Constitutional law [Sixth edition.] 9780409341898, 0409341894

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LEXISNEXIS CASE SUMMARIES

CONSTITUTIONAL LAW Sixth Edition

David C Price Barrister, 7th Floor, Wentworth Chambers, Sydney

LEXISNEXIS BUTTERWORTHS Australia 2016

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Series: Notes: Subjects: Dewey Number:

Price, David. Constitutional Law. 6th edition. 9780409341898 (pbk). 9780409341904 (ebk). LexisNexis Case Summaries. Includes index. Constitutional law — Australia. 342.94

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis Formerly Butterworths Student Companions series – First edition 1995; Second edition 1998; Third edition 1999; Fourth edition 2004, reprinted 2007 and 2009; Fifth edition 2010. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Goudy and Helvetica LT Std. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Contents Case Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Case Name Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd Air Caledonie v Commonwealth Airlines of New South Wales Pty Ltd v New South Wales (No 2) Airservices Australia v Canadian Airlines International Ltd Albarran v Companies Auditors and Liquidators Disciplinary Board Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees Al-Kateb v Godwin Allders International Pty Ltd v Commissioner of State Revenue Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers’ Case) AMS v AIF Anderson’s Pty Ltd v Victoria Ansett Transport Industries (Operations) Pty Ltd v Wardley APLA Ltd v Legal Services Commissioner of New South Wales Arnold v Minister Administering the Water Management Act 2000 Assistant Commissioner Condon v Pompano Pty Ltd

16 17 18 19 20 21

22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Attorney-General (Cth) v Alinta Ltd Attorney-General (NSW) v Commonwealth Savings Bank Attorney-General (NT) v Emmerson Attorney-General (QLD) v Riordan Attorney-General (Vic); Ex rel Black v Commonwealth (the DOGS Case) Attorney-General (WA); Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission Austin v Commonwealth Re Australasian Meat Industry Employees’ Union; Ex parte Aberdeen Beef Co Pty Ltd Australian Boot Trade Employees’ Federation v Whybrow & Co Australian Capital Television Pty Ltd v Commonwealth (the Political Advertising Ban Case) Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd Australian Communist Party v Commonwealth Re Australian Education Union; Ex parte Victoria Australian Education Union v General Manager of Fair Work Australia Australian National Airways Pty Ltd v Commonwealth Australian Tape Manufacturers Association Ltd v Commonwealth Bank of New South Wales v Commonwealth (the Bank Nationalisation Case) Barley Marketing Board (NSW) v Norman Bath v Alston Holdings Pty Ltd Bennett v Commonwealth Betfair Pty Ltd v Racing New South Wales

37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57

Betfair Pty Ltd v Western Australia Bodruddaza v Minister for Immigration and Multicultural Affairs Bolton v Madsen Bourke v State Bank of New South Wales Re Boyne Smelters Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia Brandy v Human Rights and Equal Opportunity Commission Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 2) Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) Castlemaine Tooheys Ltd v South Australia Cheatle v The Queen Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs Clarke v Commissioner of Taxation Clyde Engineering Co Ltd v Cowburn Cockle v Isaksen Cole v Whitfield (the Tasmanian Lobster Case) Coleman v Power Colvin v Bradley Bros Pty Ltd Combet v Commonwealth

58 59 60 61 62 63 64 65 66 67

68 69 70 71 72 73 74 75 76 77 78 79 80 81 82

Commissioner of Taxation v Clyne Commonwealth v Australian Capital Territory (the Same Sex Marriage Case) Commonwealth v Bogle Commonwealth v Cigamatic Pty Ltd Commonwealth v Health Contribution Fund of Australia Commonwealth v Mewett Commonwealth v Tasmania (the Tasmanian Dams Case) Commonwealth v Western Australia Commonwealth v WMC Resources Ltd Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd Croome v Tasmania Cunliffe v Commonwealth Dao v Australian Postal Commission Dennis Hotels Pty Ltd v Victoria Deputy Commissioner of Taxation v State Bank of New South Wales Dickenson’s Arcade Pty Ltd v Tasmania Dickson v The Queen Re Dingjan; Ex parte Wagner Re Director of Public Prosecutions; Ex parte Lawler Dobinson v Crabb Duncan v Independent Commission Against Corruption Duncan v New South Wales Re Dymond Egan v Willis

83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108

Essendon Corp v Criterion Theatres Ltd Fairfax v Federal Commissioner of Taxation Fardon v Attorney-General (Qld) Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Ltd Fencott v Muller Forge v Australian Securities and Investments Commission Fortescue Metals Group Ltd v Commonwealth Georgiadis v Australian and Overseas Telecommunications Corp Giris Pty Ltd v Federal Commissioner of Taxation Goryl v Greyhound Australia Pty Ltd Gosford Meats Pty Ltd v New South Wales Gould v Brown Grollo v Commissioner of Australian Federal Police Gypsy Jokers Motorcycle Club Inc v Commissioner of Police Ha v New South Wales Harper v Minister for Sea Fisheries Harrington v Lowe Harris v Caladine Haskins v Commonwealth Hc Sleigh Ltd v South Australia Health Insurance Commission v Peverill Hematite Petroleum Pty Ltd v Victoria Hilton v Wells Hogan v Hinch Horta v Commonwealth Huddart Parker Ltd v Commonwealth

109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133

Huddart Parker & Co Pty Ltd v Moorehead ICM Agriculture Pty Ltd v Commonwealth Inglis v Commonwealth Trading Bank of Australia International Finance Trust Co Ltd v New South Wales Crime Commission Jacobsen v Rogers John Holland Pty Ltd v Victorian Workcover Authority JT International SA v Commonwealth Re Judiciary and Navigation Acts (the Advisory Opinions Case) Jumbunna Coal Mine NL v Victorian Coal Miners’ Association Kable v Director of Public Prosecutions (NSW) Kartinyeri v Commonwealth (the Hindmarsh Island Bridge Case) K-Generation Pty Ltd v Liquor Licensing Court Kirk v Industrial Court of New South Wales Koowarta v Bjelke-Petersen Kruger v Commonwealth (the Stolen Generations Case) Kuczborski v Queensland Lane v Morrison Lange v Australian Broadcasting Corporation Langer v Commonwealth Leask v Commonwealth Re Lee; Ex parte Harper Leeth v Commonwealth Levy v Victoria Logan Downs Pty Ltd v Queensland Love v Attorney-General (NSW)

134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158

Mabo v Queensland (No 1) Re McBain; Ex parte Australian Catholic Bishops Conference (the Artificial Insemination Case) McCloy v New South Wales MacCormick v Federal Commissioner of Taxation McGinty v Western Australia Ex parte McLean McWaters v Day Re Macks; Ex parte Saint Magaming v The Queen Matthews v Chicory Marketing Board Melbourne Corporation v Commonwealth (the State Banking Case) Mellifont v Attorney-General (Qld) Metal Trades Employers’ Association v Amalgamated Engineering Union MG Kailis (1962) Pty Ltd v Western Australia Minister of State for The Army v Dalziel Momcilovic v The Queen Monis v The Queen Moorgate Tobacco Co Ltd v Philip Morris Ltd Muldowney v South Australia Mulholland v Australian Electoral Commission Murphyores Inc Pty Ltd v Commonwealth Mutual Pools & Staff Pty Ltd v Commissioner of Taxation Mutual Pools & Staff Pty Ltd v Commonwealth Nationwide News Pty Ltd v Wills New South Wales v Commonwealth (the Hospital Benefits Case)

159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181

New South Wales v Commonwealth (the Incorporation Case) New South Wales v Commonwealth (the Seas and Submerged Lands Case) New South Wales v Commonwealth (the Wheat Case) New South Wales v Commonwealth (the Work Choices Case) Nintendo Co Ltd v Centronics Systems Pty Ltd Northern Suburbs General Cemetery Reserve Trust v Commonwealth Northern Territory v Gpao Osborne v Commonwealth O’Sullivan v Noarlunga Meat Ltd O’Toole v Charles David Pty Ltd PvP Pape v Commissioner of Taxation (the Tax Bonus Case) Parton v Milk Board (Vic) Permanent Trustee Australia Ltd v Commissioner of State Revenue (Victoria) Peterswald v Bartley Pirrie v McFarlane Plaintiff S156/2013 v Minister for Immigration and Border Protection Plaintiff S157/2002 v Commonwealth Pollentine v Bleijie Polyukhovic v Commonwealth Port MacDonnell Professional Fishermen’s Association Inc v South Australia Precision Data Holdings Ltd v Wills Queensland v Commonwealth

182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202

Queensland Electricity Commission v Commonwealth Queensland Nickel Pty Ltd v Commonwealth R v Australian Industrial Court; Ex parte Clm Holdings Pty Ltd R v Barger R v Coldham; Ex parte Australian Social Welfare Union (the CYSS Case) R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union R v Davison R v Federal Court of Australia; Ex parte Western Australian National Football League Inc (Adamson’s Case) R v Hughes R v Joske; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation R v Joske; Ex parte Shop Distributive and Allied Employees’ Association R v Kelly; Ex parte Victoria R v Kirby; Ex parte Boilermakers’ Society of Australia (the Boilermakers’ Case) RvL R v LK R v Ludeke; Ex parte Queensland Electricity Commission R v Portus; Ex parte Australian Air Pilots’ Association R v Spicer; Ex parte Australian Builders’ Labourers’ Federation R v Trade Practices Tribunal; Ex parte St George County Council R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (the Tasmanian Breweries Case) Rainsong Holdings Pty Ltd v Australian Capital Territory

203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225

Redfern v Dunlop Rubber Australia Ltd Registrar of The Accident Compensation Tribunal v Federal Commissioner of Taxation Residual Assco Group Ltd v Spalvins Richardson v Forestry Commission (Tas) Roach v Electoral Commissioner Rowe v Electoral Commissioner Roy Morgan Research Pty Ltd v Commissioner of Taxation Secretary, Department of Health and Community Services v JWB (Marion’s Case) SGH Ltd v Commissioner of Taxation Smith v ANL Ltd Smith Kline & French Laboratories (Australia) Ltd v Commonwealth South Australia v Commonwealth South Australia v Commonwealth (the First Uniform Tax Case) South Australia v Totani Sportsbet Pty Ltd v New South Wales State Chamber of Commerce and Industry v Commonwealth Re State Public Services Federation; Ex parte AttorneyGeneral (WA) State Superannuation Board (Vic) v Trade Practices Commission Stephens v West Australian Newspapers Ltd Street v Queensland Bar Association Strickland v Rocla Concrete Pipes Ltd Sue v Hill Svikart v Stewart

226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250

Sweedman v Transport Accident Commission Sykes v Cleary (No 2) Tajjour v New South Wales Telstra Corporation Ltd v Commonwealth Theophanous v Commonwealth Theophanous v Herald & Weekly Times Ltd Thomas v Mowbray Re Tracey; Ex parte Ryan Trade Practices Commission v Tooth & Co Ltd Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd Re Tyler; Ex parte Foley Union Steamship Co of Australia Pty Ltd v King Unions NSW v New South Wales University of Wollongong v Metwally Vasiljkovic v Commonwealth Victoria v Commonwealth Victoria v Commonwealth (the Pay-Roll Tax Case) Victoria v Commonwealth (the Second Uniform Tax Case) Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan Visnic v Australian Securities and Investments Commission Wainohu v New South Wales Re Wakim; Ex parte McNally Waterside Workers’ Federation of Australia v Jw Alexander Ltd Watson v Marshall Wenn v Attorney-General (VIC)

251 252 253 254 255 256 257 258 259 260 261 Index

Western Australia v Chamberlain Industries Pty Ltd (the Receipts Duty Case) Western Australia v Commonwealth (the Native Title Act Case) Western Australia v Hamersley Iron Pty Ltd White v Director of Military Prosecutions Williams v Commonwealth (No 1) Williams v Commonwealth (No 2) Wilson v Minister for Aboriginal and Torres Strait Islander Affairs Wotton v Queensland Wragg v New South Wales Wurridjal v Commonwealth XYZ v Commonwealth

[page 1]

Constitutional Law [1] ACTORS AND ANNOUNCERS EQUITY ASSOCIATION OF AUSTRALIA v FONTANA FILMS PTY LTD (1982) 150 CLR 169; 40 ALR 609 High Court of Australia Corporations power — Regulation of natural persons FACTS Fontana Films produced motion pictures and employed actors to do so. Actors Equity, a trade union, demanded that Fontana agree to only employ union members. When Fontana refused to agree, the Union declared that no member of the Union would work for Fontana and exerted pressure on theatrical agents not to supply actors to Fontana. Fontana was then forced to cease production of all films due to its failure to obtain actors. Fontana commenced proceedings seeking an injunction pursuant to the Trade Practices Act 1974 (Cth), to restrain the Union from hindering or preventing the supply of actors by theatrical agents. ISSUE Were ss 45D(1) (which prohibited secondary boycotts) and 45D(5) (which deemed conduct of union officials to be conduct of the union) of the Act valid laws with respect to trading corporations? HELD Section 45D(1) was a valid exercise of the power in s 51(xx) of the Constitution as it protected the trading activities of trading corporations. The deeming provision in s 45D(5) was invalid as it was properly characterised as a law with respect to trade unions, not trading corporations. ‘It does not follow that s 51(xx) empowers the Parliament to pass a law prohibiting any conduct that might damage a trading corporation formed

within the limits of the Commonwealth. However, if the prohibition is directed to conduct that is calculated to damage the trading activities of the trading corporation there seems no reason to doubt that it is within the scope of the power’, per Gibbs CJ at CLR 183.

[2] AIR CALEDONIE v COMMONWEALTH (1988) 165 CLR 462; 82 ALR 385 High Court of Australia Tax laws — Requirement for single subject of taxation FACTS The Migration Amendment Act 1987 (Cth) added s 34A to the Migration Act 1958 (Cth) to provide that passengers over 12 years of age travelling to Australia on an overseas flight were liable to pay a fee for immigration clearance, which was to be collected by the airline operator. [page 2] The airline operator was liable to pay the amount to the Commonwealth whether or not it had collected the amount from the passenger. ISSUE Was the Migration Amendment Act invalidated by the first limb of s 55 of the Constitution? HELD The Migration Amendment Act was a law imposing taxation. Accordingly, the first limb of s 55 of the Constitution operated to invalidate it as the Migration Act dealt with matters other than the imposition of taxation. ‘If an amending Act purports to insert a provision imposing taxation in an existing valid Act which contains provisions dealing only with other matters, it seeks to bring about something which the Constitution directly and in terms forbids and which is not within the competence of the Parliament to achieve’, at CLR 471.

[3] AIRLINES OF NEW SOUTH WALES PTY LTD v NEW SOUTH WALES (No 2) (1965) 113 CLR 54 High Court of Australia Trade and commerce power — Regulation of wholly intrastate activity FACTS The plaintiff was granted a licence under the Air Navigation Regulations 1947 (Cth) for the carriage of passengers and goods between Sydney and Dubbo. The State Transport (Co-ordination) Act 1931 (NSW) and the Air Transport Act 1964 (NSW) prohibited the carriage of passengers and goods within New South Wales unless the person, aircraft and route were licensed. ISSUE Were the New South Wales Acts invalid due to their inconsistency with the Air Navigation Regulations? Did the power in s 51(i) of the Constitution authorise the Commonwealth to regulate wholly intrastate air navigation? HELD The danger to the physical safety of interstate and international aircraft posed by intrastate aircraft using the same airspace justified the Commonwealth in regulating those intrastate aircraft. ‘[A] Federal law which provides a method of controlling regular public transport services by air with regard only to the safety, regularity and efficiency of air navigation is a law which operates to protect against real possibilities of physical interference [with] the actual carrying on of air navigation, and therefore is, in every application that it has, a law “with respect to” such air navigation as is within Federal power, and none the less so because it is also legislation with respect to that intrastate air navigation which is not within the power’, per Kitto J at 116–17. [page 3]

[4] AIRSERVICES AUSTRALIA v CANADIAN AIRLINES INTERNATIONAL LTD (1999) 202 CLR 133; 167 ALR 392 High Court of Australia Acquisition of property — Statutory lien to secure unpaid charges FACTS The Civil Aviation Authority (‘CAA’) was authorised by the Civil Aviation Act 1988 (Cth) to impose charges on the users of civil aviation services. The Act also created a lien, in favour of the CAA, over the aircraft used to incur the charges, to secure the payment of those charges. A company that operated a domestic passenger airline went into liquidation owing a substantial amount of unpaid charges to the CAA. The CAA sought to enforce liens over aircraft operated by the company. The lessors of the planes paid the charges under protest to secure the return of the aircraft. ISSUE Did the Act effect an acquisition of property other than on just terms? HELD The provisions of the Civil Aviation Act imposing the charges and creating the lien were not laws with respect to the appropriation of property pursuant to s 51(xxxi) of the Constitution. They were appropriate and adapted to the purpose of securing the payment of the charges, the imposition of which was a valid law made under s 51(i) of the Constitution.

[5] ALBARRAN v COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD (2007) 231 CLR 350; 234 ALR 618 High Court of Australia Judicial power of the Commonwealth — Suspension of registration of liquidator

FACTS Section 1292(2) of the Corporations Act 2001 (Cth) conferred power on the Board to cancel or suspend the registration of a liquidator. The Board made an order suspending the registration of Albarran. In separate proceedings, the Australian Securities and Investments Commission applied to the Board for an order suspending the registration of Gould. Both liquidators sought to restrain the Board from taking any further steps. ISSUE Did the power in s 1292(2) involve an exercise of the judicial power of the Commonwealth? HELD The Board did not settle disputes about existing rights and it lacked power to enforce its decisions. Nor did the Board adjudicate guilt [page 4] or inflict punishment. Accordingly, the power conferred on the Board by s 1292(2) of the Corporations Act was not the judicial power of the Commonwealth.

[6] Re ALCAN AUSTRALIA LTD; Ex parte FEDERATION OF INDUSTRIAL, MANUFACTURING AND ENGINEERING EMPLOYEES (1994) 181 CLR 96; 123 ALR 193 High Court of Australia Conciliation and arbitration power — Definition of industrial dispute FACTS The Federation served two demands on Alcan and other employers. The first demand was that an employer, at the request of an employee, deduct the Union dues from the employee’s pay and forward the amount to the Federation. The second demand was that the wages of each employee who elected to join the Federation be increased by an amount

equal to the Federation’s dues. The employers rejected the demands, and the Federation notified the Australian Industrial Relations Commission of the existence of a dispute. The Commission held that the demands did not give rise to an industrial dispute. ISSUE Did the demand give rise to an industrial dispute? HELD The phrase ‘industrial dispute’ in s 51(xxxv) of the Constitution is to be given its popular meaning. A dispute will only be an ‘industrial dispute’ if it involves matters pertaining to the relationship between employers and employees. In this case, the subject matter of the dispute concerned employees in their capacity as Union members, not as employees. Further, the claim did not fall within the statutory definition merely because it was accompanied by a claim for a wage increase equivalent to the dues to be deducted.

[7] AL-KATEB v GODWIN (2004) 219 CLR 562; 208 ALR 124 High Court of Australia Separation of powers — Detention of illegal immigrants FACTS Sections 189 and 196 of the Migration Act 1958 (Cth) required the detention of an unlawful non-citizen until the person was removed or deported from Australia. Section 198 of the Act required such a person to be removed from Australia as soon as reasonably practicable. [page 5] Al-Kateb arrived in Australia without a visa. He applied for a protection visa but it was refused. He then requested that he be removed from Australia. It was not possible to remove him from Australia as attempts to obtain international co-operation to facilitate his removal were not successful.

ISSUE Were ss 189, 196 and 198 invalid on the basis that they contravened Ch III of the Constitution? HELD Sections 189, 196 and 198 of the Migration Act did require that AlKateb be detained notwithstanding he would not be removed from Australia in the foreseeable future. The provisions of the Migration Act did not contravene Ch III of the Constitution as the detention was not punitive but was to separate unlawful non-citizens from the Australian community until they were removed from Australia.

[8] ALLDERS INTERNATIONAL PTY LTD v COMMISSIONER OF STATE REVENUE (1996) 186 CLR 630; 140 ALR 189 High Court of Australia Commonwealth places — Lease from Commonwealth FACTS The appellant leased premises from the Federal Airports Commission at Tullamarine Airport, which was a ‘place acquired by the Commonwealth’ for a public purpose within s 52(i) of the Constitution. The respondent assessed the lease as subject to stamp duty in Victoria. ISSUE Did s 52(i) of the Constitution operate to exempt the lease from stamp duty? HELD It is expressly stated in s 52(i) that the Commonwealth Parliament has the exclusive power to legislate in respect of places acquired by the Commonwealth for public purposes. Therefore, from ‘the date of the acquisition the only laws that may be enacted by a legislature with respect to the place are federal, for this portion of the legislative power is, by s 52(i), reserved exclusively to the federal Parliament’, per McHugh, Gummow and Kirby JJ at ALR 220. The use of the premises for a private business did not mean that the land ceased to be a place acquired by the Commonwealth for public purposes, as once land has been acquired for public purposes, provided

it remains in the ownership or possession of the Commonwealth, it is subject to s 52(i) of the Constitution. [page 6]

[9] AMALGAMATED SOCIETY OF ENGINEERS v ADELAIDE STEAMSHIP CO LTD (THE ENGINEERS’ CASE) (1920) 28 CLR 129 High Court of Australia Commonwealth–State relations — Rejection of doctrine of reserved State powers FACTS The claimant was a national trade union which served a log of claims on employers throughout Australia for increased wages and improved conditions. Among the employers who were served with the log of claims were Western Australian Government enterprises. The Society began proceedings in the Commonwealth Arbitration Court seeking to resolve the dispute. The Conciliation and Arbitration Act 1904 (Cth) gave that Court jurisdiction to prevent and settle all industrial disputes extending beyond the limits of any one State, including disputes in industries carried on under the control of a State or public authority. ISSUE Did the Parliament have power to make laws binding on the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one State? HELD The Act was a valid exercise of the power in s 51(xxxv) of the Constitution, and there was no basis on which to exclude the States from the operation of the Act. ‘[I]t is beyond any doubt that the doctrine of “implied prohibition” can no longer be permitted to sustain a contention, and so far as

any recorded decision rests upon it, that decision must be regarded as unsound’, per Knox CJ, Isaacs, Rich and Starke JJ at CLR 160.

[10] AMS v AIF (1999) 199 CLR 160; 163 ALR 501 High Court of Australia Freedom of interstate trade and commerce — Movement of people between States and Territories FACTS A child was born to parents living in the Northern Territory. They never married and subsequently separated. Both of the parents returned to live in Perth, with the child residing with the mother. The mother subsequently proposed to return to Darwin. On the application of the father, the Family Court of Western Australia made orders pursuant to the Family Court Act 1975 (WA) restraining the mother from changing the child’s residence from Perth. The mother appealed to the Full Court of the Supreme Court of Western Australia, which set the order aside. The father then appealed to the High Court. [page 7] ISSUE Did s 92 of the Constitution operate to prevent the Family Court of Western Australia from making orders restraining the mother from changing the child’s residence from Perth? HELD The practical operation of the order made by the Family Court of Western Australia was to restrict the movement of the mother from Western Australia to the Northern Territory. As that impediment was greater than what was reasonably required to achieve the objects of the Family Court Act, the order was liable to be set aside as infringing s 92 of the Constitution.

[11] ANDERSON’S PTY LTD v VICTORIA (1964) 111 CLR 353 High Court of Australia Duties of excise — Definition FACTS The Stamps Act 1958 (Vic) imposed a tax on hire-purchase agreements and credit purchase agreements. The tax was levied on the vendor of goods and calculated on the amount of credit provided. The plaintiffs carried on business as retailers of furniture and domestic appliances. They were assessed as liable to pay the tax. ISSUE Was the Stamps Act invalid for imposing a duty of excise contrary to s 90 of the Constitution? HELD The Act did not impose a duty of excise within s 90 as it did not select conduct being a step in the production, manufacture or distribution of goods as the criterion of liability. ‘[I]n the end what must be decided is that the tax is in substance a tax upon the relevant step. That being the central question in a controversy as to the nature of the tax, it will not, in my opinion, necessarily be resolved by the form of the tax or by identifying what according to that form, the legislature has made the criterion of its imposition’, per Barwick CJ at 365.

[12] ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD v WARDLEY (1980) 142 CLR 237; 28 ALR 449 High Court of Australia Inconsistency between Commonwealth and State laws — No intention to cover the field FACTS The Equal Opportunity Act 1977 (Vic) prohibited employers from discriminating against any person on the ground of sex in making

[page 8] offers of employment. The Equal Opportunity Board ordered Ansett to employ Wardley as a pilot. Ansett claimed that the Act was inconsistent with the Airline Pilots Agreement 1978, which had the same force as an award of the Commonwealth Conciliation and Arbitration Commission. The Agreement authorised an employer to dismiss a pilot by seven days’ notice in writing during the first six months of employment. Ansett argued that the Agreement gave it an unqualified right to dismiss its pilots. ISSUE Was the Act inconsistent with the Agreement within s 109 of the Constitution? HELD The Act was not inconsistent with the Agreement, as the Agreement did not cover the field, nor was there any direct collision. The provisions of the Agreement were intended to operate subject to the general law, which included the Act. ‘The question as a whole resolves itself, in the end, into a search for legislative intent. While the Agreement and the Act each deals with aspects of the engagement and dismissal of employees, they are essentially dissimilar both in character and in general content. The Act gives legislative effect throughout the Victorian community to a broad social policy concerned with the status of women in that community’, per Stephen J at CLR 248.

[13] APLA LTD v LEGAL SERVICES COMMISSIONER OF NEW SOUTH WALES (2005) 224 CLR 322; 219 ALR 403 High Court of Australia Rights and freedoms — Advertising of legal services prohibited FACTS The Legal Profession Amendment (Personal Injury Advertising) Regulation 2003 (NSW) prohibited the advertising of legal services for

personal injury cases. APLA was an incorporated legal practice that wished to engage in advertising of the type prohibited. ISSUE Did the Regulation infringe the implied constitutional freedom of communication? HELD The Regulation did not infringe the implied constitutional freedom of communication in relation to government and political matters because it did not, in its terms, prohibit discussion of such matters. As the Regulation was not discriminatory or protectionist towards interstate trade and commerce and as it did not unduly burden interstate trade and commerce, it was not contrary to s 92 of the Constitution. The Regulation was not inconsistent with any federal law and so was not invalidated by [page 9] s 109 of the Constitution. The effective exercise of the judicial power of the Commonwealth does not depend upon unrestricted communication between legal practitioners and the public. The Regulation was, therefore, not contrary to Ch III of the Constitution.

[14] ARNOLD v MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 (2010) 240 CLR 242; 263 ALR 193 High Court of Australia Acquisition of property — Cancellation of statutory licences FACTS Arnold held licences issued under the Water Act 1912 (NSW) that entitled him to extract groundwater to irrigate his property. The Water Management Act 2000 (NSW) provided for the replacement of the licences under the Water Act with new licences that reduced the amount of water he could extract. The National Water Commission Act 2004 (Cth) established

the National Water Commission which provided financial assistance to States and Territories to assist with the management and regulation of water resources. ISSUE Did the cancellation of the licences constitute an acquisition of property in contravention of s 51(xxxi) of the Constitution? Arnold also argued that the National Water Commission Act was invalid for infringing s 100 of the Constitution. HELD Applying ICM Agriculture Pty Ltd v Commonwealth, the cancellation of the licences under the Water Act was not an acquisition of property within s 51(xxxi) of the Constitution. The National Water Commission Act did not contravene s 100 of the Constitution because the subject of the licences was groundwater and not rights to use ‘the water of rivers’.

[15] ASSISTANT COMMISSIONER CONDON v POMPANO PTY LTD (2013) 252 CLR 38; 295 ALR 638 High Court of Australia Judicial power of the Commonwealth — characteristics of Court to act fairly and impartially

Essential

FACTS The Criminal Organisation Act 2009 (Cth) empowered the Supreme Court of Queensland to declare, on the application of the Commissioner of Police, that an organisation was a ‘criminal organisation’. [page 10] In making a declaration in respect of the respondents, the Court relied on information which had been declared to be ‘criminal intelligence’ which was precluded from disclosure by the Act.

ISSUE Was the Act invalid for conferring powers on the Supreme Court that were inconsistent with the requirements of Ch III of the Constitution? HELD The impugned provisions were not invalid. The Court retained its capacity to act fairly and impartially in considering whether to declare information to be ‘criminal intelligence’ and whether to make a criminal organisation declaration. The provisions did not impair the defining characteristics of the Court or confer functions upon it inconsistent with the requirements of Ch III of the Constitution.

[16] ATTORNEY-GENERAL (CTH) v ALINTA LTD (2008) 233 CLR 542; 242 ALR 1 High Court of Australia Judicial power of the Commonwealth — Not exercised by Takeovers Panel FACTS Section 657A(2) of the Corporations Act 2001 (Cth) conferred power on the Takeovers Panel to declare circumstances relating to the affairs of a company to be ‘unacceptable circumstances’. The Panel made such a declaration in relation to a merger between Alinta and AGL. ISSUE Was s 657A(2) invalid in conferring the judicial power of the Commonwealth on the Takeovers Panel? HELD The section did not confer judicial power on the Takeovers Panel. The making of a declaration did not involve the resolution of a controversy about an existing legal obligation. The fact that the Panel could not enforce its own orders pointed strongly against the power exercised being characterised as judicial.

[17] ATTORNEY-GENERAL (NSW) v COMMONWEALTH SAVINGS BANK

(1986) 160 CLR 315; 65 ALR 74 High Court of Australia High Court — Exclusive jurisdiction FACTS The State Bank of New South Wales brought proceedings in the Supreme Court of New South Wales against the Commonwealth Savings [page 11] Bank claiming that, under an agreement, it was entitled to half of the Savings Bank’s profits in New South Wales. The action was dismissed on the basis that the Savings Bank was being sued as a person on behalf of the Commonwealth and that the Judiciary Act 1903 (Cth) gave the High Court exclusive jurisdiction to hear the matter. ISSUE The State Bank and the Attorney-General for New South Wales each sought to have the proceedings in the New South Wales Court of Appeal removed into the High Court on the basis that the interpretation of the Constitution was involved. HELD A determination of the issues would require an interpretation of s 75(iii) and (iv) of the Constitution as the language of the Judiciary Act reflected those provisions of the Constitution. Accordingly, s 76(i) of the Constitution gave the High Court jurisdiction to remove the matter from the New South Wales Court of Appeal.

[18] ATTORNEY-GENERAL (NT) v EMMERSON (2014) 253 CLR 393; 307 ALR 174 High Court of Australia Judicial power of the Commonwealth — Not exercised by prosecutor to select charge — Forfeiture of property not

acquisition of property FACTS Section 36A of the Misuse of Drugs Act (NT) provided that the Supreme Court could declare a person to be a ‘drug trafficker’ if the person was convicted of three or more specified offences within a ten year period. Under s 94 of the Criminal Property Forfeiture Act (NT) property owned or controlled by a person declared to be a ‘drug trafficker’ was forfeited to the Government of the Northern Territory. The respondent was declared to be a drug trafficker. ISSUE Were ss 36A and 94 invalid on the basis that they contravened the principle in Kable v DPP (NSW)? Did those sections provide for the acquisition of property otherwise than on just terms? HELD The challenged provisions did not contravene the principle in Kable as they did not require the Supreme Court to give effect to any decision of the Executive. The fact that the DPP had a discretion as to whether it would apply for a declaration that a person be declared to be a drug trafficker did not render the provisions invalid. As the forfeiture of property was imposed as a punishment for crime, the impugned provisions did not constitute an acquisition of property. [page 12]

[19] ATTORNEY-GENERAL (QLD) v RIORDAN (1997) 192 CLR 1; 146 ALR 445 High Court of Australia Conciliation and arbitration power — Unrealistic and extravagant demands not fatal FACTS The Industrial Relations Commission made findings that industrial disputes existed in a number of matters. Appeals and applications were brought to challenge those findings.

ISSUE It was argued the claims were so unrealistic and excessive that they were not genuine. It was also argued that the logs of claims were sham devices to attract federal jurisdiction to purely intrastate industrial disputes. HELD While demands must be genuine, apparent extravagance in the demands made is not inconsistent with the reality or genuineness of those demands. It is also unnecessary for an organisation to insist that its demands be implemented immediately in order that they be bona fide. Instead, the operation of the ‘ambit’ doctrine not only promotes, but requires the making of, inflated demands in order to establish the margins of the dispute.

[20] ATTORNEY-GENERAL (VIC); Ex rel BLACK v COMMONWEALTH (THE DOGS CASE) (1981) 146 CLR 559; 33 ALR 321 High Court of Australia Commonwealth grants to States — Conditions able to be imposed FACTS The Commonwealth Parliament enacted a series of Acts that appropriated federal money for grants to the States for distribution to both government and non-government schools. ISSUE Declarations were sought that the Acts were invalid on the basis that financial assistance was not being granted to the States, but that they were being used as a mere channel for assistance to be given to school authorities, which was not within the Commonwealth’s competence. It was also argued that in making the grants to schools established by churches, the Acts contravened s 116 of the Constitution as laws establishing religion. HELD The Acts were valid laws under ss 96 and 116 of the Constitution. Section 96 permitted a grant of money through a State to third parties for a purpose beyond Commonwealth power. A law giving financial assistance to a church body was not a law establishing any religion.

[page 13]

[21] ATTORNEY-GENERAL (WA); Ex rel ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD v AUSTRALIAN NATIONAL AIRLINES COMMISSION (1976) 138 CLR 492; 12 ALR 17 High Court of Australia Trade and commerce power — Regulation of intrastate activities FACTS The Australian National Airways Commission was created by the Australian National Airlines Act 1945 (Cth) to carry passengers and goods between States or Territories or within Territories. In 1973, the Act was amended to include s 19B to enable the Commission to conduct intrastate services. The Commission proposed to commence a service between Perth and Darwin with an intermediate stop at Port Hedland. The stop was dictated by economic reasons. ISSUE The Attorney-General (WA), at the relation of Ansett who conducted a similar service, sought a declaration that s 19B was an invalid exercise of the power in s 51(i) of the Constitution on the basis that the power did not allow the regulation of intrastate trade and commerce. HELD Section 19B of the Act was not a valid exercise of the power in s 51(i) of the Constitution. The section could, however, be construed as confined to air transport between a Territory and other parts of Australia. Read in that narrow manner, s 19B was valid under the power conferred by s 122 of the Constitution.

[22] AUSTIN v COMMONWEALTH (2003) 215 CLR 185; 195 ALR 321

High Court of Australia Commonwealth–State relations governmental functions of States

—

Interference

with

FACTS The plaintiffs were State judicial officers, entitled to pensions payable from the consolidated revenue of the State in which they held office. They were not members of a superannuation fund and no contributions to any fund were made by them or on their behalf. They were assessed as liable to pay a superannuation guarantee surcharge imposed under federal legislation. ISSUE The plaintiffs argued that the federal legislation was constitutionally invalid by reason of it contravening the principle in Melbourne Corporation v Commonwealth by discriminating against the States or because it impermissibly interfered with the activities of the State. [page 14] HELD The federal legislation was invalid because of the disability or burden it imposed on the operations and activities of the States in determining the level of remuneration it would provide to its judicial officers.

[23] Re AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION; Ex parte ABERDEEN BEEF CO PTY LTD (1993) 176 CLR 154; 112 ALR 35 High Court of Australia Conciliation and arbitration power — Nexus provided by industry

FACTS The Union served a log of claims upon a number of employers in the meat processing industry in Queensland, South Australia and New South Wales. The log of claims sought payment of wages in accordance with a classification of work. Only a small number of the job classifications applied to meat processing establishments outside of New South Wales. The Industrial Relations Commission found that upon the employers’ rejection of the claims, a single industrial dispute existed. ISSUE The employers argued that there was not a single dispute, but many small disputes. HELD The existence of an identifiable industry may provide the nexus or unifying factor which combines in a single industrial dispute a number of demands made on behalf of a number of employees to a number of employers. Given the wider meaning of an ‘industrial dispute’ it may no longer be necessary to discern a particular industry before finding an industrial dispute within s 51(xxxv) of the Constitution. The mere fact that the dispute outside of New South Wales was smaller than the dispute within New South Wales did not indicate that the dispute was not genuine.

[24] AUSTRALIAN BOOT TRADE EMPLOYEES’ FEDERATION v WHYBROW & CO (1910) 11 CLR 311 High Court of Australia Conciliation and arbitration power — No power to make common rule FACTS The Commonwealth Court of Conciliation and Arbitration made an award in 1910 resolving a log of claims served on various [page 15]

employers in the boot making industry in New South Wales, Victoria, Queensland and South Australia. The Federation subsequently applied to the Court for an order under the Conciliation and Arbitration Act 1904 (Cth) that the award be declared to be a common rule of the industry. ISSUE A number of employers who were not party to the award proceedings objected to the application on the ground that s 51(xxxv) of the Constitution did not authorise the making of a common rule. HELD The conciliation and arbitration power is limited to authorising the making of an award binding the specific parties to a particular dispute. The Act, to the extent that it purported to authorise the declaration of a common rule applying to parties not involved in the making of the award, was invalid.

[25] AUSTRALIAN CAPITAL TELEVISION PTY LTD v COMMONWEALTH (THE POLITICAL ADVERTISING BAN CASE) (1992) 177 CLR 106; 108 ALR 577 High Court of Australia Rights and freedoms — Implied right of communication FACTS The Political Broadcasts and Political Disclosures Act 1991 (Cth) prohibited political advertisements on radio and television during Commonwealth, State, Territory and local government election periods. The Act defined a ‘political advertisement’ to mean any advertisement intended or likely to affect voting or that contained reference to, or comment on, the election concerned. The Act did not prevent a broadcaster from broadcasting an item of news or current affairs or comment on such an item. The Act also required broadcasters to provide free air time to a political party for its policy launch. ISSUE

Was the Act invalid for contravening an implied freedom of

communication? HELD The Act contravened the implied freedom of communication in relation to public and political discussion. ‘Freedom of communication … is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision’, per Mason CJ at CLR 140. [page 16]

[26] AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v TODAY FM (SYDNEY) PTY LTD (2015) 317 ALR 279 High Court of Australia Judicial power of the Commonwealth – Not exercised in determining breach of licence FACTS The hosts of a radio program posed as Queen Elizabeth II and Prince Charles in making a telephone call to a London hospital to seek information about the welfare of the Duchess of Cambridge, who was an inpatient at the hospital. An employee of the hospital believed the call was genuine and provided information. The respondent subsequently broadcast the telephone call without the consent of the hospital employee in breach of the Surveillance Devices Act 2007 (NSW). The appellant determined that, in the circumstances, the respondent had breached the terms of its broadcasting licence. ISSUE Did the Australian Communications and Media Authority Act 2005 (Cth), in authorising the appellant to determine whether there had been a breach of a licence, confer judicial power on the appellant? HELD The finding that the respondent had breached the Surveillance Devices Act did not resolve a controversy respecting pre-existing rights or

obligations. Instead, it was a step in the determination that the respondent had breached a condition of its licence which, in turn, was the basis on which the appellant could take enforcement measures. Accordingly, the Australian Communications and Media Authority Act did not confer judicial power on the appellant.

