Constitutional law [Second edition.] 9780409338768, 0409338761

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LexisNexis Study Guide

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Constitutional Law 2ND EDITION M-Harvey • M Longo• J Ligertwood • D Babovic • D Parker Begin exam preparation or revision with this essential tool for success! The LexisNexis Study Guide series is designed to assist stydents in learning the foundations for effective, systematic exam preparation and revision. Each chapter clearly identifies and explains the pertinent and often difficult topics within constitutional law. The most important and recent cases are summarised to consolidate practical understanding of the theoretical concepts.

Contents: • Constitutional Law in Context • Constitutional Theory

• Indigenous Aspects of Constitutional Law • Legislative, Executive and Judicial Power • Federalism and the Australian Federation • State Constitutions • The Trade, Commerce, Corporations and Industrial Relations Powers • External Affairs and International Law Debates • Finance • Rights and Restrictions • Amendment and Reform

Related LexisNexis Titles • Clarke, Introduction to Australian Public Law, 4th ed, 201 3 • Keyzer, Principles of Australian Constitutional Law, 4 t h ed , 201 3 • Omar, Butterworths Questions and Answers Constitutional Law, 2010 • Trone, Quick Reference Card Constitutional Law, 2012 [email protected] www.lexisnexis.com.au

ISBN 978-0-409-33876-8

1111

· LexisNexis· Butterworths

AUSTRALIA

ARGENTINA AUSTRIA BRAZTL

CANADA CHlLE CHTNA CZECH REPUBLIC FRANCE GERMANY HONGKONG HUNGARY TND!A

ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRJCA SWITZERLAND TAIWAN UNITED KINGDOM USA

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

Harvey, Matt. Constitutional law 2nd edition. 9780409338768 (pbk). 9780409338775 (ebk). LexisNexis Study Guide Includes index. Constitutional law--Australia. Longo, Michael. 342.9402

0 2015 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of thi s publication may be reproduced by any process, electronic or otherwise, without the specific written permission of tl1e copyright owner. Neither may information be stored electronically in any form whatsoever without such pennission. Inquiries should be addressed to the publishers. Typeset in Optima and Helvetica Neue Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

CONTENTS Preface

vii

Table of Cases

ix

Table of Statutes

xix

CHAPTER 1 Constitutional Law in Context CHAPTER 2 Constitutional Theory

57

CHAPTER 3 Indigenous Aspects of Constitutional Law

73

CHAPTER 4 Legislative, Executive and Judicial Power

109

CHAPTER 5 Federalism and the Australian Federation

141

CHAPTER 6 State Constitutions

161

CHAPTER 7 The Trade, Commerce, Corporations and Industrial Relations Powers

185

CHAPTERS External Affairs and International Law Debates

203

CHAPTER 9 Finance

221

CHAPTER 10 Rights and Restrictions

239

CHAPTER 11 Amendment and Reform

285

Index

295

v

SES References are to paragraphs

A

Attorney-General (Cth); Ex parte McKinlay v Commonwealth (1975) 135 CLR 1 .... 2.24, 4.9

Actors and Announcers' Equity v Fontana Fi Ims (1982) 150 CLR 1 .... 2.18,7.2

- v The Queen [1957] AC 288 .... 10.69

Adelaide Company of Jehovah's Witnesses Inc v Commonwealth

Attorney-General (NSW) v Brown (1847) 1 Legge 312 .... 3.5

(1943) 76 CLR 116 .... 10.30, 10.31 , 10.35

- v Trethowan (1934) 44 CLR 394

Air Caledonie International v

.... 6.1, 6.9

Commonwealth (1988) 165 CLR 462 .... 9.7

Attorney-General (Qld) v Riordan (1997) 192 CLR 1 .... 7.3

Airlines of New South Wales v New

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249

South Wales (No 2) (1965) 113 CLR 54 .... 5.34

CLR 1 .... 10.58, 10.60

Airservices Australia v Canadian

Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR

Airlines International (1999) 167 ALR 392 .... 9.8, 10.17

559 .. .. 10.32

Al-Kateb v Godwin (2004) 219 CLR

- Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case)

562 .... 1.16, 8.25, 8.26, 10.3 Amalgamated Society of Engineers

(1945) 71 CLR 237 .... 9.33

v Adelaide Steamship Co Ltd (Engineers' Case) (1920) 28 CLR

Attorney-General (WA) v Marquet (2003) 217 CLR 545 .... 6.9

129 .... 1 .6, 4.10, 5.25, 5.26, 6.6, 9.13

Austin v Commonwealth (2003) 215 CLR 185 .... 5.16, 5.26, 6.11

Ansett Transport Industries

Australian Boot Trade Employees Federation v Whybrew & Co (No 1) (1910) 10 CLR 266 .... 7.3

(Operations) Pty Ltd v Wardley (1980) 142 CLR 237 .... 5.34 APLA Limited Ltd v Legal Services Commissioner (NSW) (2005) 224

Australian Boot Trade Employees Federation v Whybrew & Co (No 2) (1910) 11 CLR311 .... 7.3

CLR 322; 219 ALR 403 .... 6.5, 10.56

ix

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .... 10.53 Australian Capital Television v Commonwealth (1992) 177 CLR 106 .... 1.14, 4.10, 10.46, 10.57, 10.58, 10.64 Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 .... 1.8, 4.10, 10.3 Australian Education Union, Re; Ex parte Victoria (1995) 184 CLR 188 .... 5.16, 6.11, 7.3 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 .... 6.5 Australian National Airways Ltd v Commonwealth (1945) 71 CLR 29 .... 7.1 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 1 76 CLR 480 .... 9.23, 10.17 B

Baker v The Queen (2004) 223 CLR 513 .... 5.15 Bank of NSW v Commonwealth (1948) 76 CLR 1 .... 2.18, 4.10, 6.6 Beal v Marrickville Margarine (1966) 114 CLR 283 .... 7.1 Betfair v Western Australia (2008) 234 CLR418 .... 7.4

x

TABLE OF CASES

Brown v Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 .... 10.56 Brownlee v The Queen (2001) 207 CLR 278 .... 2.22, 2.24 Burton v Honan (1952) 86 CLR 169 .... 4.11 Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Assoc (1925) 35 CLR 528 .... 7.3

c Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 .... 5.32, 6.5 Chapman v Tickner (1995) 55 FCR 316 .... 3.8 Cheng v The Queen (2000) 203 CLR 248 .... 10.23 Cheung v The Queen (2001) 209 CLR 1 .. .. 10.27 Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 .... 10.31 Clarke v Commissioner ofTaxation (2009) 240 CLR 272 .... 5.16, 5.26 Clyde Engineering v Cowburn (1926) 3 7 CLR 466 .... 5.33 Coe v Commonwealth [1979] HCA 68 .... 3.8

Coe v Commonwealth (No 2) (1993) 11 8 ALR 193 .... 3 .5 Cole v Whitfield (1988) 165 CLR 360 .... 1.14, 2.21, 7.4 Coleman v Power (2004) 220 CLR 1 .... 10.53, 10.57, 10.62 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308 .... 8.25 Combet v Commonwealth (2005) 224 CLR 494 .... 9.35

D

Davis v Commonwealth (1988) 166 CLR 79 .... 9.34 D'Emden v Pedder (1904) 1 CLR 91 .... 6.6 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 .... 9.14 Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323 .... 7.2 Director of Aboriginal and Islanders

Commonwealth v ACT [2013] HCA 55 .... 6.13 - v Mewett (1997) 191 CLR 471 .... 10.13

Advancement v Peinkinna (1978) 17 ALR 129 .... 3.11 Director of Public Prosecutions, Re; Ex parte Lawler (1994) 179 CLR 270 .... 10.16

- v Northern Land Council (No 2) (1987) 75 ALR 210 .... 3.11 - v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 .... 1.13, 3.8, 5.16, 5.25, 7.2, 8.10, 8.16, 8.18, 8.19, 10.12, 10.18 - v WMC Resources Ltd (1998) 194 CLR 1 .... 10.13, 10.14 - v Yarmirr (2001) 208 CLR 1 .... 3.9

E

Eastman v The Queen (2000) 203 CLR 1 .... 2.22 Evans and Anor v New South Wales (2008) 168 FCR 576 .... 10.4

F

Condon v Pompano Pty Ltd [2013] HCA 7 .... 4.15

Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 .... 4.11, 7.1, 9.25

Cooper v Stuart (1889) 14 App Cas 286 .... 3.5, 3.6

Fardon v Attorney-General (Qld)

Cubillo v Commonwealth (2000) 174 CLR 97 .... 3 .11

Federated State School Teachers

Cunliffe v Commonwealth (1994) 182 CLR 272 .... 10.52, 10.59

(2004) 223 CLR 575 .... 4.15 Association of Australia v Victoria (School Teachers Case) (1929) 41 CLR 569 .... 7.3

xi

TABLE OF CASES

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Federated Storemen and Packers Union of Australia, Re; E

arte

Henry v Boehm (1973) 128 CLR 482 Hilton v Wells (1985) 157 CLR 57

CLR 311 .... 7.3

Hodge v The Queen (1883) 9 AppCas

CLR 96 .... 3.9

~eorgiadis v Australian and Overseas

Telecommunications Corp (1994) 179 CLR 297 .... 10.11, 10.13, 10.19 Gory! v Greyhound Aust Pty Ltd (1994) 1 79 CLR 463 .... 10.40 Grace Bros Pty Ltd v The Commonwealth (1946) 72 CLR 269 .... 10.12 Grain Pool of Western Australia v

117 .... 6.5 Hogan v Hinch (2011) 243 CLR 506 Horta v Commonwealth (1994) 181 CLR 183 .... 8.6 Huddart Parker v Commonwealth

Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 .... 4.11, 7 .1 Grollo v Palmer (1995) 184 CLR 348 .... 4.18 Gypsy Jokers Motorcycle Club v Commissioner of Police (2008) 234 CLR 532 .... 4.15

Harris v Caladine (1991) 172 CLR 84

(1909) 8 CLR 330 .... 4.16, 7 .2

.... 10.11, 10.12, 10.13 xii

The King v Wilson; ex parte Kisch (1934) 52 CLR 234 .... 3.6 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 .... 1.12, 2.18, 3.8, 8.1 0, 8.15, 8.17 Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 .... 3.11, 10.36, 10.68

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR

Krygger v Williams (1912) 15 CLR 366 .... 10.34

140 .... 10.13

112 CLR 206 .... 4.10 JT International SA v Commonwealth (2012) 250 CLR 1 291 ALR 669 .... 10.12, 10.15 Judiciary Act, Re; Navigation Act, Re (1921)29CLR257 .... 4.16

309 .... 7.3 K

Kable v DPP (1996) 189 CLR 41 .... 4.15

Levy v Victoria (1997) 189 CLR 579 .... 10.53, 10.55, 10.57, 10.58 M

Mabo v Queensland (No 2) (1992) 175 CLR 1 .... 1.14, 3.3, 3.6, 3.8, 3.9, 3.11, 3.12 Marbury v Madison 5 US (1 Cranch) 137 (1803) .... 2.13 Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 .... 9.6, 9.13 Mccawley v the King (1920) 28 CLR 106 .... 6.9 McGinty v Western Australia (1996) 186 CLR 140 .... 10.68 Melbourne Corporation v Commonwealth (State Banking Case) (1947) 74 CLR 31 .... 5.16, 5.26, 6.3, 6.6, 6.11

L

J Jones v Commonwealth (No 2) (1965)

.... 4.18 Health Insurance Commission v Peverill (1994) 179 CLR 226

K-Generation v Liquor Licensing Court (2009) 237 CLR 501 .... 4.15

Huddart Parker Co Pty Ltd v Moorehead

Jumbunna Coal Mine NL v Victorian Coal Miners Assoc (1908) 6 CLR

H

Kaurareg People v Queensland [2001) FCA 657 .... 3.3

(1931) 44 CLR 492 .... 7 .1

Commonwealth [2000] 202 CLR 479; HCA 14 .... 4.10, 4.11

.... 3.8, 3.10, 4.10, 8.24

.... 4.18

.... 10.54, 10.57, 10.58

G

(Hindmarsh Island Bridge Case) (1998) 195 CLR 337; 152 ALR 540

.... 10.38, 10.39

Wooldumpers (Vic) Ltd (Wooldumpers Case) (1989) 166 Fejo v Northern Territory (1998) 195

Kartinyeri v Commonwealth

Lane v Morrison [2009] HCA 29 .... 4.18

Members of the Yorta Community v Victoria (2002) 214 CLR 422 .... 3.9

Lange v Australian Broadcasting Corp (1997) 189 CLR 520 .... 10.48, 10.49, 10.57, 10.61, 10.64

Milirrpum v Nabalco Pty Ltd (1971)

Langer v Commonwealth (1996) 186 CLR 302 .... 2.24

Minister for lmLnigration v Teoh (1995) 183 CLR 273 .... 8.2

Leeth v Commonwealth (1992) 174

Minister for Immigration and

CLR 455 .... 3.11 Leo Akiba on behalf of the Torres Strait Islander Regional Seas Claim Group v Commonwealth of Australia & Ors [2013) HCA 33 .... 3.9

17 FLR 141 .... 3.8

Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 .... 8.2 Minister of State for the Army v Dalziel (1944) 68 CLR 261 .... 10.11 Momcilovic v The Queen (2011) 245 CLR 1 .... 10.3

TABLE OF CASES

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Mon is v The Queen (2013) 249 CLR 92;

Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134

295 ALR 259 .... 10.59, 10.64, 10.65 Muldoon and Another v Melbourne City Council and Others (2013) 217 FCR 450 .... 10.58, 10.60

.... 10.16, 10.17

Commission (2004) 220 CLR 181

.... 4.5,5.16

.... 10.55

.... 1 0.50, 10.52, 10.68

- v - (2014) 221 FCR 382 .... 10.58

Mutual Pools and Staff Pty Ltd v Commonwealth (1994) 179 CLR

Queensland v Commonwealth (Second Territory Senators Case) (1977) 139 CLR 585

0 O'Flaherty v City of Sydney Council and Another (2013) 210 FCR 484

Mulholland v Australian Electoral

Q

- v - (1989) 167 CLR 232 .... 8.18 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 .... 5.16, 6.11

O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 .... 5.34, 7.1

155 .... 10.16

Owen John Karpany & Anor v Peter John Dietman [2013] HCA 47

N

.... 3.9

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 .... 10.45, 10.58

R

R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 .... 1.19, 4.17, 10.23 - v Ballard or Barrett [1829] NSW

p

New South Wales v Commonwealth (Seas and Submerged Lands Case)

Sup C 26 .... 3.5

Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1 .... 4.11,

(1975) 135 CLR 337 .... 8.3

5.28, 8.22, 9.36

- v - (Incorporation Case) (1990) 169 CLR 482 .... 2.20, 7.2

Parton v Milk Board (1949) 80 CLR 229 .... 9.13

- v - (Wheat Case) (1915) 20 CLR 54 .... 1.19,4.18

Peterswald v Bartley (1904) 1 CLR 497 .... 9.11

- v - (WorkChoices Case) (2006)

Philip Morris v Commissioner of Business Franchises (1989) 167 CLR

229 CLR 1; [2006] HCA 52 .... 1.16, 7.2

399 .... 9.14

Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR

Pirrie v McFarlane (1925) 36 CLR 1 70 .... 6.6

513 .... 3.12, 8.24, 10.12, 10.14,

Polyukhovich v Commonwealth (1991) 172 CLR 501 .... 8.4, 8.8

10.20 Ng vThe Queen (2003) 217 CLR 521 .... 10.25, 10.26 Ngo Ha v New South Wales (Ha's Case) (1997) 189 CLR 465 .... 6.7,

Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348 .... 3.5, 3.6 Powell v Apollo Candle Company (1885) 10 AppCas 282 .... 6.5

9.5, 9.14, 9.15

- v Barger (1908) 6 CLR 41 .... 4.11, 7.3, 9.18, 9.24 - v Bonjon [1841] NSW Sup C 92 .... 3.5 - v Brislan; Ex parte Williams (1935) 54 CLR 262 .... 4.10, 4.11 - v Burah (1878) 3AppCas 889 .... 6.5 - v Burgess; Ex parte Henry (1936) 55 CLR 608 .... 8.21 - v Coldham; Ex parte Australian Social Welfare Union (CYSS Case) (1983) 153 CLR 297 .... 7.3 - v Commonwealth Court of Conciliation and Arbitration; Ex pa rte Whybrow & Co (191 O) 11 CLR 1 .... 7.3 - v Cox; Ex parte Smith (1945) 71 CLR 1 .... 3.18

- v Federal Court of Australia; Ex parte WA National Football League (Adamson's Case) (1979) 143 CLR 190 .... 7.2 - v Joske; Ex parte Shop Distributive and Allied Employees' Assn (1976) 135 CLR 194 .... 4.18 - v Kirby; ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 .... 1.9, 4.18, 7.3 - v Murrell and Bummaree [1836] NSW Sup C 35 .... 3.5 - v Pearson; Ex parte Sipka (1983) 152 CLR 254 .... 1.19, 3.7, 4.6, 10.7, 10.8 - v President of the Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers Assoc (1959) 107 CLR 208 .... 7.3 - v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 .... 4.4, 4.18 Richardson v Forestry Commission (1988) 164 Cl.R 261 .... 8.18 Riel v The Queen (1 885) 10 AppCas 675 .... 6.5 Roach v The Australian Electoral Commissioner & Anor (2007) 233 CLR 162 .... 1.19, 3.7, 4.6, 8.25, 10.66 Rowe v Electoral Commissioner (2010) 243 CLR 1 .... 10.64, 10.67

xv

xiv

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-

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TABLE OF CASES

LEXJSNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Teori Tau v Commonwealth (1969)

Ruddock v Vadarlis [2001] FCA 1329

119 CLR 564 .... 10.20

.... 4.14

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104

s

.... 10.51, 10.56

Smith v ANL Ltd (2000) 204 CLR 493 .... 10.13

Thomas v Mowbray (2007) 233 CLR 307 .... 8.9

South Australia v Commonwealth (First Uniform Tax Case) (1942) 65

u

CLR 373 .... 9.18, 9.29

Union Steamship Co of Australia

- v Totani (201 O) 242 CLR 1 .... 4.15

Pty Ltd v King (1988) 166 CLR 1

South-Eastern Drainage Board (SA) v

.... 5.33, 6.5

Savings Bank of SA (1939) 62 CLR

v

603 .... 6.9

Vasiljkovic v Commonwealth of Australia (2006) 227 CLR 614

State Chamber of Commerce and Industry v Commonwealth (1987)

.... 8.9

163 CLR 329 .... 9.23 State of Western Australia v Brown & Ors [2014] HCA 8 .... 3.9 Street v Queensland Bar Association (1989) 168 CLR461 .... 1.19, 2.23

.... 5.16 I

10.39, 10.41, 10.43 Strickland v Rocla Concrete Pipes (1971) 124 CLR 468 .... 7.2 Sue v Hi II (1999) 199 CLR 462 .... 1.19 Sykes v Cleary (No 2) (1992) 176 CLR 77 ... . 1 .19, 4.4

Victoria v Commonwealth (Payrol 1 Tax Case) (1971) 122 CLR 353 - v - (Industrial Relations Act Case) (1996) 187 CLR 416 .... 6.11, 8.7, 8.19, 8.22 - v - (Roads Case) (1926) 38 CLR 399 .... 9.28 - v - (Second Uniform Tax Case) (1957) .... 9.18, 9.30 - v Commonwealth and Connor (PMA Case) (1975) 134 CLR 81 .... 1.19, 4.19

T

Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 .... 10.11, 10.13

xvi

- v Commonwealth and Hayden (AAP Case) (1975) 134 CLR 338 .... 9.33

Victorian Stevedoring and General Contracting Co v Dignan

-vWard (2002) 213 CLR 1 .... 3.9 White

(0 ignan's Case) (1931) 46 CLR 73

.... 4.14,7.3

w Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 .... 3.9 Wainohu v NSW (2011) 243 CLR 181 .... 4.15 Wakim, Re; Ex parte McNally (Crossvesting Case) (1999) 198 CLR 511 .... 2.23, 2.28 Walker v New South Wales (1994) 1 82 CLR 45 .... 3 .5 Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 .... 7.3 Webster, Re (1975) 132 CLR 270 .... 1.19 Weisfeld v Canada [1995] 1 FC 68 .... 10.55

Wik Peoples v The State of Queensland (1996) 141 ALR 129· 187CLR1 .... 3.9,10.3 I Williams v Commonwealth (No 1) (2012) 248 CLR 156 .... 4.11, 4.14, 5.27, 5.28, 5.29, 9.36 Williams v Commonwealth (No 2) (2014] HCA 23 .... 4.11, 4.14, 5.29, 9.36 Williams v Minister, Aboriginal Land Rights [2000] Aust Tort Reports 81-578 .... 3.11 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996] 189 CLR 1 .... 3.8, 4.18 Wotton v Queensland (2012) 246 CLR 1 .... 10.54, 10.57, 10.58, 10.64 Wurridjal v Commonwealth (2009)

West Lakes Ltd v South Australia (1980) 25 SA SR 389 .... 6.9 Western Australia v Commonwealth (First Territory Senators Case) (1975) 134 CLR 201 ... . 4.5, 5.16 - v - (Native Title Act Case) (1995) 158 CLR 1 ... . 3.9 - v - (WorkChoices Case) (2006) 229 CLR 1; [2006] HCA 52 .... 1.16, 7.2

v Director of Military

Prosecutions (2007) 231 CLR 570 .... 8.25

237 CLR 309 .... 3.12, 10.14, 10.20

x XYZ v Commonwealth (2006) 227 CLR 532 .... 8.8

y Vanner v Eaton (1999) 201 CLR 351 .... 3.9

References are to paragraphs

Commonwealth

Commonwealth of Australia

Aboriginal and Torres Strait Islander

Constitution Act 1900 .... 1.1, 1.4, 1.6, 1.14, 1.15, 1.1 7, 1.18, 1.19,

Heritage Protection Act 1984 .... 3 .8, 4.1 0, 4.18

2.3-2.4, 2.10, 2.17, 2.24, 2.25, 2.27, 2.31 , 3.2, 3.11, 4.19, 5.9, 6.1,

Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 .... 3.13 , 11.2

6.3 , 8.26, 9.1, 10.1, 10.3, 10.44, 10.45, 10.48, 10.50, 10.57, 10.65, 10.66, 10.67, 10.68, 10.69, 11.2,

s5 .... 3.13

11.3, 11.8, 11.9, 11.10, 11.12

Aboriginal Land Fund Act 1974 .... 3.8, 8.15

Ch 1 .... 1.19, 4.1, 4.5 Ch I, Pt 1 .... 1.1 9 Ch I, Pt II .... 1.19, 4.5

Aboriginal Land Rights Act 1976 .... 3.8 Australia Act 1986 .... 1.13, 4.10, 6.1 , 6.8 Australian Capital Territory SelfGovernment Act 1988 .... 6.13

Ch I, Pt V .... 1 .19 Ch II .... 1.19, 4.10, 4.12, 4.19 Ch Ill .... 1.19, 4.15, 4.18, 4.19, 7.3, 8.26

Australian Industries Preservation Act ... . 7.2

Ch IV .. .. 1.19 Ch V .. .. 1.19

Australian Citizenship Act 1948 .... 1.8, 3.8

Ch VI ... . 1.19, 6.13 Ch VII .... 1.19

Banking Act 1945 ... . 5.16, 6.6

Ch VIII .... 1.19

s 48 .... 5.16, 6.6

Preamble .... 1 .15, 1.18, 11 .2 s 1 .... 1.19, 4-.2, 5.16

Broadcasting Act 1942 .... 10.46 Pt 1110 .... 10.46

s2 .... 1.19,4.2 s3 .... 1.19

Circuit Layouts Act 1989 ... . 10.17 Common Informers Act 1975 .. .. 1 .19

s4 .... 1.19 s 5 .. .. 1 .19, 4.3

Commonwealth Electoral Act 1918 .... 1 .19, 3.8, 4.4, 4.6, 10.50, 10.66, 10.67

s 6 .... 1 .19, 4.3 s 7 .... 1.19, 3.7, 4.5, 4.9, 5.16,

Commonwealth Franchise Act 1902 .... 1.19, 10.7, 10.8

10.45, 10.46, 10.48, 10.49, 10.66, 10.67

xix

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Ch I, Pt 111 .... 1.19 Ch I, Pt IV .... 1.19

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Commonwealth of Australia Constitution Act 1900-cont'd

s 8 .... 1.19, 4.6, 10.7, T0.8 s9 .... 1.19 s10 .... 1.19 s11 .... 1.19 s 12 .... 1 .19, 4.7 s 12(1) .... 1.19, 4.17 s 13 .... 4.7, 11.2 s14 .... 1.19 s 15 .... 1.19, 4.8, 11.2 s 16 ... . 1.19, 4.4 s17 .. .. 1.19 s18 .... 1.19 s19 .... 1.19 s 20 .... 1.19 s21 .... 1.19 s 22 .... 1 .19 s 23 .... 1.19 s 24 .... 1.19, 3.7, 4.5, 4.9, 10.45, 10.46, 10.48, 10.49, 10.66, 10.67 s 25 .... 1.19, 3.7, 3.13 s26 ... . 1.19 s27 .... 1.19 s 28 .... 1.19 s 29 .... 1 .19 s 30 .... 1.19, 3.7, 4.6, 10.7, 10.8 s31 .... 1.19 s 32 .... 1.19 s 33 .... 1 .19 s 34 .... 1.19 s35 ... . 1.19 s36 .... 1.19 s37 .... 1.19 s38 .... 1.19 s39 .... 1.19

s 40 .... 1.19 s41 .... 1.19,2.8,3.7,4.6,10.5, 10.6, 10.7, 10.8 s 42 .... 1.19 s 43 .... 1.19 s 44 .... 1.19, 4.4 s 44(i) .... 1.19 s 44(iv) .... 1 .1 9 s 44(v) .... 1 .1 9 s 45 .... 1.19 s 46 .... 1.19 s 47 .... 1.19, 4.4 s 48 .... 1.19 s 49 .... 1.19, 4.4, 4.19 s 50 .... 1.19, 4.4 s51 .... 1.19,2.10,2.18,4.1,4.10, 4.11, 5.16, 6.4, 6.6, 10.10 s 51(i) .... 1.19, 2.18, 4.10, 7.1 s 51 (ii) .... 1.19, 4.10, 4.11, 4.14, 7.1, 9.17, 9.19, 9.25, 10.16 s51(iii) .... 1.19,4.10 s 51(iv) .... 1.19, 4.10 s 51(v) .... 1.19, 4.10, 7.1, 10.46 s 51(vi) .... 1.19, 4.10, 6.4, 6.6 s51(vii) .... 1.19, 4.10 s51(viii) .... 1.19,4.10 s 51(ix) .... 1.19, 4.10, 6.4 s51(x) .... 1.19,4.10 s 51(xi) .... 1.19, 4.10 s51(xii) ... . 1.19,4.10,9.1 s 51(xiii) .... 1.19, 4.10, 5.16, 6.6, 7.1 s51(xiv) .... 1.19, 4.10, 7.1 s 51(xv) .... 1 .19, 4.10 s51(xvi) .... 1.19,4.10, 7.1 s 51 (xvii) ... . 1.19, 4.10, 7.1, 10.16

s51(xviii) .... 1.19,4.10,7.1, 10.16 s 51 (xix) .... 1.19, 4.10 s51(xx) .... 1.13, 1.19,4.10,5.16, 7.1, 7.2, 8.16 s 51(xxi) .... 1.19, 4.10, 6.4 · s 51(xxii) .... 1.19, 4.10, 6.4 s 51(xxiii) .... 1.19, 6.4 s 51 (xxii iA) .... 1.19, 4.10, 6.4, 11.2 s 51(xxiv) .... 1.19, 4.10 s51(xxv) .... 1.19,4.10 s 51(xxvi) .... 1.12, 1.19, 3.7, 3.8, 3.9, 3.13, 4.10, 8.15, 11.2 s 51 (xxvi i) .... 1.19, 4. 10, 6.4 s 51 (xxviii) .... 1.19, 4.10 s 51 (xx ix) .... 1.12, 1.19, 3.8, 4.10, 5.1 6, 6.4, 8.1, 8.3, 8.4, 8.6, 8.7, 8.9, 8.10, 8.15-8.22, 8.23, 8.26 s 51 (xxx) .... 1 .19, 4. 10, 6 .4 s 51(xxxi) .... 1.19, 3.12, 4.10, 7.1, 10.5, 10.9-10.20 s51(xxxii) .... 1.19,4.10 s 51(xxxiii) .... 1.19, 4.10 s 51(xxxiv) .... 1.19, 4.10 s 51 (xxxv) .... 1.19, 4.10, 5.25, 6.4, 6.6, 7.2, 7.3, 10.45 s51(xxxvi) .... 1.19, 4.10, 10.67 s 51(xxxvii) .... 1.19, 4.10, 6.4, 11 .4 s 51 (xxxviii) .... 1.19, 4.10 s 51(xxxix) .... 1 .19, 4.1 0, 4.11, 4.14, 5.28, 6.4, 8.36 s51A .... 3.13 s 52 .... 1.19, 1.19, 4.10, 5.16 s52(i) .... 1.19 s 52(i i) .... 1 .19 s52(iii) .... 1.19

s 53 .... 1.19, 4.5, 9.20, 9.21, 9.32 SS 53-56 .... 9.20 s 54 .... 1.19, 9.20, 9.21, 9.32 s 55 .... 1.19, 9.7, 9.20, 9.22, 9.23, 9.26 s56 .... 1.19,9.32 s57 .... 1.10,1.19,4.3,4.5,4.14, 4.19, 5.16, 6.2 s 58 .... 1.19 s 59 .... 1 .19 s 60 .... 1.19 s 61 .... 1.19, 4.11, 4.12, 4.14, 5.16, 5.28 s 62 .... 1.19, 4.12 s 63 .... 1.19, 4.13 s64 .... 1.11, 1.19,2.12,4.5,4.11, 4.13, 10.48 s65 .... 1.19,4.13 s 66 .... 1.19, 4.13 s 67 .... 1.19 s68 .... 1.19,4.13 s 69 .... 1.19, 4.13, 5.16, 6.3 s 70 .... 1.19, 4.13 s 71 .... 1.19, 4.15, 4.16, 5.16 SS 71 -77 .... 2. 13 s72 .. .. 1.13,1.19,4.15, 11.2 s 72(ii) .... 1.19, 4.19 s 73 .... 1.19, 4.17, 5.16 s74 .... 1.19,4.17 s 75 .... 1.19, 4.17, 5.16 s 76 .... 1 .19, 4.17, 5.16 s77 .... 1.19,4.17 s 78 .... 1.19, 4.1 7 s79 .... 1.19,4.17 s 80 .... 1.19, 2.8, 4.17, 10.5, 10.21-10.27

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Commonwealth of Australia Constitution Act 1900-cont'd s 81 .... 1.19, 5.28, 9.32 s 82 .... 1.19 s 83 .... 1.19, 5.28, 9.32 s 84 s 85 s 86 s87

.... .... .... ....

1.19 1.19 1.19 1.19,11.2

s 109 .... 1.19, 2.10, 3.9, 4.10, 5.16, 5.25, 5.32, 5.34, 5.35,

Constitution Alteration (Senate Casual

s111 .... s112 .... s113 .... s 114 .... s 115 ....

Constitutional Alteration

1.19 1.19 1.19 1.19, 5.16, 6.4 1.19, 4.10, 5.16, 6.4, 9.1

s 116 .... 1.19, 10.5, 10.28-10.36

s 89 .... 1.19 s 90 .... 1.19, 4.10, 5.16, 6.4, 6.5, 6.7, 7.1, 9.1, 9.2, 9.5, 9.6, 9.11,

s 116A .... 3.13 s117 .... 1.19,10.5, 10.37-10.43

s91 .... 1.19 s92 .... 1.8,1.14, 1.19,2.8,2.18, 4.10, 6.6, 7.1, 7.4, 9.5, 11.2 s 93 .... 1 .19 s 94 .... 1 .19, 5 .1 6 s 95 .... 1.19 s 96 .... 1.17, 1.19, 4.11, 5.16, 5.28, 6.7, 9.9, 9.16, 9.18, 9.27, 9.28-9.31, 10.32 s 97 .... 1 .19 s98 .... 1.19,2.18,7.1 s99 .... 1.19, 2.18, 7.1, 9.19 S 100 ,. ,. 1.1 9 I 2 .1 8, 11 .1 2 s101 .... 1.19,4.18 s 102 .... 1.19, 2.18 s 103 .... 1 .19 s 104 .... 1 .19 s 105 .... 1 .1 9, 11 .2 s 105A .... 1.19, 11.2 s 106 .... 1.19, 6.3, 6.4 s 107 .... 1.19, 6.3, 6.4 s 108 ... . 1 .19, 6.3 xxii

Judges) Act 1977 .... 1.19

6.3-6.5, 9.18 s110 .... 1.19

s 88 .... 1.19

9.13, 9.14, 9.19

Constitution Alteration (Retirement of

s118 .... 1.19 s119 .... 1.19 s 119A .... 11.2 s 120 .... 1 .19 s 121 .... 1.19, 5.16 s 122 .... 1.19, 3.12, 4.5, 4.10,

Vacancies) Act 1977 .... 1.1 9 (Simultaneous Elections) Act 1977 .... 1 .19 Copyright Act .... 9.23 Corporations Act 1989 .. .. 7.2 Crimes Act 1914 s 30K .... 4.17

Human Rights and Equal Opportunity Commission Act 1984 .... 10.2 Immigration Restriction Act 1901 .... 3.6 Industrial Relations Act 1988 .... 6.11, 8.19, 10.45 s 127A .... 7.2 s 1278 .... 7.2 s 299(1 )(d)(ii) .... 10.45 Industrial Relations Reform Act 1993 .... 8.19

s SOSA .... 8.8

Judicature Act 1903 .... 1.19

s SOBC .... 8.8

Judiciary Act 1903 .... 2.13

Criminal Code s471.12 .... 10.65

s 23(a)(a) .... 10.64 s30 .... 2.13

Excise Tariff Act 1906 .... 9.24

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 .... 8.18

s123 .... 1.19

Financial Framework Legislation

Life Insurance Act 1945 .... 6.5

s 124 .... 1 .19

Amendment Act (No 3) 2012 .... 4.14,5.29

5.16, 6.13, 10.20

s 125 .... 1.19 s126 .... 1.19 s 127 .... 3.7, 3.8, 11.2 s 127A .... 3.13 s 128 .... 1.19, 5.16, 8.26, 10.45, 10.46, 10.48, 10.61, 11.1, 11 .2 Sch .... 1.19 Competition and Consumer Act 2010 .... 7.1, 7.2 Conciliation and Arbitration Act 1904 .... 5.25, 7.3 Conciliation and Arbitration (Electricity Industry) Act 1985 .... 5.16, 6.11

Defence Act 1903-1911 s 135 .... 10.34

Fisheries Management Act 1991 s 100 .... 10.16 s 106(1)(a) .... 10.16 Fringe Benefits Tax Act 1986 .... 9.23 Fringe Benefits Tax (Appl ication to the Commonwealth) Act 1986 ... . 9.23 Fringe Benefits Tax Assessment Act 1986 .... 9.23 High Court of Australia Act 1979 .... 4.15 Hindmarsh Island Bridge Act 1997 .... 3.8

s37 .... 6.5 Marriage Act 1961 .... 6.13 Migration Act 1958 .... 4.14, 8.26, 9.7 s 189 .... 8.25, 10.3 s 196 .... 8.25, 10.3 s 198 ....

8.2~,

10.3

Ministers of State Act 1952 ... . 4.13 National Parks and Wildlife Conservation Act 1975 .... 3.8, 8.16 National Security Act 1939-1940 .... 10.35 National Security (Subversive Associations) Regulations .... 10.35 Nationality Act 1920 .... 3.7 xxiii

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Native Title Act 1993 .... 3. 9 s 223 .... 3.9 Northern Territory Acceptance Act 1910 .... 10.36 Northern Territory Administration Act 191 0 .... 10.36 Northern Territory National Emergency Response Act 2007 s 31 .... 1 0.14 s3S .... 10.14 Parliamentary Commission of Inquiry Act 1986 .... 4.1S Parliamentary Papers Act 1908 .... 4.4 Parliamentary Privileges Act 1987 .... 4.4 Parliamentary Procedures Broadcasting Act 1946 .... 4.4 Petroleum (Austral ia-lndonesia Zone of Cooperation) Act 1990 .... 8.6 Plant Variety Rights Act 1987 .... 4.11

Tax Bonus for Working Australians Act (No 2) 2009 .... 8.22 Telecommunications (Interception) Act 1979 .... 4.18 Tobacco Plain Packaging Act 2011 .... 10.1 S Trade Practices Act 196S .... 7.2 Trade Practices Act 1974 .... 6.S, 7.2, 10.13 s4SD .... 7.2 Transport Workers Act .... 7.3 Workplace Relations Amendment (Work Choices) Act 200S .... 7.2 World Heritage Properties Conservation Act 1983 .... 3 .8, 8.16, 8.18

Australian Capital Territory Human Rights Act 2004 .... 10.2 Marriage Equality (Same Sex) Act 2013 .... 6.13

Racial Discrimination Act 197S .... 1.12,3.8,3.9,8.lS, 10.2 Senate (Representation ofTerritories) Act 1973 .... S.16 Sex Discrimination Act 1984 .... 10.2 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 .... 6.11 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 .... 6.11

Legal Profession Amendment (Personal Injury Advertising) Regulation 2003 .... 6.S Liquor Act 1898 .... 9.11 Workers' Compensation Act 1'926 .... 6.S World Youth Day Act 2006 .... 10.4 s 58 .... 10.4 cl 7(1 )(b) .... 10.4

Northern Territory Aboriginals Ordinance 1918 .... 3.11, 10.36

Queensland Aborigines Act 1971 .... 3.11 Constitution Act .... 6.9 Constitution of Queensland Act 2001 .... 6.1 preamble .... 3.13 s3A .... 3.13 The Land Act 1910 .... 3.9

Anti-Discrimination Act 1977

Motor Vehicles Insurance Act 1936

s 49K(1) .... 6.S Business Franchise Licences (Tobacco) Act 1987 .... 9.14 Constitution Act 1902 s2 .... 3.13

Responsibilities Act 2006 .... 10.2 Constitution Act 197 S .... 6.1 s1A .... 3.13 s 66 .... 6.2 Equal Opportunity Act 1977 .... 5.34 Milk Board Act 1933 .... 9.13

Western Australia Electoral Distribution Act 1947 .... 6.9

Imperial Australian Constitution Act (No 1) 1842 .... 6.1 Australian Constitution Act (No 2) 1850 .... 3.4, 6.1 Colonial Boundaries Act 1895 .... 1.18 Colonial Laws Validity Act 1865 .... 6.1, 6.3, 6.8 s 5 .... 6.1, 6.9

s 20 .... 10.40

Constitution Act 185S (New South Wales) .... 6.1

South Australia

Constitution Act 1856 (SA) .... 6.1

Constitution Act 1934 s 28A .... 6.2

Constitution Act 185S (Tasmania) .... 6.1

s 41 .... 6.2

Constitution Act 185S (Vic) .... 6.1

Serious and Organised Crime

s s .... 6.S s SA .... 6.2 s SB .... 6.2

Tasmania

Imperial Courts Act 1828 .... 3.3

s 7A .... 6.1, 6.9

Gordon River Hydro-Electric Power

Sale of Waste Lands Act 1842 .... 3.9

(Control) Act 2008 .... 4.15

Development Act 1982 .... 3 .8, 8.16

xx iv

Charter of Human Rights and

World Youth Day Regulations

New South Wales .... 6.5

Victoria

Federal Council of Australasia Act 1885 .... 1.18

Victorian Constitution Act 1855 .... 6.1 xxv

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Western Australia Constitution Act 1890 .... 6.1

New Zealand Treaty of Waitangi 1837 .... 1.3

International

United Kingdom

Convention on the Elimination of Racial Discrimination .... 1 .12

Australia Act 1986 .... 2.10, 6.8

International Covenant on the Rights of Indigenous Peoples .... 11.8

British North America Act 1867

International Convention on the Elimination of all Forms of Racial Discrimination .... 3.8, 8.15

Commonwealth Constitution Act

UN Convention on the Rights of the

Statute of Westminster 1931 .... 1 .7,

Child .... 8.2

Bill of Rights 1689 .... 3.6

.... 1.4 1900 .... 2.10, 5.2 Habeas Corpus Act 1679 .... 3.6 2.10

UN Convention on World Heritage

.... 1.13 UN ESCO Convention for the Protection of the World Cultural and National Heritage 1972 .... 3.8, 8.16, 8.18

xxvi

United States of America Constitution .... 2.12 Bill of Rights .... 10.1 First Amendment .... 10.56

CHAPTER 1

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

INTRODUCTION 1.1

The first thing tQ.,say about Australian Cons.tit~tion~I L~w is th.at to study the Commonwealth Constitution (CC) in 1solat1on is to gain an extremely misleading picture of Australia's system of government'. In order to understand the CC and the system it regulates, you must first understand the context in which it was created and second, the way in which it has been interpreted and applied in practice. This book assists with both these challenges. Part I examines some major topics in Australian constitutionalism . Chapter 1 explains the context in which the CC was created and

also looks at its role in political life, then gives a guided tour of the CC text. Chapter 2 examines some of the theories on which the CC has been based and which have been used in its interpretation. Chapter 3 looks at the legal foundations of the Australian state and its relationship with Indigenous people. Chapter 4 examines the differe~t branches of government, legislature, executive and judiciary, their powers, their separation, and their interaction. Chapter 5 examin~s federalism, perhaps the most important principle on which the CC is based, dividing power between the Commonwealth and the States. Chapter 6 then examines State constitutions, a compulsory part of t~e

Australian Constitutional Law curriculum and a necessary element in understanding the Australian system of government. Part II examines some specific topics in Australian federal constitutional law. Chapter 7 examines the Trade, Commerce, Corporations and Industrial Relations powers. Chapter 8 examines. the External Affairs and International Law Debates. Chapter 9 examines Commonwealth fiscal powers, which have had such a significant effect on the shape of the federation . Chapter 10 examines the rights and freedoms, both expressed and found to be implied in the CC and considers whether these need to be enhanced. Finally, Chapter 11 looks at the processes for amendment and reform, how these have worked in the past, and how they might work in future. The book is primarily intended as a tool for students to help in passing the compulsory Federal and State Constitutional Law subjects, but it is hoped that the book is also useful as an introduction to the

2

Australian constitutional system of government for the general reader. The law is as stated on 30 June 2014.

CONTEXT Australi a was settled by Aboriginal people at least 40,000 years ago. Spani sh, Dutch and Portuguese adventurers knew of the 'Great South Land' but their governments made no effort to colon ise it. The Dutch named it 'New Holland'. In 1770, the voyage of Captain James Cook of the British Royal Navy mapped much of eastern Austra lia, named it New South Wales, and claimed it for King George. Brita in's loss of its American coloni es in 1776 led to the need to find a new place to ship convicts. In 1788, the 'First Fleet' under Captain Arthur Phillip RN arrived to establish New South Wales as a penal colony. Although Phillip was instructed to take possession of the land 'with the consent of the natives', he seems to have made no particular effort to obtain such consent. The land was claimed in the name of the British king without much heed being paid to legal niceties. W hen it became necessary to provide a legal basis for coloni sation, the concept of terra nul/ius ('land of no one') was relied upon. These issues are as discussed further in Chapter 3.

1.2

The arrival of free settlers caused the evolution of a system of civil law and agitati on for self-government. Due to uncertainty about how much English law applied, English law was fo rmall y ' received' into NSW in 1828. In 1836, South Australia was settled as a free colony. Van Diemen's Land became a separate colony in 1824. It obtained respon sible government and was renamed Tasman ia in 1856. Western Australia was established in 1829 and granted responsible government in 1890. The ' Port Phillip District' of NSW, settled from the 1830s, separated from NSW in 1851 as Victoria. Soon after, NSW, Victoria

1.3

and South Au stra lia were granted 'responsible government' by London. Queensland separated from NSW in 1859. In 1837, the British concluded the Treaty of Waitangi with the Maori of New Zealand. Although there were subsequently wars between the Maori and British settlers, the Treaty has remained as a resource for claims of Maori rights. There is no equivalent document in Austra lia. The possibilities of a treaty are considered in Chapter 3. 3

C HAPTER 1 • CONSTITUTIO NAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

1.4

The British had created a confederation of Canadian provinces in 1867 via the British North America Act. They were keen to see the Australian colonies federat;but the Australian colonies were in no such hurry. Gold made Victori a enormously wea lthy and when the gold started to run out, Victori a established manufactu ri ng industri es that it wanted to protect, even from the other colo nies. New South Wales remained a believer in free trade. The smaller co lon ies w ere wary of being overborne by the larger. It was not until the economic crisis of the 1890s that the colonies began serious attempts to federate. Conventions in 1890 and 1891 were inconclusive but provided a draft which was a strong basis for renewed discussions in 1897 and 1898. After a draft was accepted by referenda in all the Au stralian co lonies, it was taken to London for the approval of the British government and enactment as an act of the British parliament. The British insisted on some changes, especially retention of appeals to the Privy Council in London, and the bill was passed in 1900, coming into effect as the Commonwealth of Australia Constitution Act 1900 (Imp) on 1 January 1901 .

1.5

The nature of this new 'Commonwealth' is someth ing of a mystery. It was still part of the British Empire and was designated a 'Dominion' . When Britain declared war on Germany in 1914, Au stralia regarded itself as automatically also at war. The Commonwealth had been given power over defence and had created the Royal Australian Navy in 1913. The mobilisation for war prov ided extensive scope for the exercise of Commonwealth power. The Australian troops were initially part of the Australia an d New Zealand Army Corps ('ANZAC') and later became the Australian Imperial Force (AI F). Although under the British High Command, the Australian forces had their own generals. At the Versailles peace conference at the en d of the war, the Australian Prime Minister, Billy Hughes, insisted that Au stralia must have its own seat. Australia had come closer to nationhood through war.

1.6

1

It is perhaps no coin cidence that the Engineers' Case (1920) came just after the war. Decided by a High Court, the majority of which had not been involved in drafting the CC, it marked a new era in 1 Amalgamated

Society of Engineers v Adelaide Steamship Co Ltd (192 0) 28 CLR 129.

constitutional interpretation. In the early years, the High Court judges, all of whom had been involved in drafting the CC, had interpreted it as though guarantees of immunity for the States (as the colonies had now become within the federation) from Commonwealth laws were implied (see further Chapter 5). Engineers swept away that interpretation but replaced it with the argument that the Constitution should be read as a simple statute. Engineers remains good law today. It opened the way to an expansive interpretation of Commonwealth powers which has tilted the balance of the federation decisively in the Commonwealth's favour. During the 1920s, several conferences explored the status of the Dominions. The Dominions wanted equal status with the mother country and some even called for an Imperial Federation, but nothing came of this proposal. Instead, the British Parliament passed the Statute of Westminster (1931) providing that Britain would only legislate for the Dominions at their request. By now, the world was in the grip of the Great Depression. Australia tested its new freedom by asking that an Australian, Sir Isaac Isaacs, constitutional founding father and then High Court Chief Justice, be appointed Governor-General. After some hesitation, Britain agreed. Australia did not immediately adopt the Statute of Westminster. When Britain declared war on Germany and

1.7

Japan in 1939, Australi a again regarded itself as automatically at war. Australian troops embarked for the Middle East, but when the Japanese took Singapore in 1942, Australia brought these troops home to defend Australia. Australia adopted the Statute of Westminster and turned to the United States for defence. Ironically, this was the moment Australia became an independent state. The Commonwealth seized control of the States' income tax collection during the war and has never given it back (see Chapter 9). At the end of the Second World War, although still a loyal part of the Empire, Australia faced up to being an independent state and enacted a Citizenship Act (1948). It also signed the ANZUS defence treaty with the United States and New Zealand. A Labor government tried to nationalise banks, but the High Court and the Privy Council in London, still Australia's highest court of appeal in some matters, held this to be contrary to s 92 (see Chapter 7) . The Chifley Labor government

1.8

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXJSNEXJS STUDY GUIDE • CONSTITUTIONAL LAW

1975 saw th e greatest constitutional crisis Austra lia has yet faced. The Whitl am Government was by now very unpopu lar and the opposition tried to force an election. It had the numbers in the Senate to block any bill and dec ided to block the Supply bills which provided the money for government to function. When the Government refused to resign, the Governor-General intervened, invoking his literal power under the CC s 64 to dism iss the Prime Minister and appoint the Leader of the Opposition, Malcolm Fraser, in his stead. The Supply bills were then passed and the Parliament dissolved. Fraser won the ensuing election decisively but many were angry at this breach of convention which demonstrated that the Governor-General could intervene in politics.

1.11

1977 sawthepassageofthreeconstitutional amen dments by referendum, always a remarkable event. These included provision for federal judges to retire at 70 instead of having life tenure and a codification of the convention that Senate vacancies be filled by a member of the same party as the forme r Senator (see further Chapter 11 ). Australia had acceded to the Convention on the Elimination of Racial D iscrimination and had implemented it in Australian law through the Rac ial Di scrimination Act 1974 (Cth). In the early 1980s, the Queensland government refused to allow an Aboriginal group to take up a large land holding. The Abori ginal group sued the Queensland Premier under the RDA and the High Court held in Koowarta v Bjelke-Petersen 3 that the RDA was a val id law and that Queensland was in breach of it. The 'race power' s 51 (xxvi ) was not sufficient but the 'external affa irs' powers 51 (xxix) was. (See further Chapter 3).

1.12

In 1983, the Hawke Labor Government came to power and pledged to stop a hydro-electric dam being built in Tasman ia. It us~d another UN Convention on 'World Heritage' to have the area listed for protection then legislated to protect it. The High Court held by 4:3 that this was a valid exercise of the 'external affairs' power and the dam was stopped .4 The High Court also held that it was possible to stop the dam using the 'Corporations power' (s 51 (xx)) to regu late the Hydro-Electric Commi ssion, the arm of the Tasmanian Government which was to

1.13

was swept from power in 1949 and Robert Menzies, leading the new Liberal Party, started what became a 17-year period as Prime Minister. With half of Europe now communist, there was widespread fear of communism in Australia. Menzies obtained passage of an Act banning the Communist Party. The Leader of the Opposition, H.V. Evatt, led the case before the High Court that this Act was unconstitutional. In the Communist Party case, the High Court agreed by a majority that it breached the separation of powers (see Chapter 4). Menzies then arranged a referendum to amend the CC to make the ban legal, but this referendum was defeated (see Chapter 11 ).

1.9

1.10

In 1956, the High Court confirmed its emphasis on the separation of powers in the Boilermakers' case holding that only a court can exercise 2 judicial power and that a court can exercise only judicial power. The hybrid Arbitration Court was thus unconstitutional and had to be split into an Arbitration Commission and an Industrial Court. Menzies finally retired in 1966, but his successor, Harold Holt, drowned the following year. Senator John Gorton was chosen by the Liberal Party to replace him but by convention the Prime Minister sits in the House of Representatives, so Gorton stood in Holt's seat of Higgins and moved into the Lower House. 1967 also saw the passage of a referendum giving the Commonwealth power to legislate for Indigenous people. Before this amendment, Indigenous people had been under State control except in the Northern Territory. (See further Chapter 3). In 1972, Labor under Gough Whitlam was elected to power. After 23 years in opposition, Labor was in a hurry to do many things including constitutional reform . A 1974 referendum to give the Commonwealth power over prices and incomes was defeated. The same year, a double dissolution of the Commonwealth Parliament under Section 57 was held and after an election at which Labor was returned with a reduced majority, the only joint sitting ever held in Australian constitutional history passed several bills into law. The High Court held in the Territor y Senators' cases that the territories cou Id be represented by Senators. (See further Chapter 4).

3

2

6

R v Kirby; ex p arte Boilerm akers' Society of Australia (1 956) 94 CLR 254.

4

Koowarta v Bjelke-Petersen (1 982) 153 CLR 168. Commo nwea lth v Tasmania (1983) 158 CLR 1.

7

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

build the dam (see fu rther Chapter 7). In 1984, two referenda were put, one on simultaneou s elections, the other on exchange of powers, but both were un uccessful (see Chapter 11 ). High Court Justice Lionel Murphy was accused of trying to improperly influence a magistrate and the Parliament tried several ways to determ ine 'proved misbehaviour' under CC s 72. Murphy died in 1986 before his ' misbehaviour' had been proved. In 1986, the Commonwea lth, Britain and the States passed the Australia Acts making it clea r that Au stra lia was now a fully independent country. 1.14

In 1988, the Hawke Government put three refere nda to the people on Senate terms and rights and lost all th ree. Also in 1988, the High Court in Cole v Whitfield5 handed down a unanimous judgment on the meaning of s 92 . In 1990, the High Cou rt hel d that the Commonwealth cou Id not enact a comprehensive Corporations Act as the 'Corporations power' did not include the power to incorporate companies (see further Chapter 7). In 1991 , Hawke was rep laced by Pau l Keating who took steps to try to create a republic. In 1992, the H igh Court handed down two momentous decisions. The ACTV case 6 held that the CC has an implied freedom of political commu nication (see further Chapter 10). Mabo v Queensland (No 2) 7 held that terra nullius was not good law and that Indigenous peop le enjoyed a form of 'native title' if it could be proved and had not been extinguished . This denial of the legality of British settlement did not make the Au stral ian state illegal, but set Indigenous people on many long quests for native title. (See further Chapter 3).

1.15

Keating lost to John Howard and the Liberal/National coalition in 1996 but the momentum fo r a republic referendum cou ld not be stopped . After a Convention in 1998, a referen dum was held in 1999 to consider a republic and a new preamble. Both were defeated, meaning that it is now more than 30 years since the text of the CC was amended (see further Chapter 11 ). Th e repub lic question awa its re-viva I. In 1999, the Howard Government introduced a Goods and Services Tax (GST) which 5

6 7

8

Cole v Whitfield (19 88) 165 CLR 360. Australian Capital Television v Commonwea lth (1992) 177 CLR 106. M abo v Queensland (No2) (1992) 1 75 CLR 1.

is distributed almost entirely to the States but is still a Commonwealth tax. This has reduced the incentive for the States to impose excises masquerading as 'licence fees' (see Chapter 9). The previous Labor Government had adopted the pol icy of mandatory detention of asylum seekers. The Howard Government intensified this policy and made border security a major part of its platform. The High Court in Al-Kateb v Godwin 8 held that indefinite detention of an alien is lawful (see Chapter 8). In 2005, the Coalition gained control of the Senate and passed its 'Work ·choices' legislation. This was upheld by the High Court in 2006 9, meaning that the 'Corporations power' had been stretched very wide indeed. Howard then lost office in 2007 including losing his own seat (the first PM to do so since 1929). The new Labor Prime Minister, Kevin Rudd, put a republic back on the agenda. He also encouraged the States to work with the Commonwealth the model of co-operative federalism (see further Chapter 5). Rudd proposed the establishment of an emissions trading scheme and a new tax on mining, but lost the support of his party and was replaced by Julia Gillard in June 2010. At the ensuing election, Labor lost its majority and the House of Representatives was 'hung' for the first time since 1941 . Negotiations with the four Independent and one Green member led to all but one agreeing to support the continuation of a Labor government. In June 2013 , Gillard was replaced by Rudd, but Labor still lost the election in September decisively to a coalition led by Tony Abbott. A casualty of the election date being moved forward by a week was a proposed referendum to enable the Commonwealth to fund local government directly. (See further Chapter 11 ). Abbott has not proposed any constitutional change, but has proposed to hand some functions back to the States. One matter in which the Gillard and Abbott governments have both lost cases is the constitutionality

1.16

of the Commonwealth funding of chaplains in State schools. (See further Chapter 4). Abbott has also continued successive governments' attempts to prevent asylum seekers who come by boat from entering Australia. (See further Chapter 8). 8 9

Al-Kateb v Godwin (2004) 219 CLR 562. NSW v Commonwealth (W orkChoi ces case) (2 006) 229 CLR 1.

9

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

1.17

This survey of Australian constitutional history has sought to place the Commonwealth Constitution in context. It was meant to be a minimal Commonwealth enabling the Colonies/States to continue to function much as before, but history saw it develop in a very different direction. High Court interpretation (see Chapter 2) has played a pivotal role in constitutional development while there has been hardly any amendment (see Chapter 11 ). The successful annexation of most sources of revenue by the Commonwealth, together with the power to impose any conditions it likes on grants to the States under s 96 have tilted the federal balance decisively in the Commonwealth's favour (see Chapter 9). However, the States remain responsible for the provision of education, hospitals, roads, public transport and policing so they are by no means dead (see Chapter 5). While the Commonwealth has more power than the Founding Fathers intended, the Constitution still places limits on it. We can see how the Constitution is woven through Australian history, sometimes lying idle, at other times leaping to

United Kingdom of Great Britain and Ireland, and under the Constitution hereby established : And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: 2 Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: The above three paragraphs are the preamble, not part of the Constitution's text. In 1999, a new preamble was proposed, but was rejected in a referendum at the same time as the republic referendum. The preamble explains why the Act is being made. The third paragraph describes the British Parliament. 1.

This Act may be cited as the Commonwealth of Australia Constitution

Act. 2.

The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

3.

prominence.

It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein

The Constitution does not embody a coherent theory of government. Chapter 2 will examine several theories which can be argued to underpin the Constitution and some which have been developed since

appointed, not being later that one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western

it has come into operation .

Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the

1.18

A GUIDED TOUR OF THE COMMONWEALTH CONSTITUTION

Commonwealth.

