Federal Constitutional Law: A Contemporary View [5 ed.] 9780455241449

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Federal Constitutional Law

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Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 [email protected] http://​legal.thomsonreuters.com.au/​ For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

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Federal Constitutional Law A Contemporary View

SARAH JOSEPH BA/LLB (Hons) (USyd), LLM (Hons) (Cantab), PhD (Monash)

Professor of Law, Monash University

MELISSA CASTAN BA/LLB (Hons) (Monash), LLM (Melb), PhD (Monash)

Barrister and Solicitor, Victoria and the High Court of Australia Associate Professor of Law, Monash University

FIFTH EDITION

LAWBOOK CO. 2019

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Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 ISBN: 9780455241449

© 2019  Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/​cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-​General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Original Cover Photo © Sarah Joseph Product Developer: Stephen Rennie Edited and typeset by Newgen Digitalworks Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://​www.pefc.org

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Preface It has been over 18 years since we wrote the first edition of this book, and interesting, complex and challenging developments continue to emerge in Australian constitutional law. Over time almost every chapter has undergone significant revision, while retaining the same accessible and contemporary style that we sought to capture in our first edition. This fifth edition of Federal Constitutional Law: A Contemporary View takes into account a wide variety of new constitutional developments arising since the publication of the fourth edition. The law is current to 31 December 2018. The evocative new cover is a photograph of Old Parliament house, taken by Sarah Joseph. Fresh material is incorporated on new cases on issues such as the disqualification of parliamentarians, the implied freedom of political communication, voting rights, proportionality tests, executive power, powers to detain, the federal power to spend and Indigenous issues. We trust that these updates continue to make this book an engaging, analytical and accessible resource for scholars and lawyers who work with Australia’s constitutional jurisprudence. Again, we are grateful for all the feedback and assistance we have received, particularly from Dr Patrick Emerton, and many other colleagues in the law faculty at Monash University and beyond. We are especially grateful to Tom Dreyfus, Ben Needleman and Toby Fadida, and all our previous research assistants, for their invaluable support in the research and updating tasks. We thank the staff, past and present, at Thomson Reuters for their pre-​publication assistance and meticulous handling of the manuscript. Finally, we sincerely thank our families and friends for their patience, enthusiasm and support in this undertaking. SARAH JOSEPH MELISSA CASTAN Monash University April 2019

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Table of Contents Preface......................................................................................................................................................  v Table of Cases..........................................................................................................................................  xi Table of Statutes................................................................................................................................   xxvii 1. Introduction......................................................................................................................................  1 [1.10]

Fundamental Concepts in Australian Constitutional Law...............................................2

[1.60]

From Colonisation to Federation........................................................................................16

[1.85]

Overview of the Constitution..............................................................................................20

[1.155] Cutting the Apron Strings: From Federation to the Australia Acts...............................32 [1.175] Judicial Review......................................................................................................................36 [1.240] Conclusion.............................................................................................................................65 2. Characterisation of Commonwealth Laws................................................................................  67 [2.10]

Reserved Powers Doctrine: R v Barger..............................................................................67

[2.15]

Explosion of the Reserved Powers Doctrine: The Engineers Case................................70

[2.20]

The Modern Approach to Direct Characterisation...........................................................73

[2.25]

Incidental Characterisation..................................................................................................77

[2.45]

The Relevance of Proportionality in Characterisation.....................................................87

[2.60] Conclusion.............................................................................................................................95 3. The Corporations Power...............................................................................................................  97 [3.10]

From Huddart Parker to the Concrete Pipes Case...........................................................98

[3.15]

Constitutional Corporations..............................................................................................101

[3.45]

Scope of the Corporations Power.....................................................................................108

[3.80] Conclusion...........................................................................................................................125 4. The External Affairs Power........................................................................................................  127 [4.10]

Extraterritorial Power.........................................................................................................127

[4.15]

Relations with Other Countries........................................................................................133

[4.20]

Implementation of Treaties................................................................................................134

[4.65]

Matters of International Concern......................................................................................149

[4.70]

Customary International Law...........................................................................................150

[4.75] Conclusion...........................................................................................................................151

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viii

 

Table of Contents

5. The Commonwealth Executive..................................................................................................  153 [5.10]

Persons within the Executive............................................................................................154

[5.20]

Scope of Executive Power..................................................................................................156

[5.90]

Crown Immunity................................................................................................................187

[5.95]

Privatisation and Executive Power..................................................................................190

[5.100] Conclusion...........................................................................................................................190 6. Separation of Judicial Power.....................................................................................................  193 [6.10]

Judicial Power......................................................................................................................194

[6.50]

Judicial Power of the Commonwealth.............................................................................210

[6.55]

Separation of Judicial Powers – Commonwealth........................................................... 211

[6.75]

Exceptions to the Two Principles......................................................................................219

[6.105] Separation of Judicial Powers – State...............................................................................229 [6.135] Chapter III as a Source of Individual Rights...................................................................259 [6.175] Separation of Judicial Power in the Territories...............................................................285 [6.180] Conclusion...........................................................................................................................286 7. Inconsistency................................................................................................................................  287 [7.10]

What Is a “Law” for the Purposes of Section 109?.........................................................288

[7.15]

Meaning of “Invalidity”.....................................................................................................288

[7.20]

Tests for Inconsistency........................................................................................................289

[7.25]

Impossibility of Simultaneous Obedience.......................................................................289

[7.30]

Conferral of Rights..............................................................................................................290

[7.35]

Indirect Inconsistency/Covering the Field.....................................................................294

[7.65]

Inconsistent Criminal Laws...............................................................................................307

[7.70]

Reassessing the Tests for Inconsistency...........................................................................312

[7.75] Conclusion...........................................................................................................................313 8. Intergovernmental Immunities.................................................................................................  315 [8.10]

Preliminary Issue: Crown Immunity...............................................................................316

[8.15]

The Early Law: The Doctrine of Implied Immunities....................................................316

[8.20]

The Engineers Case: Abandonment of Implied Immunities........................................317

[8.25]

Commonwealth Legislative Power over the States.......................................................318

[8.60]

State Legislative Power over the Commonwealth.........................................................337

[8.90] Conclusion...........................................................................................................................348 9. Excise Duties.................................................................................................................................  349 [9.10]

Definition of a “Tax”...........................................................................................................350

[9.15]

The Broad and Narrow Definitions of “Excise”.............................................................355

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Table of Contents

ix

[9.45]

The Modern Cases..............................................................................................................366

[9.75]

Conclusions: The Future for Section 90?..........................................................................374

10. Spending Government Revenue –​The Grants and Appropriations Powers.................  377 [10.10] Section 96 Grants.................................................................................................................378 [10.45] Appropriation and Expenditure.......................................................................................391 11. Freedom of Interstate Trade, Commerce and Intercourse..................................................  403 [11.10] A Brief History of Section 92.............................................................................................404 [11.30] A Fresh Start for Section 92................................................................................................407 [11.75] Freedom of Interstate Intercourse.....................................................................................430 [11.80] Section 92 and the Territories............................................................................................433 12. Express Rights.............................................................................................................................  435 [12.10] Acquisition of Property on Just Terms – Section 51(xxxi).............................................436 [12.65] The Right to Trail by Jury – Section 80.............................................................................462 [12.70] Freedom of Religion – Section 116....................................................................................468 [12.95] Discrimination on the Basis of Interstate Residence – Section 117..............................474 [12.105] No Express Right to Vote...................................................................................................480 [12.110] Conclusion...........................................................................................................................483 13. Implied Political Rights and Freedoms.................................................................................  485 [13.10] The Communist Party Case...............................................................................................486 [13.15] Freedom of Political Communication..............................................................................490 [13.55] Freedoms of Movement, Association and Participation...............................................525 [13.60] Voting Equality and Voting Rights...................................................................................527 [13.75] Conclusion...........................................................................................................................538 14. General Themes in Federal Constitutional Law..................................................................  541 [14.10] Indigenous People and the Constitution.........................................................................541 [14.40] Constitutional Prohibitions on Discrimination..............................................................562 [14.60] Proportionality....................................................................................................................575 [14.95] Conclusion...........................................................................................................................583 Appendix – Commonwealth of Australia Constitution...........................................................  585 Index....................................................................................................................................................  623

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Table of Cases A A v Australia Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 ..............6.150 A v Hayden (1984) 156 CLR 532 .....................................................................................................8.80 AAP case ........................................................................ see Victoria v Commonwealth and Hayden A-​G for Victoria (Ex rel Dale) v Commonwealth (Pharmaceutical Benefits case) (1945) 71 CLR 237  .................................................................................................5.70, 10.50, 10.55 A-​G for the Northern Territory v Emmerson [2014] HCA 13 ........................................ 6.112, 6.175 AMP Society v Goulden (1986) 160 CLR 330  ......................................................................7.45, 7.60 AMS v AIF (1999) 199 CLR 160 ..................................................................................................... 11.80 APLA v Legal Services Commissioner (2005) 224 CLR 332 ......................................................13.30 Aboriginal Legal Service of Western Australia v Lawrence (No 2) (2008) 178 IR 168 ............3.40 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169  ..................................................................2.20, 2.40, 2.45, 3.50, 3.55, 3.60, 3.65, 3.75 Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116  ..........................................................................12.70, 12.75, 12.85, 14.60, 14.75 Aid/​Watch v Commissioner of Taxation (2010) 241 CLR 539  ......................................13.45, 13.50 Air Caledonie International v Commonwealth (1988) 165 CLR 462  ...............................9.10, 9.65 Airlines case (No 2)...................................................................... see Airlines of NSW v NSW (No 2) Airlines of NSW v NSW (No 1) (1964) 113 CLR 1 ........................................................................7.10 Airlines of NSW v NSW (No 2) (Airlines case (No 2)) (1965) 113 CLR 54  .............2.30, 7.40, 7.55 Airservices Australia v Canadian Airlines International (1999) 202 CLR 133  .............9.10, 12.40 Al-​Kateb v Godwin (2004) 219 CLR 562  ...........................................1.180, 1.220, 1.230, 2.50, 6.150 Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350  .................................................................................................6.45, 6.85 Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 ....................................................................................................................14.45 Alqudsi v Commonwealth (2015) 91 NSWLR 92 .......................................................4.10, 4.60, 4.65 Alqudsi v The Queen (2016) 256 CLR 203 ...................................................................................12.65 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129  ...............................................1.195, 1.205, 1.225, 2.15, 2.60, 3.10, 4.35, 7.25, 8.05, 8.20, 9.25 Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 .......................................................................9.35 Ansett Transport Industries v Wardley (1980) 142 CLR 237  ...................................7.30, 7.40, 7.45, 7.60, 7.70, 7.75 Attorney-​General v Carlton Bank [1899] 2 QB 158 ....................................................................1.200 Attorney-​General v De Keyser’s Royal Hotel Ltd [1920] AC 508 ..............................................5.45 Attorney-​General (Cth) v The Queen; Ex parte Australian Boilermakers Society (1957) 95 CLR 529 ........................................................................................................................6.65 Attorney-​General (Cth) v Schmidt (1961) 105 CLR 361 .............................................................12.40 Attorney-​General (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161 ........................5.45 Attorney-​General (Cth) (Ex rel McKinlay) v Commonwealth (1975) 135 CLR 1  ..................13.65 Attorney-General (NSW) v Quin (1990) 170 CLR 1  ....................................................................6.10 Attorney-​General (NT) v Emmerson (2014) 253 CLR 393 ............................................. 6.112, 6.175, 12.40, 12.55 Attorney-​General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 ............................7.10

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Federal Constitutional Law: A Contemporary View