[27] AUSTRALIAN COMMUNIST PARTY v COMMONWEALTH (1951) 83 CLR 1 High Court of Australia Defence power — Use in peacetime FACTS The Communist Party Dissolution Act 1950 (Cth) purported to dissolve the Australian Communist Party and appoint a receiver to the Party’s property. The Act also made provision for any group or body not registered as an industrial organisation, which was affiliated with the Party, to be declared to be an unlawful association, where the Governor-General was satisfied that the group’s continued existence was prejudicial to the defence and security of the Commonwealth. [page 17] ISSUE The Party and several employee unions sought a declaration that the Act was beyond the scope of the Commonwealth’s power in s 51(vi) or from the interplay of ss 51(xxxix) and 61 of the Constitution. HELD The Act was ultra vires the power of the Commonwealth Parliament. In the existing state of peace, the defence power in s 51(vi) of the Constitution did not authorise the Act. Similarly, the express incidental power in ss 51(xxxix) and 61 did not authorise the Act as they did not prohibit specific acts or conduct but dealt directly with persons. Further, the recitals in the preamble could not operate to extend the application of

constitutional power however conclusive they were as to the purpose of the Act.

[28] Re AUSTRALIAN EDUCATION UNION; Ex parte VICTORIA (1995) 184 CLR 188; 128 ALR 609 High Court of Australia Commonwealth–State relations — Implied prohibition on interference with a State FACTS A number of proceedings had been commenced in the Australian Industrial Relations Commission by various federal unions of employees, seeking a finding of a dispute and for the making of a federal industrial award. The unions had served demands on States and Territories relating to the terms and conditions of employment of employees of governments and government agencies. The Commission made findings of a dispute under s 101 of the Industrial Relations Act 1988 (Cth), and in some proceedings made an interim award. ISSUE Victoria argued that the conciliation and arbitration power in s 51(xxxv) of the Constitution did not authorise the Commission to find that a dispute existed because there was an implied limitation on the exercise of Commonwealth legislative powers which prohibits interference with or curtailment of the governmental functions of the State, or with its capacity to function as a government. It was also argued that as the disputes were between the State and its agencies on one hand and their respective employees on the other, the industrial disputes in question were not disputes extending beyond the boundaries of any one State. HELD The action was premature, as the Commission had not advanced beyond the making of findings of an industrial dispute. It was no objection to the validity of those findings that the Commission lacked the power to make awards containing all of the provisions sought in the logs

[page 18] of claims. The fact that Victoria’s jurisdiction and activities were limited to its own boundaries did not prevent the disputes being part of a wider interstate dispute. The majority, at ALR 629, formulated the implied limitation on the Commonwealth’s power to interfere with the governmental capacity of the States, pursuant to the exercise of a specific legislative power as follows: ‘The limitation consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities (“the limitation against discrimination”) and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments’. They went on, at ALR 630, to hold that ‘critical to that capacity of a State is the government’s right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State’s rights in these respects would, in our view, constitute an infringement of the implied limitation.’

[29] AUSTRALIAN EDUCATION UNION v GENERAL MANAGER OF FAIR WORK AUSTRALIA (2012) 246 CLR 117; 286 ALR 625 High Court of Australia Judicial power of the Commonwealth — Not exercised by retrospective legislative validation of acts FACTS The Australian Principals Federation applied to the Australian Industrial Relations Commission in 2003 for registration under the Workplace Relations Act 1996 (Cth). The application was granted in 2006, over opposition from the appellant. In 2008, the registration was quashed by

an order of the Federal Court on the basis that the rules of the Australian Principals Federation did not provide for termination of the membership of people no longer eligible for membership. The Workplace Relations Act was amended and renamed the Fair Work Act 2009 (Cth) and s 26A was introduced which provided that any organisation purportedly registered prior to the enactment of the section, but whose registration was invalid because its rules did not terminate the membership of people no longer eligible for membership, was taken to have always been valid. ISSUE The appellant sought a declaration that s 26A was invalid on the basis that it impermissibly usurped or interfered with the exercise of federal judicial power contrary to Ch III of the Constitution. [page 19] HELD The Fair Work Act did not set aside the decision of the Federal Court that quashed the registration of the Australian Principals Federation. There is no interference with the judicial power of the Commonwealth if Parliament enacts legislation that attaches new legal consequences to an act or event previously determined not to attract such consequences. Accordingly, s 26A was not invalid.

[30] AUSTRALIAN NATIONAL AIRWAYS PTY LTD v COMMONWEALTH (1945) 71 CLR 29 High Court of Australia Trade and commerce power — Government participation in field of activity FACTS The Australian National Airlines Act 1945 (Cth) established a statutory commission to operate airline services between the States and Territories. The Act provided that where the Commission held a licence for

any particular interstate route, any other airline licence became inoperative, as long as the Commission provided an adequate airline service. ISSUE The plaintiff argued that s 51(i) of the Constitution contemplated the legislative regulation of overseas and interstate trade and commerce and not the entry of the Government itself into that field of activity. HELD The Act authorised the Government’s participation in interstate trade and commerce and was a valid exercise of the power in s 51(i) of the Constitution.

[31] AUSTRALIAN TAPE MANUFACTURERS ASSOCIATION LTD v COMMONWEALTH (1993) 176 CLR 480; 112 ALR 53 High Court of Australia Tax laws — Requirement for single subject of taxation FACTS The Copyright Amendment Act 1989 (Cth) purported to introduce a scheme for compensating copyright owners for the domestic copying of sound recordings. The Act required vendors of audio cassettes to pay a royalty to a collecting society on each tape sold or distributed. ISSUE The plaintiff brought proceedings on behalf of its members seeking a declaration that the Act was invalid on the basis that the royalty provisions were not laws with respect to copyright within s 51(xvii) of the [page 20] Constitution. The plaintiff also argued that the royalty scheme amounted to a tax and contravened s 55 of the Constitution, and that the scheme amounted to an acquisition of property other than on just terms as required by s 51(xxxi) of the Constitution. The Commonwealth denied that the

royalties were a tax as they were not collected by a public authority for public purposes on the basis that the royalties were not paid into the Consolidated Revenue Fund. HELD As the vendors of audio tapes did not receive any benefit from paying the levy, the royalties were, in fact, taxes. Accordingly, the imposition of a tax together with other matters in the Act contravened s 55 of the Constitution and was invalid. There is no requirement that an exaction must be paid into the Consolidated Revenue Fund in order for the levy to constitute a tax. As the royalty was a tax, there was no acquisition of property.

[32] BANK OF NEW SOUTH WALES v COMMONWEALTH (THE BANK NATIONALISATION CASE) (1948) 76 CLR 1 High Court of Australia Acquisition of property — Determination of amount of compensation FACTS The Banking Act 1947 (Cth) authorised the compulsory acquisition by the Commonwealth of shares in all private banks operating in Australia. The shares were to be vested in the Commonwealth Bank, which was required to assess and pay compensation to the former holders of the shares. The private trading banks were not wound up and the entity retained legal title to its assets, although the Commonwealth Bank was authorised to appoint new directors who were empowered to dispose of the business of the bank to the Commonwealth Bank. The Act provided that a dispossessed bank could bring proceedings against the Commonwealth Bank in a Federal Court of Claims, to be established by the Act. ISSUE The private banks and some of their shareholders sought a declaration that the Banking Act was invalid. It was asserted that the Act

effected an acquisition of property within s 51(xxxi) of the Constitution, and that the method of determining the level of compensation did not constitute ‘just terms’. The plaintiffs also argued that in compensation proceedings the Commonwealth Bank was a person sued on behalf of the Commonwealth and in so far as the Federal Court of Claims was given exclusive jurisdiction, the High Court’s jurisdiction conferred by s 75(iii) of the Constitution was invalidly ousted. [page 21] HELD The vesting of the shares in the Commonwealth Bank was an acquisition of property within s 51(xxxi). That section ‘is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognised at law or in equity and to some specific form of property in a chattel or chose in action similarly recognised, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property’, per Dixon J at 349. As the level of compensation was to be determined by nominees of the Commonwealth Bank, the Act did not provide for just terms. The Commonwealth Bank was a person sued on behalf of the Commonwealth in compensation proceedings within s 75(iii) of the Constitution. The Banking Act was invalid in purporting to give exclusive jurisdiction to the Federal Court of Claims. The Banking Act was enacted pursuant to the banking power not the corporations power in s 51(xx) of the Constitution. The corporations power could not be used to evade the prohibition on Commonwealth interference in State banking in s 51(xiii).

[33] BARLEY MARKETING BOARD (NSW) v NORMAN (1990) 171 CLR 182; 96 ALR 524 High Court of Australia Freedom of interstate trade and commerce — Test for

discriminatory burden FACTS The Marketing of Primary Products Act 1983 (NSW) authorised the Governor of New South Wales to transfer ownership of any barley grown in the State to the Board for marketing. The Act also declared invalid every contract for the sale of barley not made by the Board. Norman entered into a contract to sell his barley to a Victorian purchaser. ISSUE The Board sought a declaration that the contract was void. Norman argued that the Act infringed s 92 of the Constitution in that it prevented interstate purchasers from buying directly from the New South Wales producers. HELD The Act was valid as it did not impose a discriminatory burden of a protectionist kind. Although the purpose of the Act was to protect the barley industry in New South Wales, it did not do so by discriminating against commercial interests in other States. [page 22]

[34] BATH v ALSTON HOLDINGS PTY LTD (1988) 165 CLR 411; 78 ALR 669 High Court of Australia Freedom of interstate trade and commerce — Discrimination in protectionist manner FACTS The Business Franchise (Tobacco) Act 1974 (Vic) prohibited the sale of tobacco unless the seller was licensed. Licence fees were calculated on the value of the tobacco sold. Tobacco purchased from the holder of a wholesaler’s licence was to be disregarded in calculating the fee for retail licences. Alston Holdings carried on business as a retail tobacconist in Victoria, but did not possess a licence. It purchased tobacco products from a wholesaler in Queensland which were sold in January and February 1987.

Bath sought an injunction to restrain Alston from selling tobacco without a licence. ISSUE Did the licence fee contravene s 92 of the Constitution? Bath asserted that the Act was not discriminatory as it imposed a duty on all tobacco that came into Victoria. HELD The provision that exempted tobacco purchased from the holder of a Victorian wholesale licence from the tax was invalid as it discriminated against interstate trade in a protectionist manner. ‘[I]t is the effect of the tax on transactions in that market which is material. In this case, the effect is on the supply of goods to that market. The effect of an equivalent tax on transactions at another stage in the chain of distribution of the same goods or goods of the same kind is immaterial. That must be so unless s 92 permits the protection of an entire chain of distribution of goods within a State against competition from goods which might otherwise enter the chain from interstate. That proposition has only to be stated to be rejected. If that proposition were accepted, s 92 would present no impediment to the imposition of border taxes’, per Mason CJ, Brennan, Deane and Gaudron JJ at CLR 428–9.

[35] BENNETT v COMMONWEALTH (2007) 231 CLR 91; 235 ALR 1 High Court of Australia Territories power — Voting entitlements limited to citizens FACTS The Norfolk Island Act 1979 (Cth) created a locally elected legislative assembly for Norfolk Island. In 2004, the Act was amended, confining the rights to stand for election and to vote in elections to Australian citizens. [page 23]

ISSUE Were the 2004 amendments to the Norfolk Island Act authorised by s 122 of the Constitution? HELD The 2004 amendments were laws for the government of Norfolk Island and within s 122 of the Constitution.

[36] BETFAIR PTY LTD v RACING NEW SOUTH WALES (2012) 249 CLR 217; 286 ALR 221 High Court of Australia Freedom of interstate trade and discrimination of a protectionist kind

commerce

—

No

FACTS The appellant provided wagering services on horse races throughout Australia by way of a betting exchange from a call centre near Hobart. The respondents were authorities established by legislation to control horse racing in New South Wales. The Racing Administration Act 1998 (NSW) prohibited a wagering operator from using ‘New South Wales race field information’ unless it held a licence under s 33A of the Act. The Regulations made under the Act prescribed a licence fee of 1.5% of the operator’s wagering turnover. ISSUE The appellant argued that s 33A of the Act was invalid on the basis it infringed s 92 of the Constitution because the licence fee, calculated as a percentage of the amount wagered, had a greater impact on it than in comparison with its competitors in other States who had higher profit margins. HELD The licence fee did not infringe s 92 of the Constitution as there was no discrimination in a protectionist sense between interstate and intrastate wagering transactions. The point of difference arose from the decision made by the appellant to structure its business with a lower profit margin.

[37] BETFAIR PTY LTD v WESTERN AUSTRALIA

(2008) 234 CLR 418; 244 ALR 32 High Court of Australia Freedom of interstate trade and commerce — Discrimination in a protectionist manner FACTS Betfair operated a betting exchange and was licensed under Tasmanian law. Erceg resided in Western Australia and placed bets with Betfair by telephone and the internet. In 2006, the Betting Control Act [page 24] 1954 (WA) was amended. Under s 24(1aa) any person who bet through a betting exchange committed an offence. Under s 27D(1) it was an offence to provide exchange betting on horse or greyhound races in Western Australia unless approval had been granted pursuant to the Act. Betfair sought approval but it was refused on the basis that it was contrary to Western Australian government policy to approve betting exchanges. ISSUE The plaintiffs argued that ss 24(1aa) and 27D(1) of the Betting Control Act infringed s 92 of the Constitution. HELD The challenged sections were invalid as contrary to s 92 of the Constitution. The Act impermissibly precluded, with respect to internet transactions having a geographical connection with Western Australia, an increase in competition, on the supply side, within the national market for betting services which would be provided, on the demand side, by the presence within Western Australia by persons such as Erceg. The Act also applied to deny to out-of-state suppliers of betting services, such as Betfair, access for the purposes of its Australia-wide operations to information respecting race fields which is generated by racing operators in Western Australia, while in-state wagering operators did not suffer that disadvantage.

[38] BODRUDDAZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (2007) 228 CLR 651; 234 ALR 114 High Court of Australia High Court — Original jurisdiction FACTS Bodruddaza applied for a residency visa under the Migration Act 1958 (Cth). The respondent denied the application on the basis that Bodruddaza had not satisfied the criteria specified in Regulations made pursuant to the Act. Bodruddaza then sought to challenge the decision in the High Court. The application was, however, lodged outside the 84-day period prescribed by s 486A of the Act. ISSUE Did s 486A of the Migration Act impermissibly curtail or limit the right or ability of Bodruddaza to seek relief under s 75(v) of the Constitution? HELD Section 486A was invalid as it subverted the constitutional purpose of the remedy provided in s 75(v) of the Constitution. ‘[A] law with respect to the commencement of proceedings under s 75(v) will be valid if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) [page 25] as to be inconsistent with the place of that provision in the constitutional structure’, per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ at [53].

[39] BOLTON v MADSEN (1963) 110 CLR 264

High Court of Australia Duties of excise — Requirement for tax to be imposed directly on goods FACTS The State Transport Act 1960 (Qld) required every person whose vehicle carried goods by road to obtain a licence. The licence fee was calculated by multiplying the vehicle’s carrying capacity by the distance over which the goods were carried. Turner was a woolgrower in Goondiwindi who chartered a truck to carry wool clip to a Brisbane wool store. He refused to pay the licence fee but nevertheless sent the clip to Brisbane. He and Bolton were convicted as principal and accessory of an offence under the Act. ISSUE Were the licence fees an incidental tax on the wool and invalid under s 90 of the Constitution? HELD The licence fee was not an excise duty because it did not directly affect the wool, but was paid as a condition for the right to carry goods by road. ‘The tax is a duty of excise only when it is imposed directly upon goods or to put the same thing in another way, when it directly affects goods, and to establish no more than its imposition has increased the cost of putting upon the market by a calculable amount falls short of establishing directness of the relation between the tax and the goods that is the essential characteristic of a duty of excise’, at 272.

[40] BOURKE v STATE BANK OF NEW SOUTH WALES (1990) 170 CLR 276; 93 ALR 460 High Court of Australia Banking power — Commonwealth unable to regulate State banking FACTS Bourke sued the State Bank for damages under the Trade Practices Act 1974 (Cth) alleging misleading and deceptive conduct. The Bank’s business was principally conducted within New South Wales.

ISSUE The Bank relied on the prohibition on regulation of State banking in s 51(xiii) of the Constitution. Bourke argued that the Act did not cease [page 26] to be a valid exercise of the power in relation to financial corporations in s 51(xx) of the Constitution, because it may also be characterised as a law with respect to State banking. The issue for the Court was whether the words ‘other than State banking’ in s 51(xiii) imposed a general limitation upon Commonwealth power or are merely intended to confine the ambit of the banking power itself. HELD The Trade Practices Act was invalid to the extent that it purported to apply to the State Bank in the conduct of its banking business not extending beyond the limits of New South Wales. The words ‘other than State banking’ in s 51(xiii) of the Constitution were not merely intended to confine the ambit of the banking power, but imposed a restriction upon Commonwealth power generally.

[41] Re BOYNE SMELTERS LTD; Ex parte FEDERATION OF INDUSTRIAL MANUFACTURING AND ENGINEERING EMPLOYEES OF AUSTRALIA (1993) 177 CLR 446; 112 ALR 359 High Court of Australia Conciliation and arbitration power reinstatement of former employees

—

Demand

for

FACTS The Union served a demand for security in employment on a number of employers in the aluminium industry throughout Australia. The demand was that employers would not dismiss any employee and to reinstate any worker previously dismissed. The employers rejected the demands and

the Industrial Relations Commission found an industrial dispute existed, but no action was taken to settle the dispute. Subsequently, Boyne Smelters retrenched a number of employees. The Union demanded their reinstatement and commenced reinstatement proceedings on the basis that the retrenchments were part of the dispute found to exist by the Commission. The Union tendered a draft award which proposed the reinstatement of the workers but also contained other general conditions for reinstatement. Boyne Smelters denied the jurisdiction of the Commission to hear the reinstatement proceedings. ISSUE Could an industrial dispute be constituted by a demand for the reinstatement of former employees? HELD The demand which gave rise to the finding of an industrial dispute was not confined to a demand for future general conditions for reinstatement and the surrounding circumstances indicated the existence [page 27] of an interstate dispute which would authorise the making of an award for the actual reinstatement of former employees.

[42] BRANDY v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (1995) 183 CLR 245; 127 ALR 1 High Court of Australia Judicial power of the Commonwealth — Only to be exercised by Ch III court FACTS Bell lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC) alleging that Brandy and the Aboriginal and Torres Strait Islander Commission (ATSIC) had breached

the Racial Discrimination Act 1975 (Cth). HREOC found that the complaint was substantiated and ordered Brandy and ATSIC to apologise and pay damages to Bell. The Racial Discrimination Act provided that a determination of HREOC could be registered with the Federal Court of Australia and that the registered determination then took effect as if it were an order of the Federal Court. ISSUE Brandy sought a declaration that the provisions of the Racial Discrimination Act providing for registration, review and enforcement of HREOC’s determinations were invalid as they were inconsistent with ss 71 and 72 of the Constitution. HELD As the provisions of the Racial Discrimination Act providing for the registration and enforcement of HREOC determinations combined to make a determination of HREOC binding, authoritative and enforceable, those provisions purported to invest HREOC with the judicial power of the Commonwealth. This was constitutionally impermissible because HREOC was not constituted in accordance with ss 71 and 72 of the Constitution. Deane, Dawson, Gaudron and McHugh JJ at ALR 14–15, said: ‘Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not … However, there is one aspect of judicial power which may serve to characterize a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power’. [page 28]

[43] BURWOOD CINEMA LTD v AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYEES’

ASSOCIATION (1925) 35 CLR 528 High Court of Australia Conciliation and arbitration power — Based on industrial relationship FACTS The respondent was registered under the Conciliation and Arbitration Act 1904 (Cth). It served a log of claims on employers in the theatrical industry throughout Australia. Burwood Cinema denied that it or its employees were parties to the dispute as its employees were satisfied with their conditions of employment, or were not members of the respondent. ISSUE Could the employers be in an industrial dispute within s 51(xxxv) of the Constitution with the respondent? HELD Where a log of claims is served upon employers in an industry on behalf of employees in that industry, the fact that some of those employers do not employ members of the Union or whose employees are satisfied with their wages and conditions does not prevent the dispute from being an industrial dispute within s 51(xxxv) of the Constitution.

[44] CALEDONIAN COLLIERIES LTD v AUSTRALASIAN COAL AND SHALE EMPLOYEES’ FEDERATION (No 1) (1930) 42 CLR 527 High Court of Australia Conciliation and arbitration power — Dispute to extend beyond one State FACTS The owners of coalmines in northern New South Wales asserted that it was necessary to lower miners’ wage rates in order for the mines to compete on overseas markets. The miners objected and the owners then closed the mines. The New South Wales Government subsequently agreed

to open one mine but only employed non-union labour on lower wages. Victorian and Queensland miners commenced strikes in support of the New South Wales miners. The Commonwealth Court of Conciliation and Arbitration made an interim award restoring the pre-lockout wage rates pending an inquiry. ISSUE The owners challenged the validity of the award on the basis that the dispute did not extend beyond the limits of New South Wales. [page 29] HELD The dispute was wholly within New South Wales. The stoppages by the Queensland and Victorian miners were only sympathetic which did not bring them into the dispute. Accordingly, there was no industrial dispute within s 51(xxxv) of the Constitution and no jurisdiction to make the award.

[45] CALEDONIAN COLLIERIES LTD v AUSTRALASIAN COAL AND SHALE EMPLOYEES’ FEDERATION (No 2) (1930) 42 CLR 558 High Court of Australia Conciliation and arbitration power — Genuine dispute required FACTS Colliery owners and coal miners in New South Wales were involved in a dispute over wages. Miners in Queensland and Victoria, without making any demand on their own employers, assisted the New South Wales miners by financial contributions and by stopping work in sympathy. Before the High Court delivered judgment in Caledonian Collieries (No 1), the Federation served a log of claims on mine owners in three States. The Commonwealth Court of Conciliation and Arbitration, in reliance on the log of claims, made a further interim award.

ISSUE The mine owners challenged the validity of the award on the basis that the log of claims was a sham device used by the Federation to give the Court jurisdiction. HELD The Federation did not sincerely propound the claims but merely regarded the formulation of the demands as a step towards enabling the Court to deal with the trouble in New South Wales. Therefore, there was no industrial dispute within s 51(xxxv) of the Constitution and the interim award was invalid.

[46] CAPITAL DUPLICATORS PTY LTD v AUSTRALIAN CAPITAL TERRITORY (No 1) (1992) 177 CLR 248; 109 ALR 1 High Court of Australia Duties of excise — Imposition by Territory invalid FACTS The plaintiffs were the holders of wholesale and retail licences under the Business Franchise (‘X’ Videos) Act 1990 (ACT). Licence fees were calculated on the value of the videos sold by the licensee in the month for which the licence was granted. [page 30] ISSUE The plaintiffs sought a declaration that the licence fee was invalid as a duty of exercise under s 90 of the Constitution. HELD A Territory cannot impose duties of excise as the power resides exclusively in the Commonwealth. ‘If s 90 is to play its part in achieving the “essential objective” of abolishing internal customs barriers and in guaranteeing equality as regards customs and excise duties which the people of the Commonwealth are to bear, it must be construed as restricting to the Parliament the sole legislative power to impose duties of customs and excise

and to grant bounties on the production or export of goods’, per Brennan, Deane and Toohey JJ at CLR 278.

[47] CAPITAL DUPLICATORS PTY LTD v AUSTRALIAN CAPITAL TERRITORY (No 2) (1993) 178 CLR 561; 118 ALR 1 High Court of Australia Duties of excise — Licence fee based on goods sold FACTS The Business Franchise (‘X’ Videos) Act 1990 (ACT) required wholesalers and retailers of videos to be licensed. Licence fees were imposed which consisted of a basic fee which was a flat rate plus an advance fee or a franchise fee, both of which were calculated by reference to the value of the videos supplied during the period of the licence. ISSUE The plaintiffs sought a declaration that the licence fees were duties of excise contrary to s 90 of the Constitution. HELD The advance and franchise fees were both duties of excise and invalid under s 90 of the Constitution, as they imposed a tax on a step in the distribution of the videos. The Court refused to reconsider Dennis Hotels and Dickenson’s Arcade, regarding them as anomalous exceptions for alcohol and tobacco products, and refused to reconsider the prevailing wider definition of a duty of excise.

[48] CASTLEMAINE TOOHEYS LTD v SOUTH AUSTRALIA (1990) 169 CLR 436; 90 ALR 371 High Court of Australia Freedom of interstate trade and commerce — Practical operation of legislation was discriminatory

FACTS The Beverage Container Act 1975 (SA) provided that the purchaser of any beverage must pay to the retailer a deposit on the container in which the beverage was supplied. The Act was amended in 1986 to [page 31] provide that a larger deposit was required to be paid on non-refillable beer containers than on refillable beer containers. Further, retailers of beer in non-refillable containers were required to accept the return and refund the deposit of those containers. No such requirement was imposed upon the retailers of refillable containers. Castlemaine Tooheys conducted its business from outside South Australia and used non-refillable containers for all its sales of beer. South Australian brewers mainly used refillable containers. ISSUE Castlemaine Tooheys argued that the Beverage Container Act infringed s 92 of the Constitution. HELD The law was invalid under s 92 of the Constitution, because its practical operation was to discriminate against interstate breweries. ‘[W here a law on its face is apt to secure a legitimate object but its effect is to impose a discriminatory burden upon interstate trade as against intrastate trade, the existence of reasonable non-discriminatory alternative means of securing that legitimate object suggests that the purpose of the law is not to achieve that legitimate object but rather to effect a form of prohibited discrimination. There is also some room for a comparison, if not a balancing of means and objects in the context of s 92. The fact that a law imposes a burden on interstate trade and commerce that is not incidental or that is disproportionate to the attainment of the legitimate object of the law may show that the true purpose of the law is not to attain that object but to impose the impermissible burden’, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ at CLR 471–2.

[49] CHEATLE v THE QUEEN

(1993) 177 CLR 541; 116 ALR 1 High Court of Australia Rights and freedoms — Trial by jury FACTS The appellants were charged in the Central District Criminal Court of South Australia with conspiracy to defraud the Commonwealth. The jury returned a guilty verdict by majority, allowed by the Juries Act 1927 (SA). ISSUE Does s 80 of the Constitution require a unanimous verdict from a jury? HELD The guarantee of trial by jury in s 80 precluded a verdict of guilty being returned in trial upon indictment of an offence against the Commonwealth otherwise than by the agreement or consensus of all the jurors. The convictions of the appellants were therefore unconstitutional and were set aside. [page 32]

[50] CHU KHENG LIM v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (1992) 176 CLR 1; 110 ALR 97 High Court of Australia Separation of powers — Legislature not to interfere with judicial power FACTS The plaintiffs were Cambodian nationals who arrived in Australia by boat without valid entry permits and were detained in custody. They applied to the Minister for refugee status but their applications were rejected. The Federal Court set aside the rejection of the applications but adjourned their applications to be released from custody. Prior to the resumption of the

hearing the Migration Amendment Act 1992 (Cth) inserted a new part into the Migration Act 1958 (Cth) authorising the detention of ‘designated’ persons without a warrant. ISSUE The plaintiffs, who fell within the definition of a designated person, sought a declaration that the new part was an invalid exercise of the power in s 51(xix) of the Constitution. HELD The provisions authorising the Executive to detain aliens were a valid exercise of the power in s 51(xix) of the Constitution. The authority to detain an alien in custody, to enable the determination of an application for an entry permit, constituted an incident of the power and did not interfere with the judicial power of the courts. The prohibition on courts ordering the release from custody of a designated person was invalid as it constituted an impermissible intrusion into the judicial power vested in the courts by s 71 of the Constitution.

[51] CLARKE v COMMISSIONER OF TAXATION (2009) 240 CLR 272; 258 ALR 623 High Court of Australia Commonwealth–State relations governmental functions of States

—

Interference

with

FACTS Clarke was a former member of Parliament in South Australia. Upon retirement he was entitled to a pension payable from the consolidated revenue of South Australia. Federal legislation purported to make him liable to pay tax on amounts contributed by South Australia to the consolidated revenue account whilst he was a member of Parliament. ISSUE Was the federal legislation invalid on the basis that it impaired the governmental functions of the State? [page 33]

HELD Applying the decisions in Melbourne Corporation v Commonwealth and Austin v Commonwealth, the federal legislation was invalid to the extent that it purported to apply to Clarke as it affected the interests of the State in attracting, by the payment of suitable remuneration, appropriate people to serve as members of the legislature and potential ministers, which is a longstanding constitutional value.

[52] CLYDE ENGINEERING CO LTD v COWBURN (1926) 37 CLR 466 High Court of Australia Inconsistency between Commonwealth and State laws — Test for inconsistency FACTS The Forty-four Hours Week Act 1925 (NSW) provided that a worker’s ordinary working hours should not exceed 44 hours per week, and that any worker covered by a federal award fixing a longer working week should only be paid wages for a 44 hour week. An award made by the Commonwealth Court of Conciliation and Arbitration for the engineering industry provided that workers under the award should be paid a fixed wage based on a 48 hour week. Cowburn claimed wages in an amount based on the New South Wales Act for the time worked in excess of 44 hours each week. ISSUE Was the Act inconsistent with the federal award? HELD The Forty-four Hours Week Act was inconsistent with the Conciliation and Arbitration Act 1904 (Cth) which supported the federal award, as it attempted to alter the terms of the federal award. Accordingly, the State Act was invalid under s 109 of the Constitution. ‘Two enactments may be inconsistent although obedience to each of them may be possible without the other. Statutes may do more than impose duties; they may for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one

which might be waived or abandoned without disobeying the statute which conferred it’, per Knox CJ and Gavan-Duffy J at 478.

[53] COCKLE v ISAKSEN (1957) 99 CLR 155 High Court of Australia High Court — Appellate jurisdiction FACTS Cockle was a shipping association official who charged Isaksen, a vigilance officer of the Waterside Workers’ Federation, with offences [page 34] under the Conciliation and Arbitration Act 1904 (Cth) for advising workers to stop work contrary to an award. The charges were heard and dismissed in the New South Wales Court of Petty Sessions. The Act provided that the Commonwealth Industrial Court had jurisdiction to hear the appeal, and that no appeal lay to the High Court. Despite the Act, Cockle appealed directly to the High Court relying on s 73(ii) of the Constitution. ISSUE Did the Act create a valid exception to s 73(ii)? HELD The Conciliation and Arbitration Act created a valid exception to s 73(ii) as it did not attempt to destroy the general rule that the High Court had jurisdiction to determine appeals from the courts specified in s 73.

[54] COLE v WHITFIELD (THE TASMANIAN LOBSTER CASE) (1988) 165 CLR 360; 78 ALR 42 High Court of Australia

Freedom of interstate trade and commerce — Formulation of test to be applied FACTS Whitfield was the manager of a Tasmanian business which purchased and sold live crayfish. He purchased live crayfish from South Australia that were above the minimum size prescribed by South Australian legislation, but which were below the minimum size specified by the Sea Fishery Regulations 1962 (Tas). He was charged with being in possession of undersized crayfish. ISSUE Did the Regulations breach s 92 of the Constitution? HELD The Regulations did not infringe s 92 as they did not distinguish between local and interstate crayfish but applied to all crayfish sold in Tasmania. Although the Regulations placed a burden on interstate trade in this case, there was no discriminatory protectionist purpose involved. ‘The history of s 92 points to the elimination of protection as the object of s 92 in its application to trade and commerce. The means by which that object is achieved is the prohibition of measures which burden inter-State trade and commerce and which also have the effect of conferring protection on intraState trade and commerce of the same kind. The general hallmark of measures which contravene s 92 in this way is their effect as discriminatory against inter-State trade and commerce in that protectionist sense’ per curiam at CLR 394. [page 35]

[55] COLEMAN v POWER (2004) 220 CLR 1; 209 ALR 182 High Court of Australia Rights and freedoms — Implied right of communication FACTS Coleman was distributing pamphlets in which it was alleged that

several police officers, including Power, were corrupt. Power asked for a copy of the pamphlet whereupon Coleman loudly said that Power was corrupt. Coleman was charged and convicted under s 7A of the Vagrants, Gaming and Other Offences Act 1951 (Qld) for distributing material containing insulting words and under s 7 for using insulting language. The Queensland Court of Appeal held that s 7A was invalid to the extent that it constituted a burden on the freedom of political communication but confirmed the conviction pursuant to s 7 of the Act. ISSUE Was s 7 invalid as contravening the implied constitutional right of communication about government and political matters? HELD By a majority of 4 to 3, Coleman’s conviction under s 7 should be set aside. The section was capable of burdening communication about government or political matters and was not reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government contained in the Constitution.

[56] COLVIN v BRADLEY BROS PTY LTD (1943) 68 CLR 151 High Court of Australia Inconsistency between Commonwealth and State laws — Direct collision FACTS An order made under the Factories and Shops Act 1912 (NSW) prohibited the employment of women on milling machines. A federal award made by the Arbitration Court under the Conciliation and Arbitration Act 1904 (Cth) declared that employers who were party to the award could employ women on work in the industries covered by the award. Bradley Bros was prosecuted under the State Act for employing women to work on milling machines. ISSUE Was the State order inconsistent with the federal award under s 109 of the Constitution?

HELD The order made under the State Act was directly inconsistent with the federal award as it prohibited the activity allowed by the award. [page 36] ‘The application of s 109 does not depend upon any assignment of legislation to specific categories which are assumed on an a priori basis to be mutually exclusive. Section 109 applies wherever there is an inconsistency between a State law and a Commonwealth law, or between orders and awards made under such laws. If the Commonwealth law is valid it prevails over any State law which is inconsistent with it, even though that State law may have been made as part of a legislative scheme which the Commonwealth Parliament could not have enacted in all its parts’, per Latham CJ at 158.

[57] COMBET v COMMONWEALTH (2005) 224 CLR 494; 221 ALR 621 High Court of Australia Appropriation — Funds paid from consolidated revenue to be ‘appropriated by law’ FACTS The Commonwealth Government drew funds from the consolidated revenue account to pay for an advertising campaign to promote its workplace relations reforms. The Appropriation Act (No 1) 2005–2006 (Cth) allocated amounts to the portfolio for employment and workplace relations between ‘departmental outputs’ and ‘administered expenses’. The plaintiffs did not challenge the validity of the Act but argued that the expenditure was not authorised by it because it did not fall within the relevant outcome statement. ISSUE Did the expenditure contravene s 83 of the Constitution by reason of it not having been appropriated by law?

HELD The expenditure was authorised by the Appropriation Act. Therefore, there was no breach of s 83 of the Constitution.

[58] COMMISSIONER OF TAXATION v CLYNE (1958) 100 CLR 246 High Court of Australia Taxation power — Not to discriminate against States FACTS The Commissioner of Taxation sought to recover unpaid provisional tax from Clyne under the Income Tax and Social Services Assessment Act 1936 (Cth). The Act provided for the establishment of two zones, which extended throughout central and northern Australia and southwestern Tasmania. The prescribed area intruded into all States except Victoria. Taxpayers resident in the zones were entitled to certain deductions. The deductions available to residents in zone A were greater than those available to zone B residents. [page 37] ISSUE Did the Act discriminate between States or parts of States contrary to s 51(ii) of the Constitution? Did the Act give a preference to parts of certain States contrary to s 99 of the Constitution? HELD The provisions discriminating or giving preference to a State or part of State as against another State or part thereof offended against ss 51(ii) and 99 of the Constitution and were invalid. However, as the relevant sections were inserted into the Act by an amendment, they were severed to leave the remainder of the Act operational.

[59] COMMONWEALTH v AUSTRALIAN CAPITAL TERRITORY (THE SAME SEX MARRIAGE CASE)

(2013) 250 CLR 441; 304 ALR 204 High Court of Australia Inconsistency between Commonwealth and State laws – Commonwealth legislation covered the field FACTS The Marriage Equality (Same Sex) Act 2013 (ACT) permitted persons of the same gender to marry. ISSUE Was the ACT Act inconsistent with the Marriage Act 1961 (Cth) which only permitted marriage between a man and a woman? HELD The Marriage Act constituted a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage throughout Australia. By reason of the definition of ‘marriage’ in the Marriage Act, only a marriage conforming to that definition may be formed or recognised in Australia. The provisions of the Australian Capital Territory Act providing for marriage under that Act were inconsistent with the Marriage Act and invalid under s 109 of the Constitution.

[60] COMMONWEALTH v BOGLE (1953) 89 CLR 229 High Court of Australia Commonwealth–State relations Commonwealth from State law

—

Immunity

of

FACTS The Commonwealth Government owned and operated a series of hostels for the accommodation of migrant families. In 1952 the Commonwealth caused a company, Commonwealth Hostels Ltd (‘CHL’), to be incorporated under the Companies Act 1938 (Vic) for the purpose of managing the hostels. CHL increased the charge for accommodation. Bogle was a resident in one of the Victorian hostels and refused to pay the increased

[page 38] charge. He argued that the Victorian Prices Regulation Order, made under the Prices Regulation Act 1948 (Vic) prohibited any increase in those charges. ISSUE Was CHL an emanation of the Commonwealth and entitled to immunity from the operation of the State legislation? HELD CHL was not an agent or instrumentality of the Commonwealth and was subject to the Prices Regulation Act.

[61] COMMONWEALTH v CIGAMATIC PTY LTD (1962) 108 CLR 372 High Court of Australia Commonwealth–State relations Commonwealth from State law

—

Immunity

of

FACTS The Supreme Court of New South Wales ordered that Cigamatic be wound up under the Companies Act 1936 (NSW). The Commonwealth claimed that the company had liabilities under the Sales Tax Assessment Act 1930 (Cth) and the Post and Telegraph Act 1901 (Cth). The Commonwealth sought a declaration that it was entitled to be paid its debts in priority to other creditors and an injunction restraining the liquidator from paying any other creditor until it had been paid. ISSUE Were the Commonwealth’s claims immune from the operation of the Companies Act? HELD The Commonwealth’s claim to priority was based on the common law entitlement of the Crown to priority of payment when in any administration of assets, debts of equal degree due to the Crown and due to the subjects of the Crown come into competition. The legislative powers of

the States did not extend to abolish a fiscal right of the Commonwealth, which was a prerogative of the Crown.