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT

4.

An Act to constitute the Commonwealth of Australia

The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed . But the Parliaments of the several colon i~s may at

(An Act of the Imperial/British Parliament) [9th July 1900] [date received Royal assent ; came into effect on 1 January

any time after the passing of this Act make any such laws, to c ome into operation on the day so appointed , as they might

1901]

have made of the Constitution had taken effect at the passing of

Whereas the people of New South Wales, Victoria, South Australia, Queensland ,

this Act.

and Tasmania,1 humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the 2

1

10

Western Australia agreed to join in 1900 and thus became an original State.

New Zealand was a possible candidate but decided not to join . The Northern Territory rejected statehood in a referendum In 1998. Thus there remain the six original States.

11

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

The Constitution 5.

This Act, and all laws made by the Parliament of the Commonwealth under t.be Constitution, shall be binding on the courts, judges, and

This Constitution is divided as follows:

people of every State and of every part of the Commonwealth,

Chapter I - The Par Iiament:

notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be In force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth. 6.

'The Commonwealth' shall mean the Commonwealth of Australia as established under this Act.

1.19

Part I - General Part II - The Senate Part 111 - The House of Representatives Part IV - Both Houses of the Parliament Part V - Powers of the Government.

'The States' shall mean such of the colonies of New South Wales,

Chapter II - The Executive Government

New Zealand, Queensland, Tasmania, Victoria, Western Australia,

Chapter Ill - The Judicature

and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth,

Chapter IV - Finance and Trade

and such colonies or territories as may be admitted into or

Chapter V - The States

established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called 'a State'.

7.

'Original States' shall mean such States as are parts of the

Chapter VII - Miscellaneous

Commonwealth at its establishment

Chapter VIII - Alteration of the Constitution:

The Federal Council of Australasia Act, 1885, Is hereby repealed, but so as not to affect any laws passed by the Federal Council of

The Schedule.

Australasia and in force at the establishment of the Commonwealth.

Chapter I - The Parliament

Any such law may be repealed as to any State by the Parliament

This is by far the longest Chapter. The Constitution is mainly about creating a new level of government for Australia with restricted powers.

of the Commonwealth, or as to any colony not being a State by the Parliament thereof. 8.

Chapter VI - New States

After the passing of this Act the Colonial Boundaries Act, 1895,

Part I - General

1.

shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a

a Senate, and a House of Representatives, and which is herein-after called 'The Parliament,' or 'The Parliament of the Commonwealth.' •

self-governing colony for the purposes of that Act. 9.

The Constitution of the Commonwealth shall be as follows:

The above nine clauses are the 'covering clauses'. The Constitution is contained in s 9 of the Act.

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen,

Note that the Queen is part of the Parliament but is represented by the Governor-General.

2.

A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

12

13

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

This makes it clear that the Governor-General is the Queen's representative, not Head of State in their own right. Governors-General are appointed by Letters Patent fromthe Queen. Since 1931, the nominee of the Australian Prime Minister has been appointed. 3.

There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament

Part II - The Senate Query why the Senate is mentioned first when the House of Representatives is more numerous and where government is formed. The Senate is known as the 'Upper House' and the House of Representatives the 'Lower House' but this is for historic reasons and convenience and does not reflect their relative importance. 7.

directly chosen by the people of the State, voting, until the

otherwise provides, shall be ten thousand pounds. The salary of the Governor-General shall not be altered during his continuance in office.

Parliament otherwise provides, as one electorate. Compare s 122 on the representation of the Territories - a clear contradiction. But until the Parliament of the Commonwealth otherwise

As at 30 June 2014, the salary is over $400,000. It is important that it does not change to ensure the Governor-General's independence.

provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State

4. The provisions of this Constitution relating to the Governor-

into divisions and determining the number of senators to

General extend and apply to the Governor-General for the

be chosen for each division, and in the absence of such

time being, or such person as the Queen may appoint to

provision the State shall be one electorate.

administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from

5.

Queensland never did divide itself.

the Commonwealth in respect of any other office during

Until the Parliament otherwise provides there shall be six

his administration of the Government of the Commonwealth.

senators for each Original State. The Parliament may make

The Governor-General may appoint such times for holding

laws increasing or diminishing the number of senators for

the sessions of the Parliament as he thinks fit, and may also

each State, but so that equal representation of the several

from time to time, by Proclamation or otherwise, prorogue

Original States shall be maintained and that no Original

the Parliament, and may in like manner dissolve the House

State shall have less than six senators. The senators shall be

of Representatives.

chosen for a term of six years, and the names of the senators

After any general election the Par Iiament shall be summoned

chosen for each State shall be certified by the Government

to meet not later than thirty days after the day appointed for

to the Gove'rnor-General.

the return of the writs. The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth. The Governor-General fixes the sessions of Parliament at the Prime Minister's suggestion. Note that the Governor-General may prorogue either house (end a session), but may only dissolve the House of Representatives. Both houses may be dissolved (a 'double dissolution') under s 57 if the necessary conditions exist. 6.

The Senate shall be composed of senators for each State,

There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and

The number of Senators for each original State was increased to 1 O and then 12. 4

8.

The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

Note that the Commonwealth Parliament can regulate who can vote for the Senate - there is no constitutional right to vote.

its first sitting in the next session.

14

15

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

9.

The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State. The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

For convenience, these matters are regulated by the Commonwealth.

10. Until the Parliament otherwise provides, but subject to this constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State. A redundant section as the Commonwealth has thoroughly regulated this area.

11. The Senate may proceed to despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate. No State has ever failed to provide for its representation in the Senate.

12. The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution. 13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shal I become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall be vacant at the expiration of six years from the beginning of their term of service. The election to fill vacant places shall be made within one year before the places are to become vacant. 16

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

For the purpose of this section the term of service of a senator shal I be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election. The classes of Senator are determined by the order of their election. The delay in Senators taking up their seats puts the House and the Senate temporarily even further out of alignment.

14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation. The number of Senators for a State has never been diminished.

15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens. Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognised by a particular political party as being an endorsed candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party. 17

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Where(a) in accordance with the last preceding paragraph, a m~er of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and (b) before taking his seat he cease to be a member of that party (otherwise than by reason of the party having ceased to exist), he shal I be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with 21 of this Constitution . The name of a senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General . If the place of a senator chosen by the people of a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies ) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement. A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies ) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shal I be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

place of the senator chosen by the people of the State had occurred after that commencement. Subject to the next su.cceeding paragraph, a senator holding office at the commencement of the Constitutional Alteration (Casual Senate Vacancies) 1977 w ho w as chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State. If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled 'Constitutional Alteration (Simultaneous

Elections) 19771 came into operation, a senator holding office at the commencement of that law w ho was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shal I be deemed to have been chosen to hold office: (a) if the senator elected by the people of the State had a term of service expiring on the thi rtieth day of June, One thousand nine hundred and seventy-eight until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or (b) if the senator elected by the people of the State had a term of service expiring on the th irtieth day of June, One thousand nine hundred and eighty-one - until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or if there is an earlier dissolution of the Senate, until that dissolution. Section 15 was extensively amended by referendum in 1977 after the Premiers of New South Wales and Queensland, in 1975, failed to follow convention and appointed non-Labor Senators to fill vacancies created by Labor Senators.

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

16. The qualification of a senator shall be the same as those of a member of the House of Representatives.

Note that the Preside~t votes like an ordinary Senator unlike the Speaker of the House of Representatives who has only a casting vote if the vote is tied. Jn the Senate, if the vote is tied, the motion is lost.

17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be to President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President. The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.

24. The House of Representatives sh al I be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in the several States shall be in proportion to the respective members of their people, and shall,

Senate may choose a senator to perform his duties in his

until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

absence.

(i)

18. Before or during any absence of the President, the

19. A senator may by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

20. The place of a senator shall become vacant if for two

A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of senators:

(ii) The number of members to be chosen in each State shall be determined by dividing the number of people

consecutive months of any session of the Parliament he,

of the State, as shown by the latest statistics of the

without the permission of the Senate, fails to attend the

Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota,

Senate.

21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened. 22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers. 23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

20

Part Ill - The House of Representatives

one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State. Members of the House are to be 'directly chosen by the people'. Note that the number of seats for each state is determined by the number of people, not the number of electors. Tasmania would only be entitled to two seats based o~ population but the Constitution guarantees a minimum offive. Combined with an equal nu.mber of Senators to the other States, Tasmania is significantly overrepresented 1n the Commonwealth Parliament. 25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.

21

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • C ONSTITUTIONAL LAW

A relic of Australia's racist past which should be removed. 26. Notwi1b(tanding anything in section twenty-four, ~he number of members to be chosen in each State at the first election shall be as follows: New South Wales- twenty-three; Victoria- twenty; Queensland- eight;

Anoth er dead letter as the Commonwealth Parliament has otherwise provided via the Commonwealth Electoral Act 1918 for single-member electorates. 30. U nti I the Par I iament otherwise provides, the qua I ifi cation of el ectors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more

South Australia- six;

numerous House of Parliament of the State; but in the

Tasmania- five;

choosing of members each elector shall vote onl y once.

Provided that if Western Australia is an Original State, the numbers shall be as follows: New South Wales- twenty-six; Victoria- twenty-three; Queensland- nine; South Australia- seven ; Western Australia- five; Tasmania- five . The numbers are now New South Wales 49, Queensland 29, South Australi a 11 , Tasmania 5, Victoria 3 7 and Western Australia 15, the ACT and Northern Territory 2 each, 150 in total. 27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives. 28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General. The average duration of the House of Representatives since 1945 has been onl y a little over two years. 29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division . A division shall not be formed out of parts of different States.

22

In th e absence of other provision each State shall be one electorate.

Another dead letter - see Commonwealth Electoral Act 1918. 31 . Until the parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being re lating to elections for the more numerous House of th e Pa rliament of the State shall, as nearl y as practicable, appl y to elections in the State of members of the House of Representatives. Another dead letter - see Commonwealth Electoral Act 1918. 32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof. 33. Whenever

a

vacancy

happens

in

the

House

of

Representatives, the Speaker shall issue his writ for the election of a new member, or if the re is no SpeaRer or if he is absent from the Commonwea lth the Governor-General in Cou nci l may issue the writ. 34. Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shal I be as follows: (i)

He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person

23

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

qualifies to become such elector, and must have been for three years at the least a res ident within the limits of the ommonwealth as existing at the time when he was chosen: (ii) He must be a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwea lth, or of a State. The Parliament has otherwise provided - see Commonw ealth Electoral Act 1918.

35. The House of Representatives shall, before proceeding to the despatch of any other busi ness, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.

36. Before 6r duri ng any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence. 37. A member may by w riting add ressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which

C HAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote. Part IV - Both Houses of the Parliament

41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth . This is apparently a dead letter since the decision in Re Pearson; Ex parte Sipka (1983) 152 CLR 254 which held that any such rights were extinguished by the Commonwealth Franchise Act 1902. It seems at odds with s 30 giving the Commonwealth apparently full power over its own franchise, but see also Roach v Electoral Commissioner (2007) 233 CLR 162.

42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution . 43. A member of either House of Parliament shall be incapable of being chosen or of sitting as a member of the other House. 44. Any person who: (i )

there-upon shall become vacant.

38. The place of a member sha ll become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fa ils to attend the House. 39. Until the Parli ament otherwise provides, the presence of at least one-th ird of the w hole number of the members of the House of Representatives sh all be necessary to constitute a meeting of the House fo r the exercise of its powers . The Parliament has otherwise provided - see Standing Orders.

24

Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights & privileges of a subject or citizen of a foreign power; or

(ii)

Is attained of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) Is an undischarged bankrupt or insolvent; or (iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

25

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

(v) Has any direct or indirect pecuniary interest in any

shall, fo r every day on which he so sits, be li able to pay the

agreement with the Public Service of the Commonwealth

sum of one hundred pounds to any person w ho sues for it in any court of competent jurisdiction.

otnerwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

Th e Parli ament has otherwise provided in the Com mon Inform ers Act 1975.

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But

47. Until the Parliament otherwise provides, any question

sub section (iv) does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of

House or Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed

any of the Queen 's J\1inisters for a State, or to the receipt of

election to either House, shall be determ ined by the House in wh ich the question arises.

pay, half pay, or a pension, by any person as an officer or member of the Queen 's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth . Paragraph (i) has caused the most trouble as some persons elected to th e Parliament have been unaware of the requirement or indeed unaware that they still possessed a foreign citizenship - see Sykes v Cleary (No 2) (1992) 176 CLR 77 and Sue v Hill (1999) 199 CLR 462. Paragraph (iv) has also caused trouble (see Sykes v Cleary) . Paragraph (v) has also been an issue: (In Re Webster (1975) 132 CLR 270).

45. If a senator or member of the House of Representatives: (i)

Becomes subject to any of the disabilities mentioned in the last preceding section: or

(ii) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or (iii) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State; his place shall thereupon' become vacant. 46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives

respecti ng the qualification of a senator or member of the

The Parliament has otherwise provided.

48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an all owance of four hundred pou nds a year, to be reckoned from the day on which he takes his seat. The Parliament has otherwise provided. Parliamentary salari es and allowances are now significantly higher!

49. The powers, privileges, and immunities of th e Senate and of the House of Representatives, and of the members and the committees of each House, shal l be such as are declared by the Parliament, and until declared sha ll be those of the Commons House of Parliament of the Un ited Kingdom, and of its members and committees, at the establishment of the Commonwealth. Although the Parliament has provided for its privileges, it has stayed very close to the privileges of the House of Commons as at 1901.

50. Each House of the Parliament may make rules and orders with respect to: (i)

the mode in which its powers, privi leges, and immunities may be exercised and upheld;

(ii)

the order and conduct of its business and proceedings either separately or jointly with the other House.

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Part V - Powers of the Parliament

(xv)

Weights and measures;

[Section 51 is annotated in Chapter 4 - 4.10)

(xvi)

Bills of exchanging and promissory notes;

(xvii)

Bankruptcy and insolvency;

(xviii)

Copyrights, patents of inventions and designs, and trade marks;

Trade and commerce with other countries, and

(xix)

Naturalisation and aliens;

among the States;

(xx)

Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

(xxi)

Marriage;

(xx ii)

Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

(xx iii)

Invalid and old-age pensions;

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) (ii)

Taxation; but so as not to discriminate between States or parts of States;

(iii)

Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

(iv)

Borrowing money on the public credit of the Commonwealth;

(v)

Postal, telegraphic, telephonic, and other Iike services;

(vi)

The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the

(xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances;

Commonwealth; (vii)

Lighthouses, lightships, beacons and buoys;

(viii)

Astronomical and meteorological observations;

(ix)

Quarantine;

(x)

Fisheries in Australian waters beyond territorial

(xx iv)

The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States·

(xxv)

The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; •

(xxvi)

The people of any race, for whom it is deemed necessary to make special laws;

(xxvii)

Immigration and emigration;

the issue of paper money;

(xxviii)

The influx of criminals;

Insurance, other than State insurance; also State insurance extending beyond the limits of the State

(xx ix)

External Affairs;

(xxx)

The relations of the Commonwealth with the islands of the Pacific;

limits; (xi)

Census and statistics;

(xii)

Currency, coinage, and legal tender;

(xiii)

Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and

(xiv)

concerned;

'

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LEXISNEXIS STUDY GUIDE• CONSTITUTIONAL LAW

(xxxi)

(xxxii )

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; The control of railways with respect to transport for the naval and military purposes of the

(i)

Th e seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;

Commonwealth;

(ii)

Matters relating to any department of the public service the control of which is by this Constitution tra nsferred to the Executive Government or the Commonwealth;

(iii)

Other matters declared by this Constitution to be within the exclusive power of the Parliament.

(xxxiii )

The acquisition, with the consent of a State, of any rai Iways of the State on terms arranged between the Commonwealth and the State;

(xxxiv)

Railway construction and extension in any State with the consent of that State;

(xxxv)

Conci Iiation and arbitration for the prevention and settlement of industrial disputes _extending beyond the limits of any one State;

(xxxvi )

Matters in respect of which this Constitution makes provision until the Parliament otherwise provides;

(xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii ) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix)

30

52. The Parliament shall, subject to this Constitution, have exclu sive power to make laws for the peace, order, and good government of the Commonwealth with respect to:

Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth .

Note that the powe rs ins 51 are 'concurrent' - the States can reg'ulate them until the Commonwealth does. Some powers are then expressl y prohibited to th e States, eg s 114 on military forces and s 115 coining money. The matters in s 52 are exclusively within the power of the Commonwealth Parli ament.

53. Proposed laws appropriating revenue or moneys, or imposi ng taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its contain ing provisions for the imposition or appropriation of fin es or other pecuniary penalties, or for the demand or payment or appropriation of fees for Iicences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or bu rden on the people. The Senate may at any stage return to the House of Representatives any proposed law w hich the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therei n. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. 31

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C HAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

Except as provided in this section, the Senate shall have

have been made, suggested, or agreed to by the Senate,

equal power w ith the House of Representatives in respect

and the Senate rejects or fails to pass it, or passes it with

of all pr posed laws.

amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution

One may wonder at the rationale for this section . The S~n ate may not be abl~ to originate or amend such bills but it can reject them. Given tha~ the Senate, like the House of Representati ves, is an elected house, w hy should 1t not have e~u a l powers in all areas? If it is less legitimate than the House of Representatives, why does it have almost equal power?

54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation . This section prevents 'tacking' of other measures onto an appropriation bill.

55. Laws imposing taxation shall deal onl y w ith the imposition of taxation, an d any provision therein dealing with any

shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fai Is to pass it, or passes it with amendments to which the House of Representatives

other matter shall be of no effect.

will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.

Laws imposing taxation except laws imposing duties of customs or of excise, shall deal with on e subject of taxation

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed

only; but laws impos ing duties of custo ms shall deal with duties of custo ms only, and law s imposing duties of excise

by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are

shall deal with duties of exci se onl y. This provision also prevents tacking. Determin ing su bjects of taxation has not proved easy. See further Chapter 9 .

56. A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the

affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shal I be taken to have been carried, and if the proposed law, with

purpose of the appropriation has in the same session been recommended by message of the Governor-General to the

the amendments, if any, so carried is affirm~d by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been

House in which the proposal ori ginated.

duly passed by both Houses of the Parliament, and shall be

This means that onl y th e executive ca n ori gin ate appropriation bill.s. ~t relies on the convention that the Governor-General acts on the executives advice.

57. If the House of representatives passes any proposed law, and the Senate rejects or fai ls to pass it, or passes it with amendments to which the House of Representatives will not

presented to the Governor-General for the Queen's assent. This is one of the CC's most complicated sections. It has been used six times to obtain a double dissolution but only once, in 1974, has a joint sitting been held. One piece of legislation passed at that sitting was subsequently found not to have satisfied the s 57 requirements: Victoria v Cth (PMA Case) (1975) 134 CLR 81.

agree, and if after an interval of three months the House of

58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for

Representatives, in the same or the next session, again passes the proposed law w ith or without any amendments which

the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The GovernorGenera may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation. This is a dead letter but reflects the time when the Governor-General was more the agent of the British government than today. 59. The Queen may disallow any law within one year from

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

Although this body exists as the formal gathering of Governor-General and Ministers to transact executive business, there is no mention of the far more important institution - the cabinet. The statement that members hold office at the Governor-General's pleasure makes no mention of responsible government. It was taken literally by the Governor-General Sir John Kerr in 1975 - see 4.13. 63. The provisions of this Constitution referring to the GovernorGeneral in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

being made known by the Governor-General by speech

This begs the question as to on whose advice the Governor-General is to act in matters where the CC does not specify that the Governor-General is to act in Council.

or message to each of the Houses of the Parliament, or by

64. The Governor-General may appoint officers to administer

Proclamation, shall annul the law from the day when the

such departments of State of the Commonwealth as the

disallowance is so made known.

Governor-General in Council may establish.

the Governor-General's assent, and such disallowance on

This is another dead letter that has never been used and should be removed.

Such officers shall hold office during the pleasure of the

60. A proposed law reserved for the Queen's pleasure shall not

Governor-General. They shall be members of the Federal

have any force unless and until within two years from the

Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

day on which it was presented to the Governor-General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent. See comment on s 58. Section 60 is also a dead letter.

Chapter II - The Executive Government 61. The executive power of the Commonwealth is vested in the

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. Here Iies a small hint that the Commonwealth is to have responsible government. In reality it is extremely rare for a minister to be appointed who is not yet a member of Parliament.

Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. This section begs the question of the nature and scope of Commonwealth executive power. See further Chapter 4.

65. Until the Parliament otherwise provides, the Ministers of the State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-Genera l directs. The Parliament has otherwise provided. There are over 20 ministers.

62. There shall be a Federal Executive Council to advise the

66. There shall be payable to the Queen, out of the Consolidated

Governor-General in the government of the Commonwealth,

Revenue Fund of the Commonwealth, for the salaries of the

and the members of the Council shall be chosen and

Ministers of State, an annual sum which, until the Parliament

summoned by the Governor-General and sworn as Executive

otherwise provides, shall not exceed twelve thousand pounds a year.

Councillors, and shall hold office during his pleasure.

C HAPTER 1 • CONSTITUTIONAL LAW JN CONTEXT

LEXISNEXIS STUDY GUIDE • C ONSTITUTIONAL LAW

The Parliament has otherwise provided.

67. Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of

in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.

Chapter Ill - The Judicature

the Commonwealth shall be vested in the Governor-General in

71. The judicial power of the Commonwealth shall be vested in a

Council, unless the appointment is delegated by the Governor-

Federal Supreme Court, to be called the High Court of Australia,

General in Counci l or by a law of the Commonwealth to some

and in such other federal courts as the Parliament creates, and

other authority.

in such other courts as it invests with federal jurisdiction. The

There has been a Public Service Commission.

68. The command in chief of the naval and military forces of the Commonwealth is vested in th e Governor-General as the Queen 's representative. This reflects that the Q ueen is the symboli c head of th e armed forces in Britain. In a democracy with responsible government, it is downright misleading. The current Governor-General Sir Peter Cosgrove is the former Chief of Defence.

69. On a date or dates to be procl ai med by the GovernorGeneral after the establishment of the Com monwealth the

High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. The Parliament initially prescribed two puisne High Court Justices. There are now six. The Parliament has created the Federal Court, the Family Court and the Federal Magistrates Court (abolished in 2009) and has vested federal jurisdiction in the State Supreme Courts. As to this Chapter in general, see further Chapter 4 .

72. The Justices of the High Court and of the other courts created by the Parliament: (i)

Shall be appointed by the Governor-General in Council;

(ii)

Shall not be removed except by the Governor-General

following departments of the publi c service in each State shall become transferred to the Commonwea lth:

in Council, on an address from both Houses of the

Posts, telegraphs, and telephones:

Parliament in the same session, praying for such removal

Naval and m ilitary defence:

on the ground of proved misbehaviour or incapacity;

Lighthouses, lightships, beacons, and buoys: Quarantine. But the departments of customs and of excise in each State shall become transferred to the Co mmonwealth on its establishment. The 1942 takeover of the States' income taxing machinery has been the last major Commonwealth takeover of State employees.

(iii)

Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of 70 yaars, and a

70. In respect of matters which, under thi s Constitution, pass

person shall not be appointed as a Justice of the High Court if he has attained that age.

to the Executive Government of the Commonwealth, all

The appointment of a Justice of a court created by the

powers and fu nctions which at the estab lishment of the

Parliament shall be for a term expiring upon his attaining the

Commonwealth are vested in the Govern or of a Colony,

age that is, at the time of his appointment, the maximum age

or in the Governor of a Colony w ith the advice of his

for Justices of that court and a person shall not be appointed

Executive Cou ncil, or in any authori ty of a Colony, shall

as a Justice of such a court if he has attained the age that is

vest in the Governor-General, or in the Governor-General

for the time being the maximum age for Justices of that court.

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • C ONSTITUTIONAL LAW

Subject to this section, the maximum age for Justices of any

(ii)

Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from w hich at the establishment of the Commonwea lth an appeal lies to the Queen in Council;

(iii)

Of the Inter-State Commission, but as to questions of law only;

court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than 70 years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General. Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) Act 1977 affects the continuance of a person in offi ce as a Justice of a court under an appointment made before the commencement of those provisions. A reference in this section to the appointment of a Justice of the H igh Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation .

But no exception or regulation prescribed by the Parli ament shall prevent the High Court from hearing and determining any appeal from the Sup re me Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies fro m su ch Supreme Court to the Queen in Council. Until the Parliament otherwise provides, th e conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appea ls from them to the High Court.

74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the Question is one which ought to be determined by Her Majesty in Council.

A provision extensivel y amended by referendum in 1977 to provide for a retiring age of 70 for federal judges. It is worth noting that the Commonw ealth executive gets to appoint all the judges of the High Court. Judges can onl y be removed for 'proved misbehaviour or incapacity', but there is no furth er guidance as to how this proof is to be obtained. Thi s caused considerabl e difficulty in the case of Justice Lionel Murphy, the only High Court judge to be investigated over allegations of misbehaviour.

The High Court may so certify if satisfied that for any special

73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees,

reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Counc il on the question withou t further leave.

orders, and sentences: (i)

Of any Justice or Justices exercisin g the ori ginal jurisdiction of the High Court;

38

and the judgment of the High Court in all su ch cases shall be final and conclusive.

Except as provided in this section, this Constitution shall not impai r any right which the Queen may be pleased to exerci se by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her M ajesty in 39

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Council. The Parliament may make laws lim iting the matters in which leave may be asked, but proposed laws containing limitations shall be reserved by the Governorany su

(ii)

Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

General for Her Majesty's pleasure.

(iii)

Investing any court of a State with federal jurisdiction .

This was one of the concessions extracted by the British government to enable it to ensure the continuati on of appeals to the Privy Counc il. These were fin all y abolished from all Australian courts in 1983.

75. In all matters: (i)

Arising under any treaty;

(ii)

Affecting consuls or other representatives of other countries;

(iii)

In which the Commonwealth, or a person suing or being sued on beha lf of the Commonwealth, is a party;

(iv) (v)

Between States, or between residents of different States, or between a State and a resident of another State; In wh ich a writ of Mandamus or prohibition or an injunction is sought aga inst an officer of the Commonwea lth;

the High Court shall have original ju risdicti on .

76. The Parliament may make laws conferring original jurisdiction on the High Cou rt in any matter: (i)

Arising under this Constitution, or involving its interpretation;

(ii)

Arising under any laws made by the Parliaments;

(iii)

Of Admiralty and maritime jurisdiction;

(iv)

Relating to the same subject-matter claimed under the laws of different States.

The Parliament has so provided under the Judi cature Act 1903.

77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i)

Defining the jurisdiction of any federal court other than the High Court;

40

C HAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. 79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. This looks like a right to trial by jury but the High Court held in R v Archdall (7928) 41 CLR 128 that there was no obligation on the Commonwealth to provide for crimes to be triable on indictment, thus emptying the provision of its substance. The Commonwealth has however been true to its spirit by providing for serious crimes to be triable on indictment.

Chapter IV - Finance and Trade

81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. As to this Chapter generally, see further Chapter 9.

82. The costs, charges, and expenses incidentto the collection, management, and receipt of the Consolidated Revenue Fund shal I form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth.

83. No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

41

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

A very important principle of responsible government.

But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament. A transitional provision which can be removed.

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

servi ce of the Commonwealth, shall have th e same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth. A transiti onal provision which can be removed.

85. When any department of the public servi ce of a State is transferred to the Commonwealth: (i)

All property of the State of any kind, used exclusively in connection with the department, shall become vested in the Commonwealth; bu t, in the case of the departments controlling customs and excise and bou nties, for such time only as the Governor-General in Council may declare to be necessary;

(ii)

The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connection with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in whi ch the value of land, or of an interest in land, taken by the State for pub Iic purposes is ascertained under the law of the State in force at the establishment of the Commonwealth;

(iii)

The Commonwealth sh al I compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parli ament;

(i v)

The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred .

84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing • rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his servi ce with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public 42

While theoreti call y possible that further departments may be transferred from State to Commonwealth, this seems unlikely.

86. On the establishment of the Commonwealth, the collection and co ntrol of duties of customs and of excise, and the control of the payment of bounties, shal I pass to the Executi ve Government of the Commonwealth . 43

LEXISNEXIS STUDY GUIDE • C ONSTITUTIONAL LAW

87. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provi eiei , of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure. The balance shall, in accordan ce with the Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States ta ken over by the Commonwealth. This was the famous 'Braddon blot', now a dead letter. 88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. 89. Until the imposition of uniform duties of custom: (i)

The Com monwealth shall credit to each State the revenues collected therei n by the Commonwealth;

(ii)

The Commonwealth shall deb it to each State (a) The expenditu re therein of the Commonwealth incurred solely for the maintenance or contin uance, as at the

shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, One thousand eight hundred and ninety eight, and not otherwise. A transitional provision which can be removed.

91. Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, si Iver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods. 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. This little piece of 'layman's language' has been the most litigated section of the Constitution. In its context, clearly intending to prohibit the States from imposing duties on interstate trade, it has been through many interpretations (see further Chapter 7). But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs

of the State, according to the number of its people, in

into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing

The Commonwea lth shall pay to each State month by month the balance (if any) in favour of the State.

90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the produ ction or export of goods, shall become excl usive. A very significant provi sion. Duties of customs are clear enough but the meaning of 'excise' has caused much difficulty as the States have attempted to increase their tax base. See further Chapter 9.

On the imposition of uniform duti es of customs all laws of the several States imposing duties of customs or of excise,

44

or offering bounties on the production or export of goods,

time of transfer, of any department transferred from the State to the Comm onwea lth; (b) The proportion the other expenditure of th e Commonwealth; (iii)

C HAPTER 1 • CONSTITUTIO NAL LAW IN CONTEXT

into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation. A transitional provision which can be removed.

93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides: (i )

The duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

A transitional provision which can be removed.

on goods produced or manufactured in a State and afterwards passing into another State for consumption, S'Rall be taken to have been collected not in the former

96.

the Commonwealth and thereafter un til the Parliament oth erwise provides, the Parliament may grant financial assi stance to any State on such terms and conditions as the Parl iament thinks fit.

but in the latter State; (ii)

Subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to

Parli ament has indeed seen fit to continue this practice and the co-operation of the High Court together with Commonwealth control of the major sources of revenue have enabled the Commonwealth to have a great power of the purse over the States.

the several States as prescribed for the period preceding the imposition of uniform duties of customs. A transitional provision which can be removed.

94. After five years from the imposition of uniform duties of

97.

Unti l the Parliament otherwise provides, the laws in force

customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of

in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of

all surplus revenue of the Commonwealth.

money on account of the Government of the Colony, and the review and audit of such rece ipt and expenditure, shal I

The Commonwealth has managed to avoid having such 'surplus revenue'!

appl y to the receipt of revenue and the expenditure of

95. Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be

money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or

an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally

the Government or an officer of the Commonwealth were menti oned whenever the Colony, or the Government or an officer of the Colony, is mentioned. A transitional provision which can be removed.

imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth .

98. The power of the Parliament to make laws with respect to

But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, two-fifth, and one-fifth of such latter duty, and al I duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth.

46

Du ring a period of ten years after the establishment of

trade and commerce extends to navigation and shipping, and to rai lways the property of any State. S~ rth er Chapter 7. /

99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof. However, this does not affects 96 grants. 100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation . Now an extremely important provision, but the States and Commonwealth have agreed on joint management of the Murray-Darl ing Basin . 47

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

101. There shall be an Inter-State Comm ission, w ith such powers of adjudicati on and adm inistrati on as the Pclrliament dee ~ necessary for the execution an d maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. An Inter-state Commission was created but was deprived of much of its function by the Wheat Case NSW v Cth (1915) 20 CLR 54 ?n ~he .s~pa ration o.f pow.ers. As the Inter-state Commission was unable to exercise JUd 1c1al power, it fell into disuse. See further Chapter 4.

102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrim ination is undue and unreasonable, or unjust to any State; due regard being had to the financial respons ibilities incurred by any State in connection with the constru ction and maintenance of its railways. But no preference or discri mination shall, within the meaning of this secti on, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Com mission. For the reasons set out in the comments on s 101, this provision is presently a dead letter.

103. The members of the Inter-State Commissi on : (i) (ii)

104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States. For the reasons set out in the comments on s 101 , this provision is presentl y a dead letter.

105. The Parliament may take over from the States their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; ad the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable tifthe several States, or if such surplus is insufficient, or A f there is no surp lus, then the deficiency or the whole amount shall be paid by the several States. This provis ion proved particularly significant in the Great Depression when the Commonwealth did take over some State debts.

1OSA. (1) The Commonwealth may make agreements with the

Shall be appointed by the Governor-General in

States with respect to the public debts of the States, including:

Council;

(a) thetakingoverof such debts by the Commonwealth;

Sha II hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session prayin g fo r such removal on the ground of proved misbehaviour or incapacity;

(iii) Shall receive such rem uneration as the Pclrliament may fix; but such remuneration shall not be diminished during their continuance in office. For the reasons set out in the comments on s 101 , this provision is presently a dead letter.

C HAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

(b) the management of such debts;

.

(c) the paying of interest and the provision and management of sinking funds in respect of such debts; (d) the consolidation, renewal, redemption of such debts;

conversion,

and

(e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

(f) the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States. (2) The Parliament may make laws for validating any such agreement made before the commencement of this section. (3) The Parliament may make laws for the carrying out by the parties of any such agreement. (4) Any such agreement may be varied or rescinded by the parties therein. (5) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Par Iiament of the Commonwealth or of any State. (6) The powers conferred by this section shall not be construed as being limited in any way by the provision of section one hundred and five of this Constitution. Significant agreements have been made. See further Chapter 9. Chapter V - The States

106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission of establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. See further Chapter 6. 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

See further Chapter 6.

108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonw ealth shall, subject to this Constitution, continue in force in the State; and, unti l provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repea l in respect of any such law as the Parliament of the Colony had until the Colony became a State. See furth er Chapter 6.

109. Wh en a law of a State is inconsistent w ith a law of the Com monwealth, the latter shall preva il, and the former shall, to the extent of the inconsistency, be invalid. See further Chapters 4, 5, 6 and 7 - a vital provision that has required much interpretation by the High Court.

110. The provisions of this Constitution relati ng to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or admin istrator of the government of the State. 111. The Parl iament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwea lth. South Australia surrendered the Northern Territory to the Commonwealth in 1911. •

112. After uniform duties of customs have been imposed, a State may levy on jriports, or on goods passing into or out of the Stayuch charges as may be necessary for executi ng the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Comm onwealth; and any such inspection laws may be annull ed by the Parliament of the Com monwealth.

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

113. All fermented, distilled, or other intoxicating liquids passing

120. Every State shall make provisions for the detention in its

into any State or remaining therein for use, consumption, sale;'Or storage, shall be subject to the laws of the State as

prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of

if such liquids had been produced in the State.

persons convicted of such offences, and the Parliament of

114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belongi ng to the Commonwealth, not shall the Commonwealth impose any tax on property of any kind

the Commonwealth may make laws to give effect to this provision. This provision has enabled the Commonwealth to avoid building federal prisons.

Chapter VI - New States

belonging to a State.

115. A State shall not coin money, nor make anythi ng but gold and silver coin a legal tender in payment of debts.

116. The Commonwealth shall not make any lawforestablishing any religion, or for imposing any religious observance, or for prohibitin g the free exercise of any re ligion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. One of the few provisions seeming to grant a right or freedom, but the provision has not prevented Commonwealth assistance to religious schools.

121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. There have been no new States admitted under this provision, but the Northern / Territory may seek such admission.

122. The Parliament may make lawy{or the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen

117. A subject of the Queen, resident in any State, shal I not be subject to any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. See Street v Queensland Bar Association (1989) 168 CLR 461. The provision has otherwise not been of much use, though it is necessary. It is another of the very few provisions seeming to grant an individual right.

118. Full faith and credit shall be given, th roughout the Commonwealth to the laws, the public Acts and records, and the judicial proceeding of every State. A necessary measure in a federation.

119. The Commonwealth shall protect every State against the invasion and, on the application of the Executive Government of the State, against domestic violence. The meaning of 'domestic violence' has changed since 1901. There has been sparing use of Commonwealth troops to quell civil unrest.

52

under the authority of an accepted by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. Apparently in direct conflict with s 7 as to representation in the Senate. An extremely broad power even though the Northern Territory and Australian Capital Territory have been granted self-government.

123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. This provision has never been used.

53

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament ther~f, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected . It is remarkable that a new State could be formed by a union of States by a vote of their Parliaments, whereas a change in the borders of a State requires a referendum . Neither of these has occurred.

Chapter VII - Miscellaneous

125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meets at the seat of Government. Thus were Canberra and the Australian Capital Territory envisaged. Thus was an interstate squabble settled.

126. The Queen may authorise the Governor-Genera I to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

54

-

-

CHAPTER 1 • CONSTITUTIONAL LAW IN CONTEXT

Chapter VIII - A lteration of the Constitution

128. Thi s Constitution shall not be altered except in the follow ing manner: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendments to which the first-mentioned House will not agree, and if after an interva l of three months the first-menti oned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment whi ch has been made or agreed to by the other House, and such other House rejects or fai ls to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

55

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the

CHAPTER 2

electms voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent. No alteration diminishing the proportionate representation of any State in either House of the Parl iament, or the minimum number of representatives of a State in the House of Representative, in increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section 'Territory' means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives. A very complicated provision which cou ld be considerably simplified for modern times. Amendments have proved very difficult with only 8 of 44 proposals having been adopted by referendum. However much change has been achieved through High Court interpretation and practice. The reluctance to vote for change seems more due to ignorance than conservatism or deliberation. See further Chapter 11 .

Schedule

OATH

I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors accordi ng to law. SO HELP ME GOD! AFFIRMATION

I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (NOTE - The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.) 56

57

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

INTRODUCTION

Which theory? 2.1

This chapter explores the theory underpinning the Commonwealth Constitution as it presently stands. It does not cover the theory of terra nullius under which Australia was claimed for the British crown in 1788, or theories of Indigenous sovereignty explored in Chapter 3. It also does not explore the theory of Act of State which remains as a theoretical underpinning for the Australian state after the rejection of terra nullius. Nor does it explore possible republican theories of the state discussed in Chapter 11 . Instead, it covers the theories actually drawn on by the framers of the Commonwealth Constitution and the judges who have interpreted it.

Why theory?

2.2

It is not uncommon for students of substantive law disciplines such as constitutional law to ask why they should study the theory if it is only the practical issues encountered in legal practice thatare of any relevance to the law student. Without going into any of the philosophical arguments about how theory informs practice and in particular the practice of law, it may be pointed out here that theory is important to the law student for the obvious reason that certain theoretical ideas, concepts, and principles routinely arise within the practice of constitutional law. So that when we discuss practical issues in constitutional law, we at least need to know what certain theoretical ideas such as' constitutional ism', 'judicial review' or 'original ism' might mean.

What is the Constitution?

2.3

58

Theory also helps us to understand what the Constitution is. Now, it may be objected that it is obvious what the Constitution is in a material sense. That is, the Constitution is a document originally drafted by its framers following various constitutional conventions in the 1890s, and promulgated as an Act of Parliament following popular assent by the Australian people in 1901. However, the Constitution is more than just a material document; it also has a particular meaning that has resulted from an institutionalised process of interpretation . The answer,

CHAPTER 2 • CONSTITUTIONAL THEORY

therefore, to the question: 'What is the Constitution for the purposes of interpretation?' may not be so obvious. There are, however, several broadly accepted sources that may be used as reference points when interpreting the Constitution. Broadly accepted sources for constitutional interpretation include the text of the Constitution itself, the structure of the text, the original meaning or purpose of the text, prior judicial decisions about the meaning of the text and the broader history, or tradition of constitutionalism. In the following section, 'Theoretical Underpinnings', this latter source of constitutional interpretation, the tradition of constitutionalism, is

2.4

discussed with reference to a set of principles that have developed as part of the constitutional tradition and that now characterise, or underpin that tradition. Finally, in the section entitled, 'Methods of Interpretation', methods of interpreting some of the other accepted sources of constitutional law are discussed, in addition to some philosophical problems with methods of interpretation, in particular methods of constitutional interpretation.

THEORETICAL UNDERPINNINGS

Constitutionalism Certain ideas have, over time and in various jurisdictions, attained the status of constitutional principle or convention; ideas that may provide guidance in interpreting constitutions. The Austra lian Constitution can be understood in terms of a hybrid model based on fundamental aspects of the constitutional systems of government of both the United Kingdom and the United States. Australia has adopted from the Ur1ited Kingdom the ideas of representative and responsible government, and from the United States it has borrowed the concepts of federal ism, the separation of powers and judicial review. All of these theoretical concepts have been incorporated into Australia's distinct form of constitutionalism. We can therefore think of these constitutional principles, as a set of argumentative tools that can be used, in addition to the text of the Constitution itself and other relevant legal and historical material, in interpreting the Constitution.

2.5

59

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 2 • CONSTITUTIONAL THEORY

These theoretical assumptions, or principles, that underpin Australia's constitutional system of government can therefore help us to answer the fundamerie:il question posed in the introduction to this chapter: What is the Constitution? Or, more specifically, how is the Constitution to be interpreted in relation to specific cases in order to be faithful to the ideals of Australian constitutional ism? Before attempting to explain some of these principles that underpin Australian constitutional law, I first want to mention an idea that is fundamental to an understanding of Australia's constitutional system of government.

by several influential 17th-century writers including Locke, Hobbes and Rousseau, has been implicitly accepted as fundamental to western constitutionalism. In contrast, the following constitutional principles, which also play an important role within Australian constitutionalism, were deliberately and explicitly adopted by the framers of the Australian Constitution at the end of the 19th century. They were selected from those principles that underpin the constitutional systems of government in the United Kingdom and United States.

Liberalism

Federalism

2.7

Liberalism has been the predominant ideology promoted within modern western democracies. Liberalism places value on individuals being free to engage in whatever personal or political activities they choose, and on limiting government intervention. The concept of liberalism is therefore consistent with constitutional ism and more generally with the rule of law ideal in that liberalism necessarily supports constitutional arrangements that restrict governments from improperly infringing on the liberty of individuals. The broad concept of liberalism is notoriously difficult to define, however its meaning can perhaps be best understood in opposition to other competing ideologies that have also been suggested to provide a conceptual framework for regulating human conduct. These competing ideologies include pluralism and corporatism, which allow for a relationship between groups and government, and communitarianism which holds that community is an essential element in providing for the wellbeing of the individual.

2.8

There are many examples within Australian constitutionalism of adherence to the liberal ideal. The Constitution both explicitly and implicitly guarantees the individual various civil, political and economic

The Commonwealth Constitution Act 1900 (UK) created a federal system of government in Australia similar to that which exists in the United States. The federal system recognises the Federal (or Commonwealth) Government in addition to the State and Territory governments as distinct legal entities. While the powers of the Commonwealth government are enumerated in the Constitution (see CC s 51 for the legislative powers of the Federal Government), the powers of State governments are not listed and exist only where there is held to be a lacuna of Commonwealth power. That is not to say that State legislative power is unlimited. State governments are limited to enacting laws that are not in contravention of the Commonwealth and the relevant State constitution, that do not contravene the Australia Act 1986 (UK) and the Statute of Westminster 1931 (UK) and that are consistent with existing Commonwealth laws. (see CC s 109). While a federal system means that it is inevitable that there will be conflict between these separate governments within the federation, federalism as a historical concept is characterised by considerable co-operation between the various gove~nments. The concept of federalism is discussed further in Chapter 5.

2.6

freedoms including the right to vote (see Commonwealth of Australia Constitution Act (CC) s 41 ), the right to a jury trial (when indicted for a federal offence: see CC s 80), the right to trade freely between States (see CC s 92) and to freely practice any religion (see CC s 80). The freedom to engage in political debate has also been held to form an essential part of Australia's constitutional system of government.

60

Political and civi 11 iberal ism, a product of the enl ightenmentchampioned

2.9

2.10

Representative and responsible government Responsible government derives from the Westminster system of government that exists in the United Kingdom. According to the Westminster system, while the monarch (or Crown) is the official head of state, the majority of government functions are carried out by

2.11

61

CHAPTER 2 • CONSTITUTIONAL THEORY

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

ministers who are representative of, and responsible to, the electorate and accountable to the Parliament. Although the Crown retains some reserve powers to take executive action on its own, it generally relies on the advice of responsible ministers. The particular practices of responsible government in Australia have developed and changed since their adoption from the Westminster system, however the basic principles of ministerial responsibility and parliamentary accountability remain constant. Separation of powers

2.12

The idea of separating the legislative, executive and judicial arms of government has been endorsed by many influential writers from Aristotle to Montesquieu and Madison. The incorporation of the separation of powers doctrine in the United States Constitution in turn influenced the framers of the Australian Constitution . The framers used the separation of powers principle in dividing the first three chapters into separate sections relating to the separate functions of the legislature (the Parliament), the executive and the judiciary. The principle of responsible government means, however, that there is no strict separation of power maintained between the Parliament and the executive since federal ministers are also members of Parliament (see CC s 64) and are therefore members of both the legislative and executive arms of government. (See Chapter 4 for further discussion of the separation of powers doctrine. ) Judicial review

2.13

Another important principle that underpins Australia's constitutional system of government is that the judiciary has the power to review statutes enacted by the legislative arm of government. This power of judicial review is fundamental to constitutional ism since it ensures that it is the Constitution, as interpreted by the courts, that is the source of all government power and that can provide limits on government power. It appears that the framers of the Australian Constitution were persuaded by the merits of the principle of judicial review which had

62

become an accepted part of United States constitutionalism since the famous Supreme Court decision in Marbury v Ma dison 5 US (1 Cranch) 137 (1803). Although there is no express power of judicial review in the Australian Constitution, there is evidence from the convention debates in the 1890s that the framers assumed that the High Court would exercise the power of judicial review as an ultimate court of appeal in a similar way to the United States Supreme Court. (See also Judiciary Act 1903 (Cth) s 30 and CC ss 71-77.) Legal positivism

It has been suggested above that judicial review is a fundamental aspect of constitutionali sm since it allows for legislation to be scrutinised in an impartial and objective manner by judges in order to determine its conformity with the Constitution. This statement assumes that it is both possible and desirable to apply the meaning of the Constitution in an impartial and objective manner, an assumption that derives to a large extent to the jurisprudential tradition of legal positivism. Over the last century or more, legal positivism has dominated the way in which lawyers in common law jurisdictions co nceive of law and the legal system. Indeed, as one writer has put it, '[lega l positivism] is how we have all been trained to think and so it is rather difficult to think differently [about law] .' (M Davies, Asking the Law Question, 3rd ed, Lawbook Co, Australia, 2008).

2.14

Two of the most respected exponents of legal positivism in the 20th century were HLA Hart and Hans Kelsen. Both attempted in their works to describe legal systems in an objective, scientific way. Hart viewed legal systems as a social fact, that is, that legal .systems have certain characteristics that can be empirically studied and tested. The most fundamental characteristic of legal systems according to Hart is

2.15

what he calls the 'rule of recognition'. This rule (which is really a social fact) refers to the set of attitudes and assumptions that legal officials and the wider commun ity share in rendering certain norms valid legal rules. Kelsen, on the other hand, provided what he described as a 'pure' or conceptual analysis of law. For Kelsen, law is understood in terms of a hierarchy of norms which includes a Constitu tion in addition to the

63

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

logically most fundamental norm, the grundnorm. This grundnorm, or 'basic norm' is an assumption held within a society that that particular to be obeyed. It is this grundnorm which, according legal system to Kelsen, provides the Constitution and all other norms in the legal system with their legal validity and authority. METHODS OF INTERPRETATION

2.16

The principles discussed in the previous section are a recognised part of the Australian constitutional tradition and may therefore be legitimately invoked as guiding principles when interpreting the Constitution. As mentioned in the introduction however, there are various other accepted sources that may provide further guidance in interpreting the Constitution. These sources include the text and structure of the Constitution, the original intent of the framers, prior relevant constitutional decisions and, more controversially, contemporary political morality has also been argued to provide a source of constitutional law. The Constitutional text

2.17

2.18

64

The text of the Constitution itself has always been regarded by the High Court as providing the starting point for constitutional interpretation. This is due to the fact that the Constitution is an Act of Parliament and is therefore subject to the accepted methods of statutory interpretation and in particular to the central importance given to the ordinary meaning in addition to the purpose of the text when interpreting the Constitution. However, due to the fundamental importance that the application of the Constitution Act has in organising our government and society, the Constitution has been interpreted in a more creative and flexible way than ordinary statutes so as to provide efficacy to the Constitution in changing societal conditions. It is not possible to interpret provisions of the constitutional text in isolation. While some constitutional provisions explicitly relate to others (for example, s 51 is to be read 'subject to the Constitution' and ss 51 (1 ), 92, 98, 99, 100, 102 share the subject matter of 'trade and commerce'), the High Court has also held that the Constitution is to be interpreted 'as one whole document' (see Bank of NSW v Commonwealth

CHAPTER 2 • CONSTITUTIONAL THEORY

(1948) 76 CLR 1 at 304 per Starke J, and Koowarta v Bjelke-Petersen (1992) 153 CLR 168 at 189 per Gibbs CJ). The fact that the text of the Constitution is regarded as a coherent whole leads to the assumption that the Constitution is internally coherent, that is, an interpretation of one constitutional provision must not contradict or be inconsistent with another provision. Constitutional coherence does not however seem to require that every part of the Constitution have an effective operation (See Latham's approach to s 99 as discussed in L Zines, The High Court and the Constitution, 4th ed, Butterworths, Sydney 1997, pp 428, 460), nor does it lead to the interpretative requirement that the enumerated legislative powers should not overlap. (See Actors Equity v Fontana Films (1982) 150 CLR 169 per Stephen J.) Additionally, a Commonwealth law may be characterised as 'with respect to' several heads of legislative power which necessarily broadens the scope of Commonwealth power over the States. Another consequence of conceiving of the text of Constitution as a coherent whole is that the interpreter is encouraged to find basic principles that underlie the particular provisions of the Constitution. The High Court has recognised three such principles: federalism; a separation of powers doctrine and a principle of representative government.

2.19

Applying these broad constitutional principles to specific cases has led to a number of implied constitutional rights and obligations. Original meaning

A further method of constitutional interpretation is to attempt to discover the original subjective intentions of those people who created the Constitution. While this method has been popular in the United States, it has not been a method traditionally used in Australia by the High Court. Not only has the High Court been sceptical of the practical possibility of discovering the intention of a group of people (whether they be the framers, convention delegates or members of the Imperial Parliament), it has also argued that the Australian people did not consent to be governed by the intentions of the Founding Fathers but by the words of the Constitution itself. (See NSW v Commonwealth (1990) 169 CLR 482 at 511 per Dean J.)

2.20

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

2.21

Although the High Court has stopped short of using the subjective intentions of the Founding Fathers as a source of constitutional

changing circumstances (see Street v Queensland Bar Assoc (1989)

law, in Cole\!"Whitfield (1988) 165 CLR 360, the Court held that it is permissible to use the convention debates not for the purpose of

vesting case) (1999) 198 CLR 511 at 551 per McHugh J). Goldsworthy

substituting the text with the founders' intentions but 'for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed, and the nature and objectives

recognises, however, that the founders' intentions will not answer many constitutional questions so that moderate original ism leaves a wide scope for judicial creativity.

of the movement toward federation'. The Court in Whitfield therefore indicated that the original meaning of the text might be at least relevant to finding its current meaning, although there has been disagreement

Contemporary meaning

between members of the High Court on this point.

2.22

original meaning in 1900, their denotation is subject to change with 168 CLR 461 at 537 per Dawson J; Re Wakim; Ex Parte McNal!y (Cross-

In the last 30 years, the High Court has at vari ous times taken what is known as a 'contemporary meaning' approach to constitutional

For example, McHugh J in Eastman v The Queen (2000) 203 CLR 1 at

interpretation. (See eg Attorney-General (Cth); Ex parte McKinlay v

46 argued that while it may not be appropriate to attempt to ascertain the subjective intentions of the framers, the notion of legislative intent

Commonwealth (1975) 135 CLR 1 per Mc Tierna n and Jacobs JJ, Langer

'serves a useful purpose'. In apparent response to the view favourable to intentional ism put by McHugh in Eastman, in Brownlee v The Queen (2001) 207 CLR 278 at 327, Kirby J put forward a view favouring 'a search for the essential characteristics of words and phrases having enduring constitutional operation'. Despite the protestations of Justice Kirby over the method of originalism (or intentionalism), a method of interpretation based on the original meaning of, or objective intention behind the text of the Constitution has been proposed by some Australian constitutional commentators.

2.23

CHAPTER 2 • CONSTITUTIONAL THEORY

Greg Craven has argued that there is a prima facie case for original intent as a legitimate method of interpretation in that it should be the framers' intentions that should be given supremacy over 'deficient words' on paper. Jeffrey Goldsworthy also proposes an originalist approach to constitutional interpretation which he describes as 'moderate' original ism . This approach involves referring to any pub I icly

2.24

v Commonwealth (1996) 186 CLR 302 per McH ugh J.) In his judgment in Brownlee v The Queen (2001) 2007 CLR 278 at 314, Kirby J explained thi s approach: [M)y own approach [to interpretation) holds that constitutional expressions must be given a contemporary meaning, as befits the character of a national basic law, which is extremely resistant to formal amendment, but which must, of necessity, apply to new, unforeseen and possibly unforeseeable circumstances ... Words are not necessarily confined to the meaning that would subjectively have been ascribed to them by the Parliament that enacted them, This is even more true of constitutional words and phrases. A recognition of this fact does not render wholly irrelevant the consideration of history - as in the debates that preceded adoption of the Constitution. But it does limit the utility of such searches when the real consideration is what those words and phrases mean in their contemporary institutional setting and as they must operate in accordance with the "accepted standards of a modern democratic society", such as the Constitution was adopted to provide.

available evidence of the Founding Fathers' intentions in order to discover their 'enactment intentions' which Goldsworthy distinguishes from 'application intention' which he considers irrelevant to his method of interpretation. This distinction is similar to the connotation/ denotation distinction used on several occasions by the High Court. While the connotation of words in the Constitution is tied to their

Coherence with past judicial decisions Another recogni sed source of constitutional law is the prior interpretations of the Constitution as set out in past judicial decisions, or pr.ecedents. While the High Court is not bound by its own decisions, prior judicial opinions do have some constraining force due to the importance judges

2.25

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

place on protecting expectations, although this consideration is not as strong in constitutional law as it is in areas of private law such as property law or contraa. Considerations of contemporary understandings of justice and fairness will often outweigh considerations of stability and predictability in constitutional interpretation which has resulted in an understanding of the Constitution as a 'living document' not necessarily tied to the 'dead hand of the past'. However, if the original meaning of the Constitution or the interpretations provided in past decisions are not regarded as authoritative and binding on a court, then what real constraints, if any, could a court that purports to engage in a process of constitutional interpretation (as opposed to judicial activism) be under? Some theorists have argued that the requirement of coherence in law provides for constraint on constitutional interpretation. MacCormick, for example, argues that law should aim towards consistency of principles or values, that is, the law should strive to be normatively coherent: [T] he coherence of norms is a matter of their "making sense" by being rationally related as a set, instrumentally or intrinsically, either to the realization of some common value or values, or to the fulfillment of some common principle or principles. (Neil MacCormick, 'Coherence in Legal Justification' in W Krawietz et al (eds), Theorie der Normen: Festgabe fur Ota Weinberger zum 65 (1984), 41-42.)

2.26

Ronald Dworkin also proposes a coherence theory to help judges to 'correctly' interpret the law. Dworkin's interpretative theory of law 'law as integrity' requires the ideal judge, Justice Hercules, to interpret the legal materials in their best light according to the twin requirements of coherence with the existing legal materials, and current political morality. He iterates four political ideals: fairness; justice; due process; and treating like cases alike to provide the basis for a coherent or integrated set of legal principles. These principles require pre-existing legal rights to be recognised, and provide a basis for the doctrine of precedent as well as the basis for an argument for principled decisionmaking over pragmatism.

2.27

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The adjudicative principle of integrity instructs judges to identify legal rights and duties, as far as possible, on the assumption that they were

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all created by a single author, the community personified, expressing a coherent conception of justice and fairness. Law as integrity requires creative interpretation and therefore a normative component, it aims to impose purpose over the text of law. The judge is both author and interpreter of law similar to a writer in a chain novel trying to make the novel the best it can be in terms of fit and moral appeal. Thus the judge must find, if she can, some coherent theory about legal rights that applies to a particular case so that a single judge with that theory could have reached most of the results the precedents report. In relation to constitutional law Dworkin argues that the Constitution 'consists in the best available interpretation of ... constitutional text and practice as a whole, and [his] judgment about which interpretation is best is sensitive to the great complexity of political virtues bearing on the issue'. (R Dworkin, Law's Empire, Harvard University Press, 1986, p 398.) Although many commentators and judges agree with Dworkin's coherence theory of interpretation (see, for example, Re Wakim; Ex Parte McNally (Cross-vesting case) (1999) 198 CLR 511 at 554 per McHugh J), there are others who are critical. David Lyons, for example, criticises Dworkin for having an excessively legalistic approach to justification. Lyons rejects the idea that judicial decisions can be justified by law

2.28

alone. Similarly, Joseph Raz asks why judges should deviate from what is otherwise the morally best solution to a case on the grounds of coherence. He thus places the burden of proof on coherence theorists to provide reasons as to why the value of coherence should be such a strong consideration.