Attorney-General (SA) v City of Adelaide (2013) 249 CLR 1; [2013] HCA 3  ..............13.35, 13.40 Attorney-​General (Vic) (Ex rel Black) v Commonwealth (DOGS (or Defence of Government Schools) case) (1981) 146 CLR 559  ........10.25, 10.35, 10.45, 12.80 Attorney-​General (WA) v Australian National Airlines Commission (1976) 138 CLR 492  ............................................................................................................2.15, 2.30 Attorney-​General (WA) v Marquet (2003) 217 CLR 545 ............................................................1.165 Attorney-​General of the Commonwealth v The Queen (1957) 95 CLR 529 .............................6.25 Attorney General (Cth) v Alinta (2008) 233 CLR 542  .........................................................6.15, 6.30 Attorney General for Northern Territory v Chaffey (2007) 231 CLR 651 ................................12.35 Austin v Commonwealth (2003) 215 CLR 185  .........................................................8.10, 8.55, 14.45 Australian Agricultural Co v Federated Engine-​Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 .......................................................................1.220 Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 ............................12.45 Australian Boot Trade Employees Federation v Whybrow (1910) 10 CLR 266 .......................7.25 Australian Broadcasting Commission (ABC) v Industrial Court of SA (1977) 138 CLR 399 ......................................................................................................................7.60 Australian Building Construction Employees and Builders Labourers Federation v Commonwealth (1986) 161 CLR 88 .................................................................6.145 Australian Capital Television v Commonwealth (1992) 177 CLR 106  ............ 1.180, 11.75, 13.15, 13.20, 13.35, 13.55, 13.60 Australian Communications and Media Authority v Today FM (2015) 255 CLR 352 .........................................................................................................................6.10, 6.35 Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1  ...........................................................................1.20, 1.180, 2.50, 5.35, 5.70, 5.75, 6.10, 6.30, 12.85, 13.05, 13.10, 14.60 Australian Competition and Consumer Commission v Baxter (2007) 232 CLR 1 ...................5.90 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117  ...............................................................................................................................6.145 Australian Education Union v Lawler (2008) 169 FCR 327 ......................................................6.145 Australian Education Union, Re; Ex parte Victoria (1995) 184 CLR 188  ......................................................................8.05, 8.40, 8.45, 8.50, 8.70, 14.45 Australian Postal Commission v Dao (1985) 63 ALR 1 ...............................................................8.65 Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480  .......................9.10, 12.25 Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (2008) 171 FCR 102  .............................................................................................3.40

B Baker v The Queen (2004) 223 CLR 513  .......................................... 1.180, 6.110, 6.140, 6.155, 6.160 Bank Nationalisation case  ................................. see Bank of New South Wales v Commonwealth Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1  ............................ 1.180, 11.15, 11.25, 12.15, 12.25 Barley Marketing Board v Norman (1990) 171 CLR 182 ........................................................... 11.50 Barton v Commonwealth (1974) 131 CLR 477 ..............................................................................5.45 Bartter’s Enterprises v Todd (1978) 139 CLR 499 ....................................................................... 11.25 Bath v Alston Holdings (1988) 165 CLR 411  .................................................9.55, 11.40, 11.45, 11.70 Baxter v Commissioners of Taxation (1907) 4 CLR 1087 .............................................................8.15 Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283 ........................................................2.30 Behrooz v Secretary of DIMIA (2004) 219 CLR 486 ....................................................................6.150 Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500  ...........................1.235, 7.15, 7.30 Bennett v Commonwealth (2007) 231 CLR 91 ............................................................................13.70

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Table of Cases

xiii

Betfair v Racing NSW (2010) 189 FCR 356  .................................................................................. 11.65 Betfair v Racing NSW (“Betfair 2”) (2012) 249 CLR 217; [2012] HCA 12  ................... 11.40, 11.45, 11.60, 11.65, 11.70 Betfair v Western Australia (“Betfair 1”) (2008) 234 CLR 418  ............................11.50, 11.55, 11.60, 11.65, 11.70, 11.75 Boilermakers case  .................................see R v Kirby; Ex parte Boilermakers Society of Australia Bolton v Madsen (1963) 110 CLR 264 .............................................................................................9.35 Botany Municipal Council v Federal Airports Corp (1992) 175 CLR 453 .................................7.55 Bowman v Secular Society [1917] AC 406 ...................................................................................13.45 Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 ..................................................................................................................................5.90 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245  ..........................................................................................6.15, 6.20, 6.60, 6.75 British Imperial Oil Co v Federal Commissioner of Taxation (1925) 35 CLR 422 ........................................................................................................................6.20 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337  ............1.75, 4.10 Bropho v Western Australia (1990) 171 CLR 1  ..................................................................5.90, 5.100 Brown v The Queen (1986) 160 CLR 171 .....................................................................................12.65 Brown v Tasmania (2017) 261 CLR 328; 349 ALR 398 ......................................... 11.55, 13.30, 13.35, 13.40, 13.50, 14.85 Brown v West (1990) 169 CLR 195 ................................................................................................10.50 Brownlee v The Queen (2001) 207 CLR 278 ................................................................................12.65 Building Construction Employees and Builders Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372  ..............................6.105, 6.145 Burns v Corbett (2018) 92 ALJR 423  ......................................................................6.125, 6.130, 6.180 Burns v Ransley (1949) 79 CLR 101  .............................................................................5.60, 5.70, 5.75 Burton v Honan (1952) 86 CLR 169  .............................................................................2.40, 2.45, 3.60 Butler v Attorney-​General (Vic) (1961) 106 CLR 268 ...................................................................7.15

C CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 ........................5.63 Cadia Holdings Pty Ltd v NSW (2010) 242 CLR 195 ...................................................................5.45 Canavan et al, Re (2017) 91 ALJR 1209 ..............................................................................1.195, 1.225 Capital Duplicators Pty Ltd v ACT (No 1) (1992) 177 CLR 248  .......................................5.25, 9.60 Capital Duplicators Pty Ltd v ACT (No 2) (1993) 178 CLR 561  ..............................9.60, 9.65, 9.70 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 ........................................................................................................................7.15 Castlemaine Tooheys v South Australia (1990) 169 CLR 436  ..................11.35, 11.55, 11.60, 11.65, 11.70, 11.75, 14.45 Chaplin v Commissioner of State Taxation (1911) 12 CLR 375 ...................................................8.75 Chapman v Tickner (1995) 55 FCR 316 ........................................................................................14.30 Chasemore v Richards [1859] EngR 894  .....................................................................................12.15 Cheatle v The Queen (1993) 177 CLR 541  ........................................................................1.200, 12.65 Cheng, Cheng and Chan v The Queen (2000) 203 CLR 248  ..........................................1.220, 12.65 Cherokee Nation v State of Georgia 30 US (5 Pet) 1 (1831) .......................................................14.15 Cheung v The Queen (2001) 209 CLR 1 .......................................................................................12.65 China Ocean Shipping v SA (1979) 145 CLR 172 ........................................................................1.165 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1  ......................................................5.63, 6.10, 6.145, 6.150, 14.75 Church of Scientology v Woodward (1982) 154 CLR 25 ..............................................................1.20

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Federal Constitutional Law: A Contemporary View

Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120 ....................................................................................................................12.75 Clarke v Commissioner of Taxation [2009] HCA 33 ....................................................................8.55 Clarke King v Australian Wheat Board (1978) 140 CLR 120 ..................................................... 11.50 Clyde Engineering v Cowburn (1926) 37 CLR 466  .............................................................7.30, 7.35 Coco v Newnham (1990) 97 ALR 419 .............................................................................................8.80 Coe v Commonwealth (No 2) (1993) 118 ALR 193 .....................................................................14.15 Cole v Whitfield (1988) 165 CLR 360  ......................................... 1.200, 2.30, 9.05, 9.70, 11.05, 11.10, 11.30, 11.35, 11.40, 11.45, 11.50, 11.55, 11.60, 11.65, 11.70, 11.75 Coleman v Power (2004) 220 CLR 1  ...........................................................13.30, 13.35, 13.45, 13.75 Coleman v Shell (1943) 45 SR (NSW) 27 ......................................................................................6.160 Colina, Re; Ex parte Torney (1999) 200 CLR 386 .........................................................................12.65 Collingwood, City of v State of Victoria (No 2) [1994] 1 VR 652  ..................................6.105, 6.145 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308 ................................................................6.85 Colonial Sugar Refining Co v Irving [1906] AC 369 ..................................................................14.45 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 ........................................................................7.30 Combet v Commonwealth (2005) 224 CLR 494 ..........................................................................10.50 Cominos v Cominos (1972) 127 CLR 588  .............................................................................6.30, 6.95 Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47  ........................................7.45, 7.60 Commonwealth v Australian Capital Territory (Same Sex Marriage case) (2013) 250 CLR 441  ..........................................................................................................1.200, 7.60 Commonwealth v Bank of New South Wales (1949) 79 CLR 497 ............................................ 11.25 Commonwealth v Bogle (1953) 89 CLR 229  ........................................................................5.90, 8.70 Commonwealth v Cigamatic Pty Ltd (in Liquidation) (1962) 108 CLR 372  ...............................................................8.05, 8.65, 8.70, 8.75, 8.80, 8.85, 8.90 Commonwealth v Colonial Combing Spinning and Weaving Co Ltd (1922) 31 CLR 421 ........................................................................................................................5.45 Commonwealth v Evans Deakin Industries (1986) 161 CLR 254 ...............................................8.75 Commonwealth v Kreglinger and Fernau Ltd and Bardsley (1926) 37 CLR 393 ..................14.55 Commonwealth v Mewett (1997) 191 CLR 471  ................................................................5.90, 12.30 Commonwealth v NSW (1923) 33 CLR 1 .....................................................................................12.10 Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1  ..............1.210, 2.15, 3.25, 3.40, 3.45, 3.50, 3.60, 3.70, 4.35, 4.45, 4.65, 4.70, 4.75, 5.75, 12.25, 14.30, 14.60 Commonwealth v WA (1999) 196 CLR 392 ...................................................................................7.65 Commonwealth v WMC Resources Ltd (1998) 194 CLR 1  ................................12.25, 12.35, 14.30 Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union v Queensland Rail (2015) 256 CLR 171 .............................................3.25 Communist Party case  .................................. see Australian Communist Party v Commonwealth Concrete Pipes case  .........................................................see Strickland v Rocla Concrete Pipes Ltd Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7  ......................... 6.10, 6.112, 6.115, 6.120, 6.130, 6.165, 6.180 Conroy v Carter (1968) 118 CLR 90  ..................................................................................14.45, 14.50 Cooper v Stuart (1889) 14 App Cas 286  .............................................................................1.65, 14.15 Cormack v Cope (1974) 131 CLR 432 ...........................................................................................1.105 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 .....................5.45 Criminal Proceeds Confiscation Act 2002, Re [2004] 1 Qd R 40  .............................................. 6.112 Croft v Dunphy [1933] AC 156 ........................................................................................................4.10 Crump v NSW (2012) 247 CLR 1 ..................................................................................................6.155 Cubillo and Gunner v Commonwealth (2000) 103 FCR 1 .........................................................14.35 Culleton (No 2), Re (2017) 91 ALJR 311  .......................................................................................1.195

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xv

Cunliffe v Commonwealth (1994) 182 CLR 272  ...................... 2.25, 4.55, 11.75, 13.30, 13.35, 13.75 Cunningham v Commonwealth (2016) 259 CLR 536 .................................................................12.35

D DFCT v Truhold Benefit Pty Ltd (1985) 158 CLR 678 ..................................................................9.10 DFCT (NSW) v Moran (1939) 61 CLR 735  ......................................10.25, 10.30, 10.35, 10.40, 10.45 DOGS case  .........................................see Attorney-​General (Vic) (Ex rel Black) v Commonwealth Dao v Australian Postal Commission (1987) 162 CLR 317 ..........................................................7.60 Davies and Jones v Western Australia (1904) 2 CLR 29  .................................................12.95, 14.45 Davis v Commonwealth (1988) 166 CLR 79  ....................................................5.60, 5.70, 5.75, 10.50 Day (No 2), Re (2017) 91 ALJR 518  ..............................................................................................1.195 D’emden v Pedder (1904) 1 CLR 91 ................................................................................................8.15 Defence of Government Schools case  ........................ see Attorney-​General (Vic) (Ex rel Black) v Commonwealth Dennis Hotels v Victoria (1960) 104 CLR 529  ...............................1.220, 9.35, 9.45, 9.50, 9.55, 9.60, 9.65, 9.70, 9.75 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177  ...............................1.220, 9.35, 9.40, 9.55, 9.60, 9.65 Dickson v The Queen (2010) 241 CLR 491 .....................................................................................7.65 Dietrich v The Queen (1992) 177 CLR 292  ..................................................................................6.170 Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323  ....................................................3.50, 3.60, 6.45 Director of Public Prosecutions, Re; Ex parte Lawler (1994) 179 CLR 270 .............................12.40 Dr Bonham’s Case (1610) 8 Co Rep 113b; 77 ER 638 ....................................................................1.15 Dugan v Mirror Newspapers (1978) 142 CLR 583 .......................................................................1.20 Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 ............ 6.112, 6.120 Duncan v Jones [1936] 1 KB 249 ......................................................................................................1.20 Duncan v NSW (2015) 255 CLR 388  ...................................................................................6.10, 6.125 Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399  ............................................................12.10 Dymond, Re (1959) 101 CLR 11 .......................................................................................................9.10

