of Cth granted rights/liberties (majority in Clyde Engineering v Cowburn – pay deductions allowed under Cth law upheld)
  • Can completely obliterate state law where Cth attempts to ‘cover the field’ (Isaacs in Cowburn)
  • Must be sufficiently detailed to indicate it intended to ‘cover the field’ (Viskauskas v Niland – detailed Cth discrimination legislation held to overrule state)
  • Can not retroactively rule they did NOT wish to ‘cover the field’ (University of Wollongong v Metwally – Cth attempt to retroactively restore state racial discrimination law struck down in Viskauskas v Niland overruled)

Corporations Power (s 51(xx))

  • Only applies to foreign, trading, or financial corporations (‘constitutional corporations’)
  • Considered a ‘person’ power – can make ANY law that affects corporations, even those that would normally be outside the enumerated heads of power.
  • Cannot legislate for formation of corporations or abolition of corporations (Incorporations Case – wording of the section prevents laws regarding formation directly, cannot legislate for foreign corporations formation, banking power specifically mentioned formation)
  • Kind of corporation can be identified based on purpose it was set up for (only really relevant for new corporations), primary activity (St George County Council), or ‘substantial activity’ (Modern approach – Adamson’s case and State Superannuation Board)
  • Foreign: Separate legal entity formed outside the Cth
  • Trading: Any corporation with ‘substantial’ trading activities, even if they are not its primary purpose (Adamson’s Case – football club held to be trading corporation) or even if they only traded intrastate (Concrete Pipes case – intrastate trading not exempted post Engineers case)
  • Financial: Any corporation with ‘substantial’ financial activities, even if they are not its primary purpose (State Superannuation Board v Trade Practices Commission – Superannuation Board held to be a financial corporation)
  • Traditionally required a distinctive character test – law relates to the trading/financial/foreign aspects of the corporations it affects (rejected in Work Choices)
  • Law is valid as long as its targeted at ‘constitutional corporations’ (Work Choices – any kind of law may be passed under corporations power, including industrial regulation)
  • DOES still have upper limits (Davies v Cth – word ‘200’ cannot be monopolized within the bounds of the corporations power)

External Affairs Power (s 51 (xxix))

  • Purposive power – any law can be enacted for the purpose of ‘external affairs’, subject to the other limitations of constitution – eg. Bills of Attainder (Polyukhovich)
  • Applies to matters external to Australian territories (Polyukhovich – retrospective extra-territorial war crimes legislation held to be a valid application of external affairs power)
  • Supports legislation regarding foreign relations (R v Sharkey – relations with other dominions held to be within the external affairs power)
  • Supports implementation of international treaties outside of Cth heads of power (Tasmanian Dams – world heritage treaty upheld)
  • MAY extend to a more generic ‘matters of international concern’ (mentioned in obiter in Polyukhovich and Tasmanian Dams)

Taxation (s 51 (ii), ss 53, 55, 81, 83, 90, 96, 99 plus others)

  • Taxation laws CAN NOT discriminate between states (ss 51 (ii), 99) but can take local conditions into account (Elliot v Cth)
  • Must be compulsory – traditionally required money, public authority, and public purpose (Matthews v Chicory Marketing Board definition) but have been held to merely require a compulsory extraction as ordered by legislation/regulation (Air Caledonie v Cth – per person tax levied on passengers to be collected by the air line still a tax, Australian Tape Manufacturers v Cth – tax given directly to Copyright society still held to be a tax)
  • Must be for a public purpose, not a fee for service– if charge is substantially related to the services provided, it is not a tax (Air Services Australia v Canadian Airlines – challenged air services fees as taxes)
  • Can only deal with ONE type of taxation (one subject and type (general, excise, customs) per Act (s 55, State Chamber of Commerce and Industry v Cth – multiple types of fringe benefits are still ‘one type’ if Parliament thinks so)
  • Senate cannot originate or amend tax laws (s 53)
  • States CAN NOT charge excises, but can get away with charging licensing fees based on previous years sales for at least some products (Dennis Hotels v Victoria – licensing fees on past years sale of alcohol valid) provided they are not TOO high (Ha v NSW – 100% license fee held to actually be an excise)
  • Can regulate economic behavior as much as it wants, as long as it can still be characterized as a ‘tax’ (Fairfax v Commissioner of Taxation – extra tax if at least 30% of securities weren’t invested in specified funds)
  • s 96 grants can be used for purposes outside of the Cth heads of power (The AAP Case – grants to regional councils upheld)
  • Sufficiently vague budgetary considerations are political concern, not a judicial matter (Combet v Cth – ‘departmental expenditure’ allocated to WorkChoices advertising)

Explicit Constitutional Rights (ss51 (xxxi), 80, 116, 117)