The problem of interpretation Given the various different sources and methods described that may

2.29

be used in approaching constitutional interpretation, it is perhaps not surprising that the nature of legal interpretation is a subject that has attracted much interest within legal theory in the last twenty years or so. The postmodern age has brought with it new modes of understanding and new critical methods which constitutional law, with its previously modernist, foundationalist approaches to interpretation, has not been able to avoid. As a result of certain postmodern theories including

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philosophical hermeneutics and deconstruction, the practice of legal interpretation has, as one writer put it, become 'mired in a deep and persistent cris1 ... [d]econstruction appears to buttress the proposition that the application of legal rules and legal doctrine is ultimately bound to lead to conflict, contradiction and indeterminacy'. (Michel Rosenfeld, 'Deconstruction and Legal Interpretation: Conflict, Indeterminacy and the Temptation of the New Legal Formal ism' in Druci I la Corne I I, Michel Rosenfeld and David Carson (eds), Deconstruction and the Possibility of Justice, Psychology Press, 1992,

2.30

p 152.)

While the method, technique or process of deconstruction is difficult to define, Rosenfeld states that according to deconstruction, 'all texts (whether oral or written) are writings that refer to other writings. A text is not a pure prese~ce that immediately and transparently reveals a distinct meaning intended by its author' . As Rosenfeld points out, the crisis in legal and constitutional interpretation posed by deconstruction cannot be resolved by returning to the interpretative methods of original ism nor by resorting to methods which ascribe meaning to the text of the Constitution based on the current values and understandings of the 'interpretative community'. In relation to the latter method, as Dworkin has recognised, there will always be disagreement within the interpretative community and this disagreement cannot be ignored unless the interpreter is content to suppress the dissenting voices. Deconstruction rejects originalism because it rejects the possibility of a pre-existent, objective meaning behind the text (of the constitution). It also rejects an interpretation based on contested extra legal values. Deconstruction wou Id appear to be more consistent with Dworki n's interpretative method discussed above, although the particular political theory chosen by Dworkin, that of 'Law as Integrity' does not appear to overcome the challenges posed by deconstruction.

CONCLUSION

2.31

Perhaps the most important point highlighted by deconstruction is that the various possible sources, or methods of constitutional interpretation cannot completely determine the results of particular cases. What the above constitutional principles and methods of interpretation

do provide, however, is a normative framework and vocabulary that can to some extent guide, constrain and constitute the practice of constitutional law. A constitutional lawyer or a judge deciding a constitutional question therefore needs to at least be aware of what certain accepted constitutional principles or va lues might mean, as well as which sources, or methods of interpreting those sources, may be considered acceptable. However, because the normative framework of constitutional law is not fixed but continua lly contested I that is I since there is continuing disagreement over the appropriate methods and sources of constitutional interpretation, judges and lawyers will necessarily take different theoretical approaches (i ncluding pragmatism) to constitutional interpretation depending on their particular views about the mean ing and purpose of law and about the role that our legal institutions should play in our community.

CHAPTER3

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3.1

A great deal has been written on the topic of Indigenous people and constitutional law in the Australian context. It might be said that forests have be n felled to supply the paper for such examinations and postulations. Yet, many of these statements have been deficient in .that they fail to acknowledge and contextualise the influence, both direct and indirect, that Indigenous people have had, and continue to have, on Australian constitutional law. The following chapter provides a brief overview - including key decisions of the High Court - tracking the development of Indigenous aspects inherent within the formative development of constitutional law in Australia and includes the ongoing impact that Indigenous people have in the Australian constitutional law context.

INTRODUCTION 3.2

Even though the position of Australia as a 'settled' colony has longstanding legal support (see below at 3.6), it has been and continues to be a greatly contested term by many Indigenous people across the continent, both factually and legally. Indeed, with recent conversations to 'complete' the Australian Constitution, through acknowledging Aboriginal and Torres Strait Islander people, there are still on-going debates as to the true status of the legal foundation of the Australian state. The point here should not be missed, and it is this, from the very inception of the alleged moral and legal basis for which the import and application of English law was said to be based upon (terra nullius), it was a basis that was in reaction to the Indigenous people's obvious inhabitation across the landmass, now known as Australia . That is, Indigenous people have had a pivotal effect as to the very foundation of the colony, an influence that pre-dates federation and the Imperial enactment of the Australian Constitution itself. It is from such a starting point that the present Australian state now exists. Indigenous constitutional influences have received a variety of constitutional responses over time. The epochs might be described as: 'exclusion'; 'inclusion'; and 'recognition'. As will be shown, Indigenous

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people have had an ongoing effect upon Austra lian constitutional law in both direct and indirect ways. Indigenous people were initially excluded from the Constitution, by express provisions. Then, in 1967, Indigenous people were recognised and included in the Constitution, though it was a limited inclusion and recognition. Ironically, the inclusion of Indigenous people was affected by the removal of the express statements from the Constitution. Now, it appears, that we are again moving towards formalising

recognition of Aboriginal and Torres Strait Islander people in the Australian Constitution.

COLONISATION AND SETTLEMENTS It is well known that upon arrival into Warrane (Sydney Cove) in 1788, the Governor-designate, Arthur Phillip, imported English law into the colony of New South Wales. The colony 'received' all necessary English law that was in force in England at the time. It was also the case that Indigenous people received British castigation, as noted by the Reverend Samuel Marsden (the notorious clergyman and merciless flogging magistrate) commenting on Sydney Aboriginals, when he proclaimed:

3.3

'They are the most degraded of the human race, and never seem to wish to change their habits and manner of life.' Nevertheless, the receipt of English law was to occur for other colonies upon their formation as well. As much was confirmed through the Imperial Courts Act 1828 (Imp), with the date of the reception of English common law being the same as the date of the colonies settlement. Governor Phillip believed that the basis upon which he was able to declare English law as the 'law of the land', was that the landmass of Australia was uninhabited or 'empty land' prior to English settlement: that it was terra nullius. If that were indeed the reality, then English law would have merely filled an absolute legal void. However, it was patently apparent that Australia was very much inhabited by Aborigi nal and Torres Strait Islander people with their own legal and social systems, prior to English colonisation (see below at 3.8). 75

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Such inhabitation was noted at the earliest point of discovery of the great southern land, with Lieutenant Cook's diarised observation of human inl'ia itancy and occupation, after taking 'possession' of the entire eastern seaboard of the continent on behalf of King George:

'We saw upon all the adjacent lands and islands a great number of smokes - a certain sign that they are inhabited.' It is obvious that Cook's observations were in express contradiction to his action of taking 'possession' (through the supplanting of the British flag at Bedanug - which Cook called, Possession Island) on behalf of the Crown, see Kaurareg People v Queensland [2001] FCA 657. Furthermore, Lieutenant Cook explicitly ignored his official instructions and claimed the east coast of Australia without conducting a single negotiation with the Indigenous people obviously inhabiting the landmass. Yet, it was not until the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 that the legal fiction of terra nullius was rejected by the High Court. But, the Court's rejection of the legal fiction was only to the extent that it applied to land (thus, recognising common law Native Title) and not to the extent of Aboriginal and Torres Strait Islander sovereignty. The High Court did not question the validity of the reception of English law into Australia (see below at 3.9). The latter point sets up something of a very interesting legal paradox, namely: how Indigenous native title to land which pre-exists (Crown) sovereignty and continues to survive it, as the High Court explained in Mabo (No 2), has been recognised. Yet, the full accord of antecedent Indigenous laws and jurisdictions are held to be - by myopic and biased notions of what constitutes sovereignty- incapable of recognition. A colonial dictatorship

3.4

Following on from Lieutenant Cook's ignored instructions, the first Governor of New South Wales, Arthur Phillip, was explicitly instructed to 'establish good relations with the natives' and yet, he declared English law to be in total effect, upon the basis of terra nullius.

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Phillip made convivial interlocutors of Bennelong and Bungaree and made declarations ordering the 'good treatment' of Aboriginal people and further still, announced that anyone killing Aboriginal people would be hanged. His attitude changed dramatically after the death of his gamekeeper, John Macintyre. This attitudinal shift came even after his own non-fatal spearing which he viewed simply as a misunderstanding. However, it was after the death of Macintyre, that Phillip ordered revenge attacks, 'so that the natives be made severe examples of'. Phillip, particularly, sought the death of Pemulwuy, a Bidjigal warrior of the Eora nation, who strongly resisted British 'settlement'. Such is an example of the near absolute legal authority (and power) that came with the position of Governor. Prior to 1823, the colony of New South Wales was ruled by the office of the Governor th rough an aImost autocratic power as a mi Iitary dictatorship. Governor Lachlan Macquarie served as the last autocratic Governor of New South Wales from 1810 - 1821. Post-1823, the almost absolute powers of the Governor were slowly being wound back, or delegated out. For example, in 1824 the New South Wales Legislative Council (Australia's first legislative body) was appointed to advise the Governor. The process of diminishing the Governor's powers led each colony to develop a system of responsible government along with a bicameral Parliament and a 'popularly' elected lower house. However, here, the initial political franchise for 'popular elections' was restricted by qualifications based upon: race; sex; and property ownership. It is not difficult to see here how the disenfranchisement of Indigenous people was, in part, very instructive towards setting the parameters of exclusion rega;ding who got to vote in such 'popular elections' then and into the future. Thankfully, such restrictions have been legally eroded over time (see, below 3.7). However, it is noteworthy, that with the passing of the Australian Constitutions Act (No 2) 1850 (Imp), authorising colonial Parliaments to draft their own constitutions, the respective colonial constitutions drafted and enacted under the Act are the antecedents of today's State constitutions.

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

It was under such authority that various Australian jurisdictions

However, widespread Indigenous inhabitation of the (then known)

introduced 'Aboriginal Protection' Ordinances which purportedly 'protected' ln~enous populations through Iim iting their civi I rights, such as: freedom of association and movement; right to work and employment

continent was acknowledged by Cook, Phillip and colonists at the most

rights; the right to education; property rights; and other legal rights).

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initial of instances, it was overwhelmingly ignored legally, politically and socially. All of which casts a dubious cloud over assertions as to the legality of the continent's acquisition.

It is also not insignificant that the respective colonial constitutions

Sardonically, the common law had its own initial problems in

(and their actors, as they were then) were highly influential in setting the parameters for debate regarding a proposed Federal Constitution in

dealing with its very own application towards Indigenous people in the colony. Later, it was said, common law rights applied to Indigenous

the pre-federation Constitutional Conventions.

Indigenous legal influences in the colonies

people, however, they were excluded in other ways from affecting those rights, see Cooper v Stuart (1889) 14 App Cas 286; Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348 (see below at 3.6).

As stated above, the .influence that Aboriginal and Torres Strait Islander people have had in the development of Australian constitutional law

It is important to remember that the Indigenous people of Australia never ceded sovereignty to the British, at no time has there ever been a

even precedes the advent of the Constitution itself. This point may seem tautologistic at first instance. Yet, it was

'treaty' or any negotiated agreements between Indigenous people and the English. However, it was legally enshrined for over two centuries

Indigenous people bringing forward legal questions to colonial administrations - and those administrations, themselves, deliberating

that the British 'settled' Australia based upon terra nu/lius and in doing so, supplanted Indigenous sovereignty with British sovereignty.

as to whether Indigenous people were indeed subject to English law which influenced the development of 'legal' responses that maintained

Therefore, it is pertinent to recall such context when reading the following cases. The central theme that runs through each of these

the ' unquestionable' supremacy of English sovereignty that was ultimately reflected in the Constitution.

cases is the very questionability of British sovereignty and the assertion of continued Indigenous sovereignty. This demonstrates, in part, that

The question of 'sovereignty' goes to the very heart of the ' legal' foundations of Australia and should not be taken glibly.

recognition of Indigenous sovereignty has been an issue since the colony began.

As can be seen in what follows, especially, the somewhat ad hoc and convenient legal manoeuvring, demonstrates at the least, the fragility of present day Australia's legal foundations . Not the least, the incorrect legal assumption of 'settlement' based upon terra nu/lius. As stated in Blackstone's Commentaries on the Laws of England, speaking of 'settled colonies':

... land was assumed to be empty-terra nullius (land belonging to no-one) - and British settlers took English law with them as 'their birthright' - all English law, both legislative and common law, was taken that could be applied, or, in the case of common law could come to be applied taking into account the colony's situation .

78

R v Ballard or Barrett [1829] NSW Sup C 26 (13 June 1829) FACTS: Aboriginal man killed in Government Domain and another Aboriginal was charged with his murder. ISSUE: Was the accused susceptible to the application of English law? DECISION: Aboriginal people had not given up their rights to protect themselves to judges but retained their natural rights to protect themselves. English law did not apply.

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In the case, Forbes

CJ

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stated:

At this point, it might appear that the principle of Indigenous people

. .. I kn~ no principle of municipal or national law, which shall subject the inhabitants of a newly found country, to the operation of the laws of the finders, in matters of dispute, injury, or aggression between themselves.

being susceptible to the jurisdiction of British courts had been resolved . However, in the following case, the issue was again brought to a head and the central theme of the assertion of Indigenous sovereignty was again contested in a colonial court.

His honour believed it was questionable whether there were any advantages that could be gained by grafting the institutions (and laws) of the colony upon the natural systems which Indigenous people held as their own form of law and governance, stating: ' ... their forms of justice are suited to them and would be disrupted by applying British law. Their law affords protection & security from internal as well as external aggression to them.' Of note, is that the principle for the application of British legal jurisdiction did not extend to property law, it merely soothed itself by residing only in the criminal law. This created a legal lacuna for the colonists. However, this decision (and principle) was soon to be revisited in the following case.

R v Murrell and Bummaree [1836] NSW Sup C 35 (5 February 1836)

FACTS: Murrell and Bammaree were charged with killing another Aboriginal man at Windsor near the Hawkesbury River (NSW).

FACTS: Bonjon, a Wauthaurong man, had been charged with murder for killing Yammowing, a Gulidjan man. ISSUE: Whether the colonial courts had jurisdiction over offences committed by Aboriginal people inter se, that is, by one Aboriginal person against another. DECISION: The court extensively considered the legal situation as to the British acquisition of sovereignty over Australia, and its consequences for the Aboriginal people. Though not finally deciding the question, he indicated that he strongly doubted that he had jurisdiction. The trial of Bonjon was allowed to proceed without prejudice as to the question of jurisdiction, but the prosecution ultimately abandoned the case and Bonjon was eventually discharged.

The decision by Willis J to leave as ide answering the question

ISSUE: Could the accused be brought to trial and be subjected to the

regarding the legitimacy of Indigenous sovereignty, as well as, the

application of English law?

statement indicating that English law had no jurisdiction over inter-

DECISION: Aboriginal people had little that could be identified as law. Therefore, they were susceptible to the jurisdiction of English law and British courts.

Indigenous disputes, when stating:

Here, Burton J (with whom Forbes

CJ and DowlingJ agreed) affirmed

the 'fact' that English law did indeed apply and that the jurisdiction of British courts was sufficient for adjudicating upon inter-Indigenous disputes. Interestingly, the trial proceeded and an all-white jury found the defendants not guilty. The prisoners were then discharged.

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R v Bonjon [1841] NSW Sup C 92 (16 September 1841)

... [w] hether the sovereignty thus asserted ... legall y excludes the aborigines, according to the law of nations, as acknowledged and acted upon by the British Government, from the rightful sovereignty and occupancy of a reasonable portion of the soil, and destroys their existence as self-governing communities, so entirely as to place them ... in the unqualified condition of British subjects; or whether it has merely reduced them to the state of dependent allies, still retaining their own laws and usages, subject only to such restraints and qualified control as the safety of the colonists and the protection of the aborigines required. 81

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There is, no express law, that I am aware of, that makes the Aborigines subject to our colonial code ... .the colo~ists and not the ab~ines are the foreign_ers; the to;mer are exot_ 1cs, the latter indigenous, the latter the native sovereigns of the soil , the former uninvited intruders.

The decision by Willis

J in

Bonjon caused an enormous amount of

official disapproval so much that Dowling CJ criticised the decision, saying that R v Murrell was the authoritative case for the question being tried in the Bonjon. In this, Dowling CJ held a view that was shared by Governor Gipps, as well as, the authorities back in Britain. Gipps was so dissatisfied with the judgment of Willis J, he had him censured and also wrote to the Colonial Secretary, Lord Stanley, imploring that laws be passed to ensure that colonial courts had necessary and appropriate jurisdiction over offences committed by Aboriginal people inter se. It has been argued elsewhere that Willis J was the most important legal official in colonial Australia who took seriously the idea that Aborigines had their own laws and customs. Nonetheless, any lingering uncertainties regarding the applicability of British jurisdiction and English law were quickly determined in favour of the Crown in the cases of Attorney-General (NSW) v Brown (1847) 1 Legge 312 and Cooper v Stuart (1889) 14 App Cas 286 (see below at 3.6). However, it was not until late in the 20th century that the High Court w as asked to determine, in the case of Coe v Common wealth (No 2) (1993 ) 118 ALR 193, whether the colonists had taken effective possession of the Australian continent (on behalf of the Crown) and adequately asserted sovereignty, thus, making claims to recognise Indigenous sovereignty impossible at law, see Walker v New South Wales (1994) 182 CLR 45 (see below at 3.9). Although the British were hesitant in their initial application of the common law to Indigenous people, the colonists were also hesitant to apply the common law to other colonists in instances of ' land-clearin g' of Indigenous people. Importantly, there has only ever been a single instance (the first and last) where colonists were executed for the massacre of Indigenous people, after the successfu I prosecution (after two trials) of seven

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coloni sts (out of a known eleven) for what became known as 'The M yall Creek Massacre'. The decision caused uproar amongst many co lon ists. It was even reported in the media that the time and expense in conducting the trial s was not worth the money in printing the court documents, such was the contempt for Indigenous people.

Racial undertones pre-federation The presence of Indigenous people, inter alia, th roughout the colonies

3.6

was highly influential during the constitutional conventions, proposing federation . It was such a presence on the continent that, in part, was a galvanising impetus for the colonists attending constitutional conventions to discuss and move motions that attempted to formalise the sub-human contempt that many colonists held Indigenous peop le in. For example, Alfred Deakin, Attorney Genera l in Australia's first Commonwealth government, steered the Immigrati on Restri ction Bill through an all-too willing Parliament. The result of w hich became one of the first pieces of legislation to be passed through the newly constituted Federal Parli ament. It was the Immigration Restricti on Act 1901 (Cth) (otherw ise kn own as, 'The White Australia Policy') . Deakin explained that this racist measure was important in drummi ng up popul ar support for federation (Commonwealth House of Rep resentatives Hansard, 12 September 1901, 4804): ... no motive operated more powerfully in dissolvi ng the technical and arbitrary political divisions which previously separated us than the desire that we should be one people and remain one peopl e without the admixture of other races.

One of the first pieces of legislation to pass the newly created Federal Parliament was the Immigration Restriction Act 1901 (Cth). To restrict Immigration into Australia based upon race. Interestingly, the enactment introduced the 'dictation test' (which required a person seeking entry to Australia to write out a passage of fifty words dictated to them in any European language, not necessarily English, at the discretion of an immigration officer), the purpose of which was to ensure that a person submitting to the test would fail.

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The dictation test was greatly ridiculed after the decision in The King v Wilson; ex parte Kisch (1934) 52 CLR 234, which demonstrated

the intrinsic b1a of the application of the procedure in gaining entry into the recently formed nation. That being said, the influence of Aboriginal and Torres Strait Islander people upon the way in which proposals were put forward for a federal compact at the convention debates, is apparent. It was thought at the time that Aboriginal people were a 'dying race' and not worthy of any overt legislation, except to the extent that left the States responsible for them. As mentioned above, in a perverse way the very existence of Indigenous people actually united the colonists and such an existence would require formalised legal statements in the (soon to be) nation's foundational document. Obviously, such suggested statements, for the nation's foundational legal and political instrument, were not meant to be favourable for Indigenous people. Critically, it should also be remembered that at this time the 'war on blacks' was continuing throughout the continent. It is axiomatic that the contemptible attitude towards Indigenous people at the time was intrinsically linked to land acquisition and the spread of 'civilising' forces across the continent. The seminal case of Cooper v Stuart (1889) 14 App Cas 286 occurred during the interim period between the constitutional conventions in Melbourne and Sydney in 1890-91 and the conventions in Adelaide, Sydney and Melbourne during 1897-98. This case attracts legal support to this day (see below at 3.9) though it has been suggested that it may require revisitation by the High Court at some point in the future.

Cooper v Stuart (1889) 14 App Cas 286

FACTS: Governor made a land grant (in 1823) while stating it could be reacquired at a later date for public purposes. It was argued that the grant was invalid, as it went against the law against perpetuities.

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ISSUE: Was the law against perpetuities part of the New South Wales law? DECISION: The court stated that NSW was a settled colony. Therefore, English law is immediately in place. However, it Is only in force so far as it is applicable to the circumstances of an infant colony.

In the case, Lord Watson proffered the absence of 'settled inhabitants' and 'settled law' as a criterion for determining whether inhabited territory had been acquired by 'settlement' under English law. Importantly, in terms of the decision's affect upon Indigenous people, it is obvious that the phrase 'applicable to the circumstances' allowed the common law to be almost arbitrary in its application (or non-application, as it were, for Indigenous people). This last point was unanimously confirmed by the High Court in Port of Portland Pty Ltd v Victoria (2010)242 CLR 348, affirming that not all of the rights guaranteed in some English Acts (Habeas Corpus Act 1679·

Bill of Rig~~ 1689) were immediately in force at 'settlement'. Stating: some prov1s1ons of English law were in force and other provisions would require the colony attaining a point of constitutional development that all owe~ th~ Acts (and the rights therein) to become reasonably capable of appl1cat1on to the local adoption of English statute Jaw.

Th~ unanimous decision certainly points towards a confirmation, by the High Court, that the common law's arbitrary application afforded limited protection to Indigenous peoples during the colonial period. The p.rotec~ion of the common law rights (to life; liberty; property) as enshrined in the Magna Carta were of little assistance to Indigenous peoples at the time (see above at 3.4). • :urthermore, the common law allowed for the dispossession of Indigenous people of their property to occur on terms less rigorous than those applicable to other property for 204 years before the decision in Mabo (No 2) 'remedied' such practice (see below at 3.9). Indigenous people's exclusion from the national political franchise It is well understood that not all of the people of the colonies were invited to vote on the formation of the federation. Indigenous people

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certainly were not consulted with, nor allowed to vote on the issue of national federation. At the time, Indigenous people were considered to be a 'dying race'. At federation, there were only two references to the Indigenous people in the Constitution. Section 51 (xxvi ) originall y gave the Commonwealth the power to make laws with respect to the ' People of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.' Prior to the 1967 referendum, section 51 (xxvi ) restricted the Commonwealth from passing laws affecting Aborigin al people. This was not because of any benevolence of the Commonwealth, but because Aborigines were merely a matter for the States to contend with . This meant that the States effectively retained control over the Indigenous people within their borders. It was because of th is arrangement that the respective States were able to determine whether or not Indigenous people wou Id participate in State election s - whether Indigenous people were able to vote at the State level - which also determined national electoral participation (see below at 3.12 ). Further, s 12 7 stated : 'In reckoning the numbers of people in the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted .' The reason for this section was to do with the funding arrangements to the States, which were distributed by the Commonwealth. Additionall y, s 25 deals with discrimin ation on ba sis of race, allowing the law of any State to : 'disqualif[y] from voting at elections for the more numerous House of the Parliament of the State, then, ... persons of that race resident in that State sh all not be

Parliament (Senate Hansard, 9 April 1902, 11467; 10 April 1902, 11 581) sa id : . .. we must take some steps to prevent any Aboriginal. .. from acquiri ng the right to vote ... surely it is absolutely repugnant to the greater number of the people of the Commonwealth that an Aboriginal man or Aboriginal lubra or gin - a horrible, degraded, dirty creature - should have the same rights that we have ... deci ded to give to our wives and daughters.

At the time, the majority of the populace cons idered themselves to be ' British', though it would be 18 years before that was codified, with the passing of the Nationality Act 1920 (Cth). Austra lia's nationality code w ould remain in force for 29 years (see below at 3.12). Interestingly, the Constitution contains no express ' ri ght to vote', thou gh s 30 gives the Federal Parliament the power to decide who can vote for it, w hich seems somewhat incongruous. Further, as ss 7 and 24 of the Constitution speak of the Senate and House of Representatives being 'directly chosen by the people', suggesting that universal suffrage is constitutionally provided for. However, there is no constitutional right to vote in the federal franchi se, though voting was made compulsory in 1948. Nonetheless, Indigenous people were at the whim of State electoral legislation, therefore the ir participation was not guaranteed. How ever, in Roach v the Australian Electoral Commission (2007) 233 CLR 162, the High Court held that there are limitations on the limits that the Com monwealth can impose on the franchise. For example, a blanket ban on all prisoners was ruled excessive, but a ban on those serving sentences longer than three years was he ld to be acceptable.

enormous.

Additionally, s 41 appears as if it were a 'right to vote' for those who have the right to vote for a State lower house, but the High Court has stated that s 41 was a transitional provision applying pre and post-federation, In re Pearson; ex parte Sipka (19 83) 152 CLR 254 and therefore of no legal effect for contemporary purposes.

For example, speakin g on whether Aboriginal s should be included in th e national political franchise by providing Indi genous peoples a right to vote, Senator Alexander Matheson, in the Federal

The deficiencies of the Constitution and the common law in protecting the rights and interests of Indigenous people gained momentum over two decades and culminated in the 1967 referendum.

counted.' As illustrated above, the extent to which Indigenous people were kept outside of the Australian legal and political franchise was

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THE 1967 REFERENDUM AND ITS LEGACY

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The Constitution did not formally exclude Indigenous people from citizenship or vote, but it certainly did not protect them from it either, leaving such issues to State legislatures. Section 127 of the Constitution essentially stipulated that Indigenous people were not to be counted as Australians. Until the positive result in the 1967 referendum, the majority of Indigenous people could not vote, receive social welfare, move freely, choose a place of residence, own property, receive wages or have the right to keep their own

CHAPTER 3 • INDIGENOUS ASPECTS OF CONSTITUTIONAL LAW

It was said that the 1967 referendum amendments were necessary to ameliorate the political, legal and social deficiencies that had legally persisted for so long to the detriment of Indigenous people. Interestingly, amendment to section 51 (xxvi) gavetheCommonwealth the right to make laws with respect to Aboriginal people, but did not require it to do so. This is illustrated in the following case of Milirrpum, which was five years prior to the passing of the Aboriginal Land Rights Act 1976 (Cth).

children. A Referendum was proposed, to amend and remove the exclusionary text 'other than the aboriginal race in any State' in s 51 (xxvi) and to repeals 127 altogether. The proposed referendum was supported by all political parties. The result of the referendum was an extraordinarily affirmative result, with a total vote of 90.77 per cent and carrying in all six States. This gave Federal Parliament the power to legislate with respect to Indigenous people and to 'reckon' (ie include) Indigenous people in the national census, respectively. It is often said that the 1967 referendum provided Indigenous people with citizenship and voting rights. It did neither. Indigenous people received Australian citizenship when all Australians did, in 1949 with the passing of the Australian Citizenship Act 1948 (Cth). Prior to that, all Australians were British subjects (see above at 3.7). Though, regardless of citizenship, it took until the 1967 referendum for Indigenous people to be counted in the national census. Also, the Commonwealth Electoral Act 1949 (Cth) gave Indigenous people a qualified right to vote at federal elections, if they were able to vote in their State elections or if they had served in the defence force. Remembering, the States had power to legislate with respect to 'Aboriginals' and the Commonwealth did not. So, even with the passing of the 1949 Act, there was no legal assurance for Indigenous people of being engaged in the political franchise.

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Mlllrrpum v Nabalco Pty Ltd (1971) 17 FLR 141

FACTS: In December 1968, the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the Supreme Court of the Northern Territory against Nabalco (which had a twelve-year bauxite mining lease from the Federal Government). The Yolngu claimed they enjoyed legal and sovereign rights over their lands and sought declarations to occupy their lands free from interference pursuant to their native title rights.

ISSUE: Did the Yolgnu enjoy legal and sovereign rights over their lands? Did the Yolgnu have native title to their lands? DECISION: The decision of Blackburn J categorically held that native title was not part of the law of Australia and that if it existed, the Crown had the power to extinguish.

Blackburn J accepted that the applicants had established that under traditional law any given part of the land could be 'attributed' to a particular clan, but held that this did not amount to a proprietary interest. He also found that the evidence did not establish the landholding model asserted. However, Blackburn J acknowledged for the first time in an Australian higher court the existence of a system of Aboriginal law. He also recognised the validity of the use of oral evidence to establish property rights (norma lly inadmissible in court) as a vital precondition

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for a successful land rights case. He also acknowledged the claimants' ' ritual and economic use of the land' . Though an Australian higher court had rec~nised the existence of a system of Aboriginal law, it was later confirmed by the High Court, that this system did not extend to constituting the exercise of, even a limited, Indigenous soverei gnty, see

brought an action against members of the Queensland government for

Coe v Commonwealth (1979] HCA 68.

breaches of ss 9 and 12 of the Racial Discrimination Act 1975 (Cth) which

Interestingly, Blackburn J, in a confidential memorandum to the government and opposition after the decision, opined that recognition of a system of Aboriginal land ri ghts was ' morally right and socially

of Racial Discrimination 1966 to which Australia is a party. The defendant argued that the Act was invalid.

expedient' . Although Milirrpum was not appealed beyond the Northern Territory Supreme Court, it would not be until the decision, two decades later in Mabo v Queensland (No 2) , that the Hi gh Court overruled the decision and recognised common law native title (see below at 3.9). Poignantly, Milirrpum led to the establishment of the Woodward Royal Commission and the eventual recognition of Aboriginal Land Rights in the Northern Territory, through the Aboriginal Land Rights Act 1976 (Cth). The Aboriginal Land Rights Act 1976 (Cth) was en acted by the powers granted at the federal level by the amended 1967 ' race power' (s 51xxvi). Critically, the scope of the race power has not received clear legal pronouncement as yet. However, the race power is gaining some form , albeit, ad hoc. The following two cases illustrate.

Koowarta v BJelke-Petersen (1982) 153 CLR 168

FACTS: The Aboriginal Land Fund Commission , a body corporate constituted by the Aboriginal Land Fund Act 1974 (Cth) contracted to buy a Crown Lease of a pastoral property in Queensland . The Queensland

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Minister for Lands refused his consent to the transfer of the lease because of a government policy which was opposed to the acquisition by Aborigines of large areas of land in the State.

ISSUE: Mr Koowarta, who had been active in arranging the purchase,

gave effect to the International Convention on the Elimination of all Forms

DECISION: The Racial Discrimination Act was a valid enactment with respect to 'external affairs' withins 51 (xxlx) of the Constitution.

Stephen J found that the Commonwealth could implement a treaty when it related to a matter of 'international concern ' and since suppression of racial discrimination is undoubtedly of international concern, it was a part of Australia's 'external re lations' . The majority held that Racial Discrimination Act 1975 (Cth) was validly enacted under s 51 (xx ix). . The minority justices, Gibbs CJ, Aickin and Wilson JJ, adopted the view th~t .a treaty can be implemented within Australia only if its subject matter 1s itself an 'external affair', that is, 'indisputabl y international in character' . As racial discrimination was not such a matter, the Act was invalid in their view. However, both Gibbs CJ and Stephen J held that the Racial Discrimination Act 1975 (Cth) had not been enacted under s 51 (xxvi ), as the Act was not a 'special law' for any one race, it protected people of all races from discrimination. \ Th ~ ratio of ~~e fo~r majority j~dgments mig~t be formulated in the following terms. the 1mplementat1on of a treaty 1s a valid use of power under s 51 (xxix) at least when the subject-matter is of ' international concern", the latter qualification being that of Stephen J. The legal issue was again highlighted and affirmed in Commonwealth v Tasmania (1983) 158 CLR 1.

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A case that clearly affirms the Commonwealth's full power to legislate under the amended ' race power' is the case of Kartinyeri v Commonwealth v Tasmania (The Tasmanian Dam case) (1983) 158 CLR 1 FACTS: Australia implemented the UNESCO Convention for the Protection

of the World Cultural and Natural Heritage In 1972, which imposed a duty on States to identify, conserve and protect the cultural and natural heritage within its territory. In 1975 the National Parks and Wildlife Conservation Act 1975 (Cth) was enacted to implement the Convention (relying on the external affairs power ins. 51 (xxix) of the Constitution. In 1982 , Tasmania passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas) which authorised the construction of a dam in an area which had been nominated for Inclusion on the World Heritage List (accepted in December 1982). In 1983 the World Heritage Properties Conservation Act 1983 (Cth} was enacted, relying on the external affairs power and the corporations power in s. 51 (xx). The Wilderness regulations of 1983, made pursuant to the National Parks and Wildlife Conservation Act 1975 (Cth) , specifically prohibited the construction of the 'Gordon below Franklin' Dam . The World Heritage Act 1983 (Cth) and regulations applied more generally to prohibit excavation, clearing and building activities in any property identified by the legislation. The Commonwealth commenced proceedings seeking a declaration that the construction of the dam was unlawful. Tasmania crossclaimed seeking declarations that the two Commonwealth Acts and the regulations were invalid. ISSUE:

Commonwealth (Hindmarsh Island Bridge) (1998) 152 ALR 540. This case clearly demonstrates that post 1967 the amended ' race power' could still have deleterious effects upon Indigenous people, regardless of the intended purpose for the amendment. In Kartinyeri, legislation was actually used to deny Ngarrindjeri people the protection and preservation of their cultural heritage under law. As the Hon . Kirby J succinctly put it: 'the dregs of the cup of that victory were not anticipated' at the time of the amendment. The background to the case is complex and multifarious. The South Australian Government approved bridge construction for a tourist resort at Hindmarsh Island. A group of Ngarrindjeri woman sought a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to stop bridge construction, claiming it would desecrate sacred sites. Under ss 9 and 10 of the Act, the Minister could make emergency declarations. The Minister commissioned an independent report on the nature of the claimed threat of injury, as required by the Act. Upon receiving the report the Minister made a declaration protecting the site (and preventing bridge construction) . Legal challenges were made against the declaration and found to be defective, see Chapman v Tickner (1995) 55 FCR 316.

DECISION: The Majority (Mason, Murphy, Deane and Brennan JJ) decided

A new report was commissioned and the reporter was to be Matthews

in favour of the Commonwealth, finding that the World Heritage Convention imposed the relevant obligation on the Commonwealth. The enactment of the Commonwealth Acts had been a valid exercise of the Commonwealth 's constitutional powers in s 51 (xxlx).

J of the Federal Court, however, in Wilson v Minister for Aboriginal and

Torres Strait Islander Affairs (1996) 189 CLR 1, the High Court found having a Federal Court Judge advise the Minister was incompatible with her status as a Federal Court Judge for breaching the separation of powers doctrine. During which time the South Australian government ordered a

What is of interest to note in th is case, with regard to Indigenous aspects of constitutiona l law in Austra lia, in obiter Murphy, Deane and Brennan JJ indicated the scope of the power of s 5 1 (xxvi) could only support laws enacted w h ich benefited a particular race. However, Gibbs CJ stated, also in obiter, that the race power was plenary, supporting bo th beneficial and detrimenta l laws. It was the Chief Ju stice's view which appears to be lega lly preferable .

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Royal Commission, which subsequently found that the original claims for protection were not genuine. However, a subsequent Federal Court case found that 'the main bases for the Roya l Commission conclusion were not established' . A change of federal government occurred in 1996 and the new Parliament passed the Hindmarsh Island Bridge Act 1997 (Cth). The Act exempted the bridge project from the ministerial approval process.

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The effect of the Act was to remove bridge construction from the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). That is, the construction of the bridge would proceed regardless of any injury or harm to Indigenous heritage in the area.

aliens, in and entering into Australia, to restrict their movements (and occupations) and to secure their return to their cou ntri es of origin .

Th~ po':'er w~s alway~ intended to be used in relati on to non-Anglo races . Ax1omat1cally, this power facilitated the enactment of ' racist' laws, even to the extent of applying to subdivisions and identifiable subgroups of a people defined by reference to the ir race. 1

~oweve r, i~ is very curious to note that the power conferred by Kartlnyeri v Commonwealth (Hindmarsh Island Bridge) (1998) 152 ALR 540

FACTS: See above. ISSUE: Was the Hindmarsh Island Bridge Act 1997 (Cth) validly enacted pursuant to s 51 (xxvi) of the Constitution? Did s 51 (xxvi) authorise laws which were detrimental to Indigenous people?

DECISION: The Bridge Act was validly enacted under s 51 (xxvi). The scopes 51 (xxvi) was not clarified by the court, but it was held by Gummow and Hayne JJ that the power could support adverse legislation.

sect10.n 51 (xxv1) had not been exercised before 1967. Notwithstanding, the ~1 g h Court has stated, 'it is of the essence of' a law supported by section 51 (xxvi) to be discriminatory. Importantly, the High Court confirmed, by majori ty, that within the power ?ranted by section 51 (xxvi) was the power to amend and repeal laws with respect to Indigenous people.

MABO AND THE RECOGNITION OF NATIVE TITLE It is often mistakenly thought that the landmark dec ision in Mabo

The High Court stated that the original purpose of the race power

3.9

(No 2) was an amendment 'by stealth' (that is, by un-elected judges) of the Commonwealth Constitution. It was not, nor was it any type of amendment to the Commonwealth Constitution, per se.

had not been affected by the 1967 referendum. Though, it must be noted that the meaning and scope of the race power in section 51 (xxvi ) is unsettled, as the court was unable to reach

:he case is better viewed as having a critica l effect upon the legal basis for understandings and interpretations within Australian property law (land law).

a majority view on the provision's meaning and the tests that should be applied for deciding statutory validity under the provision. Notwithstanding, the High Court acknowledged that while not a bare power, the words 'for whom it is deemed necessary to make

As such, the following part discusses the re levant cases in their constitutional setting, that is, the contestability of sovereignty issues and how 'property' rights have been delineated along racial lines.

special laws' operates to impose limits of legal constructions which onl y impose benefits. Therefore confirming that legitimate discrimination is allowable when based upon real and relevant difference as reasonabl y judged by parliament. However, the interpretation of 'for whom it is deemed necessary to make special laws' is retained as a part of the court's residual supervisory powers. The original purpose of the race power in section 51 (xxvi ) was to allow

Mabo v Queensland (No 2) (1992) 176 CLA 1

FACTS: Five Murray Islanders (whom Eddie Mabo was one) initiated an action against the government of Queensland seeking declarations of rights t o the use and enjoyment of traditional land that had been continuously occupied by the Mariam people before and since the annexation by the defendant government.

the Commonwealth to enact special laws for the benefit or detriment of

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ISSUE: Whether, on acquiring sovereignty, the Crown became owner of all of the land or whether the Crown's title was burdened by any prior title? Did

native title exist in Australian law? DECISION: Held that there was common law native title in Australian law. Removed the legal fiction of terra nu//ius while maintaining the acquisition of sovereignty and replaced the Crown's absolute title with radical title.

In Mabo (No 2) it was held that the Crown's acquisition of

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Interestingly, the requirement to provide compensation for the effects of 'past acts' under the Native Title Act, are matters that have yet to be determined by any court. Consequently, it can be easily viewed how Indigenous native title (property) rights have been dealt with in entirely different ways than wou Id normally apply under substantive constitutional rights to property. A case which sought to invalidate the effect of the Native Title Act was Western Australia v Commonwealth (Native Title Act Case) (1995) 158 CLR 1.

sovereignty over the several parts of Australia could not be challenged in an Australian municipal court. Further, upon acquisition of sovereignty over Australia, the Cr~wn acquired a radical title to the land, but native title to that land survived the Crown's acquisition of sovereignty and radical title. It is said that native title is a 'burden' upon the Crown's radical title. Though, it is important to remember that in the hierarchy of the te~ure system, native title ranks the lowest. Though, native title is not derived from the common law.

In the Native Title Act Case, seven High Court justices confirmed that native title could exist in mainland Australia and found that the Federal Government had power under the Commonwealth Constitution (s 51 xxvi) to enact the Native Title Act 1993 (Cth). It was also unanimously agreed, in the matter, that the Native Title Act was for the benefit of Indigenous people. The Court was also unanimous in finding that native title could only be extinguished in a manner that was consistent with the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth).

What was said to have survived were rights and interests in relation

Western Australian legislation that purported to extinguish native

to land or waters. Those rights and interests owed their origin to a

title and replaced it with rights of traditional usage was found to be inconsistent with both Commonwealth Acts. By operation of s 109 of

normative system other than the legal system of the new sovereign power (the common law); and they owed their origin to the traditional laws acknowledged and the traditional customs observed by the Indigenous people concerned. Therefore, as a result of the decision in Mabo (No 2) the High Court

the Constitution, the State legislation was, therefore, inoperative. The following cases also highlight how even with the subservient position of native title compared with common law that native title has been further maligned and weakened by parliamentary amendment.

was able to 'backdate' the Crown's acquisition to 1788 and infuse it with the 'burden' of native title. This point has had adverse legal effect towards Indigenous people claiming native title, as the following cases illustrate. The decision in Mabo (No 2) was an impetus for the enactment of the Native Title Act 1993 (Cth). The Native Title Act 1 993 (Cth) and parallel State and Territory Acts validated 'past acts' whi.ch :vould have otherwise been in contravention of s 109 of the Const1tut1on and the

The Wik Peoples v The State of Queensland (1996) 141ALR129

FACTS: The Wik people (and the Thayorre people) claimed to be the holders of native title over certain parts of Queensland, including the Holroyd River Holding and the Mitchellton Pastoral Leases. In 1915 and 1919, pastoral leases had been granted by the Crown to non-Aboriginal lessees over

Racial Discrimination Act (1975) (Cth).

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Mitchellton Pastoral Leases under The Land Act 1910 (Qld) - in 1945, the same Act was used to give another pastoral lease. The Wik people claimed their native title was not extinguished because of these statutory leases. ISSUE: Did statutory pastoral leases extinguish native title? DECISION: The High Court found that the statutory pastoral leases under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could co-exist depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights.

Toohey J, in the majority, recognised that the first step was to see whether leases granted exclusive ownership; the second was to look deeper into whether this meant native title was extinguished . It was claimed that, in 1842 that management of Crown land was brought under statutory control with the Sale of Waste Lands Act 1842 (Imp). The respondents argued that the leases gave them exclusive possession through the examination of common law principles. They claimed that it was actually a matter of statute-establishes that ' leases' are a vase term (see, Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177) and the fact that commercial transactions are generally not concerned with something under the common law, such as native title rights. However, Toohey J refers to communications between the Secretary of State, Earl Grey, to the Governor of NSW about leases allowin g exclusive rights to farm cultivation and cattle, but that ' natives could still [have] the right to hunt and wander' . People in Australia and England, at the time, were adamant that the Aboriginal people should not be pushed into the sea - in this backdrop, it's unlikely that the leases made under the statute were to exclude Aboriginal people from them. Therefore, with respect to these pastoral leases there were no exclusive rights. That is, legislation regulated certain practices, but did not extinguish native title. See, State of Western Australia v Brow n & Ors

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[2014] HCA 8; Leo Akiba on behalf of the Torres Strait Islander Regional Seas Claim Croup v Commonwealth of Australia & Ors (2 013] HCA 33; O wen John Karpany & Anor v Peter John Dietman [2 013) HCA 47.

Al so, in Wik, there was no clear and plain intention in th e legislati on - on the part of the government - to extin guish rights when granting the pastoral leases, which wo ul d be required in extin gu ishing native title rights. Fu rthermore in Wik, Toohey J stated that there is no extinguishment of native titl e rights - however, if there are co nfl icts, then the rights under the statute and lease would prevail. See, Yan ner v Eaton (1999) 201 CLR 351 ; The Commonwealth v Yarmirr (2001) 208 CLR 1; Western Australia v Ward (2002) 213 CLR 1. Gum mow, Gaudron and Kirby JJ agreed with Toohey Jthat the claim should be upheld. Whereas in Wik, Brennan CJ in dissent, identified that the strength of native titl e is that it is enforceable by ordinary co urts; however the weakness is that it is not protected by common law the same way Crown tenures are. The problem is that both native title and Crow n ownership can 't be exe rcised at the same time, but the law can attri bute priority to one over the other. His honour cited Western Australia v The Commonwealth (Native Title Act Case) (1995) 158 CLR 1 in which native title exists for ' land

that has not been alienated or appropriated by the Crown ' . His honour then stated that any native title rights had been extinguished as a result of the 1910 Act, as agreed by McHugh and Dawson JJ . • The deci sion in the case resulted in Parliament amending the Native Title Act. The Native Title Act was amended in 1998 to allow for State and Territory clearing of native title prior to re-assigning the land to other third parties. As six justices of the High Court said in, Fejo v Northern Territory (1998) 195 CLR 96: Native title has its origin in the traditional laws acknow ledged and the customs observed by the indigenous people who possess th e native title. Native title is neither an institution of the common

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law nor a form of common law tenure but it i.s recogni~e.d by the common law. There is, therefore, an intersection of trad1t1onal laws an~stoms with the common law.

Yet, it appears that at the intersection, the common law always g.ets right-of-way. Sees 223 of Native Title Act 1993 (Cth) and the following cases. In the case of Members of the Yorta Yorta Community v Victoria (2002) 214 CLR 422, it was held that much had changed in Aboriginal society as a result of British settlement. The Native Title Act requires that a claimant prove first, that acknowledgment and observance of traditional laws were in place at 1788. Second, that those acknowledgments and observances have a connection to particular land. Third, that those rights and interests are recognised by the common law of Australia. The last point does not mean that native title is given definition or content by the common law, nor does it mean that the common law or common law elements can establish native title. See The Commonwealth v Yarmirr (2001) 208 CLR 1; Western Australia v Ward (2002) 213 CLR 1. Effectively, this means that the rights and interests being claimed must be precise for the common law to recognise such and as the Crown's radical title was burdened by native title in 1788. It follows then that that precision of the claimed rights and interests must be directed towards those rights and interests as they were in 1788. See The Commonwealth v Yarmirr (2001) 208 CLR 1; Western Australia v Ward (2002) 213 CLR 1; Members of the Yorta Yorta Community v Victoria (2002) 214 CLR 422.

The court has therefore, placed 'tradition' at the heart of establishing native title. It is 'tradition' as at 1788 and it is a 'tradition' requiring a high degree of continuity. Yet it is a definition that the court ~as attributed with little regard to the diametrically transformed social, legal and cultural evolutionary context of Australia. For example, it was questioned by at least one Justice in Yorta Y~rta as to the extent to which longstanding law and custom may evolve without ceasing to be traditional. See Yanner v Eaton (1999) 201 CLR 351.

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The above points appear to contradict Brennan J's statement in Mabo (No 2) about 'it is imperative in today's world that the common law should neither be or be seen to be frozen in an age of racial discrimination.'

In some ways the common law has evolved from an age of denial of rights based upon race and yet, with the recognition of native title it might be said that the common law has placed Indigenous claimants in a more legally tenuous position. Interestingly, in Yorta Yorta, McHugh J acknowledges that the High Court has placed a much narrower construction on section 223 of Native Title Act 1993 (Cth) than what Parliament had intended. STOLEN GENERATIONS AND THE NATIONAL APOLOGY

In 2008, the then Prime Minister, Kevin Rudd, made a symbolic gesture to some Indigenous people by apologising to the surviving 'Stolen Generations' on behalf of the Federal Government for past government practices in 'removing' Indigenous children from their Indigenous parents and families. On the face of it, this would appear as a monumental step in 'reconciliation'.

3.10

However, from the fact that the apology was made in Parliament, itself, as well as, the language used in the 'apology' and further still, through clear responses from government, it was made patently clear that no legal effect would result from such an acknowledgment. That is, no compensation for those who suffered under such manifestly prejudiced policies and practices by governments would be forthcoming. The apology was symbolic and without legal effect.

•

For us, symbolism is important but, unless the great symbolism of reconciliation is accompanied by an even greater substance, it is little more than a clanging gong. It is not sentiment that makes history; it is our actions that make history. Today's apology, however inadequate, is aimed at righting past wrongs. Prime Minister Kevin Rudd, 2008

While symbolism may be an initial step in achieving reconciliation, it should be borne in mind that symbolism is not a destination, nor is

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it predictable as to how such well-meaning symbolism will be legally determined in the future, as Kartinyeri demonstrates (see above at 3.8). However, it is also critically important to understand that current practices of child removal amongst Indigenous communities and the rates at which they are occurring are not abating. For example, nationally, present removal rates of Indigenous children are higher than they have ever been . It has been argued elsewhere that the effect of such removals has detrimental consequences in many instances for Indigenous children's development and maintenance of their cultural connections. Though, contemporary removals are not affected under such blatantly racist governmental legislative instruments or policies, the effect is similar. See, Australian Institute of Health and Welfare, Child Protection Australia 2008-09 (AIHW, 2010).

FIDUCIARY OBLIGATIONS AND DISCRIMINATION

3.11

It is sometimes argued that Indigenous people have, at times, been in a fiduciary relationship with various Australian governments. Yet Australian law, uni ike in Canada or the United States, for various reasons has rejected the characterisation of these relationships as 'fiduciary'. Fiduciary law is an equitable doctrine that is concerned with power imbalances in a relationship between parties. It can apply even where there is no formal transaction between the parties. The fiduciary relationship between a guardian and their ward is well recognised . If a fiduciary relationship is recognised, then the fiduci ary is subject to identifiable 'proscriptive' obligations. Further, fiduciary relationships do not usually give rise to 'affirmative' obligations. Australian courts have been unwilling to interpret statutory powers (even those 'protection' statutes which placed Indigenous people in State guardianship) as giving rise to fiduciary obligations. Australi an courts have regularly ruled that such statutory powers are more consistent with governmental actions of implementing offi cial policy, rather than giving rise to a fiduciary relationship. In the case of Director of Aboriginal and /slanders Advancement v Peinkinna (1978) 17 ALR 129, the Privy Council held that the

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director's powers under the Aborigines Act 1971 (Q ld) (to authorise mineral extraction on an Aboriginal reserve) did not give rise to a fidu cia ry relationship as the power to authorise was judged to be an admi nistrative power only. See Commonwealth v Northern Land Council (No 2) (1987) 75 ALR 210. It has also been suggested by Toohey J in Ma bo (No 2), that 'protection ' as a possible foundation for giving rise to fiduciary obli gations, given the course of dealings by governments in controlling Indigenous populations through various instances of we lfare legislation . Yet, Au stral ian courts have continually rejected this argument. See, Cubillo v Commonwealth (2000) 174 CLR 97; Willia ms v Minister Aboriginal Land Rights [2000] Aust Tort Reports 81 -578. The continued denial by Australian courts of 'fi duciary obligations' arisin g between Indigenous people and Australia n governments under statute (especially, in particular instances and ci rcumstances regarding 'protection '), may appear discriminatory. In other words, there may appear to be judicial acceptance of inequality under the law. However, such judgments should also be contextualised within the greater Australian constitutional framework, as there is very limited (and qualified) acceptance by the High Court that the Constitution implies a right to equality. In Leeth v Commonwealth (1992) 174 CLR 455, a majority of the High Court found that the Constitution guarantees an implied right to equal ity. However, the guarantee was held not to be absolute. Deane and Toohey JJ outlined a test for permissible discrimination: The doctrine of legal equality is not infringed by a la'1' which discrim inates between people on grounds which are reasonabl y capabl e of being seen as providing a rationale and relevant basis for the discriminatory treatment. Here, Deane and Toohey JJ, endorsed the presence of an implied guarantee of substantive equality that would apply to both the application of laws and laws themselves. Brennan and Gaudron JJ agreed that there was an implied right of equality in the Constitution but, did not state whether it was a substantive or procedural right.

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Mason CJ, Dawson and Mc Hugh JJ, rejected the proposition that the Constitution guaranteed equality. The rather tenuous pronouncement by the High Court that there is an implied right to equality has been truncated by the decision in Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1. In the case of Kruger, the High Court found that the Aboriginals Ordinance 1918 (N T) while authorising 'executive detention', did not impinge on the separation of power (in this instance - judicial power) doctrine.

CHAPTER 3 • INDIGENOUS ASPECTS OF CONSTITUTIONAL LAW

ISSUE: Was there an 'acquisition of property' made through the compulsory lease? If so, was the acquisition conducted on 'just terms'? DECISION: The High Court accepted that the constitutional guarantee of

'just terms' applied to acquisitions effected by the territories power in s

122 of the Constitution. A majority also agreed that the involuntary lease amounted to an acquisition of property. The High Court ultimately rejected the claim on the basis that the plaintiffs failed to demonstrate an absence of 'just terms'.

Furthermore, in the case of Kruger, the High Court found that there is no constitutional protection against genocide.

NORTHERN TERRITORY INTERVENTION

3.12

Kirby J, in his final judgment before his 'constitutionally mandated retirement', voiced his continued frustration at the treatment of Indigenous people in previous decisions and by the Court generally, in Wurridjal, stating: History ... , teaches that there are many dangers in enacting special laws that target people of a particular race and disadvantage their rights to liberty, property and other entitlements by r~ference to that criterion .... 'law knows no finer hour' than when 1t protects individuals from selective discrimination and persecution. This Court should be specially hesitant before declining effective access to the courts to those who enlist assistance in the face of legislation that involves an alleged deprivation of their legal rights on the basis of race. All such cases are deserving of the most transparent and painstaking of legal scrutiny.

Wurrldjal v Commonwealth (2009) 237 CLR 309 FACTS: The High Court considered a constitutional challenge to one

aspect of the federal intervention into remote Aboriginal communities In the Northern Territory. The plaintiffs argued that the imposition of a fiveyear lease over Aboriginal land in favour of the Commonwealth was an 'acquisition of property' for the purposes of s 51 (xxxi) of the Constitution and that the relevant legislation failed to provide just terms.

104

This decision reaffirmed the strength of property rights held by Aboriginal groups over more than 40 per cent of the Northern Territory, as the power contained within section 122 was held to be subject to the limitation in section 51 (xxxi) of the Constitution. However, the Commonwealth defeated the challenge due to majority acceptance that the plaintiffs failed to establish an absence of 'just terms'. The plaintiffs failed to demonstrate to the Court's satisfaction how a compulsory enforced lease was not on just terms. Critically, the High Court had previously stated that while native title rights are true legal rights, they are inherently susceptible to extinguishment by grant inconsistent with native title rights, whether the grant is supported by legislation or the prerogative. See Mabo v Queensland (No 2) (1992) 175 CLR 1; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513. However, it should be remembered that the reasoning in Wurridjal was case-specific and it has left unanswered questions about 'just terms' for the culturally distinct property rights held by Indigenous peoples.

CONSTITUTIONAL RECOGNITION Recent moves to recognise Indigenous people in the Australian Constitution have been proposed . However, the proposition itself is not so new.

3.13

Poignantly, it shou Id be borne in mind that other national recognition opportunities have not been adopted, or dismissed completely. For example, the National Aboriginal Council (NAC) (predecessor to the 105

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Aboriginal and Torres Strait Islander Council (ATSIC)) campai gned and advocated for a treaty (a Makarrata) in the 1980s to be included within the Australian onstitution without any success or political cooperation. Furthermore, other institutions have promoted reform on the topic of ATSI constitutional recognition. They include: the Constitutional Commission in 1988; the Constitutional Convention of 1998; the 1999 'Australian republic' referendum; the Council for Reconciliation in 2000; the Australia 2020 summit in 2008; and the House of Representatives Standing Committee on Legal and Constitutional Affairs in 2008. None of these have succeeded . However, what has occurred ' recently' is that some State Governments (Vic, NSW and Qld) have begun recogn ising their Indigenous populations in their respective State Constitutions. It should be noted from the outset that the ' recognition ' is purel y symbolic (see above at 3.10) and each State's 'constitutional recognition ' expressl y states th at such recognition will have 'no legal effect' . See Constitution Act 1902 (NSW) s 2; Constitution Act 1975 (Vic) s 1A; and Constitution of Queensland Act 2001 (Qld) preamble and s 3A. In 2010, the Federal Government announced the formation of an Expert Panel to inquire into and report upon, the likelihood of ' recognising' Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Many submissions to the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples -which had carriage of conducting and reportin g upon public responses to the proposition - undeniably support the contention that 'sovereignty' is still a live issue for many people in Au stralia, especiall y Aboriginal and Torres Strait Islander people (see above at 3.2).

PROPOSED AMENDMENTS • • •

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Removes 25 - which allows the States to ban people from voting based on their race. Removes 51 (xxvi) - which can be used to pass laws that discriminate against people based on their race. Insert a news 51 A- to recognise Aboriginal and Torres Strait Islander people and to preserve the Australian Government's

CHAPTER 3 • INDIGENOUS ASPECTS OF CONSTITUTIONA L LAW

ability to pass laws for the benefit of Aborigina l and Torres Stra it Islander people. •

Insert a new s 116A - banning racial discrimination by government.

•

Insert a news 127A- recognising Aborigina l and Torres Strait Islander languages were Australia's first languages, while confirming that English is Australia's national language.