E Eastman v The Queen (2000) 203 CLR 1 ......................................................................................1.200 Eastman, Ex parte (1999) 200 CLR 322 .........................................................................................6.175 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337  .........................................6.170, 6.175 Elliott v Commonwealth (1935) 54 CLR 657 ...............................................................................14.45 Engineers case  ................. see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 .............................................5.90

F F, Re; Ex parte F (1986) 161 CLR 376 ...............................................................................................2.20 FCT v Official Liquidator of E O Farley Ltd (1943) 63 CLR 278 .................................................8.70 Fairfax v FCT (1965) 114 CLR 1  .........................................................................2.20, 2.50, 3.50, 10.35 Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 ......................................................................................................................6.10 Farah Constructions v Say-​Dee (2007) 230 CLR 89 ......................................................................6.10 Fardon v Attorney-​General (Qld) (2004) 223 CLR 575  ............................ 1.180, 6.110, 6.125, 6.180 Fardon v Australia (2010) CCPR/​C/​98/​DR/​1629/​2007  .......................................................... 6.110 Farey v Burvett (1916) 21 CLR 433 ..................................................................................................8.15

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Federal Constitutional Law: A Contemporary View

Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 ................................................6.15 Federal Roads case  ............................................................................. see Victoria v Commonwealth Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants’ case) (1906) 4 CLR 488 ..............................................................................8.15 Felton v Mulligan (1971) 124 CLR 367 ...........................................................................................7.10 Fencott v Muller (1983) 152 CLR 570  .........................................................3.30, 3.35, 3.40, 3.60, 3.65 First Territorial Senators case  ..........................................see Western Australia v Commonwealth First Uniform Tax case  ..........................................................see South Australia v Commonwealth Fittock v The Queen (2003) 217 CLR 508 .....................................................................................12.65 Flaherty v Girgis (1985) 63 ALR 466 ...............................................................................................7.60 Forge v ASIC (2006) 228 CLR 45  ............................................................................ 1.230, 6.115, 6.120 Fortescue Metals Group v Commonwealth (2013) 250 CLR 548; [2013] HCA 34  .......................................................................................................8.50, 14.45, 14.50 Fox v Robbins (1909) 8 CLR 115  ........................................................................................ 11.20, 11.35 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 ...................................................................6.155 Fringe Benefits Tax case (Second)  ..................... see State Chamber of Commerce and Industry v Commonwealth

G Gallagher, Re (2018) 92 ALJR 502 ..................................................................................................1.225 Garnishee case  .............................................................................see NSW v Commonwealth (No 1) Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297  ...................................................5.90, 12.30, 12.35, 12.45, 12.50 Gerhardy v Brown (1985) 159 CLR 70 ............................................................................................7.30 Gilbertson v State of South Australia [1978] AC 772 .................................................................6.105 Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 ..................................................5.25 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463  .........................................12.100, 14.50 Gosford Meats v NSW (1985) 155 CLR 368 ...................................................................................9.35 Gould v Brown (1998) 193 CLR 346 ................................................................................................6.70 Grace Brothers v Commonwealth (1946) 72 CLR 269 ................................................................12.20 Grannall v Marrackville Margarine Pty Ltd (1955) 93 CLR 55  ................................2.25, 2.30, 3.60 Gratwick v Johnson (1945) 70 CLR 1 ............................................................................................ 11.75 Grey v Pearson (1857) 6 HLC 61 ...................................................................................................1.195 Griffin v Constantine (1954) 91 CLR 136 .......................................................................................2.35 Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 ....................................................................................................................12.45 Griggs v Duke Power Co 401 US 424 (1971)  ...................................................................14.45, 14.50 Grollo v Palmer (1995) 184 CLR 348  ................................................ 6.100, 6.110, 6.115, 6.140, 6.160 Gypsy Jokers Motorcycle Club v Commissioner of Police (2008) 234 CLR 532 ..................... 6.112

H H C Sleigh Ltd v SA (1977) 136 CLR 475  .........................................................1.220, 9.35, 9.65, 9.70 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 .............................................................9.10 Harper v Victoria (1966) 114 CLR 361 ............................................................................................9.10 Harris v Caladine (1991) 172 CLR 84 .............................................................................................6.80 Haskins v Commonwealth (2011) 244 CLR 22  ..................................................................6.85, 6.150 Health Insurance Commission v Peverill (1994) 179 CLR 226  .....................................6.145, 12.35 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599  ..................................................................................2.35, 9.20, 9.50, 9.65, 9.70, 10.30

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Henry v Boehm (1973) 128 CLR 482  .................................................................................12.95, 14.45 Hilton v Wells (1985) 157 CLR 57 ..................................................................................................6.100 Hindmarsh Island case  .................................................................. see Kartinyeri v Commonwealth Hindmarsh Island case  ............................. see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs Hogan v Hinch (2011) 243 CLR 506  .......................................................................6.120, 13.35, 13.45 Horta v Commonwealth (1994) 181 CLR 183  ...............................................................................4.30 Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330  .........................3.05, 3.10, 3.55, 3.70, 3.80, 6.10, 6.15 Hume v Palmer (1926) 38 CLR 441 .................................................................................................7.60

I ICM Agriculture v Commonwealth (2009) 240 CLR 140  ....................................10.35, 10.40, 12.15 ILO case  ............................................................................................... see Victoria v Commonwealth Incorporation case  ............................................................. see New South Wales v Commonwealth Independent Commission Against Corruption (NSW) v Cunneen (2015) 256 CLR 1 .......... 6.112 International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319  ...................................................................... 6.110, 6.112, 6.140

J JD and WG Nicholas v Western Australia [1972] WAR 168 ......................................................6.105 JT International SA v Commonwealth [2012] HCA 43; (2012) 250 CLR 1  ...........................................................................12.25, 12.30, 12.35, 12.40, 12.60 Jacobsen v Rogers (1995) 182 CLR 572  .................................................................................5.90, 8.80 James v Commonwealth (1928) 41 CLR 442  ....................................................................14.45, 14.50 James v Cowan (1930) 43 CLR 386 at 399 .................................................................................... 11.20 James v Cowan (1932) 47 CLR 386 ............................................................................................... 11.20 Jemena Asset Management v Coinvest (2011) 244 CLR 508  .............................................7.10, 7.40 John Cooke v Commonwealth (1924) 34 CLR 269 .....................................................................12.10 John Holland Pty Ltd v Victorian Workcover Authority (2009) 239 CLR 518 ..........................7.55 Johnston Fear & Kingham & The Offset Printing Company v Commonwealth (1943) 67 CLR 314 .........................................................................................12.45 Jones v Commonwealth (1987) 71 ALR 497 ................................................................................6.100 Judd v McKeon (1926) 38 CLR 380  ...................................................................................12.85, 13.70 Judiciary and Navigation Acts, Re (1921) 29 CLR 257 .................................................................6.25

K K-​Generation v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471 ................ 6.110, 6.112 Kable v Director of Public Prosecutions (1995) 36 NSWLR 374 .................................................1.15 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51  ...................1.15, 1.180, 1.210, 1.235, 6.05, 6.105, 6.110, 6.112, 6.120, 6.125, 6.130, 6.135, 6.140, 6.145, 6.160, 6.175, 6.180 Kable No 2  ............................................................................................ see New South Wales v Kable Kartinyeri v Commonwealth (Hindmarsh Island case) (1998) 195 CLR 337  ..............................................................1.230, 2.50, 12.35, 14.20, 14.25, 14.30 Katsuno v The Queen (1999) 199 CLR 40 ....................................................................................12.65 King v Jones (1972) 128 CLR 221  .....................................................................................1.200, 12.105

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Federal Constitutional Law: A Contemporary View

Kingswell v The Queen (1985) 159 CLR 264  ...................................................................1.220, 12.65 Kirk v Industrial Court of NSW (2010) 239 CLR 531 ........................................................6.10, 6.120 Klass v Federal Republic of Germany (1978) 2 EHRR 214 ........................................................6.100 Knight v Victoria (2017) 261 CLR 306 ...........................................................................................6.155 Koowarta v Bjelke-​Petersen (1982) 153 CLR 168  ....................................2.15, 4.15, 4.35, 4.40, 4.65, 4.70, 4.75, 14.30 Koroitamana v Commonwealth (2006) 227 CLR 31 ...................................................................1.200 Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1  ................1.15, 1.20, 1.210, 6.150, 6.165, 6.175, 12.65, 12.85, 13.55, 13.75, 14.30, 14.35, 14.40, 14.55 Krygger v Williams (1912) 15 CLR 366 ........................................................................................12.85 Kuczborski v Queensland (2014) 254 CLR 51  ................................................................. 6.112, 6.125 Ku-​ring-​gai Co-​operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134  ........................................................................................................................3.30

L Lane v Morrison (2009) 239 CLR 230  ...................................................................................6.60, 6.85 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520  .....1.180, 13.15, 13.20, 13.25, 13.30, 13.35, 13.40, 13.45, 13.50, 13.70 Langer v Commonwealth (1996) 186 CLR 302  ...............................................................13.35, 13.70 Leask v Commonwealth (1996) 187 CLR 579  .................................2.20, 2.25, 2.40, 2.45, 2.50, 2.55, 10.35, 14.75, 14.80 Leeth v Commonwealth (1992) 174 CLR 455  ........................1.180, 6.165, 8.45, 12.95, 14.40, 14.55 Levy v Victoria (1997) 189 CLR 579  ..................................................................................13.30, 13.35 Li Chia Hsing v Rankin (1978) 141 CLR 182 ...............................................................................12.65 Liyanage v The Queen [1967] 1 AC 259 .......................................................................................6.145 Lockner v New York 198 US 45 (1905) ......................................................................................... 11.25 Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 ............................................................9.70 Luton v Lessels (2002) 210 CLR 333  .................................................6.15, 6.20, 6.25, 6.35, 6.40, 9.10

M MG Kailis v Western Australia (1974) 130 CLR 245 .....................................................................9.35 Mabo v Queensland (No 1) (1988) 166 CLR 186  .................................................................7.30, 7.55 Mabo v Queensland (No 2) (1992) 175 CLR 1  ..................1.65, 1.180, 4.30, 6.10, 7.30, 14.15, 14.30 MacCormick v FCT (1984) 158 CLR 622  ............................................................................9.10, 12.40 MacLeod v Attorney-​General for New South Wales [1891] AC 455  .....................................................................................................................1.75, 4.10 Magaming v The Queen (2013) 252 CLR 381  ...........................................................6.45, 6.65, 6.155 Maguire v Simpson (1977) 139 CLR 362 .............................................................................1.200, 8.75 Malone v Metropolitan Police Commissioner [1979] Ch 344  ...........................................1.20, 5.50 Marbury v Madison 5 US (1 Cranch) 137 (1803) ........................................................................1.175 Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263  ......................................9.10, 9.25 McBain v Victoria (2000) 99 FCR 116 ..............................................................................................7.25 McCawley v The King (1920) 28 CLR 106  ...........................................................................1.15, 1.75 McGinty v Western Australia (1996) 186 CLR 140  ..............................................13.20, 13.65, 13.70 McGuire v Simpson (1977) 139 CLR 362 ......................................................................................1.200 McLean, Ex parte (1930) 43 CLR 472  ..................................................................7.10, 7.35, 7.45, 7.65 McCloy v New South Wales (2015) 257 CLR 178  .................2.55, 13.30, 13.35, 13.40, 14.80, 14.85

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Table of Cases

xix

McWaters v Day (1989) 168 CLR 289 ..............................................................................................7.65 Melbourne Corporation v Commonwealth (State Banking case) (1947) 74 CLR 31  ................................................................1.225, 2.20, 8.05, 8.25, 8.30, 8.35, 8.45, 8.50, 8.85, 8.90, 10.30 Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association (No 3) (1920) 28 CLR 495 .......................................................................4.10 Millar v Commissioner of Stamp Duties (1932) 48 CLR 618 .......................................................4.10 Miller v TCN Channel Nine (1986) 161 CLR 556  ............................................................ 11.25, 11.30 Minister for Arts, Heritage and the Environment v Peko-Wallsend (1987) 15 FCR 274  ........5.45 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273  .......................4.25, 4.30 Minister for Immigration and Multicultural and Indigeous Affairs v Al-​Khafaji (2004) 219 CLR 664 .................................................................................................6.150 Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 ..........................................................................................................................4.30 Minister for The Army v Dalziel (1944) 68 CLR 261 ..................................................................12.15 Mistretta v United States 488 US 361 (1989) ................................................................................6.125 Mobil Oil v Victoria (2002) 211 CLR 1 ............................................................................................4.10 Momcilovic v The Queen (2011) 245 CLR 1  ....................... 6.25, 6.30, 6.35, 6.95, 6.112, 6.130, 7.65 Monarch Airlines v Airservices Australia (1997) 72 FCR 534 .....................................................9.10 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4  ............................13.30, 13.35, 13.75, 14.90 Mulholland v Australian Electoral Commission (2004) 220 CLR 181  ..............13.35, 13.50, 13.70 Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208  ..............................2.35, 10.30 Murphy v Electoral Commissioner (2016) 261 CLR 28  .......................................13.40, 13.70, 14.80 Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1  ........................2.20, 2.50