[62] COMMONWEALTH v HEALTH CONTRIBUTION FUND OF AUSTRALIA (1982) 150 CLR 49; 40 ALR 673 High Court of Australia Judicial power of the Commonwealth — Exercise by Master of State Supreme Court FACTS A subpoena issued by the Supreme Court of New South Wales was served on the Federal Minister for Health. On the return of the [page 39] subpoena before a Master, the Minister claimed public interest immunity from producing the documents. ISSUE The Commonwealth sought a declaration that the Master did not have jurisdiction to determine the claim as Masters were not members of the Supreme Court and therefore could not exercise federal judicial power. HELD Although not a member of the Supreme Court, the Master constituted the Supreme Court for the purpose of exercising the powers conferred. The Master could exercise federal judicial power in matters in which the Supreme Court was vested with federal jurisdiction under s 77(iii) of the Constitution.

[63] COMMONWEALTH v MEWETT (1997) 191 CLR 471; 146 ALR 299

High Court of Australia Acquisition of property — Just terms FACTS Each of the respondents was a former member of the Royal Australian Navy and having suffered personal injuries in the course of their duties, claimed compensation. The Commonwealth argued that s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) precluded claims for damages against the Commonwealth for injuries sustained by a Commonwealth employee. ISSUE Was s 44 invalid in constituting an acquisition of property other than on ‘just terms’ pursuant to s 51(xxxi) of the Constitution? The Commonwealth argued that because causes of action against it in tort and contract owe their existence to the Judiciary Act 1903 (Cth), the causes of action were subject to extinguishment by subsequent legislation. It also submitted that a statute barred cause of action did not attract the protection of s 51(xxxi) of the Constitution. HELD The respondents’ causes of action were not statutory causes of action able to be extinguished by legislation. As such, they attracted the constitutional guarantee in s 51(xxxi). Although the limitation periods applicable to the actions had expired, the actions were not extinguished. The actions still had some value to the respondents and the failure of the Commonwealth to provide just terms for the acquisition of the actions infringed s 51(xxxi). [page 40]

[64] COMMONWEALTH v TASMANIA (THE TASMANIAN DAMS CASE) (1983) 158 CLR 1; 45 ALR 625 High Court of Australia

External affairs power — Implementation of international convention FACTS Australia ratified the Convention for the Protection of the World Cultural and Natural Heritage in 1974 and enacted the National Parks and Wildlife Act 1975 (Cth) to implement it. The Convention provided that each nation signatory recognised a duty to identify, conserve and protect the cultural and natural heritage situated within its territory. In September 1981 the Premier of Tasmania requested the Commonwealth to nominate three areas in the south-west of the State for inclusion in the World Heritage List. In December 1982 the World Heritage Committee accepted the nominations. Earlier that year, the Tasmanian Parliament passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas) which authorised the construction of a dam within one of the listed areas. Work on the dam commenced in July 1982. On 31 March 1983 the World Heritage (Western Tasmania Wilderness) Regulations were made pursuant to the National Parks and Wildlife Act. The Regulations prohibited the construction of a dam or ‘associated works’. On 22 May 1983 the Commonwealth Parliament enacted the World Heritage Properties Conservation Act 1983 (Cth) which prohibited the destruction or damage of any property suitable for inclusion in the World Heritage List. On 26 May 1983 the Governor-General proclaimed the Act applied to the area in which the dam was to be built. The Commonwealth began proceedings seeking a declaration that the construction of the Franklin Dam was unlawful. Tasmania cross-claimed seeking declarations that the Commonwealth Acts and Regulations were invalid. ISSUE Could the external affairs power be exercised to prevent the construction of the dam? HELD The National Parks and Wildlife Act and the World Heritage Properties Conservation Act were valid exercises of the power in s 51(xxix) of the Constitution as the existence of an international treaty was sufficient to attract the power. The World Heritage (Western Tasmania Wilderness) Regulations were invalid as they went beyond what were reasonable and

appropriate measures to implement the Convention. The corporations power in s 51(xx) extended to authorise the regulation of the construction of the dam, as the Hydro-Electric Commission was a trading corporation, engaged in work undertaken for the purposes of its trading activities. [page 41]

[65] COMMONWEALTH v WESTERN AUSTRALIA (1999) 196 CLR 392; 160 ALR 638 High Court of Australia Inconsistency between Commonwealth and State laws — No operational inconsistency FACTS The Commonwealth was the occupier of three parcels of land in Western Australia that it used as a Defence Practice Area. The grants of land and the lease specifically reserved any minerals in the land to Western Australia. The Commonwealth also used an area of land around the perimeter of the three parcels. Two mining companies applied for licences pursuant to the Mining Act 1978 (WA) to explore for minerals in the Defence Practice Area. ISSUE The Commonwealth sought declarations that it was not bound by the Mining Act. The Commonwealth also sought a declaration that the Mining Act was invalid to the extent that it was inconsistent with the Defence Regulations (Cth). Western Australia argued that insofar as the Mining Act was inconsistent with the Defence Regulations the Commonwealth had acquired the property of the State other than on just terms. HELD The Mining Act did not apply to the land acquired or leased by the Commonwealth as it did not fall within definitions of ‘Crown land’ or ‘private land’ in the Act. The Mining Act did, however, apply to the perimeter area land. No inconsistency had arisen between the Defence

Regulations and the Mining Act although such an inconsistency might arise if an authority was granted under the Mining Act to enter the perimeter area at a time authorised for the conduct of a defence operation. There had not been an acquisition of property by the Commonwealth as the Defence Regulations did not purport to negate the reservation of minerals to the State.

[66] COMMONWEALTH v WMC RESOURCES LTD (1998) 194 CLR 1; 152 ALR 1 High Court of Australia Acquisition of property — Variation of statutory rights not acquisition FACTS In 1983 WMC acquired an interest in a joint venture which held a petroleum exploration permit for the continental shelf in the Timor Gap issued under the Petroleum (Submerged Lands) Act 1967 (Cth). In 1983 Australia and Indonesia disputed each other’s claim to sovereignty over the Timor Gap. Due to the dispute the joint venture suspended its exploration activity in the area. In 1991 a treaty came into force between [page 42] Australia and Indonesia which provided that the Timor Gap would be a ‘Zone of Cooperation’ and that all petroleum exploration and exploitation in the area would be controlled by a joint authority. The treaty was enacted in Australia by the Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 (Cth). The Act prohibited prospecting for petroleum without the approval of the joint authority and had the effect of reducing the size of the area in which WMC was permitted to carry out exploration activity. ISSUE WMC claimed that its property had been acquired otherwise than on just terms and sought compensation for the loss of its exploration rights.

HELD WMC had acquired a statutory right that was inherently susceptible of being varied or extinguished by legislation enacted under the same power that created the right. ‘The power to make laws with respect to a subject described in s 51 [of the Constitution] carries with it the power to amend or repeal a law made on that subject. A property interest that is created by federal legislation, where no property interest previously existed, is necessarily of an inherently determinable character and is always liable to modification or extinguishment by a subsequent federal enactment. Section 51(xxxi) therefore does not ordinarily withdraw from the parliament the authority to use another s 51 power to revoke or amend legislation that has been passed under that power, even when the legislation has created a property right’, per McHugh J at ALR 138.

[67] COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v QUEENSLAND RAIL (2015) 318 ALR 1 High Court of Australia Corporations power – Identification of trading corporation FACTS Queensland Rail was established by the Queensland Rail Transit Authority Act 2013 (Qld). That Act provided that Queensland Rail was not a body corporate but that it had all the powers of an individual. It provided the labour used by another entity to manage railways in Queensland. The plaintiffs were employee associations that sought to ascertain whether Queensland Rail was required to comply with the Fair Work Act 2009 (Cth) on the basis that it was a trading corporation. ISSUE Queensland Rail accepted that it was an artificial legal entity but denied that it was a trading corporation. HELD The determinative consideration in deciding whether an entity is a

corporation is its independent existence as a legal person. The purpose for [page 43] which Queensland Rail was established and its actual activities established that it was a trading corporation within the meaning of s 51(xx) of the Constitution and was therefore subject to the Fair Work Act.

[68] Re CRAM; Ex parte NSW COLLIERY PROPRIETORS’ ASSOCIATION LTD (1987) 163 CLR 117; 72 ALR 161 High Court of Australia Conciliation and arbitration power — Need for dispute over industrial matter FACTS The Coal Industry Act 1946 (Cth) and the Coal Industry Act 1946 (NSW) were enacted following an agreement between the Commonwealth and New South Wales Governments to establish bodies to regulate the coal industry in New South Wales. The Acts established the Joint Coal Board, the Coal Industry Tribunal and Local Coal Authorities. An arrangement existed between employers in the Upper Hunter who employed labour under the Engine Drivers and Firemen’s Award, whereby workers were recruited through the Federated Engine Drivers and Firemen’s Association register of unemployed union members. During a dispute two collieries recruited labour from sources other than the register. The Union notified the Local Coal Authority of a dispute concerning manning and method of employment. Cram, a member of the Authority, ordered the coal mine proprietors to abide by the employment arrangements. The Tribunal confirmed the order. ISSUE The Association sought prohibition against the Authority, Tribunal and Union on the basis that the orders were made without

jurisdiction. It argued that the manner in which an employer recruits labour is not within the scope of the industrial relationship but was a matter of managerial prerogative. HELD Cram was an officer of the Commonwealth within s 75(v) of the Constitution notwithstanding that the regulatory bodies were not established solely under Commonwealth powers. The dispute about manning and recruitment was directly concerned with the relationship between employer and employee and was an industrial dispute within s 51(xxxv) of the Constitution. The level of manning ‘has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the work force’, per curiam at CLR 135. [page 44]

[69] CROOME v TASMANIA (1997) 191 CLR 119; 142 ALR 397 High Court of Australia High Court — Jurisdiction FACTS The plaintiffs sought declarations that provisions of the Criminal Code (Tas), which created offences for acts of homosexuality, were inconsistent with the Human Rights (Sexual Conduct) Act 1994 (Cth). They asserted that they had and would continue to engage in conduct that rendered them liable to prosecution. The Director of Public Prosecutions for Tasmania did not propose to prosecute them. ISSUE Tasmania sought to have the plaintiffs’ summons set aside on the basis that the High Court did not have jurisdiction to hear the case as the proceedings did not give rise to a ‘matter’ within s 76 of the Constitution. HELD The fact that the DPP did not propose to enforce the Criminal Code

did not remove the liability of the plaintiffs for prosecution under those provisions. Accordingly, the plaintiffs had a sufficient interest in the validity of the provisions to create a justiciable controversy. The decision in the Advisory Opinions case should not be ‘taken as lending support to the notion that, where the law of a State imposes a duty upon the citizen attended by liability to prosecution and punishment under the criminal law, and the citizen asserts that, by operation of s 109 of the Constitution, the law of the State is invalid, there can be no immediate right, duty or liability to be established by determination of this Court, in an action for declaratory relief by the citizen against the State, unless the Executive government of the State has, at least, invoked legal process against the particular citizen to enforce the criminal law’, per Gaudron, McHugh and Gummow JJ at ALR 409.

[70] CUNLIFFE v COMMONWEALTH (1994) 182 CLR 272; 124 ALR 120 High Court of Australia Legislative power of the Commonwealth — Proportionality of legislation only relevant to purposive power FACTS Part 2A of the Migration Act 1958 (Cth) established a registration system for migration agents, requiring the payment of an annual licence fee. The Act prohibited any person who was not a registered agent from providing assistance to persons seeking visas and entry permits. Prior to the commencement of the Part, the plaintiffs were solicitors who conducted [page 45] an interstate practice giving advice and preparing applications for visas and entry permits. ISSUE

The plaintiffs argued that the Act went beyond what was

reasonably appropriate and adapted to achieving the object or purpose of the aliens power. It was also argued that the Act contravened the implied guarantee of freedom of communication relating to government, and that the Act contravened s 92 of the Constitution. HELD As the manifest and declared objective of the Part was to afford a measure of protection to aliens against exploitation, the Act’s effect and operation bore the character of a law with respect to aliens and was a valid exercise of the power in s 51(xix) of the Constitution. There was no occasion to examine the Act’s purpose or object in order to determine whether it was supported by the power. The control of persons providing immigration assistance did not impose a restriction on political discussion. Section 92 was not infringed as the section did not purport to place interstate intercourse in a position where it is immune from laws of a general nature which are not aimed at interstate intercourse.

[71] DAO v AUSTRALIAN POSTAL COMMISSION (1987) 162 CLR 317; 70 ALR 449 High Court of Australia Inconsistency between Commonwealth and State laws — Direct collision FACTS The Anti-Discrimination Act 1977 (NSW) prohibited employers from discriminating against any person on the basis of their sex when making offers of employment. Dao complained to the Anti-Discrimination Tribunal that the respondent’s refusal to appoint her as an officer, on the basis that her body weight was below the minimum required, constituted discrimination on the ground of her sex. The Postal Services Act 1975 (Cth) authorised the respondent to appoint officers and to establish minimum requirements for employment. ISSUE Was the Anti-Discrimination Act inconsistent with the Postal Services Act and invalid under s 109 of the Constitution?

HELD There was a collision or direct inconsistency between the AntiDiscrimination Act and the Postal Services Act. The Commission was given authority to determine the conditions on which offers of employment were made. The State Act, in purporting to constrain that authority, was inconsistent and therefore invalid under s 109 of the Constitution. [page 46]

[72] DENNIS HOTELS PTY LTD v VICTORIA (1960) 104 CLR 529 High Court of Australia Duties of excise — Liquor licence fees FACTS The Licensing Act 1958 (Vic) prohibited the sale of liquor without a licence. Licence fees were calculated on the volume of liquor purchased during the previous year. Fees for temporary licences were calculated on the value of liquor purchased during the period of the temporary licence. ISSUE Were the licence fees duties of excise and invalid under s 90 of the Constitution? HELD The annual licence fees were a payment for the privilege of carrying on business. They were not duties of excise as the fee did not relate to sales in the period in which the licence was held and was not a tax upon goods. As the temporary licence fees were based on liquor purchases during the licence period, they were invalid as duties of excise within s 90. Note: In Capital Duplicators Pty Ltd v Australian Capital Territory (No 2), the High Court treated Dennis Hotels and Dickenson’s Arcade as anomalous exceptions to the jurisprudence on duties of excise.

[73] DEPUTY COMMISSIONER OF TAXATION v STATE BANK OF NEW SOUTH WALES (1992) 174 CLR 219; 105 ALR 161 High Court of Australia Commonwealth–State relations — Commonwealth not to tax property of States FACTS The plaintiff assessed the State Bank as liable to sales tax pursuant to the Sales Tax Assessment Act (No 1) 1930 (Cth) on printed material manufactured by the Bank and used in the course of its business. ISSUE The Bank asserted that, as it was created under the State Bank Act 1981 (NSW), the Sales Tax Assessment Act (No 1) 1930 (Cth) did not apply to it, as it was the State of New South Wales. It also asserted that the Act was invalid as contravening s 114 of the Constitution for imposing a tax on the property of a State. HELD The Bank was an instrumentality of New South Wales as it was discharging governmental functions. The reference in s 114 of the Constitution to a ‘State’ was wide enough to include an instrumentality. [page 47] The tax attached to the use of property which was the exercise of a right central to the concept of ownership of the property of a State which was sufficient to attract the constitutional prohibition. ‘Once it is accepted that the Constitution refers to the Commonwealth and the States as organisations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be’, per curiam at CLR 230.

[74] DICKENSON’S ARCADE PTY LTD v TASMANIA (1974) 130 CLR 177; 2 ALR 460 High Court of Australia Duties of excise — Tobacco licence fees FACTS The Tobacco Act 1972 (Tas) imposed a tax on the consumption of tobacco. The amount of tax payable was calculated on its retail value. The Governor made the Tobacco Regulations 1972 which provided for the retailer of the tobacco to collect the tax at the time of purchase by the consumer. The Act also prohibited the sale of tobacco without a licence. Licence fees were calculated on the value of tobacco sold by the licensee in the six months prior to the commencement of the licence period. ISSUE Were the Act and Regulations invalid under s 90 of the Constitution for imposing duties of excise? HELD The licence fee was analogous to the licence fee in Dennis Hotels and so was not a duty of excise. The imposition of the consumption tax was not a duty of excise but the practical operation of the Regulations converted the tax into a duty of excise. Accordingly, the Act was declared valid and the Regulations invalid. Note: In Capital Duplicators Pty Ltd v Australian Capital Territory (No 2), the High Court treated Dennis Hotels and Dickenson’s Arcade as anomalous exceptions to the jurisprudence on duties of excise.

[75] DICKSON v THE QUEEN (2010) 241 CLR 491; 270 ALR 1 High Court of Australia Inconsistency between Commonwealth and State laws – Direct inconsistency FACTS The appellant had been a member of the Australian Federal Police

and worked as an excise officer for the Australian Tax Office. He was [page 48] convicted, pursuant to s 321 of the Crimes Act 1958 (Vic) of conspiring to steal a quantity of cigarettes that had been seized by Customs. ISSUE Was s 321 of the Crimes Act invalid on the basis it was inconsistent with s 131.1 of the Criminal Code (Cth)? HELD Section 321 of the Crimes Act was directly inconsistent with s 131.1 of the Criminal Code. Section 321 applied to conduct that was not caught by and deliberately excluded from s 131.1. Section 321 altered or impaired the operation of s 131.1 and so was invalidated by s 109 of the Constitution.

[76] Re DINGJAN; Ex parte WAGNER (1995) 183 CLR 323; 128 ALR 81 High Court of Australia Corporations power — Regulation of natural persons FACTS Wagner entered into a contract with a woodchip company, in which he agreed to harvest and transport forest timber. Wagner then entered into subcontracts with the Dingjans and other partnerships. The woodchip company subsequently changed its practices, and in turn Wagner altered his arrangements with the Dingjans and the other subcontractors. The Transport Workers Union, on behalf of the subcontractors, applied to the Australian Industrial Relations Commission, pursuant to s 127A of the Industrial Relations Act 1988 (Cth) for a review of the variations to the subcontract, on the grounds that they were harsh, unfair and against the public interest. Wagner then terminated the subcontracts. The Commission made orders under s 127B of the Act varying the contracts, which had the effect of reinstating them. Section 127C of the Act then provided that ss

127A and 127B only applied in relation to a contract to which a constitutional corporation was a party or in relation to a contract relating to the business of a constitutional corporation. ISSUE Were ss 127A and 127B laws with respect to corporations within s 51(xx) of the Constitution? HELD Sections 127A and 127B were not a valid exercise of the corporations power in s 51(xx) of the Constitution, as there was not a sufficient connection between the provisions and a constitutional corporation. ‘In the case of s 51(xx) the law must operate on the rights, duties, powers or privileges of corporations in such a way as to evidence a sufficient connection between the law and the corporations. It is not enough to identify corporations as a reference point so as to affect the activities of others’, per Toohey J at ALR 101. [page 49]

[77] Re DIRECTOR OF PUBLIC PROSECUTIONS; Ex parte LAWLER (1994) 179 CLR 270; 119 ALR 655 High Court of Australia Acquisition of property — Forfeiture of property FACTS The applicants owned a fishing vessel registered in New Zealand. They entered into an agreement to sell the vessel, with the purchase price to be paid by instalments. The purchasers of the vessel were charged with using a foreign fishing boat for commercial fishing within the Australian Fishing Zone contrary to the Fisheries Management Act 1991 (Cth). The purchasers terminated the agreement and the applicants, who had been unaware of the use of the boat, sought its return. A magistrate made a forfeiture order in respect of the vessel.

ISSUE Did the Act, in authorising an order for forfeiture, effect an acquisition of property other than on just terms within s 51(xxxi) of the Constitution? HELD The power to authorise the forfeiture of equipment used in the commission of a fisheries offence was a valid exercise of the fisheries power in s 51(x) of the Constitution. As the law was characterised as an exercise of the power in s 51(x), it was not a law with respect to the acquisition of property in s 51(xxxi).

[78] DOBINSON v CRABB (1990) 170 CLR 218; 94 ALR 321 High Court of Australia Inconsistency between Commonwealth and State laws — No inconsistency FACTS The registration of the Australian Building Construction Employees and Builders Labourers Federation (BLF) as an industrial organisation under the Conciliation and Arbitration Act 1904 (Cth) was cancelled in 1985. The Act then provided that, upon cancellation, the Union’s property was to be held and used for the purposes of the Union in accordance with its constitution and rules. The BLF (De-recognition) Act 1985 (Vic) authorised the Governor in Council to make an order vesting the BLF’s funds and property in a State custodian. ISSUE Was the State Act invalid on the basis it was inconsistent with the Conciliation and Arbitration Act? [page 50] HELD There was no direct conflict between the State and Commonwealth Acts, as the State custodian took possession of the BLF’s property subject to

any order made by the Federal Court under the Conciliation and Arbitration Act to meet the BLF’s debts and obligations.

[79] DUNCAN v INDEPENDENT COMMISSION AGAINST CORRUPTION (2015) 324 ALR 1 High Court of Australia Jurisdiction of States – Retrospective legislation FACTS The respondent made findings that the appellant had engaged in ‘corrupt conduct’ but did not suggest that his conduct compromised the probity of public administration. After the report had been handed down, the High Court held in Independent Commission Against Corruption (NSW) v Cunneen (2015) 318 ALR 391 that ‘corrupt conduct’ did not encompass conduct which did not compromise the probity of public administration. The New South Wales Parliament then enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) which validated reports of the respondent that were invalidated by the decision in Cunneen. ISSUE Did the Act contravene the principles in Kable v DPP (NSW) and in Kirk v Industrial Court (NSW)? HELD A statute that alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution. As the 2015 Act did not purport to confer any power or function upon a court, the Act did not contravene the principle in Kable. As the Act did not withdraw any jurisdiction from the Supreme Court, it did not offend the principle in Kirk.

[80] DUNCAN v NEW SOUTH WALES (2015) 318 ALR 375

High Court of Australia Judicial power of termination of rights

the

Commonwealth

–

Legislative

FACTS Following reports issued by the Independent Commission Against Corruption (ICAC), the New South Wales Parliament [page 51] amended the Mining Act 1922 (NSW) for the purpose of cancelling, without the payment of compensation, three exploration licences held by the plaintiffs. ISSUE Was the amending legislation an act of judicial power in the nature of a bill of pains? It was also asserted that the amendments were not a law within the legislative competence of the State under s 5 of the Constitution Act 1902 (NSW). HELD The amending legislation did not exhibit any of the characteristics of an exercise of judicial power. The termination of a right by statute is not an exercise of judicial power. The amending legislation did not constitute a bill of pains and penalties as it contained no declaration of guilt and the disabilities imposed were not punishment. The amending legislation, being a statute, was a law within s 5 of the Constitution Act 1902 (NSW) which does not limit the content of an enactment of the New South Wales Parliament.

[81] Re DYMOND (1959) 101 CLR 11 High Court of Australia Tax laws — Requirement for single subject of taxation

FACTS Dymond had been declared bankrupt on his own petition. The Federal Commissioner of Taxation opposed Dymond’s application to have the bankruptcy annulled on the basis that amounts were still owed under the Sales Tax Assessment Act (No 2) 1930 (Cth) and ‘additional tax’ was payable pursuant to s 46 of the Sales Tax Assessment Act (No 1) 1930 (Cth). Additional tax was payable when a taxpayer failed to furnish a return. ISSUE Dymond argued that s 46 was a law imposing taxation and that as the (No 1) Act was incorporated into the (No 2) Act, which contained provisions other than the imposition of taxation, s 55 of the Constitution operated to invalidate those other provisions. HELD Section 46 was not a law imposing taxation, but it imposed a penalty. Therefore, s 55 of the Constitution did not operate to invalidate the remaining provisions of the (No 2) Act. ‘The exaction is directly punitive and only indirectly fiscal. It is imposed for the protection of the revenue, but as a sanction and not for the sake of revenue as such’, per Fullagar J at 22. [page 52]

[82] EGAN v WILLIS (1998) 195 CLR 424; 158 ALR 527 High Court of Australia Parliament — Power to control functions FACTS Egan was a member of the Legislative Council of New South Wales. In May 1996 the Legislative Council passed a resolution requiring Egan to produce State papers to the House. Egan declined to produce the documents on the basis of a Cabinet resolution that he not do so. The Legislative Council then passed a further resolution that he was in contempt of the House and suspended him from service for the remainder of the day. Egan refused to leave the Chamber. Willis, who was the President of the House, directed the Usher of the Black Rod to escort Egan from the House.

ISSUE Egan sought a declaration that the resolutions passed by the Legislative Council were beyond power and invalid. HELD A House of Parliament has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. What is ‘reasonably necessary’ for the ‘proper exercise’ of the functions of a House of Parliament is to be understood by reference to what, at the time in question, have come to be conventional practices established and maintained by the House.

[83] ESSENDON CORP v CRITERION THEATRES LTD (1947) 74 CLR 1 High Court of Australia Commonwealth–State relations Commonwealth from State law

—

Immunity

of

FACTS The Commonwealth occupied land owned by Criterion Theatres, pursuant to defence powers, from 1942 to 1944. Under the Local Government Act 1928 (Vic) rates were payable by the occupier of a property, unless the occupier was the Crown, in which case, the owner was liable for the rates. ISSUE Did the levy of rates amount to the imposition of a tax on the property of the Commonwealth in contravention of s 114 of the Constitution? HELD A State, by a local government authority, could not levy rates on the Commonwealth. ‘[T]he incapacity of the States directly to tax the Commonwealth in respect of something done in the exercise of its powers [page 53]

or functions is a necessary consequence of the system of government established by the Constitution’, per Dixon J at 22.

[84] FAIRFAX v FEDERAL COMMISSIONER OF TAXATION (1965) 114 CLR 1 High Court of Australia Taxation power — Use of power to regulate other activity FACTS The Income Tax and Social Services Contribution Act 1936 (Cth) was amended to provide that the income of a superannuation fund would not be exempted from income tax unless the Commissioner was satisfied that 30% of the fund’s assets were invested in public securities. Fairfax was a trustee of a fund assessed as liable for income tax on the basis that it did not comply with the investment conditions. ISSUE Was the amendment a law with respect to the investment of superannuation funds and not a proper exercise of the power under s 51(ii) of the Constitution? HELD The amendment was in substance and form a law with respect to taxation. ‘It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages or even definitely deters the activities taxed’, per Kitto J at 12.

[85] FARDON v ATTORNEY-GENERAL (QLD) (2004) 223 CLR 575; 210 ALR 50 High Court of Australia Judicial power of the Commonwealth — State Court vested with power inconsistent with Ch III of the Commonwealth

FACTS The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) provided for the continuing detention of prisoners who were considered to be a serious danger to the community. The Supreme Court of Queensland made orders under the Act that Fardon be detained after the expiration of his sentence of imprisonment for rape. ISSUE Was the power conferred on the Supreme Court by the Act inconsistent with the Court’s position as a repository of federal judicial power? HELD The power conferred on the Supreme Court by the Act to order preventative detention was not a function that was integral to, or so closely connected with, the functions of the legislature or the Executive [page 54] government so as to be incompatible with the Court’s role as a repository of federal judicial power.

[86] Re FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA; Ex parte WOOLDUMPERS (VICTORIA) LTD (1989) 166 CLR 311; 84 ALR 80 High Court of Australia Conciliation and arbitration power — Industrial dispute not arise from claim to reinstate particular employee FACTS In 1988 the Federated Storemen and Packers Union notified the Industrial Registrar under the Conciliation and Arbitration Act 1904 (Cth) of an impending industrial dispute, said to have arisen from the decision of Wooldumpers to terminate the employment of one of its union-member employees. The Union sought an award ordering the reinstatement of the

employee. Wooldumpers contested the jurisdiction of the Conciliation and Arbitration Commissioner to make the award. The Union sought to establish the necessary interstate element by contending that the dispute fell within the ambit of an earlier dispute between the Union and a number of employers including Wooldumpers. That dispute, which still existed, was created by the failure of the employers to comply with a log of claims served in 1986 which sought an order that all employment was permanent and that no employment would be terminated without the consent of the Union. ISSUE Was the claim for reinstatement of the employee an industrial dispute within s 51(xxxv) of the Constitution? HELD The dispute regarding reinstatement of the particular employee did not fall within the ambit of the 1986 dispute, as it did not seek to establish a regime regarding the dismissal of employees, setting a standard of behaviour for the future to be observed by employers. As Wooldumpers only carried on business in Victoria there was no interstate element. The dispute was not an industrial dispute within s 51(xxxv) and therefore the Commissioner was deprived of jurisdiction.

[87] FENCOTT v MULLER (1983) 152 CLR 570; 46 ALR 41 High Court of Australia Corporations power — Test for trading and financial corporations FACTS Muller commenced proceedings in the Federal Court seeking damages under the Trade Practices Act 1974 (Cth) for misleading and [page 55] deceptive conduct alleged to have induced the purchase of a business from

Fencott. The misrepresentations were made by an employee of the business broker instructed to negotiate the sale of the business by Fencott. Fencott had previously conducted the business through Scrid Nominees, but immediately prior to the transfer of the business, Oakland Nominees was substituted as trustee of the unit trust conducting the business. Oakland had been a shelf company prior to its appointment, never having engaged in trading or financial activities although it had wide powers to do so. Its sole function was to wind up the trust. ISSUE Oakland objected to the jurisdiction of the Federal Court on the basis that it was not a trading or financial corporation within s 51(xx) of the Constitution. The defendant individuals argued that it was beyond the power of the Commonwealth to create a right to recover damages against a natural person in respect of a contravention by a corporation. HELD Although Oakland had not engaged in any activities, its character as a trading corporation was established by the objects disclosed in its memorandum and articles. As a corporation acts through natural persons, the corporations power extends to enable the imposition of duties on natural persons in order to deter conduct which facilitates a breach by a corporation of duties validly imposed on the corporation and to make effective the sanctions directed at the corporation.

[88] FORGE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (2006) 228 CLR 45; 229 ALR 223 High Court of Australia Judicial power of the Commonwealth — Exercise by acting judge of State Supreme Court FACTS The Australian Securities and Investments Commission (ASIC) commenced proceedings against Forge in the Supreme Court of New South Wales seeking penalties, declarations and orders pursuant to the

Corporations Act 2001 (Cth). The proceedings were listed before an Acting Justice (being a retired judge of the Federal Court) appointed pursuant to s 37 of the Supreme Court Act 1970 (NSW). ISSUE Was the appointment of an acting judge inconsistent with the Supreme Court being a court that exercised the judicial power of the Commonwealth on the basis that the absence of security of tenure for the acting judge may impinge on his impartiality? [page 56] HELD The appointment of retired Federal Court judges as Acting Justices of the Supreme Court did not necessarily compromise the independence and impartiality of that Court. The Supreme Court was principally constituted of permanent judges. Section 37 of the Supreme Court Act and the appointment of the acting judge was not inconsistent with Ch III of the Constitution.

[89] FORTESCUE METALS GROUP LTD v COMMONWEALTH (2013) 250 CLR 548; 300 ALR 26 High Court of Australia Taxation power – Differential operation did not arise from discrimination FACTS The Minerals Resource Rent Tax Act 2012 (Cth) provided for the assessment of a tax payable by miners on ‘above normal’ profits. The tax payable varied depending upon the royalties paid by the miner to the State in which the mining was carried out. ISSUE The plaintiffs challenged the validity of the Act (and related legislation) on the basis that it infringed: s 51(ii) of the Constitution by

discriminating between States; s 91 by impeding the States in granting a bounty on mining iron ore; s 99 by giving a preference to some States; and the principle in Melbourne Corporation v Commonwealth by impairing or curtailing the ability of a State to function as a government by neutralising the effect of any royalty reduction made by a State. HELD The impugned legislation was valid. To the extent that the amount of tax paid varied from State to State, the variation was due to the different legislative regimes of the States and not the operation of the Mineral Resource Rent Tax Act. Accordingly, it did not breach s 51(ii). As the Act did not discriminate between States, there was no preference of one State over another for the purposes of s 99. Section 91 of the Constitution should not be read as prohibiting a law of the Commonwealth from impairing the ability of a State to provide assistance for mining. The impugned legislation did not impose any special burden or disability on the powers or functions of the States that curtailed their capacity to function as governments and so did not contravene the principle in Melbourne Corporation. [page 57]

[90] GEORGIADIS v AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORP (1994) 179 CLR 297; 119 ALR 629 High Court of Australia Acquisition of property — Extinguishment of common law cause of action FACTS Georgiadis suffered injury on five occasions in the course of his employment with Australian and Overseas Telecommunications Corp (AOTC). Before he commenced compensation proceedings, the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) came into force. The Act continued the compensation entitlements of

workers injured before the Act commenced, but in some cases it extinguished the right to sue for damages at common law. AOTC relied on the Act in its defence to common law actions brought by Georgiadis. ISSUE Was the Act invalid as an acquisition of property other than on just terms as required by s 51(xxxi) of the Constitution? HELD An acquisition of property within s 51(xxxi) extends to the extinguishment of a common law cause of action in circumstances where the extinguishment resulted in a direct benefit or financial gain to the Commonwealth.

[91] GIRIS PTY LTD v FEDERAL COMMISSIONER OF TAXATION (1969) 119 CLR 365 High Court of Australia Legislative power of the Commonwealth — Delegation of discretion FACTS The Income Tax Assessment Act 1936 (Cth) provided that unless the Commissioner of Taxation was satisfied that it was unreasonable, the income earned by a trust was to be assessed at a higher rate than income earned by individuals. Giris was a trustee of income producing property and objected to the Commissioner allowing the automatic assessment of the trust’s income to stand. ISSUE Giris argued that in conferring power upon the Commissioner to exercise a complete discretion, the provision amounted to an abdication of power by Parliament. [page 58]

HELD Parliament had delegated a discretion which was subject to judicial review for excessive exercises of that discretion. The delegation was not so complete as to constitute an abdication of legislative power.

[92] GORYL v GREYHOUND AUSTRALIA PTY LTD (1994) 179 CLR 463; 120 ALR 605 High Court of Australia Rights and freedoms discrimination

—

Freedom

from

interstate

FACTS Goryl, a resident of New South Wales, was a passenger on a bus owned and operated by Greyhound, a company incorporated in Queensland. She was injured during the trip when the bus was involved in a collision and sued for damages in the District Court of Queensland. The Motor Vehicles Insurance Act 1936 (Qld) restricted the level of damages recoverable by a non-resident of Queensland to the amount recoverable in their own State. Queensland residents who were injured in another State could still maintain a common law action in Queensland. ISSUE Was the Act invalid for infringing s 117 of the Constitution? HELD Section 117 of the Constitution relieved Goryl from the discrimination restricting her to recovery of a lesser amount of damages than if she was a resident of Queensland. ‘[T]he object of s 117 … is to foster the concept of Australian nationhood, recognising at the same time the capacity of the States to govern their own communities which is an essential feature of federation’, per Dawson and Toohey JJ at ALR 618.

[93] GOSFORD MEATS PTY LTD v NEW SOUTH WALES (1985) 155 CLR 368; 57 ALR 417 High Court of Australia

Duties of excise — Licence fee based on production in previous period FACTS The Meat Industry Act 1978 (NSW) prohibited any person from operating premises for the slaughter of animals without obtaining a licence. The licence fee was calculated on the basis of the number of animals slaughtered during the previous year. ISSUE Was the Act invalid as an indirect tax on a step in the production of meat products? HELD The licence fee was a duty of excise and invalid under s 90 of the Constitution. ‘Although Dennis Hotels has been allowed to stand as [page 59] an authoritative decision on its own facts, it would fly in the face of both principle and authority to accept it as establishing a general proposition that can be applied to a tax made payable, in the form of a licence fee, by a manufacturer or producer of goods’, per Mason and Deane JJ at CLR 385.

[94] GOULD v BROWN (1998) 193 CLR 346; 151 ALR 395 High Court of Australia Separation of powers — Cross-vesting of State judicial power FACTS The Federal Court had ordered the winding up of a company pursuant to the Corporations Law (NSW). The liquidator of the company applied for orders that certain persons attend before the Court for examination.

ISSUE Could the Federal Court exercise State jurisdiction? HELD There is no necessary constitutional barrier to the courts of one polity in the Australian Commonwealth exercising jurisdiction conferred on them by a parliament of the other polity. As the Federal Court was only being invested with judicial power, as that term is understood in Ch III of the Constitution, there was no constitutional inhibition against the reception and exercise of that jurisdiction by the Federal Court.

[95] GROLLO v COMMISSIONER OF AUSTRALIAN FEDERAL POLICE (1995) 184 CLR 348; 131 ALR 225 High Court of Australia Separation of powers — Power conferred on federal judges to issue search warrants FACTS During an investigation into offences alleged to have been committed by the applicant, a member of the Australian Federal Police obtained a search warrant authorising the interception of the applicant’s mobile telephone service. The warrant was issued by a judge of the Federal Court, who had consented to act as a repository of the power. ISSUE The applicant sought a declaration that the provisions of the Telecommunications (Interception) Act 1979 (Cth) which authorised the issue of warrants, were invalid on the basis that non-judicial power had been conferred on judges of a court, inconsistently with the requirements of Ch III of the Constitution, infringing the principle of the separation of powers. [page 60] HELD ‘The conditions thus expressed on the power to confer non-judicial functions on Judges as designated persons are twofold: first, no non-judicial

function that is not incidental to a judicial function can be conferred without the Judge’s consent; and, second, no function can be conferred that is incompatible either with the Judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (the incompatibility condition)’, per Brennan CJ, Deane, Dawson and Toohey JJ at ALR 235. As the provisions conferring the power on the designated judges to issue warrants did not infringe either of the conditions, they did not infringe the principle of the separation of powers and were not invalid.

[96] GYPSY JOKERS MOTORCYCLE CLUB INC v COMMISSIONER OF POLICE (2008) 234 CLR 532; 242 ALR 191 High Court of Australia Judicial power of the Commonwealth — Independence and impartiality of State Supreme Court not compromised FACTS The Corruption and Crime Commission Act 2003 (WA) authorised the Commissioner of Police to apply to the Corruption and Crime Commission for the issue of a warning notice to the occupier of premises concerning fortifications of the premises. Section 76 of the Act conferred jurisdiction on the Supreme Court of Western Australia to review the decision to issue a warning notice. Section 76(2) of the Act provided that information tendered to the Court in review proceedings be kept confidential if the disclosure might prejudice the operations of the Commissioner of Police. The Commission had issued a warning notice to the Club. The Club then applied for a review of the decision. ISSUE Did s 76(2) impose a restriction on the jurisdiction of the Supreme Court and deny procedural fairness in a manner inconsistent with the Court’s role as a body exercising the judicial power of the Commonwealth under Ch III of the Constitution?