In a report delivered to the Australian Prime M in ister on 19 January 2012, it was recommended that a referendum be held for the repeal of s 51(xxvi), which would be replaced bys 51A (which empowers the Commonwealth to make laws for the benefit of Indigenous Australians, while also recognising Aboriginal and Torres Strait Islanders as Australia's fi rst peoples). Fu rther, the report recommended that s 116A be inserted into the Constitution (which would prohibit the passing of rac iall y discriminatory legislation or the making of laws under s 51 A that are not for the benefit of Indigenous people). On the 27 March 2013, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) received roya l assent and became law. Thi s Act is a necessary initial step in securing recognition of Aborigi nal and Torres Strait Islanders in the Constitu tion. However, what should be noted from the Act is that while it may appear popu lar given its aspirational fa;ade, the legislation lacks the substance required for meaningful change. That is, it is purely symbolic. Critically, the Act has a 'sunset clause' at s 5 and as such, ceases to have effect after a period of two years from its commencement. Therefore, the possibility of a successful referendum recognising Aboriginal and Torres Strait Islanders in the Constitution under this legislation appears to be fraught with risks, due to the limited timefra me. It has recently been announced (September 2014) that the referendum will be held in 2017, but this is yet to be legislated .

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THE LEGISLATURE

4.1

The structure of the Commonwealth Constitution (CC) demonstrates a vision of government divided into three branches: Legislature, Executive and Judiciary. The High Court has been zealous in keeping judicial power separate from legislative and executive power (see further sections 4.6-4.8). Chapter I of the CC is entitled 'The Parliament' and comprises 60 of the 128 sections of the CC. Section 1 vests 'the legislative power of the Commonwealth' in a Federal Parliament but it is not until s 51 that these powers are described, although many sections make provisions 'until the Parliament otherwise provides'. Legislative powers are the crucial element in a federal constitution: the Federal Parliament has only the powers allocated to it by the CC. As we will see in this chapter, Chapter 5 and all the chapters in Part II, the High Court has expanded the scope of the Commonwealth legislative powers so judicial power has assisted the growth of legislative power. The High Court has also expanded the scope of executive power, but has been most zealous in its enhancement of judicial power, that only courts may exercise it, and its separation from the other powers

may only dissolve the Senate as part of a double dissolution under s 57. The Parliament must sit within 30 days of the return of the writs for its election. Under s 6, the Parliament must meet at least every year and in practice meets much more often, as decided by the executive. These references to powers of the Governor-General illustrate a basic prob lem of the Constitution. Are they to be exercised on ministerial advice? Convention says so, but the Constitution does not. Some scholars declare that the power to dissolve or to refuse to dissolve Parliament and the power to appoint and dismiss a Prime Minister are ' reserve' powers that do not need to be exercised on ministerial advice, yet it is surprising to find these powers in the hands of an unelected official in a democracy. See further 4 .14 .

Qualifications, procedures and privileges Under s 16, the qualifications of a Senator are to be the same as those of a Member of the House. The disqualifications, set out in s 44, are also the same.

4.4

Constitution of the Legislature 4.2

The Parliament consists of the Queen, a Senate and a House of Representatives (s 1). Section 2 provides for the Queen to be represented by a Governor-General. The Governor-General is appointed by Letters Patent from the Queen and holds office at her pleasure but is also subject to the Constitution. In reality, the Governor-General holds office at the Prime Minister's pleasure and by convention acts only on ministerial advice except for the 'reserve' powers (see 4.4). Although she is part of the Parliament, the Governor-General also exercises the executive power of the Commonwealth and is therefore covered further in 4.3 and 4.4 .

Sykes v Cleary {No 2) (1992) 176 CLR 77

FACTS: S, an unsuccessful candidate In the Wills by-election, challenged the eligibility of the independent winner C, the Labor candidate K and the Liberal candidate D.

ISSUE: The application of the branches of s 44. DECISION: C, a teacher on unpaid leave from the Victorian teaching service, was held to be holding 'an office of profit under the Crown' and was thus ineligible; K continued to hold Greek citizenship and was thus ineligible; D continued to hold Swiss citizenship and was therefore ineligible. The election was declared void.

Sessions 4.3

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Under s 5, the Governor-General determines the sessions of Parliament and may prorogue the Parliament, that is, end a session. The GovernorGeneral may also dissolve the House of Representatives at any ti me but

Section 47 authorises the Parliament to determine any question concerning the qualification of members or disputed elections or to provide otherwise. This has been done via the Commonwealth 111

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Electoral Act 1918 (Cth) which established the High Court as the Court

free to reject them (s 53). It is also to be only half the size of the House

of Disputed Returns.

under s 24, so it is likel y to be outnumbered in a joint sitting under s 57, but there has only ever been one of these. Senators serve longer terms than Members of the House and the Senate is much harder to dissolve than the House, so in some ways the Senate has more power than the House. Section 57 is intended to give the House ultimate power over the Senate, but it is such a cumbersome mechanism that it is seldom used for this purpose. Under s 64, ministers may be members of either the Senate or the House.

R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 FACTS: F and B had published scandalous allegations against Members

of Parliament and the Speaker issued warrants for them to be imprisoned. ISSUE: Does the Parliament have the power to prosecute and imprison

for contempt? DECISION: Yes it does under s 49. This case is also relevant to the

discussion of the separation of powers (see below). Under s 49, the powers, privileges and immunities of the two houses shall be as declared by the Parliament and until so declared shall be the same as those of the British House of Commons. This has been done piecemeal by legislation over the years eg, Parliamentary Papers Act 1908 (Cth}, Parliamentary Procedures Broadcasting Act 1946 (Cth), Parliamentary Privileges Act 1987 (Cth). Under CC s 50, each house may make rules and orders to achieve these objectives and both have done so. Both have their Standing Orders but also provision for these to be suspended so that special business may be attended to.

Section 7 constitutes the Senate. It is to comprise an equal number of senators for each original State 'directly chosen by the people'. The Parliament has increased the number of Senators from six to 12 per State. Senators are elected for six-year terms with half the Senate elected every three yea rs. If there is a double dissolution under s 57, the whole Senate is up for election and the new Senate must be divided into Senators to serve six-year terms and senators to serve three-year terms. The Parliament could legis late to divide the States into multiple Senate electorates but this has not been done, so each State remains a single Senate electorate. While s 7 clearly states that the Senate comprises senators from the States, s 122 provides for the Parliament to provide for representation of the Territories in either House of Parliament.

The Senate

4.5

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Part II of Chapter I of CC deals with the Senate. Following the British convention, the Senate is known colloquially as the 'Upper House' and the House of Representatives the 'Lower House' but this is no indication of superiority. Indeed, convention has made the House of Commons clearl y superior to the House of Lords. In Australia, the picture is not so clear. The Senate is the first house covered in the CC, and while convention dictates that the government is formed in the lower house, the Senate has almost equal power to the House. Its only disabilities are from originating and amending money bills, but it is

Western Australia v Commonwealth (First Territory Senators' case) (1975) 134 CLR 201 FACTS: The Commonwealth legislated under s 122 for the representation

of the Territories in the Senate by two senators each with full voting rights. ISSUE: Does s 7 ors 122 prevail? Or does s 122 only permit representation by a member with restricted rights? DECISION: By 4:3 the High Court upheld the Act.

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After a change of personnel on the Court, Queensland sought to reopen the case: Roach vAEC (2007) 233 CLR 162

Queensland v Commonwealth (Second Territory Senators' case) (1977) 139 CLR 585

FACTS: as above. ISSUE: as above. DECISION: Mason, Jacobs and Murphy JJ retained their positions from the first case. Gibbs and Stephen JJ refused to overturn the first case, in which they had dissented. Barwick CJ retained his dissent and was joined by the new judge Aickin J.

FACTS: R, an Aboriginal woman, had been sentenced to 3 years' gaol. Under 2006 amendments to the Electoral Act, she was ineligible to vote. ISSUE: Is there an implied right to vote in the CC? DECISION: CC s 30 gives discretion to the Parliament to determine who has the vote but disqualification of all persons sentenced to imprisonment is excessive. However, disqualification of those sentenced to imprisonment of three years or more was acceptable, so R was still disqualified.

Method of election Each Territory now has two Senators, but they only serve three-year terms. The Senate thus has 76 members.

Franchise

4.6

CC s 8 provides that the qualification of electors shall be the same for the Senate as for the House of Representatives. The latter is provided for in s 30 and has been regulated by the Commonwealth Electoral Act. It is notable that the States retained restrictions on el igibi Iity to vote for their Upper Houses well into the 20th century (with the exception of Queensland which abolished its appointed Upper House in 1922). Section 25 provides that States which exclude a particular race from the franchise will not have persons of that race counted when calculating the number of their electors. This section should be repealed . Section 41 appears to give a right to vote in federal elections to all those eligible to vote in State elections but has been held not to have this meaning. 1 Scholars and judges are divided as to whether there is a right to vote:

1

114

R v Pearson; ex parte Sipka (1983) 152 CLR 254.

The Parliament is free to determine the method of election, though the States have the exclusive power to determine the time and place of such elections. In 1949, the Commonwealth legislated to provide for the Senate to be elected by proportional representati on . This has had a profound effect on Australian politics. Under s 12, the Governor of a State issues writs for the election of Senators. Section 13 provides for the establish ment of a rotation of Senators so that except for double dissolutions, half the Senate will be elected every th ree years.

4.7

Casual vacancies Section 15 covers the filling of casual vacanc ies in the Senate and provides for the State Parliament to choose a successor for the duration of the vacating Senator's term. This section was the -subject of a successful Constitutional amendment in 1977 after two vacancies in 1975 were filled on the decision of State Prem iers by Senators who were not the nominees of the party of the vacati ng Senator.

4.8

The House of Representatives Section 24 provides for the House of Representatives to be 'directly chosen by the people', to be as near as practicabl e twice the size of the Senate, with representatives for each State according to population,

4.9

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but with no original State to have fewer than five. Tasmania thus has

ISSUE: Could a Commonwealth award bind a State employee?

five members when only two would be proportionate to its population.

DECISION: The Commonwealth powers would be given their ordinary

meaning and not subject to any implied limitations so the State employees were covered by the Commonwealth award. Attorney-General (Cth); Ex rel McKlnlay v Commonwealth (1975) 135 CLR 1 FACTS: Three electors challenged the Inequality of electoral divisions in the

House of Representatives. ISSUE: Does CC s 24 require divisions of equal size? DECISION: A new determination of members must be made, based on current statistics, before every regular election of the House of Representatives.

The s 51 powers are briefly summarised as fol lows and crossreferenced where necessary: (i)

Trade and commerce with other countries, and among the States: see further Chapter 7;

(ii) Taxation: but so as not to discriminate between States or parts of States: see further Chapter 9; (iii) Bounties on the production or export of goods, but so that such

Sections 7 and 24 have been used as the basis for arguing that the CC guarantees representative democracy, and that this also entails t~e r~ght to vote (discussed above) and to freedom of political communication. See further Chapter 10.

(v) Postal, telegraphic, telephonic, and other like services: internet. It is also a leading example of how the Constitution

The most important legislative powers are set out in s 51. These are

concurrent powers -

(Very few such bounties left; not further dealt with.) (iv) Borrowing money on the public credit of the Commonwealth: see further Chapter 9; Significantly, this has extended to radio, television and the

LEGISLATIVE POWER

4.10

bounties shall be uniform throughout the Commonwealth;

that is, the States are free to exercise them until

has been extended to embrace technologies not invented at federation.

the Commonwealth does so. Once the Commonwealth has exercised these powers, any inconsistent State legislation is invalid under s 109 (see further Chapter 5). In the early years of the Commonwealth, the High Court interpreted its powers as being subject to reserved powers and implied immunities, but the Engineers' case swept these away.

R v Brislan; Ex parte Wiiiiams (1935) 54 CLR 262 FACTS: A radio broadcaster sought to challenge Coaimonwealth regulation of the sector. ISSUE: Did s 51 (v) enable the Commonwealth to regulate radio broadcasting?

Amalgamated Society of Engineers v Adelalde Steamship Co Ltd (the Engineers' case) (1920) 28 CLR 129 FACTS: The ASE argued that a Commonwealth industrial award applied to all its members including State employees.

DECISION: Radio broadcasting was within the 'denotation' of s 51 (v).

See also Jones v Commonwealth (No2) (1965) 112 CLR 206 wheres 51 (v) was also extended to television. This provision was also significant in the Australian Capital Television case discussed further in Chapter 10.

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(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth: This was held to be a purposive provision in the Communist Party case. The Court will consider the proportionality of the law in achieving its purpose. There is al so a royal prerogative to make war and peace . See further 4.4 below. There are numerous cases on the scope of the defence power, but we do not discuss them.

CHAPTER 4 • LEGISLATIVE, EXECUTIVE AND J UDICIAL POWER

(x iii)

Banking, other than State banking: Also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money.

In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 it was held th at this power did not extend to the nationalisation of commercial banks on the grounds that this would breach s 92. See further Chapter 7.

(x iv)

Insurance, other than State insurance: Also State insurance extending beyond the limits of the State co ncerned:

Not controversial.

(xv)

Weights and measures:

Not controversial. Australia went metric in 1974.

Australian Communist Party v Commonwealth (the Communist Party case) (1951) 83 CLR 1 FACTS: The Act gave the minister the power to declare someone to be a

communist and subject to certain civil disabilities.

(xvi)

Bills of exchange and promissory notes:

Not controversial.

(xvi i)

Bankruptcy and insolvency:

Cause for the first Federal Court after the High Cou rt, now a division of the Federal Court.

ISSUE: Was the Act within the defence power?

(xvi ii)

DECISION: The Act was not within the defence power. It was peacetime

See for example, Grain Pool of WA v Cth (2000) 202 CLR 479: this section covers new intellectual property rights too.

and the court would decide the scope of the defence power.

(xi x)

Copyrights, patents of inventions and designs, and trademarks:

Naturalisation and aliens:

See further Chapter 8.

This case is also significant in the separation of powers (see 4.8 below). (vii )

Lighthouses, lightships, beacons and buoys:

Never litigated but often used in argument.

(viii )

Astronomical and meteorological observations :

Not controversi al.

(ix)

Quarantine:

Not controversial that Commonwealth should have this power.

(x)

Fisheries in Australian waters beyond territorial limits:

Emphasises that States have control of some of their waters.

(xi)

Census and statistics:

Not controversial ; interesting connection to electoral system .

(xii)

Currency, coinage, and legal tender:

Could onl y be a Commonwealth monopol y, reinforced by s 115 prohibiting the States from coining money.

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(xx)

Foreign corporations, andtrad ingorfinancial corporations fo rmed within the limits of the Commonwealth :

See further Chapter 7.

(xxi )

M arriage:

Yet to be tested whether same sex marriage is incl uded in this power. Cth v ACT [2013] HCA 55 suggests that it would be if legislated by the Common wealth.

(xxii)

Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

This provision does not take account of the increased number of de facto rel ationshi ps and children born out of wedlock. There has been a referral by the States of child custody powers but not a comprehensive jurisdiction over children.

(xxiii)

Invalid and old-age pensions:

Not controversial.

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(xxiiiA) The provision of maternity allowances, widows' pensions, child sicl


CASE SUMMARY

Victorian Stevedoring v Dignan (1931) 46 CLR 73 FACTS: The Act authorised the making of regulations. The regulations were repeatedly disallowed by the Senate.

Ruddock v Vadarlls [2001) FCA 1329 (Full Federal Court) 110 FCR 491

ISSUE: Were the regulations within the power granted by the Act? Were they valid until they were disallowed?

FACTS: A group of asylum seekers were rescued by the Norwegian ship

DECISION: The regulations were within the delegated power and were valid until they were disallowed.

Tampa and brought into Australian waters. The Australian Government

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A general executive power?

Legislation Amendment Act (No3) 2012. Mr Willia ms then challenged the val idity of that legislation:

Pape v Commissioner of Taxation [2009] HCA 23 FACTS: The Commonwealth sought to pay a 'tax bonus' to taxpayers. ISSUE: Was this payment authorised by the taxation power (s 51(ii)) or any other head of power? DECISION: The payment was valid based on s 61 as supported by s

Wllllams v Commonwealth (No2) [2014] HCA 23 Facts: As above, but now with purported legislative authorisation. Issue: Was the statutory authorisation valid?

51 (xxxix). This was justified as part of a 'nationhood power' inherent in the

Decision: The statutory authorisation was not valid . There was no relevant

Commonwealth's status as an independent state .

source of Commonwealth legislative power.

This decision appears to expand the scope of the executive power significantly although it still requires an appropriation of moneys by the Parliament. It built on the ' nationhood' power revealed in Victoria v Cth and Hayden (the AAP case) (1975) 134 CLR 338.

This decision of the High Court on 19 June 2014 has resurrected the federal system in Australia, but with the Commonw ealth still in control of most revenue, its significance remains to be seen. Commonwealth executive power has been further tested by the case of 157 Sri Lankan asylum seekers detained by an Au stralian customs vessel in July 2014.

Wllllams v Commonwealth (No1) [2012] HCA 23 Facts: The Commonwealth had made an agreement with the Scripture Union of Queensland to provide chaplains in State schools in return for payment. The payment was from appropriated money but there was no statutory authorisation. Ron W illiams, a parent of children at a State school who was unhappy about the arrangement, challenged its constitutional validity on several grounds. Issue:

Was this

agreement within

the executive

power

of the

Commonwealth? Was it contrary to s116? Decision: The High Court held by majority that the agreement was not

THE JUDICIARY Chapter Ill covers the judiciary. Section 71 vests Commonwealth judicial power in 'a Federal Supreme Court to be ca lled the High Court of Australia', such other federal courts as the Parl iament creates, and such other courts as it invests with federal jurisdiction. It is curious that the Constitution does not actually constitute the High C@urt but gives detailed instructions as to how this is to be done. Section 71 provides for a Chief Justice and at least two puisne judges and otherwise as many as the Parli ament prescribes, currently six.

4.15

contrary to s 116, but that the Commonwealth did not have the power to enter into the agreement.

The Commonwealth immediately sought to authorise the agreement (and many similar agreements) through the Financial Framework 130

Section 72 specifies methods of appointment and removal of federal judges. This section was amended in 1977 to provide for the retirement of High Court judges at 70 years of age. See also High Court of Australia Act 1979 (Cth). They are to hold office unless removed by the Governor-General-in-Council for 'proved misbehaviour or 131

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incapacity', but no guidance is provided as to how misbehaviour is to be proved and to whose satisfaction. The only time there has been an attempted ~oval, was that of Murphy J in 1984-6, there were two Senate Committees, a prosecution, two trials and a Commission of Inquiry (see Parliamentary Commission of Inquiry Act 1986 (Cth)). Murphy died before the Commission could complete its deliberations leaving the mechanics of removal still in doubt. The Commonwealth has created the Federal Court and the Family Court. It also created the Federal Magistrates Court but this was transformed into the Federal Circuit Court in 2013. The Commonwealth has vested federal jurisdiction in State Supreme Courts. This in turn made those Supreme Courts subject to the Commonwealth separation of judicial power. See: Kab/e v OPP (1996) 189 CLR 41, Fardon v A-C (Qld) (2004) 223 CLR 575 and Baker v The Queen (2004) 223 CLR 513. More recently, State governments have tried to crack down on bikie gangs:

CHAPTER 4 • LEGISLATIVE, EXECUTIVE AND JUDICIAL POWER

JUDICIAL POWER

The nature of judicial power

4.16

Huddart Parker Co Pty Ltd v Moorehead (1909) 8 CLR 330

FACTS: A Commonwealth Act conferred powers of compulsory discovery on the Comptroller-General of Customs. ISSUE: Was this a valid conferral of Commonwealth judicial power? DECISION: (per Griffith CJ at 357) 'The words "judicial power" as used in s 71 of the CC mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects ... The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision ... is called upon to take action.

Thus there must be a 'matter' or dispute between parties to be resolved by the court. It will not give advisory opinions: South Australia v Totanl (2010) 242 CLR 1

Facts:The Serious and Organised Crime (Control) Act 2008 (SA) allowed the State Attorney General to declare that any members of an organisation were involved in serious criminal activity. The Commissioner of Police could then apply to the Magistrates Court for a 'control order' over such people and the court had to grant the order.

FACTS: The Commonwealth sought advice on legality of certain sections of the Acts.

Issue: Was this regime valid?

ISSUE: Would the High Court give advisory opinions?

Decision: No. It compelled the court to follow the act of the executive, not a judicial function, thus violating the Kable principle.

DECISION: There must be 'some Immediate right, duty or liability to be established by the determination of the Court' (per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ at 265).

See also Gypsy Jokers Motorcycle Club v Commissioner of Police (2008) 234 CLR 532; K-Ceneration v Liquor Licensing Court (2009) 237 CLR 501; Wainohu v NSW (2011) 243 CLR 181 and Condon v Pompano Pty Ltd [2013] HCA 7. 132

In Re Judiciary Act; In Re Navigation Act (1921) 29 CLR 257

Federal jurisdiction The High Court's jurisdiction is to be determined by the Parliament from the matters set out in CC s 73 for appellate matters. Section

4.17

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75 sets out the original jurisdiction of the High Court. Section 76 sets out additional matters which may be vested in the High Court, including interpretation of the Constitution, matters arising under any Commonwealth law, admiralty and maritime jurisdiction, and matters involving State conflicts of laws. The Judiciary Act 1903 (Cth) established the High Court and its jurisdiction. Section 77 allows the Parliament to define the jurisdictions of other federal courts and to invest State courts with federal jurisdiction. Section 79 allows Parliament to prescribe the number of judges who may exercise federa l jurisdiction. Section 80 specifies trial by jury for indictabl e Commonwealth offences.

R v Archdall (1928) 41 CLR 128

NSW v Commonwealth (the Wheat case) (1915) 20 CLR 54 FACTS: The Inter-State Commission was established by s 101 of the CC 'with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and ail the laws made thereunder'. The Commission purported to make a binding ruling in an interstate dispute over wheat. ISSUE: Could the Commission make such a binding ruling? DECISION: As the members of the Commission did not have life tenure, they did not have the necessary Independence to exercise Commonwealth judicial power.

This case effectively saw off the Inter-State Commission as without the power to make binding decisions, it was largely redundant.

FACTS: A was charged under s 30 K of the Crimes Act 1914 (Cth). Section 12(1) provided that the offence could be tried summarily.

ISSUE: Was the defendant entitled to trial by jury? DECISION: There is no obligation on the Commonwealth to provide for trial on indictment. Thus there is no constitutional guarantee of trial by jury.

Section 74 preserves the possibility of appeal to the 'Queen in

ISSUE: Could the Court make a binding decision?

Council have now been abolished.

DECISION: Only Ch Iii courts may exercise federal judicial power. Chapter Ill courts may only exercise judicial power. The Commonwealth Court of Conciliation and Arbitration cannot exercise both judicial and non-judicial powers.

Commonwealth or the States for matters within the judicial power. This has been extensively provided for.

SEPARATION OF JUDICIAL POWER

134

FACTS: The Boilermakers' Society challenged a binding decision by the Commonwealth Court of Conciliation and Arbitration.

Council' that is, the Privy Council in London. All appeals to the Privy

Section 78 enables Parliament to confer rights of action against the

4.18

R v Kirby; Ex parte Bollerrnakers• Society of Australia (the Bollermakers' case) (1956) 94 CLR 254

Administrative powers incidental to exercisi ng judicial power are

The Hi gh Court has jealously guarded the separation of judicial power

permitted: R v foske; Ex parte Shop Distributive and Allied Employees '

from legislative and executive power.

Assn (1976) 135 CLR 194. 135

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There are two notable exceptions: •

Parliament:

R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157:

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The other major exception is the persona designata rule that allows the exercise of executive power by federal judges in their personal capacity, provided that it is not incompatible with their judicial function.

Parliament may try and imprison members of the public for contempt. (see above at 4.4) •

The military:

R v Cox; Ex parte Smith (1945) 71 CLR 1 Courts martial are a valid exception to Ch Ill courts' monopoly of judicial power.

Hilton v Wells (1985) 157 CLR 57 FACTS: The Telecommunications (Interception) Act 1979 (Cth) permitted telephone intercepts be authorised by Federal Court judges. ISSUE: Was this a breach of the separation of powers? DECISION: No, it was valid to invest the power in the judges in their personal capacity (persona designata), not as judicial officers.

Lane v Morrison [2009) HCA 29 FACTS: The Australian Military Court was established in 2007. It had a more independent structure than a court martial. L was charged with misconduct. ISSUE: Was the AMC constitutional? DECISION: The AMC is not a Ch Ill court. There is no constitutional power to establish it.

Grollo v Palmer (1995) 184 CLR 348 FACTS: The Telecommunications (Interception) Act 1979 (Cth) was amended to make it clearer that judges authorised to issue warrants under it were doing so in their personal capacity.

The High Court has also allowed the partial exception of delegation:

ISSUE: Was this a breach of the separation of powers? Was acting in this capacity compatible with being a judge? DECISION: The conferral is valid and provided that it is with the judge's consent, compatible with judicial office but caution must be exercised.

Harris v Caladlne (1991) 172 CLR 84 FACTS: Family Court Registrars were authorised to make binding decisions in some matters. ISSUE: Is this a permissible exercise of federal judicial power?

FACTS: The Aboriginal and Torres Strait Islander Heritage Protection Act

DECISION: Yes it is. The Registrars were acting under judicial supervision,

1984 (Cth) authorised the minister to appoint a reporter to advise him on

they were only acting in uncontested matters, and there was the right of

the granting of heritage protection. He appointed Matthews J, a Federal Court judge.

appeal to a judge.

136

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996) 189 CLR 1

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ISSUE: Was providing such a report compatible with judicial office? DECISIO : No, the political sensitivity of the job made it incompatib le w ith judicial office .

CHECKS AND BALANCES

4.19

The rationale for the separation of powers is to prevent one arm of government from exercising supreme power. This is a two-pronged strategy. Government is separated into three arms and each arm operates as a check and balance on the others. The CC does not expressly state this strategy, but it can be seen in the structure of the CC, with each arm covered by a separate Chapter, and through the convention of responsible government hinted at in Ch II by the provi sion that ministers must be or become members of Parliament and in Ch 111 that federal judges are appointed by the executive and can be removed by the executive on the motion of the Parliament. There are, however, several flaws in the system. The separation of the legislature and executive is problematic. Under the principles of responsible government, the executive is drawn from members of the

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be the States' house but in the evolution of Austra lian politics, it has become the parties' house. No electoral system has been specified in the CC fo r the Senate except for an equal number of Senators for each original State. The original electoral system delivered a 'winner take all' in each State and in 1949, a new system was adopted, proportional representation, meaning that a party that obtains a sixth of the vote in a State (at a half Senate election) or a twelfth of the vote (at a double dissolution election) elects a Senator. While the two major parties have succeeded in winning the bulk of seats, the system enables minor parties such as the Democratic Labor Party, the Australian Democrats, the Greens, Family First and Independents to gain representation in the Senate and indeed to hold the balance of power. Th is has meant that the Senate has become the house able to hold the executive responsible but because the two houses are elected differently, it is very unusual for a party to hold a majority in both houses and the executive has to make deals w ith the minor parties to get its legislation through, sometimes giving inordi nate power to Senators elected by a very small number of voters. This system has been taken to new extremes by the half Senate elected in 2013 in which the micro-parties exchanged preferences and engineered the election of a senator for the Motoring Enthusiasts Party in Victoria .

legislature and the real head of the executive is the Prime Minister (not mentioned in the CC). The executive must have the confidence of the House of Representatives, but given the electoral system (single member electorates) and the party system (two major parties), the party that wins a majority in the House of Representatives gets to form the executive, but the executive then controls the House of Representatives. Thi s undermines responsible government as the executive is supposed to be responsible to the House of Representatives, but in reality controls it. The system was put to the test between August 2010 and September 2013 when the House of Representatives was ' hung' and the balance of power was held by four independents and a Green. Ironically, there were two changes of Prime Minister during the term, but it was engineered by the ruling Labor Party, not by the holders of the balance of power.

Barwick CJ in 1964 and Murphy J in 1975). Dr HV Evatt, appointed to the High Court in 1930 at the age of 36, left the bench in 1940 to become a minister in the Curtin and Chifley governments and later Leader of the Opposition.

A uniquely Australian solution has evolved to provide a check on the House of Representatives/executive. The Senate was desi gned to

The removal of federal judges has also caused difficulty. The only attempt so far has been against Murphy J from 1984-6. Section 72(ii)

There is also criticism of the system whereby the executive appoints the jud iciary. An independent Judicial Commission has been suggested, but no exec utive has been willing to give up this pow er. There is now a consultation procedure for High Court appointments, but the decision remains with the executive. This raises the question of eligibility. The convention is to appoint barristers or serving judges. The temptation is to appoint judges philosophically aligned to the executive. Sometimes serving Attorneys-General have been appointed to the High Court (eg

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specifies that a federal judge may only be removed by the GovernorGeneral in Council 'on an address from both houses of Parliament in the same sess10 praying for such removal on the grounds of proved misbehaviour or incapacity'. There is no specification as to what constitutes 'misbehaviour' and how it must be 'proved'. This would seem to involve the Parliament acting as prosecutor, judge and jury. We have noted Parliament's ability to prosecute and punish for contempt above as an exception to the judicial monopoly on judicial power. Section 72(ii) gives Parliament a major judicial power over the judiciary. In the Murphy case, the Parliament appointed several committees of inquiry, the Director of Public Prosecutions laid charges, Murphy was convicted, had the conviction quashed, was retried and acquitted. The Parliament then legislated for another Commission of Inquiry but Murphy died before it could complete its deliberations. The judiciary oversees the legislature in the form of judicial review of the constitutional validity of legislation. Parliament otherwise has substantial control of its own procedures and privileges under s 49. Section 57 has been held to be justiciable at least to the extent of the validity of legislation passed under it:

Victoria v Commonwealth & Connor (the PMA case) (1975) 134 CLR 81 FACTS: The Commonwealth Parliament had considered the PMA bill but the Senate had only had three months to consider it, during most of which it was not sitting. ISSUE: Had the conditions of s 57 been fulfilled? DECISION: No, the Senate had not 'failed to pass' the legislation from the moment it received the bill so the bill was not eligible for the s 57 procedure.

Thus at least in this situation, the High Court can rule on the legal consequences of parliamentary procedure. It is yet to consider the legality of a double dissolution and ensuing election per se and may indeed refuse to decide such a matter. 140

CHAPTER 5

CHAPTER 5 • FEDERALISM AND THE AUSTRALIAN FEDERATION

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5.1

A great deal has been written on the emergence and development of Australian federalism. This chapter provides a brief overview of the historical development of Australian federalism. It focuses on the meaning of federalism and related terms as well as the main structural characteristics of the Australian federation. It then goes on to discuss the core practical issue concerning federations - the resolution of disputes between the orders of government - with emphasis on key decisions of the High Court of Australia.

INTRODUCTION 5.2

The Commonwealth of Australia came into being on 1 January 1901 and owes its existence to an Act of the Parliament of the United Kingdom . The establishment of the Australian Federation brought with it no change in sovereignty. The colonies had become States in a Federal Commonwealth of Australia and were thereby transformed into a federated colony. The founders of the Australian Constitution were inspired by:

5.3

•

the

Westminster

model

of

parliamentary

responsible

• •

government; the US federal model (1789); and other federal systems such as the Swiss (1848) and the

Canadian (1867) models. The word 'federa lism' lacks a shared meaning, much less a common understanding through experience, since the existing federal States are all different. We will define key terms and identify the values underpinning a federal political system before examining the salient features of the Australian federal system.

power between the states and the central authority is governed by a constitution which seeks to strike a balance between national and state soverei gnty. Federalism therefore has its foundation in a constitutional system that embodies a form of pluralism.

Federal political system refers to a wide spectrum of pluralist, nonunitary systems which feature two or more levels of governmental authority including 'federations', 'quasi-federations', 'emerging federations' and 'confederacies'. Thus, the term is broad enough to encompass state polities such as the Australian or Canadian federation as well as non-state polities such as the European Union which is variously described as a quasi-federation, an emerging federation or a confederacy.

Federation refers to a federal political system or union of states in which each level of governmental authority has powers derived from the constitution and each is able to exercise legislative, executive and judicial power in relation to its citizens. The constructio n of a federation may be seen as the culmination of a successful po litical process with a founding moment of consensual integration between separate states (or other territorial units) resulting in various seats of power within a union. The compact is sealed in a constitutional document.

Federal constitution involves reaching a forma l and comprehensive agreement specifying the distribution of co mpetencies among different levels of government and the allocation of revenue resources between them. Provision exists for the resolution of disputes between governments. Even if not fully-fledged federations, many po lities (i ncluding some decentralised unitary states such as the United Kingdom and Italy) include some federal features. Spain and the European Union are often referred to as de facto or emergent federations.

5.5

KEY TERMS

5.4

We can distinguish between four interrelated terms: federalism, federal political system, federation and federal constitution .

Federalism is a normative term referring to the designation of a union of states or regions or provinces in which each member subordinates its power to a central authority in agreed policy areas. The division of 142

FEDERAL VALUES A federation exhibits particular federal values, including: respect for the autonomy of its constituents and a preference for processes that minimise coercion; regional diversity; decentra lisation; and local

5.6

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participation. These values are traditionally given effect in a federal constitutional document, such as Australia's Constitution, through the establishment o at least two levels of government, multiple citizenship, divided sovereignty and overlapping jurisdictions.

5.7

There is clear scope for conflict in these arrangements but, equally, there is scope for co-operation and intergovernmental bargaining.

Brief history of federation in Australia 5.8

After many years of friction between free traders and protectionists over customs tariffs at colony borders, and other tensions and fears working in favour of co-operation between the colonies (including geopolitical realities such as the expansion of German interests in the South Pacific), a series of conventions in the 1890s led to the referenda of 1898 and 1899, which resulted in the approval of the Constitution.

5.9

Western Australia, which had originally held back from requesting the Queen to enact the bill, finally agreed to join the Commonwealth in time for it to be an original State on federation.

5.11

In the early years of federation the States were quite distinct and independent of each other and of the Commonwealth in virtually every sense.

5.12

depicted as the 'carrot and stick' approach, reached its zenith between 1942 and 1975. Co-operation and coercion have characterised Australian federalism, to varying degrees, in contemporary Australia.

Distinguishing features of the Australian federation The Constitutional Commission noted in the Final Report of the Constitutional Commission (AGPS, 1988), Vol. 1:

The task of shaping Australian federalism has involved much more than simply establishing the machinery of a central government to give effect to constitutional imperatives.

2.16 It would seem that the minimal essential features of a federal system as it has come to be understood in Australia are a high degree of autonomy for the governmental institutions of the Commonwealth and the States, a division of power between these organisations, and a judicial 'umpire'.

The Australian federation includes the following structural and procedural characteristics (the discussion draws from a theoretical framework developed by R L Watts in Comparing Federal Systems, McGill-Queen's University Press, 1999.

5.16

Two orders of governmental authority - Federal and State - each with its own institutions

Sections 1, 61 and 71 reveal the federal nature of the Constitution they confer legislative, executive and judicial power on the organs of the Commonwealth Government. There is of course no reason why there should be just two levels of federal organisation. Local government is sometimes described as the third tier of government in Australia after the Federal and State Governments. It does not, however, have constitutional recognition as such, and acts only to the extent that a State legislature grants it the power to act.

5.13

Shifts in the balance of legal, financial and political powers in the federation have resulted in far more powers being allocated to the Commonwealth than were envisaged over a century ago.

It is also noteworthy that some Indigenous communities advocate for the recognition of their diversity by the accommodation of selfgoverning entities with a degree of sovereignty within the Australian federal system.

5.14

There have been various phases in the development of Australian federal ism, among which the widely divergent 'co-operative federalism' and 'coercive federalism'. Elements of co-operative federalism are present in contemporary arrangements that seek the accommodation of interests between institutional actors. Coercive federalism, best

There is potential for conflict between the different levels of governmental authority in a federal system, which necessitates the formulation of rules to govern their interaction. An important case concerning federal-state relations is Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (State Banking case).

144

5.15

The Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900.

5.10

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Court once again invalidated a Commonwealth Act on the principle of non-discrimination. Melbourne Corporation v Commonwealth (State Banking case) (1947) 74 CLR 31

FACTS: This case

involved the purported interference by the Commonwealth with the banking activities of a State and its authorities.

In the Tasmanian Dam case, Mason J identified the 'two limbs' of the Melbourne Corporation principle in terms of the prohibition against a law which:

Section 48 of the Banking Act 1945 (Cth) provided that: '[e]xcept with

1.

discriminates against or 'singles out' a State; or

the consent in writing of the Treasurer, a bank shall not conduct any

2.

imposes a special burden or disability upon a State or impairs its continued existence or its capacity to function (at 128).

banking business for a State or for any authority of a State, including a local governing authority.' The Commonwealth notified the Melbourne Corporation, municipality of the City of Melbourne, that from 1 August 1947 the Commonwealth Bank was in a position to provide full banking facilities for the State and its authorities. States and their authorities would be compelled to bank with the Commonwealth Bank. The Melbourne

See Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 231 for a similar formulation of the prohibition. In Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, the first limb was successfully used to invalidate a

arrangements. It sought a declaration that the Banking Act was not a valid

Commonwealth law (the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth)) on the ground that it subjected a State government agency to differential treatment. Mason J took the

exercise of the banking power ins 51 (xiii).

view that a law may discriminate against a State even if it subjects

ISSUE: Whether the Banking Act 1945 (Cth) was a valid exercise of the

agencies of the State to a special burden or disability because the effect of the law may be to isolate the State agency from the general law (at 220-1 ).

Corporation had been conducting banking business through the National Bank of Australasia Ltd and wished to continue these banking

banking power; effectively whether the Commonwealth could interfere with a State's Banking activities.

DECISION: The Act was not a valid exercise of the banking power, as the Constitution impliedly prohibited discriminatory interference with a State by the Commonwealth. The States are not subjects of the Commonwealth. The Constitution provided for the continued co-existence of both the Commonwealth and the States as separate Governments. Dixon J stated that the federal system itself imposed a restraint on the power to control the States. Unless a specific legislative power appeared to so intend, it would not authorise a Commonwealth law that restricted or controlled a State in the exercise of its executive authority (at 83).

In a departure from previous formulations, the High Court in Austin v Commonwealth (2003) 215 CLR 185 proposed a single test of State immunity- namely whether the law impairs the capacity of the States or a State to function as a government - an example of which may be a law which impermissibly discriminates against the States or a State. In a joint judgment, Gaudron, Gummow and Hayne JJ noted that criteria such as 'special burden' and 'curtailment of capacity' of the States 'to function as governments' need to be consid'ered in light of the 'substance and actual operation' of the law as well as its form (at 249). Differential treatment, of itself, would not invalidate the law.

This case upheld the principles of non-discrimination and noninterference in the essential functions of a State, principles which were reaffirmed in later cases, including Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353 and Commonwealth v Tasmania

(Tasmanian Dam case) (1983) 158 CLR 1 (see Chapter 8). In Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, the 146

Gleeson CJ agreed that discrimination is an aspect of a wider principle (at 217) while Kirby J noted (in a dissenting judgment) that the two limbs of the implied limitation noted in past decisions were essentially manifestations of the one constitutional implication (at 301 ). This reformulation of the test of State immunity was confirmed in Clarke v Commissioner of Taxation (2009) 240 CLR 272. 147

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A constitutional distribution of authority and allocation of revenue resources between the Federal and State Governments The Australian Constitution follows the American model of distribution of powers. It gives a limited list of federal exclusive powers (eg ss 52, 69, 90, 114, 115) and enumerates a more substantial list of concurrent powers (s 51) while leaving unspecified residual powers to the States.

Constitution). The Act was the subject of two High Court challenges, the first in Western Australia v Commonwealth (Territorial Senators' case) (1975) 134 CLR 201.

Western Australia v Commonwealth (Territorial Senators' case) (1975) 134 CLR 201

It was envisaged under the Constitution that the States would not necessarily be able to raise sufficient revenue to carry out their functions. Under s 96, the Commonwealth was empowered to make grants to the States and, under s 94, to give surplus revenue to the States. Thus, it may be pertinent to ask: to what extent were the two levels of government intended to be independent of each other?

a role to the Senate as States' house ('[t]he Senate shall be composed of

In addition, Australia, like many other federations, has been subject to creeping centralisation, in terms of both legislative powers and

by s 122 which allowed representation of the Territories in either house as

financial arrangements (see Chapter 9). With the expansion of Commonwealth activity, the States' powers

FACTS: The Commonwealth enacted the Senate (Representation

of Territories) Act 1973 (Cth}, which provided for the election to the Senate of two senators each from the Australian Capital Territory and the Northern Territory. This development was controversial in that it appeared to contradict the specific words of s 7 of the Constitution which designated Senators for each State'). However, the Act could arguably be authorised Parliament thought flt. Western Australia and New South Wales challenged the validity of the Act.

have generally contracted.

ISSUE: Was the Senate (Representation of Territories) Act invalidated by s 7 or authorised by s 122 of the Constitution?

The representation of regional views within the federal second chamber

DECISION: By a narrow 4:3 majority (McTiernan, Mason, Jacobs and

Territorial representation at the centre is a feature of every federation. This means that all the States or regions involved must be represented at national level, though this need not be strictly equal. In Australia, representation of the States in the Senate is equal (s 7). Federation may not have been possible had the larger States insisted on unequal State representation in the Senate. However, the right of equal representation in the Senate is confined to the original States. Any new State admitted to the Commonwealth will be subject to the will of the Parliament in this regard (s 121). In any event, the parliamentary system has made the Senate more of a 'party house' than a 'States' house'. This is evident also by the presence, today, of senators from the Australian Capital Territory and the Northern Territory. The election of territorial senators was authorised by the controversial Senate (Representation of Territories) Act 1973 (Cth) (passed in 1974 under the deadlock-breaking provisions of s 57 of the 148

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Murphy JJ), the High Court found the Act valid. Barwick CJ, Gibbs and Stephen JJ dissented. Mason J stated that s 7 made provision for the composition of each House until Parliament saw fit to allow representation to a territory under s 122 (at 271 ). This interpretation recognised the 'prospective possibility' of representation of the Territories in both houses under s 122. Thus s 7 did not speak for all time. This contextual approach differed from the formalistic approach of the minority. According to Stephen J, the expression 'composed' ins 7 meant 'exclusively comprised of'. This formal interpretation in terms of the grammatical meaning of the word 'composed' excluded senators from the territories. Barwick CJ and Gibbs J argued for a restrictive meaning of the expression 'representation' in s 122. The words of s 7 were dominant and not subject to the exercise of the power given by s 122. Barwick CJ also emphasised the nature of the Constitution as a federal constitution to explain the intention of the framers to exclude the Territories from representation in the Senate. While the Territories were governed by the new polity, the Commonwealth of Australia, they were not federally part of it (at 229).

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The result in Western Australia v Commonwealth was followed in Queensland v Commonwealth (Second Territorial Senators ' case) (1977) 139 CLR 85 by a majority of 5:2, although this time Gibbs and Stephen JJ voted with the majority in favour of the legislation despite their view that the earlier decision was wrong. Gibbs and Stephen JJ decided to follow the Court's precedent in the interests of continuity and consistency. Nothing had changed in the two years separating the two cases other than a change in the Court's membership. McTiernan J of the past majority had retired and was replaced by Aickin J who voted against the law. An umpire to rule on disputes between governments Section 71 vests the judicial power of the Commonwealth in the Hi gh Court of Australia and ' in such other federal courts as the Parliament creates' or ' invests with federal jurisdiction'. Sections 75 and 76 set out the original jurisdiction of the High Court, which includes jurisdiction in any matter '[a]rising under this Constitution, or involving its interpretation', whiles 73 outlines its appellate jurisdiction. An important function of the High Court is to operate as the constitutional court of the Commonwealth. On numerous occasions since federation the Court has been called upon to rule on important disputes between the Commonwealth and the States. The High Court has made the expansion of Commonwealth power possible through its interpretation of various sections of the Constitution, parti cularl y the external affairs power (s 51 (xxix)) and the corporations power (s 51 (xx)) . These expanded powers have been used by the Commonwealth to support laws on many subjects which were not listed in s 51 of the Constitution, including consumer protection, environmental conservation and racial discrimination . Arguably, the judicial adaptation of the Constitution to changing times has somewhat diminished the need for formal constitutional amendment. The supremacy of Federal laws over State laws in the case of inconsistency Cases have arisen where a State or States have disputed federal legislation which, for instance, has sought to implement obligations arising under an international treaty. Section 109 of the Constitution provides that, 150

CHAPTER 5 • FEDERALISM AND THE AUSTRALIAN FEDERATION

in the case of conflict between State and Federa l legislation, Federal law shall prevail over inconsistent State law. In order to avoid the appli cation of s 109, a State may challenge the va lid ity of a federal Act. An example of this is documented in Commonwealth v Tasmania (Tasman ian Dam case) (1983) 158 CLR 1 (see Chapter 8). The means by which the High Court reso lves inconsistencies betwee n federal and State laws is further discussed in pa ragraphs 5.325.35, with reference to key cases. A rigid constitutional framework that Is not unilaterally amendable and is difficult to alter The people of the Australian colonies agreed to unite in 'one indissoluble Federal Commonwealth' . In so doing they authorised the passage of the Commonwealth of Australia Constitution Act, a supreme written constituti on, which may not be altered except as provided in s 128. Unilate ral amendment is not permitted. The proposed amending law must be approved by a majority of electors in a majority of the States as well as a majority of al I the electors voting before it can receive royal assent. Processes and institutions to facilitate intergovernmental co-operation in areas where governmental responsibilities are shared There is potential for conflict between the levels of government when powers are shared. A number of processes, institutions and mechanisms have been developed over the years to govern the re lation s between the different governments in matters of shared competence. A respon se to the task of minimising conflict has been co-operative federalism or co-ordinative federalism. • Con sistent with the co-operative approach, the Council of Australian Governments (COAG) comprising the Prime Mi nister, Premiers and Chief Min isters and the President of the Local Government Association meets regularly with a view to reaching agreement on a range of issues. COAG, together with Ministerial councils (also creatures of executive government which bring together ministers respo nsi ble for parti cular subjects su ch as environment, corporations and securi ties) oversee the co-ord ination of policy-making and engage in national decision-making 151

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based on co-operation and consensus. COAG is an important feature of

leader, declared the federation Australia's biggest political problem

contemporary Australian federalism.

(Battlelines, Melbourne University Press, 2009). By early 2014 it was

The Commonwealth and the States have often chosen to accommodate their respective interests through intergovernmental agreements, of which the National Strategy for Ecologically Sustainable Development (NSESD) and the Intergovernmental Agreement on the

optimistically suggested by some that the changed political landscapethe almost uniform sweep of liberal governments across Australia would usher in a new period of 'co-operative federalism' in Australia. However, the Abbott Government's first budget and state reactions to it suggest that a robust confrontational approach to federal-state relations will prevail for some time to come.

Environment (1 GAE) are examples.

Federalism - for and against 5.17

5.18

Federalism has its supporters and its detractors. Those in support often refer to the enhanced democratic participation in the political and policy processes of smaller polities. In his seminal book, A Federal Republic: Australia's Constitutional System of Government, Cambridge University Press, 1995 Brian Galligan notes that federalism allows for increased democratic participation and political diversity. It follows that there is potential for producing differential policy outcomes in a federation, and in this way it encourages innovation and differentiation, although this is not necessarily the case in every federal system.

5.19

Nor, according to Galligan, does the justification for States lie in their producing differential policy outcomes as the right to choose, rather than the choice itself, is what enhances democracy and distinguishes a federal from a unitary polity (at 52).

5.20

5.21

Co-operation and coercion may be seen as alternative political responses to conflict avoidance or resolution where authority over people and territory is shared between governing entities, namely the nation State and its constituent units. A key value of federalism is that

Adjusting federal and state jurisdictions The pervasive question of federal constitutional law in Australia has been how to orient federal/state jurisdictions. As noted, federalism involves a plurality of levels and sites of government and the division of powers between them. These features distinguish federal States from unitary States in which power is concentrated at the centre.

5.22

However, respect for the autonomy of constituent States of a federation is usually moderated by the furtherance of unity and consensus as national goals or imperatives. For this and other reasons, most federal States have experienced creeping centralisation.

5.23

This is certainly the case in Australia, where the High Court appears to have sanctioned a significant expansion of Commonwealth power. This is illustrated in the environmental sphere, where the Commonwealth has turned around a position of 'no apparent power' to a position of 'significant power'. This has occurred despite the fact that the word 'environment' is not even mentioned in the Constitution (see Chapter 8). 5.24

processes should minimise coercion.

Other subjects that have come within Commonwealth competence include trade practices, racial and sex discrimination.

So-called 'new federalism' policies have been a feature on the Australian political landscape since the 1970s, with divergent interpretations adopted by successive Australian Prime Ministers. Former Prime Ministers Julia Gillard and Kevin Rudd had worked towards recasting the federal role in key policy areas such as Education and Health. It appears that the challenge of federalism reform is firmly within the sights of current Prime Minister, Tony Abbott, who, as opposition

Cases such as the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) (1920) 28 CLR 129, Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 (see Chapter 8) and New South Wales v Commonwealth (WorkChoices case) (2006) 229 CLR 1 (see Chapter 7) demonstrate that the division of power between the Commonwealth and the States is never fixed. It is subject to realignment by the High Court and renegotiation by the actors themselves. The

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Commonwealth's decision to put an end to State income tax during the Second World War demonstrates this proposition. The renegotiation of the taxation power has had a lasting effect on fiscal arrangements between the Commonwealth and the States, as the Commonwealth to this day has a monopoly over income tax (see Chapter 9).

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) (1920) 28 CLR 129 FACTS: This case arose out of a log of claims served by a national union of engineers on many employers in various parts of Australia for increased wages and improved working conditions. Among the respondents served with this claim were the Minister for Trading Concerns, Western Australia and other Western Australian government bodies. The claim had been lodged in the Commonwealth Court of Conciliation and Arbitration. The Conciliation and Arbitration Act 1904 (Cth) gave the court jurisdiction to settle industrial disputes extending beyond any one State, including disputes in industries carried on under the control of a State or public authority. Tue Minister for Trading Concerns, Western Australia argued that the Conciliation and Arbitration Act could not apply to State government public authorities. ISSUE: Higgins J stated a case for the consideration of the Full Court of the High Court as follows: 'Has the Parliament of the Commonwealth 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?' (132). DECISION: Knox CJ, Isaacs, Rich and Starke JJ held that the Conciliation and Arbitration Act was a valid exercise of the s 51 (xxxv) power and there was no basis on which to exclude the States from the Act. A new method of constitutional construction emerged, pursuant to which ordinary principles of construction would be applied to discover the meaning of an Act. The States would be subject to Commonwealth legislation if the legislation, on its true construction, applied to them. Under this new method, Commonwealth and State legislation would be given full operation within their respective areas and subject matters. In the event of conflict, the Commonwealth law would prevail under s 109. Thus, Commonwealth legislative power can be directed to bind the States.

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Subsequently, exceptions to the rule in the Engineers' case were developed. These exceptions, inspired by federalism, set limits on what the Commonwealth could do to the States. From Melbourne Corporation v Commonwealth (State Banking case) emerged the doctrine that Commonwealth legislation applying to the States must not be discriminatory and must not destroy or curtail the States' capacity to function. As seen in paragraph 5.16 above, subsequent decisions in Austin v Commonwealth and Clarke v Commissioner of Taxation determined that the notion of discrimination by federal law against a State is simply an illustration of a law which impairs the capacity of the State to function as a constituent entity of the federal structure, but effectively confirmed the federal imperative evident in the State Banking case.

5.26

In another decision replete with possibilities for Australian federalism, the High Court in Williams v Commonwealth of Australia (2012) 248 CLR 156 issued an unequivocal reminder that the Australian Constitution establishes a federal system of government. For quite some time, federal considerations had not figured prominently in the High Court's judgments. While Williams suggests a change of direction for federalism in Australia, time will tell whether this is confirmed.

5.27

Williams' case concerned the breadth of the executive power of the Commonwealth to enter into contracts for the expenditure of public moneys. From the decision in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, it was understood that ss 81 and 83 of the Constitution did not confer substantive spending power on the Commonwealth - the power to expend appropriated money had to be found elsewhere in the Constitution. In this . respect, the Commonwealth's executive power ins 61 was found to confer power, supported by s 51 (xxxix), to spend in the particular circumstances

5.28

of the global financial crisis. However, the decision in Pape did not fully address broader questions regarding the relationship between Commonwealth executive and legislative powers. That question was later answered in Williams to the effect that it is unconstitutional for the Commonwealth executive to spend money without statutory authority.

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Williams v Commonwealth of Australia (2012) 248 CLR 156

FACTS: The Commonwealth and Scripture Union Queensland (SUQ) entered into a funding agreement for the provision of chaplaincy services at the Darling Heights State School (the School) In Queensland. The agreement was entered into pursuant to guidelines set out In the Commonwealth's

CHAPTER 5 • FEDERALISM AND THE AUSTRALIAN FEDERATION

Act (No 3) 2012 (Cth) to preserve the validity of over 400 existing grants and spending programs not supported by legislation, other than an Appropriation Act. The Act was the subject of a second High Court cha I lenge by Wi IIiams. In Williams v Commonwealth of Australia [2014] HCA 23 the High Court found the statutory provisions purporting to authorise the Chaplaincy Program were themselves invalid because they were not supported by any legislative head of power under the Constitution.

National School Chaplaincy Program (NSCP). The funding for the NSCP was not provided by specific legislation or in accordance with s 96 of the Constitution, but rather under a series of funding arrangements administered by the Commonwealth and authorised only by relevant Appropriation Acts. In other words, the Commonwealth relied on its executive power to spend funds required to support the NSCP. Williams, the father of four children who attended the School, challenged the Commonwealth's authority to enter into the funding agreement with SUQ and to pay the appropriated moneys to SUQ pursuant to that agreement.

ISSUE: Whether s 61 of the Constitution supported the [Commonwealth] executive contracting and spending in respect of the NSCP in the absence of legislative support other than the relevant appropriation Acts; (Grennan J at 341).

DECISION: By a 6:1 majority, the High Court (Heydon J dissenting)

Thus, the parameters of federalism are constantly shifting. Federalism may be viewed primarily in terms of process and the

5.30

Australian Constitution as an evolving document, not because it has a history of regular amendment, but rather because the High Court's interpretation of constitutional doctrines and provisions has defined and redefined power relations between the Commonwealth and the States. An examination of important provisions of the Constitution and their interpretation by the High Court demonstrate that practical problems can and do arise as a result of the federal nature of the Australian system of government. Equally, mechanisms exist to resolve problems and conflicts as they arise.

5.31

invalidated the funding agreement and the payments made by the Commonwealth to SUQ because they were beyond the executive power

RESOLVING INCONSISTENCY

of the Commonwealth. The capacity of the executive to contract was not unlimited, as contended by the Commonwealth. In the absence of statutory authority, s 61 of the Constitution did not give the executive broad spending power. Thus the NSCP could only be supported by legislation.

According to French CJ, the conclusion thats 61 did not empower the Commonwealth, 'in the absence of statutory authority' to contract for chaplaincy services in the School was based on a textual, contextual and purposive construction of s 61 'informed by its drafting history and the federal character of the Constitution' (at 179).

5.29

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In response to the High Court's decision in Williams, the Commonwealth Parliament passed the Financial Framework Legislation Amendment

Section 109 provides for the primacy of federal law when the law of a State is inconsistent with such law. This means that in order for s 109 to apply, there must be both a valid State law and a valid Federal law. The first step to resolving questions concerning inconsistency is therefore to ask whether the Federal law and State law are valid. If the federal law or the State law is beyond power, there is no question of conflict of laws. However, when a valid State law is inconsistent with a valid Commonwealth law it ceases to operate. The word 'invalid' in s 109 has been interpreted to mean inoperative rather than ultra vires. If the Commonwealth law were repealed, the valid State law would become operative once again: see Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, per Latham CJ at 573.

5.32

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Tests of inconsistency 5.33

There may be difficulty in ascertaining when inconsistency a~ise.s. There are essentially two types of inconsistency - direct and indirect although the first is often subdivided into two separate tests. 1.

2.

Direct inconsistency occurs where there is a Commonwealth law and a State law which are in conflict. This can happen: a. Where simultaneous obedience to the two laws is impossible. If it is impossible to obey both the provision in the State Act and that in the Commonwealth Act, the sections are directly inconsistent, and the former is inoperative to that extent. b. Where one law takes away a right or privilege conferred by the other law. Thus, a State law may be inconsistent with a Commonwealth law if it modifies or diminishes the rights conferred by a Commonwealth Act. 'Covering the field' or indirect inconsistency. If any Commonwealth Act purports to make exhaustive provision in a particular field, to the exclusion of State legislatio~, then any State legislation would be invalid since it may be said th~t the Commonwealth legislation covers the field. Here there is no need for contradictory enactments. The 'inconsistency' stems purely from the fact that a State law exists on that subject matter. See Clyde Engineering v Cowburn (1926) 3 7 CLR 466. It is often necessary to determine whether the Commonwealth Act was intended to 'cover the field'. Commonwealth law may be comprehensive, but it may not be exhaustive. State Jaw can co-exist with Commonwealth law unless the Commonwealth has manifested the intention to dominate the whole field. Thus in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 the High Court resolved that the provisions of the Commonwealth Act and those of the State Act which provided for their mutual co-existence, precluded inconsistency. The Commonwealth Act did not manifest an intention to cover the field to the exclusion of the State law.

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The inquiry into legislative purpose and the determination of inconsistency under the 'covering the field' test may be assisted by the following questions formulated by Isaacs J in Clyde Engineering v Cowburn at 489-490: What is the field that the Commonwealth law deals with? Is the Commonwealth law intended to cover the field? Does the State law attempt to regulate the same field? If the State law attempts to regulate the same field that the Commonwealth intends by its law exhaustively to cover, there is inconsistency and breach of s 109. Identifying the field is not always easy. Nor is the intention to cover the field necessarily easy to discern. IDENTIFICATION OF THE FIELD The decided cases in this area reveal a greater divergence of opinion than usual. A broad approach to identifying the field was adopted in O'Sullivan v Noarlunga Meat (1954) 92 CLR 565 while a narrow approach was evident in Airlines of New South Wales v New South Wales (No 2) (1965) 113 CLR 54. The several, sometimes overlapping, judicial viewpoints expressed in Ansett Transport Industries v Wardley (1980) 142 CLR 237 demonstrate that the issue of inconsistency may be approached and decided in different ways.