N NSW v Bardolph (1934) 52 CLR 455 ...............................................................................................5.55 NSW v Commonwealth (Wheat case) (1915) 20 CLR 54  ............................................................6.60 Nash (No 2), Re (2017) 91 ALJR 1209 ...........................................................................................1.195 Nationwide News v Wills (1992) 177 CLR 1  .............................................. 2.55, 11.75, 13.15, 13.20, 13.35, 13.45, 13.55, 13.75, 14.75 Native Title Act case  .........................................................see Western Australia v Commonwealth Nelson (No 1), Ex Parte (1928) 42 CLR 209 ................................................................................. 11.20 Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 .......................................................12.45 New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR 482  .................................................................................................1.180, 3.70, 5.75 New South Wales v Commonwealth (Seas and Submerged Lands case) (1975) 135 CLR 337 ......................................................................................................................4.10 New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1  ...................................................................1.185, 1.195, 1.200, 1.225, 2.15, 3.05, 3.20, 3.40, 3.50, 3.55, 3.60, 3.65, 3.70, 3.75, 3.80, 5.25, 7.55 New South Wales v Kable (Kable No 2) (2013) 252 CLR 118; [2013] HCA 26  ..............1.235, 6.10 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513  .......................................................................1.230, 12.25, 12.35, 12.50, 12.55 Ngo Ngo Ha v NSW (1997) 189 CLR 465  ...........1.180, 5.90, 9.15, 9.20, 9.35, 9.40, 9.65, 9.70, 9.75 Nicholas v Commonwealth (2011) 244 CLR 66 .............................................................................6.85 Nicholas v The Queen (1998) 193 CLR 173  ...................................................................... 6.110, 6.165 Nintendo v Centronic (1994) 181 CLR 134  ......................................................................12.40, 12.50 Nolan, Re; Ex parte Young (1991) 172 CLR 460 ............................................................................6.85

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Northern Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569  ....................................................... 6.112, 6.125, 6.145, 6.150, 6.175 North Australian Aboriginal Legal Aid Services v Bradley (2004) 218 CLR 146  ..................6.175 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 ......................................................................................................................2.20 Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 ......................................................................................................................14.35 Nulyarimma v Thompson (1999) 96 FCR 153  ...................................................................4.70, 14.35

O O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565  ..............................................2.30, 7.40, 7.60 O’Sullivan v Noarlunga Meat Ltd (No 2) (1956) 94 CLR 367 .....................................................7.60 Oates v Attorney-​General (2003) 214 CLR 496 .............................................................................5.45

P PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382  ..........................................10.35, 12.20 PMA  ............................................................................... see Victoria v Commonwealth and Connor Pacific Coal Pty Ltd, Re; Ex Parte Construction, Mining and Energy Union (2000) 203 CLR 346  ................................................................................................3.55, 3.60 Palmer v Ayres (2017) 259 CLR 478 .......................................................................................6.10, 6.40 Palmdale AGCI v Workers Compensation Commission (NSW) (1978) 140 CLR 236 .............7.55 Pape v FCT (2009) 238 CLR 1  .......1.200, 4.45, 4.60, 4.65, 5.35, 5.70, 5.75, 5.85, 10.50, 10.55, 10.60 Parton v Milk Board (Victoria) (1949) 80 CLR 229  ..........................................9.20, 9.25, 9.30, 9.35, 9.40, 9.50, 9.65, 9.70, 9.75 Patterson, Ex parte Taylor, Re (2001) 207 CLR 391 .....................................................................1.220 Payroll Tax case  .................................................................................. see Victoria v Commonwealth Peanut Board v Rockhampton Harbour Board (1933) 48 CLR 266 .......................................... 11.20 Pearce v Florenca (1976) 135 CLR 507  ..................................................................................1.75, 4.10 Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388  ...................................................................................................................14.45 Permewan Wright Consolidated Pty Ltd v Trewhitt (1979) 145 CLR 1  ......................... 2.30, 11.25 Peterswald v Bartley (1904) 1 CLR 497  ..............................................................9.25, 9.35, 9.50, 9.70 Pharmaceutical Benefits case  ....................... see A-​G for Victoria (Ex rel Dale) v Commonwealth Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399  ............................................................................... 9.55, 9.60, 9.65, 9.70, 11.45 Pirrie v McFarlane (1925) 36 CLR 170  ................................................................8.60, 8.65, 8.80, 8.85 Plantiff M68/​2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42  .........................................................................................5.63, 6.150 Plaintiff M76-​2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322  .....................................................1.15, 1.220, 6.150 Plaintiff S4/2014 v Minister for Immigration (2014) 253 CLR 219 ...........................................6.150 Plaintiff S156/2013 v Commonwealth (2014) 254 CLR 28 ..........................................................2.55 Plaintiff S157/​2002 v Commonwealth (2003) 211 CLR 476 ................................................1.20, 6.10 Plaintiff S195/2016 v Minister of Immigration and Border Protection (2017) 261 CLR 622 ............................................................................................................................... 4.30 Polites v Commonwealth (1945) 70 CLR 60 ................................................................................1.230 Polyukhovich v Commonwealth (1991) 172 CLR 501  ............................................4.10, 6.10, 6.160 Port MacDonnell Professional Fisherman’s Association Inc v South Australia (1989) 168 CLR 340  ..............................................................................1.165, 4.10

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Precision Data Holdings Ltd v Wills (1991) 173 CLR 167  .................................................6.30, 6.45 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 .............................6.10 Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 .................................5.90 Public Service Association of SA v Industrial Relations Commission of SA (2012) 249 CLR 398; [2012] HCA 25 ...................................................................1.235, 6.120 Putland v The Queen (2004) 218 CLR 174 ...................................................................................6.165 Pye v Renshaw (1951) 84 CLR 58 ..................................................................................................10.35

Q Queensland v Commonwealth (Second Territorial Senators case) (1977) 139 CLR 585  .............................................................................................1.100, 1.195, 1.220 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192  .................................................. 8.10, 8.35, 8.40, 8.45, 8.50, 8.85, 11.35, 14.45 Queensland Nickel v Commonwealth (2015) 255 CLR 252  .....................................................14.45

R R v Archdall and Roskruge (1928) 41 CLR 128 ...........................................................................12.65 R v Barger (1908) 6 CLR 41  ................................................................................2.10, 2.15, 2.20, 14.40 R v Bernasconi (1915) 19 CLR 629  .....................................................................................1.135, 12.65 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 453 ..........................................................6.85 R v Burah (1878) 3 App Cas 889 ......................................................................................................1.75 R v Burgess; Ex parte Henry (1936) 55 CLR 608  ...............................................2.30, 4.35, 4.55, 4.60 R v Coldham; Ex parte Australian Social Welfare Union (1993) 153 CLR 297 .........................8.50 R v Connare; Ex parte Wawn (1939) 61 CLR 596 ........................................................................ 11.75 R v Cox, ex parte Smith (1945) 71 CLR 1 .......................................................................................6.85 R v Credit Tribunal; Ex parte General Motors Acceptance Corp (1977) 137 CLR 54  ..............................................................................................................7.55, 7.65 R v Davison (1954) 90 CLR 353  .............................................................................................6.25, 6.40 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 ......................................................................................................................5.80 R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556  ..........................12.65 R v Hughes (2000) 202 CLR 535  ..........................................................................3.70, 5.75, 5.80, 5.85 R v Joske; Ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87 .................................................................6.70 R v Joske; Ex parte Shop Distributive and Allied Employees Association (1976) 135 CLR 194 ......................................................................................................................6.95 R v Judges of Federal Court and Adamson; Ex Parte Western Australian National Football League and West Perth Football Club (1979) 143 CLR 190  ...................................3.25 R v Kidman (1915) 20 CLR 425 ......................................................................................................6.160 R v Kirby; Ex parte Boilermakers Society of Australia (Boilermakers case) (1956) 94 CLR 254  ...............................................................................1.225, 6.65, 6.70, 6.95, 6.100 R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 ........................................7.25 R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338  ..................................................7.60, 7.65 R v Ng (2003) 217 CLR 521 ............................................................................................................12.65 R v Pearson; Ex parte Sipka (1983) 152 CLR 254  ..........................................................1.150, 12.105 R v Quinn; Ex parte Consolidated Foods (1977) 138 CLR 1  .............................................6.35, 6.40 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 ...........................................6.85 R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2)  [1991] 1 AC 603 ............................................................................................................................1.15

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xxii

Federal Constitutional Law: A Contemporary View

R v Sharkey (1949) 79 CLR 121  ............................................................................4.15, 5.60, 5.70, 5.75 R v Smithers; Ex parte Benson (1912) 16 CLR 99 ........................................................................ 11.75 R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277  .....................................................................................................................6.30 R v Spicer; Ex parte Waterside Workers Federation (1957) 100 CLR 312  .................................6.30 R v Sutton (1908) 5 CLR 789 ............................................................................................................8.15 R v Tang (2008) 237 CLR 1 ...............................................................................................................4.55 R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533  .....................................................................................................................3.25 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361  ...................................................................................................6.30, 6.35, 6.40 R v White; Ex parte Byrnes (1963) 109 CLR 665 ...........................................................................6.85 R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 .................................................................7.65 R v Young [1995] QB 324 ................................................................................................................12.65 R (Bancoult) v Foreign Secretary (no 2) [2008] 3 WLR 955 .........................................................5.45 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) ..................................................................................................................1.15 R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 ..............................13.35 Railway Servants’ case  .................................................. see Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association Residential Tenancies Tribunal (NSW), Re; Ex parte Defence Housing Authority (1997) 190 CLR 410  ...............................................................5.90, 7.60, 8.80, 8.85, 8.90 Richardson v Forestry Commission (1988) 164 CLR 261  .................................4.35, 4.45, 4.55, 8.45 Roach v Electoral Commissioner (2007) 233 CLR 162  ........................................1.180, 13.60, 13.70 Rola Company (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 ......................6.15, 6.20 Rowan v United States Post Office Department 397 US 728  ...................................................13.35 Rowe v Electoral Commissioner (2010) 243 CLR 1  .................................. 11.55, 13.70, 14.60, 14.70 Roy Morgan Research v FCT (2011) 244 CLR 97 ..........................................................................9.10 Royal North Shore Hospital of Sydney v Attorney-​General (NSW) (1938) 60 CLR 396 ......................................................................................................................13.45 Ruddock v Vadarlis (2001) 110 FCR 491  .....................................................................5.45, 5.60, 5.63

S SGH v Commissioner of Taxation (2002) 210 CLR 51 ................................................................1.185 Sachter v Attorney-General (Cth) (1954) 94 CLR 86  .................................................................12.65 Seas and Submerged Lands case  .................................... see New South Wales v Commonwealth Second Fringe Benefits Tax case  ........................ see State Chamber of Commerce and Industry v Commonwealth Second Territorial Senators case  ................................................ see Queensland v Commonwealth Second Uniform Tax case  .................................................................. see Victoria v Commonwealth Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28  ..........................................................................................................1.170, 1.220 Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 .....................................8.75 Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 ................6.20 Shipwrecks case  .................................................................................. see Victoria v Commonwealth Singh v Commonwealth (2004) 222 CLR 322 ..............................................................................1.200 Smith v ANL Ltd (2000) 204 CLR 493  .............................................12.10, 12.20, 12.25, 12.30, 12.45 Snowdon v Dondas (No 2) (1996) 188 CLR 48 ............................................................................13.70 South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373  ...........................................................................1.180, 2.20, 10.30, 10.35, 14.75