HELD Section 76(2) of the Act required the Supreme Court to determine whether information was to be kept confidential. The section did not constrain the Supreme Court’s independent performance of its review function. Nor did the section impose an impermissible direction on the Court inconsistent with its role under Ch III of the Constitution. [page 61]

[97] HA v NEW SOUTH WALES (1997) 189 CLR 465; 146 ALR 355 High Court of Australia Duties of excise — Licence fees were a tax on step in production or distribution FACTS The appellants were retailers and wholesalers of tobacco, but did not hold the requisite licences under the Business Franchise Licences (Tobacco) Act 1987 (NSW). The licence fees were calculated by reference to the volume of tobacco sold. Notices of assessments were issued to the plaintiffs demanding payment of the amounts due to the Chief Commissioner under the Act. ISSUE Were the licence fees invalid as duties of excise? HELD By a majority of 4:3, the licence fees were invalid under s 90 of the Constitution as imposing duties of excise. Since Parton v Milk Board (Vic) it has been accepted that a duty of excise is an inland tax on a step in production, manufacture, sale or distribution and there was no reason to overturn that case.

[98] HARPER v MINISTER FOR SEA FISHERIES (1989) 168 CLR 314; 88 ALR 38

High Court of Australia Duties of excise — Licence fee to harvest abalone not a tax FACTS The Sea Fisheries Regulations (Tas) prohibited the taking of abalone in State fishing waters without a licence. The licence fee was calculated on the quantity of abalone taken. The Regulations also limited the quantity of abalone allowed to be harvested. ISSUE Were the Regulations invalid as duty of excise within s 90 of the Constitution? HELD The licence fee was charged for the privilege of exploiting a limited natural resource and so did not bear the character of a tax. Accordingly, it was not a duty of excise. ‘A fee paid to obtain such a privilege is analogous to the price of a profit a prendre; it is a charge for the acquisition of a right akin to property. Such a fee may be distinguished from a fee exacted for a licence merely to do some act which is otherwise prohibited (for example, a fee for a licence to sell liquor) where there is no resource to which a right of access is obtained by payment of the fee’, per Brennan J at CLR 335. [page 62]

[99] HARRINGTON v LOWE (1996) 190 CLR 311; 136 ALR 42 High Court of Australia Separation of powers — Infringed by rule-making power conferred on courts FACTS The parties were divorced in 1986. In 1990 the appellant commenced proceedings for a property alteration in the Family Court of Australia. Two conciliation conferences were held and an oral agreement was reached for the resolution of the proceedings and consent orders were

made. In 1993 the respondent sought to enforce the orders. The appellant sought to have the orders set aside on the ground that they did not reflect the agreement of the parties. Order 24 rr 1(8) and 1(9) of the Family Law Rules provided that evidence of conversations at the conciliation conferences was not admissible in a court. The trial judge held that the subrules were ultra vires the rule-making power of the judges of the Court, and admitted evidence of the conversations that occurred at the conciliation conferences. ISSUE Was s 123 of the Family Law Act 1975 (Cth), in conferring the rule-making power on the judges of the Family Court, consistent with the requirements of Ch III of the Constitution? HELD The rule-making power that can be conferred upon a court constituted under Ch III of the Constitution is limited to provisions concerning the practice and procedure of that court. As subrules 1(8) and 1(9) did more than encompass the general law of privilege in respect of without prejudice communications, they were not limited to matters of practice and procedure. Further, the subrules also departed from, and were inconsistent with, the Family Law Act. Accordingly, the subrules were invalid and the trial judge was correct to admit the evidence.

[100] HARRIS v CALADINE (1991) 172 CLR 84; 99 ALR 193 High Court of Australia Separation of powers — Not infringed by delegation of power to Registrar FACTS The parties were married and had made applications to the Family Court for a property settlement. A deputy registrar made a consent order signed by each of the parties. Harris then applied for a review of [page 63]

the order, seeking a larger proportion of the property. The application for review was dismissed by a single judge of the Court. ISSUE Harris appealed on the basis that the Family Law Act 1975 (Cth) was invalid in so far as it purported to delegate the power to make consent orders to registrars. She argued that as the registrars were not part of the Court, the delegation infringed the principle of separation of powers in s 71 of the Constitution. HELD The delegation of power to the registrars to exercise certain judicial functions did not offend the principle of the separation of powers in s 71, even though the registrars lacked the tenure prescribed by s 72. Such a delegation was only permissible on the basis that the judges of the court had effective supervision by way of judicial review of any order made.

[101] HASKINS v COMMONWEALTH (2011) 244 CLR 22; 279 ALR 434 High Court of Australia Judicial power of the Commonwealth – Not exercised by legislation validating punishment FACTS The plaintiff, an able seaman in the Royal Australian Navy, was convicted of offences by the Australian Military Court, under the Defence Force Discipline Act 1982 (Cth) in relation to the misuse of a travel card. He served a period of detention as a consequence. ISSUE The plaintiff argued that the provisions of the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) pursuant to which he was sentenced, and which had been enacted to address issues raised by Lane v Morrison, constituted a bill of pains and penalties without the safeguards of a judicial trial or otherwise usurped the exercise of judicial power by the Australian Military Court in contravention of Ch III of the Constitution and were therefore invalid.

HELD The power to impose punishment by way of detention was not limited to Ch III courts. Accordingly, there was no usurpation of judicial power. An Act is not constitutionally invalid simply because it matches the description of a bill of pains and penalties. In any event, the impugned provisions did not have the prohibited features of a bill of pains and penalties as they did not contain a legislative determination of guilt or make crimes of acts after they had been performed. [page 64]

[102] HC SLEIGH LTD v SOUTH AUSTRALIA (1977) 136 CLR 475; 12 ALR 449 High Court of Australia Duties of excise — Licence fee calculated on goods sold in previous year FACTS The Business Franchise (Petroleum) Act 1974 (SA) prohibited the sale of petroleum products without a licence. The licence fee was calculated on the basis of the licensee’s turnover of petroleum products during the preceding year. ISSUE Was the Act invalid for imposing excise duties in contravention of s 90 of the Constitution? HELD The licence fee was not a duty of excise. Gibbs and Stephen JJ held that because the licence fee was calculated on the basis of the value of the products sold during a previous period, the fee was not a duty of excise. Mason J, with whom Barwick CJ agreed, held that there was no basis for overruling Dennis Hotels or Dickenson’s Arcade, as to do so would disturb legislative and financial arrangements made on the faith of those decisions. Mason J also held that the submission that Kailis’ case overruled Dennis Hotels and Dickenson’s Arcade was misconceived.

[103] HEALTH INSURANCE COMMISSION v PEVERILL (1994) 179 CLR 226; 119 ALR 675 High Court of Australia Acquisition of property — No acquisition effected by retrospective reduction of statutory entitlements FACTS Peverill commenced proceedings seeking to recover moneys owing to him by way of assignment of Medicare benefits. The Commission disputed the item in the Health Insurance Act 1973 (Cth) under which the claim was to be paid. The Federal Court held that the Commission was in error. Peverill then sued to recover further benefits for other services he had provided. While both actions were on foot, the Health Insurance (Pathology Services) Amendment Act 1991 (Cth) was passed. Its effect was to retrospectively reduce the fee payable for the services provided by Peverill. The Commission amended its defence to rely on the Amendment Act. ISSUE Was the Amendment Act invalid as a law providing for the acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution? Was that Act invalid for inserting provisions imposing taxation into the Health Insurance Act contrary to s 55 of the Constitution? [page 65] HELD The Amendment Act did not offend s 51(xxxi) because the variation of the statutory entitlement to receive benefits was not an acquisition of property within that section. The section is directed to requisition not voluntary acquisition. ‘[W]hat is involved is a variation of a right which is inherently susceptible of variation and the mere fact that a particular variation involves a reduction in entitlement and is retrospective does not convert it into an acquisition of property’, per Mason CJ, Deane and Gaudron JJ at ALR 680. Further, the Amendment Act was not a law imposing taxation contrary to s 55 as there was no requirement to make a payment to the Commonwealth.

[104] HEMATITE PETROLEUM PTY LTD v VICTORIA (1983) 151 CLR 599; 47 ALR 641 High Court of Australia Duties of excise — Practical effect of licence fees FACTS The Pipelines Act 1967 (Vic) prohibited the construction or operation of a pipeline unless a licence had been obtained. The licence fees were set by the Pipeline Fees Act 1981 (Vic) at a fixed amount for a trunk pipeline and on a per kilometre basis for every other pipeline. Hematite Petroleum recovered oil and gas from Bass Strait which was carried to Longford on the east coast of Victoria where it was separated into crude oil, liquefied petroleum gas and natural gas. The crude oil and LPG was then piped to Westernport. The natural gas was sold to the Gas and Fuel Corporation who piped it to Melbourne. ISSUE The plaintiffs sought a declaration that the licence fees were invalid as duties of excise under s 90 of the Constitution. HELD The licence fees were an excise duty as the practical effect of the licence fees was to impose a tax on an essential step in production. ‘That the object of the power was to secure a real control over the taxation of commodities provides strong support for a broad view of what is an excise, one which embraces all taxes upon or in respect of a step in the production, manufacture, sale or distribution of goods for any such tax places a burden on production’, per Mason J at CLR 632.

[105] HILTON v WELLS (1985) 157 CLR 57; 58 ALR 245 High Court of Australia Separation of powers — Not infringed by conferral of power on judges to issue search warrants

FACTS The Telecommunications (Interception) Act 1979 (Cth) prohibited the interception of communications except with a warrant [page 66] authorised by a judge of the Federal Court. Two Federal Court judges issued six warrants to Wells, a member of the Australian Federal Police, for the interception and recording of telephone conversations involving Hilton. Based on the evidence obtained, Hilton was charged with conspiring to bribe a State Minister. ISSUE Was it unconstitutional for Federal Court judges to be vested with the power to issue warrants, an acknowledged administrative function? HELD The Act appointed judges as a designated group of persons to exercise the power, not the Federal Court. Accordingly, the principle of separation of powers was not infringed. ‘Although the Parliament cannot confer non-judicial powers on a federal court, or invest a State court with a non-judicial power, there is no necessary constitutional impediment which prevents it from conferring non-judicial power on a particular individual who happens to be a member of the court’, per Gibbs CJ, Wilson and Dawson JJ at CLR 68.

[106] HOGAN v HINCH (2011) 243 CLR 506; 275 ALR 408 High Court of Australia Separation of powers – Power to make suppression order FACTS The respondent, a media personality, was charged with contravening suppression orders made under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) after naming convicted sex offenders at a public rally and on his website.

ISSUE The respondent challenged the validity of s 42 on multiple bases. First he asserted that it conferred a function on the Court that distorted its institutional integrity. Second, he argued that the provision was contrary to the principle that Courts must be open to, and conduct their proceedings in, public. Third, he submitted that the provision infringed the implied freedom of political communication by inhibiting the ability to criticise legislation and the manner in which it was applied and to seek changes and disseminate information about proceedings. HELD The power to make a suppression order was enlivened if the Court considered that it was in the public interest to do so. That criterion for the exercise of the power did not impermissibly affect the impartiality of the State Court so as to affect its institutional integrity and render it an inappropriate repository of federal judicial power. The operation of the suppression order did not result in proceedings not being dealt with in public. Section 42 merely operated to prevent publication of certain evidence. Accordingly, there was no breach of the requirement that court proceedings be conducted in public. Whilst the Act did place a burden [page 67] on the implied freedom of political communication, its provisions were reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative government.

[107] HORTA v COMMONWEALTH (1994) 181 CLR 183; 123 ALR 1 High Court of Australia External affairs power — Validity of international treaty FACTS Australia and Indonesia entered into a treaty in 1989 regulating

the exploration for, and exploitation of, petroleum resources in the area of the Timor Gap. In 1990 the Commonwealth Parliament enacted the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (Cth) in order to implement the treaty. ISSUE The plaintiffs, a group of East Timorese, claimed that the Commonwealth Parliament did not have jurisdiction to enact the legislation on the basis the treaty was void under international law and that entry into the treaty, its terms and performance of them by Australia, was inconsistent with, or in breach of, Australia’s obligations under customary international law. HELD The Act concerned matters geographically external to Australia which had an obvious and substantial nexus with Australia, and so was prima facie a law within the external affairs power in s 51(xxix) of the Constitution. There is no requirement in the Constitution that the Commonwealth’s legislative power is confined within the limits of Australia’s legislative competence as recognised by international law. ‘[E]ven if the Treaty were void or unlawful under international law or if Australia’s entry into or performance of the Treaty involved a breach of Australia’s obligations under international law, the Act and the Consequential Act would not thereby be deprived of their character as laws with respect to “External affairs” for the purposes of s 51(xxix)’, per curiam at ALR 6.

[108] HUDDART PARKER LTD v COMMONWEALTH (1931) 44 CLR 492 High Court of Australia Trade and commerce power — Matters ancillary to interstate trade and commerce FACTS Huddart Parker was a shipowner engaged in interstate shipping and employed waterside workers in various Australian ports. The Transport

[page 68] Workers (Waterside) Regulations (Cth) provided that priority was to be given to members of the Waterside Workers Federation in relation to the employment of workers for loading and unloading interstate and overseas ships. ISSUE Did the power in s 51(i) of the Constitution authorise the Commonwealth to regulate the basis of employment? HELD The Commonwealth Parliament could legislate to give preference to union members as it was an ancillary or incidental matter to the interstate trade and commerce. The legislation was valid because it ‘directly regulates the choice of persons to perform the work which forms part of or is an incident in interstate and external commerce. It does so in spite of the fact that it affects employers in the selection of their servants and in spite of the industrial aspects which the provision undeniably presents’, per Dixon J at 515–16.

[109] HUDDART PARKER & CO PTY LTD v MOOREHEAD (1909) 8 CLR 330 High Court of Australia Commonwealth–State relations — Doctrine of reserved State powers FACTS The Australian Industries Preservation Act 1906 (Cth) prohibited combinations in restraint of trade and trade monopolies in relation to all trade and commerce within Australia by foreign corporations and trading and financial corporations formed within the Commonwealth. Moorehead laid an information against Huddart Parker alleging that the company was in breach of the Act.

ISSUE The company appealed against its conviction arguing that it was beyond the power of the Commonwealth to regulate corporate activity, the control of which was said to be exclusively reserved to the States. HELD The Act was not a valid exercise of the corporations power in s 51(xx) of the Constitution. The majority, acting under the influence of the reserved powers doctrine, held that the corporations power did not empower the Commonwealth to control the operations of corporations in a field of activity, the control of which was reserved to the States. Mr Justice Isaacs, in a strong dissent, said that s 51(xx) empowered the Commonwealth to ‘regulate the conduct of corporations in their transactions with or as affecting the public’, at 395. Note: The case was overruled in Strickland v Rocla Concrete Pipes Ltd. [page 69]

[110] ICM AGRICULTURE PTY LTD v COMMONWEALTH (2009) 240 CLR 140; 261 ALR 653 High Court of Australia Acquisition of property — No acquisition by reduction of statutory entitlements FACTS The Commonwealth and a number of the State and Territory governments entered into an agreement in 2004 to establish a national water management regime. Part of the agreement required New South Wales to achieve a reduction in water entitlements granted under the Water Act 1912 (NSW). ICM conducted farming operations and held bore licences under the Water Act that entitled it to extract groundwater which was used to irrigate its properties. Commencing in 2008, ICM’s bore licences were replaced with licences granted pursuant to the Water Management Act 2000 (NSW) that reduced its entitlement to take water.

ISSUE ICM argued that the replacement of its licences under the Water Act with the licences pursuant to the Water Management Act constituted an acquisition of property for which just compensation was not paid. It was also argued that the funding agreement between the Commonwealth and the States, based on s 96 of the Constitution, was subject to the requirement of ‘just terms’ contained in s 51(xxxi) of the Constitution. HELD The groundwater that ICM was permitted to extract under licence was not the subject of private rights enjoyed by it. Instead, the water was a natural resource, and the State always had the power to limit the volume of water to be taken, which it did from time to time. Accordingly, the cancellation of the licences granted under the Water Act did not constitute an ‘acquisition’ of property by the State within the meaning of s 51(xxxi) of the Constitution. The power conferred by s 96 and s 51(xxxvi) of the Constitution does not extend to the grant of financial assistance by the Commonwealth to a State on terms and conditions requiring the State to acquire property on other than just terms.

[111] INGLIS v COMMONWEALTH TRADING BANK OF AUSTRALIA (1969) 119 CLR 334 High Court of Australia High Court — Original jurisdiction FACTS Inglis sought to restrain the defendant from taking any action under a notice of demand served pursuant to a mortgage. He made the application in the High Court on the basis that the Bank was a person [page 70] sued on behalf of the Commonwealth. The Bank sought to have the writ

struck out on the basis that it was not a person capable of being sued on behalf of the Commonwealth. ISSUE Was the Bank a person sued on behalf of the Commonwealth within s 75(iii) of the Constitution? HELD The Bank was established as an instrument by which the Commonwealth could participate in the business of banking. It was, therefore, properly sued on behalf of the Commonwealth within s 75(iii) of the Constitution. The purpose of s 75(iii) ‘was to ensure that the Commonwealth either in its form as established under the Constitution, or in any form with which it may lawfully clothe itself should not be compelled to pursue its rights in the courts of the States’, per Barwick CJ at 335.

[112] INTERNATIONAL FINANCE TRUST CO LTD v NEW SOUTH WALES CRIME COMMISSION (2009) 240 CLR 319; 261 ALR 220 High Court of Australia Separation of powers — Exercise of function by State court repugnant to judicial process FACTS The respondent sought restraining orders under s 10 of the Criminal Assets Recovery Act 1990 (NSW) in relation to various bank and share trading accounts over which the International Finance Trust (IFT) exercised effective control. Under s 10(3) of the Act the Supreme Court was required to make such an order if the application was supported by an affidavit which deposed to the grounds upon which the officer suspected the property was derived from the proceeds of ‘serious crime activity’ and, having regard to the matters raised in the affidavit, the Supreme Court considered that there were reasonable grounds for the suspicion. Section 25 of the Act provided that the party whose property is affected by such an order could apply for an order excluding those interests provided it could prove that it

was more probable than not the property was not acquired fraudulently or illegally. ISSUE IFT asserted that s 10 was invalid on the basis that it was designed to engage the Supreme Court in activity that was repugnant to its role as a court in which the judicial power of the Commonwealth had been vested. HELD Section 10 of the Criminal Assets Recovery Act was invalid. ‘The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the [page 71] possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. [As such, s 10 engaged] the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia’, per Gummow and Bell JJ at [97]–[98].

[113] JACOBSEN v ROGERS (1995) 182 CLR 572; 127 ALR 159 High Court of Australia Commonwealth–State relations Commonwealth law to State

—

Application

of

FACTS A magistrate issued two search warrants under s 10 of the Crimes Act 1914 (Cth) authorising the appellants to enter the premises of the Western Australian Department of Fisheries and seize certain documents concerning alleged income tax offences being investigated by the Australian

Federal Police. The director of the Department sought a declaration that s 10 did not authorise the issue of the warrants. ISSUE Did s 10 bind the Crown in right of Western Australia? HELD There is a presumption that a Commonwealth law is not intended to bind the Crown in right of a State. The purpose of s 10 rebutted that presumption. The majority held that ‘it cannot have been intended by the legislature that a search warrant issued under s 10 of the Crimes Act should stop short of Crown premises with the result that criminal offences might go unpunished or, at the very least, that their investigation and prosecution might be made difficult’, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ at ALR 164–5. Accordingly, the Crown was bound by the section. However, it was open to the Crown to resist production of the documents if a privilege from production was available.

[114] JOHN HOLLAND PTY LTD v VICTORIAN WORKCOVER AUTHORITY (2009) 239 CLR 518; 260 ALR 95; 260 ALR 103 High Court of Australia Inconsistency between Commonwealth and State laws — No operational inconsistency FACTS Upon the commencement in 2007 of amendments to the Occupational Health and Safety Act 1991 (Cth), the plaintiff became subject to the regime established by that Act. In 2008, it was prosecuted in Victoria under the Occupational Health and Safety Act [page 72] 2004 (Vic) for offences allegedly committed under that Act in 2006. In separate proceedings, it was prosecuted in New South Wales under the

Occupational Health and Safety Act 2000 (NSW) for offences allegedly committed under that Act in 2005. ISSUE The plaintiff argued that pursuant to s 109 of the Constitution, it could not be charged with offences under each of the State Acts after it had become subject to the Commonwealth Act. HELD There was no inconsistency between the State Acts and the Commonwealth Act to the extent that the State Acts authorised the prosecution of the plaintiff for offences committed before the company became subject to the Commonwealth regime.

[115] JT INTERNATIONAL SA v COMMONWEALTH (2012) 250 CLR 1; 291 ALR 669 High Court of Australia Acquisition of property on just terms – Acquisition requires conferral of proprietary interest FACTS The Tobacco Plain Packaging Act 2011 (Cth) regulated the retail packaging and appearance of tobacco products. It limited the extent to which trademarks could be used and required warnings to be displayed. ISSUE Did the Act contravene s 51(xxxi) of the Constitution by acquiring the intellectual rights of the plaintiffs, in relation to tobacco products, otherwise than on just terms? HELD For there to be an acquisition of property within s 51(xxxi) of the Constitution, it is necessary that the Commonwealth or another person obtain a proprietary interest or benefit. As the Tobacco Plain Packaging Act did not confer an interest or benefit of a proprietary nature on the Commonwealth or another person, it did not infringe s 51(xxxi).

[116] Re JUDICIARY AND NAVIGATION ACTS (THE

ADVISORY OPINIONS CASE) (1921) 29 CLR 257 High Court of Australia High Court — Jurisdiction FACTS Part XII of the Judiciary Act 1903 (Cth) authorised the GovernorGeneral to refer to the High Court for its determination ‘any question of law as to the validity of any Act or enactment of the Parliament’. Pursuant to the Act and with the advice of the Executive Council, the Governor[page 73] General referred the question of whether certain parts of the Navigation Act 1912 (Cth) were valid. The question was at large, in that there was no particular dispute involving specific parties and their immediate rights. ISSUE The Victorian Attorney-General disputed the Court’s jurisdiction to answer the question. Various shipping companies appeared to support the validity of the Judiciary Act. HELD The making of an authoritative decision on the validity of legislation was a judicial function, but as the reference proceedings did not involve a ‘matter’ within ss 75, 76 or 77 of the Constitution, they were not within the judicial power of the Commonwealth and the High Court did not have jurisdiction. ‘[W]e can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved’, per curiam at 267.

[117] JUMBUNNA COAL MINE NL v VICTORIAN COAL MINERS’ ASSOCIATION (1908) 6 CLR 309

High Court of Australia Conciliation and arbitration power — Definition of industrial dispute FACTS The Victorian Coal Miners’ Association was registered under the Conciliation and Arbitration Act 1904 (Cth). Jumbunna objected to the registration on the basis that as the Association’s activities were confined to Victoria, the Association could only be concerned with industrial disputes in Victoria. ISSUE Was a union whose membership was confined to one State capable of being involved in an industrial dispute extending beyond the limits of any one State? HELD The Commonwealth Parliament had the power under s 51(xxxv) of the Constitution to provide for the incorporation and registration of trade unions. As the Association could join with workers from other States in a common purpose to form an industrial dispute extending beyond the limits of any one State, it was not necessary that the Association’s membership be drawn from more than one State. ‘Where the workmen of both States combine to take united action for the purpose of gaining the same alteration of conditions of employment in both States it is immaterial whether the combination is of individuals or of unions, whether the unit of combination is the workman or the union’, per O’Connor J at 353. [page 74]

[118] KABLE v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (1996) 189 CLR 51; 138 ALR 577 High Court of Australia Separation of powers — Exercise of non-judicial power by

State court FACTS The Community Protection Act 1994 (NSW) empowered the Supreme Court to order that a person be detained in prison, if the Court was satisfied that the person was more likely than not to commit a serious act of violence. The Act was expressed to apply only to the appellant. ISSUE The appellant challenged the validity of the Act on several bases, including the assertion that Ch III of the Constitution impliedly prevents the Parliament of a State from conferring powers on the Supreme Court of the State which are repugnant to, or inconsistent with, the exercise by the Court of the judicial power of the Commonwealth. HELD The Act was invalid as it was incompatible with Ch III of the Constitution. ‘Because the State courts are an integral and equal part of the judicial system set up by Ch III, it also follows that no State or federal Parliament can legislate in a way that might undermine the role of those courts as repositories of federal judicial power. Thus, neither the Parliament of New South Wales nor the Parliament of the Commonwealth can invest functions in the Supreme Court of New South Wales that are incompatible with the exercise of federal judicial power’, per McHugh J at ALR 622.

[119] KARTINYERI v COMMONWEALTH (THE HINDMARSH ISLAND BRIDGE CASE) (1998) 195 CLR 337; 152 ALR 540 High Court of Australia Race power — Removal of protection of culturally significant land FACTS The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) established a scheme for the protection of places of cultural significance to Aborigines. The Hindmarsh Island Bridge Act

1997 (Cth) provided that a certain area of land would no longer be protected by the ATSIHP Act. ISSUE Was the Hindmarsh Island Bridge Act supported by s 51(xxvi) of the Constitution? [page 75] HELD The effect of the Hindmarsh Island Bridge Act was to reduce the ambit of the ATSIHP Act which had been enacted pursuant to the power in s 51(xxvi). Accordingly, the Hindmarsh Island Bridge Act was also a valid exercise of the power in s 51(xxvi) of the Constitution.

[120] K-GENERATION PTY LTD v LIQUOR LICENSING COURT (2009) 237 CLR 501; 252 ALR 471 High Court of Australia Separation of powers — Independence and impartiality of State court not affected FACTS K-Generation applied to the South Australia Liquor Commissioner for a licence pursuant to the Liquor Licensing Act 1997 (SA). The South Australian Police Commissioner provided evidence under s 28A of the Act concerning the director of K-Generation which was declared to be ‘criminal intelligence’ under s 28A(2) and not provided to K-Generation. The Liquor Commissioner refused the application for a licence. KGeneration applied for review of the decision to the Licensing Court, which affirmed the decision. Section 28A(5) required the Court to maintain the confidentiality of ‘criminal intelligence’. K-Generation then commenced proceedings in the Supreme Court of South Australia to challenge the validity of s 28A.

ISSUE Was s 28A of the Liquor Licensing Act invalid on the basis that it was incompatible with the status of the Licensing Court and the Supreme Court as courts in which judicial power of the Commonwealth could be invested under s 77(iii) of the Constitution? HELD Section 28A was valid. The classification of information as ‘criminal intelligence’ was a matter to be determined by the Court. Accordingly, the section did not operate to deny the Licensing Court and the Supreme Court the constitutional requirement that they be independent and impartial tribunals.

[121] KIRK v INDUSTRIAL COURT OF NEW SOUTH WALES (2010) 239 CLR 531; 262 ALR 569 High Court of Australia Jurisdiction of States — Limitation of powers of Supreme Court inconsistent with Ch III FACTS Palmer was employed by Kirk Group Holdings to manage and run a farm. Kirk was a director of the company but did not take an active role [page 76] in the running of the farm. Palmer was killed when an all-terrain vehicle that he was riding, overturned. It had not been necessary for Palmer to take this route as a formed road was available. The Industrial Court of New South Wales convicted the company of offences under ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (OHS Act) which required employers to ensure the health and safety of their employees and to ensure that their employees were not exposed to risks to their health and safety. Section 50 of the OHS Act deemed Kirk to have contravened the same provisions. Section 179 of the Industrial Relations Act 1996 (NSW)

provided that decisions of the Industrial Court were final and could not be appealed, reviewed, quashed or called into question by any court or tribunal. ISSUE Kirk and the company sought to challenge the convictions. They argued that s 179 was constitutionally invalid as beyond the legislative power of the State to limit the jurisdiction of the Supreme Court by taking from it the power to grant relief for jurisdictional error. HELD ‘It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. … A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, … also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error. … If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court’s authority. … A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [55]. Accordingly, s 179 of the Industrial Relations Act was construed so as not to exclude the jurisdiction of the Supreme Court to grant relief in the nature of prohibition, certiorari or mandamus.

[122] KOOWARTA v BJELKE-PETERSEN (1982) 153 CLR 168; 39 ALR 417 High Court of Australia External affairs power — Legislation enacting international convention FACTS

Australia ratified the International Convention on the

Elimination of All Forms of Racial Discrimination. The Racial [page 77] Discrimination Act 1975 (Cth) was enacted to give effect to the Convention. The Aboriginal Development Commission entered into a contract with the lessees of Crown land in Queensland to purchase that leasehold on behalf of the Winychanam people. The Minister for Lands refused to approve the transfer of the lease. The refusal was based upon the declared Government policy which opposed proposals to acquire large areas of land for development by Aborigines. Koowarta, one of the Winychanam people, began proceedings against the Premier of Queensland under the Racial Discrimination Act. ISSUE Did the power in s 51(xxix) of the Constitution enable the Commonwealth to enact laws to implement the Convention? HELD The Racial Discrimination Act was a valid exercise of the external affairs power. ‘[T]here exists a quite precise treaty obligation, on a subject of major importance in international relationships, which calls for domestic implementation within Australia. This in itself, without more, suffices to bring the Racial Discrimination Act within the terms of s 51(xxix)’, per Stephen J at CLR 221.

[123] KRUGER v COMMONWEALTH (THE STOLEN GENERATIONS CASE) (1997) 190 CLR 1; 146 ALR 126 High Court of Australia Territories power — Requires nexus with Territory FACTS The plaintiffs were Aborigines from the Northern Territory who had been removed from their parents and families when they were young

children. They had then been detained in Aboriginal institutions or reserves. The plaintiffs sought damages and declarations that the Aboriginals Ordinance 1918 (NT), which authorised their removal and detention, was invalid on the grounds that it infringed a number of implied constitutional rights. ISSUE Was the Ordinance a valid exercise of the territories power in s 122 of the Constitution? HELD All that must be shown to support an exercise of the power under s 122 of the Constitution is that there is a sufficient nexus or connection between the law and a territory. As the Ordinance did not purport to authorise any acts done for the purpose or with the intention of causing harm, it was unnecessary to determine whether there was any implied constitutional prohibition of genocide. There is nothing in the text or structure of the Constitution which requires the implication of a doctrine of substantive equality of treatment of all persons. Nor is there any implied [page 78] constitutional right to due process of law. Even if the Constitution contains an implied right to freedom of movement and association, such an implied right would not have invalidated the Ordinance. The Ordinance did not have the effect of limiting the plaintiffs’ freedom of religion and did not infringe s 116 of the Constitution. As detention of the plaintiffs was for a welfare purpose, the detention was not punitive and there was no exercise of federal judicial power. Accordingly, there was no infringement of the requirements of Ch III of the Constitution. There is no basis for construing the Constitution as conferring additional private rights for damages over and above those provided by common law.

[124] KUCZBORSKI v QUEENSLAND (2014) 254 CLR 51; 314 ALR 528

High Court of Australia Separation of powers – Conferral of functions not repugnant to judicial process FACTS The plaintiff was a member of the Hells Angels Motorcycle Club. He sought declarations that three categories of provisions in the Vicious Lawless Association Disestablishment Act 2013 (Qld), Criminal Code (Qld), Liquor Act 1992 (Qld) and Bail Act 1980 (Qld) were invalid. Three categories of provisions were challenged. The first category of provisions provided that if a designated offence had been proven against a person, a more severe penalty would apply if the person was a participant of a criminal organisation. The second group of provisions purported to create new offences, an element of which was that the accused was a participant in a criminal organisation. The third category of provisions reversed the presumption of bail where the applicant was alleged to be a participant in a criminal organisation. The Hells Angels Motorcycle Club was declared to be a criminal organisation. ISSUE The plaintiff argued that the challenged legislation conferred nonjudicial power on a court exercising the judicial power of the Commonwealth, contrary to the principle in Kable v DPP (NSW). HELD The plaintiff did not have standing to challenge the provisions of the Vicious Lawless Association Disestablishment Act and the Bail Act because he had not been charged with a designated offence under those provisions. In relation to the provisions under the Criminal Code and the Liquor Act, he had standing to challenge those provisions as they affected his freedom of association. The provisions of the Criminal Code and the Liquor Act did not infringe the principle in Kable. They only made membership of a criminal organisation an ingredient of the offences. The offences still had to be proven, and the provisions did not enlist the courts to implement policies of the Executive or Legislature. [page 79]

[125] LANE v MORRISON (2009) 239 CLR 230; 258 ALR 404 High Court of Australia Judicial power of the Commonwealth – Exercise by Australian Military Court FACTS Lane was an enlisted member of the Royal Australian Navy. He was charged, under the Defence Force Discipline Act 1982 (Cth) with having committed an act of indecency without consent and with assaulting a superior officer. Morrison, a Military Judge of the Australian Military Court, was appointed to conduct a court martial to try the charges against Lane. The Australian Military Court was created by s 114 of the Act. ISSUE Was the manner of the appointment and the tenure of the Military Judges contrary to the requirements of Ch III of the Constitution such that the Court was not competent to exercise the judicial power of the Commonwealth? HELD The Australian Military Court was exercising the judicial power of the Commonwealth because it was given the power to make binding and authoritative determinations of the issues of fact and law arising in trials of offences. As the Military Judges appointed to that Court did not have the tenure and security of remuneration required by s 72 of the Constitution, the Act was inconsistent with Ch III of the Constitution and therefore invalid.

[126] LANGE v AUSTRALIAN BROADCASTING CORPORATION (1997) 189 CLR 520; 145 ALR 96 High Court of Australia Rights and freedoms — Implied right of communication FACTS The plaintiff, a former Prime Minister of New Zealand, brought an

action for defamation against the defendant in respect of comments made during a television program. ISSUE The defendant relied on Theophanous and Stephens and argued that the broadcast was protected by the implied constitutional protection of communication concerning matters relating to government and politics. The plaintiff argued that neither the decision in Theophanous nor Stephens had any application to the discussion of matters involving the Government of New Zealand. He also argued that Theophanous and Stephens were wrongly decided. [page 80] HELD The Constitution was intended to, and to the extent allowed by its text and structure, clearly does, provide for the institutions of representative and responsible government. Freedom of communication between electors and candidates concerning government and political matters is central to that system of representative government and is created by the direction that the members of the House of Representatives and the Senate are to be ‘directly chosen by the people’. While the Constitution necessarily protects that freedom of communication, the protection is not absolute. The Constitution only precludes the curtailment of the freedom by the exercise of legislative or executive power, it does not confer personal rights on individuals. Accordingly, the defence based on Theophanous and Stephens was bad in law. The Court then held that the Defamation Act was reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation. In circumstances where the claim of qualified privilege under the Defamation Act is based upon the fact that the publication took place in the course of discussion of government or political matters, then the defendant must establish that its conduct was reasonable. In this case, further particulars were required in order to bring the publication within the defence. The Court was prepared to reconsider Theophanous and Stephens as it was arguable that neither decision contained a binding statement of

constitutional principle. This was due to the fact that, in each of those cases, although Deane J agreed with the orders proposed by the joint judgment of Mason CJ, Toohey and Gaudron JJ, his Honour had formed the view that the scope of the freedom was significantly different from the view in the joint judgment and had not adopted the reasons for those orders. The Court then held that while Theophanous and Stephens should be regarded as deciding that the common law rules of defamation must conform to the requirements of the Constitution, the reasoning of the decisions should be reconsidered in order to settle constitutional doctrine.

[127] LANGER v COMMONWEALTH (1996) 186 CLR 302; 134 ALR 400 High Court of Australia Parliamentary elections — Members of Parliament to be directly chosen by the people FACTS Section 329A of the Commonwealth Electoral Act 1918 (Cth) prohibited a person from publishing or distributing any material with the intention of encouraging voters to complete their ballot papers otherwise than in accordance with s 240 of the Act. Section 240 provided for a full preferential method of voting in an election for the House of Representatives. [page 81] ISSUE The plaintiff argued that s 329A was invalid if s 240 required voters to state a preference for a candidate for whom he or she did not wish to vote. The plaintiff then argued that as s 24 of the Constitution requires that the ‘House of Representatives shall be composed of members directly chosen by the people of the Commonwealth’ a voter cannot be forced to record a preference for a candidate for whom he or she did not wish to vote. Finally,

the plaintiff claimed that the implied freedom of political discussion was impaired by s 329A of the Act. HELD Section 24 of the Constitution must be construed as primarily mandating a democratic electoral system by ensuring that voters can freely choose between the candidates standing for election. There was nothing to support the view that members of Parliament elected pursuant to the preferential voting system specified by s 240 of the Commonwealth Electoral Act were not properly described as ‘chosen by the people’. Accordingly, s 240 was a valid law of the Commonwealth. As s 239A was a law which was aimed at preventing persons from undermining the electoral system that Parliament has chosen, it was supported by ss 51(xxxvi) and 31 of the Constitution, which confer power on the Commonwealth Parliament to enact laws relating to elections.

[128] LEASK v COMMONWEALTH (1996) 187 CLR 579; 140 ALR 1 High Court of Australia Legislative power of the Commonwealth — Proportionality of legislation only relevant to purposive power FACTS The appellant had been committed for trial for offences against s 31 of the Financial Transactions Reports Act 1988 (Cth). The Act imposed an obligation on ‘cash dealers’ to report certain transactions to a statutory authority if the dealer was a party to those transactions. Section 31 created an offence if the cash dealer structured the transaction to avoid the reporting obligation. ISSUE Was s 31 a valid law of the Commonwealth? HELD Section 31 of the Act was a law with respect to currency within s 51(xii) of the Constitution because it regulated the extent to which currency could be used to transfer wealth. As there was a sufficient connection between the Act and the constitutional grant of power, the fact that the Act

may have been harsh, disproportionate or ill-adapted to obtain the legislative purpose was irrelevant. The proportionality of legislation is not a general tool for constitutional interpretation, instead it is only one of several matters to be considered when purpose is an issue. [page 82]

[129] Re LEE; Ex parte HARPER (1986) 160 CLR 430; 65 ALR 577 High Court of Australia Conciliation and arbitration power — Definition of industry FACTS Three teachers’ associations applied to the Industrial Registrar for registration as organisations under the Conciliation and Arbitration Act 1904 (Cth). Membership of the bodies varied in relation to teachers and related positions in government and non-government schools. The Australian Conciliation and Arbitration Commission held that each body was eligible for registration. Harper, the Queensland Attorney-General, sought writs of prohibition and certiorari to prevent further proceedings and to quash the Commission’s decision. ISSUE Were the associations in an ‘industry’ within s 51(xxxv) of the Constitution? HELD The associations were in an industry within the terms of s 51(xxxv). Further, State school teachers are not part of the administrative services of the State and immune from the exercise of Commonwealth power. ‘[D]isputes between employers and employees relating to the terms and conditions of employment, even if they stand “outside the whole world of productive industry and organised business”, are popularly regarded nowadays as industrial disputes’, per Mason, Brennan and Deane JJ at CLR 450.