5.34

Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 FACTS: Ms Wardley had sought employment as a pilot with Ansett Airlines. Ansett took a decision not to employ her as it had 'a policy of only employing men as pilots'. The Equal Opportunity Act 1977 (Vic) purported to promote equality of opportunity between men and women and made it unlawful, in the areas of employment and dismissal, among others, to discriminate on the ground of sex or marital status. The Act authorised the Equal Opportunity Board to inquire Into complaints made under the Act. The Board found that Ansett had refused to employ Ms Wardley as a pilot because of her sex and ordered Ansett to employ her in that capacity.

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CHAPTER 6

Ansett did unwillingly employ Ms Wardley as a trainee pilot and then purported to dismiss her. Ansett claimed that the Equal Opportunity Act was inconsistent with the Federal Pilots' Agreement 1978, which had the same legal force as an industrial award of the Commonwealth Conciliation and Arbitration Commission. According to Ansett, the Agreement was intended to cover the field of employment conditions of pilots Including dismissal. Ansett therefore argued that it had an unqualified right to dismiss its pilots by virtue of the Agreement and that there was no scope at all for the Equal Opportunity Act to operate in respect of the matters covered by the Agreement. Ansett also argued the existence of direct inconsistency between the laws.

ISSUE: Whether the Victorian Act was inconsistent with the 1978 Agreement withins 109 of the Constitution.

DECISION: The majority held there was no inconsistency. The 1978 Agreement did not cover the field of dismissal or provide an unqualified right to dismiss its workers. Stephen J, of the majority, noted the complete absence of any inconsistency whether by direct collision or by the federal law covering a particular field (p 253). The laws were on different subjects and so collision was not likely to occur. Mason J, also of the majority, found neither direct inconsistency nor indirect Inconsistency between the laws. The Agreement did not confer on Ansett a substantive right of dismissal. It merely assumed the right of dismissal, for which the general law provided (p 263). Barwick CJ and Aickin J dissented. The minority Justices found inconsistency between the laws because the Pilots Agreement intended to cover the field by exhaustively regulating rights concerning the employment and dismissal of pilots.

5.35

There are complexities associated with the test for identifying the field, as determining the operation of State and Commonwealth laws is often a subjective exercise. Furthermore, the decided cases have adopted divergent approaches to this issue which makes it quite difficult to assess particular statutes against established criteria. While this situation may be seen as frustrating it may equally be seen to afford greater flexibility in applying s 109 of the Constitution.

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CONSTITUTING THE STATES

6.1

All the States have written constitutions. All were originally colonies with responsible government established by Acts of the British Parliament: Australian Constitutions Act (Nol ) 1842 (Imp) for New South Wales; Australian Constitutions Act 1850 (Imp) - separating Victoria from New South Wales, Van Diemen's Land, South Australia and Western Australia). The latter Act authorised the colonies to enact their own constitutions and they proceeded to do so. For example, Constitution Act 1855 (Tas) -this renamed Van Diemen's Land to Tasmania) and the Constitution Act 1856 (SA). New South Wales sought to go beyond what the 1850 Act allowed and the New South Wales Constitution Act 1855 (UK), together with the Constitution Act 1855 (NSW) effected this. These Acts also enabled the separation of Queensland from New South Wales effected by an Order-in-Council in 1859. Victoria also required the assistance of the Victorian Constitution Act 1855 (UK) and the Constitution Act 1855 (Vic) to establish a bicameral parliament with responsible government. Western Australia was granted responsible government by the Western Australia Constitution Act 1890 (UK). Constitutions can now be made by the State Parliaments themselves: Constitution of Queensl and 2001 , Constitution Act 1975 (Vic). In a sense it would be logical to start with the State constitutions as they predate the Commonwealth Constitution, but as the Commonwealth has supremacy over the States, and as the Commonwealth Constitution is harder to amend, it has become more prominent. The ' Priestley 11 ' (required law subjects for admission) requires that both Federal and State constitutional law are covered, but State constitutional law is often covered only briefly. This Chapter examines the constitutions of the States in their federal context, whereas Chapter 5 essentially

legislation and hence invalid. The Colonial Laws Va lidity Act 1865 (Imp) was passed to reso lve this problem and it remained relevant until the Au stralia Acts of 1986. Under s 5, the co lon ies gained a plenary legislative pow er, incl uding the power to amend their own constitutions. All the States have bicameral legislatures except Queensland w hich aboli shed its Legislative Council in 1922. Most other States preserved a property-based franchise and/or rural advantage for their Legislative Coun ci ls until well into the 20th century. New South Wa les retained an appointed Legislative Council until 1927. First, a Labor government tried to appoint enough Councillors to abolish it, then a Liberal government, elected in 1927, introduced an elected Legislative Council, but with certai n aspects only able to be amended by referend um as provided by a new s 7A of the NSW Constitution Act 1902 (NSW), w hich was doubly entrenched . A Labor government under Jack Lang was reelected in 1930 and set about trying to abolish the Legis lative Council.

Attorney-General (NSW) v Trethowan (1934) 44 CLR 3 94

FACTS: NSW legislated to protect its Legislative Council from reform except after approval at a referendum under s 7A of the Constitution Act. ISSUE: Could the NSW Parliament validly include the referendum requirement? DECISION: High Court: The referendum requirement was valid and entrenched.

examined restrictions of Commonwealth power. The first question is what powers the States have. When they first obtained self-government, there was substantial doubt about the scope of their legislative power. Was it extra-territorial? What was the relationship between State (or colonial as it then was) and Imperial legislation? The South Australian judge Boothby caused chaos by finding almost all the colony's legislation to be ' repugnant' to Imperial 162

RESOLUTION OF DEADLOCKS The bi ca meral States (ie al I but Queensland) have various arrangements to reso lve their deadlocks. The Victorian procedure has some similarity to CC s 57. If a bill passed by the Legis lative Assembly is rejected by the Legislative Council, the Assemb ly may certify that it is a b ill of 'special importance' and then pass it a second time. If the

6.2

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Council again rejects it, this triggers an election under s 66 of the Constitution Act 197S (Vic). In NSW, the Constitution Act 1902 (NSW) has been amended (s SA) so that the Legislative Council cannot block appropriation bills. For other bills, s SB provides a complex procedure similar in some ways to CC s S7 which can culminate in the disputed bill being put to a referendum. In South Australia there are two possible procedures. Under s 41 of the Constitution Act 1934 (SA), when the Assembly passes a bill which is then rejected by the Council, after the Assembly has faced election it may then pass the bill again and if the Council again rejects it, the Governor may choose between a double dissolution and the election of two additional Councillors. Not surprisingly, a simpler 'fast track' procedure has been introduced under s 28A wherein the Speaker of the Assembly certifies a bill to be of special importance and if it is rejected by the Council, there is a double dissolution. The effect of federation

6.3

The Australian colonies did not federate. They agreed to federate but the CC was drafted by elected representatives and ratified in referenda by the voters of the colonies rather than their governments. The CC was then enacted by the British Parliament in 1900 and came into force on

CHAPTER 6 •STATE CONSTITUTIONS

(See below 6.6.) Section 107 preserves the powers of the colonial (now State) Parliaments as at federation unless either vested exclusively in the Commonwealth by the CC, or specifically withdrawn from the States by the CC. It is hard to see what this adds to s 106. Section 108 preserves the colonial laws in force at federation even in matters now within Commonwealth jurisdiction and until the Commonwealth otherwise provides, the State can amend or repeal such laws. This is a logical precursor to s 109 which establishes that where State and Commonwealth laws conflict, the Commonwealth law prevails. Section 109 has been dealt with in Chapter 5 . Section 69 states that the transferred departments are the departments of posts, telegraphs and telephone; naval and military defence; lighthouses, lightships, beacons and buoys; quarantine; customs and excise. Apart from this transfer of some government departments to the Commonwealth, State governments continued to function as before except that they now had the Commonwealth sitting above them. As discussed in Chapter 9, there was a further transfer of State departments when the Commonwealth took over the States' income tax infrastructure during World War II, upheld in the Uniform Tax cases. After the war, the Chifley Labor government tried to nationalise the banks. A first step was to require all government agencies, Federal, State and local, to bank with the Commonwealth Bank.

1 January 1901. One immediate effect was to convert the colonies into States. They had gone from being colonies with limited self-government within an Empire to States with limited self-government within a federal Commonwealth, also with limited self-government, within the British Empire. The States continued to be governed by the Colonial Laws Validity Act 186S (Imp) but were now further limited by the operation of the CC which enumerated areas of Commonwealth legislative power and provided in s 109 that if there was a conflict between State and Commonwealth law, the Commonwealth law shall prevail and the State law shall be invalid to the extent of the inconsistency. Section 106 provided for the State Constitutions to continue as at federation but now subject to the CC. They can be amended as they provide.

164

Melbourne Corporation v Commonwealth (1947) 74 CLR 31 FACTS: The Commonwealth legislated to require all State instrumentalities (including the Melbourne Corporation) to bank with the Commonwealth Bank. ISSUE: Was this an impermissible interference with State sovereignty? DECISION: Yes, the Commonwealth did not have the power to compel a · State instrumentality to bank with a particular bank. (This case also led to the partial revival of the implied immunities doctrine - see '

.)

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to enter into relations with other countries - s 51 (xxix); quarantine - s 51(ix); immigration and emigration s 51 (xxvii); the relations of the Commonwealth with the islands of the Pacific - s 51 (xxx);

Referral of Powers: s 51 (xxxvii)

6.4

Another effect of federation is the possibility of the States transferring their powers to the Commonwealth under s 51 (xxxvii). There have been many examples. It is not clear whether, once a power has been transferred, the States can claim it back. A practice has arisen of the States transferring their powers to the Commonwealth for a limited time. As discussed in Chapter 5, the distribution of powers between the Commonwealth and the States is achieved by enumerating the Commonwealth powers and giving the States residual powers. The scheme for the distribution of powers is set out in ss 106-109. Section 106 preserves the State constitutions until altered by the Constitution of the State. Section 107 preserves the powers of State Parliaments except as to powers given exclusively to the Commonwealth or 'withdrawn from the Parliament of the State'. Section 109 deals with conflict between State and Commonwealth legislation. In the event of conflict, the laws of the Commonwealth shall prevail over those of a State to the extent of any inconsistency, as discussed in Chapter 5. Thus there are powers exclusively vested in the Commonwealth (see Chapter 5), powers held concurrently by the Commonwealth and the States (especially until the Commonwealth legislates on them) and 'residual' powers which rest with the States. Section 90 gives the Commonwealth exclusive power in respect of duties of customs and excise. Customs duties are reasonably straightforward, but 'excise' proved exceedingly difficult to define. See further Chapter 9 . Matters expressly withdrawn from the States are also vested exclusively in the Commonwealth Parliament, as provided by s 107; for example, s 115 (power to make coins); s 114 (power to raise and maintain military defence). Powers shared between the Commonwealth and the States (s 51 ). There are three classes of powers ins 51: 1.

166

Those powers which are seen as inherently national (eg defence power - s 51 (vi); external affairs power ie power

2.

Powers that can be described as commercial. One reason for the establishment of the Commonwealth was to create a single market. Commercial powers given to the Commonwealth in s 51 indicate that the framers of the Constitution foresaw the need for uniformity at this level throughout the country (eg s 51 (xxxv) power to legislate in respect of conciliation and arbitration);

3.

Powers dealing with social welfare and organisation. The framers did not see this as belonging exclusively to the Commonwealth. The Commonwealth can legislate in respect of marriage - s 51 (xxi), divorce and matrimonial causes s 51 (xxii), invalid and old age pensions- s 51 (xxiii). Section 51 (xxiiiA) was inserted in 1946 to give the Commonwealth more power in relation to social services. 4. Residual powers, which are exclusive to the States. These are the powers not specified in any way as granted to the Commonwealth and are thus given to the States - eg local government. The States have acquired many powers by virtue of the Constitution's silence on matters which were either not seen as important in 1900 or not yet invented although the High Court has been able to extend Commonwealth powers to cover some new technologies. However because residual powers are not enumerated, they are forever vulnerable to the extension of Commonwealth power as de cribed in Chapters 5 and 6. Section 51 (xxxix) gives the Commonwealth power to legislate on matters incidental to the execution of any power vested by the Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal judicature, or in any departments or officer of the Commonwealth. This too has enabled extension of the scope of Commonwealth power at the expense of the States. 167

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CHAPTER 6 • STATE CONSTITUTIONS

CONCURRENT POWER

6.5

State Legislative Diamond

Section 109 provides for the paramountcy of Commonwealth law when the law o a State is inconsistent with such law. This means that in order for s 109 to come into operation at all, there must be both a valid State law and a valid Commonwealth law. If the Commonwealth law or the State law is beyond power, there is no question of conflict

Is there a potentially conflicting Commonwealth power? (go to Commonwealth Legislative Diamond to check validity)

of laws.

Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557

Section 109 i) Simultaneous obedience test ii) Rights test iii) 'Cover the field' test

0

Does the State have Power? (eg extraterritoriality: s 90 prohibition on duties of customs and excise)

FACTS: The plaintiffs sought to challenge Victorian wartime egg marketing arrangements. ISSUE: Were these arrangements defence measures which are exclusively within Commonwealth power? DECISION: Latham CJ: [Section 109] applies only in cases where, apart from the operation of the section, both the Commonwealth and the State Jaws which are in question would be valid. If either is invalid ab /nltlo by reason of lack of power, no question can arise under the section. The word 'invalid' in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth Jaw were repealed, the State law would again become operative.

It is often necessary to determine whether the Commonwealth Act was intended to 'cover the field'. Commonwealth law may be comprehensive, but it may not be exhaustive. Consider the effect of a 'saving clause' in an Act of the Commonwealth Parliament. It is possible for the Commonwealth to provide specifically that it is not intended to oust the operation of State law.

168

It is apparent that the federal system contemplated by the Constitution assumes that the States will, subject to the Constitution, legislate for their 'peace, order and good government'. This power was carried over from colonial times. The plenary nature of the power was established in the series of historic Privy Council decisions during the 19th century: R v Burah (1878) 3 AppCas 889; Hodge v The Queen (1883) 9 AppCas 117; Powell v Apollo Candle Company (1885) 1O AppCas 282; Riel v The Queen (1885) 10 AppCas 675. They decided that colonial legislatures were not mere agents or delegates of the Imperial Parliament but had plenary power within the terms granted by their constitutional Acts. State law can co-exist with Commonwealth law unless the Commonwealth has manifested the intention to dominate the whole field.

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statutory fund in accordance with the requirements of s 37 of the 1945 Act. Goulden had been totally blind since birth. In September 1980, he took out

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

a life insurance policy with the AMP. On 22 September 1981, he requested AMP to amend the policy by adding a benefit known as a 'waiver of

FACTS: The Workers' Compensation Act 1926 (NSW) provided that an

premium benefit', in consideration of the payment of an additional annual

employer should pay compensation to a worker injured in the course

premium. The effect of that additional 'benefit' would have been that, 'upon

of employment. The Act was expressed to apply to seamen employed

total disablement' after the policy had commenced, AMP would waive

on ships registered in NSW. King was employed by Union Steamships

payment of premiums during the period of disablement. AMP refused

and claimed to have suffered boilermakers' deafness while working

to add the waiver provision on the ground of Goulden's blindness. The

on a ship outside NSW. He lodged a claim under the State Act for

matter came before the NSW Equal Opportunity Tribunal under the Anti-

compensation. Union Steamships argued that the Act was invalid on

Discrimination Act 1977 (NSW), s 49K(1) of which prohibited discrimination

the basis that there was not a sufficient nexus between the law and the

against a handicapped person on the grounds of their impairment. The Life

territory of NSW.

Insurance Act imposed a number of stringent requirements, including that

ISSUE: Did the words 'peace, welfare and good government' in s 5 of

a company shall not issue any policy unless the rate of premium chargeable

the Constitution Act 1902 (NSW) convey plenary power or were they

under the policy is a rate which has been approved by an actuary.

words of limitation? The question of inconsistency between a State and a

ISSUE: Could the two Acts operate simultaneously?

Commonwealth Act was also raised. DECISION: The High Court held unanimously that the fact that the ship

DECISION: The Anti-Discrimination Act 1977 (NSW) was inconsistent

with the Commonwealth's Life Insurance Act 1945 (Cth) and the

was registered in NSW was a sufficient connection with the State to

Commonwealth Act must prevail ... the provisions of s 49K(1) of the State

enable the State Parliament to apply its laws to the ship. The power to

Act would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Act.

make laws 'for the peace, welfare, and good government' of a territory is indistinguishable from the power to make laws 'for the peace, order and good government' of a territory. Such a power is a plenary power and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies. As to the issue of inconsistency, the High Court held that the Commonwealth and State Acts were designed to coexist, so the State Act remained valid.

APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403 FACTS: The Legal Profession Amendment (Personal Injury Advertising)

Regulation 2003 (NSW) prohibited any advertisement for legal services referring to personal injury, to compensation for personal injury, or to 'any CASE SUMMARY

circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal

Australian Mutual Provident Society v Goulden (1986) 160 CLR 330

170

injury, or any connection to or association with personal injury or a cause of personal injury'.

FACTS: The plaintiff was the Australian Mutual Provident Society (AMP),

ISSUE: The alleged 'impairment' was of the potential plaintiffs' rights under

a NSW corporation which carried on the business of life insurance. It was

Commonwealth legislation such as the Trade Practices Act 1974 (Cth),

registered under the Life Insurance Act 1945 (Cth) and had maintained a

which established rights to compensation for victims of personal injury.

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DECISION: The proposition accepted in Goulden - that a State law is rendered inconsistent if it 'would alter, impair or detract from' the operation of a Commonwealth law -

was invoked In APLA as one of several

unsuccessful grounds of challenge. The court held that s 109 did not apply as no rights under Commonwealth Acts were Impaired.

IMPLIED IMMUNITIES AND RESERVED POWERS

6.6

As we will see in Part II, most questions of Australian constitutional

that both were from Victoria and that Melbourne was the seat of the Commonwealth government until Canberra was inaugurated in 1927. The First World War gave the Commonwealth the opportunity to exercise much greater power through the defence powers 51(vi). It is probably no coincidence that after the war, the High Court decided the Engineers' case that so dramatically tilted the constitutional playing field in favo ur of the Commonwealth.

State Powers since the Engineers' case

law revolve around whether the Commonwealth has the power to do something. If it does, it can override State power. The States are supposed to retain full legislative power, apart from what has been granted to the Commonwealth and even then, the powers granted to the Commonwealth under s 51 of the CC are said to be 'concurrent' that is, the States can exercise them too until the Commonwealth tries to 'cover the field'. In the early years of federation, the High Court was keen to protect the States and the Commonwealth from interference by each other.

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers' case) (1920) 28 CLR 129 FACTS: The ASE served a log of claims to be determined by the Commonwealth Court of Conciliation and Arbitration on various employers around Australia including the WA government. ISSUE: Could the WA government be bound by the Commonwealth CCA or was it protected by implied State immunity? DECISION: The CC would be given its full and ordinary meaning. As the

D'Emden v Pedder (1904) 1 CLR 91

dispute met the description in s 51 (xxxv), it could be decided by the CCA and the WA government would be bound.

FACTS: The Deputy Postmaster-General of Tasmania (a Commonwealth employee) was charged with giving a receipt for his salary without paying stamp duty as required by Tasmanian law. ISSUE: Could Tasmania impose a tax on this transaction between the Commonwealth and its employee? DECISION: The operations of Commonwealth government such as this

This is the single most important case in Australian constitutional history as it enabled the dramatic expansion of Commonwealth power at the expense of the States and overturned the doctrine of implied immunities. Thus it also enabled the States to regulate some Commonwealth activities:

are immune from the operation of State law.

This became known as the doctrine of implied immunities, which was to be applied to both the Commonwealth and the States. The

Pirrle v Mcfarlane (1925) 36 CLR 170

idea that there were inherent limits on Commonwealth power due to

FACTS: McFarlane was an AMF officer who was driving an AMF vehicle

Australia being a federation was an article of faith for Griffith CJ. The arrival of Isaacs and Higgins JJ challenged this view. They were in favour

on a Victorian road on official business. He was charged with not holding a Victorian driver's licence.

of giving full scope to Commonwealth powers. It may be no coincidence 172

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ISSUE: Did Victorian law apply to a member of the defence forces on

official business? DECISION: Yes, Commonwealth servants are governed by the civil and

criminal law of the State they are in.

The Engineers' doctrine helps to explain the Uniform Tax cases (see Chapter 9) but when the Commonwealth tried to nationalise the banks,

the High Court suddenly found some limitations on its power:

(4!1>

CASE SUMMARY

CHAPTER 6 •STATE CONSTITUTIONS

DECISION: The Act was not a valid exercise of the banking power, as it restricted interstate banking contrary to s 92. (It was also held invalid on other grounds.) (This decision was upheld by the Privy Council [1950] AC 235).

The principles of non-discrimination and non-interference in the essential functions of States, upheld in the State Banking case, were reaffirmed and reformulated in later cases (see 6.11 ).

.

STATE FINANCE AND TAXATION Melbourne Corporation v Commonwealth {the State Banking case) (1947) 74 CLR 31 FACTS: The Commonwealth had legislated under the Banking Act 1945 (Cth) that all designated State instrumentalities must bank with the

Commonwealth Bank. The Commonwealth designated the Melbourne Corporation, (municipality of the City of Melbourne), that it may only bank with the Commonwealth Bank. The MC wished to continue its existing banking arrangements with a private bank. ISSUE: Wass 48 of the Banking Act 1945 beyond the powers of the

Taxation is a power that the States enjoy concurrently with the

6.7

Commonwealth. They lost the power to collect customs and excise duties under s 90. They were the first to introduce income tax. In 1942, the Commonwealth decided to take over the States' income taxing powers, compensating them under s 96 on condition that they did not impose their own income taxes. The States have attempted to get around s 90. There is a long series of cases on s 90, particularly concerning State attempts to impose

Commonwealth Parliament in s 51 (xiii) and contrary to the Constitution?

'licence fees' calculated with reference to sales in a previous trading

DECISION: The Act was not a valid exercise of the banking power, as

period. This issue seems finally to have been decided:

the Constitution impliedly prohibited discriminatory interference with the executive authority of a State by the Commonwealth.

Ha v New South Wales (1997) 189 CLR 485 Bank of New South Wales v Commonwealth (1948) 76 CLR 1

FACTS: NSW imposed a licence on retail tobacconists referable to sales

in a previous period.

FACTS: The Commonwealth had legislated under the Banking Act 1947

ISSUE: Was this an excise and thus prohibited under CC s 90?

(Cth) to nationalise private banks.

DECISION: Yes, this licence fee was a prohibited excise.

ISSUE: Were these provisions of the Banking Act 1947 beyond the powers of the Commonwealth Parliament in s 51 (xiii) or contrary to s 92 of the

Constitution?

Ha, creating the need for the Commonwealth to step in to rescue the States' revenue, paved the way for the Goods and Services Tax

174

175

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

introduced in 1998. The tax was introduced in consultation with the States and the 10% rate cannot be adjusted without their unanimous agreement. On he condition that the States abolished a range of taxes, the Commonwealth gives most of the Goods and Services Tax to the States, but it is not a State tax . The States since the Australia Acts 1986

6.8

The Australia Acts had the effect of finally and definitively establishing Australian constitutional independence from Britain. The Australia Act 1986 (Cth) and (UK) provided a new basis for the amendment of State constitutions, finally supplanting the Colonial Laws Validity Act 1865 (UK) (see 6.10). As discussed in 6.11 , there has been something of a return to the idea of State immunity from Commonwealth interference, but State and Commonwealth finances remain inextricably intertwined. The Commonwealth uses its financial leverage to force greater conformity on the States regardless of the constitutional division of responsibi Iities. Despite this, the States remain responsible for the vast bulk of service delivery (and oversight of those services that they have privatised!). If Australia is to become a republic, the States remain a major constitutional barrier. It is scarcely conceivable that they could remain as possessions of the Crown if the Commonwealth became a republic. However, it is also difficult to conceive of them becoming republics and what their relationship to the Commonwealth would be. The difficulty stems from the fact that neither the Commonwealth nor the States owe their existence to each other. All owe their existence to Britain. The Commonwealth can now become a republic through legislation and referendum, but the States' destiny seems neither in their own hands nor that of the Commonwealth. This suggests that Australia requires reconstitution from the ground up, an idea further explored in Chapter 11 . Changing State Constitutions

6.9

176

One of the most difficult features of State constitutional law is 'Restrictive Procedu res', the special procedures for alteration

CHAPTER 6 • STATE CONSTITUTIONS

specifically protected ins 5 of the Colonial Laws Validity Act 1865 (UK) ands 6 of the Australia Act 1986 (UK). Section 106 of the CC upholds the validity of the State constitutions 'until altered in accordance with the Constitution of the State'. Unlike the CC (see further Chapter 11 ), in most cases, the State constitutions do not require a referendum to amend them but instead, require a special legislative procedure and there is sometimes a legal question whether that procedure is necessary in the situation or has been followed co rrectly.

Mccawley v the King (1920) 28 CLR 106 FACTS: Mccawley was appointed to the Old Arbitration Court and Supreme Court for a fixed term whereas the Constitution Act (CA) gave judges life tenure during good behaviour. ISSUE: Could the Old Parliament legislate inconsistently with the CA? DECISION: The High Court held the appointment invalid as being inconsistent with the CA. The Privy Council held the appointment valid as the Old Parliament had the power to legislate inconsistently with the CA.

A-G (NSW) v Trethowan (1934) 44 CLR 394 FACTS: NSW legislated to protect its Legislative Council from reform except after approval at a referendum under s 7A of the CA. ISSUE: Could the NSW Parliament validly include the referendum requirement? DECISION: HC: The referendum requirement was valid and entrenched (see also 6.1 above).

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CHAPTER 6 • STATE CONSTITUTIONS

Victoria •

Major reforms in 2003 have introduced new procedures including a referendum to amend some sections of the Constitution.

•

Change of Premier from Steve Bracks to John Brumby in 2007.

•

Change of government in 2010, Brumby replaced by Liberal Ted Bail lieu. Bail lieu replaced by Denis Napthine as Premier in 2013.

•

Geoff Shaw, the former Liberal Member for Frankston was found to have breached parliamentary privilege, but continued to hold the balance of power in the Legislative Assembly in the lead up to the 2014 election.

West Lakes Ltd v South Australia (1980) 25 SASR 389 FACTS: West Lakes and the SA Government entered a contract which provided that a law would not be amended without the company's consent. ISSUE: Was this a 'manner and form' requirement that must be upheld in order for the amendment to be valid? DECISION: (Full Court, Supreme Court of SA) No, it is a breach of parliamentary privilege to purport to impose such a limit on parliament and it is not a 'manner and form' requirement.

0

CASE SUMMARY

~-

A-G (WA) v Marquet (2003) 217 CLR 545

Queen sland •

FACTS: The Electoral Distribution Act 1947 0/VA) was entrenched. ISSUE: Was the EDA part of the constitution of the State and thus protected by the 'manner and form' requirement? DECISION: Yes, the attempt to amend the EDA affected the constitution of the WA Parliament and thus had to comply with the manner and form

Change of government in 2012 from ALP to new ly merged Liberal National Party led by Campbell Newman, who became Premier upon entering Parliament, having previously been Lord Mayor of Brisbane. His appointment of the Chief Magistrate as Chief Justice of the Supreme Court has caused some controversy.

requirement.

South Australia Given the difficulty of the area, it is some consolation that in SouthEastern Drainage Board (SA) v Savings Bank of SA (1939) 62 CLR 603 the High Court looked at the wrong law when seeking to determine

• •

compliance withs 5 of the Colonial Laws Validity Act! QUICK SUMMARY OF STATE CONSTITUTIONAL ISSUES SINCE 2000

6.10

NSW

• •

Western Australia Change of government from Labor to Coalition in 2011. Premier Barry O' Farrell resigned in April 2014, having misled the Independent Commission Against Corruption over the gift of a bottle of wine.

178

No change of government, but a change of ALP Premier from Mike Rann to Jay Weatherill in 2011. After the election in 2014, ALP depended on support of two Independents to retain government, but has also been joined by former Liberal leader Martin Hamilton-Smith, who has joined the ministry as an independent.

•

Liberal government elected under Colin Barnett in 2008, reelected in 2013 .

•

Senate election rerun in 2014 after over 1,000 ballots from 2013 election were lost. 179

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CHAPTER 6 • STATE CONSTITUTIONS

Tasmania •

The prohibition was discussed further in the following cases:

Paul Lennon succeeded Jim Bacon as ALP Premier in 2004 and won a majority in 2006. Lennon was replaced by David Bartlett in 2008. After the 2010 election, Bartlett tried to resign as Premier, but the Governor refused his resignation until the government was tested on the floor of the Legislative Assembly. As the

Greens

supported

the ALP,

Bartlett

continued in office> but in 2011 handed the premiership to Lara Giddings. •

At the 2014 election, a Liberal majority government was elected under Will Hodgman.

A Ret urn t o immunities?

6.1 1

The Melbourne Corporation case (see 6.3) had indicated a limit to Commonwealth

interference with

Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 FACTS: The Commonwealth passed special legislation to resolve an industrial dispute involving the QEC, a Queensland statutory body. ISSUE: Did this legislation impermissibly discriminate against Queensland? DECISION: The first limb was used to invalidate a Commonwealth law (the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth)) on the ground that it discriminated against the State of Queensland by subjecting a State agency to special burdens.

State government despite the

Engineers' case. A series of cases in the 1990s have brought something of a renaissance for the idea of State immunity, but it was not applied in the Tasmanian Dam case: Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188

Commonwealth v Tasmania (Tasmanian Dam case) (1983) 15 8 CLR 1 FACTS: See vh p

i;

>and .

ISSUE: Was the Commonwealth's action discriminatory against the State or impairing its capacity to function? DECISION: The protection of the World Heritage site was neither discriminatory nor impairing the State's capacity to function. Mason J identified the 'two limbs' of the Melbourne Corporation principle: [1] the Commonwealth cannot, in the exercise of its legislative powers, enact a law which discriminates against or 'singles out' a State or [2] imposes some special burden or disability upon a State or inhibits or impairs the continued existence of a State or its capacity to function (at 128).

180

FACTS: The Australian Education Union, which covered Victorian State school teachers, applied to be covered by a federal award to avoid industrial relations changes in Victoria. ISSUE: The application of the implied limits on Commonwealth power: The prohibition of discrimination against the States and against laws of general application which destroy or curtail the continued existence of the States or their capacity to function as governments. DECISION: These State employees could be covered by the Commonwealth award but there are limitations on the scope and coverage of the award in keeping with the implied limitations.

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 6 • STATE CONSTITUTIONS

Thus the scope of the limitation required further exploration:

DECISION: The High Court held that the federal legislation was invalid insofar as it purported to apply to State judges. Gaudron, Gummow and Hayne JJ appeared to reformulate the tests for State immunity, indicating

Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 FACTS: In 1993 and 1994 the Industrial Relations Act 1988 (Cth) was

that there was only one true test of State Immunity, namely: Does the law impair the capacity of the States or a State to function as a government?

the Commonwealth to impose minimum conditions on employers.

Th us, the test of 'discrimination against the States or a State' was not in itself a separate test of immunity. The impairment of State capacity to function as a government is now the sole test.

ISSUE: Did this amount to discrimination against those States? The test is

The rise of COAG

amended with the intention of providing safety nets for employees in States which did not have a compulsory industrial arbitration system by allowing

one of substance rather than form. DECISION: The legislation aimed to provide uniform basic protection across all States and was thus not discriminatory. The Act would be read down so as not to apply to senior employees, in keeping with the implied limitation.

There was further refinement of the test in a case brought by a State Supreme Court judge against the imposition of special superannuation taxes by the Commonwealth:

The institution of the Premiers' Conference has been recast as the 'Council of Australian Governments' or COAG, which meets regularly. While its deliberations do not carry legal force, decisions to take a nationally uniform approach to regulation in a particu lar area clearly have legal consequences. A co-ordinated approach to regulation by both the Commonwealth and the States has clear benefits. The States have also established the Council of the Australian Federation to assist them to reach a common position in dealing with the Commonwealth. The rise of COAG leads one to wonder if regulation in Australia has been replaced by 'COAGulation'!

6.12

A note on the Territories

Austin v Commonwealth (2003) 215 CLR 185 FACTS: A number of State Supreme Court judges had been affected by special Federal legislation -

the Superannuation Contributions Tax

(Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) and the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) - that imposed a special (discriminatory) Federal taxation on the superannuation entitlements of State judges. ISSUE: Did the implied limitation operate to invalidate the legislation as being discriminatory against the States or impairment of their ability to function as governments?

182

Although the Territories are not States and indeed are subject to full Commonwealth power under s 122, it seems appropriate to say a word about them in this chapter as they have been granted self-government and may one day become States themselves. Indeed, the Northern Territory held a referendum on statehood in 1998 which was defeated. It remains an intriguing possibility that the Territories might one day become States and on what conditions they would be admitted to the federation. In

6.13

particular, if they had similar populations to Tasmania, would they be granted equivalent representation in the Senate? Ironically, s 122 is the only section of CC Chapter VI (New States) to be used so far. The Northern Territory was granted self-government in 1978 and now has a unicameral assembly. In 1996, the Northern Territory legislated to allow euthanasia. The Commonwealth Parliament, as it is entitled to do under s 122, overrode this legislation. 183

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

The Australian Capital Territory was granted self-government in 1988 and has an assembly. The ACT legislated for Australia's first Charter of Rtgtus in 2004. It also legislated for marriage equality via the Marriage Equality (Same Sex) Act 2013. Interestingly, the Commonwealth elected to challenge this legislation in the High Court for inconsistency with the Marriage Act 1961 (Cth), contrary to s 28 of the ACT Self-Government Act 1988 (Cth), rather than overriding it. The challenge was successful: Cth v ACT [2013] HCA 55.

CHAPTER 7

J

The Territories thus have some democracy, but are subject to having their legislation overridden by the Commonwealth. How long will the people of the Territories tolerate this unequal citizenship?

184

185

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

This chapter examines the trade, commerce and corporations powers of the Commonwealth, the powers that enable the Commonwealth to create and reg-ulate a national economy in a globalised world. It also covers the industrial relations power which has created a large amount of constitutional litigation, but may have been rendered irrelevant by the WorkChoices case (NSW v Cth (2006] HCA 52). It also covers s 92, the most litigated section in the Constitution, covering freedom of interstate trade, commerce and intercourse. The election of the Abbott Coalition government in September 2013 may have been expected to lead to reforms of commercial law and industrial relations, but as of mid-2014, there have been no significant reforms in these areas.

CHAPTER 7 •THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

Australlan Natlonal Airways Ltd v Commonwealth (1945) 71 CLR 29 FACTS: The Commonwealth established an airline to fly interstate and international routes. ISSUE: Does the trade and commerce power allow the Commonwealth to engage in trade and commerce or only to regulate it? DECISION: The Commonwealth may engage in trade and commerce as well as regulate it.

THE TRADE AND COMMERCE POWERS 7.1

Section 51 (i): 'Trade and commerce with other countries and among the States'. See also s 51 (v) postal, telegraphic, telephonic and other like services; s 51 (xii i) banking and s 51(xiv) insurance together with s 51 (xvii) bankruptcy, s 51 (xvi) bills of exchange and promissory notes, s 51(xviii) copyright and other forms of intellectual property. Section 51 (xx) on corporations is covered in 7.2 below. This enables the Commonwealth to regulate international trade including the imposition of customs duties and other restrictions on trade (see Chapter 8). Under s 90, the Commonwealth has a monopoly on customs duties (see further Chapter 9). The Commonwealth has full control of all imports and exports. Under s 98, the trade and commerce power extends to shipping and State railways.

Huddart Parker v Commonwealth (1931) 44 CLR 492 FACTS: The Commonwealth required union preference in employment to be given on all ships engaged in interstate and international trade. ISSUE: Was this a law within the trade and commerce power? DECISION: This is a power incidental to the trade and commerce power and thus valid.

Grannan v Marrlckvllle Margarine (1955) 93 CLR 55 FACTS: NSW sought to regulate margarine production by issuing licences. MM did not hold such a licence and was charged. ISSUE: Did MM require a licence if its entire production was to be sold interstate (appealing to CC s 92)? DECISION: Yes, because production is not trade.

Marrickville Margarine obtained a licence and rearranged its production so that there was a clear separation between production for NSW and for interstate.

Beal v Marrickvllle Margarine (1966) 114 CLR 283 FACTS: NSW authorities again prosecuted MM, this time for production in excess of its licence. ISSUE: Was this a restriction on interstate trade? DECISION: Production for interstate trade is not part of interstate trade.

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 7 •THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

( O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 FACTS: The Commonwealth instituted a registration and inspection scheme for abattoirs whose products were exported. ISSUE: Could the Commonwealth do this when not all the production was exported? DECISION: Registration and Inspection is incidental to export and thus within the Commonwealth power.

Trade between the States is a more vexed issue. The Commonwealth can regulate it under s 51(i), yet under s 92, it is to be 'absolutely free'. We will explore the meaning of this in 7.4 below. The Commonwealth's taxation power under s 51 (ii) is also a potentially powerful regulatory tool, although as seen in R v Barger, under single characterisation, a law seeking to achieve other regulatory objectives through taxation may be struck down. However, since Fairfax v FCT, the mere imposition of taxation is likely to be sufficient. (See further Chapter 9). There are other limitations: in s 51(xxxi) that any acquisition of property by the Commonwealth must be on 'just terms'; Section 99 that trade, commerce or revenue laws cannot give preference to any State or part of a State. Many trade activities are regulated by the Competition and Consumer Act 201 O (Cth), containing the Australian Consumer Law, a commendable co-operation between the Commonwealth and the States.

The corporations and industrial relations powers have been two of the most significant powers in the history of the Commonwealth. Since the WorkChoices case (NSW v Cth [2006] HCA 52 - see below), the corporations power has allowed the Commonwealth to regulate industrial relations also.

---------------

~ SUMMARY .

Huddart Parker v Moorehead (1909) 8 CLR 330 FACTS: HP was charged with offences under the Australian Industries Preservation Act 1906 (Cth). ISSUE: Were these provisions within the Commonwealth's power under

s 51(xx)? DECISION: Section 51 (xx) does not give the Commonwealth the power to regulate all the activities of corporations.

Huddart Parker suggested limits on the Commonwealth power, especially to regulate the intrastate activities of corporations, and it was not until 1990 that the Commonwealth attempted to take over all aspects of commercial corporations law. The States, which stood to lose the lucrative business of incorporation and document lodgment, challenged the Commonwealth's power to incorporate companies (see below). It must be recalled that Huddart Parker was decided in the era of reserved powers. Despite the significant developments in other areas of constitutional law, Huddart Parker meant that Commonwealth regulation of corporations was approached with caution. A toughening of trade practices laws in the 1960s provided an opportunity to revisit the issue:

CORPORATIONS POWER

7.2

Section 51 (xx): 'Foreign corporations and trading or financial corporations formed within the limits of the Commonwea lth'. It would have been so much simpler to grant a blanket power over corporations, but there were many kinds of corporations, for example municipal, charitable and government, over which the Founding Fathers did not intend the Commonwealth to have control.

188

Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 FACTS: Rocla was charged with not reporting an 'examinable agreement' under the Trade Practices Act 1965 (Cth).

189

CHAPTER 7 • THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

ISSUE: Was this provision within the Commonwealth's power? DECISIOW.: Huddart Parker was overruled and a wider scope given to

ISSUE: Was a secondary boycott of a corporation by a non-corporation able to be prohibited by the corporations power?

the corporations power though some provisions of the Act still exceeded

DECISION: The corporations power extends far enough to protect

Commonwealth power. The power should extend at least to the trading

corporations from secondary boycotts as these affect their trading.

activities of trading corporations (and by logical inference, to the financial activities of financial corporations).

The Trade Practices Act 1974 (Cth) took account of these limitations. It remained the primary vehicle for the regulation of corporations, trade and commerce until its replacement by the Competition and Consumer Act in 2010.

Tasmania v Commonwealth (the Tasmanian Dam case) (1983) 158 CLR 1 FACTS: The Commonwealth sought to prohibit the building of a dam in a world heritage listed area of Tasmania by using the corporations power to

- - CASE SUMMARY

prohibit the Hydro-Electric Commission of Tasmania from building the dam.

·~

R v Federal Court of Australla; Ex parte WA National Football League {Adamson's case) (1979) 143 CLR 190

ISSUE: Was the HEC within the corporations power? DECISION: Yes - it was a trading corporation and even though building the dam was not a trading activity, it was preparatory to trading the

FACTS: A player in the WANFL (Adamson) sought a transfer to another

electricity generated and hence caught by the corporations power. (See

club. This was refused by the league.

also C'

c , in connection with the external affairs power) .

ISSUE: Is the league a 'trading corporation' for the purposes of the corporations power?

~

DECISION: A football league can be a 'tradin corporation' as it engages in trade.

Adamson expanded the category of corporations covered by the

In 1988, the Commonwealth decided to enact a comprehensive Corporations Act. Several States, which stood to lose income from administering corporate affairs, challenged the val idity of the Corporations Act 1989 (Cth). The Commonwealth suspended its commencement, pending the outcome of the case.

power. The following case expanded the scope of activities covered by the power:

Actors and Announcers' Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169

FACTS: The Commonwealth enacted the Corporations Act 1989 (Cth),

FACTS: AEAE had imposed a 'secondary boycott' on Fontana contrary to

a comprehensive scheme to regulate corporations in Australia. NSW

s 450 of the Trade Practices Act 1974 (Cth) (ie it had threatened to boycott

and some other States challenged its constitutionality, in particular as to whether the corporations power included the power of incorporation.

other providers unless they boycotted Fontana).

190

NSW v Commonwealth {the Incorporation case) (1990) 169 CLR 482

191

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 7 •THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

ISSUE: Does s 51 (xx) include the power of incorporation? DECISIO ·The High Court held by 6:1 that the corporations power did

not include the power to incorporate. It held that 'formed' meant that the corporation had to have been incorporated under State law before It

New South Wales v Commonwealth; Western Australia v Commonwealth (WorkChoices case) [2006] HCA 52; (2006) 229 CLR 1

could be regulated by the Commonwealth. This drove the Commonwealth back to the negotiating table and the States eventually referred their

FACTS: The Commonwealth Parliament enacted the Workplace Relations

corporations powers to the Commonwealth.

Amendment (Work Choices) Act 2005 (Cth), a comprehensive legislative scheme to regulate industrial relations using the corporations power. Several States challenged its constitutional validity.

The Incorporation case was a blow against comprehensive regulation of corporations by the Commonwealth in a single market. The complications it caused set Australian corporate regulation back 1o years. While piecing together a national system, the Commonwealth continued to try to expand the scope of the powers it already had.

ISSUE: Could the Commonwealth use s 51 (xx) to regulate industrial relations or must it primarily uses 51 (xxxv)? DECISION: Gleeson CJ, Gummow, Hayne, Heyden and Grennan JJ

([1]-[421]): The Act is within the corporations power. Kirby J (diss) ([422]-[617]): There are limits on the corporations power. If it was meant to go this far, why is 51 (xxxv) there? Callinan J (diss) ([617]-[914]): History, the Convention debates, failed referenda, and the need for judicial restraint and a federal balance all suggest finding the legislation to be beyond the corporations power.

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 FACTS: Sections 127A and 1278 of the Industrial Relations Act 1988

(Cth) allowed the Industrial Relations Commission to set aside contracts involving constitutional corporations deemed unfair. ISSUE: Were these sections within the corporations power? DECISION: 4:3 invalid: Brennan J: It is a power with respect to (corporate)

persons and must operate differently on them from other persons. Dawson J: It is a mixed test depending on both personality and activities and is not met here. Toohey J: It is a plenary power and the only test is sufficient connection -

not sufficient here. McHugh J: It Is a plenary power and

there must be sufficient connection - not sufficient here (different analysis from Toohey J).

It may be seen that this case left the scope of the power in considerable uncertainty. The Howard Government, elected in 1996, obtained control of the Senate in 2005 and passed the Work Choices legislation, taking an expansive view of the corporations power. 192

This case has given an extremely wide ambit to the corporations power, but has seemed to reduce the industrial relations power to irrelevance. INDUSTRIAL RELATIONS

Section 51 (xxxv): 'The prevention and conciliation and arbitration of industrial disputes extending beyond the limits of one State.'

7.3

Industrial relations have played a prominent part in Australian politics and constitutional law. Australia led the world in developing a system of conciliation and arbitration in which wages were set centrally. The Harvester judgment was seminal in holding that a worker is entitled to a basic wage sufficient to keep them and their family in 'frugal comfort'. The industrial relations system has always tested its constitutional limits. The power in s 51 (xxxv) is notably complex: though prevention can take many forms, conciliation and arbitration are specific methods of resolving industrial disputes. As for 'beyond the limits of one State', unions became adept early at engineering a 'paper dispute' that met this 193

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

description. From the early years, the Commonwealth tried to expand the scope of its power over industrial relations:

CHAPTER 7 •THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

ISSUE: Were the regulations valid? Was the delegation a transfer of legislative power? Were the informations valid notwithstanding that the regulations had been disallowed by the Senate?

R v Barger (1908) 6 CLR 41

FACTS: The Commonwealth imposed an 'excise' on all companies that did not comply with a Commonwealth industrial award.

ISSUE: Was this a law with respect to excise or was it really an attempt to

DECISION: The delegation was valid. The regulations were valid until they were disallowed so the informations were valid.

Apart from these basic constitutional issues, there were many issues as to the scope of the power. What is 'industrial'?

regulate industrial relations?

DECISION: Adopting the 'single characterisation' technique, the court held that the true characterisation of the law was industrial relations not taxation, and that it was not within the scope of the industrial relations power.

Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309

FACTS: JCM sought to avoid the operation of the Commonwealth industrial relations system. ISSUE: What is the scope of 'industrial'? Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434

Constitution has used an expression in the wider or in the narrower sense,

FACTS: Alexander and the Waterside Workers were in dispute. The Court

the Court should ... always lean to the broader interpretation unless there

of Arbitration purported to issue a binding award.

ISSUE: Could the Court of Arbitration exercise Commonwealth judicial power?

DECISION: (per O'Connor J): ' ... where the question is whether the

is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.' In this case, a broad interpretation was applied.

DECISION: No it could not. Arbitral power and judicial power are distinct. The court cannot exercise both. It was not a Ch Ill court as the judges did not enjoy life tenure.

Federated State School Teachers' Association of Australia v Victoria (the School Teachers' case) (1929) 41 CLR 569

194

FACTS: The FSTA sought to bring its members teaching in Victorian State

Victorian Stevedoring and General Contracting Co v Dignan (Dlgnan's case) (1931) 46 CLR 73

schools under the Commonwealth industrial relations system.

FACTS: The Transport Workers Act 1928 (Cth) gave wide regulatory

under Commonwealth industrial relations legislation?

ISSUE: Is State schooling an 'industry' such as to bring school teachers

powers to the Governor-General in Council. Regulations were made and

DECISION: No, it is not: it is not an example of capital and labour

informations laid for breach of them.

cooperating to produce a result which is the outcome of their joint efforts.

195

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

... ...

CHAPTER 7 •THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

R v Pres ent of the Commonwealth Conclllatlon and Arbit ration Commission; Ex parte Profeaslonal Engineers' Association (1959) 107 CLR 208

R v Commonwealth Court of Conclllation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1

FACTS: PEA sought to bring members employed by State governments

FACTS: As above.

into the Commonwealth Industrial relations system.

ISSUE: Is the Commonwealth unconstitutional?

ISSUE: Could State employment be 'industrial'?

and

Arbitration

Act

DECISION: No. Arbitration need not be voluntary. As here, it can be imposed by statute.

DECISION : Yes it could.

(j>

Conciliation

CASE SUMMARY

R v Coldham; Ex parte Australlan Soclal Welfare Union (the CYSS case) (1983) 153 CLR 297

Australlan Boot Trade Employees' Federation v Whybrow & Co (No 2) (1910) 11CLR311

FACTS: The CYSS was a scheme established by the Commonwealth FACTS: As above.

government to help young people be employable. ISSUE: Were project officers employed by the scheme covered by the Commonwealth industrial relations system?

DECISION: No. A 'common rule' is not arbitration but legislation.

DECISION: Yes.

Australlan Boot Trade Employees' Federation v Whybrow & Co (No 1) (1910) 10 CLR 266 FACTS: An industrial dispute.

(

ISSUE: What is arbitration? DECISION: Arbitration is a judf ial function; arbitrators must obey the existing law, not make new law. \

19 6

ISSUE: Could a decision in an arbitration establish a 'common rule' for the industry concerned?

Re Federated Storemen and Packers' Union of Australla; Ex parte Wooldumpers (Vic) Ltd (the Wooldumpers' case) (1989) 166 CLR 311 FACTS: A worker had been dismissed and a dispute was likely. ISSUE: Could the Commonwealth Conciliation and Arbitration Commission intervene to prevent the dispute? DECISION: No. The wording of the Conciliation and Arbitration Act only allowed settlement of an existing dispute.

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CHAPTER 7 • THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Despite this restrictive reading, employers and employees still wanted to use the Commonwealth system. The technique of the 'paper

Arbitration Commission and the Commonwealth Industrial Court, now a division of the Federal Court.

dispute' was ~ ised to enable this:

Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528

FACTS: The ATAEA lodged a log of claims on theatre owners throughout Australia, generating a 'paper dispute'.

Re Australlan Education Union; Ex parte Victoria (1995) 184 CLR 188

FACTS: The AEU sought federal award coverage for Victorian State school teachers facing redundancy. ISSUE: Could the federal system bind a State? Where was the interstate dimension?

ISSUE: Does there have to be a dispute between current employers and

DECISION: The 'administrative seNices exception' no longer applied.

employees?

Almost all State employees could now be covered by federal awards.

DECISION: No, a dispute may be about general principles including the conditions under which future workers will be hired.

However, the decision of the Victorian government to make teachers redundant could not be overruled by a federal award.

The landmark case on separation of judicial power was also a case on industrial relations :

Attorney-General (Qld) (1997) 192 CLR 1

v Riordan

FACTS: A log of claims was lodged. R v Kirby; Ex parte Boilermakers' Society of Australla (the Boilermakers' case) (1956) 94 CLR 254

ISSUE: Was there a genuine dispute? DECISION: Yes, although a 'paper dispute', such a device was a recognised part of Australian industrial relations law.

FACTS: The Metal Trades Employers' Association sought to enforce a nostrike clause in an award. The Arbitration Court ordered the BSA to comply with the award and imposed a fine for contempt upon its failure to comply with the order.

(

ISSUE: Could both arbitral and judicial power be combined in the one body?

DECISION: No. Arbitral and judicial power are distinct. Judicial power may only be vested in Ch Ill courts and Ch Ill courts may only be vested with judicial power.

How ever, none of the above is as important as the WorkChoices case (above). The Future

The election of the Rudd Labor Government in November 2007 led to the dismantling of Work Choices, but the poss ible wider use of the corporation s power remains. FREEDOM OF INTERSTATE TRADE

This case led to the Commonwealth Court of Conciliation and Arbitration being divided into the Commonwealth Concili ation and 198

Section 92: ' ... trade commerce and intercourse between the States shall be absolutely free.'

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CHAPTER 7 •THE TRADE, COMMERCE, CORPORATIONS AND INDUSTRIAL RELATIONS POWERS

Drafted by laymen, this section was meant to be the soul of simp licity. Instead, it has been the most litigated section of the CC. There have bee four broad eras of s 92 interpretation: Isaacs, Dixon, Barwick and Cole. The decision in Cole v Whitfield is a unanimous dec ision which has now stood for over 20 years:

Trade, Commerce and Corporations Diamond Scope of Power • Sufficient nexus to 'constitutional corporation' • ss 53-55 on taxation and appropriation

Source of Power s 51 (i) Trade and Commerce with other countries and among the States

Limitations on Power

• s 92; Cole v Whitfield (1988) 165 CLR 360 FACTS: Tasmania prohibited the sale of crayfish below a certain size to preserve growing crayfish. Mature South Australian crayfish were below the minimum size. ISSUE: Could Tasmania prohibit sale of the South Australian crayfish? DECISION: Section 92 is intended to prohibit discriminatory burdens of a protectionist kind. Although the Act Imposed a burden, it was not protectionist but an appropriate measure to preserve immature Tasmanian crayfish.

(p

CASE SUMMARY

Betfair v Western Australia (2008) 234 CLR 418 FACTS: Betfair became licensed in Tasmania then sought to offer an online betting exchange across Australia. Western Australia legislated to prohibit betting on exchanges such as Betfalr and to prevent unauthorised publication of WA racing fields. ISSUE: Was the WA action contrary to s 92? DECISION: The High Court held unanimously that the WA had breached s 92. Betfair was licensed in Tasmania and could thus conduct a national betting exchange.

/

(ii) Taxation (xx) Corporations (see below)

0 ~

Foreign corporations and trading or financial corporations formed within the limits of the Commonwealth ('constitutional corporations')

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CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

EXTERNAL AFFAIRS

Whether the constitutional provision conferred plenary extraterritorial

8.1

Broadly construed by the High Court, the external affa irs power in s 51 (xx ix) has become one of the Commonwealth's most important heads of power. The power has several dimensions, including

power - thereby obviating the need for a nexus between the Commonwealth Parliament and the extraterritorial subject matter was settled in the case of Polyukhovich v Commonwealth (199 1) 172

extraterritorial power and the power to implement treaty provisions.

CLR 501. The case endorsed the 'mere externality test'.

8.2

8.4

It is often said that in the absence of legislation, international law can have little influence on domestic Australian law. A ratified treaty does not become enforceable in Australian domestic law unless an Act of Parliament specifically incorporates it into Australian law. Nonetheless, an unincorporated treaty may still have an effect on domestic law in the sense that it may have an effect on a judge's interpretation of ambiguous Australian law. Thus judges will attempt to interpret statutes consistently with Australia's international law obligations. This discussion invokes the principle of legitimate

Polyukhovlch v Commonwealth (the War Crimes Act case) (1991) 172 CLR 501 FACTS: War Crimes legislation created an offence for Australian citizens or residents committing war crimes in Europe during World War II. Polyukhovich was charged even though at the time of the alleged offence he had no connection with Australia and there was no Australian legislation in force which purported to make it a criminal offence on the part of an

expectations which was taken into account by the High Court of Australia in Minister for Immigration v Teoh (1995) 183 CLR 273 to the

Australian citizen or resident to commit the acts in Europe as the plaintiff was alleged to have committed.

extent that a convicted drug dealer who had been denied permanent residence, and was subject to deportation, was entitled to expect that the Minister for Immigration would take into account provisions of

resident who had allegedly committed war crimes in Europe during World

an unincorporated treaty. The UN Convention on the Rights of the Child had been signed and ratified by Australia, but not implemented in Australian law. This, nonetheless, raised a legitimate expectation that administrative decision-makers would follow correct procedures and act in conformity with the treaty. The case of Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 called into question the continuing validity of this approach. The Commonwealth legislature has also expressed dissatisfaction with the

ISSUE: Could the Act support the prosecution in Australia of an Australian War II? Or, was the Act beyond the scope of the external affairs power and, therefore, invalid? DECISION: The external affairs power could support such a law. Mason CJ, Deane, Dawson and McHugh JJ expressed the conclusion that a law with respect to a matter which is geographically outside Australia is a law with respect to 'external affairs' for the purposes of s 51 (xxix) of the Constitution. They took the view that mere externality was enough to activate the external affairs power. Accordingly, there was no need for a nexus between Australia and the extraterritorial subject matter.

Teoh decision.

Extraterritorial power

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In New South Wales v The Commonwealth (the Seas and Submerged Lands case) (1975) 135 CLR 337 the High Court confirmed that s 51 (xxix) conferred extraterritorial power on the Commonwealth 'to matters or things geographically situated outside Australia', per Mason

J at 471. 204

However, Gaudron, Brennan and Toohey JJ considered that some additional factor, or nexus, was necessary. For Gaudron J, the nexus

8.5

between Australia and the external affair was readily established; the decision of the Commonwealth Parliament to legislate constituted evidence of such a nexus. Though the kind of nexus foreshadowed by Brennan J need not have been substantial (at 551), his judgment, in dissent, was that there was no sufficient nexus and the Act was 205

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therefore invalid. Toohey J was of the view (at 654) that even though geographically external to Australia, a matter only qualified as an external affa irif it touched or concerned Australia in some way. In Toohey J's judgment the nexus requirement was satisfied by Australia's participation in the war.

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Horta v Commonwealth (1994) 181 CLR 183 also considered the scope of the external affairs power, but was rather inconclusive on

the question of the requirement of a nexus. While tending to support the view that geographical externality was sufficient to attract the external affairs power, the decision also appeared to leave open whether some additional element was needed to enlivens 51 (xxix).

CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

The plenary extraterritorial power ins 51 (xx ix) was confirmed in Victoria v Commonwealth (1996) 187 CLR 416 (see furth er at 8.19- 8.22).