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Table of Cases

xxiii

South Australia v Totani (2010) 242 CLR 1  ............................................... 1.180, 6.112, 6.115, 6.125, 6.140, 6.180 Sportsbet v NSW (2012) 249 CLR 298  ............................................................................... 11.65, 11.80 Spratt v Hermes (1965) 114 CLR 226  ................................................................................6.175, 12.65 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253  ........................................................................4.10, 5.90 State Banking case  .................................................. see Melbourne Corporation v Commonwealth State Chamber of Commerce and Industry v Commonwealth (Second Fringe Benefits Tax case) (1987) 163 CLR 329 ...........................................................2.20 State Public Services Federation, Re; Ex parte Attorney-​General (WA) (1993) 178 CLR 249 ............................................................................................................8.50 State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 .............................................................................................................3.30, 3.35 Stenhouse v Coleman (1944) 69 CLR 457 ......................................................................................2.50 Stephens v West Australian Newspapers (1994) 182 CLR 211  .........................1.180, 13.15, 13.20, 13.35, 13.45, 13.75 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 ...............................................................7.70 Stolen Generation case  ........................................................................see Kruger v Commonwealth Street v Queensland Bar Association (1989) 168 CLR 461  .....................12.05, 12.95, 12.100, 14.45 Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes case) (1971) 124 CLR 468  ...................................................................................................3.05, 3.10, 3.70 Sue v Hill (1999) 199 CLR 462  ...........................................................................................1.170, 1.200 Sweedman v Transport Accident Commission (2006) 226 CLR 362  ...................4.10, 12.95, 14.45 Swift Australian Co Pty Ltd v Boyd-​Parkinson (1962) 108 CLR 189 .........................................2.30 Sykes v Cleary (No 2) (1992) 176 CLR 77 .....................................................................................1.225

T T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 ........................................................7.60 TCL Air Conditioner (Zhongshan) Co Ltd v Federal Court (2013) 251 CLR 533 ......................................................................................................................6.40 Tasmanian Dam case  .......................................................................see Commonwealth v Tasmania Tajjour v NSW (2014) 254 CLR 508 .........................................................................13.35, 13.55, 14.85 Telstra Corporation v Commonwealth (2008) 234 CLR 210 .....................................................12.35 Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 ..............................................................7.70 Teori Tau v Commonwealth (1969) 119 CLR 564  ............................................................1.135, 12.55 Territorial Senators case (First)  .......................................see Western Australia v Commonwealth Territorial Senators case (Second)  ............................................ see Queensland v Commonwealth Theophanous v Commonwealth (2006) 225 CLR 101  .........................................12.40, 13.20, 13.30 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104  ..........................1.180, 1.200, 13.15, 13.20, 13.35, 13.50, 13.75 Thomas v Mowbray (2007) 233 CLR 307  .............................................1.180, 1.230, 2.50, 4.15, 4.50, 6.10, 6.30, 6.35, 6.40, 6.112, 6.140, 6.150, 13.10 Thompson, Re; Ex parte Nulyarimma (1998) 148 FLR 285 .......................................................14.35 Tickner v Chapman (1995) 57 FCR 451 ........................................................................................14.30 Toonen v Australia (1994) 1(3) International Human Rights Reports 97 ..................................4.25 Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 ......................................................................................................................5.90 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518 ..............................................................................6.85 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 .......................................12.25 Tyler, Re; Ex parte Foley (1994) 181 CLR 18 ..................................................................................6.85

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xxiv

Federal Constitutional Law: A Contemporary View

U Uebergang v Australian Wheat Board (1980) 145 CLR 266  .......................................... 11.25, 11.50 Uniform Tax case (First)  ......................................................see South Australia v Commonwealth Uniform Tax case (Second)  .............................................................. see Victoria v Commonwealth Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1  ......................1.15, 1.75, 4.10 Unions NSW v NSW (Unions NSW [No 1]) (2013) 252 CLR 530  .................................13.30, 14.85 University of Wollongong v Metwally (1984) 158 CLR 447 ........................................................7.55 Uther v FCT (1947) 74 CLR 509  ...........................................................................8.60, 8.65, 8.70, 8.85

V Vadarlis v MIMIA and Others, M/93/2001, 27 November 2001 ...............................................5.60 Vasiljkovic v Commonwealth (2006) 227 CLR 614 .......................................................................4.15 Veen v The Queen (No 2) (1988) 164 CLR 465 ............................................................................6.150 Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 .................................................................8.85 Victoria v Commonwealth (Federal Roads case) (1926) 38 CLR 399 ............................10.25, 10.35 Victoria v Commonwealth (ILO case) (1996) 187 CLR 416  ............................4.10, 4.45, 4.50, 4.55, 4.60, 8.50 Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353  ................2.15, 2.20, 8.30, 8.50 Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575  ............................................1.180, 2.35, 2.45, 10.25, 10.30, 10.35, 14.60, 14.75 Victoria v Commonwealth (Shipwrecks case) (1937) 58 CLR 618  ..................7.40, 7.45, 7.55, 7.60 Victoria v Commonwealth and Connor (“PMA”) (1975) 134 CLR 81 .....................................1.105 Victoria v Commonwealth and Hayden (AAP case) (1975) 134 CLR 338  ......................5.70, 5.75, 10.50, 10.55 Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 413 .....................2.50 Victorian Council of Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452 .................................................................................5.60 Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73 ....................5.25 Viskauskas v Niland (1983) 153 CLR 280  ...................................................................7.55, 7.60, 7.65 Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381 ......................................................................................................................6.45

W W & A McArthur Ltd v Queensland (1920) 28 CLR 530  ...................................... 2.30, 11.15, 11.25 W R Moran Pty Ltd v DFCT (NSW) (1940) 63 CLR 338 ............................................................10.35 WA v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 ............................................................9.35 WA v Hamersley Iron Pty Ltd (1969) 120 CLR 42 ........................................................................9.35 Wainohu v NSW (2011) 243 CLR 181  ............. 1.180, 6.100, 6.112, 6.115, 6.130, 6.140, 6.180, 13.55 Wakim, Re; Ex parte McNally (1999) 198 CLR 511  .........................................6.70, 6.75, 6.95, 6.180 Walker v NSW (1994) 182 CLR 45  .......................................................................................1.65, 14.15 Waters v Public Transport Corporation (1991) 173 CLR 349 ....................................................14.50 Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434  ............................................................................................6.15, 6.35, 6.60, 6.65 Welker v Hewett (1969) 120 CLR 503 .............................................................................................4.10 Wenn v Attorney-​General for Victoria (1948) 77 CLR 84  .........................................7.15, 7.55, 7.60 West v Commissioner of Taxation (1937) 56 CLR 657 ..................................................................7.55

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Table of Cases

xxv

Western Australia v Commonwealth (First Territorial Senators case) (1975) 134 CLR 201  ...........................................................1.100, 1.105, 1.185, 1.190, 1.195, 1.200, 1.205, 1.210, 1.215, 1.220, 13.65 Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373  ........................................................................................7.30, 7.55, 8.50, 14.30 Wheat case  ................................................................................................see NSW v Commonwealth White v Director of Military Prosecutions (2007) 231 CLR 570 ..................................................6.85 Wik Peoples v Queensland (1996) 187 CLR 1 .............................................................................1.180 Wilkie v Cormann (2017) 91 ALJR 1035; 349 ALR 1  .......................................................10.50, 10.55 Williams v Commonwealth (2012) 248 CLR 156  ....................................................1.100, 5.50, 5.55, 5.70, 5.85, 10.50, 10.55, 12.90 Williams v Commonwealth (No 2) (2014) 252 CLR 416 ........................3.75, 5.55, 5.70, 5.85, 10.55 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island case) (1996) 189 CLR 1  ..........................................6.100, 6.110, 6.112, 6.115, 6.130, 6.140, 6.160, 14.30 Woolley, Re; Ex parte Applicants M276/​2003 by their next friend GS (2004) 225 CLR 1 ........................................................................................................................6.150 Work Choices case  ............................................................. see New South Wales v Commonwealth Wotton v Queensland (2012) 246 CLR 1  ....................................................13.30, 13.35, 13.45, 13.75 Wragg v NSW (1953) 88 CLR 353  ....................................................................................... 2.30, 11.25 Wurridjal v Commonwealth (2009) 237 CLR 309  ....................................1.135, 12.15, 12.35, 12.45, 12.55, 12.60, 14.30

X XYZ v Commonwealth (2006) 227 CLR 532  ......................................................................1.200, 4.10

Y Yanner v Eaton (1999) 201 CLR 351 ................................................................................................7.65 Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ..............................14.15, 14.20

Z Zarb v Kennedy (1968) 121 CLR 283 ............................................................................................12.65

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Table of Statutes Commonwealth A New Tax System (Commonwealth-​State Relations) Act 1999: 10.20

s 5: 1.165 s 11: 1.175 s 12: 1.165 s 15: 1.165

A New Tax System (Tax Administration) Act 1999: 9.75, 10.20

Australia (Request and Consent) Act 1985: 1.165

Aboriginal Land Rights (Northern Territory) Act 1976: 12.15

Australian Bicentennial Authority Act 1980 s 22: 5.75

Aboriginal and Torres Strait Islander Heritage Protection Act 1984: 14.30 s 9: 14.30 s 10: 14.30 s 10(1)(c): 6.100 Aboriginal and Torres Strait Islander Peoples Recognition Act 2013: 14.35 Acts Interpretation Act 1901 s 15A: 1.235 s 30: 7.65 s 48: 5.25 Air Navigation Regulations 1947: 2.30, 7.40 reg 198: 2.30 reg 199: 2.30 reg 200B: 2.30, 7.55 Appropriation Act (No 1) 1974-​75: 5.70

Australian Capital Territory (Self-​Government) Act  1988 s 28: 7.60 s 50(1): 12.40 Australian Charities and Not-​for-​ profits Commission (Consequential and Transitional) Act 2012: 13.45 Australian Industries Preservation Act 1906 s 5: 3.10 s 8: 3.10 Australian National Airlines Act 1945: 2.30 s 19: 2.30 s 19B: 2.30 s 19B(1): 2.30 s 19B(2): 2.30 Australian Securities and Investments Commission Act 2001: 3.70

Appropriation Act (No 1) 2017-2018: 10.55 s 10: 10.50 s 10(1): 10.50 s 10(2): 10.50 s 12: 10.50

Australian Security Intelligence Organisation Act 1979: 5.35

Australia Act 1986: 1.165 s 1: 1.165 s 2: 1.165 s 2(1): 1.165, 4.10 s 2(2): 1.165 s 3: 1.165 s 3(1): 1.165 s 3(2): 1.165 s 4: 1.165

Banking Act 1947: 11.25, 12.25 Pt IV, Div 3: 12.25

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Banking Act 1945 s 48: 8.30, 8.35

Border Protection (Validation and Enforcement Powers) Act 2001: 5.60 Broadcasting and Television Act 1942: 7.45, 7.60, 13.20 Pt IIID: 13.20

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xxviii

Federal Constitutional Law: A Contemporary View

Builders Labourers Federation (Cancellation of Registration) Act 1986: 6.145 Census and Statistics Act 1905 s 9: 10.50 Charities Act 2013: 13.45 Circuit Layouts Act 1989: 12.40 Civil Aviation Act 1988: 12.40 Coastal Waters (State Powers) Act 1980: 4.10 Commerce (Meat Export) Regulations: 2.30, 7.40 reg 5: 2.30 Commonwealth Electoral Act 1918: 12.105, 13.50, 13.65, 13.70 s 101(4): 13.70 s 101(7): 13.70 s 245: 13.70 Commonwealth Electoral (Wartime) Act 1917: 7.25 Commonwealth Employees’ Rehabilitation and Compensation Act 1988 s 44: 12.30 Commonwealth Franchise Act 1902: 12.105 Commonwealth Places (Mirror Taxes) Act 1998: 14.45, 14.50 Commonwealth Prisoners Act 1967 s 4: 6.165 Commonwealth of Australia Constitution s 1: 1.90 s 2: 1.90, 5.10 s 3: 1.160 s 5: 1.25, 1.90, 1.105, 14.45 s 7: 1.100, 1.190, 1.195, 12.105, 13.20, 13.70 s 8: 12.105 s 10: 1.160 s 11: 4.10 s 22: 1.105 s 24: 1.35, 1.95, 1.105, 1.195, 12.105, 13.20, 13.65, 13.70, 14.20, 14.80 s 25: 14.20, 14.35 s 30: 12.105 s 39: 1.105 s 41: 1.150, 1.200, 12.105, 12.110 s 44: 1.100, 1.195, 1.225 s 44(i): 1.195, 1.225