[130] LEETH v COMMONWEALTH (1992) 174 CLR 455; 107 ALR 672 High Court of Australia Rights and freedoms — Implied right to equality of treatment FACTS The Commonwealth Prisoners Act 1967 (Cth) provided that when a court was imposing a term of imprisonment following conviction for a Commonwealth offence, it should approach the imposition of a non-parole period on the same basis as the law in the State or Territory in which the offender had been convicted. Leeth was convicted of three offences under the Customs Act 1901 (Cth) in the Supreme Court of Queensland. ISSUE He argued that due to the different approaches to the determination of non-parole periods, the Commonwealth Prisoners Act authorised the unequal treatment of Commonwealth offenders and was therefore invalid. [page 83] HELD The Act was a valid law of the Commonwealth. Brennan, Deane, Toohey and Gaudron JJ held that the Constitution contained an implied right to equality. Brennan J, however, considered that the right had not been violated. Mason CJ, Dawson and McHugh JJ denied that the Constitution contained an implied general requirement that Commonwealth laws should have a uniform operation throughout the Commonwealth.

[131] LEVY v VICTORIA (1997) 189 CLR 579; 146 ALR 248 High Court of Australia Rights and freedoms — Implied right of communication

FACTS The plaintiff, who was not the holder of a valid hunting licence, was charged with three offences of entering into a hunting area near Donald in Victoria, during the duck-shooting season, while protesting against hunting laws. ISSUE Were the Wildlife (Game) (Hunting Season) Regulations 1994 (Vic) invalid for contravening an implied freedom of communication in the Commonwealth and Victorian Constitutions? HELD The Regulations did not infringe any implied right of freedom of communication as they were appropriate and adapted to serve the legitimate end of ensuring the safety of persons with conflicting aims who would be likely to be in the vicinity of duck shooting.

[132] LOGAN DOWNS PTY LTD v QUEENSLAND (1977) 137 CLR 59; 12 ALR 484 High Court of Australia Duties of excise — Tax on ownership of stock FACTS The Stock Act 1915 (Qld) authorised the Minister to levy an annual tax on each head of stock owned by a person who had at least 11 head of stock. The rate of tax was to be fixed by the Minister. Logan Downs owned sheep, cattle, pigs and horses and was accordingly assessed as liable to pay the tax. ISSUE The company sought a declaration that the tax was invalid under s 90 of the Constitution. HELD The tax was a duty of excise as it was a tax on a step in the production of the meat, wool and progeny of the stock. The tax on stock not used to produce meat, wool or progeny was a tax on consumption and [page 84]

not a duty of excise. The fact that the tax was not a duty of excise in every instance did not lead to the conclusion that it was not in any instance a duty of excise.

[133] LOVE v ATTORNEY-GENERAL (NSW) (1990) 169 CLR 307; 90 ALR 322 High Court of Australia Inconsistency between Commonwealth and State laws — No intention to cover the field FACTS Warrants were issued by the Supreme Court of New South Wales authorising the use of listening devices under the Listening Devices Act 1984 (NSW). The devices were to be used in investigations conducted by State and Commonwealth Police into alleged federal and State narcotics offences. Love was subsequently charged with offences under State law. During the committal proceedings, the Crown indicated that it would seek to use evidence obtained by the use of the devices. Love objected to the tender of the tapes and claimed that the warrants were invalid. The Customs Act 1901 (Cth) prohibited the use of listening devices by the Australian Federal Police for the purposes of narcotics inquiries unless used in accordance with a warrant issued by a judge of the Federal Court. ISSUE Was the Listening Devices Act inconsistent with the Customs Act and invalid under s 109 of the Constitution? HELD There was no inconsistency between the Customs Act and the Listening Devices Act as the Customs Act was only intended to apply to the use of listening devices in the course of federal narcotics inquiries. The warrants issued under the Listening Devices Act should be construed as only authorising investigations for State offences.

[134] MABO v QUEENSLAND (No 1)

(1988) 166 CLR 186; 83 ALR 14 High Court of Australia Inconsistency between Commonwealth and State laws — Direct inconsistency FACTS The Queensland Coast Islands Declaratory Act 1985 (Qld) purported to extinguish any traditional land rights that the descendants of the original inhabitants of the Torres Strait Islands may have possessed [page 85] after the annexation of the islands by Queensland in 1879. Mabo, a member of the Miriam people who inhabited the Islands, commenced an action against the State seeking a declaration that they retained traditional and enforceable legal rights to Murray Island. The Act, if valid, would have provided a complete defence to the action. ISSUE Mabo argued the Act was inconsistent with the Racial Discrimination Act 1975 (Cth) which provided that where a State law conferred a narrower right on persons of a particular race, colour or ethnic origin than other persons, the first mentioned group should, notwithstanding anything in that law, enjoy that right to the same extent. Among the rights covered by the Act were the rights to own property and not to be arbitrarily deprived of property. HELD The Queensland Act was inconsistent with the Racial Discrimination Act as it limited the Miriam people’s immunity from legislative interference. ‘A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores that immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam people therefore fails’, per Brennan, Toohey and Gaudron JJ at CLR 219.

[135] Re McBAIN; Ex parte AUSTRALIAN CATHOLIC BISHOPS CONFERENCE (THE ARTIFICIAL INSEMINATION CASE) (2002) 209 CLR 372; 188 ALR 1 High Court of Australia High Court — Original jurisdiction FACTS The Infertility Treatment Act 1995 (Vic) prohibited the provision of artificial insemination services to a woman unless she was married or in a de facto relationship with a man. A doctor wanted to provide artificial insemination services to an unmarried woman and commenced proceedings in the Federal Court seeking a declaration that the Act was invalid on the basis that it was inconsistent with the Sex Discrimination Act 1984 (Cth). The Australian Catholic Bishops Conference (‘ACBC’) initially sought to intervene in the proceedings to oppose the application but subsequently chose to be heard amicus curiae. The Federal Court declared the Infertility Act to be invalid. The ACBC subsequently commenced proceedings in the High Court, pursuant to a fiat granted by [page 86] the Federal Attorney-General, seeking an order that the decision of the Federal Court be quashed on the basis that it was wrong in law. ISSUE Was there a justiciable issue between the ACBC and the doctor? HELD The application by the ACBC did not give rise to a matter founding the original jurisdiction of the High Court as there was no justiciable issue between the ACBC and the doctor or between the ACBC and the Federal Court judge who made the order.

[136] McCLOY v NEW SOUTH WALES (2015) 325 ALR 15 High Court of Australia Rights and freedoms – Implied right of communication FACTS Part 6, Div 2A of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) imposed limits on the amounts of donations made to political parties and candidates in State and local government elections in New South Wales. Part 6, Div 4A of the Act prohibited donations from ‘prohibited donors’, the definition of which included property developers. Section 96E prohibited ‘indirect campaign contributions’ such as the provision of office space and vehicles to parliamentary candidates. ISSUE The plaintiffs, who were ‘property developers’, argued that Divs 2A and 4A and s 96E were invalid for impermissibly infringing the constitutional freedom of political communication on governmental and political matters. They also submitted that the provisions imposed restrictions on their ability to gain access, and make representations, to politicians and political parties. HELD The impugned provisions effectively burdened the implied freedom because they restricted the funds available to political parties and candidates to meet the costs of political communications. The purpose of each of the provisions was to limit the scope for corruption and was not only compatible with representative government but preserved and enhanced it. The impugned provisions were reasonable and proportional to the achieving the purpose as they did not affect the ability of any person to communicate with another about matters of politics and government or to seek access to or influence politicians in ways other than those involving the payment of substantial sums of money. [page 87]

[137] MacCORMICK v FEDERAL COMMISSIONER OF TAXATION (1984) 158 CLR 622; 52 ALR 53 HIGH COURT OF AUSTRALIA Tax laws — Purpose of Act not relevant to characterisation FACTS The Taxation (Unpaid Company Tax — Vendors) Act 1982 (Cth) and the Taxation (Unpaid Company Tax — Promoters) Act 1982 (Cth) were Acts designed to recoup tax revenue lost through tax evasion schemes colloquially referred to as ‘asset-stripping’ and ‘bottom of the harbour’ schemes. A tax was imposed upon the vendors of shares in any company and upon the promoters of the sale of such shares, where the company had an undischarged company tax liability and the sale was followed by a stripping of the company’s assets which left the company incapable of discharging its tax liability. ISSUE Did s 51(ii) of the Constitution require a connection between the persons on whom the liability was imposed and the criteria upon which the liability was created? HELD The Acts were held to be a valid exercise of the power in s 51(ii) of the Constitution. It did not matter that its purpose was to recoup moneys which should have been paid as company tax but were not. The Court doubted the proposition that an Act requiring one person to pay another’s tax could not be a law with respect to taxation, but in any event there was a connection between the taxpayer and the transaction that resulted in the stripping of the company’s assets. However, the Acts were held invalid to the extent that they created an incontestable tax.

[138] McGINTY v WESTERN AUSTRALIA (1996) 186 CLR 140; 134 ALR 289 High Court of Australia

Rights and freedoms — No implication of equality in voting power FACTS Certain provisions of the Constitution Acts Amendment Act 1899 (WA) and the Electoral Distribution Act 1947 (WA) provided for disparities between the number of voters enrolled in the metropolitan and non-metropolitan districts for the election of members of the Legislative Assembly of Western Australia. ISSUE The plaintiffs challenged the validity of these provisions arguing that the principles of representative democracy and equality of voting [page 88] power were impliedly incorporated in the Commonwealth Constitution and the Western Australian Constitution. HELD There was nothing in the Commonwealth Constitution or its structure that required the implication of the principle of ‘one vote, one value’. As there was no implication of that principle at the federal level, the Constitution did not therefore impose the obligation on State elections. Similarly, it was not possible to derive the implication of the principle of ‘one vote, one value’ from the Western Australian Constitution.

[139] Ex parte McLEAN (1930) 43 CLR 472 High Court of Australia Inconsistency between Commonwealth and State laws — Direct inconsistency FACTS The Commonwealth Arbitration Court made an award under the Conciliation and Arbitration Act 1904 (Cth) covering the shearing

industry. McLean was a shearer employed by Firth, a grazier, under a Shearer’s Agreement pursuant to the award. During the course of McLean’s employment a dispute arose between him and Firth. McLean stopped working and Firth prosecuted him under the Masters and Servants Act 1902 (NSW) which made it an offence for a servant who contracted to perform work for another person to neglect to fulfil the contract. McLean contended that any failure on his part to carry out his work was covered by the Commonwealth Award. ISSUE Was the State Act inconsistent with the federal award within s 109 of the Constitution? HELD The State Act was inconsistent with the federal award as it dealt directly with default in an industrial relationship which the federal law punished in a different manner. ‘[I]nconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively or exclusively, what shall be the law governing the particular conduct or matter to which its intention is directed. When a federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter’, per Dixon J at 384. [page 89]

[140] McWATERS v DAY (1989) 168 CLR 289; 89 ALR 83 High Court of Australia Inconsistency between Commonwealth and State laws — No intention to cover the field FACTS Day was a member of the Australian Regular Army stationed in Queensland. He was involved in an accident while driving within the

confines of the barracks. He was subsequently charged by McWaters, a member of the Queensland State Police, with driving under the influence of alcohol contrary to the Traffic Act 1949 (Qld). The Magistrates Court was restrained from proceeding on the charge on the ground that since Day was a member of the defence forces driving on army land, his behaviour was governed by the Defence Force Discipline Act 1982 (Cth). ISSUE Day claimed that the Traffic Act was inconsistent with the Defence Force Discipline Act within s 109 of the Constitution, as the two Acts imposed different penalties for the same offence, and was therefore invalid. HELD There was no inconsistency between the two Acts as the federal Act was not intended to be an exhaustive statement of the criminal liability of Defence Force personnel. ‘It is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for the purposes of s 109 … Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency. But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense. It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, evinces an intention to cover the subject matter to the exclusion of any other law’, per curiam at CLR 296.

[141] Re MACKS; Ex parte SAINT (2000) 204 CLR 158; 176 ALR 545 High Court of Australia Jurisdiction of States — State law declaring rights based on ‘ineffective’ federal judgments FACTS Following the decision of the High Court in Re Wakim; Ex parte McNally, the South Australian Parliament passed the Federal Courts (State

[page 90] Jurisdiction) Act 1999 (SA), which provided that ‘the rights and liabilities of each person are … declared to be … the same as if … each ineffective judgment of the Federal Court … had been a valid judgment of the Supreme Court.’ An ‘ineffective judgment’ was defined to be a judgment of a federal court that had purported to exercise jurisdiction conferred by the crossvesting legislation declared to be invalid in Re Wakim. In these proceedings, the Federal Court had made orders appointing a liquidator to a group of companies and then made subsequent orders concerning the funding of litigation brought by the liquidator against the defendants in the South Australian Supreme Court. ISSUE The defendants sought to quash the orders of the Federal Court on the basis that the Federal Courts (State Jurisdiction) Act was invalid as it impermissibly interfered with the jurisdiction of the Federal Court and that it was inconsistent with the Federal Court of Australia Act 1976 (Cth). HELD An order of the Federal Court, even if made without jurisdiction, is binding until it is set aside. The Federal Courts (State Jurisdiction) Act did not, however, seek to interfere with the operation of any judgment of a federal court. Instead, the Act created rights and liabilities by reference to the existence of an ‘ineffective judgment’. Further, as the Federal Court of Australia Act did not seek to cover the field of the rights and liabilities of persons affected by orders, valid or infirm, of the Federal Court, there was no inconsistency for the purposes of s 109 of the Constitution.

[142] MAGAMING v THE QUEEN (2013) 252 CLR 381; 302 ALR 461 High Court of Australia Separation of powers — Mandatory minimum sentencing provision

FACTS Section 233A of the Migration Act 1958 (Cth) created an offence referred to as ‘people smuggling’. Section 233C established an aggravated form of the offence. Section 236B then prescribed a minimum term of imprisonment upon conviction of an offence under s 233C. The appellant was charged with, and convicted of, an offence under s 233C. ISSUE The appellant argued that s 236B was invalid. He asserted that the offences under ss 233A and 233C were coextensive and therefore incompatible with the separation of the judicial and prosecutorial functions. HELD The decision of the prosecutor to charge the appellant with an offence under s 236B was not an exercise of judicial power. The availability of a choice as to which offence the appellant was charged was not [page 91] incompatible with the separation of judicial and prosecutorial functions or incompatible with the institutional integrity of the courts.

[143] MATTHEWS v CHICORY MARKETING BOARD (1938) 60 CLR 263 High Court of Australia Duties of excise — Imposition of duty based on connection with commodity — Definition of ‘tax’ FACTS The Chicory Marketing Board, established under the Marketing of Primary Products Act 1935 (Vic), determined that chicory producers were required to pay a levy of £1 per half acre planted with chicory. The Board laid a complaint against Matthews to recover £11, which it claimed was due. The Court of Petty Sessions ordered Matthews to pay. ISSUE Was the levy a duty of excise under s 90 of the Constitution?

HELD The levy was invalid as it amounted to a duty of excise. ‘To be an excise the tax must be levied “upon goods” … The tax must bear a close relationship to the production or manufacture, the sale or consumption of goods and must be of such a nature as to affect them as the subjects of manufacture or production or as articles of commerce. But if the substantial effect is to impose a levy in respect of the commodity the fact that the basis of assessment is not strictly that of quantity or value will not prevent the tax falling within the description, duties of excise’, per Dixon J at 304.

[144] MELBOURNE CORPORATION v COMMONWEALTH (THE STATE BANKING CASE) (1947) 74 CLR 31 High Court of Australia Commonwealth–State relations — Interference with State banking prohibited FACTS The Banking Act 1945 (Cth) provided that, except with the consent of the Treasurer, a bank shall not conduct any banking business for a State or State authority. The Commonwealth Treasurer notified Melbourne Corporation, a local government authority, that the Commonwealth Bank was in a position to provide full banking facilities as private banks were no longer legally able to conduct such business. ISSUE Was the Banking Act a valid exercise of the banking power in s 51(xiii) of the Constitution? [page 92] HELD The Act was not a valid exercise of the banking power as the Constitution impliedly prohibited discriminatory interference with a State by the Commonwealth. ‘[T]he invalidity of a federal law which seeks to control a State governmental function is brought about by the fact that it is

in substance a law with respect to a subject as to which the Commonwealth Parliament has no power to make laws’, per Latham CJ at 62. ‘[T]he efficacy of the [federal] system [of government] logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorising the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority’, per Dixon J at 83.

[145] MELLIFONT v ATTORNEY-GENERAL (QLD) (1991) 173 CLR 289; 104 ALR 89 High Court of Australia High Court — Appellate jurisdiction FACTS Mellifont was charged with perjury under the Criminal Code (Qld) after giving evidence before a Royal Commission. At the close of the trial, the judge indicated that he was not satisfied that the testimony was material to any question pending in the Commission. Before the trial judge directed the jury to return a verdict of not guilty, the prosecutor entered a nolle prosequi and the applicant was discharged. The Attorney-General referred points of law arising from the trial to the Court of Criminal Appeal. The day after the reference, Mellifont was informed that another indictment would be presented against him in the event that the trial judge’s rulings were found to be incorrect by the Court of Criminal Appeal. The Court of Criminal Appeal found that the trial judge had erred on the test of materiality. Mellifont then applied to the High Court for special leave to appeal from the answers given by the Court of Criminal Appeal. ISSUE The Attorney-General objected to the jurisdiction of the High Court to hear an appeal on the basis that the decision of the Court of Criminal Appeal was not a judgment, decree, order or sentence within the meaning of s 73 of the Constitution. HELD The decision on the reference was made with respect to a matter which was the subject of contested proceedings at first instance and was not

divorced from the ordinary administration of the law. The proceedings were an exercise of judicial power and the decision was a judgment or order within s 73. [page 93]

[146] METAL TRADES EMPLOYERS’ ASSOCIATION v AMALGAMATED ENGINEERING UNION (1935) 54 CLR 387 High Court of Australia Conciliation and arbitration power — Parties to industrial disputes FACTS The Amalgamated Engineering Union and other employee unions served a log of claims on the Metal Trades Employers’ Association and other employers in the engineering and metal trades industries throughout Australia. The claims were intended to apply to all workers, whether or not they were members of the unions. The Commonwealth Court of Conciliation and Arbitration made an award to settle the dispute. ISSUE A number of employers in South Australia objected on the basis that the Court did not have jurisdiction to make an award binding employers in respect of non-union employees. HELD The dispute over employees’ wages and conditions was an industrial dispute within s 51(xxxv) of the Constitution. Accordingly, the Court had jurisdiction to make an award binding all employers served with the log of claims, including those who only employed non-union labour. ‘There does not appear to be any reason in principle for denying that the terms upon which non-unionists may be employed may be as much the subject matter of an industrial dispute as the question whether non-unionists shall be employed at all’, per Latham CJ at 402.

[147] MG KAILIS (1962) PTY LTD v WESTERN AUSTRALIA (1974) 130 CLR 245; 2 ALR 513 High Court of Australia Duties of excise — Licence fees amounted to tax on step in production FACTS Fish processors in Western Australia were required to obtain a licence by the Fisheries Act 1905 (WA). The licence fee was calculated as a percentage of the value of the fish acquired for processing during the preceding year. ISSUE The plaintiff carried on the business of processing fish and sought a declaration that the licence fee was a duty of excise and invalid under s 90 of the Constitution. HELD The licence fee was a duty of excise and invalid under s 90, as it was a tax upon a step in the production or distribution of fish products. [page 94] ‘To hold that Dennis Hotels is decisive of the present case would, I think, give the constitutional prohibition contained in s 90 a formal operation, having little substantial importance. It would enable the States to impose a tax on the manufacture or production of any goods by the simple expedient of a compulsory licensing scheme under which production and manufacture are taxed by prescribing licence fees to be assessed, not by reference to the quantity of goods produced under the licence, but by reference to the raw materials used in the process of production in a period ending before the licence commenced to operate’, per Mason J at CLR 265.

[148] MINISTER OF STATE FOR THE ARMY v DALZIEL

(1944) 68 CLR 261 High Court of Australia Acquisition of property — Just terms FACTS The National Security (General) Regulations (Cth) authorised the Commonwealth Government to enter into exclusive possession of private land for an indefinite period. Under reg 60H, the Minister was required to assess the amount of compensation payable to the owner of such land. Dalziel was the weekly tenant of vacant land used by him as a commercial car park for 13 years, who claimed compensation to cover his rental payments and lost profits during the period of the Commonwealth’s occupancy. The Minister made an order that no compensation was payable for the lost profits. Dalziel applied to the Supreme Court of New South Wales for a review of the decision. The Supreme Court held that the Commonwealth’s taking of possession was an acquisition of property within s 51(xxxi) of the Constitution, and that reg 60H did not provide just terms. ISSUE Did the Commonwealth’s possession of the land constitute an acquisition of property? HELD The taking of exclusive possession of the land was an acquisition of property within s 51(xxxi) of the Constitution as Dalziel was deprived of his right to possession of the property. As reg 60H conferred an arbitrary discretion on the Minister to dispossess a citizen of all of their rights of property in a particular subject-matter, it was wholly void as was the compensation order. ‘The language used is perfectly clear. It says the acquisition of property. It is not restricted to acquisition by particular methods or of particular types of interests, or to particular types of property. It extends to any acquisition of any interest in any type of property. It authorises such acquisition but it expressly imposes two conditions on every such acquisition. It must be upon just terms, and it must be for a [page 95]

purpose in respect of which the Parliament has power to make laws’, per Rich J at 285.

[149] MOMCILOVIC v THE QUEEN (2011) 245 CLR 1; 280 ALR 221 High Court of Australia Separation of powers – Institutional integrity of State court under Ch III — Inconsistency between Commonwealth and State laws — No inconsistency for similar offences FACTS A trafficable quantity of methamphetamine was found by the police in an apartment in Melbourne owned by the appellant that she shared with her boyfriend. The boyfriend pleaded guilty to possession of the drugs but the appellant denied any knowledge of the drug or of her boyfriend’s involvement in trafficking. The appellant was convicted of an offence of trafficking under s 71AC the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Pursuant to s 5 of that Act, the jury was directed to find her guilty unless the appellant could prove that she did not know that the drugs were in her apartment. At the time she was charged and convicted, the appellant was residing in Queensland. ISSUE The appellant argued that s 5 of the Drugs Act had to be construed in accordance with s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which required statutes to be interpreted consistently with human rights. The respondent asserted that the Charter was invalid because it purported to invest the Supreme Court with power inconsistent with the requirements of Ch III of the Constitution. The appellant also argued that s 71AC of the Drugs Act was inconsistent with s 302.4 of the Criminal Code (Cth) and therefore invalid under s 109 of the Constitution because both provisions constituted offences of trafficking prohibited substances and imposed different penalties. HELD The Court, by majority, allowed the appeal, quashed the conviction

and ordered a new trial. The jury should have been directed that before returning a guilty verdict, they had to be satisfied beyond a reasonable doubt that the appellant was aware of the drugs in her apartment. As to the constitutional issues: (A) A criminal prosecution brought by a State against a resident of another State was a ‘matter’ for the purposes of s 75(iv) of the Constitution. As such, federal judicial power had been engaged and was exercised by the Victorian courts; (B) Section 32 of the Charter Act did not confer powers on the Supreme Court that were inconsistent with the requirements of Ch III of [page 96] the Constitution, but the power in s 36 of the Charter Act to make a declaration as to the manner in which s 32 was applied should not have been made; and (C) As the Criminal Code expressly provided that it did not intend to exclude or limit the concurrent operation of any law of a State, and as the terms of s 71AC were less stringent than the terms of s 302.4, those provisions were not inconsistent under s 109 of the Constitution.

[150] MONIS v THE QUEEN (2013) 249 CLR 92; 295 ALR 259 High Court of Australia Rights and freedoms – Implied right of communication FACTS The appellants were charged with offences under s 471.12 of the Criminal Code (Cth) for using the postal system in an offensive manner. The first appellant had written letters to the parents and relatives of soldiers killed on active service in Afghanistan, criticising the involvement of the

Australian military but which referred to the deceased soldiers in a denigrating and derogatory manner. The second appellant aided and abetted the first appellant. ISSUE The appellants argued that s 471.12 was invalid on the ground that it impermissibly burdened the implied freedom of communication about government or political matters. HELD As the Court was divided 3:3, the appeal was dismissed pursuant to s 23(2)(a) of the Judiciary Act 1903 (Cth). French CJ, Hayne J and Heydon J each held that the section was not reasonably appropriate and adapted to serve a legitimate end and was invalid. Crennan, Kiefel and Bell JJ jointly held that s 471.12 was reasonably appropriate and adapted to its protective purpose and did not unreasonably burden the implied freedom because its effect on political communication was incidental.

[151] MOORGATE TOBACCO CO LTD v PHILIP MORRIS LTD (1980) 145 CLR 457; 31 ALR 161 High Court of Australia Judicial power of the Commonwealth — Exercise by State court FACTS Moorgate Tobacco sued Philip Morris in the Supreme Court of New South Wales, seeking a declaration that it was the proprietor of [page 97] certain trade marks. The trial judge ordered that the issue under the Trade Marks Act 1955 (Cth) be left for determination in proceedings before the Registrar of Trade Marks. The actions based on contract, tort and breach of trust were dismissed. Moorgate then applied to the Court of Appeal for leave

to appeal to the Privy Council. The matter was removed into the High Court. ISSUE Philip Morris objected to the application on the basis that the decision of the trial judge was made in the exercise of federal jurisdiction and that as a consequence the Judiciary Act 1903 (Cth) prohibited any appeal to the Privy Council. HELD The Judiciary Act prohibited the appeal to the Privy Council because the Supreme Court had exercised federal jurisdiction as a result of the claim under the Trade Marks Act, although the trial judge had not decided that issue. Further, the non-federal claims raised were not distinct and therefore not severable from the federal issue. ‘If a federal matter is raised on the pleadings, federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds’, per Stephen, Mason, Aickin and Wilson JJ at CLR 476.

[152] MULDOWNEY v SOUTH AUSTRALIA (1996) 186 CLR 352; 136 ALR 18 High Court of Australia Rights and freedoms — Implied right of communication FACTS Section 76 of the Electoral Act 1985 (SA) provided for the manner in which an elector was to mark the ballot paper. Section 126 of the Act provided that a person shall not publicly advocate that a voter should mark a ballot paper otherwise than in the manner prescribed, or that a voter refrain from marking a ballot paper issued to the voter for the purpose of voting. ISSUE Were ss 76 and 126 invalid on the basis that they infringed the implied freedom of political discussion? HELD The sections were not invalid. An enforceable obligation to mark a

ballot paper was not imposed on voters by s 76 so the precondition for the asserted invalidity did not arise. Section 126 did not infringe the implied freedom of political discussion, as the provision was reasonably capable of being regarded by Parliament as appropriate and adapted to achieving the legitimate legislative purpose of protecting the prescribed method of choosing the members to sit in the South Australian Parliament. [page 98]

[153] MULHOLLAND v AUSTRALIAN ELECTORAL COMMISSION (2004) 220 CLR 181; 209 ALR 582 High Court of Australia Parliament – Election of candidates FACTS Mulholland was the registered officer of the Democratic Labor Party (DLP) under the Commonwealth Electoral Act 1918 (Cth). In order to remain registered, the Act required a political party to have at least one member who was an elected member of the Commonwealth Parliament or for the party to have at least 500 members who were not members of another party, whose names had to be submitted to the Commission. The Commission informed Mulholland that it proposed to deregister the DLP because it did not meet the ‘500 rule’. The Act further provided that an unregistered political party was not entitled to have its name printed on ballot papers beside the name of its endorsed candidate. ISSUE Mulholland asserted that the ‘500 rule’ and the ‘no overlap rule’ breached the requirements in ss 7 and 24 of the Constitution that Senators and members of the House of Representatives be chosen directly by the people. He also argued that the rules breached the implied right of communication about political and government matters and an implied freedom of political association.

HELD The ‘500-rule’ and the ‘no overlap rule’ were consistent with the requirements in ss 7 and 24 of the Constitution for ‘direct choice’ by electors as they assisted voters in making informed choices about candidates. There was no breach of the implied right of communication as a political party does not have a right to have its name printed on a ballot paper. Disclosure of the names of the members of a political party did not breach the freedom of association as it operated only as a condition of registration for the purposes of the Act. The rules did not confine rights of participation in the federal elections.

[154] MURPHYORES INC PTY LTD v COMMONWEALTH (1976) 136 CLR 1; 9 ALR 199 High Court of Australia Trade and commerce power — Consideration of matters not within Commonwealth legislative competence FACTS Murphyores held leases under the Mining Act 1968 (Qld) which allowed the mining and exporting of zircon and rutile from Fraser Island. [page 99] The Customs (Prohibited Exports) Regulations (Cth) prohibited the export of zircon and rutile without the written consent of the Minister for Minerals and Energy. The Minister informed Murphyores that he would await the report of the Commissioners under the Environmental Protection (Impact of Proposals) Act 1974 (Cth), before determining whether approval would be given. Murphyores sought injunctions restraining the Commissioners from holding their inquiry and presenting the report. ISSUE Were the Regulations a valid exercise of the power in s 51(i) of the Constitution in allowing the Minister to consider environmental issues prior to giving consent to the export of goods overseas?

HELD The Regulations were a valid exercise of the trade and commerce power, as they dealt with the export of goods overseas. The consideration of the environmental matters did not affect the validity of the Regulations. ‘The point here is that by imposing a conditional prohibition on exportation, a prohibition which may be relaxed according to the exercise of a discretion, the law is dealing with the exportation of goods, a matter at the heart of trade and commerce with other countries’, per Mason J at CLR 20.

[155] MUTUAL POOLS & STAFF PTY LTD v COMMISSIONER OF TAXATION (1992) 173 CLR 450; 104 ALR 545 High Court of Australia Tax laws — Requirement for single subject of taxation FACTS Mutual Pools carried on the business of constructing swimming pools in situ. Under amendments made to the Sales Tax Assessment Act (No 1) 1930 (Cth), sales tax was imposed upon so much of a swimming pool as was constructed in situ. The Act deemed swimming pools manufactured in situ to be manufactured goods. ISSUE Did the amendments infringe s 55 of the Constitution as the new tax was not a tax on goods? HELD The amendments imposing a tax upon a sale value of so much of a swimming pool as was constructed in situ was a tax on land. As the remaining provision of the Act dealt with taxes on goods, s 55 of the Constitution was contravened as the Act dealt with more than one subject of taxation. Parliament cannot avoid the restriction in s 55 of the Constitution by deeming facts to be something that they are not. [page 100]

[156] MUTUAL POOLS & STAFF PTY LTD v COMMONWEALTH (1994) 179 CLR 155; 119 ALR 577 High Court of Australia Acquisition of property — Variation of tax refund not an acquisition FACTS Mutual Pools carried on the business of constructing in-ground swimming pools. It had previously obtained a declaration that a tax upon the construction of in-ground swimming pools was invalid under s 55 of the Constitution. Following the judgment, the Swimming Pools Refund Act 1992 (Cth) was passed which limited the liability of the Commonwealth to make any repayment, except to the owner of the pool. The company requested repayment of a sum after it had refunded the amount to the purchaser of a pool. The Commonwealth refused. ISSUE Did the Swimming Pools Refund Act effect an acquisition of property other than on just terms within s 51(xxxi) of the Constitution? HELD The Act was a valid exercise of the taxation power in s 51(ii) and as it was not properly characterised as a law with respect to the acquisition of property, s 51(xxxi) did not operate to invalidate it.

[157] NATIONWIDE NEWS PTY LTD v WILLS (1992) 177 CLR 1; 108 ALR 681 High Court of Australia Rights and freedoms — Implied right of communication FACTS Nationwide News published an article attacking the integrity and independence of the Australian Industrial Relations Commission and its members. Wills, an officer of the Australian Federal Police, prosecuted

Nationwide News for a breach of the Industrial Relations Act 1988 (Cth) for bringing the Commission into disrepute. ISSUE Did the Act contravene an implied constitutional right of communication concerning governmental institutions? HELD To constitute the offence, it had to be shown that the words were calculated to bring a member of the Commission into disrepute as a member of the Commission. In creating the offence, the Act was invalid as the matter was not incidental to the conciliation and arbitration power. The Act was also invalid on the basis that it violated the implied right to freedom of political communication. ‘Inherent in the Constitution’s doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate [page 101] information, opinions and ideas about all aspects of the government of the Commonwealth, including the qualifications, conduct and performance of those entrusted (or seek to be entrusted) with the exercise of any part of the legislative, executive or judicial powers of government which are ultimately derived from the people themselves’, per Deane and Toohey JJ at CLR 74.

[158] NEW SOUTH WALES v COMMONWEALTH (THE HOSPITAL BENEFITS CASE) (1983) 151 CLR 302; 45 ALR 579 High Court of Australia Inconsistency between Commonwealth and State laws — Cover the field test FACTS The National Health Act 1953 (Cth) established a scheme of contributory health insurance under which insurance and hospital benefits

were provided by organisations formed under State law but which were required to be registered under the Act. The Health Insurance Levies Act 1982 (NSW) and the Hospital Benefits (Levy) Act 1982 (Vic) each required that an organisation carrying on the business of providing hospital benefits should pay a levy calculated on the basis of the number of members. The federal Minister purported to impose a further condition, under s 73B of the National Health Act, prohibiting hospital benefit organisations from paying the State levies. ISSUE Were the State Acts invalid for being inconsistent with the National Health Act, and did that Act authorise the Minister to prohibit the payment of the State levy? HELD The State Acts were not inconsistent with the federal Act as there was no intention in that Act to exclude the operation of State laws. Further, the Minister was not authorised to prohibit the payment of the State levies. Section 73B(1) was limited to authorising further conditions relevant to the relationship between a registered organisation and its members. ‘[T]he subject with which the Act reveals an intention to deal exclusively or exhaustively is the relationship between the organisation and the contributor, particularly the nature and amount of the benefits to be provided to contributors and the purposes for which moneys in the fund may be applied. Not only does the Act not evince any intention to exclude all operation of State laws on registered organisations but it expressly recognises the continued operation of such laws and their capacity to make an impact on the fund’, per Gibbs CJ, Murphy and Wilson JJ at CLR 317. [page 102]

[159] NEW SOUTH WALES v COMMONWEALTH (THE INCORPORATION CASE) (1990) 169 CLR 482; 90 ALR 355

High Court of Australia Corporations power — No power to control incorporation of companies FACTS The Corporations Act 1989 (Cth) provided for the incorporation of companies by the Australian Securities Commission, a statutory authority established by the Australian Securities Commission Act 1989 (Cth). ISSUE Did s 51(xx) of the Constitution authorise the Commonwealth to regulate the incorporation of trading and financial corporations? HELD Section 51(xx) of the Constitution did not confer power on the Commonwealth to provide for incorporation. Nor was the incidental power sufficient to confer power to form corporations. ‘The word “formed” is a past participle used adjectivally and the participial phrase “formed within the limits of the Commonwealth” is used to describe corporations which have been or shall have been created in Australia. (Clearly enough, the phrase is used to describe corporations formed after as well as those formed before federation.) The subject of a valid law is restricted by that phrase to corporations which have undergone or shall have undergone the process of formation in the past, present or future. That is to say, the power is one with respect to “formed corporations”. That being so, the words “formed within the limits of the Commonwealth” exclude the process of incorporation itself’, per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ at CLR 498.

[160] NEW SOUTH WALES v COMMONWEALTH (THE SEAS AND SUBMERGED LANDS CASE) (1975) 135 CLR 337; 8 ALR 1 High Court of Australia External affairs power — Implementation of international

treaty FACTS The Seas and Submerged Lands Act 1973 (Cth) provided that the sovereign rights of Australia in respect of the continental shelf, for the purpose of exploiting its natural resources, were vested in the Commonwealth. The legislation enacted the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone and the Convention on the Continental Shelf. Each of the Conventions declared that the rights [page 103] covered by the Act were vested in coastal states but subjected those rights to qualifications not contained in the Act. ISSUE Was the Act a valid exercise of the external affairs power? HELD The Act was a valid exercise of the external affairs power as it gave effect to the Conventions and dealt with areas external to Australia. The external affairs power ‘is not limited, in my opinion, to the making of arrangements with other nations or the implementation of such international arrangements as may properly be made in Australia’s interest with other nations, though doubtless these may be the most frequent manifestations of the exercise of the power. The power extends, in my opinion, to any affair which in its nature is external to the continent of Australia and the island of Tasmania subject always to the Constitution as a whole’, per Barwick CJ at CLR 360.

[161] NEW SOUTH WALES v COMMONWEALTH (THE WHEAT CASE) (1915) 20 CLR 54 High Court of Australia Separation

of

powers

—

Judicial

power

of

the

Commonwealth only to be exercised by Ch III courts FACTS The Inter-State Commission, established by s 101 of the Constitution, investigated a seizure of wheat, in the course of interstate trade, by the New South Wales Government under the Wheat Acquisition Act 1914 (NSW). The Inter-State Commission Act 1912 (Cth) declared the Commission to be a ‘Court of record’ which could hear and determine any complaint and grant any relief. The Commission held that the New South Wales Government’s actions were in breach of s 92 of the Constitution. It issued an injunction to restrain any further interference in the interstate movement of wheat. New South Wales appealed the decision on the basis that the Inter-State Commission did not have jurisdiction to grant the injunction. ISSUE Could the Inter-State Commission exercise the judicial power of the Commonwealth? HELD The judicial power of the Commonwealth could only be entrusted to courts. As the Inter-State Commission did not fall within either class of court in s 77 of the Constitution, it could not exercise judicial power and did not have jurisdiction to determine the complaint and issue an injunction. The Inter-State Commission Act was similarly invalid. [page 104]

[162] NEW SOUTH WALES v COMMONWEALTH (THE WORK CHOICES CASE) (2006) 229 CLR 1; 231 ALR 1 High Court of Australia Corporations power — Regulation of industrial relations FACTS The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) was enacted to amend the Workplace Relations Act 1996 (Cth). The

1996 Act had been enacted primarily in reliance on the conciliation and arbitration power in s 51(xxxv) of the Constitution. The 2005 Act was primarily enacted in reliance on the corporations power in s 51(xx) of the Constitution. ISSUE Did the corporations power support the amendments contained in the 2005 Act? HELD The Workplace Relations Amendment (Work Choices) Act was a valid exercise of the power in s 51(xx) of the Constitution. ‘The legislative power conferred by s 51(xx) “extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations”’ per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at ALR [178].