8.7

In XYZ v Commonwealth (2006) 227 CLR 532, the High Court by 5:2 majority held that ss 50BA and 50BC of the Cri mes Act 1914 (Cth) as amended, prohibiting Australian citizens or res idents from engaging, while outside Australia, in sexual activity with a person under 16 years of age were valid under the external affairs power. Gleeson CJ, Gummow, Hayne and Crennan JJ endorsed the geographic externality principle estab lished in Polyukhovich while Kirby J considered the provisions va lid because they affected Australia's relations with other countries.

8.8

Australia's relations with other countries power Horta v Commonwealth (1994) 181 CLR 183 FACTS: Australia and Indonesia had entered into a bilateral treaty in 1989 for the joint exploration of petroleum resources in the Timor Gap, an area claimed by both States but outside the territorial waters of both. In purported fulfilment of its obligations under the Treaty, the Commonwealth enacted the Petroleum (Australia-Indonesia Zone of Co-operation) Act 1990 (Cth). The plaintiffs argued that as the 1989 bilateral treaty was void in international law (due to the claimed invalidity of Indonesia's assertion of sovereignty over East Timor), it could not be validly implemented under the external affairs power. ISSUE: Whether geographical externality was sufficient to support the validity of the Commonwealth Act under s 51 (xxix). DECISION: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ (at 194) stated that regardless whether mere externality was sufficient to enliven s 51 (xxix) or whether some additional factor was required, it was clear that the Timor Gap and the exploration for, and exploitation of, petroleum resources within that area fell within the

The Commonwea lth can base legislation with respect to relations with foreign countries on the external affairs power. Thus, laws recognising foreign judgments, evidence or extradition laws (Vasiljkovic v Commonwealth of Australia (2006) 227 CLR 614) as well as antiterrorism laws (Thomas v Mowbray (2007) 233 CLR 307) may be supported under this aspect of the power. The Court in Vasiljkovic was

8.9

clear thats 51(xxix) confers the power to make laws with respect to Australia's rel ations with other countries, and this covers the making of extradition arrangements, with or without a treaty. In Thomas v Mowbray (2007) 233 CLR 307, the majority gave some attention to the external affai rs power as a possible supplementa ry source of legislative validity for anti-terrorism laws, that is, supp lementary to the defence

power. Gleeson CJ, Gummow and Crennan JJ re lied upon the capacity of terrorism to affect Australia's re lations w ith other countries and also I to the extent the law had extraterritorial operation, the power under s 51 (xxix) to legislate for any matter or thing geographically external to the country.

phrase 'external affairs'. The Commonwealth Act concerned matters 'geographically external to Australia' which had 'an obvious and substantial

206

nexus' with Australia. The Act was therefore supported by the external

Treaty implementation power

affairs power.

The extent to w hich Commonwealth power is activated by the existence of international treaties to which Australia is a party represents the most

8.1 o

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contentious question concerning s 51 (xx ix). Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and Commonwealth v Tasmania (the Tasmanian Dam case) (1'9133) 158 CLR 1 are ground-breaking cases. How does international law become Australian law?

8.11

International law requires the application of treaties at national level, but this does not modify or affect the principle that their application is a matter of domestic law. The legal means by which States give effect to their treaty obligations depends on their national constitutional legal arrangements. In most countries with a common law tradition, including Australia, a specific act of transformation into domestic law is necessary before treaty requirements can take effect in the national sphere.

8.12

Therefore treaties signed and ratified by Australia do not automatically form part of domestic law. As treaties are not 'self-executing', specific enabling legislation is usually necessary. It is through enabling legislation that treaties can directly affect private rights or obligations within Australia. This may require legislation to be enacted by both Federal and State Governments in order to give effect to the terms of the treaty.

8.13

8.14

8.15

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Normally, the Federal Government satisfies itself that domestic law is in conformity with particular treaty obligations or proposes new legislation to ensure conformity before it accepts those obligations on behalf of Australia. Usually, the Federal Government consults extensively with the States in order to establish the appropriate legislative framework to ensure that Australia can comply with its international legal obligations. Agreement between the Commonwealth and the States is usually reached before Australia proceeds to accession or ratification of a treaty. If problems of implementation cannot be resolved, this cannot be used as an excuse by Australia for failure to comply with an international obligation. The High Court has often ruled on constitutional problems concerning conflict between the Commonwealth and a State.

CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

Koowarta v Bjelke-Petersen (1982) 153 CLR 168 FACTS: The Aboriginal Land Fund Commission, a body corporate constituted by the Aboriginal Land Fund Act 1974 (Cth) contracted to buy

a Crown Lease of a pastoral property in Queensland. The Queensland Minister for Lands refused his consent to the transfer of the lease because of a government policy which was opposed to the acquisition by Aboriginals of large areas of land in the State. Koowarta, an Aboriginal who had been active in arranging the purchase on behalf of his tribe, brought an action against members of the Queensland Government for breaches of the Racial Discrimination Act 1975 (Cth) which gave effect to the International Convention on the Elimination of all Forms of Racial Discrimination 1966 to which Australia was party. The defendant argued that the Act was invalid. ISSUE: Was the Racial Discrimination Act 1975 (Cth) validly enacted under

the external affairs power (or the races power ins 51 (xxvi))? DECISION: Mason, Murphy, Brennan, Stephen JJ: The Racial Discrimination Act was a valid enactment with respect to external affairs within s 51 (xxix) of the Constitution. Mason, Murphy and Brennan JJ

found that the Commonwealth had the power to implement any treaty obligation, regardless of its subject matter, under the external affairs power. Stephen J found that the Commonwealth could implement a treaty when it related to a matter of 'international concern' and since suppression of racial discrimination is undoubtedly of international concern, it was a part of Australia's 'external relations'. His Honour reasoned first that a subject matter of international concern could affect a country's relations with other nations and this quality was enough to make the subject matter part of the nation's external affairs (at 217). Second, he outlined a growth in the content of external affairs which put beyond doubt that the suppression of racial discrimination was now a matter of international concern (at 218). The minority justices, Gibbs CJ, Aickin and Wilson JJ, adopted the view that a treaty can be implemented within Australia only if its subject matter is itself an 'external affair', that is, 'indisputably international in character'. As racial discrimination was not such a matter, the Act was invalid in their view.

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CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

Whether or not the implementation of a treaty is a valid use of power under s 51 (xxix) was again highlighted in Commonwealth v Tasmania (1983) 158 CC

1.

of the identified area. The enactment of the Commonwealth Acts had been authorised under the constitutional power in s 51(xxix) (and s 51 (xx) see further

), although the actual legislation enacted by the

Commonwealth was not without its problems. In so holding, the majority confirmed thats 51 (xxix) granted the Commonwealth the legislative power

Commonwealth v Tasmania {the Tasmanian Dam case) (1983) 158 CLR 1 FACTS: The case involved the implementation of the UNESCO Convention

to incorporate all of its treaty obligations into Australian law -

a broad

view. Finding difficulties with the test of 'international concern ' proposed by Stephen J in Koowarta, Mason J stated that a topic that 'becomes the subject of international co-operation or an international convention' is

for the Protection of the World Cultural and Natural Heritage 1972 ('the

'necessarily international in character'. International concern is established

Convention'), to which Australia was party. The Convention imposed a duty

simply by Australia's entry into a convention or treaty (125).

on States to identify, conserve and protect the cultural and natural heritage within its territory. The Commonwealth enacted the National Parks and

Wildlife Conservation Act 1975 (Cth) to implement the Convention, relying on the external affairs power ins 51 (xxix) of the Constitution. In 1982, Tasmania passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas) which authorised the construction of a dam in an area which had been nominated for inclusion on the World Heritage List. The nomination was accepted by the World Heritage Committee in December 1982. In 1983 the World Heritage Properties Conservation Act 1983 (Cth) was enacted, relying on the external affairs power and the corporations power in s 51 (xx). The Wilderness regulations of 1983, made pursuant to the National Parks and Wildlife Conservation Act, specifically prohibited the construction of the 'Gordon below Franklin' Dam. The World Heritage Properties Conservation Act applied more generally to prohibit damage or destruction of any property identified by the legislation. The Commonwealth commenced proceedings seeking a declaration that the construction of

Hence, matters covered by an international treaty are by their very inclusion in the treaty, brought w ithin the scope of the external affairs power. However, according to Deane J, 'a law would not properly be :haracterised as a law with respect to external affairs if it failed to carry into effect or to comply w ith the particular provi sions of a treaty which it was said to execute ... '(259). The minority justices (Gibbs, Wilson and Dawson JJ) sought to pin down a limitation to the operation of s 51 (xx ix) and decided on Stephen J's test in Koowarta. However, they held that the

8.17

construction of a dam in Tasmania was not of 'in ternational concern'. The Tasmanian Dam case was fol lowed in Richardson v Forestry Commission (1988) 164 CLR 261 and in Queensland v Commonwealth (1989) 167 CLR 232. These cases were concerned, respectively, with the obi igation to protect properties pending the ir identification under the World Heritage Convention and the fact of inclusion in the World Heritage List as conclusive of a duty to p rotect the identifi~d property.

8.18

the dam was unlawful. Tasmania cross-claimed, seeking declarations that the two Commonwealth Acts and the regulations were invalid. ISSUE: Could the external affairs power in s 51 (xxix) be exercised by the

Commonwealth to prevent Tasmania from constructing the dam? DECISION: The High Court Majority (Mason, Murphy, Deane and Brennan

JJ) decided in favour of the Commonwealth, finding that the Convention imposed an obligation on the Commonwealth to protect the natural heritage

210

Richardson v Forestry Commission (1988) 164 CLR 261 FACTS: A Commission was established under the Lemonthyme and

Southern Forests (Commission of Inquiry) Act 1987 (Cth) to consider whether two forests in Tasmania were eligible for world heritage status ..,

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CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LA.W DEBATES

under the 1972 Convention for the Protection of World Cultural and Natural

to be protected under the Act. Queensland challenged the validity of the

Heritage. Pending the outcome of this investigation, the Act prohibited forestry

proclamation, arguing that the area did not qualify for inclusion on the

operations and other actMties that could compromise the heritage value of

World Heritage List and, accordingly, there was no international obligation to protect it.

the areas. The Federal Minister, Richardson, sought an injunction against the Tasmanian Forestry Commission to prevent contravention of the Act. The Forestry Commission challenged the validity of the Act on the ground that It could not be supported by the power in s 51 (xxlx) - Australia had an obligation to protect only those properties Inscribed on the World Heritage Ust, and at

ISSUE: Was the inclusion of the area in the World Heritage List conclusive

of its status as a world heritage area under the 1972 Convention for the Protection of the World Cultural and Natural Heritage such as to validate the proclamation?

the relevant time the Lemonthyme and Southern Forests were not listed. ISSUE: Whether the Act and the Commission of Inquiry established under

it were a valid exercise of the power under s 51 (xxix) to implement treaty obligations.

DECISION: Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh

JJ held that just as the inclusion of the property in the World Heritage List is 'conclusive of its status in the eyes of the international community', it is also 'conclusive of Australia's International duty to protect and conserve

DECISION : The Court found the Act and the Inquiry to be a valid exercise

it'. Therefore, its inclusion in the List was 'conclusive of the constitutional

of the external affairs power. The Convention Imposed a duty on States

support for the proclamation' (242). It is not for a municipal court to decide whether or not a property has world heritage status.

partly to identify and recommend properties with heritage value within their territory for inclusion on the World Heritage List. By unanimous decision, the establishment of the Commission of Inquiry for this purpose was a valid exercise of power. Although the legislation did not give effect to a specific obligation under the Convention to protect the Lemonthyme and Southern Forests (as they were not on the list at the time of challenge), the High

Tasmanian Dam case in Victoria v Commonwealth (1996) 187 CLR 416. We sha ll

The High Court again took the opportunity to reaffirm the

Court majority found the interim protections imposed by the Act to be valid

co ncentrate on aspects of this decision concerning the requirement

as reasonably incidental to obligations under the Convention.

that the imp lementing legis lation conform to the treaty's requirements

8.19

as well as the question of whether the external affairs powe r can In the majority, Mason

CJ

and Brennan

J stated

that as a p lenary

authorise the implementation of international instruments, such as

powe r, the external affairs power is capable of supporting a law which

recommendations or declarations, that have neither the status of a

is ca lc u lated to discharge 'Australia's known obligations' as well as her

treaty nor impose obligations in international law.

'reaso nab ly apprehended obligations'. In establishing the Commission of Inq u iry and providing for the interim protections, Par liament had exp ressed a legislative judgment about the Convention obligation and it was not fo r the Court to impugn that judgment (at

295-6).

Victoria v Commonwealth (1996) 187 CLR 416 FACTS: The Australian government introduced the Industrial Relations

Reform Act 1993 (Cth) to amend the Industrial Relations Act 1988 (Cth)

Queensland v Commonwealth (1989) 167 CLR 232

212

with the intention of protecting workers' rights with respect to diverse matters including 'minimum wages', 'unfair dismissal', 'termination of

FACTS: By proclamation under the World Heritage Properties Conservation

employment' and 'parental leave'. The Commonwealth claimed that the

Act 1983 (Cth), an area of land in north-east Queensland was declared

source of these new protections was the various Conventions and ._

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Recommendations adopted by the International Labour Organization (ILO). The plaintiff States sought declarations to the effect that certain provisions concerning employment conditions were invalid . ISSUE: Was the Commonwealth Act which implemented ILO Conventions and Recommendations supported by the external affairs power ins 51 (xxix)? DECISION: The Court essentially upheld the Commonwealth's claims, reaffirm ing the decision in the Tasmanian Dam case, but also pointing out the limits of that case. Commonwealth legislation must be 'appropriate and adapted' to the implementation of a specific program , rather than mere aspirations. Thus the joint judgment of Brennan CJ , Toohey, Gaudron , McHugh and Gummow JJ emphasised that '[t]he law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states ... 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' (486-7). The law will not be appropriate and adapted to implementing the treaty unless there is 'reasonable proportionality' between the purpose and the means adapted to pursue it (487-8). According to this test , the provision concerning the termination of employment was invalid as going beyond what the relevant ILO Convention required.

8.20

The prov1s1ons of the Commonwealth law must be tested against the terms of the treaty to evaluate whether the Commonwealth law is in conformity with the international instrument, ie adapted to implementing the treaty. The international instrument must therefore prescribe a specific program or regime to enable the Commonwealth to implement it.

8.21

The Court also endorsed the view that the Commonwealth can, through s 51 (xxix), implement the provisions of international instruments such as ILO Recommendations, which do not have the status of treaties. Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ cited the quotation from Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687 which suggested that the external affairs power could be directed to carrying out ' recommendations' and 'draft international conventions' of the ILO or other international recommendations of concern to Australia (at 483 ).

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CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

Despite the Court's endorsement of the use of s 51(xx ix) to implement ILO Recom mendations in Victoria v Commonwea lth, it is probable that the recommendations of this major international body would be given more we ight by a municipal court than other 'soft law' emanating from less establish ed or authoritative bodies.

8.22

In Pape v Commissioner of Taxation (2009) 23 8 CLR 1 , the High Court by majority held the Tax Bonus for Work ing Australians Act (No 2) 2009 (Cth), which provided for a fiscal stimulus to the Australian economy th rough one-off payments to Australia n taxpayers, to be a valid enactment, though not under s 51 (xxix). Hayne and Kiefel JJ and Heyden J (dissenting) stated that the Act was not a law with respect to external affairs. Neither the declarations by the leaders of the G20 (which comprises Australia) nor the recommendati ons of the IMF or the OECD on the need for a stimulus package we re said to impose any obligation on Australia to take legislative action to provide a fiscal stimulus, including provision of a tax bonus. Nonetheless, with the acceleration of internationalisation, it is apparent that matters once thought to be exclusi vely ' internal ' are now increasingly viewed as falling within the scope of 'external affairs'. THE ROLE OF INTERNATIONAL LAW IN DOMESTIC LAW

Thus far we have focused mainly on the implementation by the Commonwealth of Australia's treaty obligations, from the perspective of establish ing the nature and scope of the Commonwealth's legislative powers in s 51 (xxix) of the Constitution. This discussion is predicated on a dualist logic, which sees international law and domestic law as constituting separate legal systems, necessitating th ~ transposition of international treaties into domestic law. It suggests that there are several

8.23

dimensions to the issue of the relationship between international and domestic law including the extraterritorial effect of domestic law; the relationship between customary international law and domestic law; the role of national courts in interpreting treaty provisions; the reception of international lawwithinthedomestic legal order and the generally accepted legal conclus ion that unimplemented treaties cannot produce legal effects domestically; the presumption of conformity with international law as an 215

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interpretive principle; and the utility of international law, including the international law of human rights, in the interpretation of the Constitution. Of the manyttimensions of the international-domestic debate we will now focus on the weight accorded, in constitutional adjudication, to international law. Despite numerous High Court decisions touching on the matter, the issue remains highly contested.

CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

Such cases highlight a significant controversy in Australia, perhaps best demonstrated by the High Court's decision in Al-Kateb v Godwin (2004) 219 CLR 562.

Al-Kateb v Godwin (2004) 219 CLR 562

8.24

International legal norms in the Interpretation of the Constitution

FACTS: The appellant was born of Palestinian parents in Kuwait and was

The question whether international legal norms can guide the interpretation of the Australian Constitution has received increasing attention by the High Court over a decade or more. Central to the discussion has been Kirby j's articulation of an 'interpretive principle' that underscores the relevance of international law to the resolution of disputes involving constitutional adjudication. First in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, then in Kartinyeri v Commonwealth (1998) 195 CLR 337, Kirby J ruled on the availability of international norms to constitutional construction, declaring that '(w]here there is ambigu ity, there is a strong presumption that the Constitution ... is not intended to violate fundamental human rights and human dignity' (Kartinyeri v Commonwealth (1998) 195 CLR 33 7, at 418). Hence, 'it is legitimate to have regard to international law' (418) which 'expresses universal and basic rights' (418). This argument is closely aligned with the interpretation of the rule of law as an ideal vulnerable to violations of human rights, to the extent that a flagrant violation of human rights is also a contravention of the rule of law.

stateless. He arrived in Australia by boat in December 2000 without visa documents. He was taken into Immigration detention and applied for a protection visa, which was refused. His applications for review of that refusal having failed, in August 2002 he wrote to the Minister asking to be removed from Australia as soon as reasonably practicable. He was not removed. On 12 February 2003, Al-Kateb commenced a proceeding in the Federal Court of Australia in which he sought a declaration that his continued detention was unlawful, habeas corpus and prohibition to achieve his release from detention, and mandamus directing the Minister to remove him from Australia. The application was dismissed and he gave notice of appeal to the Full Court of the Federal Court, which appeal was removed to the High Court. ISSUE: Do provisions in ss 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the indefinite detention of an unlawful non-citizen in circumstances where there is no real prospect of removing the non-citizen? If they do authorise detention, are the provisions beyond the legislative power of the Commonwealth and therefore invalid? DECISION: The majority (McHugh, Hayne, Callinan and Heydon JJ) dismissed the appeal, finding that the provisions authorise the indefinite

8.25

216

In subsequent cases such as Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308, Al-Kateb v Godwin (2004) 219 CLR 562 and White v Director of Military Prosecutions (2007) 231 CLR 570, Kirby J reiterated his views on the use of international law in constitutional construction. Nonetheless, Kirby j's interpretive principle has attracted little if any support from other High Court Justices, past and present. Some have expressed strong disagreement either with the principle or on the use of foreign sources generally (eg McHugh J in Al-Kateb v Godwin; Hayne J in Roach v Electoral Commissioner (2007) 233 CLR 162), while Heydon J has been intensely sceptical of both (Roach v Electoral Commissioner).

detention of an unlawful non-citizen in circumstances where there is no real prospect of removing the non-citizen (eg because the non-citizen is stateless and no third country is willing to receive the detainee). McHugh J stated that nothing in the Constitution, including Chapter Ill, prevents the Parliament from enacting laws that direct the executive government to detain unlawful non-citizens. The laws may be unpopular and open to criticism but 'their constitutionality is not open to doubt' (585-6). Furthermore, '[i]t is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights' (595).

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8.26

While the Court's findings in Al-Kateb are significant for their contribution to the body of law on Chapter Ill and punitive or nonpunitive deten on, the case provides a very useful foundation to the question whether the Constitution is to be interpreted consistently with the international law of human rights. The majority and minority judgments of McHugh J and Kirby J respectively provide interesting and authoritative arguments and counter-arguments on this topic. McHugh j's judgment emphasised that 'reading the Constitution up or down to conform to the rules of international law is to make those rules part of the Constitution'. This is impermissible because it contravenes the direction in s 128 that amendment of the Constitution must be in accordance with the referendum process (592-3). Desirable as An Australian Bill of Rights may be, ' it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country.... If Australia is to have a Bill of Rights, it must be done in the constitutional way - hard though its achievement may be - by persuading the people to amend the Constitution by inserting such a bill (594-5)'. Kirby J dissented from the majority view. He found that indefinite detention, atthe will of the executive, is alien to Australia's constitutional arrangements and has potentially grave implications for individual liberty. He argued that the Constitution and the Migration Act are to be read in the light of the common law presumption in favour of personal liberty and against indefinite detention, and also in conformity with international law. Addressing himself to the purposive approach to construction favoured by the High Court, Kirby J stated that the 'purposive approach accommodates itself readily to an interpretive principle upholding compliance with international law, specifically the international law of human rights' because domestic courts in relevant cases 'exercise a form of international jurisdiction' and in so doing they 'give effect to interpretive principles defensive of basic rights upheld by international law' (622). Kirby J highlighted the constantly evolving understanding of the Constitution in the High Court and situated his interpretive principle as 'another step in the process of evolution' (623). He anticipated

CHAPTER 8 • EXTERNAL AFFAIRS AND INTERNATIONAL LAW DEBATES

that national constitutions will have to adapt to the 'growing role of international law, including the law relating to human rights and fundamental freedoms' (626). Kirby J refuted any suggestion that his conclusion represented a judicial attempt to 'amend the Constitution under the guise of interpretation'. There was no distinction between his interpretive principle and other judicial processes of interpretation which produced a change to ear lier understandings of the Constitution (629-30). External Affairs Diamond Scope of Power • Meaning of "external affairs" • Treaty is ipso facto of international concern • Is there a need for an international obligation?

Implementation • Ratified but unimplemented treaties. Can they be taken into account? • Legislation: Obligation? Sufficient Specificity? Appropriate and adapted? Conformity?

Source of Power

0

• s 51 (xxix) External Affairs • Executive prerogative to enter treaties and conduct external relations

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

9.1

Finance is of the essence of government and federation. The economic troubles of the 1890s were instrumental in persuading the colonies to federate. It is made clear in the Commonwealth Constitution (CC) that the Commonwealth is to have a monopoly of the issuing of money (ss 51xii and 115). It was also clear that a condition of federation was a single external customs barrier and that trade between the States must be free of protectionist barriers. This entailed a ban on State customs duties (s 90), buts 90 also banned the States from imposing duties of excise, a much less certain parameter that has caused much I itigation (see 9.2 ). The States otherwise have a wide power to tax but have been hit by the Commonwealth takeover of income tax (see 9.17) and a broad interpretation of the 'excise' prohibition . Meanwhile the Commonwealth has made the most of its broad taxing and spending powers to enhance its power within the federation (see 9.27 and 9.32).

STATES' POWERS TO TAX AND SPEND

9.2

The general legislative power of the States includes the power to tax. The CC contains some prohibitions on State taxing powers, especially s 90, which gives the Commonwealth a monopoly on the imposition of customs and excise duties and also on the granting of bounties financial grants for particular economic activity. Excises and bounties might enable States to favour their own industries at the expense of those in other States.

9.3

In 2000, the Commonwealth introduced the Goods and Services Tax (GST). This is almost entirely handed over to the States, but it is still a Commonwealth tax. Indeed, the Commonwealth required the States to phase out several taxes in return for receiving the GST revenue.

9.4

The States now rely to a great extent on GST, grants from the Commonwealth, taxes on gambling, land tax, liquor licensing, payroll tax, stamp duties, motor and driver registration.

9.5

The major restrictions on the States' power to tax are in s 90. It is axiomatic that if Australia is to be a single market, there can be no barriers to interstate trade. This is achieved by s 90 prohibiting the

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States from imposing duties of customs. However, s 90 goes further and also prohibits the States from imposing duties of 'excise'. Excise was traditionally a tax on production and the High Court has found difficulty in agreeing on its exact meaning. The States have tried to raise revenu e through 'licence fees' linked to volume or value of sales. The High Court has sometimes tolerated this and sometimes struck it down as 'excise'. Finally in 1997 the case of Ha (see 9.8) seemed to put the matter beyond doubt - at least for now! It should also be noted that s 92 says that 'trade, commerce and intercourse between the States shall be absolutely free' - a further provision against State protectionism discussed in Chapter 7 . 90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise.

The meaning of 'excise' has caused much difficulty. The words of s 90 foreshadow a degree of fiscal deprivation by the States since they are denied important sources of revenue. The extent of this deprivation depends upon the definition of the sources of reven ue referred to in s 90 of the Constitution: 'customs', 'bounties on the production or export of goods' and 'excise duties'. 'Customs duties' do not present a problem . They relate to taxes imposed on imported goods, or upon goods at the point of their export from Australia. 'Bounties of goods' are also straightforward: these are subsidies or bonuses paid by the government on goods. More contentious has been the definition of an 'excise' where the High Court's case law revea ls a history of judicial disagreement. While the High Court has various ly endorsed a broad or narrow definition of excise, all judges have agreed that an excise is a tax.

9.6

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Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263

Alrservices Australia v Canadian Airlines International (1999) 167 ALR 392

FACTS: The CMB, a Victorian Government agency, imposed a levy on a

FACTS: AA (a Commonwealth agency) imposed fees for aviation-related services provided to CAi's lessee.

piece of Victorian land planted as a chicory crop and sold to a NSW buyer. ISSUE: Was this an excise (and thus prohibited under s 90)?

ISSUE: Because the fees did not reflect either the value of the services to

DECISION: A tax may be defined as 'a compulsory exaction of money

the lessee or the cost of their provision by AA, were they in reality taxes?

by a public authority for public purposes, enforceable by law, and is not

DECISION: These were fees for services, not taxation. The Commonwealth

a payment for services rendered ... (at 270 per Latham CJ). The majority

may make a profit from its provision of services. Services of value were provided.

held that it was indeed an excise and thus Invalid.

9.7

There is no element of 'quid pro quo' with a tax and one does not receive anything of comparable value in return for the payment of a tax.

Air Caledonle International v Commonwealth (1988) 165 CLR 462 FACTS: The Migration Act 1958 (Cth) was amended to require airlines

to collect a $5 'Immigration Charge' from all incoming international passengers. ISSUE: Was this 'charge' in reality a tax (in which case it would be invalid

under s 55)? DECISION: The $5 'immigration charge' was characterised as a

tax because nothing of value was necessarily received by Incoming passengers in return for the charge. Not all charges described as fees for services will be precluded from properly being seen as a tax.

9.8

Conversely, a fee for services is not a tax if there is a 'discernable relationship' between the amount paid and the thing acquired by way of service. If not a tax, it is not an excise either, so the States would be allowed to levy such charges.

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CHAPTER 9 • FINANCE

What are the ramifications of a broad or narrow judicial definition of excise? A broad view can have major consequences for State revenue, and hence autonomy. A broad definition of excise increases the 'vertical fiscal imbalance' or the disparity between the financial powers of the Commonwealth and the States. A narrow definition would generally allow the States greater freedom in taxing, thereby enhancing the States' revenue base and diminishing the reliance of the States on s 96 grants and regressive taxes discussed above.

9.9

The actual reduction of the States' revenue raising capacity points to the dominance of a broad definition of excise duties. However, irrespective of the definition of excise duties, the States' capacities to raise taxes have been significantly modified by the changes to the federal tax system brought about by the implementation of the Goods and Services Tax (GST). While States receive almost all of the revenue raised by the Goods and Services Tax through s 96 grants, this makes tfie States more reliant on the Commonwealth for redistribution of revenue. As the States' legal entitlement to GST revenues is not constitutionally secure, their financial autonomy is in serious doubt.

9.1 O

It is necessary to review the High Court's decisions on the nature and scope of excise duties to see how the current position was reached. Early decisions on excise duties were influenced by the 'reserved state powers' doctrine, the effect of which was to 'reserve', by implication, the residual legislative powers of the States.

9.11

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CHAPTER 9 • FINANCE

'dairymen' to contribute an amount to the Board for its activities, calculated on the quantity of milk sold. The tax was therefore imposed upon dairy

Peterswald v Bartley (1904) 1 CLR 497

distributors, as opposed to producers, and calculated per gallon sold.

Parton, a milk distributor, sought a declaration that the contributions were

FACTS: The Liquor Act 1898 (NSW) required every person desiring to

excise duties. The Act specified that the collections from the tax would

carry on business as a brewer to obtain a licence, and a flat-rate licence

be used to defray the administrative costs of the Milk Board. The Board

fee was imposed. Bartley was charged with a breach of the Act for failing

therefore argued that the contributions amounted to a payment for services rendered - not a tax.

to possess a licence. ISSUE: Did the licence fee amount to an excise duty and was it thus invalid

under s 90 of the Constitution?

ISSUE: Did the tax amount to an excise duty and was it thus invalid under s 90 of the Constitution?

DECISION: The High Court upheld a narrow view of s 90, finding that the

DECISION: The Court held that the fee was an excise and not a fee for

flat-rate licence fee imposed by NSW on brewers of beer was not an excise

services rendered, as it was a compulsory exaction and the Board did not

duty. The reasons for this decision were that the licence fee had not been

provide a particular service to the plaintiff. It was therefore invalid under s 90 of the Constitution. Dixon J stated:

paid on goods during the process of manufacture, and that the amount of the fee did not depend on the quantity of beer produced. The High Court characterised an excise duty as 'analogous to a customs duty imposed

This analysis treated an excise duty as a tax imposed on goods at any stage on its way to the consumer.

upon goods either in relation to quantity or value when produced and not in the sense of a direct tax or personal tax'.

9.12

The Court characterised the licence fee on beer as a levy to regulate the manufacture of beer, not to impose a tax on beer itself. It was permissible for NSW to enact legislation directed to regulating business in that State, and that is what NSW had done. Griffith CJ noted that '[i]t is not disputed that it [NSW] can regulate the manufacture of an article, though it has no power to impose a tax upon the thing itself (511 )'.

9.13

After the Engineers ' case (1920), this narrow definition of excise duty was eroded (eg Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263) at 9.6, and eventually abandoned by the High Court.

Parton v Milk Board (1949) 80 CLR 229

226

A tax paid at any stage wi ll ultimately be passed on to the consumer and will rai se the ultimate price of that co mmodity. Therefore it would be farcical to restri ct the relation of the tax in question to production or manufacture. As long as the tax or levy relates to production, manufacture, sa le or distribution of goods, the tax or levy will be an excise duty and, as such, ca nnot be imposed by a State. This broad approach laid the foundation for later High Court decisions on excise duties.

9.14

The States tried to dress up some excise-like taxes as 'licence fees':

Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529

FACTS: The Court applied an expanded definition of excise duties. In this

FACTS: Victoria imposed a licence fee based on the volume of liquor

case the Milk Board Act 1933 (Vic) established the Milk Board to control

purchased by the licensee during the previous year.

the trade of milk within the Melbourne metropolitan area. The Act required

ISSUE: Was this an excise and thus prohibited by s 90?

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DECISION: The licence fees were a payment for the privilege of carrying

on business. They were not excise duties as the fees did not relate to sales of liquor in the period in which the licence was held. Accordingly, the fee could not be characterised as a tax on goods. On the other hand, licence fees calculated on liquor purchases during the licence period were excise duties and, therefore, invalid withins 90 of the Constitution.

Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399 FACTS: The State imposed a licence fee based on tobacco sales in a

previous period. ISSUE: Was this an excise and thus prohibited under s 90? DECISION: The licence fees (a fixed sum plus percentage of sales

CHAPTER 9 • FINANCE

Sydney selling tobacco by retail, but did not hold the requisite licences under the Act. ISSUE: Was the 'licence fee' a duty of excise, which NSW was not

empowered to impose, or could it be said that so long as state legislation taxed the sale or distribution of imported and local goods equally, the legislation was not imposing excise duties? Were these fees for a licence to carry on a business rather than a tax on tobacco sold? DECISION: The High Court ruled that Philip Morris was wrongly decided. Dennis Hotels and similar cases were not overruled but confined to their facts. The view of Brennan· J in Philip Morris was preferred. A licence fee referable to sales even in a prior period is an excise. 'Duties of excise

are taxes on the production, manufacture, sale or distribution of goods, whether of foreign or domestic origin. Duties of excise are inland taxes in contradistinction from duties of customs which are taxes on the importation of goods. Both are taxes on goods, that is to say, they are taxes on some step taken in dealing with goods.' (499)

during the 'relevant period', being the preceding month but one before the month for which a licence was Issued), could not be characterised as excise duties. In his dissenting opinion that State licence fees on liquor and tobacco should be interpreted as excise duties, Brennan J pointed to

Ha's case is significant because it reconsidered a number of precedents

the fact that the Constitution 'makes no distinction among commodities

regarding excise duties. It endorsed the broad view of excise. Thus an

for excise purpose' and that 'if the nature of the commodity were relevant

excise is a tax on goods imposed at any point before consumption. It represents a new interpretive approach that does not acknowledge the

to the character of a tax ... liquor and tobacco are historically the prime excisable commodities' (459).

Subsequently, Brennan J's view was adopted by a majority:

9.15

claim that alcohol, petrol and tobacco belong to a special category that may warrant exemption from the scope of excise duties. Thus the States' schemes for revenue-raising from franchise fees on

9.16

tobacco, alcohol and petrol collapsed. Because of the magnitude of the financial loss to the States, the Commonwealth agr~ed to step in and collect these taxes on behalf of the States and return the revenue Ngo Ngo Ha v New South Wales (Ha's case) (1997) 189 CLR 465

to the States through s 96 grants. With the implementation of the GST these arrangements ceased as of 1 July 2000.

FACTS: A challenge to the Business Franchise Licences (Tobacco) Act

The States are also prohibited from paying bounties on the production of goods. This would otherwise be a way for States to favour their producers over interstate producers.

1987 (NSW) and the tobacco retailer's licence fee within that scheme. The licence fee in dispute was calculated by reference to a rate of 100 per cent of tobacco sold during the month commencing two months prior to the licence period. The plaintiffs operated a duty-free store in

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COMMONWEALTH POWER TO TAX

CHAPTER 9 • FINANCE

•

Taxation power - s 51 (ii) 9.17

The taxation power of the Commonwealth is granted by s 51 (ii) of the Constitution which states: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (ii) J:i.!2'ati ; but so as not to discriminate between States or parts of States.

9.18

The Commonwealth thus has a broad power of taxation. It has used this power together with ss 96 and 109 to crowd the States out of income tax. (see Uniform Tax cases: South Australia v Cth (1942) 65 CLR 373 (First Uniform Tax case) and Victoria v Cth (1957) 99 CLR 575) (Second Uniform Tax case) see 9.29). An early case which demonstrates that governments can try to use taxation for purposes other than raising revenue is R v Barger (see 4.11 and 9.24).

9.19

9.20

Sections 90 and 99 of the Constitution are directly relevant to the taxation power of the Commonwealth. As we have seen, s 90 denies to the States the power to levy customs and excise duties, and thereby confirms an exclusive Commonwealth power to do so. Section 99 states that in its trade, commerce or revenue laws, the Commonwealth may not discriminate against, or give preference to any State or part of a State, further emphasising the non-discrimination decreed ins 51 (ii). It is important to note that enactment of taxation and other financial legislation by the Commonwealth must conform to the procedural and substantive requirements set out in ss 53-56 of the Constitution. The legislative procedures are usually referred to as special procedures for financial legislation, and they essentially impose restrictions on the manner in which taxation laws may be enacted. Thus: • •

230

'Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate' (s 53); 'The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys' (s 53);

'The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people' (s 53);

• •

•

'The proposed law which appropriates revenue or moneys ... shall deal only with such appropriation' (s 54); ' Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing wi th any other matter shall be of no effect' (s 55); ' Laws imposing taxation ... shall deal with one subject of taxation only' (s 55).

Section 53 recognises the superior financial power and responsibility of the House of Representatives vis-a-vis the Senate. The Senate may not originate money bills or amend them, but it can request amendments and it can reject money bills, so its power is still considerable.

9.21

Sections 54 and 55 qualify that power by preventing the 'tacking' of matters which do not have anything to do with (s 55) the imposition of taxation to a taxation bill or non-appropriation matters 'tacked' on to appropriation laws (s 54) and s 55 provides further that each taxation law must deal only with one subject of taxation. The purpose of ss 54 and 55 is to prevent abuse of the Senate.

9.22

The application of these provisions was subject to interpretation by the High Court in a number of decisions, including:

9.23

Australlan Tape Manufacturers Association Ltd v Co1T1monwealth (1993) 176 CLR 480 FACTS: The Copyright Act 1968 (Cth) was amended to provide for a levy on blank cassettes which was then to be paid to a recording artists' collecting society.

ISSUE: Was this levy a tax in which case it would be invalid under s 557 DECISION: The legislation imposed a tax and was thus not in compliance withs 55.

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329

CHAPTER 9 • FINANCE

powers. The High Court has subsequently developed a broad approach to interpretation of the constitutionality of taxation legislation, in keeping with a 'dua l characterisation' approach and the expansive approach to Commonwealth powers generally:

FACTS: The State Chamber of Commerce and Industry (SCCI) argued

that three Acts (Fringe Benefits Tax Act 1986 (Cth); Fringe Benefits Tax Assessment Act 1986 (Cth); and the Fringe Benefits Tax (Application to the Commonwealth) Act 1986 (Cth)) were invalid under s 55 because they dealt with more than one subject of taxation.

Fairfax v Commissioner of Taxation (1965) 114 CLR 1

ISSUE: Was it one tax or several? The Acts dealt with separate categories

FACTS: The Commonwealth legislated to require superannuation funds

of fringe benefits with different criteria. DECISION: The Acts dealt with a single subject of taxation and were

to invest a proportion of their funds in government securities in order to obtain tax benefits.

thus valid.

ISSUE: Was this a law with respect to taxation? DECISION: The taxation power in s 51 (ii) can be employed to support

9.24

The Court thus rejected a narrow approach to constitutional interpretation of this power. In its early period, the High Court had held that even a law imposing a tax might not be a law 'with respect to taxation'.

R v Barger (1908) 6 CLR 41 FACTS: The Commonwealth enacted the Excise Tariff Act 1906 (Cth) to

impose an excise on companies which did not implement Commonwealth industrial awards. ISSUE: Was this a law with respect to taxation or was it really with respect

legislation which affects a wide range of social and economic situations as long as the Commonwealth statute is directly concerned with the imposition of taxation. Just because a law can be characterised as being with respect to some other topic does not prevent it also being characterised as a law with respect to taxation.

By focusing solely on the direct rather than the consequential effects of laws, the Commonwealth is able to enact laws which have significant effects on areas outside its heads of power. For example, cigarette taxes have the dual purpose of raising revenue and discouraging smoking. It is a law with respect to taxation but does not contravene s 55 of the Constitution.

9.26

to industrial relations? DECISION: The High Court examined the legislation to determine if both

THE COMMONWEALTH GRANTS POWER - SECTION 96

its 'form' and 'substance' related to taxation. It held that while In form

Section 96:

it was about taxation, in substance it was about industrial relations and beyond Commonwealth power.

9.25

This approach reflected the 'state-reserved powers' doctrine by which the legislative powers of the States were not to be diminished by an expansive construction of the Commonwealth's specific legislative

9.27

During a period of ten years after the establishment of the Commonwealth and thereafter unti I the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

The provisions of s 96 facilitate the construction of hospitals, roads and housing and provide money for education. However, they also entail

9.28

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

a significant degree of Commonwealth control over state finances and spending. Financial grants under s 96 fall into three broad categories:

•

General revenue grants to compensate the States for lost income tax revenue.

• Specific purpose grants to provide money for hospitals, roads, housing and education etc. These grants designate the purpose for which grant moneys are to be spent. The Commonwealth has used tied grants to make the States its agents in making public expenditure on activities traditionally within State responsibility.

• Special assistance grants to adjust financial inequalities between the States.

Victoria v Commonwealth (the Roads case) (1926) 38 CLR 399 FACTS: The Commonwealth offered grants under s 96 for agreements

with the States to build roads, for which there is no Commonwealth head of power. ISSUE: Could a grant be made under s 96 for a purpose for which the

CHAPTER 9 • FINANCE

legislation to induce the States to vacate the field of income tax in return for grants under s g5, Strictly speaking the States were not compelled to do so, but a decision to this effect would prevent the States from imposing and collecting income tax. ISSUE: Was the scheme valid? DECISION: The scheme was held to be valid. (Wartime and the defence power may have helped this finding.)

The uniform tax scheme was to continue for the duration of the war and one year afterwards. In 1946 the Commonwea lth proposed, and the States accepted, a continuation of this scheme in return for increased grants.

9.30

Victoria v Commonwealth (the Second Uniform Tax case) (1957) 99 CLR 575 FACTS: The Uniform Tax Scheme was set to continue indefinitely. The continuation of the scheme was challenged by Victoria and New South Wales.

Commonwealth has no head of power.

ISSUE: Was the scheme valid outside wartime?

DECISION: The s 96 grant is valid .

DECISION: The scheme was still valid based on the taxation power and

s 96. Latham CJ said that the Commonwealth was entitled to use s 96 to persuade the States to refrain from exercising their powers: '[t]he States

9.29

During the Second World War, the Commonwealth took control of the States' income tax collection resources. As part of the scheme, it made

may or may not yield to this inducement, but there is no legal compulsion to yield '.

grants to the States under s 96: Section 96 gives the Commonwealth the capac ity to dictate terms on South Australla v Commonwealth (the First Uniform Tax case) (1942) 65 CLR 373 FACTS: Until 1942, the fiscal arrangements between the Commonwealth

and the States were such that both could levy income tax. During the war the Commonwealth sought to reverse these arrangements by passing

234

9.31

State spending, influencing all sorts of State activities by requiring complementary State spending, for instance. It has been used to fundamentally alter the fiscal balance between the Commonwealth and the States. It was used in 1942 to remove the States' abi I ity to impose income taxes and it is now used to support the States' finances . As a result the Commonwealth has increasingly centra lised fiscal power and there is 'vertical fiscal imbalance' . While the CST has 235

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CHAPTER 9 • FINANCE

reduced the need for s 96 grants, specific purpose grants remain and the Commonwealth exercises substantial power over the States. Victoria v Commonwealth and Hayden (the AAP case) (1975) 134 CLR 338

COMMONWEALTH POWER TO SPEND

9.32

'Regional Councils for Social Development'.

As noted above for revenue, s 53 prohibits appropriation bills from origi nating in the Senate. Section 54 provides that appropriation bills shall on ly deal with appropriation. Section 81 provides that all the revenue of the Commonwealth shall be paid into a single consolidated revenue fund from which appropriations are to be made 'for the purposes of the Commonwealth'. This assists accountability for how pub li c mo ney is spent. Section 56 provides that all bills appropriating revenue must be requested by the Governor-General. This is a further nod to responsible government, meaning that an appropriation must be initiated by the executive. Section 83 provides that no money sha ll be drawn from the consolidated revenue fund except as appropriated

ISSUE: Was the appropriation constitutional despite the lack of a designated head of power?

by law.

9.33

FACTS: The Commonwealth legislated to provide funds directly to

Sections 53, 54, 56, 81 and 83

An initia l question is whether 'for the purposes of the Commonwealth' means that an appropriation must be linked to a designated Commonwealth power.

DECISION: A majority held the appropriation valid, but for differing reasons. Some held that an appropriation in support of the executive power of the Commonwealth under s 61 is valid.

Th is issue was further cons idered in relation to a poss ible 'nation hood' power:

9.34

Davis v Commonwealth (1988) 166 CLR 79 FACTS: The Commonwealth legislated for the celebration of the bicentenary of British settlement in Australia including appropriations. ISSUE: Was there any constitutional authorisation to make such appropriations? DECISION: There is an implied nationhood power authorising such appropriations.

Attorney-General (Vic); Ex rel Dale v Commonwealth (the Pharmaceutlcal Benefits case) (1945) 71 CLR 237 FACTS: The Commonwealth legislated a Pharmaceutical Benefits

If an appropriation coul d not be chal lenged, perhaps expend iture could be challenged as not authorised by an appropriation:

Scheme for which there was no clear Commonwealth head of power but for making appropriations. ISSUE: Did 'the purposes of the Commonwealth' require a specific head

of power? DECISION : A majority found the Act Invalid but there was no majority

view on the proper interpretation of 'purposes of the Commonwealth'.

236

Combet v Commonwealth (2005) 224 CLR 494 FACTS: The Commonwealth conducted an advertising campaign for its Work Choices reforms without a specific appropriation.

9.35

/ LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

ISSUE: Was a specific appropriation necessary? DECISION: The appropriation to the relevant department was sufficiently wide to authorise this expenditure.

This decision effectively endorses extremely broad appropriations, but in Pape and the two Williams cases, the need for specific constitutional power for Commonwealth spending has been required. In Pape (see 4.11 ), s 61 backed bys 51 (xxxix) was found to be sufficient, but in Williams v Commonwealth (Nol) [2012] HCA 23 (see 4.14) a Commonwealth contract with the Scripture Union of Queensland to provide chaplains in State schools was found to be unsupported by any Commonwealth legislative or executive power. The Commonwealth hastily passed legislation purporting to validate the contract and many others, but this legislation was held to be also unsupported by the CC: Williams v Commonwealth (No2) [2014 l HCA 23 (see also at 4.14). Fiscal Powers Diamond Procedural ReQujrements s 53 restrictions on Senate s 54 on appropriation bills s 55 on tax bills

Restrictions s 91 (ii) discrimination between States s 92 s 99 Commonwealth preference to a State in regulation of trade, commerce or revenue.

Commonwealth power to Tax s 51 (ii) taxation s 90 customs and excise Commonwealth power to Spend s 51 generally s 81 single fund for appropriation for the purposes of the Commonwealth. s 83 appropriation only by law •s61Pape • Nation hood Power Davis Commonwealth power to Borrow s 51 (iv) borrowing money on the public credit of the Commonwealth.

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CHAPTER 10 • RIGHTS AND RESTRICTIONS

INTRODUCTION

personal liberty (the most basic of freedoms) could only be achieved by

10.1

unmistakably clear and direct language and not by the general words used in ss 189, 196 and 198.

10.2

There are few express guarantees of human rights or freedoms in the CC. This was a conscious choice of its framers who, instead of fol lowing the example of the comprehensive protections in the Bill of Rights in the United States Constitution, placed their faith in the institutions of responsible government, representative democracy and the rule of law. Despite this, in the early 1990s the High Court started to uncover some additional protections and freedoms implied in the CC. Some protection has also been afforded by statute at Commonwealth, State and Territory level respectively. For example, the Commonwealth has enacted the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). A Human Rights Act 2004 (Acn has been passed in the Australian Capital Territory. Victoria has enacted a Charter of Human Rights and Responsibilities Act 2006 (Vic).

The principle was applied by the Full Federal Court in Evans and Anor v New South Wales (2008) 168 FCR 576 in the interpretation of the World Youth Day Act 2006 (NSW) and of a regulation made under this statute which forbade conduct causing 'annoyance or inconvenience' to participants at the World Youth Day held in Sydney in July 2008.

10.4

Evans & Anor v New South Wales (2008) 168 FCR 576 FACTS: World Youth Day is an annual event involving young members of the Catholic Church. It is attended by the Pope and every two or three years it is held in an international host city. It was held in Sydney from 15 to 20 July 2008. New South Wales had passed the World Youth Day Act 2006

THE COMMON LAW PRINCIPLE OF LEGALITY 10.3

240

Under Australia's constitutional system, the starting point for an examination of individual rights protection is the common law. The CC is framed on the assumption of the rule of law, which largely comprises the common law and its principles (see Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193). It is an implicit, foundational part of the CC (see Wik Peoples v Queensland (1996) 187 CLR 1 at 182). Most relevantly for present purposes, significant individual rights protection is afforded by a common law principle of statutory interpretation which holds that courts do not construe legislation to invade fundamental rights and freedoms in the absence of irresistibly clear language manifesting this intention - as the common law presumes that the legislature does not intend to infringe rights and freedoms (see Momcilovic v The Queen (2011) 245 CLR 1 at 46-7). As one of three dissenting Justices in the High Court in Al-Kateb v Godwin and Others (2004) 219 CLR 562, Gleeson CJ explicitly relied (at 577-8) on this principle in holding that ss 189, 196 and 198 of the Migration Act 1958 (Cth) did not authorise the indefinite detention of an unlawful non-citizen. In his Honour's view, indefinite deprivation of

(NSW) (the WYD Act) to regulate the event. By cl 7(1}(b) of a Regulation made under s 58 of the WYD Act, persons at a World Youth Day event could be directed to cease engaging in conduct causing 'annoyance or inconvenience' to participants. Section 58 relevantly authorised the making of regulations with respect to the conduct of members of the public at World Youth Day venues. Two student activist members belonging to an organisation known as the 'No to Pope Coalition', an organisation opposed to the teachings of the Catholic Church on issues of sexuality, contraception and reproductive freedoms, proposed to engage in protest action during the 2008 World Youth Day celebrations. As part of their protest, the two students intended to distribute stickers, badges, flyers, T-shirts, condoms and coathangers. They applied for a declaration that cl 7(1)(b) fell outside the regulation making power ins 58 and was therefore invalid. ISSUE: Was cl 7(1}(b} outside the regulation making power ins 58 and so invalid? DECISION: The Federal Court unanimously held that clause 7(1 )(b) was invalid insofar as it applied to conduct causing 'annoyance'. The Court reasoned as follows (at 579): The position is different In relation to that part of the Regulation which would empower an authorised person to direct people~

241

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to cease engaging in conduct that causes annoyance to participants in a World Youth Day event. In so concluding, we have interpreted the WYO Act on the presumption that it was not the intention of Parliament that regulations would be made under the WYO Act preventing or interfering with the exercise of the fundamental freedom of free speech. We have applied a principle of interpretation in favour of that freedom which has been accepted by the Courts of this country since federation and which has its roots deep in the common law inherited from the United Kingdom at the time of colonisation. Clause 7 is invalid to the extent that it seeks to prevent merely annoying conduct. But it held that clause 7(1)(b) was not invalid to the extent it applied to conduct causing 'inconvenience' . Unlike the term 'annoyance' which is of uncertain scope and depends on the subjective reaction of World Youth Day participants, conduct causing 'inconvenience' is capable of objective ascertainment. The Court stated (at 597) that conduct occasioning 'inconvenience' may arise 'where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials'. It concluded (also at 597) that the term 'inconvenience', whilst broad, 'does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling'.

CHAPTER 10 • RIGHTS AND RESTRICTIONS

•

with one exception, they are framed in such a way as to only limit Com monwealth legislative action (they generally do not extend to the fettering of State legislative action).

Right to vote Section 41 reads as follows:

10.6

No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Ultimately, it has not been interpreted as guaranteeing a right to vote

10.7

at Commonwea lth elections for adult persons having a right to vote at State elections. In

R v Pearson; Ex parte Sipka (1983) 152 CLR 254, a

majority of the H igh Court held thats 41 only preserved the right to vote at Commonwea lth elections for those who acqui red the right to vote in State elections under ss 8 and 30 of the CC. Under ss 8 and 30, those entitled to vote in lower house State elections gain entitlement to vote for the Commonwealth Parliament until it 'otherwise provides' . Once the Commonwealth Parliament had so provided in 1902 by enacting legislation for the federal franchise (the Commonwealth Franchise Act

1902 (Cth) ), acqu iring the right to vote for Commonwealth elections was governed by this legislation. This means that s 41 only guarantees a right to vote for those who had acquired one un der ss 8 and 30 before

EXPRESS GUARANTEES OF RIGHTS AND FREEDOMS

10.5

Express guarantees of rights and freedoms are found in ss 41, 51 (xxxi ),

This restrictive interpretation has obviously ren dered s 41 redundant.

80, 116 and 117 of the CC. Collectively they provide only quite scanty

This was acknow ledged by Brennan, Deane and Dawson JJ in the

individual rights protection. The following points may be made about

majority in Sipka w hen, at the end of their joint ju dgment, their Honours stated (at 280):

them: •

the scope of the protection they afford is limited as they are few in number and concerned with a restricted range of rights and freedoms;

•

principally due to restrictive judicial interpretations, the strength of the protection they provide to the right or freedom with which they appear to be concerned is often only quite limited; and

242

12 June 1902, w hen the legislation came into fo rce . 10.8

lt follows, of course, that the practical effect of s 41 is spent. Most of the electors who acquired a right to vote at federal elections under ss 30 and 8 of the Constitution would have died. Since 12 June 1902, when the Commonwealth Franchise Act came into force, no person has acquired a right to vote the exercise of which is protected by s 41. A 1988 referend um proposal for an unequivocally guaranteed right to vote was defeated nationa lly and in all States.

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Acquisition of property on just terms

10.9

Under s 51 (xxxi) of the CC, the Commonwealth Parliament has power to legislate with respect to: The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

10.10

Unlike the other express guarantees, s 51(xxxi) is also a source of power. More precisely, it gives the Commonwealth power to make laws for the acquisition of property from any State or person for any of the purposes set out in s 51 but also contains a guarantee requiring that such acquisition must be on 'just terms'. Some additional things should be noted about s 51 (xxxi): • •

•

•

unlike a number of the other express guarantees, it has been liberally interpreted and so has provided quite robust protection; it only limits Commonwealth legislative action, that is, it does not apply to require just terms where there is an acquisition of property under State laws; because it is a specific grant of power subject to a qualification of just terms, it operates as an indirect guarantee of acquisition on just terms by generally withdrawing legislative power with respect to the acquisition of property from the other grants of power ins 51; and unlike the other express guarantees, it is centrally concerned with the protection of an economic right (which can apply in the case of property acquired from a State, a company or an individual).

Ordinarily, a Commonwealth law acquiring property other than on 'just terms' will infringe the guarantee in s 51 (xxxi) and therefore be invalid. Property

10.11

244

The term 'property' has been widely interpreted for the purposes of s 51 (xxxi) (see Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230-231 ). For example, in Minister of State for the Army v Dalziel (1944) 68 CLR 261 a majority of the High Court held that

CHAPTER 10 • RIGHTS AND RESTRICTIONS

the mere possession of vacant land under a weekly tenancy amounted to 'property' within s 51 (xxxi). McTiernan J in the majority said the following (at 295): The word 'property' in s. 51(xxxi.) is a general term. It means any tangible or intangible thing which the law protects under the ~ame of property. The acquisition of the possession of land is an instance of the acquisition of property.

In Georgiadis v Australian and Overseas Telecommunications Corp (1994) 179 CLR 297, the High Court accepted that a common law right to bring an action for damages for negligence (for back injuries sustained during the course of employment) constituted 'property'. Similarly, in Health Insurance Commission v Peverrill (1994) 179 CLR 226 a majority of the High Court accepted that a statutory entitlement to payment for services rendered (a medical practitioner's right to payment of a Medicare benefit assigned by a patient) constituted 'property' for the purposes of s 51 (xxxi). Acquisition

A number of things may be said about this next aspect of the guarantee. First, 'acquisition' is a compound conception, meaning 'acquisitionon-just terms' (see Crace Bros Pty Ltd v The Commonwealth (7946)

10.12

72 CLR 269 at 290). Second, an 'acquisition' of property within the meaning of s 51 (xxxi) means that property must have been acquired by a person; without this the guarantee is not enlivened - a 'mere extinguishment or deprivation of rights in relation to property does not involve acquisition' (see Commonwealth v Tasmania (1983) 158 CLR 1 at 283). Third, such acquisition must be 'compulsory' - it does not extend to acquisitions by agreement or voluntary acquisitions (see Peveril/ at 235). Fourth, it must be for a Commonwealth purpose. Fifth, acquisition need not be by the Commonwealth itself, that is, an 'acquisition' of property may be by persons other than the Commonwealth; it need only be effected by a Commonwealth law (see Peverill at 249). Sixth, an 'acquisition' does not require that the property acquired be precisely the same as the property taken, it ?eing s.ufficient if only 'an identifiable and measurable advantage' is acquired (see Newcrest Mining (WA) Ltd v Commonwealth (1997) 245

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

190 CLR 513 at 634). Lastly, however, the benefit or advantage 'acquired ' must still be proprietary in nature (see JT International SA v Common weaTtn (2012 ) 291 ALR 669 at 711 ).

10.13

Whether an 'acquisition ' has been effected within s 51 (xxx i) will often turn on the specific nature of the property taken . In Georgiadis (at 305-306), Mason CJ, Brennan, Deane and Gaudron JJ in the majority accepted that a provision extinguishing a common law right to bring an action for damages, a right arising under the general law, involved an 'acquisition' within s 51 (xxxi ); provided this extinguishment ' results in a direct benefit or finan cial gain'. This view on the susceptibility of a common law cau se of action to 'acquisition ' within s 51 (xxx i) was essentially upheld by the High Court in Common w ealth v Mewe tt (1997) 191 CLR 4 71 and subsequently in Smith v ANL Ltd (2000) 204 CLR 493. Where, however, the property in question owes its existence entirely to statute it has been more difficu It to es ta bl ish an 'acquisition '. In Peverill, the High Court unanimously held that a provision effecting a reduction in an entitlement to payment of Medicare benefit, a pure statutory right, did not attract the protection of the guarantee. Mason CJ, Deane and Gaudron JJ (at 23 7) concluded that the reduction did not involve an 'acquisition of property', relying on the fact that the entitlement to payment of Medicare benefit was not a preexisting entitlement based on the general law but solely a statutory entitlement ' inherently susceptible of variation'. Simil arly, in Common w ealth v WMC Resources Ltd (1998) 194 CLR 1 a majority of the High Court held that statutory provisions adversely modify in g permits to conduct petroleum exploration in the continental shelf between Australia and East Timar, rights which arose sol ely under statute, did not attract the application of s 51 (xxxi ). Brennan CJ , Gaudron and Gummow JJ each held that the modification to the permits did not result in an 'acquisition of property' by the Commonwealth. Gaudron J noted that the Commonwealth had no proprietary interest in the continental shelf, which could have been enhanced by the reduction in exploration rights . Accordin gly, the Commonwealth did not obtain anything as a result of the reduction

CHAPTER 10 • RIGHTS AND RESTRICTIONS

of th e exploration rights it had granted. Her Honour reasoned as foll ow s (at 38): th e .Con sequential.P~ovisions Act simply modified a statutory ri ght w hi ch ~ ad no basis in the general law and which was inherentl y susceptible to that course and, thus, did not effect an acqui sition of property.