  • Constitution consists of 4 explicit ‘rights’, all of which are narrow, and most of which can be trumped by ‘adapted and appropriate’ legislation
  • Right to compensation for acquisitions (s 51 (xxxi))
    • Only binds the Cth – States can take property on any terms, except at the command of the Cth (Magennis v Cth – state acquisition of land for soldier resettlement) – private arrangements with states are fine (Pye v Cth – as per Magennis, but sneakier)
    • Acquisition – any non-consensual compulsory transfer of ownership for a permanent or indefinite period (Minister for Army v Dalziel – temporary seize of a car park during wartime) but property must actually change hands (Murphy Ores v Cth – revoking export permissions not an acquisition)
    • Property – can be physical property (Johnson Fear v Cth – printing press seized), shares (Bank of NSW v Cth – attempts to control banks during bank nationalisation), common law rights (Georgidas v Australian and Overseas Telecommunications) or even interest on a payment owed by the Cth (Marine Board v Minister of State for Navy – interest on payment for a seized boat)
    • Limitations on use of property are unlikely to be acquisitions (Tasmanian Dams) unless they amount to frequent and prolonged exclusive use (Cth v WA – military drills could potentially acquire mining rights to unusable territory)
    • Just terms decided based on a fair hearing before an independent tribunal
  • Trial by Jury on Indictment (s 80)
    • Only applies to serious (indictable) Cth criminal offenses – very narrow
    • Accused cannot opt for a trial with a judge but no jury (Brown v R)
    • Can be avoided by making offenses non-indictable (Kingswell v R)
    • Finding of guilt by jury MUST BE UNANIMOUS (Cheatle v R)
    • No appeal from a jury acquittal – only from a jury conviction (Cheatle v R)
  • Non Discrimination on Religious Grounds (s 116)
    • Prohibits discrimination amongst religions (establishment clause) – but only applies to tests for Cth employees, mandatory religious observance, or actual establishment of an official religion (DOGS case – held that funding religious schools did not discriminate)
    • Prevents Cth prohibiting free exercise of religion (free exercise clause) – but can be overridden by general laws that are ‘appropriate and adapted’ to a non discriminatory purpose (Krygger v Williams – requiring religious non-combatants to participant in mandatory military drills held not to discriminate)
    • Very broad definition of “religion” – includes religious practices, and the right to not believe in a religion (Jehovah’s Witnesses Case)
  • Non Discrimination on Grounds of Residency (s 117)
    • Only applies to interstate discrimination, not intrastate, and not general inequality
    • Prevents requirements to continue working in a particular state (Street v Queensland Bar Association)
    • Prevents limitations based on a trial being heard in a state other than where an accident occurred (Goryl v Greyhound – restriction on compensation to victims from out of state held unconstitutional)
    • Does not extend to regulation based on registration, only residency (Sweedman v Transport Accident Commission – extra charges for accidents involving cars not registered in Victoria did not trigger it)

Implied Constitutional Rights

  • Ban on Bills of Attainder – implied from separation of powers (Polyukhovich)
  • Right to a Fair Trial – implied from Ch III structure (Dietrich v R – serious criminal cases require the defendant have legal assistance to be fair/just)
  • Executive cannot deprive life, liberty, or property for punitive/judicial reasons – implied by separation of powers (Communist Party v Cth – held Governor General could not dissolve the party, and Act was unconstitutional)
  • Freedom of Political Communication – implied from ss 7, 24
    • Born in ACTV and Nationwide News cases – government held to be limited to not passing laws that interfered with political communication
    • Extended to granted limited freedom of speech for political information purposes (Lange v ABC – additional constitutional defense to defamation)
    • Could include actions that constituted ‘political communication’ (Levy v Victoria – Donald Duck shooting case)
    • Extends to state law as well as Federal (ACTV)
    • Content (the ideas communicated) restrictions are much more difficult to justify than Mode (method of communication) restrictions – it’s the message, not the medium that is protected (ACTV)
    • Both the object of the communication and the manner of communication much be consistent with the representative principles (Coleman v Power – Vagrancy Act read down to not interfere with political communication)
  • Freedom of Political Association – extension of Freedom of Political Communication implied in obiter in ACTV

Freedom of Interstate Trade (s 92)

  • Was a horrible mess before Cole v Whitfield unanimously introduced a ‘new’ test based on discriminatory burdens of a protectionist kind (Cole v Whitfield – Tasmanian crayfish regulation)
  • Discrimination can occur on the face of the law or on the facts of the case (Cole v Whitfield)
  • Establishing that a law is protectionist is best accomplished by demonstrating that the stated aims could be achieved in a less discriminatory manner (Castlemaine Tooheys – recyclable beer, Betfair – betting exchanges)
  • Discriminatory laws can avoid being classified as protectionist if they are proportionate to achieving a non-protectionist goal, and appropriate and adapted to that end (Cole v Whitfield, Castlemaine Tooheys)
  • Whether the law itself is desirable IS within the scope of the High Court to question (Betfair)