[163] NINTENDO CO LTD v CENTRONICS SYSTEMS PTY LTD (1994) 181 CLR 134; 121 ALR 577 High Court of Australia Acquisition of property — Variation of statutory intellectual property rights not an acquisition FACTS Centronics imported video game machines into Australia for retail sale, which contained integrated circuits that infringed Nintendo’s original circuit layout. Nintendo sued Centronics for infringement of its rights under the Circuit Layouts Act 1989 (Cth). The machines were imported prior to the commencement of the Act. ISSUE Did the Act constitute an acquisition of property other than on just terms within s 51(xxxi) of the Constitution? HELD The Act did not contravene s 51(xxxi) as it was a valid law under s

51(xviii) whose relevant character was the adjustment and regulation of intellectual property rights, not the acquisition of property. [page 105]

[164] NORTHERN SUBURBS GENERAL CEMETERY RESERVE TRUST v COMMONWEALTH (1993) 176 CLR 555; 112 ALR 87 High Court of Australia Taxation power — Purpose of legislation to regulate other field of activity FACTS The Training Guarantee Act 1990 (Cth) imposed a levy on employers who did not spend a set proportion of their payroll on training for employees. The appellant was assessed as liable to pay the levy. ISSUE Was the Act a valid exercise of the power conferred by s 51(ii) of the Constitution? HELD The Act was a law with respect to taxation and it did not cease to have that character simply because Parliament sought to achieve by its enactment, a purpose not within Commonwealth legislative power. ‘The fact that the revenue-raising burden is merely secondary to the attainment of some other object or objects is not a reason for treating the charge otherwise than as a tax’, per Mason CJ, Deane, Toohey and Gaudron JJ at CLR 569.

[165] NORTHERN TERRITORY v GPAO (1999) 196 CLR 553; 161 ALR 318 High Court of Australia Inconsistency between laws — Federal and Territory laws

FACTS The first and second respondents, who were residents of the Northern Territory, had a child in 1991. Their relationship ended a short time later and the Family Court made orders in respect of guardianship and custody of the child. The mother subsequently alleged that the father had sexually abused the child and on that basis applied for sole guardianship of the child. The father then caused a subpoena to issue to the Manager of Child and Family Protective Services of the Northern Territory Department of Community Welfare. Section 97(3) of the Community Welfare Act (NT) provided that officers of the Department were not to produce in a court a document that had come into the possession of the officer unless the production of the document was for the purposes of that Act. The Full Court of the Family Court held that s 97(3) was inconsistent with provisions of the Family Law Act 1975 (Cth) and the Evidence Act 1995 (Cth). ISSUE In dealing with the subpoena, was the Family Court exercising federal jurisdiction, and was s 97(3) inconsistent with federal Acts? [page 106] HELD The Family Court, in making the parenting orders under the Family Law Act, was exercising ‘federal jurisdiction’ even though the basis of that jurisdiction was s 122 of the Constitution. Section 97(3), being a law of the Northern Territory, was available to be picked up and applied by s 79 of the Judiciary Act 1903 (Cth). As the Family Law Act left room for the operation of s 97(3), the Family Law Act did not ‘otherwise provide’ within the meaning of s 79 of the Judiciary Act. There was, therefore, no inconsistency between the Family Law Act and s 97(3). The Evidence Act 1995 (Cth) does not deal with the obligations of a party to whom a subpoena is addressed to produce documents to the court in question. Accordingly, there was no inconsistency between the Evidence Act and s 97(3).

[166] OSBORNE v COMMONWEALTH

(1911) 12 CLR 321 High Court of Australia Taxation power — Use of power to regulate nonCommonwealth field FACTS The Land Tax Act 1910 (Cth) imposed a tax on landowners at rates which increased as the value of the land increased. ISSUE The plaintiff asserted that the Act was not a valid exercise of the tax power but was an attempt to deter a single person from holding a large quantity of land. HELD The Act was a valid exercise of the taxation power in s 51(ii) of the Constitution. ‘The alleged objects are not to be collected from the terms of this legislation. Even assuming that such designs existed they would not alter the construction of an Act or make it less an exercise of the taxing power’, per Barton J at 344.

[167] O’SULLIVAN v NOARLUNGA MEAT LTD (1954) 92 CLR 565 High Court of Australia Trade and commerce power — Use of power to regulate non-Commonwealth field FACTS Noarlunga Meat operated a slaughterhouse and abattoirs in South Australia. The company’s premises were registered under the Commerce (Meat Export) Regulations (Cth), made pursuant to the Customs Act 1901 (Cth). The Regulations provided that the export of meat was prohibited unless the treatment and storage of meat had been [page 107]

carried out in accordance with certain standards. The Metropolitan and Export Abattoirs Act 1936 (SA) prohibited the use of any premises for the purpose of slaughtering stock for export, unless licensed under the Act. The company did not hold a licence. The company slaughtered and froze lambs for export. All of the carcasses were sold to the Australian Meat Board and exported to the United Kingdom. The company was charged with breaching the South Australian Act. ISSUE Did the trade and commerce power extend to authorising legislation regulating and controlling the slaughter of meat for export? HELD Production or preparation for international or interstate trade is so connected with that trade it may be regulated under the trade and commerce power. ‘[A]ll matters which may beneficially or adversely affect the export trade of Australia in any commodity produced or manufactured in Australia must be the legislative concern of the Commonwealth … the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export’, per Fullagar J at 597.

[168] O’TOOLE v CHARLES DAVID PTY LTD (1990) 171 CLR 232; 96 ALR 1 High Court of Australia High Court — Appellate jurisdiction FACTS O’Toole was the Federal Secretary of the Australian Meat Industry Employees’ Union. He applied to the Federal Court for orders under the Conciliation and Arbitration Act 1904 (Cth) alleging that the respondent was in breach of an award. The respondent then challenged the validity of the award. The trial judge stated a case for the Full Court of the Federal Court as to whether the Act precluded the Court from receiving evidence to establish whether the award was outside the jurisdiction of the Commission. The Full Court delivered judgment but the orders were not entered and the

matter was removed into the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth) for a review of the answers given. ISSUE A preliminary question arose as to whether the High Court had jurisdiction to hear the matter. HELD The High Court had jurisdiction to reconsider the answers to the stated case, even though the orders of the Full Court had not been entered. The procedure in s 40 of the Judiciary Act enables the early resolution of constitutional issues and other questions of importance by the High Court even though the decision of the court below is not the subject of an appeal and may not be appealable. Section 42 of the Judiciary Act then [page 108] permits directions to be given which can have the effect of displacing the views expressed in the court below.

[169] P v P (1994) 181 CLR 583; 120 ALR 545 High Court of Australia Marriage power — Welfare of a child FACTS The applicant and respondent were married in 1966 and divorced in 1990. They sought an order from the Family Court of Australia authorising the sterilisation of their daughter, who was intellectually disabled. The proposed procedure was said to be essential to the welfare of the child. No application was made to the Guardianship Board, constituted under the Guardianship Act 1987 (NSW), for its consent. ISSUE Did the Family Law Act 1975 (Cth) validly confer power on the Family Court to authorise the sterilisation of a child of a marriage contrary to the requirements of the Guardianship Act?

HELD The Family Law Act, in conferring power on the Family Court to authorise the sterilisation, was a valid exercise of the marriage power in s 51(xxi) and the power over the guardianship of infants in relation to divorce in s 51(xxii) of the Constitution. The prohibition on medical treatment of an incapable person by the Guardianship Act was inconsistent with the Family Law Act to the extent that it would preclude an order authorising treatment of an incapable child of a marriage. To the extent of that inconsistency, s 109 of the Constitution rendered the Guardianship Act invalid.

[170] PAPE v COMMISSIONER OF TAXATION (THE TAX BONUS CASE) (2009) 238 CLR 1; 257 ALR 1 High Court of Australia Appropriation — Power of Executive government to give tax bonus to stimulate economy FACTS The Tax Bonus for Working Australians Act (No 2) 2009 (Cth) directed the Commissioner to pay a tax bonus to taxpayers who earned less than $100,000 in the financial year ended 30 June 2008, as an economic stimulus to mitigate the effects of the ‘global financial crisis’. Pape was a taxpayer entitled to receive a tax bonus payment. ISSUE Pape argued that the bonus payments did not comply with ss 81 and 83 of the Constitution because there was no appropriation of money for the purposes of the Commonwealth. He also argued that the payments [page 109] were a gift and that the Act was not a law with respect to taxation under s 51(ii) of the Constitution.

HELD The Act was a valid law supported by the executive power in s 61 of the Constitution and the incidental power in s 51(xxxix). Sections 81 and 83 of the Constitution did not authorise the tax bonus payments. Section 16 of the Taxation Administration Act 1953 (Cth) authorised the appropriation of funds from the Consolidated Revenue Fund.

[171] PARTON v MILK BOARD (VIC) (1949) 80 CLR 229 High Court of Australia Duties of excise — Not a fee for services rendered FACTS The Milk Board Act 1933 (Vic) established the Milk Board to control the trade of milk within the Melbourne metropolitan area. The Board fixed the price of milk, licensed dairies and promoted the consumption of milk. The Act required each dairy owner to contribute an amount to the Board, for its activities, calculated on the quantity of milk sold. ISSUE Parton was a milk distributor who sought a declaration that the contributions were excise duties. The Board argued that the contributions were a payment for services rendered. HELD The contributions were a tax and not a fee for services rendered as it was a compulsory exaction for the purposes of expenditure out of a treasury fund and the Board did not provide a particular service to the plaintiff. The contributions were, therefore, a duty of excise and invalid under s 90 of the Constitution. ‘A tax upon a commodity at any point in the course of distribution before it reaches the consumer produces the same effect as a tax upon its manufacture or production. If the exclusive power of the Commonwealth with respect to excise did not go past manufacture and production it would with respect to many commodities have only formal significance’, per Dixon J at 260.

[172] PERMANENT TRUSTEE AUSTRALIA LTD v COMMISSIONER OF STATE REVENUE (VICTORIA) (2004) 220 CLR 388; 211 ALR 18 High Court of Australia Tax laws — Requirement for single subject of taxation FACTS The appellant entered into a lease of property located at Tullamarine Airport which was a Commonwealth place within s 52(i) [page 110] of the Constitution. The Commissioner assessed the lease as liable to stamp duty pursuant to the Stamps Act 1958 (Vic) as applied by the Commonwealth Places (Mirror Taxes) Act 1998 (Cth). ISSUE The appellant objected to the assessment on the basis, inter alia, that the Mirror Taxes Act dealt with more than one subject of taxation. HELD The Mirror Taxes Act was not invalid. By providing that State tax laws apply to a Commonwealth place, the Mirror Taxes Act dealt with only one subject of taxation and, therefore, complied with the requirement in the second limb of s 55 of the Constitution. A tax law only deals with the imposition of taxation within the first limb of s 55 of the Constitution if the provisions are fairly relevant or incidental to the imposition of a tax on subject of taxation or are provisions incidental and auxiliary to the assessment and collection of the tax.

[173] PETERSWALD v BARTLEY (1904) 1 CLR 497 High Court of Australia Duties of excise — Definition

FACTS The Liquor Act 1898 (NSW) required every person desiring to carry on business as a brewer to obtain a licence. A flat-rate licence fee was imposed. Bartley was charged with a breach of the Act for failing to possess a licence. ISSUE Was the licence fee an excise duty and invalid under s 90 of the Constitution? HELD The licence fee was not a duty of excise as it was not calculated by reference to the quantity or value of the beer produced. An excise duty ‘is intended to mean a duty analogous to a customs duty imposed upon goods either in relation to quantity or value when produced and not in the sense of a direct tax or personal tax’, per Griffith CJ, Barton and O’Connor JJ at 509.

[174] PIRRIE v McFARLANE (1925) 36 CLR 170 High Court of Australia Commonwealth–State relations — State Act binding the Commonwealth FACTS McFarlane was a member of the RAAF who drove a car on public roads in the course of his duties. While driving the car he was stopped by [page 111] Pirrie, a member of the Victorian Police Force, who asked to see his driver’s licence. McFarlane did not hold a licence and was charged under the Motor Car Act 1915 (Vic). The magistrate hearing the charge dismissed the charge on the basis that the Act did not apply to members of the defence forces. ISSUE Did the Act interfere with the exercise of Commonwealth powers? HELD The Act was valid as it did not discriminate against Commonwealth

officers but applied equally to all road users. Nor was the Act inconsistent with any Commonwealth legislation.

[175] PLAINTIFF S156/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION (2014) 254 CLR 28; 309 ALR 29 High Court of Australia Aliens power — No requirement for proportionality of legislation FACTS The plaintiff was an Iranian citizen who, claiming refugee status, sought to enter Australia. He was initially detained on Christmas Island and subsequently taken to Manus Island in Papua New Guinea pursuant to a direction made by the defendant under the Migration Act 1958 (Cth). ISSUE Were ss 198A and 198D of the Migration Act valid exercises of the aliens power? HELD As ss 198A and 198D operated to effect the removal of aliens from Australia, the provisions were a valid exercise of the aliens power in s 51(xix) of the Constitution. There is no requirement that the provisions be proportional, or ‘reasonably appropriate and adapted’, to the purpose of the power.

[176] PLAINTIFF S157/2002 v COMMONWEALTH (2003) 211 CLR 476; 195 ALR 24 High Court of Australia High Court — Jurisdiction FACTS The plaintiff was denied a protection visa. His challenge to the decision was dismissed by the Refugee Review Tribunal. Section 474 of the

Migration Act 1958 (Cth) provided that certain decisions of the Tribunal were unreviewable and s 486A imposed time limits on applications to the High Court to challenge decisions of the Tribunal. ISSUE The plaintiff argued that ss 474 and 486A were inconsistent with s 75(v) of the Constitution and invalid. [page 112] HELD Sections 474 and 486A, properly construed, did not apply to decisions involving jurisdictional error. As the constitutional writs of prohibition and mandamus are available only for jurisdictional error, the impugned sections were not inconsistent with s 75(v) of the Constitution. The sections did not, therefore, operate to bar or limit the exercise of the jurisdiction of the High Court that the plaintiff sought to invoke.

[177] POLLENTINE v BLEIJIE (2014) 253 CLR 629; 311 ALR 332 High Court of Australia Separation of powers — Power to order indefinite detention not inconsistent with institutional integrity of Court FACTS Section 18 of the Criminal Law Amendment Act 1945 (Qld) conferred power on judges in Queensland to direct that persons convicted of certain sexual offences be detained in an institution at her Majesty’s pleasure. The District Court of Queensland made orders under s 18 against each of the plaintiffs. ISSUE The plaintiffs challenged the validity of s 18 on the basis that it was incompatible for the District Court of Queensland to be invested with such power when it was a Court invested with federal jurisdiction under s 77(iii) of the Constitution.

HELD An order for indefinite detention did not delegate to the Executive the power to determine the period for which the offender will be imprisoned. Accordingly, s 18 was not invalid as it did not affect the institutional integrity of the District Court.

[178] POLYUKHOVIC v COMMONWEALTH (1991) 172 CLR 501; 101 ALR 545 High Court of Australia External affairs power — War crimes FACTS The War Crimes Act 1945 (Cth) provided that any person who committed a war crime in Europe between 1 September 1939 and 8 May 1945 was guilty of an indictable offence. Only an Australian citizen or resident could be charged under the Act. Polyukhovic was charged with an offence, but at the time of the alleged offence he had no connection with Australia, nor was there any law on war crimes. ISSUE Polyukhovic sought a declaration that the Act was invalid on the basis that it was beyond the scope of the external affairs power. [page 113] HELD The Act was a valid exercise of the external affairs power as it operated upon conduct which took place outside Australia. ‘Used without qualification or limitation, the phrase “external affairs” is appropriate in a constitutional grant of legislative power to encompass both relationships and things: relationships with or between foreign States and foreign international organisations or other entities; matters and things which are territorially external to Australia regardless of whether they have some identified connexion with Australia or whether they be the subject matter of international treaties, dealings, rights or obligations’, per Deane J at CLR 599. Brennan J dissented on the basis that the external affairs power required

a connection between Australia and the subject matter of the legislation, which his Honour considered did not exist.

[179] PORT MacDONNELL PROFESSIONAL FISHERMEN’S ASSOCIATION INC v SOUTH AUSTRALIA (1989) 168 CLR 340; 88 ALR 12 High Court of Australia Commonwealth–State relations — Legislation at request of States FACTS After the decision in the Seas and Submerged Lands case, the Commonwealth agreed to return to the States the jurisdiction and proprietary rights and title which the States had previously believed themselves to have over and in the territorial sea and underlying seabed. The Coastal Waters (State Powers) Act 1980 (Cth) was then enacted at the request of all of the States. The Act provided that State laws may apply to fisheries if an arrangement was entered into by the Commonwealth and the relevant State. Pursuant to the Fisheries Act 1952 (Cth) and the Fisheries Act 1982 (SA), the Commonwealth and South Australia entered into an arrangement for the management of a rock lobster fishery in the waters adjacent to the State in accordance with South Australian law. ISSUE The Fishermen’s Association sought a declaration that the arrangement was beyond the powers of the Commonwealth and the State and that the State Act and the Coastal Waters (State Powers) Act were invalid. HELD The State Fisheries Act had a valid extraterritorial operation as the State had a real and substantial connection with the fishery. Nor was it inconsistent with the Coastal Waters (State Powers) Act. The Commonwealth Act was a valid exercise of the power in s 51(xxxviii) of the Constitution. Accordingly, the arrangement for the management of the fishery was valid.

[page 114]

[180] PRECISION DATA HOLDINGS LTD v WILLS (1991) 173 CLR 167; 104 ALR 317 High Court of Australia Judicial power of the Commonwealth — Not exercised by Takeovers Panel FACTS The Corporations and Securities Panel, established by the Australian Securities Commission Act 1989 (Cth), was authorised to exercise powers under the Corporations Law to declare that an acquisition of shares or particular conduct was ‘unacceptable’, where the Panel was satisfied that ‘unacceptable circumstances’ existed and the public interest required such a declaration. The Australian Securities Commission referred an acquisition of shares by the appellant to the Panel for consideration. ISSUE The appellant sought to restrain the Panel from hearing the matter on the basis that it had no jurisdiction to make the declarations. It was argued that the Panel would be exercising the judicial power of the Commonwealth contrary to ss 71 and 72 of the Constitution. HELD In exercising the powers under the Corporations Law the Panel was not exercising judicial power. The adjudication which the Panel was required to undertake was ‘not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct’, per curiam at CLR 188.

[181] QUEENSLAND v COMMONWEALTH (1989) 167 CLR 232; 86 ALR 519 High Court of Australia External affairs power — Identifying international obligations

FACTS The Commonwealth proclaimed an area of land in northern Queensland known as the ‘Wet Tropical Rainforests of North-East Australia’ to be protected under the World Heritage Properties Conservation Act 1983 (Cth). ISSUE Queensland argued that the area did not have the attributes justifying inclusion on the World Heritage List, and that the protection of the area was not a matter of international obligation for Australia. HELD The inclusion of the area on the World Heritage List was conclusive of its status under the Convention which created international obligations invoking the external affairs power. ‘In the international community a [page 115] decision by a municipal court that a property does not have that status cannot prevail over an evaluation made by the Committee which results in the property’s inclusion in the World Heritage List. So long as a property is included in that List, the State Party on whose territory the property is situated and who submitted an inventory including the property as part of the cultural heritage or natural heritage is under an international duty to protect and conserve it’ per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at CLR 242.

[182] QUEENSLAND ELECTRICITY COMMISSION v COMMONWEALTH (1985) 159 CLR 192; 61 ALR 1 High Court of Australia Commonwealth–State relations — Implied prohibition of discrimination against States FACTS

The Queensland Electricity Commission was a statutory body

whose function, along with Electricity Boards, was to generate and distribute electricity. The Commission and Boards became involved in an industrial dispute with their employees. The terms of employment were governed by State legislation and during the course of the dispute the Queensland Parliament passed further legislation varying the conditions. A Commonwealth Conciliation and Arbitration Commissioner found an industrial dispute existed between the Electrical Trades Union of Australia and the Commission, under the Conciliation and Arbitration Act 1904 (Cth). The Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth) was enacted and directed solely at resolving the dispute in question. ISSUE The plaintiffs sought a declaration that the 1985 Act was invalid for violating an implied prohibition in the Constitution against discriminating against States. HELD The Act was invalid as it subjected Queensland government agencies to special burdens or disabilities. ‘A law may discriminate against a State even if it subjects some others (eg, private employers) as well as agencies of the States to a special burden or disability. In such a situation the true effect of the law may be to isolate the State agency and the private employers from the general law. This … is the effect of the Act. It discriminates against the State of Queensland by singling out disputes to which employers in that State are parties’, per Mason J at CLR 220–1. [page 116]

[183] QUEENSLAND NICKEL PTY LTD v COMMONWEALTH (2015) 318 ALR 182 High Court of Australia Commonwealth–State relations — Differential operation between States not arising from discrimination

FACTS The Clean Energy Act 2011 (Cth) was enacted to impose a tax on entities responsible for the emission of greenhouse gases. Under the Act, a scheme was also created by which certain entities who would suffer a competitive disadvantage in export sales as a consequence of the tax, were entitled to credits which could be used to reduce the tax payable. The plaintiff operated a nickel and cobalt refinery in Queensland and was entitled to receive credits to apply against the tax. There were only three other nickel and cobalt producers in Australia who were located in Western Australia. As the mineralisation of the orebody in Western Australia differed to that located in Queensland, different and more energy efficient methods of extracting the minerals were used in Western Australia. The consequence was that the Western Australian miners were entitled to receive more credits than the plaintiff. ISSUE The plaintiff argued that the scheme contravened s 99 of the Constitution because the number of credits that could be issued to a nickel producer were calculated by reference to an industry average volume of greenhouse gases emitted per unit of nickel production which made no allowance for differences in greenhouse gas emissions between producers. HELD It is not enough, in order to demonstrate discrimination under s 99 of the Constitution, to show only that a law may have different effects in different States because of differences in circumstances in those States. The scheme for the provision of credits did not discriminate between States. It applied equally to eligible persons carrying on the production of nickel regardless of the State of production. In its practical effect, the differences which arose under the scheme were not due to anything other than the differences in inputs, production processes and outputs. As the differences between inputs and production processes were not caused by differences between circumstances in different States, it could not be concluded that the differences in outputs were caused by differences in circumstances between States. [page 117]

[184] R v AUSTRALIAN INDUSTRIAL COURT; Ex parte CLM HOLDINGS PTY LTD (1977) 136 CLR 235; 13 ALR 273 High Court of Australia Corporations power — Regulation of directors’ conduct FACTS CLM Holdings carried on business in Queensland selling antiques. The company was charged with contravening the Trade Practices Act 1974 (Cth), by making false representations as to the quality of the goods put up for auction. A director of the company was charged under s 5 of the Crimes Act 1914 (Cth) for being knowingly concerned in the commission of the offence by the company. ISSUE Did the power in s 51(xx) of the Constitution authorise laws controlling the activities of directors of corporations? HELD The corporations power enabled the Commonwealth to legislate to create the offence in the Trade Practices Act, and that head of power and the implied incidental power authorised the enactment of the offence of a director being knowingly concerned in the commission of the offence by the company.

[185] R v BARGER (1908) 6 CLR 41 High Court of Australia Commonwealth–State relations — State immunity and doctrine of reserved powers FACTS The Excise Tariff Act 1906 (Cth) provided that duties of excise would not be levied on agricultural implements which were manufactured by persons employed under certain conditions. The Commonwealth Government brought proceedings against two manufacturers of agricultural

implements for the recovery of the duty. In each case, the Commonwealth alleged that the machinery had not been manufactured under any of the conditions specified in the Act. ISSUE Did s 51(ii) of the Constitution enable the Commonwealth to indirectly regulate the conditions on which labour was employed? HELD The majority, acting under the influence of the reserved powers doctrine, held that the Act was invalid as the substance of the Act was to [page 118] regulate the conditions of manufacture of agricultural implements which was beyond the power of the Commonwealth and not a valid exercise of the power of taxation. In his dissenting judgment, Isaacs J said, ‘neither the purpose nor the effect [of a taxing Act] is a valid objection to the exercise of the power [in s 51(ii)]’, at 99. Note: The reserved powers doctrine was overruled in the Engineers’ case. The majority decision in this case is no longer regarded as good law.

[186] R v COLDHAM; Ex parte AUSTRALIAN SOCIAL WELFARE UNION (THE CYSS CASE) (1983) 153 CLR 297; 47 ALR 225 High Court of Australia Conciliation and arbitration power — Definition of industrial dispute FACTS The Community Youth Support Scheme was established under the authority of the Minister for Employment and Industrial Relations to provide assistance to young unemployed people in their search for jobs. The scheme was to be implemented by project officers, employed and supervised by a

hierarchy of committees. The project officers were members of the Australian Social Welfare Union which served a log of claims on the committees relating to pay and conditions. A Conciliation and Arbitration Commissioner found that an industrial dispute within the Conciliation and Arbitration Act 1904 (Cth) existed between the Union and the committees. The committees sought to have the finding set aside on the basis that neither the committees nor the project officers were engaged in or undertaking activities in connection with an industry. ISSUE In order for there to be an ‘industrial dispute’ was it necessary that there was a finding that an ‘industry’ existed? HELD The concept of an ‘industrial dispute’ in s 51(xxxv) of the Constitution is not confined to disputes in an ‘industry’ but includes any dispute between an employer and employee about the terms and conditions of employment. Accordingly, the finding of an industrial dispute was correct. ‘It is, we think, beyond question that the popular meaning of “industrial disputes” includes disputes between employees and employers about the terms of employment and conditions of work … We reject any notion that the adjective “industrial” imports some restriction which confines the constitutional conception of “industrial disputes” to disputes in productive industry and organised business carried on for the purpose of making profits’, per curiam at CLR 312. [page 119]

[187] R v COMMONWEALTH INDUSTRIAL COURT; Ex parte AMALGAMATED ENGINEERING UNION (1960) 103 CLR 368 High Court of Australia Judicial power of the Commonwealth — Identification of judicial power

FACTS Following the decision in R v Spicer; Ex parte ABLF, the Conciliation and Arbitration Act 1904 (Cth) was amended to give the Commonwealth Industrial Court the power to disallow rules of registered organisations. A member of the Amalgamated Engineering Union sought a declaration that a rule of the Union contravened the Act. ISSUE Did the Act purport to invest a judicial body with non-judicial power, contravening the principle of the separation of powers in s 71 of the Constitution? HELD The Act did not vest a non-judicial power in the Court. The Industrial Court was no longer authorised to do anything on its own motion and it could not exercise a discretion as to whether a declaration would be made after it had determined whether the rule under challenge possessed the qualities specified in the Act.

[188] R v DAVISON (1954) 90 CLR 353 HIGH COURT OF AUSTRALIA Judicial power of the Commonwealth — Not able to be exercised by Registrar FACTS Davison was declared bankrupt by an order made by a deputy registrar of the Federal Court of Bankruptcy on his own petition. He was subsequently charged with committing offences as a bankrupt. ISSUE Davison argued that he was not a bankrupt as the sequestration order made by the deputy registrar was invalid. He asserted that the making of a sequestration order was an exercise of the judicial power of the Commonwealth which could not be vested in a court officer not appointed in accordance with s 72 of the Constitution. HELD There had not been a valid sequestration order made as the deputy registrar could not exercise judicial power. ‘[T]he ascertainment

[page 120] of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss 71 and 72 of the Constitution’, per Dixon CJ and McTiernan J at 369.

[189] R v FEDERAL COURT OF AUSTRALIA; Ex parte WESTERN AUSTRALIAN NATIONAL FOOTBALL LEAGUE INC (ADAMSON’S CASE) (1979) 143 CLR 190; 23 ALR 439 High Court of Australia Corporations power — Activities test used to identify trading corporations FACTS The Western Australian National Football League and the West Perth Football Club were incorporated under the Associations Incorporation Act 1895 (WA). Similarly, the South Australian National Football League was incorporated under the equivalent South Australian legislation. Each of these Acts excluded from the definition, ‘associations formed for the purpose of trading or securing pecuniary profit’. The Leagues and the Club promoted football competitions. Large revenues were generated from the gate receipts, broadcasting rights and the like. The revenue generated was not distributed to the members of the association, but used for promotional purposes. The Trade Practices Act 1974 (Cth) prohibited any trading or financial corporation from entering into contracts or agreements to restrict the supply of services or to substantially lessen competition. Adamson was a professional footballer employed by the West Perth Club. He was refused a clearance to play in the South Australian competition and brought an action against the Leagues and the Club alleging a breach of the Trade Practices Act.

ISSUE Were Leagues and the Club trading corporations within s 51(xx) of the Constitution? HELD Due to their substantial commercial activities, the Leagues and the Club were trading corporations within s 51(xx) of the Constitution and, therefore, subject to the Trade Practices Act. ‘[A] corporation formed within the limits of Australia will satisfy the description “trading corporation” if trading is a substantial corporate activity. Its activities rather than the purpose of its incorporation will designate its relevant character’, per Barwick CJ at CLR 208. [page 121]

[190] R v HUGHES (2000) 202 CLR 535; 171 ALR 155 High Court of Australia Commonwealth–State relations — State laws investing power in Commonwealth officers FACTS The Corporations Law (WA) prohibited a person other than a public corporation to offer a ‘prescribed interest’ to investors. Section 29 of the Corporations Law and s 45 of the Corporations Act 1989 (Cth) provided that a breach of the Corporations Law was taken to be an offence against the laws of the Commonwealth. Section 46 of the Act authorised the Commonwealth DPP to prosecute offences under the Law. The effect of the legislation was for State legislation to confer powers on Commonwealth officers. Pursuant to s 46 of the Act, the Commonwealth Director of Public Prosecutions prosecuted the respondent for offering prescribed interests in investments in the United States to Australian investors. ISSUE The respondent challenged the validity of the conferral of State power on the federal authorities.

HELD The federal Parliament may permit officers of the Commonwealth holding appointments by or under statute to perform functions and accept appointments in addition to their Commonwealth appointment. A State cannot, however, unilaterally invest functions in officers of the Commonwealth and a State law that purported to grant a wider power or authority than that which was accepted by the Commonwealth law, would be inconsistent with the Commonwealth law and invalid under s 109 of the Constitution. In this case, the impugned provisions were valid as they were supported by the trade and commerce power in s 51(i) and the external affairs powers in s 51(xxix) of the Constitution.

[191] R v JOSKE; Ex parte AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (1974) 130 CLR 87; 2 ALR 447 High Court of Australia Judicial power of the Commonwealth — Cancellation of registration of union FACTS The Federation was an organisation registered under the Conciliation and Arbitration Act 1904 (Cth). At the instance of the [page 122] Master Builders Association of New South Wales, the Commonwealth Industrial Court made an order under the Act requiring the Federation to show cause why its registration should not be cancelled. ISSUE The Federation sought a writ of certiorari to quash the order on the basis that the cancellation of the registration of an organisation was an administrative function, and therefore the Act was invalid for conferring a

non-judicial power upon the Industrial Court, infringing the principle of the separation of powers in s 71 of the Constitution. HELD The power to direct the cancellation of the registration of an organisation was a judicial function which involved the determination of questions of fact and law. The Act did not purport to confer non-judicial power in breach of the principle of separation of powers. Barwick CJ, with whom Stephen J and Mason J agreed, at CLR 90, cast doubt on the principal conclusion of the Boilermakers’ case. His Honour suggested that it was ‘unnecessary … for the effective working of the Australian Constitution or for the maintenance of the separation of the judicial power of the Commonwealth or for the protection of the independence of courts exercising that power.’

[192] R v JOSKE; Ex parte SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION (1976) 135 CLR 194; 10 ALR 385 High Court of Australia Separation of powers — Exercise of power incidental to judicial power FACTS The Association was an industrial organisation registered under the Conciliation and Arbitration Act 1904 (Cth). Egan was the national secretary of the Association but was removed from office by a resolution of the National Council of the Association. He commenced proceedings in the Commonwealth Industrial Court for reinstatement on the basis that some members of the National Council had not been validly appointed. The Act gave the Court wide powers to rectify or validate actions of, or to approve schemes to reorganise, industrial unions. ISSUE The Association sought to restrain the Court from proceeding further on the grounds that the Court did not have jurisdiction as the Act

conferred non-judicial power on it, infringing the separation of powers in s 71 of the Constitution. The Commonwealth Attorney-General was [page 123] given leave to intervene to argue that the Boilermakers’ case should no longer be followed. HELD The powers given to the Industrial Court were incidental to the clearly judicial function of adjudicating upon the Association’s rules. ‘[T]he relief which a court is authorised to give consequentially upon its judicial determination can rarely, if ever, be denied the quality of an exercise of judicial power’, per Barwick CJ at CLR 201. In light of the finding that the powers conferred on the Court were judicial powers, it was unnecessary to consider whether the Boilermakers’ case should still be followed.

[193] R v KELLY; Ex parte VICTORIA (1950) 81 CLR 64 High Court of Australia Conciliation and arbitration power — No power to make common rule FACTS Kelly was a Conciliation and Arbitration Commissioner who made an award to settle a dispute between the Australasian Meat Industry Employees’ Union and the Meat and Allied Trades Federation of Australia. The award provided, inter alia, for the opening and closing hours of butcher shops. The Conciliation and Arbitration Act 1904 (Cth) provided that a Commissioner may declare a term of an award to be a common rule of an industry to prevent further industrial disputes. The Federation subsequently applied for, and obtained from Kelly, an order that the award be ‘a common rule of the industries of butchering and the sale of fresh meat’.

ISSUE Victoria sought prohibition against Kelly on the grounds that s 51(xxxv) of the Constitution did not authorise the Commissioner to make a common rule and that the issue of trading hours was not a matter about which there could be an industrial dispute. HELD The Act was invalid in so far as it purported to authorise the Commissioner to make a common rule. The issue of opening hours of butchers was not a matter relating to the relations of employers and employees and so was not an industrial matter within s 51(xxxv) of the Constitution. ‘[T]he constitutional power is limited to conciliation and arbitration between disputing parties, and to make a common rule is to go outside the scope of conciliation and arbitration and to assume a function of general industrial legislation’, per curiam at 80. [page 124]

[194] R v KIRBY; Ex parte BOILERMAKERS’ SOCIETY OF AUSTRALIA (THE BOILERMAKERS’ CASE) (1956) 94 CLR 254 High Court of Australia Separation of powers — Judicial power only to be exercised by Ch III courts FACTS The Commonwealth Court of Conciliation and Arbitration fined the Boilermakers’ Society for contempt of court for disobeying an earlier order of the court requiring compliance with an award and restraining breaches of it. The Boilermakers’ Society sought a writ of prohibition against Kirby, the Chief Judge of the Court, preventing any further proceedings on the contempt charge. ISSUE The Boilermakers’ Society argued that the Court was primarily an arbitral body and the Constitution prevented it from being vested with the

judicial power of the Commonwealth which was needed to deal with the contempt charge. HELD The judicial power of the Commonwealth could not be conferred on bodies other than the Courts in Ch III of the Constitution. Further, nonjudicial power could not be conferred on such Courts. As the Arbitration Court was properly classified according to its principal function as an arbitral body, it was not a federal court and could not exercise judicial power. ‘[I]t is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State’, per Dixon CJ, McTiernan, Fullagar and Kitto JJ at 269. The Privy Council dismissed an appeal against the High Court’s decision: Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529; [1957] AC 288. The Board agreed that the drafting structure of the Constitution embodied the principle of the separation of powers. ‘[Section] 71 and the succeeding sections while affirmatively prescribing in what courts the judicial power of the Commonwealth may be vested and the limits of their jurisdiction negatives the possibility of vesting such power in other courts or extending their jurisdiction beyond those limits’, at CLR 538. [page 125]

[195] R v L (1991) 174 CLR 379; 103 ALR 577 High Court of Australia Inconsistency between Commonwealth and State laws — Conjugal rights FACTS A man was charged with raping his wife, breaching the Criminal Law Consolidation Act 1935 (SA).

ISSUE He argued that the Act, which provided that a married person was not to be presumed to have consented to sexual intercourse with their spouse, was inconsistent with the Family Law Act 1975 (Cth), within the meaning of s 109 of the Constitution and therefore invalid. HELD The Family Law Act did not attempt to comprehensively regulate the rights and obligations of parties to a marriage, and in particular, it did not assume a duty to render conjugal rights. There was, therefore, no inconsistency between the Acts.

[196] R v LK (2010) 241 CLR 177; 266 ALR 399 High Court of Australia Rights and freedoms —Trial by jury not affected by directed verdict FACTS The respondents were charged with conspiring to deal with the proceeds of crime. At the conclusion of the evidence, the trial judge directed the jury that, as a matter of law, they were required to acquit the respondents. The Crown appealed. ISSUE The respondents argued that an appeal by the Crown, and s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) which conferred the right of appeal on the Crown, infringed the guarantee of trial by jury in s 80 of the Constitution. HELD An appeal from a directed verdict did not infringe s 80. The appeal, being confined solely to questions of law, did not infringe upon any of the essential functions of the jury. [page 126]

[197] R v LUDEKE; Ex parte QUEENSLAND ELECTRICITY COMMISSION (1985) 159 CLR 178; 60 ALR 641 High Court of Australia Conciliation and arbitration power — Paper disputes FACTS The Queensland Branch of the Electrical Trades Union was involved in a dispute with the South-East Queensland Electricity Board pursuant to a State award. Members of the Union in Western Australia went on strike in sympathy, as did other unions in Queensland. The Federal Executive of the Union resolved to apply for a federal award to resolve the dispute. The Union then served a log of claims on employers in all States and Territories other than New South Wales. The log of claims was ‘deliberately outrageous’. ISSUE The Electricity Commission and other employers sought writs of prohibition and certiorari against the Conciliation and Arbitration Commission on the basis that the log of claims did not constitute a bona fide industrial dispute extending beyond one State, within the meaning of s 51(xxxv) of the Constitution. HELD The claims were not a sham or a mere device to give the Commission jurisdiction to settle an intrastate dispute, but were genuinely advanced by the Union for the purpose of regulating the terms and conditions of employment in that industry. The fact the claims were excessively inflated did not result in the claims not being bona fide. ‘Because disagreement rather than disturbance or dislocation of industrial relations is the essential characteristic of an industrial dispute, a “paper dispute” evidenced by delivery and non-acceptance of a log of claims is sufficient to create such a dispute’, per curiam at CLR 181.

[198] R v PORTUS; Ex parte AUSTRALIAN AIR PILOTS’ ASSOCIATION

(1953) 90 CLR 320 High Court of Australia Conciliation and arbitration power — No dispute between employers FACTS Qantas served a log of claims on other airlines and the Air Pilots’ Association to reduce the wages under which all airline pilots were employed, irrespective of whether they were members of the Association. The Association sought a writ of prohibition to prevent the Commonwealth Conciliation and Arbitration Commission from proceeding to settle the dispute. [page 127] ISSUE Could an industrial dispute within s 51(xxxv) of the Constitution arise from a demand served by one employer upon another? HELD No industrial relationship existed between employers unconnected other than by being engaged in the same industry. No industrial dispute could arise from a log of claims served on one employer by another. The log was read as making a distributive demand upon each party served. As such, an industrial dispute within s 51(xxxv) existed between Qantas and the Air Pilots’ Association.