So too, in /CM Agriculture Pty Ltd v Commonwea lth (2 009) 240 CLR 140 a majority of the High Court held that the replacement of ~ore licences issued under NSW legislation by aquifer access licences, issued under subsequent NSW legislation wi th smaller extraction entitlements, did not effect an 'acquisition' of property. In their joint judgment, Hayne, Kiefel and Bell JJ held (at 202) that the licences were 'a creature of statute and inherently fragile' and that with the loss of irrigation entitlements NSW 'gained no larger or different right itself to extract or permit others to extract water'. In Telstra, the High Court unanimously held that provisions of the Trade Practices Act 1974 (Cth) requiring Tel stra Corporation Ltd (Telstra) to grant access to parts of its tel ephone infrastructure (some of its local loops) to other service providers did not infringes 51 (xxxi). The Court noted (at 233) that Telstra 'never owned or operated' any of the assets comprisi ng the telephone network 'except under and in accordance with' legislation directed at promoting competition in the telecommunications industry. It then held (at 234) Te lstra's rights to use its telephone network infrastructure 'were always subject to a statutory access regi me w hich permitted other carriers' to use this infrastructure. But th is does not mean that rights created solely by statute are incapable of 'acquisition' and, accordingly, fall outsides 51(xxxi). For example, in its 1997 decision in Newcrest a majority of the High Court held that legislation and proclamations which com bined to prohibit the exploitation of certain, purely statutory, mining ri ghts in the Kakadu National Park effected an 'acquisition of property' and attracted the appl ication of the guarantee. The critical difference in this case was that th e Commonwealth had a propriety interest in the land over which it granted th e statutory mining rights. So the 'acqu is ition' it enjoyed consi sted of the land freed from the burden of those rights . More

10.14

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recently in Wurridjal v Commonwealth (2009) 237 CLR 309, a majority Heydon

CJ,

The fundamental concept of 'acquisition' arose for consideration in

JT 10.15

JJ,

International SA v Commonwealth (2012) 250 CLR 1, in challenges to

J not aeciding and Crennan J dissenting) held that the creation

laws designed to reduce sales of tobacco products and improve public health.

of the High Court (French

Gummow, Kirby, Hayne and Kiefel

of five-year leases to the Commonwealth under legislation forming part of an emergency response to the abuse of Aboriginal children, on land granted to Aboriginal people under Northern Territory Aboriginal land rights legislation, effected an 'acquisition' under s 51 (xxxi). This was so despite the fact that the rights to Aboriginal land owed their existence to statute. French

CJ

reasoned (at 364) as follows:

It may be accepted that the creation of the s 31 leases was intended to facilitate Commonwealth control of townships so that additional accommodation and other services could be provided to the relevant Aboriginal communities. In a broad sense the s 31 lease granted over the Maningrida land might be described as a legal device adopted for regulatory purposes. However, its legal effect was to diminish the ownership rights conferred by the grant of the fee simple estate so far as they related to the Maningrida township. By operation of s 35 of the NER Act the statutory lease conferred on the Commonwealth the essential rights of a lessee abstracted from the fee simple estate. It also conferred the right to vary the area covered by the lease and to terminate the lease early. An acquisition of property is no less an acquisition of property because it also has a regulatory or other public purpose. The grant of the lease was an acquisition of property from the Land Trust. In their joint judgment, Gum mow and Hayne JJ said (at 382-3): In Attorney-General (NT) v Chaffey Gleeson CJ, Gummow, Hayne and Crennan JJ referred to what was decided in Newcrest as an authority rendering too broad any proposition that the contingency of subsequent legislative modification removes all statutory rights and interests from the scope of s 51(xxxi). Their Honours contrasted the statutory licensing system for off-shore petroleum exploration, the validity of which was upheld in The Commonwealth v WMC Resources Ltd, and the workers' compensation scheme established by the Territory legislation considered in Chaffey itself. Those cases concerned express legislative stipulations in existence at the time of the creation of the relevant statutory "right", whereby its continued and fixed content depended upon the will from time to time of the legislature. The registered fee simple owned by the Land Trust is not of that character.

248

JT International SA v Commonwealth (2012) 250 CLR 1 FACTS: The Tobacco Plain Packaging Act 2011 (Cth) (the TPP Act)

imposed extensive restrictions on the physical characteristics of retail packaging for tobacco products, including on their colour, shape and finish. It also prohibited the use of intellectual property (trademarks, designs, patents and copyright) that tobacco companies would otherwise use to promote the sale of their products. Proceedings were commenced in the High Court by tobacco companies seeking declarations that the TPP Act was invalid. ISSUE: Was the TPP Act invalid because it effected an acquisition of property other than on just terms contrary to s 51 (xxxi) of the CC? DECISION: A majority of the Court, French CJ, Gummow, Hayne, Grennan, Kiefel and Bell JJ, held that the TPP Act did not effect an acquisition of property and so was not invalid on the ground that it was contrary to s 51 (xxxi) (Heydon J dissented, holding the TPP to be invalid because it infringed s 51 (xxxi)). In their joint judgment, Hayne and Bell JJ stressed that the advantage or benefit resulting from the tobacco companies complying with the TPP Act was not propriety in nature - that the Commonwealth acquired no property as a result of this compliance. Their Honour's reasoning (at 71) as follows:

By prescribing what can and cannot appear on retail pa9kaging the TPP Act affects that packaging and those who produce and sell the tobacco products. But to characterise this effect as "control" diverts attention from the fundamental question: does the TPP Act give the Commonwealth a legal interest in the packaging or create a legal relation between the Commonwealth and the packaging that the law describes as "property"? Compliance with the TPP Act creates no proprietary interest. Accordingly, their Honours concluded (at 73) the TPP Act was simply 'not a law with respect to the acquisition of property'.

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Limitations on the guarantee

10.16

Generally speaking, Commonwealth laws compulsorily acqumng property will a I within s 51 (xxxi) and so will be subjected to its requirement of just terms. However, certain Commonwealth laws compulsorily acquiring property will stand outsides 51(xxxi) and will not be subject to this requirement. Laws made under grants of power which are inherently incompatible with the provision of just terms fall within this category. A law related to the imposition of taxation enacted pursuant to the taxation power in s 51 (ii) or one providing for the sequestration of the property of a bankrupt enacted under the bankruptcy and insolvency power in s 51 (xvii) are examples (see Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 168-71 ). Similarly, in Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160-161, the High Court held that laws enacted pursuant to the intellectual property power ins 51 (xviii) stood outside the operation of s 5 l(xxxi). Another category of laws lying outside the scope of s 51 (xxxi) are those which by their very nature deny the provision of just terms. Perhaps the clearest example of such a law is provided in Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270, a case involving a law providing for the forfeiture of property for breach of a statutory provision.

Re Director Of Public Prosecutions; Ex Parte Lawler (1994) 179 CLR 270 FACTS: Section 100 of the Fisheries Management Act 1991 (Cth) made

it an offence to use a foreign fishing boat for commercial fishing within the Australian Fishing Zone unless a licence authorised this. Paragraph 106(1 )(a) of the same legislation authorised the forfeiture of a boat used in the commission of an offence under s 100. Kevin Joseph Lawler and Peter Gerald Penrose owned a New Zealand registered fishing vessel, the Jay Angela. They entered into an agreement for the lease and sale of this vessel with Bario Enterprises Ltd. Kevin Canty and Trevor Wayne Canty guaranteed this agreement. Kevin Canty was subsequently charged under s 100 for using a foreign fishing boat for commercial fishing without

250

CHAPTER 10 • RIGHTS AND RESTRICTIONS

a licence within the Australian Fishing Zone. He pleaded guilty before a Magistrate. The Magistrate ordered the forfeiture of the Jay Angela under para 106(1)(a) despite the fact that Lawler and Penrose had, shortly before the hearing of the charge against Canty, purportedly terminated the agreement for the lease and sale of the boat and were not aware of its unlawful use nor interested in any catch from such unlawful use. Lawler and Penrose applied to the High Court, challenging the Magistrate's order on the ground that para 106(1 )(a) contravened s 51 (xxxi) . ISSUE: Did para 106(1 )(a) infringe s 51 (xxxi)? DECISION: The High Court unanimously held that para 106(1 )(a) of the

Fisheries Management Act 1991 (Cth) did not contravene s 51 (xxxi). In their joint judgment, Deane and Gaudron JJ reasoned as follows (at 285): s 51 (xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connection with which 'just terms' Is an inconsistent or Incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to 'acquisition of property' , as that expression is used in s 51 (xxxi). It follows that a law which effects or authorises forfeiture of property in consequence of its use in the commission of an offence against the laws of the Commonwealth stands outsides 51(xxxi).

A further category of law falling outside s 51 (xxx i) is one that is primarily concerned with the general regulation of a particular subject, relationship or area of activity. In such a case, a law incidentally effecting a compulsory acquisition of property as part of a general scheme of regulation will not be characterised as a law for the acquisition of property within s 5 l(xxxi), but one concerned with the adjustment of competing interests and rights of persons in a particular relationship or area of activity (see Australian Tape Manufacturers Association v Commonwealth (1993) 176 CLR 480 at 510). In Nintendo, the High Court relied on this justification as an additiona l, alternative ground for finding that the Circuit Layouts Act 1989 (Cth), which conferred exclusive intellectual property rights on Nintendo, did not fall within

10.17

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

s 51 (xxxi). In their joint judgment, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ concluded (at 161) that the Act was simply a law concerne~ith 'the adjustment and regulation of the competing claims, rights and liabilities of the designers or first makers of original layouts and those who take advantage of, or benefit from, their work'. Similarly, in Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 300, Gummow J in the majority characterised provisions imposing statutory liens on aircraft (designed to recoup the cost of charges imposed by the Civil Aviation Authority on aircraft operators for air traffic and other services) as a part of a regulatory scheme for civil aviation safety. Their role, his Honour reasoned, was simply to 'adjust the respective interests of those who own, lease or operate the aircraft and of the provider of the services necessary for commercial operations of the aircraft in Australia'. For this reason, his Honour concluded that the statutory lien provisions were outside the reach of s 51 (xxxi)'s condition of just terms. Just terms

10.18

It is difficult to state with precision what 'just terms' require. The standard is a broad and flexible one. Much will depend on the particular circumstances attending the acquisition, the specific nature of the property taken and the circumstances of the person or State whose property has been taken. Clearly, however, where there is no provision for compensation the 'just terms' requirement will not have been comp I ied with. Compensation may take many forms any of which could satisfy the requirement of 'just terms'. If no amount of compensation is specified but a procedure for determining compensation is established, examination of the nature and extent of the entitlement to compensation under the procedure and the procedure itself will be relevant to the question of whether the acquisition meets the 'just terms' condition (see generally Commonwealth v Tasmania (1983) 158 CLR 1 at 289-90).

10.19

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CHAPTER 10 • RIGHTS AND RESTRICTIONS

of property compulsorily acquired by government presumably in the interests of the community at large are not required to sacrifice their property for less than its worth. Unless it be shown that what is gained is full compensation for what is lost, the terms cannot be found to be just.

Application of guarantee to the Territories power

It had been unclear whether s 51 (xxxi) applied to laws made under the Territories power ins 122 of the CC. In Teori Tau v Commonwealth (1969) 119 CLR 564, the High Court had held that it did not. However, views on this question were evenly split in Newcrest. Gaudron, Gummow and Kirby JJ (three of the four majority Justices) were of the view that

10.20

s 51(xxxi) shou Id apply to laws made pursuant to s 122 and that Teori Tau should no longer be followed. Brennan CJ, Dawson and McHugh JJ in the minority were of the view thats 51 (xxxi) did not operate in respect of laws passed under s 122, applying Teori Tau. But the recent decision of the High Court in Wurridjal v Commonwealth (2009) 237 CLR 309 has changed this. In that case, French CJ, Gum mow, Kirby and Hayne JJ (Heydon and Crennan JJ not deciding) held that the guarantee ins 51 (xxxi) applies to laws made under s 122, expressly overruling the decision in Teori Tau.

Trial by jury Section 80 provides:

10.21

The trial on indictment of any offence of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Section 80 only applies to limit Commonwealth legislative action. Mainly the following two, separate, issues arise for consideration under this guarantee:

In Georgiadis, Brennan J usefully elaborated on some of the content of the requirement (at 310-311 ):

•

In determining the issue of just terms, the Court does not attempt a balancing of the interests of the community at large. The purpose of the guarantee of just terms is to ensure that the owners

whether itappl ies at al I (specifically, whether the Commonwealth offence in question is one that involves a 'trial on indictment'); and

•

its content, once it is established that it applies (specifically, what particular rights or elements comprise a trial 'by jury').

10.22

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CHAPTER 10 • RIGHTS AND R~TRICTIONS

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

(2) Where jury members have been reduced before the verdict

Indictable offences

10.23

is given, the trial can still be of a sufficient number to be representative of the community and capable of performing the group deliberation inherent in jury trial;

Whether a particular Commonwealth offence is 'on indictment' for the purpose of s 8 does not turn on its seriousness, but on .the ~in~ of procedure the Commonwealth Parliament selects for having 1t tried.

(3) The jury must be randomly and impartiall y selected, not chosen by the prosecution or the state; and

If a Commonwealth law creating an offence provides that it shall be tried on indictment, then it is 'on indictment' for the purposes of s 80.

(4) The jury must be comprised of lay decision-makers who are

If, however, a Commonwealth law creating an offence provides that it shall be tried summarily, then it is simply not on indictment -

impartial as to the issues in contest.

no

The norm of twelve: This Court has not held that twelve jurors (neither more nor less) is an inherent requirement of trial by jury that conforms to s 80. On the contrary, it has decided that, although the jury number may fall below twelve, at least to 10, the trial can still answer to the constitutional description.

matter how serious. This narrow interpretation of s 80 was articulated by the High Court in R v Archdall and Roskruge; Ex parte Carrigan and

Brown (1928), where Higgins J said (at 139-40): Sec. 80 merely says: 'The trial on indictment of. an~ offen~e against any law of the Commonwealth shall be iury - that ~s to say, if there be an indictment, there must be a iury; but there is nothing to compel procedure by indictment.

?Y

Despite powerful dissents in a number of subsequent cases, this view seems to have persisted (see Cheng v The Queen (2000) 203 CLR 248).

10.24

Unfortunately therefore, the result is that s 80 does not guarantee a right to trial by jury for offences committed under Commonw:alth laws. Rather, it provides the quite modest protection of guaranteeing a right to trial by jury only where the Commonwealth Parliament creates an offence which is to be tried on indictment.

reduce the number of jurors to twelve is not at odds with the s 80 mandate that a trial be 'by jury'. That is, it is not necessary that all 15 jurors participate in the determination of the verdict for it to be one answering the description of a trial 'by jury' with in s 80. The protection of trial 'by jury' afforded by s 80 does not apply to the

Section 116 reads as follows:

of a trial 'by jury' . The elements such a trial must have for the purposes

J in Ng v The

Queen (2003) 217 CLR 521 at 533-4: Essential characteristics: Certain features of jury trial have been

held to be essential. Where s 80 applies, such features must be observed if the trial is to conform to the Constitution: (1) The jury must deliver a unanimous verdict. The verdict of. gu~lty must be reached by the agreement of all persons con~t1tuting the jury at the time the verdict is pronounced. (The requ1r~ment

of unanimity may also extend to a jury verdict of not guilty);

10.28

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

it is to be tried on indictment, s 80 applies to guarantee the protection

254

10.27

sentencing process which is the responsibility of a judge (see Cheung v The Queen (2001) 209 CLR 1 at 24-5).

However if the Commonwealth law creating an offence prescribes that

of s 80 are conveniently set out in the judgment of Kirby

10.26

Freedom of religion

Requirements of a trial by jury

10.25

In Ng the H igh Court held that where there is provision for the empanelling of an enlarged jury of 15, a subseq uent ballotting out to

Four distinct guarantees concerning religion are found in s 116.

10.29

Specifically, the section is confined to the Commonwealth and it prohibits the Commonwealth from passing laws for: •

establishing any religion;

•

imposing any religious observance; or

•

prohibiting the free exercise of any religio n.

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(}.$1 o'Y

ef

,t additionally stipulates that no religious test shall be required as a ualification for any office or public trust under the Commonwealth. 1

Section 116 ~s rarely been invoked and judicial consideration of its scope and operation has mainly been confined to the guarantees forbidding laws for 'establishing' and those prohibiting the 'free exercise' of any religion. Like a number of the other express guarantees, it has been interpreted quite narrowly.

Prohibition on establishing religion

In Attorney-General (Vic); Ex rel Black v Commonwealth (198 1) 146 CLR 559, the High Court considered whether Commonwealth funding of church schools offended against the prohibition on the 'establishing of any religion' in s 11 6.

10.32

Religion

10.30

Perhaps ironically, given the limited operation given to the guarantee, a wide view has been taken of what constitutes a 'religion' for the purposes of s 116. In Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 76 CLR 116, Latham CJ said (at 123): It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. s.o vi.ewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed religio~ may be good or bad. There are others who pay gre.ater attent1.o~ to religion as involving some prescribed form of ritual or relig10.us observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irresp~ctive of varying opinions in the community as to the truth of part1~ular religious doctrines, as to the goodness o~ conduct pres~ribed by a particular religion, or as to the propriety of any particular religious observance.

10.31

A liberal view of what constitutes a 'religion' was also taken by the High Court in Church of The New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 at 136 and at 173-4, a case which concerned exemption from pay-roll tax for 'religious' institutions. The Court held that 'Scientology', as exemplified in the beliefs, practices and observances of the Church of the New Faith, was a 'religion'. It is likely that this liberal view, which is consistent with and reinforces the one articulated in Adelaide Company of Jehovah's Witnesses Incorporated, would apply for the purposes of s 116.

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Attorney-General (Viet); Ex rel Black v Commonwealth (1981) 146 CLR 559 FACTS: Under States Grants Legislation the Commonwealth provided financial assistance to non-government schools in each of the States, the ACT and the NT. Sums were granted to the States under s 96 of the CC on condition that they be applied in paying for capital projects and recurrent expenses of non-government schools. Plaintiffs challenged the validity of the legislation, contending that as it gave financial aid to religious schools it was a law for establishing religion in breach of s 116. ISSUE: Did the legislation infringe s 116? DECISION: The High Court held, Barwick CJ, Gibbs, Stephen, Mason,

Aickin and Wilson JJ, Murphy dissenting, that the legislation did not contravenes 116. Barwick CJ reasoned as follows (at 583): A law which in operation may Indirectly enable a church to further the practice of religion Is a long way away from a law to establish religion as that language properly understood would require it to be if the law were to be in breach of s 116. It would not be enough that the law allowed such activity on the part of the owners of the schools. The law must be a law for it, le intended and designed to set up the religion as an institution of the Commonwealth. Mason J reasoned similarly (at 616): It is altogether too much to say that a law which gives financial aid to churches generally, to be expended on education, is a law for establishing religion. The mere provision of financial aid to churches generally, more particularly when that aid is genuinely linked to expenditure on education, falls short of 'establishing' a 'religion' as we understand the expression. By it we mean the authoritative establishment or recognition by the State of a religion or a church as a national institution.

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10.33

This case seems to show that the prohibition on the 'establishing of any religion' ins 116 is quite narrow and that, ordinarily, it will only apply to invalidate COmmonwealth laws with the overt purpose or clearly discernible effect of instituting or recognising a particular reli gion as a national institution .

made such a declaration in relation to the Adelaide Company of Jehovah 's

CJ

reasoned as follows (at 369):

To require a man to do a thing which has nothing to do with religion is not prohibiting him from a free exercis~ of r.eli g i?~· It may be th at a law requiring a man to do an act which ~1 s reli gion forbids w ould be objectionable on moral grounds, but 1t does not come within the prohibition of s 116, and the justification for a refusal to obey a law of that kind must be found elsewhere.

10.35

This fairly narrow approach to the 'free exercise' guarantee in s 116 continued in Adelaide Company of Jehovah 's Witnesses Incorporated , which involved a challenge to the validity of the National Security (Subversive Associations) Regulations (Cth) made under the National Security Act 1939- 1940 (Cth).

Adelaide Company Of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 FACTS: Under National Security (Subversive Associations) Regulations,

the Governor-General could declare the existence of any body, corporate

258

automatically dissolved and its property could be confiscated. Amongst other things, Jehovah's Witnesses preached neutrality and non-interference

Theforbidding of prohibitions on the 'free exercise of any religion' ins 116 has received more judicial attention . In Krygger v Williams (1912) 15 CLR 366, Griffith CJ and Barton J rejected a submission advanced on behalf of Edgar Roy Krygger thats 135 of the Defence Act 1903- 1911 (Cth), which made it an offence to fail without lawful excuse to render personal service, was invalid because it infringed s 116. Krygger, who declined to render military service on the basis of his religious convictions, had been charged pursuant to s 135. He contended that the provision offended s 116 because it prohibited the 'free exercise' of his religion. In rejecting this contention, the Court took a fairly narrow view of the 'free exercise' guarantee ins 116. Griffith

or unincorporate, which he considered prejudicial to the defence of the Commonwealth or the efficient prosecution of the war to be unlawful. If such declaration were made, the Regulations provided that the body was

in wars between nations. On 17 January 1941, the Governor-General

Free exercise of religion

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Witnesses Inc and the Jehovah's Witnesses organisation or association . The Commonwealth entered and took possession of Kingdom Hall in Adelaide (which was used as a meeting place for Jehovah's Witnesses) on the same day. The Adelaide Company of Jehovah's Witnesses Incorporated challenged the validity of the Regulations, relying on s 116. ISSUE: Did the Regulations infringes 116? DECISION: The High Court unanimously held that the Regulations did not infringe s 116. Rich J reasoned as follows (at 149-50):

Any regulations, therefore, which empower the Government to prevent persons or bodies from disseminating subversive principles or doctrines or those prejudicial to the defence of the Commonwealth or the efficient prosecution of the war do not infringes 116. The peace, good government and order of the Commonwealth may be protected at the same time as the freedom of religion is safeguarded. Freedom of religion is not absolute. It is subject to powers and restrictions of government essential to the preseNation of the comm unity. Freedom of religion may not be Invoked to cloak and dissemble subversive opinions or practices and operations to the common weal.

Some indication of a potentially more robust approach to the 'free exercise' guarantee in s 116 seemed to emerge from the decision of the High Court in Kruger v Commonwealth (1997) 190 CLR 1. The plaintiffs in the case challenged the Aboriginals Ordinance 1918 (NT) (made pursuant to the Northern Territory Acceptance Act 191O (Cth) and the Northern Territory Administration Act 191 O (Cth) ); contending that to the extent that it authorised the removal of Abori ginal children from their families, communities and traditional cu lture it breached s 116 as a law 'for prohibiting the free exercise of any religion' . Gaudron J (at 132) foun d that the question involved 'factual issues which cannot

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be presently determined' . However, her Honour made the following observation (at 133): Moreover, s 116 is not, in terms, directed to laws the express and single purpose of which offends one or other of its proscriptions. Rather, its terms are sufficiently wide to encompass any law which has a proscribed purpose. And the principles of construction to which reference has been made require that, save, perhaps, in its application to laws 'for establishing [a) religion', s 116 be so interpreted lest it be robbed of its efficacy.

Adoption of this approach would likely broaden the overall scope of the protection afforded by s 116.

Immunity from out-of-state residence discrimination 10.37

conditional admission. Menzies follows:

J in

the majority reasoned (at 492) as

The critical questions are then whether the requirements of continuous residence in South Australia are different when applied to him as a resident of Victoria than they would be if applied to him as a resident of South Australia and whether such difference as there is amounts to discrimination. As has already been stated, the requirement is, in each case, for continuous residence in South Australia for the periods mentioned: resident or non-resident he must stay in South Australia.

This approach was overturned in Street v Queensland Bar Assoc and

10.39

Ors (1989) 168 CLR 461, a case in which the High Court considered whether certain Queensland rules limiting the ability of interstate barristers to practise in Queensland offended s 117.

Section 11 7 states: A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

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As its terms suggest, it was intended to prevent one State from discriminating against individual residents of another State because of their residence in the other State. However, it was not until 1989 that it proved to be a robust guarantee. As with a number of the other express guarantees, restrictive judicial interpretation of the provision had largely rendered it an ineffective protector of the freedom with which it was ostensibly concerned. In Henry v Boehm (1973) 128 CLR 482, a majority of the High Court rejected a challenge by a Victorian solicitor to certain South Australian residence rules for admission to legal practice in South Australia on the basis that they infringed s 117. Rules 27(1) and 28(2) of the Rules of Court Regulating the Admission of Practitioners, 1955-1972 (SA) required that a practitioner seeking admission 'reside for at least three calendar months' in South Australia continuously before applying for admission and that subsequently conditional admission for one year would be granted which could only be made absolute by the interstate practitioner demonstrating that

Street v Queensland Bar Assoc & Ors (1989) 168 CLR 461

FACTS: Rules for the admission of interstate barristers to practice in Queensland required an applicant to be a Queensland resident and to cease practice in another State. Mr Street, a resident of New South Wales and a barrister of the Supreme Court of New South Wales and other States, applied for admission to practise as a barrister in Queensland. On 22 May 1987, the Full Court of the Supreme Court refused his application on the ground that he failed to meet the two requirements for interstate applicants. On 10 June 1987, Mr Street lodged an application for special leave to appeal to the High Court. The Queensland admission rules were then amended on 2 July 1987 to instead require interstate barristers to have an intention of practising principally in Queensland. Under these amended rules successful applicants obtained conditional admission for one year, which could then be made absolute provided they had practised principally in Queensland for that one year period. Mr Street challenged both the earlier and amended Queensland rules in the High Court, arguing that each contravened the prohibition ins 117 and so were inapplicable to him. ISSUE: Did the previous and/or amended rules infringe s 117 so rendering them inapplicable to Mr Street?

they 'continuously resided' in South Australia for the entire period of

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DECISION: Overruling its decision in Henry v Boehm, the High Court unanimou~ held that both the earlier and amended rules contravened s 117 and therefore did not apply to Mr Street. Mason CJ formulated the test to be applied as follows (at 488):

It seems to me that for s 117 to apply it must appear that, were the person a resident of the legisiating 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 rendered illusory.

Applying the test to Mr Street, Mason CJ reasoned (at 490) that the rules would subject him to the disability or discrimination of giving up his practice and residence in New South Wales and that if he were a resident of Queensland this different circumstance would effectively remove or substantially mitigate the disability or discrimination caused.

10.40

This robust approach was confirmed in Cory/ v Greyhound Aust Pty

Ltd (1994) 179 CLR 463. In that case, a resident of New South Wales,

CHAPTER 10 • RIGHTS AND RESTRICl 10NS

Dawson J where his Honour (at 458) referred to a law prescribing a residential qualification for the right to vote in State elections. More generally, Mason

CJ

said the following (at 492):

The preservation of the autonomy of the States demands that the exclusion of out-of-State residents from the enjoyment of rights naturally and exclusively associated with residence in a State must be recognised as standing outside the operation of s 117. Take, for example, the exclusion of out-of-State residents from the right to enjoy welfare benefits provided by a State under a scheme to assist the indigent, the aged or the ill. Generally speaking, I .do~b~ th~t suc.h .exclusion would amount to a disability or d1scnminat1on within the section. The exclusion would not seem to detract from the concept of Australian nationhood or national unity which it is the object of the section to ensure, because it ~ould offend accepted notions of State autonomy and financial independence and a due sense of a State's responsibility to the people of the State to say that the Constitution required the State to extend the range of persons entitled under the scheme to outof-State residents. The same comment might be made about a requirement that a person is not eligible to be the licensee of an hotel unless he resides on the premises.

Margaret Rose Gory!, was injured in a tourist bus travelling from Brisbane to Wyong when it left the road near Grafton in New South

However, while there isagreementthats 117 does not have an unconfined

Wales. She sued the owner of the bus in Queensland, which relied

application there is an absence of unanimity on the nature and extent of

on s 20 of the Motor Vehicles Insurance Act 1936 (Qld) in its defence.

its exceptions. They remain to be worked out on a case by case basis.

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This provision limited damages to those recoverable under the law of the plaintiff's State of residence at the time of the accident. As she was a resident of New South Wales at the time of the accident, it therefore

In Street, Mason CJ usefully outlined the different nature of the

restricted her to the law of New South Wales which would have

protection afforded by the guarantee in s 117 (at 486):

entitled her to lesser damages than those available under Queensland law. The High Court unanimously found thats 20 subjected Mrs Gory! to different treatment in the State of Queensland by reason of her New South Wales residence and that, accordingly, s 117 applied to render it inapplicable to her compensation claim.

Limitations on the guarantee

10.41

In Street, all the members of the High Court acknowledged that not every case of different treatment in a State of a resident of another State will attract the application of s 117. That is, some kinds of differential treatment may stand outside its ambit. An example was given by

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Nature of the guarantee

10.43

Its form and language indicate that s 117 is directed towards individ~als and their protection from disability or discrimination of the kind contemplated by the section, and that it is not, except to that extent, a restriction on State or Commonwealth legislative P?W~r. .so ~ person not subjected to any relevant disability or d1scnminat1on by a particular law could not have that law held invalid by establishing that it subjects a third person to such a disability or discrimination; that circumstance would not lead to a striking down of the offending law. Conversely, a person who would, but for s 117, be so affected by the law is immune fr.om !~ opera:io~ i~ so. far as it subjects him to impermissible d1sabil1ty or d1scnminat1on, though the law itself remains valid in its application to persons who would not be so affected.

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While it typically applies to con strain the applicability of State laws, it can also apply to constrain the applicability of Commonwealth laws (see the comm ts of Gaudron J in Street at 568).

s 299(1 ){d)(ii) was invalid on the ground that it was outside the legislative powers of the Commonwealth Parliament. The determination of this issue in the prosecution proceedings was removed into the High Court. ISSUE: Was s 299(1 )(d)(ii) invalid because it either was not supported by

IM PLIED GUARANTEES OF RIGHTS AND FREEDOMS 10.44

Perhaps partly because of the scanty nature of the express protections in the CC, i'n the early 1990s the High Court started to discern protections implied w ithin it. Ironicall y, the source of these protections was found in the provisions of the CC w hich established and provided for the institutions of representative and responsible government - two of the main institutions whi ch the fram ers considered obviated the need for the entrenchment of express an d comprehens ive individual rights protection in the CC.

the industrial relations power ins 51 {xxxv) or because it infringed an implicit freedom to discuss political matters which is implied in the CC? DECISION: The High Court unanimously held s 299(1)(d)(ii) to be invalid , but did so on different grounds. Mason CJ , Dawson and McHugh JJ, found the provision to be invalid on the ground that it was not supported by the implied incidental power attending s 51 (xxxv) of the CC. For their part, Brennan, Deane, Toohey and Gaudron JJ , found that the provision was invalid on the ground that it infringed a freedom to discuss governments, governmental institutions and agencies implied within the CC. All of the Justices interpreted s 299(1 )(d)(ii) to apply even if criticism of the Commission or its members was true or fair. In their joint reasons, Deane and Toohey JJ

Implied freed om of political communication 10.45

In two decisions in 1992, the High Court first revealed a freedom of political communication implied in the CC wh ich has subsequently been developed and refined in a series of cases. The first, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, concerned a challenge to the validity of a provi sion of the Industrial Relations Act 1988 (Cth) designed to safeguard the integrity of the Australian Industrial Relations Commission and its members.

found that the CC implements the doctrine of representative government and gives, under ss 7, 24 and 128, ultimate power to the people of the Commonwealth to elect members of Parliament and amend the CC. Their Honours then reasoned that this doctrine of representative government necessarily incorporates an Implied freedom to communicate about Commonwealth government matters, which exists as between the people of the Commonwealth and their representatives and between the people of the Commonwealth themselves. Their Honours acknowledged that the freedom was not absolute but concluded that s 299(1 )(d)(ii) infringed the implied freedom because It went too far in protecting the integrity of the Commission and its members. It extended to the prohibiting of legitimate or well-founded criticism. Their Honours reasoned as follows (at 78-9):

Nationwide News Pty Ltd v Wiiis (1992) 177 CLR 1 FACTS: Subparagraph 299(1)(d)(li) of the Industrial Relations Act 1988 (Cth) made it an offence to 'by writing or speech use words calculated to bring a member of the Australian Industrial Relations Commission or the Australian Industrial Relations Commission Into disrepute' . An officer of the Australian Federal Police prosecuted the publisher of The Australian, Nationwide News Pty Ltd, in the Federal Court for publishing an article strongly attacking the integrity and independence of the Industrial Relations Commission and Its members. As one of its defences, Nationwide News Pty Ltd claimed that

264

A prohibition of the communication of well-founded and relevant criticism of a government instrumentality or tribunal, such as the Commission or a Commonwealth court, cannot be justified as being, on balance, in the public interest merely because it is calculated to bring the instrumentality or tribunal or its members into disrepute. To the contrary, if criticism of a governmental instrumentality or tribunal or its members is well founded and relevant, its publication is an incident of the ordinary working of representative government and the fact that it will, if published, bring the relevant instrumentality into deserved disrepute is, from the standpoint of the overall public interest, a factor supporting publication rather than suppression.

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10.46

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The second decision, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, concerned a challenge to the validity of

that the CC provided for a system of representative government, relying

provisions of tne Broadcasting Act 1942 (Cth) which sought to ban paid

House of Representatives shall be 'directly chosen by the people') and

political advertising during election periods and voting on Common-

128 {which provides that amendment of the CC by referendum requires

wealth referenda.

primarily on ss 7, 24 (which provide that senators and members of the

approval by a majority of electors in a majority of States). And an essential and indispensable element in the proper functioning of this system was, in his Honour's view, a freedom of communication in relation to public affairs and political discussion. This system, one of government by the people

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

through their elected representatives, entails a freedom of communication

FACTS: With narrow exceptions for news and current affairs items, talk-

also between all persons, groups and other bodies in the community.

between elected representatives (and candidates) and the electorate and

back radio programs and policy launches, Pt lllD of the Broadcasting Act

Mason CJ reasoned that the test to be applied in determining whether

1942 (Cth) prohibited political advertising on television and radio during,

the implied freedom was infringed required one to ask whether the

Commonwealth, State, Territory and local government election periods and

burden imposed on free communication was disproportionate to the

during voting on Commonwealth referenda. If instead provided for a regime

attainment of a competing public interest. His Honour observed that

of free political advertising to be granted by the Australian Broadcasting

the Court should closely scrutinise laws affecting free communication

Tribunal. Ninety per cent of the total free time available was to be granted

in the conduct of elections and, applying this test to Pt 1110, concluded

to parties represented in the preceding legislature. For others, access

that it imposed a disproportionate burden because of the severity of its

to free advertising depended on the favourable exercise of discretion by

restrictions, its discriminatory effect on actual and potential participants in

the Tribunal. The purpose of the law was to safeguard the integrity of the

the electoral process and the failure of the replacement regime providing

political process by reducing, or removing entirely, the need for political

for the granting of free time to introduce a 'level playing field'. His Honour

parties and candidates to raise funds to engage in political campaigning

emphasised the discriminatory effect of the regime, singling out its

on radio and television. Commercial television broadcasters, including

favouring of candidates from established political parties as against new

Australian Capital Television Pty Ltd, sought declarations in the High Court that Pt lllD was invalid on the ground that it infringed a freedom of political

and independent candidates (whose access to free time is limited to a maximum of ten per cent of the total time available) and its exclusion of

communication implied in the CC. New South Wales also challenged

persons, bodies and groups that are not candidates altogether. Mason CJ

Pt lllD, seeking a declaration that it did not apply to Parliamentary by-

acknowledged the competing public interest intended to be served by Pt

elections. It was otherwise conceded that Pt lllD was authorised by the

1110, that of safeguarding the integrity of the political process, but found that

Commonwealth's broadcasting power in s 51 (v) of the CC and its various

the restrictions on political communication it imposed in its pursuit of this

powers over federal elections and the electoral process.

interest could not be justified. His Honour was fortified in .his conclusion

ISSUE: Was Pt lllD invalid because it contravened an implied guarantee of

by the fact that the operation of the regime for the granting of free time

freedom of communication in relation to public affairs and political discussion?

depended on the making of regulations at the discretion of the executive.

DECISION: A majority of the High Court, Mason CJ, Deane, Toohey and

Gaudron JJ, held that Pt lllD was invalid in its entirety because it infringed a guaranteed freedom of political communication. McHugh J held Pt lllD to be invalid on the same basis, except in relation to the Territories. Brennan J affirmed the existence of the implied freedom but held that Pt lllD did not infringe it. Dawson J held Pt 1110 to be valid, denying the existence of the freedom altogether. In his judgment, Chief Justice Mason found

Subsequent cases have explored the foundations, nature, content and

10.47

limits of the freedom. That is, they have refined and clarified its basis, the quality of the protection it affords, the range of communications to which it applies, the extent of its limitations and the test to be applied for laws purportedly infringing it. Although the first two decisions applied to

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constrain the exercise of Commonwealth legislative power, later cases have made clear that it can also apply to limit State legislative action.

Foundations and nature of the freedom

10.48

In Lange v Australian Broadcasting Corp (1997) 189 CLR 520, a case concerning the impact of the freedom on the law of defamation, the High Court took the opportunity to clarify the basis of the freedom. In a joint unanimous judgment, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ stressed that the freedom was to be found in specific provisions of the CC. Their Honours emphasised that, analytically, it was rooted in particular provisions of the CC rather than in some general principle or concept of representative democracy embedded in it. The Court said (at 567):

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individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

This aspect of the implied freedom was developed further by the High Court in Mulholland v Australian Electoral Comm (2004) 220 CLR 181, a case

10.50

concerning a challenge to the validity of provisions of the Commonwealth Electoral Act 1918 (Cth) dealing with the registration of political parties.

Mulholland v Australian Electoral Commission (2004) 220 CLR 181 FACTS: Under the Commonwealth Electoral Act 1918 (Cth) eligibility for registration as a political party required that the party have at least 500

members (the 500 rule) and parties could not rely on the same person as a In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, 'What is required by representative and responsible government?' It is, 'What do the terms and structure of the Constitution prohibit, authorise or require?'

member for the purpose of determining their number of members (the no overlap rule). It gave a registered political party the right to print its name on the ballot paper adjacent to the name of its endorsed candidate, whereas an unregistered party was not permitted to have its name printed on the ballot paper. An officer of the Democratic Labor Party (DLP) challenged the validity of the 500 and no overlap rules on the ground that they infringed the implied freedom of political communication by not allowing his party to have its name printed on the ballot paper.

To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections. Although some statements in the earlier cases might be thought to suggest otherwise, when they are properly understood, they should be seen as purporting to give effect only to what is inherent in the text and structure of the Constitution.

10.49

The Court in Lange also took the opportunity to explain the nature of the protection given by the freedom. It noted that the freedom was just that- a freedom from and limit on government action and not a right. It said (at 560): That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on

268

ISSUE: Were the challenged rules invalid because they infringed an implicit

freedom to discuss political matters implied in the CC? DECISION: The High Court unanimously held that the 500 and no

overlap rules did not infringe the implied freedom and were therefore valid. McHugh, Gummow, Hayne, Callinan and Heydon JJ did so on the ground that the two rules did not constitute a 'burden' on any freedom to communicate because they did not limit or encroach on any right or privilege to communicate which already existed independenfly under the general law. That is, their Honours found that in denying an unregistered party printing of its name on ballot papers the rules did not contravene the implied freedom since any such right merely arose under the challenged provisions themselves. McHugh J said (at 223): The short answer to the claim that the challenged provisions burden political communications by the OLP to electors is that the restrictions are the conditions of the entitlement to have a party's name placed on the ballot paper. The restrictions do not 111>

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burden rights of communication on political and government matters that exist independently of the entitlement.

For their part, Gleeson CJ and Kirby J accepted that the rules burdened freedom of political communication but found that they did not do so impermissibly.

Communications protected by the freedom

10.51

Precise identification of the kind of communications considered 'political' for the purposes of the freedom has proven to be elusive. Clearly not all communications are protected by the implied freedom. But the cases have shown that quite a broad range are. In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, the High Court considered the impact of the freedom in the context of a defamation action brought by a politician against a newspaper for the publication of a highly critical letter to the editor. Accepting that the publication 'clearly' fell within the concept of political discussion, Mason CJ, Toohey and Gaudron JJ (with whom Deane J specifically agreed) went on to identify (at 124) communication falling with the freedom in the following way: it is sufficient to say that 'political discussion' includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators. indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices.

Their Honours noted (at 123-4) that 'comment by a television entertainer' or speech 'simply aimed at selling goods and services and enhancing profit-making activities' would not ordinarily constitute political communication.

10.52

270

The difficulty in precisely identifying which communications are covered is neatly illustrated by the High Court case of Cunliffe v Commonwealth (1994) 182 CLR272. In that case, Mason CJ, Deane, Gaudron, and Toohey JJ were of the view that the giving of immigration advice or the making

CHAPTER 10 • RIGHTS AND RESTRICTIONS

of immigration representations constituted political communication, whereas Brennan, Dawson and McHugh JJ were of the view that they did not. Similarly, in the High Court in Mulholland, Gummow and Hayne JJ along with Callinan J and Heyden J were of the view that a ballot paper did not constitute a communication on political or governmental matters, whereas Gleeson CJ, McHugh J and Kirby J were of the view that it did. Nonetheless, the clear trend in later cases has been to regard a broad range of communications as 'political'. In Levy v Victoria (1997) 189 CLR 579 the High Court accepted that entry into a permitted hunting area with the intention of engaging in non-verbal protest against duckshooting fell within the communication covered by the freedom. Similarly, in Australian Broadcasting Corporation v Lenah Came Meats Pty Ltd (2001) 208 CLR 199 a majority of the High Court accepted that the broadcasting of a film concerning animal welfare was a protected kind of communication. In Coleman v Power (2004) 220 CLR 1, for McHugh J in the majority 'political' communication extended to the use of insulting language (at 45-6):

10.53

The concession that the words used by the appellant were a communication on political or government matters was also correctly made. It is beside the point that those words were insulting to Constable Power. Insults are as much a part of communications concerning political and government matters as irony, humour or acerbic criticism. Many of the most biting and offensive political insults are as witty as they are insulting.

This approach was recently reaffirmed in Hogan v Hinch (2011) 243 CLR 506, where the High Court accepted that the naming of persons convicted of sex offences on a personal website and at a public rally, in breach of suppression orders forbidding the identifkation of sex offenders, was a protected form of communication. The journalist breaching the orders sought repeal of the legislation under which the order was made. French CJ noted (at 544):

10.54

The range of matters that may be characterised as "governmental and political matters" for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government.

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10.55

So too, in Wotton v Queensland (2012) 246 CLR 1 at 15 the High

in a student newspaper at La Trobe University giving instructions on

Court accepted that mere attendance at public meetings on Palm Island

shoplifting- entitled 'The Art of Shoplifting' -did not have a political

in breach of a ~ale order could amount to political communication.

character and so did not fall within the freedom. So too, in the High

The very breadth of communications regarded as 'political' for the purposes of the implied freedom was recently underscored in the Federal

Court in APLA Limited Ltd v Legal Services Cmr of NSW (2005) 224 CLR 322, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon

Court decision of O'Flaherty v City of Sydney Council and Another

JJ essentially found that advertising by lawyers in relation to personal

(2013) 210 FCR 484, where Katzmann J accepted that the mere act of

injury claims or entitlements was a type of commercial communication

occupying Martin Place in Sydney as a part of the protest movement known as Occupy Sydney amounted to political communication.

which, accordingly, could not be regarded as 'political or governmental' for the purposes of the implied freedom.

Before reaching this conclusion, his Honour reasoned (at 491-2):

An additional issue potentially arises from the source of the freedom.

Ideas and opinions may be communicated through action (or, indeed, inaction) and in silence: Levy v Victoria (1997) 189 CLR 579 at 594; 146 ALR 248 at 251-2 (Levy) per Brennan CJ. The freedom of communication protected by the Constitution is not just freedom of speech. It may involve or include signs, symbols, gestures and images: Levy at CLR 595; ALR 252 per Brennan CJ; at CLR 613; ALR 266-7 per Toohey and Gummow JJ; and at CLR 622-3; ALR 274 per McHugh J. Compare Weisfeld v Canada [1995] 1 FC 68 at [30]. History has shown that non-verbal protest can be a particularly potent method of political communication, whether it be chaining oneself to the gates of parliament, giving a Black Power salute, partaking in a candlelight vigil, sitting in front of a bulldozer, participating in a sit-in, taking part in a hunger strike, setting oneself on fire, occupying a seat in a restaurant, library or bus reserved for people of a different colour, or burning a flag or draft card. No-one would seriously suggest, for example, that Rosa Parks was not engaged in an act of political communication when in 1955 in Montgomery Alabama she defied an instruction by a bus driver to give up her seat on the bus to a white passenger, although the mere act of sitting on a bus or staying put when asked to leave does not of itself constitute political communication. At this point in the inquiry, the form the communication takes is immaterial.

10.56

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10.57

Although it is an implication drawn from provisions in the CC, the cases have shown that political communication need not be solely, or even principally, on a matter of 'federal' concern. However, it is not entirely clear whether its federal origin might place some meaningful limit on the range of political communications protected by the freedom. In Australian Capital Television, Mason CJ stressed (at 142) the 'indivisibility' of political discussion, noting the following: The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connexion with the affairs of a State, a local authority or a Territory and little or no connexion with Commonwealth affairs. In Lange the Court appeared to retreat from this position slightly, seemingly emphasising (at 571) the ability to communicate on 'federal' elections or constitutional referenda. However other decisions suggest otherwise. The preparedness of the majority of the High Court in Levy to accept that protest against duck-shooting and Victorian htJnti ng laws largely an affair concerning the State of Victoria -

was communication

The cases do, however, make plain that the freedom is not a general

falling within the freedom and the approval by the majority in

freedom of expression or speech like the one existing under the

Coleman of a concession that an accusation of corruption directed at

First Amendment to the United States Constitution. As indicated in

a Queensland police officer -

again, largely a matter concerning the

Theophanous, some communications or discussion will simply not

State of Queensland -

be regarded as 'political'. For example, in the Full Federal Court in

appear to suggest no significant limitation on the freedom arising from

Brown v Classification Review Board of the Office of Film & Literature

its federal derivation. That is, it seems that it will be a rare case indeed

Classification (1998) 82 FCR 225, for Heerey and Sundberg JJ an article

in which a political communication does not fall within the scope of

was communication protected by the freedom

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

communications protected by the freedom on the ground that it relates to a discrete State, Territory or local issue. In fact, in Hogan v Hinch (2011) 243 C~ 506 at 543, French CJ seemed to raise doubt whether even a rare case is possible given what his Honour described as today's 'significant interaction between the different levels of government in Australia'. So perhaps only a matter of 'purely local political concern' might conceivably fall outside the range of protected communications (see Wotton v Queensland (2012) 246 CLR 1 at 15). It is hard: however, to envisage what such a matter could be. Limitations on the freedom

10.58

274

All the cases recognise that the freedom is not absolute. That is, they expressly acknowledge that a curtailment of the freedom of political communication may be justified because of a competing public interest. An overriding and important public interest may clearly justify a particular form of restriction on the freedom. The process of deciding whether this is so essentially involves a balancing or weighing of the respective interests. In Nationwide News, the High Court found that the particular restriction on the freedom to protect the integrity of the Industrial Relations Commission was too drastic. Similarly, in Australian Capital Television, a majority of the High Court found that the scheme banning political advertising to safeguard the integrity of the political process excessively curtailed the freedom. Conversely, in Levy the High Court unanimously accepted that the restriction on the freedom in that case - a prohibition on entry into permitted hunting areas without a licence - was justified in order to protect individual or public safety. In Hinch the High Court unanimously found that curtailment of the freedom in that case - a prohibition on the publication of information that may identify serious sex offenders -was justified in order to protect the community and rehabilitate offenders. So too, in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 five out of six Justices of the High Court found that a by-law forbidding preaching and the distributing of printed matter on any road without permission was justified in order to ensure the convenience and safety of road users. Recently in Wotton, the High Court unanimously found that a parole order forbidding, amongst other things, attendance at public

CHAPTER 10 • RIGHTS AND RESTRICTIONS

meetings on Palm Island was justified in order to ensure community safety, the good conduct of parolees and to prevent crime. Most recently in O'Flaherty, Katzmann J held that a prohibition on staying overnight in Martin Place as a part of the Occupy Sydney protest movement was justified in order to maintain public health, safety and amenity in a high use public area in the interests of the whole community. An appeal to the Full Federal Court was unanimously dismissed by Edmonds, Tracey and Flick JJ in O'Flaherty v City of Sydney Council and Another (2014) 221 FCR 382 (see also Muldoon and Another v Melbourne City Council and Others (2013) 217 FCR 450, where North J of the Federal Court reached a similar conclusion in relation to the Occupy Melbourne protests). In other cases, opinion can be more evenly divided. For example, in Cunliffe opinion was quite finely divided on whether certain restrictions on the giving of immigration advice were justified. Mason CJ, Deane

10.59

and Gaudron JJ were of the view that provisions intended to ensure the integrity of immigration advice and assistance unjustifiably restricted the implied freedom, whereas Toohey and Dawson JJ did not. Brennan and McHugh JJ, who formed the majority with Toohey and Dawson JJ, simply did not get to the issue. Most recently in Manis v The Queen (2013) 249 CLR 92, there was a 3:3 split of opinion in the High Court as to whether a provision prohibiting the offensive use of a postal or similar service could apply to restrict the freedom (see below). This balancing exercise may leave room for a variety of views about whether particular restrictions on the freedom, made in the pursuit of competing public interests, are justified. It calls for the striking of an appropriate balance between the competing claims of freedom of political communication and other public interests (see for example Adelaide Corporation at 64 and Muldoon at 530). It necessarily involves an element of subjective value judgment and for this reason is the most uncertain and controversial aspect of the implied freedom.

10.60

Test to be applied

Quite an elaborate test has been developed by the High Court to determine whether a law infringes the implied freedom of political communication. In its joint unanimous judgment in Lange, it formulated the following twostage test on whether a law violates the freedom (at 567-8):

10.61

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First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? ~ond, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed bys 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively 'the system of government prescribed by the Constitution'). If the first question is answered 'yes' and the second is answered 'no', the law is invalid.

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 169 and Wotton v Queensland (2012) 246 CLR 1 at 16). Third, the aspect of the third

It is the second part of this test which essentially calls for the balancing of

condition which requires that laws burdening communication serve a

competing public interests. It was modified in

Coleman, where a majority

of the High Court agreed with the following change by McHugh J (at 51 ): In my view, th is formulation accurately states the second limb of the Lange test. It emphasises that a law that burdens communications on political or governmental matters in the sense I have explained will be invalid unless it seeks to achieve an end in a manner that is consistent with the system of representative government enshrined in the Constitution. (change emphasised)

the general law. As appears below, in that case, the fact that changes adversely affected voting rights which themselves arose purely under statute (and not under the general law) did not prevent a finding of infringement of the implied right to vote. Second, the High Court has consistently reaffirmed that laws directly burdening political communication will be 'much more difficult to justify' than those doing so incidentally or indirectly (see

'legitimate end' was unexplored until the recent decision of the High Court in

The decision of the High Court in

in challenges to the constitutionality of a provision in a criminal statute.

all the following conditions are satisfied: •

the particular law constitutes a 'burden' on communication, in the sense that the right or privilege to express the said opinions or communicate already exists independently under the general law;

•

the particular communication

has the character of a

communication on 'political or governmental' matters; •

the law 'impermissibly' burdens the political communication in the sense that it seeks to achieve an end in a manner that is not compatible with the constitutionally prescribed system of representative government.

Three additional things may be said about these conditions. The first is that the recent decision of the High Court in Rowe v Electoral Commissioner (2010) 243 CLR 1 may indirectly cast doubt on whether a right to communicate must necessarily exist independently under

276

- · CASE SUMMARY '

Accordingly, where a law limits or interferes with certain communication or discussion, it will only infringe the implied constitutiona l freedom if

10.64

Manis v The Queen (2013) 295 ALR 10.65 Lange

259 shed light on this unexplored aspect of the two-stage test in

~

10.63

Manis v The Queen (2013) 295 ALR 259.

Monis v The Queen (2013) 295 ALR 259

FACTS: Section 471.12 of the Criminal Code (Cth) made it an offence for a person to use a postal or similar service in way that reasonable persons would regard as being, amongst other things, offensive. It was alleged that Man Haron Monis wrote letters to parents and relatives of soldiers killed while on active service in Afghanistan, which contained statements critical of Australia's involvement in the country and the role played by those soldiers. It was also alleged that Amirah Droudis aid~d and abetted Manis in relation to a number of these letters. They challenged the validity of s 471.12 on the ground that it infringed the implied freedom of political communication. ISSUE: Was s 4 71 .12 invalid because it was inconsistent with the system of representative government prescribed by the CC? DECISION: There was a 3:3 split in the High Court. In their joint judgment, Grennan, Kiefel and Bell JJ held that s 4 71 .12 did not infringe the implied freedom and so was valid. In separate judgments French CJ, Hayne and

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Heyden JJ held otherwise. Because of s 23(a)(a) of the Judiciary Act 1903 (Cth), the tied result meant that the appeal by the accused was dismissed. Crennan, Kiefel and Bell JJ firstly found that the end sought to be achieved by s 4 71 .12 was legitimate, reasoning (at 346) as follows: Tue protective purpose of s 471.12 is directed to the misuse of postal services to effect an intrusion of seriously offensive material into a person's home or workplace. It is not possible to further read down the degree of offensiveness of a communication ~ which is to be the subject of the offence and retain a field of operation for the section consistent with its purpose. It follows that the section, so construed, goes no further than is necessary to achieve its protective purpose. A purpose of protecting citizens from such intrusion is not incompatible with the maintenance of the constitutionally prescribed system of government or the implied freedom which supports it. Section 471.12 is not directed to the freedom. By way of analogy, it will be recalled that in Lange the protection of reputation was not considered to be incompatible. Their Honours then concluded (at 346-4 7) that the "manner" in which the provision sought to achieve this legitimate end did not impose too great a burden on the implied freedom. By contrast, French CJ, Hayne and Heyden JJ each held that the end sought to be achieved by the provision was not legitimate. French CJ reasoned (at 283) as follows: References to the promotion or protection of postal and similar services, the integrity of the post and public confidence in the post do not define in any meaningful way a legitimate end served by s 471.12. Its purpose is properly described as the prevention of the conduct which it prohibits. That is the prevention of uses of postal or similar services which reasonable persons would regard, in all the circumstances, offensive. That should not be regarded as a legitimate end not least because, as explained below, its very breadth is incompatible with its implementation in a way that is consistent with the maintenance of that freedom of communication which Is a necessary incident of the system of representative government prescribed by the Constitution.

CHAPTER 10 • RIGHTS AND RESTRICTIONS

Implied right to vote

Provisions in the CC establishing a system of representative government have also been found to contain another freedom. Specifically, in its consideration of the extent of the limitations this system places on the setting of voting disqualifications in federal electoral laws in Roach v Electoral Cmr & Anor (2007) 233 CLR 162, the High Court uncovered a constitutionally protected right to vote - an implied freedom of political participation.

10.66

Roach v Electoral Commissioner & Anor (2007) 233 CLR 182

FACTS: Amendments made in 2006 to the Commonwealth Electoral Act 1918 (Cth) provided that a person who is serving a sentence of imprisonment of any duration for an offence against the law of the Commonwealth or of a State or Territory is not entitled to vote in any Senate or House of Representatives election. The Commonwealth Electoral Act, under amendments made in 2004, previously disqualified as voters at federal elections prisoners serving custodial sentences of three years or longer. In 2004 Vicki Lee Roach was convicted in the County Court of Victoria and sentenced to an effective term of imprisonment of six years. She sought declarations in the High Court that both the 2004 and 2006 amendments to the Commonwealth Electoral Act were invalid.

ISSUE: Were either the 2004 or 2006 amendments to the Commonwealth Electoral Act 1918 (Cth) invalid because they were incompatible with the system of representative government provided for in the CC?

DECISION: A majority of the Court, Gleeson CJ, Gummow, Kirby and Grennan JJ, held that the 2006 amendments were incompatible with the system of representative government prescribed by the CC and so invalid (Hayne and Heyden JJ dissented, holding that the 2006 amendments were valid). Gleeson CJ reasoned (at 174) as follows: I see no reason to deny that, in this respect, and to this extent, the words of ss 7 and 24 [of the CC], because of changed historical circumstances Including legislative history,

278

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

CHAPTER 10 • RIGHTS AND RESTRICTIONS

have come to be a constitutional protection of the right to vote. That, however, leaves open for debate the nature and exte t of the exceptions. The Constitution leaves it to Parliament to define those exceptions, but Its power to do so is not unconstrained. Because the franchise is critical to representative government, and lies at the centre of our concept of participation In the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people.