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s 44(ii): 1.195, 13.70 s 44(iii): 1.195 s 44(iv): 1.195 s 44(v): 1.195 s 48: 12.40 s 49: 6.85 s 51: 1.55, 1.110, 1.130, 2.05, 2.25, 7.60, 10.25, 10.35, 10.50, 10.55, 12.55 s 51(i): 2.05, 2.20, 2.30, 2.45, 2.50, 3.10, 3.70, 5.80, 7.40, 10.25, 12.40 s 51(ii): 1.55, 2.05, 2.10, 2.15, 2.20, 2.35, 2.45, 2.50, 5.70, 9.05, 10.05, 10.30, 10.35, 10.40, 10.55, 12.40, 14.40, 14.45, 14.50, 14.55, 14.60, 14.75 s 51(iii): 9.05, 14.40 s 51(v): 2.35 s 51(vi): 2.50, 5.35, 6.85, 8.15, 10.30, 10.35, 13.10, 14.75 s 51(x): 12.40 s 51(xii): 2.45 s 51(xiii): 8.30 s 51(xvii): 12.40 s 51(xviii): 12.40 s 51(xix): 1.170, 1.200, 6.150, 12.50, 14.75 s 51(xx): 1.55, 1.195, 1.200, 1.225, 2.15, 2.20, 2.30, 2.40, 3.05, 3.10, 3.15, 3.20, 3.25, 3.30, 3.40, 3.45, 3.50, 3.55, 3.60, 3.70, 3.80 s 51(xxi): 1.150, 1.200 s 51(xxii): 1.150 s 51(xxiii): 1.150, 5.70 s 51(xxiiiA): 1.150, 5.70, 10.50 10.55s 51(xxvi): 1.150, 2.50, 14.20, 14.30, 14.35, 14.75 s 51(xxix): 1.55, 1.200, 2.20, 2.50, 4.05, 4.10, 4.15, 4.35, 4.45, 4.50, 4.55, 4.60, 4.65, 4.70, 4.75, 5.80, 6.160, 8.45, 12.40, 12.55, 14.30, 14.75 s 51(xxxi): 1.135, 10.35, 10.40, 11.25, 12.05, 12.10, 12.15, 12.20, 12.25, 12.30, 12.35, 12.40, 12.45, 12.50, 12.55, 12.60, 12.110, 13.20, 14.30, 14.80 s 51(xxxv): 1.195, 1.200, 2.15, 2.20, 2.55, 3.55, 3.60, 4.10, 5.80, 8.20, 8.45, 8.50, 13.20, 14.75 s 51(xxxvi): 12.40, 12.105 s 51(xxxvii): 3.70, 13.10 s 51(xxxviii): 1.165 s 51(xxxix): 2.25, 2.50, 5.35, 5.70, 5.75, 10.55 s 52: 1.110, 2.05, 7.05, 10.50, 10.55 s 52(i): 7.60, 14.45

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Table of Statutes Commonwealth of Australia Constitution — cont

s 52(ii): 7.60 s 53: 1.45, 1.105, 1.165 s 55: 9.10 s 57: 1.105, 1.145, 1.165, 5.15 s 58: 1.25, 1.105 s 59: 1.75 s 61: 1.115, 1.200, 2.50, 5.10, 5.20, 5.25, 5.30, 5.35, 5.45, 5.60, 5.70, 5.75, 8.85, 10.50, 10.55 s 62: 1.115, 5.10 s 63: 5.10 s 64: 1.25, 1.50, 1.115, 5.10, 5.30, 5.55 s 67: 5.30 s 71: 1.120, 6.10, 6.55, 6.60 s 72: 1.120, 5.30, 6.60, 6.175 s 72(i): 1.180 s 73: 1.120, 1.200, 6.50, 6.125 s 75: 1.120, 6.50, 6.70, 7.10 s 75(iv): 6.50, 6.125, 6.130 s 75(v): 6.10 s 76: 1.120, 6.10, 6.50, 6.70, 6.125 s 76(iv): 6.50, 6.125, 6.130 s 77: 6.50, 6.70, 6.125 s 77(ii): 6.125 s 80: 1.120, 1.135, 1.200, 7.65, 12.05, 12.65, 12.95, 12.110 s 81: 1.45, 1.125, 1.200, 2.05, 5.70, 5.85, 10.50, 10.55, 10.60 s 83: 1.45, 1.125, 1.200, 5.70, 5.85, 10.50, 10.55 s 86: 5.30 s 88: 9.20 ss 88 to 92: 1.125 s 90: 1.15, 1.55, 1.80, 1.180, 1.220, 2.10, 9.05, 9.20, 9.25, 9.35, 9.40, 9.60, 9.70, 9.75, 10.05, 10.35, 11.25, 11.45, 14.45 s 92: 1.15, 1.80, 1.180, 1.200, 2.30, 9.05, 9.55, 9.70, 11.05, 11.10, 11.15, 11.20, 11.25, 11.30, 11.35, 11.40, 11.45, 11.50, 11.55, 11.60, 11.65, 11.70, 11.75, 11.80, 12.05, 12.10, 12.95, 13.55, 14.40, 14.45, 14.50, 14.55, 14.60 s 93: 9.25 s 94: 10.50 s 96: 1.55, 1.125, 1.180, 2.05, 5.70, 9.65, 9.75, 10.05, 10.10, 10.15, 10.20, 10.25, 10.30, 10.35, 10.40, 10.50, 10.55, 10.60, 12.20, 12.80 s 99: 6.165, 10.25, 10.30, 10.35, 10.40, 11.35, 14.40, 14.45, 14.50, 14.55

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xxix

s 101: 6.60 s 103: 6.60 s 105: 1.125 s 105A: 1.125, 10.05 s 106: 1.130 s 107: 1.130, 8.65 s 109: 1.55, 1.130, 2.30, 5.55, 6.125, 7.05, 7.10, 7.15, 7.20, 7.25, 7.30, 7.35, 7.55, 7.60, 7.65, 7.70, 7.75, 8.65, 8.85, 11.80 s 116: 1.130, 2.60, 3.10, 8.25, 10.35, 10.40, 12.05, 12.70, 12.75, 12.80, 12.85, 12.90, 12.95, 12.110, 14.60, 14.80 s 117: 1.130, 12.05, 12.95, 12.100, 12.110, 13.50, 14.40, 14.45, 14.50, 14.55 s 119: 2.50 s 120: 6.165 s 121: 1.135, 1.195 s 122: 1.55, 1.135, 1.190, 1.195, 1.205, 2.30, 3.55, 3.70, 6.165, 6.175, 7.10, 10.55, 12.55, 12.65, 13.60, 13.70, 14.20, 14.30 s 125: 1.140 s 126: 1.140 s 127: 1.140, 1.150, 14.20, 14.25, 14.35 s 128: 1.145, 1.160, 1.165, 1.195, 1.200 Ch I: 1.90 Ch I, Pt I: 1.90 Ch I, Pt II:: 1.100, 9.40, 6.25 Ch I, Pt III: 1.95, 1.100, 6.25 Ch I, Pt IV: 1.100 Ch I, Pt V: 1.105, 1.110 Ch II: 1.115, 5.05, 5.10, 5.100 Ch III: 1.120, 1.180, 1.230, 5.90, 6.05, 6.55, 6.60, 6.65, 6.70, 6.80, 6.85, 6.90, 6.105, 6.112, 6.120, 6.130, 6.135, 6.140, 6.150, 6.155, 6.160, 6.165, 6.170, 6.175, 6.180, 10.50, 12.65, 13.30 Ch IV: 1.125, 9.65 Ch V: 1.130 Ch VI: 1.135 Ch VII: 1.140 Ch VIII: 1.145 Communist Party Dissolution Act 1950: 2.50, 5.75, 13.10 s 4: 2.50 s 5: 2.50 s 6: 2.50 s 9: 2.50 ss 10 to 14: 2.50 Company Law Review Act 1998: 3.35

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xxx

Federal Constitutional Law: A Contemporary View

Conciliation and Arbitration Act 1904: 6.65, 6.95, 7.30, 7.60, 8.15, 8.20 s 25: 6.65 s 29: 6.65 s 29A: 6.65 s 37: 6.30 s 140: 6.30

Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000: 5.35

Conciliation and Arbitration (Electricity Industry) Act 1985: 8.35 s 6: 8.35 s 6(1): 8.35, 8.45 s 6(2): 8.35, 8.45

Emergency Response Act 2007: 12.15

Corporations Act 1989: 3.70

Excise Tariff Act 1906: 2.10 s 2: 2.10, 2.15

Corporations Act 2001: 3.70, 6.15 s 112(4): 3.35 s 125: 3.35 Crimes Act 1914: 6.160, 7.60 s 11: 7.65 s 50BA: 4.10 s 50BC: 4.10 Criminal Code 1995: 6.10, 13.10 s 11.5: 7.65 s 104.4: 2.50, 6.10 s 300.4: 7.65 s 302.4: 7.65 s 471.12: 13.35 Div 100: 2.50 Div 104: 2.50, 6.10 Div 270: 4.55 Crimes (Foreign Incursions and Recruitment) Act 1978 s 6: 4.10 s 6(1)(a): 4.10 s 6(3)(aa): 4.10 s 7(1)(e): 4.10 Customs Act 1901: 2.20 s 262: 2.45 Customs (Prohibited Exports) Regulations 1958: 2.20 reg 9: 2.20 Defence Force Discipline Act 1982: 7.65 s 114: 6.85 Pt VII, Div III: 6.85

Dried Fruits Act 1928: 14.45 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006: 13.70

Environmental Protection (Impact of Proposals) Act 1974: 2.20 Excise Tariff Act 1902: 14.45

Fair Work (Registered Organisations) Act 2009: 6.145 s 26A: 6.145 Family Law Act 1975 s 35: 12.65 s 37A: 6.80 Federal Aid Roads Act 1926: 10.25 Financial Management and Accountability Act 1997 s 32B: 10.55 s 81: 10.55 s 83: 10.55 s 96: 10.60 Financial Transaction Reports Act 1988 s 31(1): 2.45 Forfeiture Act s 44(1)(a): 12.40 s 94: 12.40 Health Insurance Act 1973: 12.35 Health Insurance (Pathology Services) Amendment Act 1991: 12.35 High Court of Australia Act 1979 s 6: 1.180 s 7: 1.180 Hindmarsh Island Bridge Act 1997: 14.30 s 4: 14.30

Defence Housing Authority Act 1987: 8.85

Human Rights Act 1998: 1.15

Defence Legislation Amendment Act 2006: 6.85

Human Rights (Parliamentary Scrutiny) Act 2011: 12.110

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Table of Statutes

Income Tax Act 1942: 10.30 s 51(2): 10.30 Income Tax Assessment Act 1936: 10.35 s 221: 2.35, 10.30 s 221(1): 2.35 s 221(1)(a): 2.35, 2.45, 14.75 Income Tax (Wartime Arrangements) Act 1942: 10.30 Income Tax and Social Services Contribution Assessment Act 1936 s 23(j): 2.20 s 23(ja): 2.20 Industrial Relations Act 1988: 3.60, 13.20 s 111(1)(g): 8.45 s 111(1A): 8.45 s 127A: 3.60 s 127B: 3.60 s 127C(1): 3.60 s 127C(1)(a): 3.60 s 127C(1)(b): 3.60 s 127C(1)(c): 3.60 s 170BC(3): 4.60 s 299(1)(d)(ii): 2.55, 11.75

Migration Act 1958: 5.60, 6.150, 6.155, 11.75 s 54K: 6.150 s 54L: 6.150 s 54N: 6.150 s 54R: 6.150 s 189: 6.150 s 196: 6.150 s 198: 1.200, 6.150 s 198(1): 6.150 s 198(6): 6.150 s 198AHA: 5.63, 6.150 s 233: 6.155 s 233A: 6.155 s 233A(1): 6.155 s 233C: 6.155 s 233C(1): 6.155 Military Justice (Interim Measures) Act (No 2) 2009: 6.85 Sch 1, item 5: 6.85, 6.150 Minerals Resource Rent Tax Act 2012: 8.50 National Parks and Wildlife Conservation Act 1975: 12.25 s 10(1): 12.25

Intelligence Services Act 2001: 5.35

National Security Act 1939: 12.85

International Criminal Court (Consequential Amendments) Act 2002 Sch 1: 4.70

National Security (General) Regulations: 12.15

Judiciary Act 1903: 5.90, 5.100, 12.30 s 23: 9.35, 9.40 s 23(2)(a): 13.35 s 24: 12.65 s 57: 5.90, 12.30 s 58: 5.90, 12.30 s 64: 8.75, 8.85