[199] R v SPICER; Ex parte AUSTRALIAN BUILDERS’ LABOURERS’ FEDERATION (1957) 100 CLR 277 High Court of Australia Separation of powers — Ch III courts not to exercise administrative functions

FACTS Following the decision in the Boilermakers’ case, the Conciliation and Arbitration Act 1904 (Cth) was amended to establish the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court. It was intended that the Commission would conciliate and arbitrate interstate disputes and the Industrial Court would exercise the judicial power associated with the disputes. A member of the Australian Builders’ Labourers’ Federation sought an order disallowing certain rules of the Federation. ISSUE The Federation objected to the jurisdiction of the Court on the basis that the disallowance of rules was an administrative function which could not be given to a judicial body. HELD The language of the Act in granting the power to disallow rules indicated that it was not intended to be part of the judicial power of the Commonwealth. The Industrial Court could not, therefore, exercise the power due to the principle of separation of powers in s 71 of the Constitution.

[200] R v TRADE PRACTICES TRIBUNAL; Ex parte ST GEORGE COUNTY COUNCIL (1974) 130 CLR 533; 2 ALR 371 High Court of Australia Corporations power — Identification of trading corporation by purpose test FACTS The Restrictive Trade Practices Act 1971 (Cth) prohibited attempts to monopolise the trade in any commodity by corporations. St [page 128] George County Council, constituted under the Local Government Act 1919

(NSW), supplied electricity and appliances to consumers at the lowest possible price. It was prosecuted for engaging in monopolisation. ISSUE Was the Council a trading corporation within s 51(xx) of the Constitution? HELD The Council was not a trading corporation within s 51(xx) of the Constitution. A trading corporation was to be recognised from its basic charter; for example, a trading corporation was one which had been incorporated for the purpose of trading. The Council, being established to fulfil the function of local government, was not a trading corporation. Note: The ‘purpose test’ adopted by the majority in this case was rejected in Adamson’s case and is no longer regarded as good law.

[201] R v TRADE PRACTICES TRIBUNAL; Ex parte TASMANIAN BREWERIES PTY LTD (THE TASMANIAN BREWERIES CASE) (1970) 123 CLR 361 High Court of Australia Judicial power of the Commonwealth — Identification of judicial power FACTS The Commissioner of Trade Practices applied to the Trade Practices Tribunal for a determination that an agreement, to which Tasmanian Breweries was a party, breached the Trade Practices Act 1965 (Cth). Tasmanian Breweries objected to the jurisdiction of the Tribunal and sought to restrain it from proceeding with the hearing. ISSUE The Company argued that the Act, in purporting to invest the Tribunal with judicial power when it was not a court created in accordance with Ch III of the Constitution, infringed the principle of separation of powers in s 71 of the Constitution and was invalid.

HELD Although the Tribunal decided issues conclusively, it did not exercise the judicial power of the Commonwealth as the exercise of its powers did not involve adjudication. ‘[A] judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons’, per Kitto J at 374. [page 129]

[202] RAINSONG HOLDINGS PTY LTD v AUSTRALIAN CAPITAL TERRITORY (1993) 178 CLR 634; 118 ALR 47 High Court of Australia Duties of excise — Licence fee constituting tax on step in production FACTS In Capital Duplicators (No 2), the High Court held the licence fees imposed by the Business Franchise (‘X’ Videos) Act 1990 (ACT) to be invalid. The Act was amended to replace the advance fee with an initial fee and an estimated franchise fee. The initial fee was calculated as one the Commissioner assessed as fair and reasonable, considering the value of the applicant’s stock. The estimated franchise fee was based upon the Commissioner’s estimation of the likely trading volume. ISSUE The plaintiff sought a declaration that the amendments were also invalid on the basis that licence fees remained duties of excise and invalid under s 90 of the Constitution. HELD The amendments did not alter the character of the fees paid. The licence fees were, therefore, still invalid as duties of excise.

[203] REDFERN v DUNLOP RUBBER AUSTRALIA LTD (1964) 110 CLR 194 High Court of Australia Trade and commerce power — Regulation of intrastate activity FACTS Several retailers sued the manufacturers of motor vehicle tyres under the Australian Industries Preservation Act 1906 (Cth) which prohibited any contract or combination in relation to trade or commerce with other countries or among the States in restraint of trade. The plaintiffs claimed that the defendants had agreed not to supply the plaintiffs with tyres at wholesale prices because the plaintiffs were retailing tyres at a discount. The defendants’ factories were located in three States and their tyres were sold throughout Australia. ISSUE Did the power in s 51(i) of the Constitution operate to authorise the regulation of activities of a composite character in which the intrastate activities could not be easily distinguished from the interstate activities? HELD The Australian Industries Preservation Act did not exceed the power in s 51(i) merely because it dealt with activities which combined interstate and intrastate trade. ‘It is, of course, clear that Commonwealth power over trade and commerce can only extend to such intrastate trade and commerce as is inseparably connected with interstate trade and [page 130] commerce, but full acceptance of this limitation is quite consistent with, according to the Commonwealth, power to prohibit or regulate acts which relate to intrastate trade or commerce if they relate to interstate trade and commerce as well’, per Menzies J at 221.

[204] REGISTRAR OF THE ACCIDENT COMPENSATION TRIBUNAL v FEDERAL COMMISSIONER OF TAXATION (1993) 178 CLR 145; 117 ALR 27 High Court of Australia Commonwealth–State relations — Tax on trust property not on property of State FACTS The Commissioner assessed the Accident Compensation Tribunal of Victoria as liable for income tax on interest earned on moneys held on trust by the Registrar of the Tribunal for the benefit of dependants of a deceased worker. ISSUE Did the tax infringe s 114 of the Constitution by imposing a tax on the property of the State? HELD Although the tax was levied on the Registrar of the Tribunal, it was in the capacity as trustee of the moneys, and therefore the tax was not in either substance or form a tax on the property of the State.

[205] RESIDUAL ASSCO GROUP LTD v SPALVINS (2000) 202 CLR 629; 172 ALR 366 High Court of Australia Jurisdiction of States — Transfer of proceedings to Supreme Court not an interference with Federal Court FACTS Following the decision of the High Court in Re Wakim; Ex parte McNally, the South Australian Parliament enacted the Federal Court (State Jurisdiction) Act 1999 (SA). Section 11 of the Act provided that ‘a person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court’. A ‘relevant order’ was defined to mean an order of a federal court that it did not have jurisdiction to determine the

proceedings. The plaintiff had commenced proceedings in the Federal Court against the defendants but an order was made staying the proceedings following the decision in Re Wakim. The plaintiff then applied to the Supreme Court for an order pursuant to s 11 of the Act. [page 131] ISSUE The defendants sought a declaration that the Act was an impermissible interference with a federal court by State law. HELD Section 11 of the Act was valid. There was no impermissible interference with the Federal Court. The section took as an historical fact that the Federal Court had made an order dismissing or staying proceedings that it did not have jurisdiction to determine and then authorised a party to those proceedings to apply to commence a proceeding in the Supreme Court. Further, ‘relevant orders’ within s 11 were made within the jurisdiction of the Federal Court under s 19 of the Federal Court of Australia Act 1976 (Cth) and s 39B of the Judiciary Act 1903 (Cth) and not under the invalidly conferred cross-vesting jurisdiction.

[206] RICHARDSON v FORESTRY COMMISSION (TAS) (1988) 164 CLR 261; 77 ALR 237 High Court of Australia External affairs obligations

power

—

Apprehended

international

FACTS The Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) established an Inquiry into whether two areas in Tasmania were eligible for listing as World Heritage areas. The Act imposed a twelve month prohibition on forestry operations or any act capable of adversely affecting the areas, except with the written consent of the Minister. In determining whether or not to give consent, the Minister was only to have

regard to Australia’s obligations under the Convention for the Protection of the World Cultural and Natural Heritage. Richardson, the federal Minister responsible for the Act, sought injunctions to restrain the Tasmanian Forestry Commission and a private company, which harvested and milled timber in the areas, from acting in contravention of the Act. ISSUE The defendants argued that the external affairs power could not support the Act as there was no obligation to protect a particular area unless and until it was identified and delineated as a part of the natural heritage. HELD The Act and the Inquiry were valid exercises of the external affairs power in s 51(xxix) of the Constitution. ‘The power extends to support a law required to discharge a treaty obligation which is known to exist and also a law which is required to ensure the discharge of a treaty obligation which is reasonably apprehended to exist. In making provision for the establishment of the Commission of Inquiry and for the regime of interim protection of the protected area, Parliament has made a legislative judgment about the situation and the Convention obligation that may be proved to exist. It is not for us to impugn the bona fides of that judgment. [page 132] It is enough that the legislative judgment could reasonably be made or that there is a reasonable basis for making it’, Mason CJ and Brennan J at CLR 295–6.

[207] ROACH v ELECTORAL COMMISSIONER (2007) 233 CLR 162; 239 ALR 1 High Court of Australia Parliament — Exclusion of prisoners from voting in parliamentary elections

FACTS Roach was serving a full-time prison sentence. In 2004, the Commonwealth Electoral Act 1918 (Cth) was amended to provide that prisoners serving a sentence of three years or more were disqualified from voting in federal elections. In 2006, the Act was amended by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth). The 2006 amendments disqualified all prisoners who were serving a full-time sentence of imprisonment from voting in federal elections. ISSUE Roach argued that the 2004 and 2006 amendments to the Commonwealth Electoral Act were invalid on the basis that the amendments were inconsistent with the Constitution. HELD Sections 8 and 30 of the Constitution authorised the Commonwealth Parliament to prescribe reservations or exceptions to the qualification of electors. In failing to have regard to the culpability of the prisoner the 2006 amendments to the Commonwealth Electoral Act were not reasonably appropriate and adapted for an end consistent or compatible with the maintenance of the constitutionally prescribed system of representative government, and as such were invalid. The 2004 amendments, in having regard to the seriousness of the offence by using the length of sentence as the disqualifying criterion were valid.

[208] ROWE v ELECTORAL COMMISSIONER (2010) 243 CLR 1; 273 ALR 1 High Court of Australia Parliament — Elections — Enrolment of voters FACTS The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) changed the time for new enrolments and for transfers of enrolment on the electoral roll. The plaintiffs brought proceedings seeking declarations that the provisions preventing the

[page 133] Commissioner from considering their claims for enrolment and transfer of enrolment were invalid. ISSUE Were the provisions reasonably appropriate and adapted to serve a legitimate purpose consistent with the maintenance of the constitutionally prescribed system of representative government? HELD By a majority of 4:3, the Court held that the impugned provisions effected a legislative disqualification of voters from the constitutional mandate that members of Parliament be elected by the people. The detriment was disproportional to any legitimate benefit. The provisions were therefore invalid. The dissenting justices observed that maximum participation of eligible voters was not an element of the constitutionally prescribed system of representative government, and that the impugned provisions did not effect a disenfranchisement of voters. Instead, the provision simply limited the time for voters to enrol.

[209] ROY MORGAN RESEARCH PTY LTD v COMMISSIONER OF TAXATION (2011) 244 CLR 97; 281 ALR 205 High Court of Australia Taxation power — Purpose of imposition of levy FACTS The Superannuation Guarantee Charge Act 1992 (Cth) provided that if employers failed to pay prescribed amounts of superannuation to their employees they were liable to pay the shortfall to the Commonwealth. ISSUE Was the Act a valid exercise of the tax power in s 51(ii) of the Constitution if the charge was not imposed for public purposes? HELD The Act did not confer a private and direct benefit on employees so

was imposed for public purposes. It did not matter that revenue raising was not the primary purpose for the imposition of the levy.

[210] SECRETARY, DEPARTMENT OF HEALTH AND COMMUNITY SERVICES v JWB (MARION’S CASE) (1992) 175 CLR 218; 106 ALR 385 High Court of Australia Marriage power — Guardianship of infants FACTS The parents of a 14-year-old girl suffering from mental retardation, severe deafness, epilepsy and behavioural problems sought an order from the Family Court authorising a hysterectomy and ovariectomy [page 134] on her. It was argued that the procedures were in the best interests of the girl as she was incapable of caring for herself or understanding the nature and implications of sexuality, pregnancy and motherhood. The operations would also prevent menstruation and hormonal fluxes and imbalances with the consequential stress and behavioural reactions. ISSUE Did the Family Court have jurisdiction to authorise performance of the procedures? HELD The Family Court had jurisdiction to authorise the sterilisation of the child pursuant to the Family Law Act 1975 (Cth). That Act, in conferring power on the Family Court to make an order for the welfare of the child, was a valid exercise of the powers in s 51(xxi) and 51(xxii) of the Constitution. ‘It is clear enough that a question of sterilisation of a child of a marriage arises out of the marriage relationship and that the sterilisation of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorise a sterilisation is within the reach of the power of the

Commonwealth’, per Mason CJ, Dawson, Toohey and Gaudron JJ at CLR 261.

[211] SGH LTD v COMMISSIONER OF TAXATION (2002) 210 CLR 51; 188 ALR 241 High Court of Australia Tax laws — Prohibition on taxing property of a State FACTS A building society was formed, pursuant to Queensland State government policy, under the Building Societies Act 1886 (Qld) to provide stability in the building industry in that State. A statutory corporation representing the State held all of the B class shares in the Building Society and was entitled to appoint three of the six directors of the Building Society. Investors in the Building Society held the A class shares and had only limited voting rights. The Commissioner of Taxation assessed the Building Society as liable for tax on certain payments made to it from the consolidated revenue of the State. ISSUE Was the assessment a tax on the property of a State within the meaning of s 114 of the Constitution? HELD The objects of the Building Society did not include any reference to advancing the interests of the State. Instead, they focused on the interests of the members and depositors. As such, the Building Society was a body whose organs of management could not disregard the interests of persons other than the State. Accordingly, the Building Society was not the State for the purposes of s 114. [page 135]

[212] SMITH v ANL LTD (2000) 204 CLR 493; 176 ALR 449

High Court of Australia Acquisition of property — Extinguishment of common law claim for damages for personal injury FACTS The Seafarers Rehabilitation and Compensation Act 1992 (Cth) prohibited action by an employee against his or her employer in respect of personal injury sustained by the employee in the course of the employment. Transitional provisions in the Act permitted action being commenced within six months of the commencement of the Act for injuries sustained prior to the commencement of the Act. The plaintiff was a merchant seaman who was injured prior to the commencement of the Act but who did not commence proceedings until more than six months after the Act commenced. The defendant claimed the benefit of the statutory provision. ISSUE The plaintiff argued that the Act was invalid as it effected an acquisition of property other than on just terms. HELD The restriction on an employee’s right to bring proceedings against his or her employer for damages sustained in the course of employment was an acquisition of property within the meaning of s 51(xxxi) of the Constitution. As the Act did not provide just terms for that acquisition, it was invalid.

[213] SMITH KLINE & FRENCH LABORATORIES (AUSTRALIA) LTD v COMMONWEALTH (1991) 173 CLR 194; 103 ALR 117 High Court of Australia High Court — Appellate jurisdiction FACTS The Federal Court of Australia Act 1976 (Cth) and the Judiciary Act 1903 (Cth) provided that no appeal could be brought to the High Court

from a judgment of the Full Court of the Federal Court or from a State Supreme Court unless the High Court granted special leave to appeal. ISSUE The appellants sought declarations that they were entitled to appeal as of right and that the Acts requiring special leave contravened s 73 of the Constitution and were invalid. HELD Section 73 of the Constitution does not contain any right to appeal to the High Court. The requirement for special leave amounted [page 136] to a ‘regulation’ of the Court’s appellate jurisdiction within s 73 of the Constitution and not an ‘exception’ or ‘prevention’. Further, the Acts in giving the Court the power to grant or refuse special leave was not an abdication of legislative power.

[214] SOUTH AUSTRALIA v COMMONWEALTH (1992) 174 CLR 235; 105 ALR 171 High Court of Australia Commonwealth–State relations — Commonwealth tax on States FACTS The South Australian Superannuation Fund was assessed as liable for income tax and capital gains tax. ISSUE The plaintiffs claimed that the Fund was not liable to pay tax by reason of s 114 of the Constitution. The Commonwealth denied that the tax was imposed on property of any kind belonging to the State. HELD The tax on income received by the Fund was not a tax on property and so did not contravene s 114 of the Constitution. However, the tax on capital gains was tantamount to a tax on the ownership of an asset and thus a

tax on the property of the State and invalid under s 114. ‘[A] tax is properly characterised, for the purposes of s 114, as a “tax on property” if, and only if, it is imposed upon a taxpayer by reference to a relationship between the taxpayer and the relevant property and the relationship is such that the tax represents a tax on the ownership or holding of the property in question’, per Mason CJ, Deane, Toohey and Gaudron JJ at CLR 248.

[215] SOUTH AUSTRALIA v COMMONWEALTH (THE FIRST UNIFORM TAX CASE) (1942) 65 CLR 373 High Court of Australia Commonwealth–State relations — Commonwealth regulation of income tax FACTS In June 1941 and May 1942, the Commonwealth Government requested the States to vacate the field of income tax for the duration of the Second World War and to accept grants from the Commonwealth as compensation. On each occasion, all of the States refused. On 7 June 1942 the Commonwealth Parliament enacted four pieces of legislation. The Income Tax Act 1942 (Cth) imposed a tax on incomes; the Income Tax Assessment Act 1942 (Cth) forbade a taxpayer to pay State income tax for any year until the Commonwealth tax had been paid; the States Grants [page 137] (Income Tax Reimbursement) Act 1942 (Cth) authorised the annual payment of a grant to each State of an amount equal to the average income tax revenues of that State in the two preceding years on the condition that the State did not impose its own income tax; and the Income Tax (War-time Arrangements) Act 1942 (Cth) which required the transfer to the Commonwealth of all staff, offices, equipment and records used by the States for the assessment and collection of income taxes.

ISSUE Four States sought declarations that the Acts were invalid on the basis that the Commonwealth’s purpose in enacting the legislation was to destroy either ‘the essential governmental functions’ or the ‘normal activities’ of a State. HELD As each Act was a valid exercise of a Commonwealth power, there was no basis on which the Acts could be attacked as a scheme or that they would destroy the essential governmental functions of a State. The Income Tax Act simply imposed a tax and was therefore authorised by s 51(ii) of the Constitution. Similarly, s 51(ii) also authorised the Assessment Act and the War-time Arrangements Act as they were properly characterised as laws with respect to taxation. As s 96 of the Constitution does not contain any prohibition, express or implied, against discrimination between States, there was no objection to the Grants Act which refused a grant to any State which retained its own income tax. ‘[I]t cannot be denied that Commonwealth legislation may be valid even though it does in fact weaken or destroy, and is even intended to weaken or destroy, some State activity. Section 109 shows this must be so in many cases’, per Latham CJ at 423.

[216] SOUTH AUSTRALIA v TOTANI (2010) 242 CLR 1; 271 ALR 662 High Court of Australia Separation of powers — Conferral of power on Ch III court not incompatible with judicial function FACTS The Serious and Organised Crime (Control) Act 2008 (SA) required the Court to make a ‘control order’ upon an application by the Commissioner of Police, if the Court was satisfied that the person was a member of a ‘declared organisation’. A declaration was made in respect of the Finks Motorcycle Club. The Commissioner of Police then made an application for a control order in respect of the respondents on the basis that they were members of that Club. ISSUE The respondents argued that the Act contravened the principle in

Kable v DPP (NSW). [page 138] HELD The practical operation of the Act was to enlist a State court, within s 77(iii) of the Constitution, in the implementation of the legislative policy whereby the Court was called upon to act at the behest of the AttorneyGeneral to an impermissible degree and thereby to act in a manner incompatible with the proper discharge of its federal judicial responsibilities. As such, the Act deprived the Court of the minimum characteristics of institutional independence and impartiality and was invalid. ‘There are three overlapping assumptions which, as a matter of history and as a matter of inference from the text and structure of Ch III, underlie the adoption of the mechanism reflected in s 77(iii) of the Constitution. The first is the universal application throughout the Commonwealth of the rule of law, an assumption “upon which the Constitution depends for its efficacy”… The second is that the courts of the States are fit, in the sense of competent, to be entrusted with the exercise of federal jurisdiction… The third assumption is that the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle’, per French CJ at [61]– [62].

[217] SPORTSBET PTY LTD v NEW SOUTH WALES (2012) 249 CLR 298; 286 ALR 404 High Court of Australia Freedom of interstate trade and commerce discrimination in a protectionist manner

—

No

FACTS The appellant conducted a wagering exchange from a call centre in the Northern Territory and via the internet. The respondents were authorities established by legislation to control horse racing in New South

Wales. The Racing Administration Act 1998 (NSW) prohibited a wagering operator from using ‘New South Wales race field information’ unless it held a licence under s 33A of the Act. The respondents granted the appellant a licence on condition that it paid a licence fee of 1.5% of its wagering turnover in excess of a specified threshold. ISSUE The appellant argued that s 33A of the Act was invalid because it was inconsistent with s 49 of the Northern Territory (Self Government) Act 1978 (Cth) which reproduced the terms of s 92 of the Constitution and applied them to the Northern Territory. HELD Section 33A did not discriminate in a protectionist manner against the appellant. The licensing regime and threshold applied equally to intrastate wagering operators and operators from the Northern Territory. [page 139]

[218] STATE CHAMBER OF COMMERCE AND INDUSTRY v COMMONWEALTH (1987) 163 CLR 329; 73 ALR 161 High Court of Australia Tax laws — Requirement for single subject of taxation FACTS The Fringe Benefits Tax Act 1986 (Cth) and the associated Assessment Act imposed a tax on employers who provided employees with fringe benefits. ISSUE Were the Acts invalid on the basis that they were not laws with respect to taxation? Was the Fringe Benefits Tax Act invalid under s 55 of the Constitution as it dealt with several categories of fringe benefits as if each category was a different subject of taxation? HELD The Acts were a valid exercise of the taxation power in s 51(ii) of

the Constitution as they created obligations in the area of taxation. It did not matter that they may have been enacted to achieve some other purpose. Further, the legislation was not invalidated by s 55 as it was framed on the footing that there was a single subject of taxation, formulated according to a broad conception of what constitutes fringe benefits. ‘Although the Court is bound to insist on compliance with the requirements of s 55 so that the section achieves its purpose of enabling the Senate to confine its consideration in each case to a taxing statute dealing with a single subject of taxation … the Court will naturally give weight to the Parliament’s understanding that its Tax Act deals with one subject of taxation only’, per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ at CLR 344.

[219] Re STATE PUBLIC SERVICES FEDERATION; Ex parte ATTORNEY-GENERAL (WA) (1993) 178 CLR 249; 113 ALR 385 High Court of Australia Conciliation and arbitration power — Industrial dispute constituted by bare claim for increased wages FACTS The State Public Services Federation and other registered employee organisations served logs of claims upon their employers, being various State governments. The claims were for a minimum wage and an additional allowance for all employees, and that the pay and allowances be adjusted quarterly to take into account increases in the cost of living. The claims were rejected and the Industrial Relations Commission found that an industrial dispute existed. [page 140] ISSUE The employers sought to restrain the Commission from proceeding further on the basis that the dispute was not genuine.

HELD The Federation’s demand was to be read as one for increased wages. A bare claim for increased wages, however, was not a claim capable of giving rise to an industrial dispute as the Commission did not have general regulatory powers with respect to wages. ‘[T]he scope of [s 51(xxxv)] must be ascertained by reference not only to its text but also to its subject matter and the entire context of the Constitution, including any implications to be derived from its general structure’, per Mason CJ, Deane and Gaudron JJ at CLR 271–2.

[220] STATE SUPERANNUATION BOARD (VIC) v TRADE PRACTICES COMMISSION (1982) 150 CLR 282; 44 ALR 1 High Court of Australia Corporations power — Activities test used to identify financial corporations FACTS The State Superannuation Board was established by the Superannuation Act 1925 (Vic) for the administration of a superannuation fund for Victorian government employees. In administering the fund the Board was required to enter into investment activities. The Trade Practices Commission sought information from the Board in relation to an allegation of exclusive dealing. ISSUE The Board sought a declaration that it was not a trading or financial corporation for the purposes of the Trade Practices Act 1974 (Cth) or s 51(xx) of the Constitution. HELD The Board was a financial corporation as its investment activities formed a substantial part of its overall activities. ‘It is our view that the Court’s approach to the ascertainment of what constitutes a “financial corporation” should be the same as its approach to what constitutes a “trading corporation”, subject to making due allowance for the difference between “trading” and “financial”’, per Mason, Murphy and Deane JJ at CLR

303. ‘Like the expression “trading corporation”, the words “financial corporation” are not a term of art; nor do they have a settled legal meaning. They do no more than describe a corporation which engages in financial activities or perhaps is intended so to do’, per Mason, Murphy and Deane JJ at CLR 305. [page 141]

[221] STEPHENS v WEST AUSTRALIAN NEWSPAPERS LTD (1994) 182 CLR 211; 124 ALR 80 High Court of Australia Rights and freedoms — Implied right of communication FACTS The plaintiffs were members of the Legislative Council of Western Australia. They commenced an action for damages concerning three articles published by the defendant criticising an interstate and overseas trip taken by the plaintiffs as members of the Standing Committee on Government Agencies. ISSUE The defendant claimed that the articles were published pursuant to an implied constitutional freedom of communication regarding representative democracy and government. HELD The freedom of communication implied in the Commonwealth Constitution extends to the public discussion of the performance, conduct and fitness for office of members of a State legislature. A similar freedom is implied in the State Constitutions. The implied freedom will afford a defence if the defendant was unaware of the falsity of the material published, did not publish the material recklessly and the publications were reasonable in the circumstances.

[222] STREET v QUEENSLAND BAR ASSOCIATION (1989) 168 CLR 461; 88 ALR 321 High Court of Australia Rights and freedoms — Interstate discrimination FACTS The Rules of the Supreme Court of Queensland required every person, previously admitted as a barrister in another State and applying to be admitted as a barrister in Queensland, to file an affidavit that he or she had ceased to practise in the other State(s) and was now resident in Queensland. Street was a barrister in New South Wales seeking to be admitted in Queensland. The Queensland Supreme Court refused his application on the basis of his failure to comply with the Rules. ISSUE Street sought a declaration that the Rules were contrary to s 117 of the Constitution and invalid. HELD The Rules were invalid under s 117 as they subjected the plaintiff to a disability or discrimination which would not be equally applicable [page 142] to him if he were a resident of Queensland. ‘It seems to me that for s 117 to apply it must appear that, were the person a resident of the legislating State, that different circumstance would of itself either effectively remove the disability or discrimination or, for practical purposes in all the circumstances, mitigate its effect to the point where it would be illusory’, per Mason CJ at CLR 488.

[223] STRICKLAND v ROCLA CONCRETE PIPES LTD (1971) 124 CLR 468 High Court of Australia

Corporations power — Extent of power to regulate corporate activities FACTS The Trade Practices Act 1965 (Cth) provided that certain agreements with a foreign corporation or a trading or financial corporation were examinable. The parties to such agreements were obliged to furnish particulars of the agreement to the Commissioner of Trade Practices. The respondent was a company which entered into an agreement allegedly designed to reduce competition between the manufacturers of concrete pipes. The respondent was charged with failing to provide details of the agreement. ISSUE Was the Act a valid exercise of the corporations power? HELD The High Court refused to accept Huddart, Parker & Co Ltd v Moorehead as a correct construction of s 51(xx) of the Constitution. Laws regulating and controlling the trading activities of trading corporations are within the scope of s 51(xx). Although the Commonwealth had the power to legislate to control the anti-competitive activities of the corporations listed in s 51(xx), the Act, in purporting to deal with certain kinds of agreements at large which were not limited to corporate persons, interstate trade or commerce or Territories, was beyond Commonwealth power.

[224] SUE v HILL (1999) 199 CLR 462; 163 ALR 648 High Court of Australia Parliament — Qualification for election as a senator FACTS Hill had been declared to be elected as a member of the Senate following parliamentary elections in 1988. At the date of her nomination for election in September 1998, she was a British citizen. She applied for, and was granted, Australian citizenship in January 1998. At that time [page 143]

there was no requirement for the grant of Australian citizenship that the applicant renounce any other citizenship that the person might hold. ISSUE The petitioner challenged Hill’s election on the basis that she did not satisfy the requirements of s 44(i) of the Constitution as she was a person who was under an acknowledgment of allegiance, obedience or adherence to a foreign power. HELD A citizen of the United Kingdom was a subject of a foreign power and therefore infringed the restriction contained in s 44(i) of the Constitution. Hill was therefore incapable of being chosen as a senator.

[225] SVIKART v STEWART (1994) 181 CLR 548; 125 ALR 554 High Court of Australia Commonwealth places — Power to make laws is exclusive of the States and not the Territories FACTS Stewart was charged with a number of driving offences under the Traffic Act 1987 (NT). The offences were alleged to have occurred within the confines of the RAAF Base at Darwin. ISSUE Does s 52(i) of the Constitution apply to places in the Northern Territory acquired by the Commonwealth? HELD Section 52(i) does not apply to places acquired by the Commonwealth in a territory. The RAAF Base was not a Commonwealth place within s 52(i) and the Traffic Act applied to the Base, ‘In referring to the exclusive power of the Parliament … s 52(i) is speaking of legislative power which is exclusive of the legislative power of the States’, per Mason CJ, Deane, Dawson and McHugh JJ at ALR 559.

[226] SWEEDMAN v TRANSPORT ACCIDENT

COMMISSION (2006) 226 CLR 362; 224 ALR 625 High Court of Australia Rights and freedoms — No discrimination between residents of different States FACTS Sweedman, a resident of New South Wales, was the driver of a car that collided with another vehicle containing residents of Victoria. The collision occurred in New South Wales. Pursuant to s 35 of the Transport Accident Act 1986 (Vic), the Commission paid compensation to the Victorian residents. The Commission then commenced proceedings [page 144] against Sweedman in Victoria seeking an indemnity for the amount paid to the Victorian residents. Sweedman denied that the Act applied and that instead, the Motor Accidents Act 1988 (NSW) restricted the pursuit of common law rights and the measure of damages recoverable. ISSUE Was Victorian Act inconsistent with s 117 of the Constitution and to what extent does the Constitution contain principles for resolving inconsistency between State laws? HELD The Victorian Act did not have a differential operation based on residence so as to attract the operation of s 117 of the Constitution. There was no inconsistency between the Victorian Act and the New South Wales Act so as to attract any principles for resolving inconsistency between State laws.

[227] SYKES v CLEARY (No 2) (1992) 176 CLR 77; 109 ALR 577 High Court of Australia

Parliamentary elections — Eligibility of candidate FACTS Cleary was elected to the House of Representatives in a byelection. At the time of his nomination as a candidate and on the date of the poll he held a permanent appointment as a teacher under the Teaching Service Act 1981 (Vic), although he was on leave without pay. Immediately before the declaration of the poll he resigned his position. ISSUE Was Cleary disqualified from being elected pursuant to s 44(iv) of the Constitution because he held an office of profit under the Crown at the date of being elected? HELD An office of profit under the Crown includes an office of profit under the Crown in right of a State. The taking of leave without pay did not alter the character of the office held. The relevant day for determining whether an office is held was polling day. Accordingly, Cleary was incapable of being chosen as a member of Parliament and his election was invalid.

[228] TAJJOUR v NEW SOUTH WALES (2014) 313 ALR 221 High Court of Australia Rights and freedoms — Implied right of communication FACTS Each of the appellants were charged with an offence of habitually consorting with convicted offenders, after having been warned by a police officer, under s 93X of the Crimes Act 1900 (NSW). [page 145] ISSUE Was s 93X invalid on the ground that it infringed the implied freedom of political communication? HELD The legal and practical effect of s 93X was to burden the implied

freedom of political communication. There was, however, a rational connection between the provision and the legitimate purpose of preventing or deterring criminals from building a criminal network. The section was not invalid as it did not go further than was reasonably necessary to attain its objective.

[229] TELSTRA CORPORATION LTD v COMMONWEALTH (2008) 234 CLR 210; 243 ALR 1 High Court of Australia Acquisition of property — Competitors granted access to telecommunications networks FACTS Telstra became the owner of the Australian public switched telephone network (PSTN) pursuant to the Australian and Overseas Telecommunications Corporation Act 1991 (Cth). The Australian Competition and Consumer Commission declared parts of the PSTN to be a ‘declared service’ pursuant to s 152AL of the Trade Practices Act 1974 (Cth), which had the consequence of requiring the PSTN to meet ‘standard access obligations’ pursuant to s 152AR of the Trade Practices Act and included providing access to, and use of, Telstra’s property to Telstra’s competitors. Supply of the services required the physical disconnection of Telstra’s equipment and the connection of the equipment of the competitors. ISSUE Were ss 152AL and 152AR invalid on the basis they effected an acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution? HELD Sections 152AL and 152AR of the Trade Practices Act were valid and did not contravene s 51(xxxi) of the Constitution as Telstra’s rights in respect of the PSTN had always been qualified. ‘Telstra’s “bundle of rights” in respect of the PSTN has always been subject to the rights of its

competitors to require access to and use of the assets. And the engagement of the impugned provisions (ss 152AL(3) and 152AR) does not impair the bundle of rights constituting the property in question in a manner sufficient to attract the operation of s 51(xxxi)’, per curiam at [52]. [page 146]

[230] THEOPHANOUS v COMMONWEALTH (2006) 225 CLR 101; 226 ALR 602 High Court of Australia Acquisition of property — Recovery of superannuation benefits following conviction for corruption FACTS Theophanous had been a member of the federal Parliament and had become entitled to a retirement allowance under the Parliamentary Superannuation Act 1948 (Cth). He was subsequently convicted of corruption offences involving abuse of his office as a member of Parliament. The Director of Public Prosecutions sought a ‘superannuation order’ pursuant to the Crimes (Superannuation Benefits) Act 1989 (Cth), which, if made, required all benefits received by Theophanous to be repaid and stopped any further payments being made. ISSUE Did the Crimes (Superannuation Benefits) Act constitute an acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution? HELD The provisions of the Crimes (Superannuation Benefits) Act that authorised the making of a ‘superannuation order’ were not laws for the acquisition of property within s 51(xxxi) of the Constitution. Instead, they were an exaction for corrupt conduct and to characterise those provisions as requiring the provision of just terms would be incompatible with the nature of the exaction.

[231] THEOPHANOUS v HERALD & WEEKLY TIMES LTD (1994) 182 CLR 104; 124 ALR 1 High Court of Australia Rights and freedoms — Implied right of communication FACTS Theophanous was a member of the federal House of Representatives who commenced proceedings against the defendants concerning published articles criticising his views. Among the defences raised was the claim that the words were published ‘pursuant to a freedom guaranteed by the Commonwealth Constitution to publish material in the course of discussion of government and political matters’ relating to the performance and suitability of the members of Parliament. ISSUE Did such a freedom exist, and if so, must the publication be reasonable and without malice? [page 147] HELD There is an implied constitutional freedom for the discussion of matters of government and politics. The freedom is not limited to discussions concerning government of the Commonwealth. The publication questioned the plaintiff’s fitness to hold office as a member of Parliament and, therefore, clearly fell within the concept of ‘political discussion’. Common law defences available in actions for defamation do so at the price of significantly inhibiting the freedom of communication and the efficacious working of representative government. To make good the defence, the defendant was required to establish that it was unaware of the falsity of the material published, that it did not publish the material recklessly and that the publication was reasonable in the circumstances.

[232] THOMAS v MOWBRAY (2007) 233 CLR 307; 237 ALR 194 High Court of Australia Separation of powers — Conferral of power not repugnant to exercise of judicial power FACTS Section 104.4 of the Criminal Code (Cth) authorised the making of an interim control order if the Court was satisfied, on the balance of probabilities, that the making of the order would substantially assist in preventing a terrorist attack or that the person has provided training to, or received training from, a listed terrorist organisation. Such an order was made against Thomas on the application of a federal police officer following an admission by Thomas that he had trained with Al Qa’ida in Afghanistan. ISSUE Was Div 104 of the Criminal Code invalid on the basis it conferred non-judicial power on a federal court contrary to Ch III of the Constitution? HELD The fact that the judicial officer exercising the power conferred by Div 104 of the Criminal Code was (a) required to consider predictive assessments; (b) involved in applying legislative policy; and (c) required to consider matters of common knowledge, did not render s 104.4 repugnant to the exercise of the judicial power of the Commonwealth. The section also involved the application of well-known standards such as ‘reasonably necessary’ and ‘reasonably appropriate and adapted’. There was nothing in the section to indicate that the power was to be exercised other than judicially. As s 104.4 was for the protection of the public, it was supported by s 51(vi) of the Constitution. [page 148]

[233] Re TRACEY; Ex parte RYAN (1989) 166 CLR 518; 84 ALR 1

High Court of Australia Defence power — Military disciplinary code not subject to Ch III of Constitution FACTS Ryan, a Staff Sergeant in the Australian Regular Army, was charged with three offences under the Defence Force Discipline Act 1982 (Cth). The charges came before a Defence Force magistrate. ISSUE Ryan objected to the magistrate’s jurisdiction on the grounds that the determination of the charges was an exercise of the judicial power of the Commonwealth, and the Act in conferring jurisdiction on the magistrate infringed ss 71 and 72 of the Constitution and was invalid. Ryan also argued that each of the offences was an indictable offence and under s 80 of the Constitution, were triable only by jury. HELD The power to make laws with respect to defence in s 51(vi) of the Constitution contains the power to create a disciplinary code standing outside Ch III of the Constitution. Section 80 of the Constitution was inapplicable as the offences were not indictable offences.

[234] TRADE PRACTICES COMMISSION v TOOTH & CO LTD (1979) 142 CLR 397; 26 ALR 185 High Court of Australia Acquisition of property — No acquisition effected by prohibition of exclusive dealing FACTS Tooth & Co was a brewer and the owner of licensed hotels in New South Wales. A standard clause in the lease of the hotels to tenants required tenants not to purchase alcohol from any person other than Tooth & Co. Section 47 of the Trade Practices Act 1974 (Cth) prohibited a corporation from engaging in exclusive dealing, which was defined to include a refusal to

renew a lease of land for the reason that the tenant conducted business with a competitor of the corporation. Tooth & Co sought a declaration from the Federal Court that it was not obliged to comply with the Act. ISSUE The company argued that s 47 of the Act compelled it to renew a lease on terms that might not be just, thereby breaching s 51(xxxi) of the Constitution as the lessee acquired a proprietary right on unjust terms. HELD The Act was a valid exercise of the corporations power as the direct legal effect of the provision was to forbid certain conduct by corporations. [page 149] The provision was not a law with respect to the acquisition of property and therefore s 51(xxxi) of the Constitution did not apply.

[235] TRUTH ABOUT MOTORWAYS PTY LTD v MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LTD (2000) 200 CLR 591; 169 ALR 616 High Court of Australia Legislative power of the Commonwealth — Conferral of standing to give rise to a ‘matter’ FACTS The respondent issued a prospectus inviting the public to subscribe for securities in relation to the construction of a toll road project. The applicant commenced proceedings in the Federal Court against the respondent alleging that statements contained in the prospectus were misleading or deceptive in breach of the Trade Practices Act 1974 (Cth). ISSUE Did the applicant have standing to seek relief, as it had not suffered any loss or damage from the conduct of which it complained?