1J>

new enrolments and shortened the 7-day grace period for transfers of enrolment to 3 days. The objective of these amendments, set out in a report of the Joint Standing Committee on Electoral Matters (the JSCEM

His Honour found (at 182) that the adoption of any period of imprisonment

Report), was to prevent potential enrolment fraud and to encourage timely compliance with enrolment obligations. Proceedings were commenced in the High Court seeking declarations that the 2006 amendments relating to the cut-off dates for consideration of claims for new enrolment and transfer of enrolment were invalid.

representative government prescribed by the CC and therefore valid. In their joint judgment, Gummow, Kirby and Grennan JJ (at 203-204) pointed to the fact that the 2004 amendments did not operate without regard to the seriousness of the offence committed as an indicator of culpability, operated during one normal electoral cycle and additionally reflected the legislative history and long established custom preceding the adoption of the CC where disqualification was made on the basis of culpability that went beyond mere imprisonment.

The scope of this constitutionally protected right was recently expanded by the High Court in Rowe v Electoral Commissioner (2010) 243 CLR 1, in challenges to an electoral law of an essentially procedural or machinery nature.

280

FACTS: Before amendments in 2006, the Commonwealth Electoral Act 1918 (Cth) provided for a period of grace of 7 days after the issue of the writs for an election for claims for enrolment or transfer of enrolment. The 2006 amendments effectively removed the 7-day grace period for

by the 2006 amendments was not a substantial reason . That it lacked justification was best demonstrated by the example of short-term prisoners, a substantial number of whom serve sentences of imprisonment due to personal characteristics (such as poverty or mental Illness) or geographical location (and so do not qualify for the full range of non-custodial sentencing options). Instead of marking off those whose offending is so serious as to justify disenfranchisement, It denies a right to vote on an arbitrary basis without reference to the term of imprisonment imposed or maximum penalty for the offence committed. However, the Court unanimously held that the 2004 amendments were compatible with the system of

10.67

Rowe v Electoral Commissioner (2010) 243 CLR 1

ISSUE: Were the 2006 amendments to the Commonwealth Electoral Act 1918 (Cth) invalid because they were inconsistent with the system of representative government prescribed by the CC? DECISION: A majority of the Court, French CJ, Gummow, Grennan and Bell JJ, held that the 2006 amendments were inconsistent with the constitutionally prescribed system of representative government and so invalid (Hayne, Heydon and Kiefel JJ dissented, holding that they were not invalid). French CJ reasoned (at 38-9) as follows: The practical effect of the Amendment Act was that a significant number of persons claiming enrolment after the calling of an election could not have their claims considered until after the election. That practical effect cannot be put to one side with the observation, which is undoubtedly correct, that those persons were so affected because of their own failures to claim enrolment or transfer of enrolment in accordance with their statutory obligations. The reality remains that the barring of consideration of the claims of those persons to enrolment or transfer of enrolment in time to enable them to vote at the election is a significant detriment in terms of the constitutional mandate. That detriment must be considered against the legitimate purposes of the Parliament reflected in the JSCEM Report. Those purposes addressed no compelling practical

,

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

problem or difficulty in the operation of the electoral system. Rather they were directed to its enhancement and improvement. In my opinion, the heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfillment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed.

Gummow and Bell JJ reasoned (at 61) in similar vein: Whether a particular measure goes beyond the constraints which ss 7 and 24 of the Constitution place upon s 51(xxxvi)..,. cannot depend upon the purpose attributed to the Parliament in enacting that measure. In particular, the requirement in Roach that any disqualification be for a substantial reason cannot be answered simply by what may appear to have been legislative purpose. A legislative purpose of preventing such fraud "before it is able to occur", where there has not been previous systemic fraud associated with the operation of the seven day period before the changes made by the 2006 Act, does not supply a substantial reason for the practical operation of the 2006 Act in disqualifying large numbers of electors. That practical operation goes beyond any advantage in preserving the integrity of

CHAPTER 10 • RIGHTS AND RESTRICTIONS

views in Kruger. However, the other Justi ces in those cases were less enthusiastic and the issue of the existence of these freedoms has not been conclu sivel y determined (in fact, in M ulholland Callinan J (at 297) specificall y rejected the existence of any implied freedom of association). More recently in O'Flaherty, Katzmann J (at 730) did not embrace a free-standing imp lied free dom of political association . In McCinty v Western Australia (1996) 186 CLR 140, a majority of the High Court seemingly rejected the ex istence of implied rights of equality of voting power under the CC or Western Australian Constitution . Separation of judicial power

A significant, further source of implied rights in the CC is to be found in the doctrine of the separation of judicial from legislative and executive powers. This separation of the judicial from th e other two branches of government is not express ly provided for in the CC, but impliedly as a result of its structure (see Attorney-General (Commonwealth) v The Queen (195 7] AC 288 at 311-312). This is dealt with separately in the chapter covering judicial power, Chapter 4 .

10.69

the electoral process from a hazard which so far has not materialised to any significant degree.

Other implied political rights and freedoms

10.68

282

It is unclear how many other kinds of rights and freedoms are contained within the provisions of the CC providing for representative and responsible government. Some may exist but have yet to be properly explored, while others seem to have been rejected . In Kruger v Commonwealth (1997) 190 CLR 1 at 115-6, Gaudron J suggested that a freedom of association and of movement were aspects of the freedom of political communication. Similar views were expressed by Toohey J (at 91) and McHugh J (at 142) in that case. Support for these views has subsequently been given in Mulholland - by Kirby J (at 277-8) and McHugh J (at 225) reaffirmed his Honour's earlier

283

CHAP

285

CHAPTER 11 • AMENDMENT AND REFORM

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

THE AMENDMENT PROCEDURE Section 128 of the CC sets out the procedure for constitutional amendment. A bill must first be passed by the Parliament and then presented to the people in a referendum . To become law, the referendum must obtain the support of an overal I majority of voters and a majority in a majority of States, which in practice means four out of six.

proposed law, it shall be presented to the Governor-General for the Queen's assent . No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, in increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section "Territory" means any territory referred to in section one hundred

11.1

SECTION 128: MODE OF ALTERING THE CONSTITUTION This Constitution shall not be altered except in the following manner:

and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be

AMENDMENT PROPOSALS

submitted in each State and Territory to the electors qualified to vote for the

There have been 44 attempts to amend the CC. Onl y eight have been successful. All 44 attempts are summarised below. (See Blackshield

election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or falls to pass it, or passes it with any amendments

11.2

& Williams, Australian Constitutional Law and Theor y, 6th ed, 2014, pp 1339-1340).

to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session

1906

again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may

Amendment of s 13 to provide for si multa neous elections for Senate and House of Representatives: Carried. 12.1.Q

submit the proposed law as last proposed by the first-mentioned House, Houses, to the electors in each State and Territory qualified to vote for the

(1) Amendment of s 105 to enable Commonwealth to take over State debts: Carried.

election of the House of Representatives.

(2) Amendment of s 87 per capita grants to States: Npt carried .

and either with or without any amendments subsequently agreed to by both

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors

ill1

Commonwealth, only one-half the electors voting for and against the proposed

(1) More Commonwea lth powers over trade, commerce etc: Not carried .

law shall be counted in any State in which adult suffrage prevails.

(2) Commonwealth power to nationalise monopolies: Not carried.

of members of the House of Representatives becomes uniform throughout the

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the

llU (1) Expanded Commonwealth trade and co mmerce power: Not carried.

286

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

(2) Expanded carried. (3) Expande

Commonwealth

CHAPTER 11 • AMENDMENT AND REFORM

corporations

power:

Not

(3) Additional Commonwealth employment: Not carried.

power

over

industrial

Commonwealth industrial relations power: Not

carried. (4) Expanded Commonwealth trade practices power: Not carried. (5) Commonwealth power to nationalise monopolies: Not carried. (6) Application of Commonwealth arbitration to State railways:

Commonwealth control over rents and prices: Not carried. 1951 Commonwealth power to ban Communist Party: Not carried. 1967

Not carried. (1) Breaking the nexus between Senate and House members: Not carried.

.l.2ll (1) Temporary extension of Commonwealth trade and commerce powers: Not carried. (2) Commonwealth power to nationalise monopolies: Not carried.

(1) Commonwealth control over prices: Not carried. (2) Commonwealth control over incomes: Not carried.

1926 (1) Regulation of industrial employment: Not carried. (2) Commonwealth power to protect essential services: Not carried. 1928 Adding s 105A to authorise Financial Agreement between Commonwealth and States: Carried. 1937

1974 (1) Simultaneous elections for both houses: Not carried. (2) Amendment of s 128: Not carried. (3) One vote, one value by population: Not carried. (4) Commonwealth financial assistance to local government: Not carried. 1977

(1) Commonwealth power over air navigation: Not carried. (2) Commonwealth exemption from s 92: Not carried. 1944 Fourteen new heads of Commonwealth power: Not carried. 1946 (1) Insertion of s 51 (xxiiiA) additional social services powers: Carried. (2) Exclusion of co-operative marketing schemes from s 92: Not carried.

288

(2) Amending s 51(xxvi) and repealing s 127 giving Commonwealth jurisdiction over Aborigines: Carried.

(1) Simultaneous elections for both houses: Not carried. (2) Amendment of s 15 to require Senate vacancy to be filled by nominee of same party: Carried. (3) Amendment of s 72 to require federal judges to retire at age 70: Carried. 1984 (1) Simultaneous elections: Not carried. (2) Interchange of powers between Commonwealth and States: Not carried.

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LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

1.2ill (1) Four-year maximum terms in both houses: Not carried. (2) One vote, one value and guaranteed right to vote: Not carried. (3) A news 119A requiring States to establish local government: Not carried. (4) Constitutional guarantees extended to States: Not carried .

12..2.2 (1) An Australian Republic: Not carried. (2) A new preamble to the CC: Not carried. In 2013, there were to have been two referenda put with the election in September, one on recognition of Indigenous people in the CC I the other to enable the Commonwealth to make grants directly to local government. First, the proponents of Recognition decided that they needed more time to educate the public and that referendum has been postponed. Then, when Kevin Rudd resumed the prime ministership in June, 2013, he moved the election forward by a week, incidentally preventing the Local Government referendum from being held due to the consultation time required. A review required by the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 has been commissioned and is due to report in September, 2014 on the readiness of the public and the exact question to be put. The local government referendum seems to have disappeared from the political agenda.

INTERPRETATION - AMENDMENT BY OTHER MEANS? 11.3

Some argue that a change in the interpretation of a section of the CC is a form of amendment (see Chapter 2). This assumes that the previous interpretation was 'correct'. If we leave aside the question of whether the High Court can be right or wrong (there is no longer any higher authority) we have only the current interpretation. No interpretation can be set in stone, though the longer an interpretation has held sway, the harder it is to change.

290

CHAPTER 11 • AMENDMENT AND REFORM

WORKAROUNDS With constitutional amendment being so difficult, the Commonwealth and States have found ways to work around constitutional impediments. Almost anything can be achieved through agreement between the Commonwealth and the States, or between the States. We have already noted that the States can refer powers to the Commonwealth under s 51 (xxxvii).

11.4

AN AGENDA FOR REFORM Some argue that reform of the federal compact is the most pressing constitutional issue in Australia today. We beg to differ. We see the most pressing constitutional issues as: 1. The republic; 2. Aboriginal rights; 3 Citizens' rights; 4. Adherence to international standards; 5. Environmental protection; and 6. Reforming the federal compact.

11.5

Republic Although Australians voted against the republic proposal put to them in 1999, public opinion surveys continue to show that the idea has majority support. The challenge is how to turn that support into constitutional reform. That challenge seems only to be growing as public support seems to be declining.

11.6

Indigenous rights We have explored in Chapter 3 some constitutional issues with respect to Indigenous people, the current campaign for constitutional recognition, and the arguments over sovereignty.

11.7

This leaves us with the question whether Aboriginal rights should receive some special recognition in a reformed CC. The International Covenant on the Rights of Indigenous Peoples calls for 'self-determination'. This is a term with many meanings including independent statehood. At a minimum it means that people have some control over their lives. The Aboriginal population is extremely diverse. There is no simple or single solution. A new constitution must take Aborigines' needs and aspirations into account and must at least acknowledge their prior

11.8

291

LEXISN!V

~

!

,DY GUIDE • CONSTITUTIONAL LAW

;cupation and at best specifically include them as an integral part ,f the Australian community with provision for their particular needs. ~ Citizens' rights

11.9

At the time of federation, there was no concept of citizenship within the British Empire. Everyone was a 'subject of the Queen' and that is the terminology adopted in the CC. The Australian Founding Fathers did not want some subjects of the Queen to be allowed to enter Australia and the Commonwealth has power over 'immigration and emigration' as discussed in Chapter 8. It is evident that Aborigines were not regarded as equal citizens. The Commonwealth also obtained power over 'naturalisation and aliens' - that is, the power to grant citizenship to aliens, but only in 1948 was Australian citizenship established.

11.1 o The CC provides for a democracy, or at least for representative government 'directly chosen by the people' but is vague about who 'the people' are and gives the Parliament the power to determine the

franchise. As we have seen in Chapter 4, the High Court has placed some restrictions on that power in Roach, but the CC is still light on for citizens' rights. It is suggested that a new Constitution should start with the citizens and who they are, and should enshrine their basic civil rights including the right to vote, seek office, communicate, obtain access to government information, have access to justice, and any other rights the citizens decide to give themselves. International dimension

11.11

292

The Commonwealth was not responsible for foreign policy after federation. Australia was still part of the British Empire and foreign policy was decided in London. The Commonwealth obtained power over 'external affairs'. But the scope of this power was unclear (see Chapter 8). The evolution of Australian independence and the advent of the United Nations have made the external affairs power a major resource for the expansion of Commonwealth power. Although Australia has signed many treaties and has tried to be a good international citizen, governments have been reluctant to implement comprehensive human rights protection. We propose that Australia should become an

CHAPTER 11 • AMENDMENT AND REFORM

even better international citizen by implementing in domestic law all the treaties that it signs. This might entail a process of parliamentary consultation or ratification before treaties are signed or ratified. This, it is to be hoped, will at least provide minimum rights to all humans who come within Australia's jurisdiction. At most, it could enable Australian membership of a supranational body like the European Union or a regional counterpart. Environment

Australia is the only country responsible for an entire continent. Since 11.12 European settlement, the Australian environment has been significantly degraded. The CC makes no mention of the environment, except to provide that the States shall have 'reasonable use' of the rivers for 'conservation and irrigation' under s 100. The Murray River, used as part of the border between Victoria and New South Wales, is nearly dead. A new constitution should include preservation of the environment as an objective and should be framed taking the environment into account. This clearly has implications for the division of powers between the Commonwealth and the States. Australia may also benefit from involvement in setting and abiding by international environmental agreements. The Federal compact

There are frequent calls to 'fix the federation', but we have seen from 11.13 the evolution of the Australian system (especially in Chapter 5) that the federation is never fixed - it continues to evolve over time. It is now a long way from the federation envisaged by the Founaing Fathers. It seems unlikely that we could, or would want, to return to the system envisaged at federation, but there is a widespread feeling that it would be possible to improve the present system. The alternatives seem to be an ever increasing central ism in which the States become executive arms of the Commonwealth (the model of executive federalism) or giving the States more guaranteed sources of revenue so that they can be genuine partners of the Commonwealth rather than supplicants. There is ample scope already for co-operation between the Commonwealth

293

,

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

and the States and between the States, but there is still much to be said for State self-determination in some matters. Australia is a continent

IN References are to paragraphs

with diverse nee s.

11.14

Another area frequently mentioned as requiring reform is local government. At present, local government is entirely subject to State legislation. It is hard to see exactly what form of recognition would be satisfactory, but greater certainty of boundaries, revenue and powers is desirable, so it is hoped that local government reform returns to the national political agenda.

A

tobacco plain packaging legislation

.... 10.15

Abbott Coalition Government

•

.. .. 1.16, 5.21

Anti-terrorism laws

Aboriginal people see Indigenous people

ANZUS defence treaty .... 1.8

Acquisition of property

Appropriation

external affairs power .... 8.9

acquisition, meaning .... 10.12,

accountability .... 9.32

10.13, 10.15

bills not to originate in Senate

compulsory .... 10.12

.. .. 9.20, 9.21, 9.32

extinguishing right to action for damages .... 10.13

bills only to deal with appropriation .... 9.20, 9.21, 9.32

Indigenous people, of .. .. 3.10,

challenge to expenditure not authorised by .... 9.35

10.14 intellectual property .... 10.15,

Commonwealth power to spend

10.16, 10.1 7

.... 9.32-9.36

interpretation of s 51 (xxxi)

consolidated revenue fund

.... 10.10-10.15

.... 9.32

just terms, guarantee of .... 10.9,

constitutiona I authorisation

10.10

.... 9.33, 9.34

economic right, protection of

expenditure authorised by .... 9.35,

.... 10.10

9.36

limitations on guarantee

'nationhood' power .... 9.34

.... 10.16, 10.17 meaning .... 10.18, 10.19

purposes of the Commonwealth, meaning .... 9.33

State laws, not applicable to

specific head of power .... 9.33,

.... 10.10 Territories, application to

.... 10.20

9.34 Astronomical and meteorological observations power (s 51 (viii))

legislative power (s 51 (xxxi))

.... 4.10, 10.9-10.20 mining rights .... 10.14 property, meaning .... 10.11 rights created solely by statute

.... 10.14 294

.... 4.10 Asylum seekers .... 1.16, 4.14 Australian Federation see Federation, Australian Australian Military Court .... 4.18

295

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

INDEX

terra nullius doctrine .... 1 .2, 1 .14

B

Bankruptcy and insolvency power (s 51(xvii)) .... 4.10 Banks and banking Commonwealth interfering with State's activities .... 5 .16, 6.6 legislative power (s 51(xiii)) ... . 4.10 validity of exercise of .... 5.16 nationalisation .... 1 .8, 4.1 0, 6.3

State Banking case .... 5 .16, 5.26, 6.6

Bills of exchange and promissory notes power (s 51 (xvi)) .... 4.10

Boilermakers/ case .... 1.9, 4.18, 7.3 Borrowing power (s 51(iv)) .... 4.10 Bounties exclusive Commonwealth power .... 9.5, 9.6, 9.16 legislative power (s 51 (iii)) .... 4.10 meaning .... 9.6

British colonisation of Australia .... 1.2 Aboriginal and Torres Strait Islander inhabitation .... 3 .3 acknowledgment by colonists .... 3.5 application of English law .... 1.3, 3.3 Indigenous people, to .... 3.5 law against perpetuities .... 3.6 validity .... 3.3

excise, imposing .... 7.3

environment .... 11.12

sovereignty .... 3.5, 11.8

industrial, meaning .... 7.3

federal compact .... 11 .13

status of legal foundation of Australia .... 3 .2, 3 .3

industrial relations .... 7.3

international matters .... 11.11

power shared between Commonwealth and States .... 6.4

local government .... 11 .14

c Census and statistics power (s 51 (xi)} .... 4.10 Citizens' rights .... 11.9, 11.10 Commonwealth exclusive powers .... 6.4 immunity from State law .... 6.6 laws not to discriminate against States .... 5.16, 5.26, 6.11 transfer of State departments to .... 4.13, 6.3 transfer of State powers to .... 6.4

Commonwealth of Australia Constitution Act 1900 .... 1 .4, 5. 9 Commonwealth Parliament see Federal Parliament

Communist Party case .... 1.8, 4.10 defence power .... 4.1 0 legality of ban .... 1.8

Compulsory acquisition see Acquisition of property Conciliation and arbitration power (s 51(xxxv)) .... 4.10, 7.3 arbitral power and judicial power distinct .... 7.3

Constitution amendment see Constitutional amendments and reform dead letter provisions .... 1 .19

republic proposal .... 11.6

'Braddon blot' .... 1 .19 evolving document .... 5.30

retirement of federal judges .... 1.12, 4.15

interpretation see Constitutional interpretation

Senate vacancies, filling of .... 1.12, 4.8

new preamble, referendum to consider .... 1 .15

workarounds .... 11 .4

overview ... . 1.1 passing by British Parliament .... 5.9 referenda to approve .... 5.8 rights and freedoms in see Rights and freedoms text and annotations .... 1.18-1 .19 UK concepts adopted in .... 2.5 US concepts adopted in .... 2.5 what is .... 2.3 theory and .... 2.6

Constitutional amendments and reform Aboriginal rights .... 11.7, 11.8

complexity .... 7.3

Conciliation and Arbitration Act

agenda for reform .... 11 .5

Indigenous legal influences in co lonies .... 3.5

dispute, nature of .... 7.3

296

7904 (Cth), validity .... 5.25, 7.3

proposals .... 11 .2 referendum, by .... 1 .12, 1.14, 1.15, 1.19, 3.8, 11.1, 11.2

colonies granted responsible government .... 1 .3

colonial dictatorship .... 3.4

procedure .... 11 .1

context .... 1.2-1 .17

absolute majority of each House, passed by .... 11 .1

arbitration, meaning .... 7.3

lack of .... 1.1 7

change in interpretation .... 11 .3 citizens' rights .... 11.9, 11.10

summary .... 11 .2

Constitutional Conventions .... 1.4, 5.8 Indigenous people, influence of .... 3.6 use of convention debates for interpreting Constitution .... 2.21

Constitutional crisis of 197 5 .... 1.11,

4.13 Constitutional interpretation Australian constitutional tradition .... 2.16 basic principles .... 2.19 coherence with past judicial decisions .... 2.25-2.28 connotation/denotation distinction .... 2.23 constitutional theory and .... 2.2-2.15

297

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Constitutional interpretation-cont'd contemporary meaning .... 2.24 deconstruction theory .... 2.29, 2.30 Dworkin's coherence theory .... 2.26-2.28 enactment intention/application intention distinction .... 2.23 Engineers ' case .... 1.6, 4.1 0

INDEX

separation of powers doctrine .... 2.12,2.19 sources .... 2.4, 2.25 State immunity from Commonwealth laws .... 1 .6 text as starting point .... 2.17-2.19 coherent whole .... 2 .1 8 statutory interpretation methods .... 2.17

essential characteristics of words and phrases .... 2.22

theoretical underpinnings .... 2.5-2.15

federalism, principle of .... 2.10, 2.19

whole document, as .... 2.18

Constitutional theory .... 2 .1-2 .31

Corporations power (s 51 (xx)) .... 4.10, 7.2 comprehensive Corporations Act not possible under .... 1.14

excise, meaning .... 9.6-9.9, 9.13

incorporation, whether includes power of .... 7 .2

excise on companies not implementing awards .... 9.24

industrial relations .... 7.2 intrastate activities .... 7 .2

exclusive Commonwealth power .... 6.4, 9.2, 9.19

limits of Commonwealth power .. .. 7.2

licence fees, whether excise .... 9.5, 9.11, 9.12, 9.14

secondary boycott, whether covers .... 7.2

nature and scope of excise duties .... 9.11-9.16

constitutional law practice and ... . 2.2,2.31

intention of drafters .... 2.20-2.23

constitutionalism .... 2.5, 2.6

Tasmanian Dam case .... 1.13, 7.2

federalism .. .. 2.10, 2.19

trade practices .... 7 .2

interpretation of constitution and .... 2.2, 2.3

trading corporation, what constitutes .... 7 .2

judicial review .... 2.13

'Work Choices' legislation .... 1 .16, 7.2

international legal norms .... 8.248.26 ' interpretative community' .... 2.30 'law as integrity' principle ... . 2.26, 2.27

legal positivism .. .. 2.14, 2.15 liberalism .... 2.7-2.9 representative government .... 2 .11

meaning of Constitution for purposes of .... 2.2, 2.3

responsible government .... 2.11

methods of .... 2. 16-2 .3 0

separation of powers .... 2 .12

ordinary meaning .... 2.17

UK concepts .... 2.5

original meaning .... 2.20-2.23

US concepts .... 2.5

postmodern theories .... 2.29, 2.30

Constitutionalism .... 2.4, 2.5-2.6

related provisions .... 2 .18

Contempt exception to court's monopoly of judicial power .... 4.18

representative government, principle of .... 2.11, 2.19 role in constitutional development .... 1.17 s 92, High Court ruling on .... 1.14

298

Co-operative federalism .... 1.1 6 Copyright, patents, designs and trade marks power (s 51 (xviii)) .... 4.1 0

department transferred to Commonwealth .... 6.3

expansion of Commonwealth power .... 5.16

human rights principles .... 8.248.26 internal coherence, assumption of .... 2.18

conci liation and arbitration power, excise imposed under .... 7.3

interpretative approach .... 9.149.16

sufficient connection .... 7.2

State powers .... 9.9 excise duties ... . 9.9-9.14 licence fees .... 9.5, 9.11, 9.12, 9.14-9.16 reserved .... 9.11 restrictions on .... 9.2, 9.5

Council of Australian Governments (COAG) .... 5.16, 6.12 Court of Conciliation and Arbitration binding decision, whether could make .... 4.18 judicial power, ability to exercise .... 4.18,7.3

Courts martial exception to court's monopoly of judicial power .... 4.18

Currency, coinage and legal tender power (s 51 (xii)) .... 4.1 O Customs and excise see also Taxation ban on State duties .... 9.1, 9.5, 9.19

vertical fiscal imbalance .... 9.9 D

Defence department transferred to Commonwealth .... 1.5, 6.3 legislative power (s 51(vi)) .... 4.10 Communist Party case .... 4.1 O

inherently national power .... 6.4 power shared between Commonwealth and States .... 6.4

Discrimination Commonwealth jurisdiction .... 5.24

299

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Discrimination-cont'd constitutional validity of laws

.... 1 .12 federal laws not to discriminate against States .... 5.16, 5.26, 6.11 taxation laws .... 9.17, 9.19 out-of-State residence see Immunity from out-of-State residence discrimination

Divorce and matrimonial causes power (s 51 (xx ii)) .... 4.1 0 power shared between Commonwealth and States .... 6.4

Dominion Australia as .... 1 .5 status of .... 1 .7

INDEX

constituted by Ch II .... 4.12

.... 5.27-5.29

Engineers' case .... 1.6, 4.10, 5.25

breadth of .. .. 5.27-5.29 delegated legislation .... 4.14

geographic externality .... 8.3, 8.6,

appointment of judiciary .... 4.19

300

8.8 inherently national power .... 6.4 international law see also International law becoming Australian law

.... 8.11-8.22 effect in Australia .... 8.2

constitution .... 4.2 contempt, punishment for .... 4.18 disqualification .... 4.4 double dissolution .... 1.10, 4.3,

4.14 electoral system .... 4.19

franchise .... 4.6

treaty implementation .... 8.10-

8.22 specific program or regime, requirement for .... 8.20

anti-terrorism laws .... 8. 9 expansion of Commonwealth power .... 5 .16, 11 .11

Federal Parliament

Racial Discrimination Act, validity .... 1.12, 8.15

Tasmanian Dam case .... 1.13, 8.16-8.19

.... 4.10, 8.1-8.22

4.17

expansion of legislative powers

scope .... 8.6

External affairs power (s 51 (xxix))

State courts, vested in .... 4.15,

power shared between Commonwealth and States .... 6.4

relations with foreign countries, legislation with respect to .... 8.9

execution and maintenance of Constitution and Commonwealth laws .... 4.14

State powers since .... 6.6

Executive .... 4.12

.... 8.4, 8.7, 8.18

Executive power .... 4.12, 4.14

extraterritorial power .... 8.3-8.8

Excise see Customs and excise

plenary extraterritorial power

.... 4.13

implied State immunity .... 6.6

.... 11.12

8.6

transfer of State government departments to Commonwealth

exceptions to rule in .... 5.26

constitutional reform, need for

nexus with Australia .... 8.4, 8.5,

separation from legislature .... 4.19

extradition arrangements .... 8.9

Environment

mere externality test .... 8.4

4.18

E

breadth of executive power

.... 8.15, 8.16, 8.17

separation from judiciary .... 4.1,

.... 4.2, 4.12, 4.14 prerogatives .... 4.14 separation of .... 1.9, 2.12, 4.1, 4.18, 4.19

.... 1.16, 4.14, 9.36

matter of international concern

4.13

Governor-General, exercised by

Commonwealth funding of chaplains in State schools

.... 8.10-8.22

responsible government .... 2.11,

Dworkin, Ronald .... 2.26-2.28

Education

implementation of treaties

number of ministers .... 4.13

.... 4.1 Governor-General's role .... 4.2, 4.3 House of Representatives .... 4.9,

4.19 method of election .... 4.7 powers, privileges and immunities

.... 4.4 Senate see Senate sessions .... 4.3 Federal political system

war crimes .... 8.4, 8.5

federation distinguished .... 5.4

World Heritage protection .... 8.16,

meaning .... 5.4

8.18 Extradition external affairs power .... 8.9 F

Family Court .... 4.15 Registrars exercising judicial power

.... 4.18 Federal constitution meaning .... 5.4

Federal Executive Council .... 4.12 Federal jurisdiction .... 4.1 7

Federalism .... 2.10, 5.1-5.5 arguments for and against

.... 5.17-5.21 Australian Federation see Federation, Australian coercive federalism .... 5.14, 5.20 concept of .... 2.10, 5.4 constitutional interpretation and

.... 2.19 co-operative federal ism .... 1. l 61

5.14, 5.16, 5.20, 5.21 lack of shared meaning .... 5.3

301

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

INDEX

meaning .... 5.4

Council of Australian Governments (COAG) .... 5.16, 6.12

two orders of governmental authority .... 5.16

new federalism policies .... 5.21,

creeping centralisation of power

Western Australia joining .... 5.1 O

Federalism-contV'

5.27 responsible government and .... 4.13 shaping Australian federalism

.... 5.12 shifting parameters .... 5.30 underlying principle in Constitution

.... 2.19 Federation Australian see Federation, Australian de facto federations .... 5.5 federal values .. .. 5.6, 5.7 meaning .... 5.4

.... 5.23 discrimination against State prohibited .... 5.16 disputes between governments

.... 5.16 distinguishing features .... 5.15,

5.16 distribution of authority .... 5.16 changes in .... 5.22-5.31 early independence of States

.... 5.11 equal representation in Senate

.... 5.16 establishment .... 5.2

Fiduciary law Australian governments and Indigenous people .... 3.11

Finance

balancing of interests .... 10.58

10.59, 10.60, 10.62 case law .... 10.45-10.47 communications protected by

.... 10.51-10.57 communications not regarded as 'political' .... 10.55

Appropriation see Appropriation

'federal' concern, of .... 10.57

Commonwealth grants power

identification of sex offenders

.... 9.27-9.31 Commonwealth power to spend

.... 9.32-9.36 Commonwealth power to tax see Taxation consolidated revenue fund

.... 9.32

.... 10.54 political communications

.... 10.51-10.56 defamation law, impact on

.... 10.48, 10.51 foundations .... 10.48-10.50 freedom, not right .... 10.49

federal values .... 5.6, 5.7

customs and excise see Customs and excise

general freedom of speech, not constituting .... 10.56

adjusting federal and state jurisdictions .... 5.22-5.31

federalism, principle of see Federalism

issuing of money .... 9.1

implied .... 1.14, 10.45-10.65

al location of revenue resources

taxation see Taxation

liberal theory .... 2.8

history of .... 5.8-5.14

Federation, Australian

.... 5.16 autonomy of constituent States

.... 5.11, 5.15 governmental institutions

.... 5.15 unity and consensus, moderated by .... 5.23

Nationwide News v Wills .... 10.45

Indigenous communities .... 5.16

Freedom of interstate trade .... 7.1,

nature of .... 10.48-1 0.50

inspiration for .... 5.2 nature of 'Commonwealth' .... 1.5 non-interference with States

.... 5.16, 6.8

constitutional reform, need for

powers allocated to Commonwealth .... 5.13

co-operation between governments

.... 2.10, 5.16 processes and institutions to facilitate .... 5.16 302

limitations .... 10.58-10.60

Fraser, Malcolm .... 1.11

passing of Constitution .... 5.9

conventions .... 5.8

Fisheries power (s 51 (x)) .... 4.1 o

inconsistency between federal and State laws .... 5.16

conflict between leve ls of government, potential for .... 5.16

.... 11 .13

'

increase in .... 5.23, 5.24 rigid constitutional framework

.... 5.16 status of Dominions .... 1.7 territorial representation .... 5.16

7.4 ban on State customs and excise duties .... 9.1, 9.5, 9.19 interpretation of s 92 .... 7.4 liberal theory .... 2.8 protectionists vs free traders .... 1.4,

5.8 trade and commerce power and

.... 7.1 Freedom of political communication

Australian Capital Television v Commonwealth .... 10.46

political discussion, what constitutes .... 1 0.51 public interest .... 10.58 representative government, principle o'f .... 10.48 test for violation of

.... 10.61-1 0.65 criminal statute provision

.... 10.65 Freedom of religion .... 10.28-10.36 establishing religion, prohibition on

.... 10.29, 10.32, 10.33

303

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

INDEX

Freedom of religion-cont 'd

Governor-General-in-Council

.... 4.13

free exercise of religion

.... 10.34-10.36

Isaacs, Sir Isaac .... 1.7

prohibition of prohibiting

ministerial advice, acting on

.... 10.29, 10.34, 10.35 guarantees in s 116 .... 10.29

.... 4.2, 4.3 powers of Governors of colonies vested in .... 4.13

imposing religious observance, prohibition on .... 10.29

reserve powers .... 4.3, 4.14

liberal theory .... 2.8

sess ions of Parliament, determining

.... 4.3

religion, what constitutes

.... 1 0.30-1 0.31

Grants

religious test for office or trust, prohibition .... 10.29

Commonwealth power (s 96)

s 116 guaranteeing .... 10.28

general revenue grants .... 9.28

.... 9.27-9.31 special assistance grants .... 9.28

G

specific purpose grants .... 9.28

Gillard Labor Government .. .. 1.1 6,

States, to .... 9.29

5.21 Goods and services tax (GST) Commonwealth tax given to States

.... 9.3 introduction of .... 1.15, 9.3 State revenue raising .... 9.4, 9.10

Gorton, John .... 1.9 Governor-General .... 4.2 appointment .... 4.2 commander-in-chief of naval and military forces .... 4.13 dismissal of Prime Minister

.... 1.11,4.3,4.14 dissolution of Parliament .... 4.3 executive power exercised by

.... 4.2, 4.12, 4.14 Federal Executive Council to advise

.. .. 4.12,4.13

304

Grundnorm theory .... 2 .1 5

federal jurisdiction .... 4.17 judicial power vested in .... 4.15

inherently national power .... 6.4

retirement of judges .... 1 .12, 4.15

legislative power (s 51 (xxvi i))

Hindmarsh Island Bridge case .... 3.8,4.10 Holt, Harold .... 1 .9 House of Representatives .... 4.9, 4.19 dissolution .... 1.10, 4.3 electoral system .... 4.19

appointment and removal of judges

.... 4.15 Commonwealth legislative powers, expansion of .... 4.1 constitutional court of Commonwealth .... 5.16 disputes between governments, ruling on .... 5.16 executive power ruling

.... 5.27-5.29

admission to legal practice

.... 10.38, 10.39 damages recoverable .... 10.40 limitations on guarantee .... 10.41,

Howard Coalition Government

.... 1.15, 1.16 'WorkChoices' legislation .... 1 .16,

7.2, 7.3 Human rights see also Rights and freedoms detention of unlawful non-citizens

advisory opinions .... 4.16

Immunity from out-of-State residence discrimination

responsible government .... 4.13

Hart, HLA .... 2.15

High Court

.... 4.10, 6.4 power shared between Commonwealth and States .... 6.4

qualification of electors .... 4.6

Australian Bill of Rights .... 8.26

1.14

8.26

matters to be dealt with by .... 4.17

H

Hawke Labor Government .... 1.13,

external affairs power .... 8.2, 8.25,

.... 8.25, 8.26, 10.3 guarantees in Constitution see Rights and freedoms international norms in constitutional interpretation

.... 8.24-8.26

10.42 nature of guarantee .... 10.43 purpose of s 117 .... 10.38 s 117 guarantee .... 10.37

Incidental power (s 51 (xxxix))

.... 4.1 0, 4.11 Income tax see also Taxation Commonwealth control .... 1 .7,

5.25, 9.18, 9.29 grants to States .... 9.29 uniform tax scheme .. .. 9.29, 9.30

Inconsistency between federal and State laws

legislative protection .... 10.2, 11 .11

concurrent P?Wer .... 6.5, 6.6

presumption against legislative infringement .... 10.3, 10.4

'covering the field' .... 5.33, 6.5,

6.6 direct inconsistency .... 5.33, 6.5 federal laws prevail .... 5.16, 5.25,

Immigration citizens' rights .... 11.9, 11.10 detention of unlawful non-citizens

.... 1.16, 8.25, 8.26, 10.3

4.32, 6.3 identification of field .... 5.34,

5.34-5.35, 6.5 implied immunities .... 6.6

305

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Inconsistency between federal and State laws-cont'd indirect inconsistencr , .. 5.33, 6.5 resolving .... 5.32-5.33 State challenge to validity of federal law .... 5.16 State law ceasing to operate .... 5.32 tests of .... 5.33-5.35

Indigenous people 'Aboriginal Protection' Ordinances .... 3.4 acquisition of property of .... 3.12,

10.14 amendment of Constitution and rights of .... 3.8, 11.7, 11.8 limitation of inclusion and recognition .... 3.2

1967 referendum .... 3.8 proposed .... 3 .1 3 census .... 3.7, 3.8 citizenship .... 3.8 common law rights .... 3.6, 3.9 Constitution, initial exclusion from

.... 3.2, 3.7 constitutiona I law context .... 3 .1 Indigenous legal influences in colonies .... 3.5, 3.6 constitutional recognition proposals .... 3.13, 11.2, 11.7 rights .... 11 .8 fiduciary obligations and discrimination .... 3.11 franchise .... 3.7, 3.8 inhabitation prior to English colonisation .... 3.3 acknowledgment of .... 3 .5 306

INDEX

Myall Creek Massacre .... 3.5

industrial, meaning .... 7.3

native title .... 1.14, 3.8, 3.9

international instruments, implementing .... 8.19-8.22

industrial relations .... 8.19-8.22

separation of powers .... 1.9, 4.18,

interpretive principle .... 8.24-8.26

pastoral leases .... 3.9 Northern Territory Intervention

.... 3.12 power to legislate for .... 1.9, 4.10,

11 .7 pre-Federation attitudes to .... 3 .6 race power .... 3.8, 11.7 Racial Discrimination Act 1974 (Cth) and .... 1.12, 3.8

role in domestic law .... 8.23-8.26

'WorkChoices' legislation .... 1 .16,

treaty implementation .... 8.10-

7.2, 7.3 Insurance power (s 51(xiv)) .... 4.10

International law

.... 3.5, 3.9, 11.8 State constitutional recognition

.... 3.13 State control post Federation

.... 3.7 Stolen Generations .... 3 .1 0

terra nullius doctrine .... 1 .2, 1.14 foundation of colony .... 3.2 sovereignty .... 3.5, 3.9

Industrial relations .... 7.3 arbitration, meaning .... 7.3

Boilermakers' case .... 1.9, 4.18, 7.3 conciliation and arbitration power

.... 7.3 constitutional law and .... 7.3 corporations power .... 7 .2 dispute, nature of .... 7.3 'Fair Work Australia' .... 7.3

11 .11

State school teachers .... 7.3

self-determination, right to

sovereignty, British vs Indigenous

ratification of treaties .... 8.2, 8.12,

State employment .... 7.3

Intellectual property, acquisition of .... 10.15, 10.16, 10.17

self-governing entities in federal system .... 5.16

.... 8.2

7.3

reconciliation .... 3.10

.... 11.8

incorporation into Australian law

8.22 Interpretation see Constitutional interpretation Invalid and old-age pensions power (s 51(xxiii)) .... 4.10 power shared between Commonwealth and States

amendment of Constitution .... 11 .11 becoming Australian law .... 8.11-

.... 6.4

8.22 agreement between Commonwealth and States

.... 8.14 conflict between Commonwealth and States .... 8.15 enabling legislation .... 8.12 ratification not sufficient .... 8.2,

8.12

J

Judicial power .... 4.15, 4.16, 4.17 administrative powers incidental to

.... 4.18 advisory opinions .... 4.16 arbitral power distinct from .... 7.3 Ch Ill courts only to exercise

.... 4.18

conformity of domestic law, ensuring .... 8.13

courts martial .... 4.18

constitutional interpretation, norms in .... 8.24-8.26

federal courts .... 4.15

effect in Australia .... 8.2

federal jurisdiction .... 4.17

external affairs power see also External affairs power treaty implementation .... 8.10-

8.22

exceptions .... 4.18

State courts, vested in .... 4.15,

4.17 High Court .... 4.15 'matter', requirement for .... 4.16

human rights .... 8.24-8.26, 11.11

nature of .... 4.16

ILO Conventions and Recommendations .... 8.19-8.22

non-judicial functions performed by judges .... 4.18 307

LEXISNEXIS STUDY GUIDE·• CONSTITUTIONAL LAW

Judicial power-cont-0'

INDEX

Legislative powers .... 4.1 0

expansion by High Court .... 4.1

quarantine (s 51 (ix)) .... 4.10

rights of action against Commonwealth or tes .... 4.1 7

acquisition of property (s 51 (xxxi))

separation of .... 1.9, 2.12, 4.1, 4.18, 7.3

astronomical and meteorological observations (s 51(viii)) .... 4.10

federalism, principle of .... 2.10

banking (s 51(xiii)) .... 4.10, 5.16

fisheries (s 51 (x)) .... 4.10

railway construction (s 51 (xxxvi)) .... 4.10

bankruptcy and insolvency (s 51 (xvii)) .... 4.10

immigration and emigration (s 51(xxvi i)) .... 4.10, 6.4

railway control for military purposes (s 51(xxxii)) .... 4.10

power of .... 2.13

bills of exchange and promissory notes (s 51(xvi)) .... 4.1 0

incidental matters (s 51 (xxxix)) .... 4.1 0, 4.11

recognition of State laws and proceedings (s 51 (xxv)) .... 4.1 O

principle of .... 2.13

borrowing (s 51 (iv)) .... 4.10

influx of criminals (s 51 (xxviii)) .... 4.10

seat of government, in relation to (s 52(i)) .... 4.10, 6.4

insurance (s 51(xiv)) .... 4.10

separation of .... 1.9, 2.12, 4.1, 4.18, 4.19

implied right .... 10.69

Judicial review .... 2 .1 3 constitutional validity of legislation .... 4.19

Judiciary .... 4.15 appointment of judges .... 4.15

see Acquisition of property

bounties (s 51 (iii)) .... 4.10 census and statistics (s 51 (xi)) .... 4.10

external affairs (s 51(xxix))

see

External affairs power Federal Parliament, vested in .... 4.1

race (s 51 (xxvi)) .... 4.10 railway acquisition (s 51 (xxxiii)) .... 4.10

characterisation .... 4.11

intellectual property, new forms of .... 4.11

federal courts .... 4.15

conciliation and arbitration (s 51(xxxv)) .... 4.10, 7.3

invalid and old-age pensions (s 51(xxiii)) .... 4.10, 6.4

single characterisation .... 4.11

federal jurisdiction .... 4.1 7

concurrent powers .... 4.10

Iighthouses, lightships, beacons

social services (s 51 (xxiiiA)) .... 4.10, 6.4

eligibility .... 4.19 Executive, by .... 4.19

State courts, vested in .... 4.15, 4.17

connotation and denotation .... 4.11

and buoys (s 51 (vii)) .... 4.10

service and execution of process (s 51 (xxiv)) .... 4.1 0

see Taxation

marriage (s 51 (xxi)) .... 4.10, 6.4

taxation (s 51 (ii))

corporations (s 51(xx)) .... 4.10, 7.2

matters provided for by Constitution (s 51 (xxxvi)) .... 4.10

trade and commerce (s 51 (i)) .... 4.10,7.1

Privy Court, abolition of appeal to .... 4.17

currency, coinage and legal tender (s 51 (xii)) .... 4.10

matters referred to Parliament (s 51(xxxvii)) .... 4.10

weights and measures (s 51 (xv)) .... 4.10

removal of judges .... 4.15, 4.19

defence (s 51 (vi)) .... 4.1 0, 6.4

retirement of federal judges .... 1.12, 4.15

denotation .... 4.11

matters within exclusive power of Parliament (s 52(iii)) .... 4.10

determining validity of .... 4.11

multiple characterisation .... 4.11

constitution of .... 4.2

divorce and matrimonial causes (s 51(xxii)) .... 4.10, 6.4

naturalisation and aliens (s 51 (xix)) .... 4.10

control of procedures and privileges .... 4.19

Engineers' case .... 1 .6, 4.10, 5.25,

Pacific Islands, relations with (s 51(xxx)) .... 4.1 0, 6.4

judicial power separate .... 4.1 judiciary overseeing .... 4.19

exclusive Commonwealth powers .... 6.4

places acquired for public purposes (s 52(i)) .... 4.10, 6.4

legislative powers, overview .... 4.10

exercise of powers of UK Parliament or Federal Council (s 51 (xxxviii)) .... 4.10

postal services (s 51 (v)) .... 4.10

separation from judiciary .... 4.1, 4.18

overseeing legislature .... 4.19

copyright, patents, designs and trade marks (s 51(xviii)) .... 4.10

Parliament's power over .... 4.19

Jury trial see Trial by jury

Kahle principle violation of .... 4.15 K

Keating Labor Government .... 1 .14 Kelsen, Hans .... 2 .1 5 L

Legal positivism .... 2 .1 4, 2 .1 5 308

6.6

public service departments (s 52(ii)) .... 4.10, 6.4

Legislature see also Federal Parliament

separation from legislature .... 4.19

309

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Legitimate expectations, principle of .... 8.2 Liberalism .... 2.7-2.9 Lighthouses, lightships, beacons and buoys department transferred to Commonwealth .. .. 6.3

INDE)(

Out-of-State residence discrimination see Immunity from out-of-State residence discrimination

Pacific Islands, relations with

Local government constitutional reform, need for .... 11 .2, 11 .14

M

Macquarie, _Lachlan .... 3.4 power shared between Commonwealth and States . ... 6.4

Murphy, Justice Lionel .... 1 .13, 1.19, 4.15

control for mili ta ry purposes (s 51(xxxii)) .. .. 4.10

attitude to Indigenous people .. .. 3.4

Postal services department transferred to Commonwealth .... 6.3 legislative power (s 51 (v)) .... 4 .10 radio and television .. .. 4.10

Menzies, Robert .... 1 .8

Privy Court appeal to .... 1 .4 abolition .... 4.1 7

N

Native title .... 1. 14, 3.9, 3 .12 common law and .... 3.9

310

equal ity .. .. 3.11

Recognition of State laws and proceedings power (s 51 (xxv)) .... 4.10

legislative protection .... 10.2

Religion see Freedom of religion

po litical communication see Freedom of political communication

Representative government .... 2 .11 , 2.19

presumption against legislative infr ingement .. .. 10.3 , 10.4

freedom of poli tical communi cati on and .... 10.48

religi on

see Freedom of religion

sepa ration of judicial power .... 10.69

Republic debate about.. .. 1.14, 1.15, 1.16

trial by jury see Trial by jury

proposal to amend Constitution .. .. 11.2, 11.6

vote

States as constitutional barrier .... 6.8

Responsible government .... 2.11, 4.13

see Vote, right to

Worl d Youth Day legislation .... 10.4

Royal prerogative to make war and peace .... 4.1 0 Rudd Labor Government

appropriation bills .... 8.32

co-operative federal ism .... 1.16, 5.2 1

Quarantine

freedom of political communication and .... 10.48

'Fair Work Australia' .. .. 7.3

department transferred to Commonwealth .... 6.3

rights and interests, survival of ... . 3.9

Northern Territory Intervention .... 3.12

implied in Constitution .... 10.1 , 10.44- 10.69

Q

extinguishment .... 3.9

Naturalisation and aliens power (s 51 (xix)) .. .. 4.10, 11.9

immunity from out-of-State resi dence discrimination ... . 10.37-10.43

acquisition (s 51(xxxiii)) .... 4.10

legislative power (s 51 (xxx)) .... 4.10

Phillip, Captain Arthur .. .. 1.2, 3 .3

.. .. 6.13

express guarantees in Constitution .... 10.1, 10.5-1 0.43

State laws in breach of .... 1.12

inherently national power .. .. 6.4

Pharmaceutical Benefits Scheme .... 9.33

challenge to ACT legislation

Australian Bill of Rights .... 8.26

external affairs power, whether validl y enacted under .... 8.15

construction (s 51 (xxxvi)) ... . 4.10

power shared between Commonwealth and States .. .. 6.4

Marriage power (s 51 (xxi)) ... . 4 .1 0

acquisition of property on just terms see Acquisition of property

constitution al va lidity .... 1.12, 8.15

Railways powers

p

legislative power (s 51 (vii )) .... 4.10

Mabo (No 2) .... 3.9

Racial Discrimination Act 1974

0

legislative power (s 51 (ix)) .... 4.1 0

Governor-General-i n-Cou nci I .... 4.13 197 5 constitution al crisis .... 4.13

R

separation of powers and .... 2 .12

Race power (s 51 (xxvi)) .... 4 .1 0 Indigenous people .... 3.8, 11 .7

Rights and freedoms see also Human rights

national apology .... 3.10

'Rule of recognition' .... 2.15

s Seat of government power to make laws in relation to (s 52(i)) .... 4.10, 6.4

311

LEXISNEXJS STUDY GUIDE • CONSTITUTIONAL LAW

Secondary boycott corporations power, whether covers

.... 7.2 Senate .... 4.5-4.8, 4.19

INDEX

Boilermakers' case .... 1.9, 4.18, 7.3 checks and balances .... 4.19

co-existing with Commonwealth laws .... 6.5

constitutional interpretation and

Commonwealth immunity .... 6.6

.... 2.19

appropriation bi Ils not to originate in .... 9.20, 9.21, 9.32

doctrine of .... 2.12

balance of power .... 4.19

exceptions .... 4.18

casual vacancies .... 1.12, 4.8 constitution .... 4.5 dissolution .... 4.3 electoral system .... 4.19

State laws

contempt, punishment for

.... 4.18 courts martial .... 4.1 8 delegation .... 4.18 implied right .... 10.69

bicameral legislatures .... 6.1

legislature and executive .... 4.19

colonies converted to .... 6.3 Commonwealth grants to .... 9.29

franchise .... 4.6

non-judicial functions performed by judges .... 3.18

Hawke government referenda

rationale for .... 4.19

number of Senators .... 4.5 parties' house, as .... 4.19, 5.16 power .... 4.5 proportional representation .... 4.19 qualification of electors .... 4.6 qualifications of Senators .... 4.4 responsible government .... 4.13 taxation laws not to be amended by .... 9.20, 9.22 taxation laws not to originate in

.... 9.20, 9.21 terms of Senators .... 4.5 territorial representation .... 1.1 O,

5.16 Separation of powers .... 1.9, 2.12, 4.1, 4.18 312

constitutional issues since 2000

.... 6.10

responsible government and .... 2.12

contraction of powers of .... 5.1 6

three branches of government

distribution of authority between Commonwealth and .... 5.16

.... 4.1

US Constitution .... 2.12

federalism and .... 2.10, 5.11

Social services power (s 51 (xxiiiA)) .... 4.10, 6.4

finance .... 6.7

Australia Acts, effect .... 6.8 changing .... 6.9 colonies, as .... 6.1 continuation subject to Commonwealth Constitution

.... 6.3 effect of federation .... 6.3 power to amend .... 6.1 resolution of deadlocks .... 6.2

residual powers .... 5 .16, 6.4 resolution of deadlocks .... 6.2 responsibilities .... 1.17 revenue sources .... 9.4 taxation see Taxation transfer of departments to Commonwealth .... 4.13, 6.3 transfer of powers to Commonwealth .... 6.4

Statute of Westminster .... 1 .7, 2.1 o Stolen Generations .... 3 .1 O

Tasmanian Dam case corporations power .... 1 .1 3, 7.2 external affairs power .... 1.13, 3.8,

8.16-8.19

establishment of .... 1.3

Service and execution of process power (s 5 l(xxiv)) .... 4.10

State constitutions .... 6.1

reserved powers .... 6.6, 9.11

.... 5.16

equal representation of States

method of election .... 4.7

.... 6.8

allocation of revenue resources between Commonwealth and Australia Acts, effect .... 6.8

.... 1.14

republic, constitutional barrier to

States

flaws in system .... 4.19

filling of vacancies .... 1.12, 4.8

referenda .... 6.1 O

inconsistency with Commonwealth laws see Inconsistency between federal and State laws

eligibility to vote for .... 4.6

.... 5.16

powers of State Parliaments .... 6.4

non-discrimination and noninterference principles .... 5.16,

federation, effect of .... 5 .11, 6.3 immunity from Commonwealth interference .... 5.16, 6.6, 6.8,

6.11 implied immunities .... 6.6 laws not to curtail functioning of

.... 5.16, 5.26, 6.11 laws not to discriminate against

.... 5.16, 5.26, 6.11 taxation laws .... 9.17, 9.19

6.11 T

Taxation see also Customs and excise allocation of revenue resources between Commonwealth and States .... 5.16 annexation by Commonwealth

.... 1.17 centralisation of fiscal power

.... 9.31

Legislative Counci Is .... 6.1

cigarette tax .... 9.26

legislative power .... 2.10, 6.1

Commonwealth grants power (s 96)

limited self-government .... 6.3

.... 9.27-9.31 313

LEXISNEXIS STUDY GUIDE • CONSTITUTIONAL LAW

Taxation-cont'd Commonwealth power to tax (s 51(ii)) .... 4.10, 9:1"7-9.26 dual purpose laws .... 9.2 5, 9.26

State revenue from .... 9.9, 9.10 tax bonus, power authorising .... 4.11, 4.14 tax, definition .... 9.6

laws not to discriminate against States .. .. 9.17, 9.19

vertical fiscal imbalance .... 9.9, 9.31

laws only to deal with imposition of tax .. .. 9.20, 9.21, 9.22, 9.25 laws only to deal with one tax ... . 9.20, 9.23

freedom of interstate trade and .... 7.1

GST .... 9.3, 9.4, 9.10

laws not to be amended by Senate .... 9.20, 9.22

laws not to originate in Senate .... 9.20, 9.21

production excluded .... 7 .1

Trade practices

uniform tax scheme .. .. 9.29, 9.30

grant by federal judges and separation of powers .... 4.18

Terra nullius doctrine .... 1.2, 1.14

corporations power and .... 7 .2

Weights and measures power (s 51(xv)) .... 4.10 Westminster system of government .... 2.1 1, 5.2

Trial by jury

White Australia Policy .... 3 .6

essential characteristics .... 10.25

British vs Indigenous sovereignty .... 3.5, 3.9

indictable offences, for .... 4.17, 10.23, 10.24 number of jurors .... 10.25, 10.26

procedural requirements .... 9.20-9.23

rejection in Mabo decision .... 3 .3, 3.9

right to .... 4.17, 10.21-10.27

immigration charge, whether tax .... 9.7 income tax Commonwealth control .... 1 .7, 5.25, 9.18, 9.29 uniform tax scheme .... 9.29, 9.30 industrial relations and tax-related law .... 9.24 State powers .... 6.7, 9.2-9.16 excise duties .... 9.9-9.14 licence fees .... 9.5, 9.11, 9.12, 9.14 loss of .... 1 .7, 5.25 reserved .... 9.11, 9.25 restrictions on .... 9.2, 9.5

requirements .... 10.25-10.27

Territories .... 6.13 acquisition of property on just terms .... 10.20

liberal theory .... 2.8 limits of guarantee ... . 10.24 sentencing, not applicable to .... 10.27

Australian Capital Territory .... 6.13 exclusive power to make laws in respect of .... 6.4

v

Northern Territory .... 6.13

Vote, right to .... 4.6, 4.9, 10.6-10.8

representation by Senators .... 1 .10, 5.16 self-government .... 6.13

Terrorism external affairs power .... 8.9 Torres Strait Islanders see Indigenous people Trade and commerce power (s 51(i)) .... 4.10, 7.1

external affairs power .... 8.4, 8.5

Treaty of Waitangi .... 1.3

reaction to Indigenous peoples .... 3.2, 3.3

GST .... 1.15, 9.3, 9.4

w War crimes

Trade Practices Act 1974 regu lating corporations and trade .... 7.2

Telephone intercepts

libera l theory .... 2.8 s 41 guaranteeing .. .. 10.6

Commonwealth jurisdiction .... 5.24

laws 'with respect to taxation' .... 9.24, 9.25

fee for services distinguished .... 9.8

314

INDEX

Whitlam, Government .... 1 .10, 1 .11 constitutional reform .... 1.1 O dismissal .... 1.11 1975 constitutional crisis ... . 1.11 , 4.1 3

Williams case executive power, breadth of .... 5.27-5.29

'WorkChoices' legislation .... 1 .16, 7.2, 7.3 World Heritage protection

federal elections .... 4.6, 10.7 freedom of political participation .... 10.66 implied right .... 10.66, 10.67 imprisonment, persons sentenced to .... 4.6, 10.66 Indigenous people .... 3.7, 3.8

external affairs power .... 8.16, 8.18

World War I Australian nationhood .... 1.5 Australian troops .... 1.5

World War II defence of Australia .... 1 .7

World Youth Day legislation .... 10.4

interpretation of s 41 .... 10.8

engaging in trade as well as regulating .... 7.1

315