Native Title Act 1993: 7.55, 8.50, 14.30 s 7(3): 7.55 s 19: 7.55

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987: 4.45 s 16: 4.45, 4.55 Life Insurance Act 1945: 7.45 Maritime Powers Act 2013 s 72(4): 5.63 Marriage Act 1961: 7.60 Matrimonial Causes Act 1956: 6.30

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National Security (Subversive Associations) Regulations: 12.85

Native Title Amendment Act 1998: 14.30 Northern Territory National Emergency Response Act 2007: 14.35 s 60(2): 12.45 s 60(3): 12.45 Northern Territory (Self-​Government) Act 1978: 7.60 s 49: 11.80 s 50: 12.35 s 50(1): 12.40, 12.55 Petroleum (Australia-​Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990: 12.35

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Federal Constitutional Law: A Contemporary View

Petroleum (Submerged Lands) Act 1963: 12.35 Petroleum and Minerals Authority Act 1973: 1.105 Pharmaceutical Benefits Act 1945: 10.50 Postal Services Act 1975: 7.60 Poultry Industry Levy Collection Act 1965: 14.45 s 5(1): 14.45 s 6(1): 14.45, 14.50

Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997: 8.55 Superannuation Guarantee Charge Act 1992: 9.10 Tax Bonus for Working Australians Act (No 2) 2009: 5.70, 10.55 Tax Bonus for Working Australians (Consequential Amendments) Act 2009: 5.70, 10.55

Public Governance, Performance and Accountability Act 2013: 10.55 s 32B: 10.55

Telecommunications (Interception) Act 1979 s 20: 6.100

Racial Discrimination Act 1975: 4.35, 6.60, 7.30, 7.55, 14.30, 14.35 s 6A: 7.55 s 10: 7.30 s 10(1): 7.30 s 132: 14.35

Territories Self-​Government Legislation Amendment Act 2011: 1.55

Re-​establishment and Employment Act 1945 s 24(2): 7.55 Restrictive Trade Practices Act 1971: 3.10 Senate (Representation of Territories) Act 1973: 1.100, 1.105, 1.190, 13.70 s 13: 1.100 s 44: 1.100 s 57: 1.100 Sex Discrimination Act 1984 s 22: 7.25 Spirits Act 1906-​1952 s 14: 2.35 s 16: 2.35

Tobacco Plain Packaging Act 2011: 12.25 Trade Practices Act 1965: 3.10 s 35: 3.10 ss 41 to 43: 3.10 Trade Practices Act 1974: 3.10, 3.25, 3.30, 3.50, 5.90 s 45D: 3.50 s 45D(1)(b)(i): 2.40, 3.50 s 45D(5): 2.40, 2.45, 3.60 s 75: 7.55 s 82(1): 3.60 s 127A: 3.60 s 127B: 3.60 s 127C(1)(a): 3.60 s 127C(1)(b): 3.60 s 127C(1)(c): 3.60 Transport Workers Act 1928 s 3: 5.25

States Grants (Income Tax Reimbursement) Act 1942: 10.30, 10.35

War Crimes Act 1945: 4.10 s 9: 6.160 s 9(1): 6.160

States Grants (Tax Reimbursement) Act 1946: 10.30

War Crimes Amendment Act 1988: 4.10

Statute of Westminster Adoption Act 1942: 1.160, 4.10, 6.160 Stevedoring Industry Act 1954: 6.30 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997: 8.55

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Wheat Industry Assistance Act 1938: 10.35 Workplace Relations Act 1996: 3.55, 6.145 s 152: 7.10 s 356: 5.25 s 497: 3.60 s 755: 3.60 s 755(1)(d)(i): 3.60

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Table of Statutes

s 755(1)(d)(iii): 3.60 s 755(1)(e)(i): 3.60 s 755(1)(e)(iii): 3.60 s 755(1)(f)(i): 3.60 s 755(1)(f)(iii): 3.60 Workplace Relations Amendment (Work Choices) Act 2005: 3.55 s 5: 3.55 s 6: 3.55 s 6(e): 3.55 World Heritage Properties Conservation Act 1983: 3.25, 3.50 s 6(2)(e): 5.75 s 7: 3.50 s 10: 3.50 s 10(2): 3.50 s 10(4): 3.50

Australian Capital Territory Australian Capital Territory (Self Government) Act 1988 s 69: 11.80 Human Rights Act 2004: 12.110, 14.95

New South Wales

xxxiii

Crimes (Criminal Organisations Control) Act 2009: 6.115 s 9: 6.115 s 13(2): 6.115 Pt 2: 6.115 Pt 3: 6.115 Criminal Assets Recovery Act 1990 s 10: 6.112 s 10(2): 6.112 s 10(3): 6.112 s 14: 6.110 s 14(1): 6.110 s 14(5)(b): 6.110 s 35: 6.110 s 35(1): 6.110 Dangerous Prisoners (Sexual Offenders) Act 2003 s 13: 6.110 Election Funding, Expenditures and Disclosures Act 1981: 13.30 s 95A(1): 13.40 s 95G(6): 13.30, 13.35 s 96D: 13.30, 13.35 s 96GA: 13.40 Div 2A: 13.40 Div 4A: 13.40

Air Transport Act 1964: 7.40

Environmental Planning and Assessment Act 1979: 7.45

Anti-​Discrimination Act 1977: 7.55, 7.60 s 49K(1): 7.45

Forty Four Hours Week Act 1925: 7.30

Building Industry Act 1985: 6.145

Independent Commission Against Corruption Act 1988 Sch 4, Pt 13: 6.112, 6.120

Business Franchise Licences (Tobacco) Act 1987: 9.65

Industrial Relations Act 1996 s 179(1): 6.120

Community Protection Act 1994: 1.235, 6.110, 6.125 s 3: 6.110 s 5: 6.110 s 72: 6.110

Limitations Act 1969: 8.75

Australia Acts (Request) Act 1986: 1.165

Companies Act 1936 s 282: 8.60, 8.65, 8.70 s 297: 8.60, 8.65, 8.70 Constitution: 6.105 Crimes (Administration of Sentences) Act 1999 s 74AA: 6.155 s 154A: 6.155

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Local Government Act 1919: 3.25 Long Service Leave Act 1955: 7.60 Marketing of Primary Products Act 1983: 11.50 Racing Administration Regulation 2005 cl 16(2): 11.45 Residential Tenancies Act 1987 s 24: 8.85 Sentencing Act 1989 s 13A: 6.110, 6.155 s 13A(2): 6.110

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xxxiv

Federal Constitutional Law: A Contemporary View

Sentencing Act 1989 — cont

s 13A(3)(a): 6.110 s 13A(3)(b): 6.110 s 13A(3A): 6.110

State Factories and Shops Act 1912: 7.30 Supreme Court Act 1970 s 27: 6.120 s 37: 6.120 Wheat Acquisition Act 1914: 6.60

Northern Territory Aboriginals Ordinance 1918: 6.150, 13.55 s 16: 6.150

Pt 4: 6.125 Pt 4A: 6.125 Motor Vehicles Insurance Act 1936 s 20: 12.100 Queensland Coast Islands Declaratory Act 1985: 7.30 Queensland Rail Transit Authority Act 2013 s 6(2): 3.25 Subcontractors’ Charges Act 1974: 8.75 Traffic Act 1949: 7.65 Vagrants, Gaming and Other Offences Act 1931 s 7(1)(d): 13.30, 13.35

Criminal Property Forfeiture Act 2002 s 44: 6.112 s 50(1): 12.40 s 94(1): 6.112, 12.40

Australia Acts (Request) Act 1986: 1.165

Mining Ordinance 1939: 12.25

Beverage Container Act 1975: 11.55

Misuse of Drugs Act s 36A: 6.112, 12.40 s 36A(6): 6.112

Constitution: 6.105

Police Administration Act 1978 s 133AB(2)(a): 6.150 Div 4A: 6.112, 6.150 Div4AA: 6.112

Queensland Australia Acts (Request) Act 1986: 1.165 Corrective Services Act 2006: 13.30, 13.35 Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013: 6.125 Criminal Code Act 1899 s 60A: 6.112 s 60B: 6.112 s 60C: 6.112 Criminal Organisation Act 2009: 6.112 s 59: 6.112 s 66: 6.112 s 70: 6.112 s 76: 6.112 s 78: 6.112 Dangerous Prisoners (Sexual Offenders) Act 2003: 6.125 s 13: 6.110

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South Australia

Industrial and Conciliation Act 1972: 7.60 Metropolitan and Export Abattoirs Act 1936: 7.40 Serious and Organised Crime (Control) Act 2008: 6.112 s 10: 6.112 s 14: 6.112 s 14(1): 6.112 s 14(5)(b): 6.112

Tasmania Australia Acts (Request) Act 1986: 1.165 Fisheries Act 1959: 11.35 Forestry Management Act 2013: 13.40 Sea Fisheries Regulations 1962: 11.35 Tobacco Act 1972 s 2(2): 9.40 s 3: 9.40 Pt III: 9.35 Workplaces (Protection from Protesters) Act 2014 s 3: 13.40 s 5: 13.40

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Table of Statutes

s 6: 13.40 s 8: 13.40 s 8(1)(a): 13.40 s 8(1)(b): 13.40 s 11: 13.40 s 11(6): 13.40 s 11(7): 13.40 s 11(8): 13.40

Infertility Treatment Act 1995 s 8: 7.25 Interpretation of Legislation Act 1984 s 6: 1.235 Juries Act 1967 s 48A: 12.65 Licensing Act 1958: 9.35

Victoria Advancing the Treaty Process with Aboriginal Victorians Act 2018: 14.35 Australia Acts (Request) Act 1986: 1.165 Business Franchise (Tobacco) Act 1974: 11.45 s 10(1)(c): 11.45 s 10(1)(d): 11.45 Charter of Human Rights and Responsibilities Act 2006: 6.25, 6.30, 6.35, 12.110, 14.95 s 7: 6.30, 6.35 s 7(2): 6.30 s 25(1): 6.25 s 32: 6.25, 6.35, 6.95 s 36: 6.25, 6.95, 6.112, 6.130 s 37: 6.25 Constitution: 6.105 s 18: 1.145 s 85(5): 1.145 Constitution Parliamentary Reform Act 2003: 1.145 Corporations (Commonwealth Powers) Act 2001: 3.70 Corrections Amendment (Parole) Act 2014: 6.155 Crimes Act 1958 s 321(1): 7.65 Drugs, Poisons and Controlled Substances Act 1981 s 4: 6.25 s 5: 6.25, 6.95 s 25(1): 6.95 s 36: 6.25 s 71AC: 6.25, 7.65 Equal Opportunity Act 1977: 7.30, 7.70

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Serious Sex Offenders Monitoring Act 2005 s 42: 6.120

Western Australia Aboriginal Heritage Act 1972: 5.90 s 17: 5.90 Administration Act 1903 s 86: 14.45 Australia Acts (Request) Act 1986: 1.165 Betting Control Act 1954 s 24(1AA): 11.60, 11.65 s 27D(1): 11.60 Constitution: 6.105, 13.65 s 73(2): 1.145 s 73(2)(c): 13.65 Land (Titles and Usage) Act 1993 s 7: 7.30 Western Australia Development Corporation Act 1983 s 4(3): 5.90

Imperial Australian Constitutions Act (No 2) 1850: 1.70 Australian Courts Act 1828: 1.65, 1.75 Colonial Laws Validity Act 1865: 1.75, 1.160, 1.165 s 2: 1.75, 1.155 s 3: 1.75 Commonwealth of Australia Constitution Act 1900: 1.80, 12.55 s 9: 1.80

Canada Constitution Act 1982 s 35(1): 14.35

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Federal Constitutional Law: A Contemporary View

United Kingdom Australia Act 1986: 1.165 Bill of Rights 1689: 1.15 House of Lords Act 1999: 1.30 Statute of Westminster 1931: 1.160, 1.165, 4.10 s 1: 1.160 s 2(1): 1.160 s 2(2): 1.160 s 3: 1.160, 4.10 s 4: 1.160, 1.165 s 8: 1.160 s 9: 1.160

United States Restatement (Third) of Foreign Relations Law § 102(2): 4.70

Treaties and Conventions Convention Relating to the Regulation of Aerial Navigation: 4.35