HELD A justiciable controversy may still exist between parties, notwithstanding that the applicant for relief does not have a special interest in the dispute. Parliament may allow a person not affected by a breach of a law enacted pursuant to a power contained in s 51 of the Constitution to institute proceedings for such a breach and to seek the remedy provided by the legislation.

[236] Re TYLER; Ex parte FOLEY (1994) 181 CLR 18; 121 ALR 153 High Court of Australia Defence power — Military disciplinary code not require trial by jury FACTS Foley, an officer in the RAAF stationed in New South Wales, was charged under the Defence Force Discipline Act 1982 (Cth) with dishonestly appropriating the property of the Commonwealth. ISSUE Foley sought to restrain further proceedings before the court martial on the basis that s 80 of the Constitution guaranteed a right to trial by jury. HELD The Act was a valid exercise of the defence power in s 51(vi) of the Constitution, which authorised a disciplinary code outside the provisions in Ch III of the Constitution, including the requirement of a trial by jury. [page 150]

[237] UNION STEAMSHIP CO OF AUSTRALIA PTY LTD v KING (1988) 166 CLR 1; 82 ALR 43 High Court of Australia

Jurisdiction of States — Regulation of acts outside State boundaries FACTS The Workers’ Compensation Act 1926 (NSW) provided that an employer should pay compensation to a worker injured in the course of employment. The Act was also expressed to apply to seamen employed on ships registered in New South Wales. King was employed by the appellant and claimed to have suffered boilermakers’ deafness while working on a ship outside New South Wales. He lodged a claim under the Act for compensation. ISSUE Was the Act was invalid on the basis that there was not a sufficient nexus between the law and the territory of New South Wales? HELD The fact that the ship was registered in New South Wales was a sufficient connection with the State to enable the Act to apply. ‘[T]he requirement for a relevant connexion between the circumstances on which the legislation operates and the States should be liberally applied and that even a remote and general connection between the subject matter of the legislation and the State will suffice’, per curiam at CLR 14.

[238] UNIONS NSW v NEW SOUTH WALES (2013) 252 CLR 530; 304 ALR 266 High Court of Australia Rights and freedoms — Implied freedom of communication FACTS Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) prohibited donations to a political party, candidate, or member of Parliament unless the donor was an individual enrolled on the roll of electors. Section 95G capped the expenditure of a political party on electoral communications. The operation of the Act expressly excluded federal elections. ISSUE

Did the Act place an impermissible burden on the implied

constitutional freedom of political communication? HELD The impugned provisions restricted the funding available for political communications and so were a burden on the implied freedom of political communication. As the provisions did not further the object of the Act of addressing corruption, the burdens were not justified and [page 151] the provisions were invalid. ‘The complex interrelationship between levels of government, issues common to State and federal government and the levels at which political parties operate necessitate that a wide view be taken of the operation of the freedom of political communication … these factors render inevitable the conclusion that the discussion of matters at a State, Territory or local level might bear upon the choice that the people have to make in federal elections and in voting to amend the Constitution, and upon their evaluation of the performance of federal Ministers and departments’, per French CJ, Hayne, Crennan, Keifel and Bell JJ at [25].

[239] UNIVERSITY OF WOLLONGONG v METWALLY (1984) 158 CLR 447; 56 ALR 1 High Court of Australia Inconsistency between Commonwealth and State laws — Purported retrospective validation ineffective to avoid inconsistency FACTS Metwally, a student of the University of Wollongong, made a complaint of racial discrimination against the University under the AntiDiscrimination Act 1977 (NSW) in February 1982. In May 1983 the High Court declared the Act to be inconsistent with, and therefore invalid, with the Racial Discrimination Act 1975 (Cth). Following that decision, the Commonwealth Parliament amended the Racial Discrimination Act to

expressly provide that the Act did not intend to exclude the operation of State or Territory laws that furthered the objects of the International Convention on the Elimination of All Forms of Racial Discrimination. The Anti-Discrimination Tribunal of New South Wales then held that Metwally’s complaint had been established and ordered the University to pay damages. ISSUE Was the State Act still inconsistent with the Racial Discrimination Act at the date of the alleged incident? HELD The State Act had been declared to be inconsistent and inoperative at the time when the alleged discrimination against Metwally occurred. The amendment did not operate to retrospectively validate the State Act as Commonwealth Acts cannot override the Constitution. ‘The fact that the Commonwealth Parliament legislates retrospectively to introduce the fiction that, for the purposes of the law, its inconsistent law never existed or had a different operation to that which it in fact had cannot alter the objective fact that at the previous time when s 109 operated that inconsistency did exist. Nor can it alter the fact that the immediate and self-executing provisions of s 109 have already operated upon that inconsistency to invalidate that State law, not for the period in which the Commonwealth Parliament, by the introduction of a fiction for [page 152] its purposes, has subsequently said that its law had a different operation to that which it in fact had but for the period in which the fact of that inconsistency existed’, per Deane J at CLR 479.

[240] VASILJKOVIC v COMMONWEALTH (2006) 227 CLR 614; 228 ALR 447 High Court of Australia

Judicial power of the Commonwealth — Not exercised in committal proceedings FACTS The Extradition Act 1988 (Cth) and the Extradition (Croatia) Regulations 2004 (Cth) authorised the committal of a person to prison to await extradition without finding that there was a prima facie case that the person had committed an extradition offence. Vasiljkovic was alleged to have committed war crimes in Croatia in 1991 and 1993. ISSUE Were the Act and Regulations invalid insofar as they permitted the detention of a person without a trial as was inconsistent with the exercise of the judicial power of the Commonwealth? HELD Committal proceedings are administrative and not judicial in nature. The magistrate was, therefore, not exercising the judicial power of the Commonwealth. The treatment of fugitive offenders provided subjectmatter for a law supported by the external affairs power in s 51(xxix) of the Constitution. It was not necessary that a treaty had been made in order to attract the power.

[241] VICTORIA v COMMONWEALTH (1996) 187 CLR 416; 138 ALR 129 High Court of Australia External affairs power — Not limited to implementation of treaty FACTS The Industrial Relations Act 1988 (Cth) contained provisions dealing with matters such as minimum wages, equal pay, termination of employment, discrimination in employment, family leave, collective bargaining and the right to strike. ISSUE Were the provisions a valid exercise of the external affairs power, on the basis that they had been enacted to implement various international Conventions ratified by Australia? The States argued that the external affairs

power did not give the Commonwealth power to legislate with respect to the implementation of treaty obligations unless the subject matter of the treaty was one of international concern. The States [page 153] submitted that the minority opinion of Stephen J in Koowarta v BjelkePetersen best represented the law, and that it was not necessary to reopen Tasmanian Dams. The States also argued that the impugned provisions in question were not capable of being viewed as appropriate or adapted to the implementation of the Conventions. HELD Applying Tasmanian Dams, there was no requirement that the Commonwealth had to show that the subject matter of a treaty was a matter of international concern in order to attract the external affairs power. The fact that a treaty has been entered into is sufficient to attract the head of power. Further, the scope of the external affairs power is not limited to the implementation of treaties, but extends to places, persons, matters, or things physically external to Australia. However, ‘to be a law with respect to “external affairs”, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty’, per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at ALR 146. A law will not be appropriate and adapted in the necessary sense unless there is ‘reasonable proportionality’ between the purpose of the treaty and the means adopted by Parliament to achieve that purpose. The concepts of purpose and reasonable proportionality are only invoked to determine ‘whether the law in question is reasonably capable of being considered as giving effect to the treaty and consequently being a law upon a subject which is an aspect of external affairs’, at ALR 147. The provisions concerning termination of employment were invalid as they went beyond the terms of the Termination of Employment Convention 1982.

[242] VICTORIA v COMMONWEALTH (THE PAY-ROLL

TAX CASE) (1971) 122 CLR 353 High Court of Australia Taxation power — Power to tax States FACTS The Pay-roll Tax Act 1941 (Cth) imposed a pay-roll tax on all employers in Australia. The Pay-roll Tax Assessment Act 1941 (Cth) defined an ‘employer’ to include the State Crowns. ISSUE Were the Acts invalid insofar as they purported to impose the tax on the States? HELD The Acts were valid exercises of the taxation power and there was no warrant for excluding the States from the operation of the Act. ‘[T]he principle to be derived from the Engineers’ case is that the Commonwealth Parliament in exercising its legislative power as to any of the enumerated topics is able by its law to bind the Crown in right of a State except in [page 154] relation to those topics which contain an express exception or limitation’, per Barwick CJ at 381.

[243] VICTORIA v COMMONWEALTH (THE SECOND UNIFORM TAX CASE) (1957) 99 CLR 575 High Court of Australia Commonwealth grants to States — No interference with States FACTS

The States Grants (Tax Reimbursement) Act 1946 (Cth)

authorised the annual payment of money to a State as financial assistance on the condition that the State had not imposed its own income tax. The Income Tax Assessment Act 1936 (Cth) provided that a taxpayer must pay Commonwealth income tax before any State income tax. ISSUE Was the Reimbursement Act a valid exercise of the power in s 96 of the Constitution, and was the Assessment Act a valid exercise of the taxation power in s 51(ii)? HELD The Reimbursement Act was a valid exercise of the power in s 96 as it did not interfere with the States’ power to impose their own tax. The attempt to give priority to the payment of the federal income tax was not authorised by s 51(ii) as the section did not give the Commonwealth power over the whole subject of taxation. ‘To support [the Assessment Act] it must be said to be incidental to the Federal power of taxation to forbid the subjects of a State to pay the tax imposed by the State until that imposed by the Commonwealth is paid and, moreover to do that as a measure assisting to exclude the States from the same field of taxation. This appears to me to be beyond any true conception of what is incidental to a legislative power and, under colour of recourse to the incidents of a power expressly granted, to attempt to advance or extend the substantive power actually granted to the Commonwealth, until it reaches into the exercise of the constitutional powers of the States’, per Dixon CJ at 614.

[244] VICTORIAN STEVEDORING AND GENERAL CONTRACTING CO PTY LTD v DIGNAN (1931) 46 CLR 73 High Court of Australia Separation of powers — Separation of Legislature from Executive FACTS The Transport Workers Act 1928 (Cth) authorised the making of Regulations with respect to the employment of transport workers.

[page 155] The Waterside Employment Regulations were made which required that priority be given to members of the Waterside Workers’ Federation when hiring new workers. The Act did not make any reference to such priority. The respondent prosecuted the appellant for employing a worker who was not a member of the Federation. ISSUE Did the Act, in conferring power on the Executive to make regulations, purport to invest the Executive with the legislative power of the Commonwealth in breach of the separation of powers contained in s 61 of the Constitution? HELD The Commonwealth Parliament could validly delegate a subordinate and dependent lawmaking power to the Executive government without infringing the principle of the separation of powers in s 61 of the Constitution. The Regulations were a valid exercise of the trade and commerce power in s 51(i). ‘The existence in Parliament of power to authorise subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law’, per Dixon J at 101–2.

[245] VISNIC v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (2007) 231 CLR 381; 234 ALR 413 High Court of Australia Judicial power of the Commonwealth — Power to disqualify person from managing corporations FACTS Section 206F of the Corporations Act 2001 (Cth) conferred power on the Australian Securities and Investments Commission (ASIC) to disqualify a person from managing corporations for a period of up to five

years. ASIC made an order disqualifying Visnic from managing corporations for five years following the winding up of 14 companies of which Visnic had been a director. ISSUE Did s 206F purport to confer the judicial power of the Commonwealth on ASIC? HELD A decision by ASIC pursuant to s 206F of the Corporations Act did not determine the guilt of a person for any offence under the Act. Accordingly, s 206F was not invalid because ASIC was not exercising the judicial power of the Commonwealth. [page 156]

[246] WAINOHU v NEW SOUTH WALES (2011) 243 CLR 181; 278 ALR 1 High Court of Australia Separation of powers — Conferral of power undermined institutional integrity of Court FACTS The Crimes (Criminal Organisations Control) Act 2009 (NSW) authorised the Commissioner of Police to make an application to a designated judge of the Supreme Court, that a particular entity be declared to be a ‘declared organisation’. The judge was not required to provide reasons for the decision. Upon the making of such a declaration, the Court was then empowered to make ‘control orders’ against members of declared organisations. Control orders were made against the plaintiff who was a member of the Hells Angels Motorcycle Club. ISSUE Did the Act confer functions upon judges and the Supreme Court which undermined the institutional integrity of the Court contrary to the requirements of Ch III of the Constitution?

HELD As an eligible judge was not required to give reasons for declaring an entity to be a declared organisation, the power conferred by the Act undermined the institutional integrity of the Supreme Court. The Act was, therefore, invalid.

[247] Re WAKIM; Ex parte McNALLY (1999) 198 CLR 511; 163 ALR 270 High Court of Australia Judicial power of the Commonwealth — Cross-vesting legislation conferring State jurisdiction on Ch III courts FACTS The Corporations Act 1989 (NSW) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) purported to confer jurisdiction on the Federal Court with respect to matters that were not within the power of the federal Parliament to confer on those courts. These proceedings involved three separate cases. In the first matter, a creditor of a bankrupt sought to sue the bankrupt’s trustee in bankruptcy as well as the trustee’s legal advisers for negligence. The second and third matters concerned orders made by the Federal Court for the examination of persons by the liquidators of companies. ISSUE Could the Federal Court exercise the jurisdiction conferred on it by the New South Wales legislation? HELD The cross-vesting legislation was not valid. Chapter III of the Constitution exhaustively defines the matters that the federal Parliament [page 157] may invest in the federal courts that it creates. There is nothing in Ch III that authorises, expressly or by implication, the federal Parliament to invest State judicial power in federal courts, nor is there anything in Ch III that

allows the States to invest State judicial power in federal courts. Accordingly, each of the State Acts purporting to authorise the Federal Court to exercise jurisdiction not found in ss 75 and 76 of the Constitution was invalid.

[248] WATERSIDE WORKERS’ FEDERATION OF AUSTRALIA v JW ALEXANDER LTD (1918) 25 CLR 434 High Court of Australia Judicial power of the Commonwealth — Tenure of judges FACTS The Conciliation and Arbitration Act 1904 (Cth) established the Commonwealth Court of Conciliation and Arbitration. The President of the Court was to be appointed from among the justices of the High Court and held office for a term of seven years. The President made an award to settle an industrial dispute between the Federation and the company. The Federation alleged that the company was in breach of the award and sought an order imposing a penalty on the company. ISSUE Was the Court invalidly constituted as the President did not, in accordance with s 72 of the Constitution as it then stood, have tenure for life? HELD The Court exercised the judicial power of the Commonwealth when determining whether an award had been breached and imposing a penalty. An institution could only be a federal court if its members were appointed, and held their office, under s 72 of the Constitution. The Court was not validly constituted as the President of the Court was required to have life tenure pursuant to s 72 of the Constitution. Note: The text of s 72 was amended in 1977.

[249] WATSON v MARSHALL (1971) 124 CLR 621 High Court of Australia High Court — Original jurisdiction FACTS Watson, a medical practitioner, sued Marshall in the original jurisdiction of the High Court for trespass to the person and false imprisonment after he was committed to a psychiatric hospital. Watson claimed that although he was living and working in Sydney and Melbourne, he remained a resident of New South Wales. Marshall was a resident of Victoria. [page 158] ISSUE Was Watson a resident of New South Wales so as to attract the jurisdiction of the Court under s 75(iv) of the Constitution? HELD Watson had remained a resident of New South Wales. Accordingly, the Court had jurisdiction under s 75(iv) to hear the matter.

[250] WENN v ATTORNEY-GENERAL (VIC) (1948) 77 CLR 84 High Court of Australia Inconsistency between Commonwealth and State laws — Intention to cover the field FACTS The Discharged Servicemen’s Preference Act 1943 (Vic) provided that preference was to be given to ex-servicemen in relation to hiring and promotion. The Re-establishment and Employment Act 1945 (Cth) also made provision for preference to be given to ex-members of the armed forces in relation to hiring but not promotion. Wenn was employed as prison

warder by Victoria. He applied for promotion but was refused on the basis that he was not a discharged serviceman. ISSUE Was the State Act inconsistent with the federal Act and invalid under s 109 of the Constitution? HELD The Discharged Servicemen’s Preference Act was inconsistent with the Re-establishment and Employment Act as the latter covered the field of employment of ex-service personnel. ‘In the Commonwealth Act now under consideration, however, the Commonwealth Parliament has not left this matter to be determined by inference (possibly disputably) from the nature and scope of the statute. The Parliament has most expressly stated an intention which in the other cases mentioned was discovered only by a process of inference. If such a parliamentary intention is effective when it is ascertained by inference only, there can be no reason why it should not be equally effective when the intention is expressly stated’, per Latham CJ at 110.

[251] WESTERN AUSTRALIA v CHAMBERLAIN INDUSTRIES PTY LTD (THE RECEIPTS DUTY CASE) (1970) 121 CLR 1 High Court of Australia Duties of excise — Tax on step in production of goods FACTS The Stamps Act 1921 (WA) required any person who was paid money to make out a receipt and to affix the appropriate duty stamp to [page 159] the receipt. The defendant carried on the business of manufacturing, selling and servicing tractors. It submitted a monthly return to the Commissioner of Stamps but refused to pay duty on the return.

ISSUE Did the Stamp Act impose a duty of excise within s 90 of the Constitution? HELD The stamp duty was a duty of excise within s 90 of the Constitution, as the practical effect of the Act was to tax a dealing in goods. ‘I have no doubt that to tax the receipt of the purchase price or any part of the purchase price of the sale of goods is to tax a step in the movement of goods into consumption. It is … a tax upon the transaction of sale itself and, to my mind, is clearly of the essential nature of a duty of excise’, per Barwick CJ at 17.

[252] WESTERN AUSTRALIA v COMMONWEALTH (THE NATIVE TITLE ACT CASE) (1995) 183 CLR 373; 128 ALR 1 High Court of Australia Inconsistency between Commonwealth and State laws — Exclusive operation of federal law FACTS After the decision in Mabo v Queensland (No 2), the Western Australian Parliament enacted the Land (Titles and Traditional Usage) Act 1993 (WA) which purported to extinguish native title and replace it with statutory rights of traditional land usage. The Commonwealth Parliament then enacted the Native Title Act 1993 (Cth) which declared that native title was not to be extinguished or impaired, except in accordance with that Act. ISSUE (i) Had native title survived the establishment of the Colony of Western Australia? (ii) Was the Western Australian Act invalid as inconsistent with the Racial Discrimination Act 1975 (Cth) and/or the Native Title Act? (iii) Was the Native Title Act a valid exercise of the races power? (iv) Did the Native Title Act, in its effect on Western Australia, exceed the limits of the Commonwealth’s legislative powers implicit in the federal structure of the Constitution?

HELD (i) Native title had not been extinguished in Western Australia when the Colony was established as there had been no intention to do so on the part of those who established the Colony. (ii) The Western Australian Act offended the principle of equality contained in the Racial Discrimination Act and was, therefore, invalid to the extent of that inconsistency. (iii) As the Native Title Act conferred a benefit uniquely on the Aboriginal and Torres Strait Islander holders of native title, the Act [page 160] was a valid exercise of the races power in s 51(xxvi) of the Constitution. (iv) The Native Title Act covered the field by declaring that native title could not be extinguished in a manner contrary to the Act. Accordingly, s 109 of the Constitution operated to invalidate the Western Australian Act. (v) The fact that there was a greater area of land within Western Australia that might be subject to a native title claim did not justify the conclusion that the Native Title Act impermissibly discriminated against that State. Further, the Native Title Act did not interfere with the existence and nature of the State as a body politic as it did not affect the machinery of the government of the State or the capacity to function as a government. The majority, comprising Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, at ALR 57 said: ‘s 51(xxvi) of the Constitution supports a law which protects native title from extinguishment or impairment. To exercise that power it is necessary to control the exercise by other repositories of the power to extinguish or impair native title. As extinguishment or impairment can be effected at common law only by or pursuant to a law enacted by a competent legislature, the power conferred by s 51(xxvi) must extend to the support of a law which excludes, wholly or in part, State or Territory law from operating to affect native title. The power cannot be limited by an implication which exempts the States from the application of such a law without denying what is at the heart of s 51(xxvi) so far as it may be exercised for the benefit of the people of the indigenous races of Australia. The Native Title Act, being supported by that provision, cannot be held to discriminate impermissibly in its application to the State

of Western Australia or in its application to the States and Territories as a whole’.

[253] WESTERN AUSTRALIA v HAMERSLEY IRON PTY LTD (1969) 120 CLR 42 High Court of Australia Duties of excise — Stamp duty on receipts FACTS The Stamp Act 1921 (WA) required a person who received money outside the State as payment for goods and services supplied in the State, to issue a receipt for the payment. The Act then imposed duty on the receipt, calculated as a percentage of the amount of the receipt. The defendant issued memoranda outside Western Australia for payments totalling $91m received for iron ore it had mined and exported to Japan. It did not pay any stamp duty on the memoranda. ISSUE Was the stamp duty a duty of excise under s 90 of the Constitution? HELD The stamp duty was an excise duty because its practical effect was to impose a tax on the sale of goods. ‘[A]lthough the duty imposed by the [page 161] Act in respect of money will have a much wider incidence than an excise duty, it is plain enough that it will assume the character of a duty of excise where the tax is payable, in effect, upon the sale price received upon the first sale and any subsequent sale in the course of distribution of goods produced’, per Barwick CJ at 56.

[254] WHITE v DIRECTOR OF MILITARY

PROSECUTIONS (2007) 231 CLR 570; 235 ALR 455 High Court of Australia Judicial power of the Commonwealth — Disciplinary power of military tribunal FACTS White was a Chief Petty Officer in the Royal Australian Navy. She was charged with offences involving alleged acts of indecency and assault under the Defence Force Discipline Act 1982 (Cth). She sought to restrain hearing of the charges by a court martial or a defence force magistrate. ISSUE Would the determination of the charges by a military tribunal involve the exercise of the judicial power of the Commonwealth contrary to Ch III of the Constitution? HELD Disciplinary powers, when exercised judicially by officers of the armed forces, do not involve an exercise of the judicial power of the Commonwealth. The powers do not arise from the operation of Ch III of the Constitution but from the role of the Governor-General as the Commanderin-Chief of the armed forces as well as legislation based on the defence power in s 51(vi) of the Constitution.

[255] WILLIAMS v COMMONWEALTH (No 1) (2012) 248 CLR 156; 288 ALR 410 High Court of Australia Executive power — Limited power to contract and spend money FACTS The Commonwealth Government entered into an agreement with the Scripture Union of Queensland by which the Commonwealth funded the provision of chaplaincy services at schools in Queensland. The

agreement, and the program under which the agreement was administered, was not made pursuant to legislation. ISSUE The plaintiff, whose children attended a school where the chaplaincy services were provided, asserted that the agreement between the Commonwealth and the Scripture Union was beyond the executive power of the Commonwealth and prohibited by s 116 of the Constitution. [page 162] HELD The agreement was beyond the executive power of the Commonwealth in s 61 of the Constitution. The power of the Executive to enter into a contract and spend money, in the absence of legislation, is limited. The Executive does not have the powers of a natural person or a company. The agreement and program were not, however, prohibited by s 116 of the Constitution because the school chaplains did not hold any office under the Commonwealth.

[256] WILLIAMS v COMMONWEALTH (No 2) (2014) 252 CLR 416; 309 ALR 41 High Court of Australia Appropriation — Power of Commonwealth to fund chaplaincy services in schools FACTS In Williams v Commonwealth (No 1) it was held that agreements made by the Commonwealth for the provision of chaplaincy services in schools, and the funding for such services, was not supported by the executive power in s 61 of the Constitution. The Parliament then enacted remedial legislation, being the Financial Framework Legislation Amendments Act (No 3) 2012 (Cth) to provide legislative authority for the agreements and funding.

ISSUE Was the Act supported by the corporations power in s 51(xx) and the power to provide benefits to students in s 51(xxiiiA) of the Constitution? HELD The Act was not a valid exercise of the power in s 51(xxiiiA) of the Constitution because the impugned sections were not for the provision of ‘benefits to students’ because no material aid was provided for students. No money was paid for the benefit of any identified student or students. Nor was the Act a valid exercise of the corporations power in s 51(xx) of the Constitution as it did not regulate the activities, functions, relationships or business of constitutional corporations generally or of any particular corporation.

[257] WILSON v MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS (1996) 189 CLR 1; 138 ALR 220 High Court of Australia Separation of powers — Independence of Judiciary from Executive FACTS A judge of the Federal Court of Australia was nominated by the Minister to prepare a report under s 10 of the Aboriginal and Torres Strait [page 163] Islander Heritage Protection Act 1984 (Cth). She was not nominated in her capacity as a judge. ISSUE The plaintiffs sought a declaration that the nomination of the judge and her acceptance of that nomination were incompatible with her commission as a judge of the Federal Court under Ch III of the Constitution. It was accepted that no judicial power had been conferred upon the judge.

HELD The function of preparing a report was an integral part of the performance of the Minister’s functions under the Act and put the judge in the position of an adviser to the Minister and required the judge to make decisions that were of a political character. The function was therefore incompatible with Ch III of the Constitution. Further, as a person preparing a report under s 10 was required to advise the Minister on questions of law, the judge would have been required to provide advisory opinions to the Minister which was also inconsistent with Ch III of the Constitution. Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, at ALR 230, said that bearing ‘in mind that public confidence in the independence of the judiciary is achieved by a separation of the judges from the persons exercising the political functions of government, no functions can be conferred on a Ch III judge that would breach that separation’.

[258] WOTTON v QUEENSLAND (2012) 246 CLR 1; 285 ALR 1 High Court of Australia Rights and freedoms — Implied right of communication FACTS The plaintiff had been convicted of rioting on Palm Island. He was sentenced to a term of imprisonment and granted parole after he had served two years of the sentence. Conditions had been imposed on his parole under s 200 of the Corrective Services Act 2006 (Qld) that he not attend public meetings on Palm Island and that he not receive any payment or benefit from negotiating or dealing with the media. Section 132 of the Act prevented a prisoner from being interviewed regardless of whether he was inside or outside a corrective services facility. Under s 214 of that Act, a person on parole was taken to be still serving the sentence imposed. ISSUE Were ss 132 and 200 invalid by reason of them impermissibly burdening the implied right of communication concerning governmental and political matters? HELD The impugned provisions imposed a burden on the public discussion

of matters relating to aboriginal and indigenous affairs, [page 164] including perceived or alleged injustices. They were communications about government or political matters. The provisions were, however, not invalid as they were reasonably appropriate and adapted to the legitimate end of addressing community safety and crime prevention through the containment, supervision and rehabilitation of offenders.

[259] WRAGG v NEW SOUTH WALES (1953) 88 CLR 353 High Court of Australia Trade and commerce power — Identification of interstate trade and commerce FACTS Wragg was a potato grower in Tasmania and exported his crop to New South Wales. The New South Wales importer sold the potatoes and the purchasers took delivery of them on the wharf. The Prices Regulation Act 1948 (NSW) authorised the making of a Prices Regulation Order which established the price of potatoes sold by wholesalers. ISSUE Was the Act invalid for breaching s 92 of the Constitution? HELD The sales by the importer were not part of interstate trade and commerce. Accordingly, the Prices Regulation Order only had an indirect or consequential economic effect on interstate trade and did not infringe s 92. ‘The distinction which is drawn between interstate trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s 51(i) to make laws with respect to trade and commerce with other countries and among the States may well be considered artificial and unsuited to modern times. But it is a distinction adopted by the Constitution

and it must be observed however much interdependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes’, per Dixon CJ at 386.

[260] WURRIDJAL v COMMONWEALTH (2009) 237 CLR 309; 252 ALR 232 High Court of Australia Acquisition of property — Property in Territory FACTS The Commonwealth Parliament passed a package of legislation, based on the territories power in s 122 of the Constitution, for the purpose of dealing with the sexual abuse of Aboriginal children in the Northern Territory and associated problems. One of the measures employed was the construction of additional housing to reduce overcrowding and improve [page 165] living conditions. In order for that to be done quickly, the Commonwealth considered that it had a need to ‘control the land in the townships for a short period’. To that end, the Northern Territory National Emergency Response Act 2007 (Cth) authorised the Commonwealth to acquire leases over land subject to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) allowed certain persons to have access to, and to remain on, Aboriginal land. Wurridjal was a senior member of the Dhukurrdji people who were the traditional owners of the land. ISSUE Wurridjal argued that the Northern Territory National Emergency Response Act constituted an acquisition of property of the Land Trust other than on just terms as required by s 51(xxxi) of the Constitution.

HELD The lease in favour of the Commonwealth constituted an acquisition of property to which s 51(xxxi) of the Constitution applied. ‘The power of the Commonwealth Parliament to make laws for the government of any territory pursuant to s 122 of the Constitution is subject to the limitation imposed by s 51(xxxi) of the Constitution that laws for the acquisition of property from any person for any purpose in respect of which the parliament has power to make laws must be on just terms’, per French CJ at [12].

[261] XYZ v COMMONWEALTH (2006) 227 CLR 532; 227 ALR 495 High Court of Australia External affairs power — Regulation of acts occurring outside Australia FACTS The plaintiff was charged under ss 50BA and 50BC of the Crimes Act 1914 (Cth) with child sex tourism offences allegedly committed in Thailand. ISSUE Did the external affairs power authorise legislation that regulated acts and events that occurred outside of Australia? HELD Section 51(xxix) of the Constitution supports a law with respect to places, matters or things outside the geographical limits of Australia. The matter or thing which lay outside the geographical limits of Australia in this case was the conduct proscribed by ss 50BA and 50BC. Accordingly, the sections were a valid exercise of the power in s 51(xxix) of the Constitution.

Index References are to case numbers

A Acquisition of property Acquisition requires conferral of proprietary interest …. 115 Cancellation of statutory licences …. 14 Competitors granted access to telecommunications networks …. 229 Determination of amount of compensation …. 32 Extinguishment of common law cause of action …. 90, 212 Forfeiture of property …. 18, 77 Just terms …. 63, 148 No acquisition effected by prohibition of exclusive dealing …. 234 Property in Territory …. 260 Recovery of superannuation benefits following conviction for corruption …. 230 Reduction of statutory entitlements …. 66, 103, 110, 163 Statutory lien to secure unpaid charges …. 4 Variation of tax refund not an acquisition …. 156 Aliens power No requirement for proportionality of legislation …. 175 Appropriation Funds paid from consolidated revenue to be ‘appropriated by law’ …. 57 Power of Commonwealth to fund chaplaincy services in schools …. 256 Power of executive government to give tax bonus to stimulate economy

…. 170

B Banking power Commonwealth unable to regulate State banking …. 40

C Commonwealth grants to States Conditions able to be imposed …. 20 No interference with States …. 243 Commonwealth places Lease from Commonwealth …. 8 Power to make laws is exclusive of the States and not the Territories …. 225 Commonwealth–State relations Application of Commonwealth law to State …. 113 Commonwealth not to tax property of States …. 73 Commonwealth regulation of income tax …. 215 Commonwealth tax on States …. 214 Differential operation not arising from discrimination …. 183 Doctrine of reserved State powers …. 109 Immunity of Commonwealth from State law …. 60, 61, 83 Implied prohibition of discrimination against States …. 182 Implied prohibition on interference with a State …. 28 Interference with governmental functions of States …. 22, 51 Interference with State banking prohibited …. 144 Legislation at request of States …. 179 Rejection of doctrine of reserved State powers …. 9 State Act binding the Commonwealth …. 174

State immunity and doctrine of reserved powers …. 185 State laws investing power in Commonwealth officers …. 190 Tax on trust property not on property of State …. 204 Conciliation and arbitration power Based on industrial relationship …. 43 Definition of industrial dispute …. 6, 117, 186 Definition of industry …. 129 Demand for reinstatement of former employees …. 41 Dispute to extend beyond one State …. 44 Genuine dispute required …. 45 Industrial dispute constituted by bare claim for increased wages …. 219 Industrial dispute not arise from claim to reinstate particular employee …. 86 Need for dispute over industrial matter …. 68 Nexus provided by industry …. 23 No dispute between employers …. 198 No power to make common rule …. 24, 193 Paper disputes …. 197 Parties to industrial disputes …. 146 Unrealistic and extravagant demands not fatal …. 19 Corporations power Activities test used to identify financial corporations …. 220 Activities test used to identify trading corporations …. 189 Extent of power to regulate corporate activities …. 223 Identification of trading corporation …. 67, 200 No power to control incorporation of companies …. 159 Regulation of directors’ conduct …. 184 Regulation of industrial relations …. 162 Regulation of natural persons …. 1, 76

Test for trading and financial corporations …. 87

D Defence power Military disciplinary code not require trial by jury …. 236 Military disciplinary code not subject to Chapter III of Constitution …. 233 Use in peacetime …. 27 Duties of excise Definition …. 11, 173 Imposition by Territory invalid …. 46 Imposition of duty based on connection with commodity …. 143 Definition of ‘tax’ …. 143 Licence fee calculated on goods sold in previous year …. 47, 93, 108 Licence fee constituting tax on step in production …. 97, 147, 202, 251 Licence fee to harvest abalone not a tax …. 98 Liquor licence fees …. 72 Not a fee for services rendered …. 171 Practical effect of licence fees …. 104 Requirement for tax to be imposed directly on goods …. 39 Stamp duty on receipts …. 253 Tax on ownership of stock …. 132 Tobacco licence fees …. 74

E Executive power Limited power to contract and spend money …. 255 External affairs power Apprehended international obligations …. 206

Identifying international obligations …. 181 Implementation of international convention …. 64, 122, 160 Not limited to implementation of treaty …. 241 Regulation of acts occurring outside Australia …. 261 Validity of international treaty …. 107 War crimes …. 178

F Freedom of interstate trade and commerce Discrimination in a protectionist manner …. 34, 37 Formulation of test to be applied …. 54 Movement of people between States and Territories …. 10 No discrimination in a protectionist manner …. 36, 217 Practical operation of legislation was discriminatory …. 48 Test for discriminatory burden …. 33

H High Court Appellate jurisdiction …. 53, 145, 168, 213 Exclusive jurisdiction …. 17 Jurisdiction …. 69, 116, 176 Original jurisdiction …. 38, 111, 135, 249

I Inconsistency between Commonwealth and State laws Conjugal rights …. 195 Cover the field test …. 59, 158, 250 Direct inconsistency …. 56, 71, 75, 134, 139 Exclusive operation of federal law …. 252

No inconsistency …. 12, 65, 78, 114, 133, 140 No inconsistency for similar offences …. 149 Purported retrospective validation ineffective to avoid inconsistency …. 239 Test for inconsistency …. 52 Inconsistency between laws Federal and Territory laws …. 165

J Judicial power of the Commonwealth Cancellation of registration of union …. 191 Cross-vesting legislation conferring State jurisdiction on Ch III courts …. 247 Disciplinary power of military tribunal …. 254 Essential characteristics of Court to act fairly and impartially …. 15 Exercise by acting judge of State Supreme Court …. 88 Exercise by Australian Military Court …. 125 Exercise by Master of State Supreme Court …. 62 Exercise by State court …. 151 Identification of judicial power …. 187, 201 Independence and impartiality of State Supreme Court not compromised …. 96 Legislation terminating rights …. 80 Not able to be exercised by Registrar …. 188 Not exercised by legislation validating punishment …. 101 Not exercised by prosecutor to select charge …. 18 Not exercised by retrospective legislative validation of acts …. 29 Not exercised by Takeovers Panel …. 16, 180 Not exercised in committal proceedings …. 240

Not exercised in determining breach of licence …. 26 Only exercised by Ch III Court …. 42 Power to disqualify person from managing corporations …. 245 State Court vested with power inconsistent with Ch III …. 85 Suspension of registration of liquidator …. 5 Tenure of judges …. 248 Jurisdiction of States Limitation of powers of state Supreme Court inconsistent with Ch III …. 121 Proceedings transferred to State Court not an interference with Federal Court …. 205 Regulation of acts outside State boundaries …. 237 Retrospective legislation …. 79 State law declaring rights based on ‘ineffective’ federal judgments …. 141

L Legislative power of the Commonwealth Conferral of standing to give rise to a ‘matter’ …. 235 Delegation of discretion …. 91 Proportionality of legislation only relevant to purposive power …. 70, 128

M Marriage power Guardianship of infants …. 210 Welfare of a child …. 169

P Parliament

Election of candidates …. 153 Eligibility of candidate for election …. 227 Enrolment of voters …. 208 Exclusion of prisoners from voting in parliamentary elections …. 207 Members of Parliament to be directly chosen by the people …. 127 Power to control functions …. 82 Qualification for election as a senator …. 224

R Race power Removal of protection of culturally significant land …. 119 Rights and freedoms Advertising of legal services prohibited …. 13 Freedom from interstate discrimination …. 92, 222, 226 Implied freedom of communication …. 25, 55, 126, 131, 136, 150, 152, 157, 221, 228, 231, 238, 258 Implied right to equality of treatment …. 130 No implication of equality of voting power …. 138 Trial by jury …. 49, 196

S Separation of powers Chapter III courts not to exercise administrative functions …. 199 Conferral of functions on court not repugnant to judicial process …. 120, 124, 177, 232 Conferral of power on Ch III court incompatible with judicial function …. 112, 216, 246 Cross-vesting of State judicial power …. 94 Detention of illegal immigrants …. 7

Exercise of power incidental to judicial power …. 192 Independence of judiciary from executive …. 257 Infringed by conferral of rule-making power on courts …. 99 Institutional integrity of State court under Ch III …. 149 Judicial power of the Commonwealth only to be exercised by Ch III courts …. 161, 194 Legislature not to interfere with judicial power …. 50 Mandatory minimum sentencing provision …. 142 Power conferred on federal judges to issue search warrants …. 95 Power to make suppression orders …. 106 Separation of Legislature from Executive …. 244 Exercise of non-judicial power by State court …. 118 Not infringed by conferral of power on judges to issue search warrants …. 105 Not infringed by delegation of power to Registrar …. 100

T Tax laws Prohibition on taxing property of a State …. 211 Purpose of Act not relevant to characterisation …. 147 Requirement for single subject of taxation …. 2, 31, 81, 155, 172, 218 Taxation power Differential operation not arise from discrimination …. 89 Not to discriminate against States …. 58 Power to tax States …. 242 Purpose of imposition of levy …. 164, 209 Use of power to regulate other activity …. 84, 166 Territories power Requires nexus with Territory …. 123

Voting entitlements limited to citizens …. 35 Trade and commerce power Consideration of matters not within Commonwealth legislative competence …. 154 Government participation in field of activity …. 30 Identification of interstate trade and commerce …. 259 Matters ancillary to interstate trade and commerce …. 108 Regulation of intrastate activity …. 3, 21, 203 Use of power to regulate non-Commonwealth field …. 167