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Convention for the Protection of the World Cultural and Natural Heritage 1972: 4.35 Convention on the Prevention and Punishment of the Crime of Genocide 1948: 4.70 Art II: 14.35 Convention on the Rights of the Child: 4.15, 4.30 European Convention on Human Rights: 14.85 International Convention on the Elimination of all Forms of Racial Discrimination 1966: 7.55, 4.35 Art 5: 7.30 Art 5(d)(v): 7.30 Art 5(d)(vi): 7.30 International Convention to Suppress The Slave Trade and Slavery 1926: 4.55 International Covenant on Civil and Political Rights 1966: 4.25, 4.30, 4.75, 12.100 International Covenant on Economic Social and Cultural Rights: 4.75 Timor Gap Treaty: 12.35

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Chapter 1

Introduction [1.10]

[1.60]

[1.85]

[1.155]

[1.175]

FUNDAMENTAL CONCEPTS IN AUSTRALIAN CONSTITUTIONAL LAW............................. 2 [1.15] Parliamentary sovereignty..................................................................................................... 2 [1.20] The rule of law......................................................................................................................... 5 [1.25] Constitutional conventions.................................................................................................... 9 [1.30] Bicameralism.......................................................................................................................... 10 [1.35] Representative government................................................................................................. 11 [1.40] Responsible government...................................................................................................... 11 [1.45] Parliamentary control of supply.......................................................................................... 13 [1.50] The separation of powers..................................................................................................... 13 [1.55] Federalism.............................................................................................................................. 14 FROM COLONISATION TO FEDERATION..................................................................................... 16 [1.65] Colonisation of Australia: The first settlements................................................................ 16 [1.70] From dictatorship to responsible government.................................................................. 17 [1.75] Limits on the powers of colonial Parliaments................................................................... 17 [1.80] The advent of the Constitution............................................................................................ 19 OVERVIEW OF THE CONSTITUTION............................................................................................. 20 [1.90] The Parliament....................................................................................................................... 20 [1.95] The House of Representatives............................................................................................. 20 [1.100] The Senate............................................................................................................................... 20 [1.105] Relative powers of each House of Parliament.................................................................. 22 [1.110] Powers of the Commonwealth Parliament........................................................................ 26 [1.115] Chapter II: The executive...................................................................................................... 26 [1.120] Chapter III: The judiciary..................................................................................................... 27 [1.125] Chapter IV: Finance and trade............................................................................................. 27 [1.130] Chapter V: The transformation of the colonies into States.............................................. 27 [1.135] Chapter VI: New States and the Territories....................................................................... 27 [1.140] Chapter VII............................................................................................................................. 28 [1.145] Chapter VIII: Amendment of the Constitution................................................................. 29 [1.150] Appraisal of the Constitution.............................................................................................. 30 CUTTING THE APRON STRINGS: FROM FEDERATION TO THE AUSTRALIA ACTS......... 32 [1.160] Statute of Westminster.......................................................................................................... 32 [1.165] The Australia Acts................................................................................................................. 32 [1.170] An Australian republic in waiting?..................................................................................... 34 JUDICIAL REVIEW............................................................................................................................... 36 [1.180] The High Court of Australia................................................................................................ 36 [1.185] Constitutional interpretation............................................................................................... 38 [1.190] Case study: The Territorial Senators case........................................................... 39 [1.195] Text and context..................................................................................................... 40 [1.200] Originalist arguments............................................................................................ 45

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2

Federal Constitutional Law: A Contemporary View

[1.205] Comparative arguments....................................................................................... 52 [1.210] Policy arguments.................................................................................................... 53 [1.215] Other interpretative techniques........................................................................... 55 [1.220] Stare decisis............................................................................................................. 55 [1.225] Implication.............................................................................................................. 59 [1.230] International law.................................................................................................... 61 [1.235] The consequences of invalidity........................................................................................... 63 [1.240] CONCLUSION....................................................................................................................................... 65

[1.05]  Constitutional law may be simply described as that branch of the law which regulates the three arms of government: the legislature, the executive and the judiciary. The legislature’s prime function is to enact laws. The function of the executive or administrative arm of government is to administer laws, or put them into practice, and deal with the general minutiae of legal and policy administration. The judiciary’s function is to interpret and apply the law. The Constitution provides the source and authority for the exercise of public power, and circumscribes the limits of that power. Constitutional law regulates the relationship of the various arms of government with each other and the relationship of those arms of government with the governed. In Australia, constitutional law also governs the relationship and demarcation of power between the two levels of Australian government: the federal or Commonwealth Government and the regional “State” and “Territory” Governments. Though some reference will be made to the State constitutions, this book is essentially concerned with federal constitutional law in Australia.

FUNDAMENTAL CONCEPTS IN AUSTRALIAN CONSTITUTIONAL LAW [1.10]  Australian constitutional law is descended, and has evolved, from the constitutional law of the United Kingdom. Australian constitutional law is therefore imbued with many fundamental doctrines and assumptions about government which find their origin in the British legal tradition.

Parliamentary sovereignty [1.15]  Parliamentary sovereignty represents one of the twin pillars of British constitutional law, along with the rule of law, identified by the influential 19th century jurist, A V Dicey. In British constitutional law, the Parliament or the legislature is in theory, absolutely sovereign.1 This means that the Parliament has the constitutional power to “make or unmake any law whatever; and further, that no person or body is recognised

1 It is arguable that parliamentary sovereignty in the United Kingdom was eroded by the United Kingdom’s accession to the European Union. See R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603. See also, N MacCormick, “Beyond the Sovereign State” (1993) 56 Modern Law Review 1, and in light of the Brexit referendum, R (Miller) v Secretary of State for Exiting the European Union (“Miller”) [2016] EWHC 2768 (Admin).

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Chapter 1 Introduction

3

by the law of England as having a right to override or set aside the legislation of Parliament”.2 All persons are legally obliged to obey Parliamentary statutes, and the courts are bound to apply them. Parliamentary statutes are therefore the supreme laws of the United Kingdom. Unlike the United Kingdom, no Australian Parliament is absolutely sovereign. The powers of all Australian legislatures are constrained by the Commonwealth Constitution. For example, s 92 prescribes that trade, commerce and intercourse between the States “shall be absolutely free”. Therefore, no law of any Parliament may impede that freedom (see Chapter 11). Indeed the constraints placed upon the Commonwealth by the federal Constitution are considerable. In contrast, the constraints placed on the individual State Parliaments by the flexible State constitutions are minor.3 Most restrictions on State Parliaments stem in fact from the Commonwealth Constitution rather than the State constitutions. Even though the Australian Parliaments are only partially sovereign, parliamentary sovereignty has still played a crucial role in Australian constitutional interpretation. Judges will only strike down statutes in Australia if there is constitutional authority for such disallowance, either by express words or necessary implication. Judges will generally not otherwise strike down statutes simply because they perceive them to be unjust or immoral.4 This is of particular relevance in Australia where there is as yet no comprehensive constitutional bill of rights in any jurisdiction. For example, in Union Steamship v King (1988) 166 CLR 1, the High Court confronted an argument that the power of the New South Wales legislature under the New South Wales Constitution to make laws “for the peace, order and good government of New South Wales” was restricted to laws which facilitated the general welfare of people in New South Wales. The High Court stated (at 10): [Previous] decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words “for the peace, order and good government” are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score.

2 A V Dicey, Introduction to the Study of the Law of the Constitution (1st ed, 1885; 10th ed, MacMillan, London, 1964), p 40. 3

See McCawley v The King (1920) 28 CLR 106 at 117. Certain sections of some of the State constitutions are entrenched, thus imposing some meaningful restraint on State power. See at [1.145].

4

See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10; Dawson J in Kruger v Commonwealth (1997) 190 CLR 1 at 52-​53 and in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 73-​76; and Kable v Director of Public Prosecutions (1995) 36 NSWLR 374 at 376 and 387 per Mahoney JA, at 395 per Clarke JA and at 395-​396 per Sheller JA.

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4

Federal Constitutional Law: A Contemporary View

The rule of parliamentary sovereignty was finally enshrined in British law in 1689. Before this date, a battle for supreme legal power had been waged between Parliament and the Crown. In particular, the Stuart kings had claimed a “divine right” to rule as they wished. These claims of immense prerogative power were resolved with the overthrow of King James II, the ascent of William and Mary to the throne, and the subsequent passage of the Bill of Rights 1689, which confirmed the Parliament as the vessel of supreme legal power, over and above both the monarchy and the judiciary.5 The advent of parliamentary sovereignty was thus seen as a bulwark against the exercise of absolute and potentially arbitrary power by the Crown, and therefore as a measure of rights enhancement. Parliament is the only arm of government elected by the people. Indeed, Parliament’s democratic legitimacy in the 21st century is of course far more extensive than in 1689. Ultimate sovereign power should therefore perhaps vest in the representative arm of government, rather than be shared or compromised by the investiture of some superior power in the executive or, in particular, the unelected judiciary. For example, the vesting of considerable power in the United States judiciary under the American Bill of Rights has led to the unelected Supreme Court being the ultimate arbiter of inherently political, moral and emotional issues such as the constitutionality (and therefore legality) of abortion, capital punishment and even the resolution of the presidential election in 2000. The consequent and unfortunate politicisation of the United States judiciary is evident in the party-​political jousting that accompanies the confirmation procedure for Supreme Court appointments. Nevertheless, absolute parliamentary sovereignty may be criticised for its failure to incorporate checks and balances upon the legislature to prevent the passage of oppressive statutes. While, for example, the legislature in the United States is heavily constrained by a constitutional Bill of Rights, the Parliament in the United Kingdom, and to a lesser extent the Australian Parliaments, are free to pass legislation in disregard of basic human rights. The United Kingdom and Australian judiciaries are bound to apply those laws, despite any misgivings about the inherent immorality or injustice entailed in those laws.6 Dicey argued that the chance of Parliament passing seriously oppressive laws was merely hypothetical, as it was constrained by external limits (potential resistance of subjects and voters) and internal limits (inherent rationality of a representative Parliament).7 In response, one may note the serious sex discrimination inherent in British laws in Dicey’s day when, for example, women could not vote. Contemporaneously, the Australian colonial Parliaments were doing little to redress the decimation of Indigenous people and endorsed a variety of racially discriminatory laws. Indeed, while it is true that voters might not tolerate totally outrageous legislation, Parliaments still have realistic scope to pass laws in breach of

5 See judgment of Sir Edward Coke in Dr Bonham’s case (1610) 8 Co Rep 113b; 77 ER 638, for a pre-​1689 assertion of the judiciary’s ability to strike down parliamentary statutes. 6

The Human Rights Act 1998 does not change this position in the United Kingdom. The Bill of Rights 1689 was never a comprehensive codification of human rights and was never immune from alteration by future statutes. See also, for example, Hayne J in Plaintiff M76-​2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 367.

7 Dicey, n 2, pp 76-​85.

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Chapter 1 Introduction

5

human rights.8 For example, voter apathy and ignorance may permit the passage of oppressive legislation, especially with regard to minorities.9 Parliament may even be swayed by populist majoritarianism to pass laws that severely undermine the rights of unpopular minorities.10 Voters may also “forgive and forget” the passage of unjust legislation in time to re-​elect a government. Finally, one may note that modern-​day Parliaments have transferred power to executive governments through the conduit of political parties and the consequent advent of strict party discipline.11 The agendas of the major parties do not necessarily correspond to majority wishes; they may be disproportionately influenced by powerful yet non-​representative institutions and lobby groups.12 Furthermore the party system, by limiting the choice of leaders and policy platforms, may pre-​ordain the passage of oppressive legislation if there is bipartisan support in favour of such legislation.13 It is evident that there are persuasive arguments both for and against parliamentary sovereignty. However, this is not the place in which to deal with them comprehensively.14

The rule of law [1.20]  The slippery concept of the rule of law may, in its most fundamental guise, be distinguished from rule by force and fear. Society is governed according to declared laws, rather than by arbitrary exercises of power. According to Dicey, the rule of law had three main facets. First, the rule of law meant “the absolute supremacy of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of the government”.15 Englishmen, said Dicey, were “ruled by law and law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else”.16 Allan has explained this first aspect of the rule of law in the following terms:17 At its core is the conviction that law provides the most secure means of protecting each citizen from the arbitrary will of every other. By being constrained to govern by means of 8 Indeed, the United Kingdom has often been found to have breached the European Convention of Human Rights, as well as its own human rights legislation. 9 For example, this may be the case with laws that undermine the rights of Indigenous Australians. 10 This is especially the case with “law and order” measures, which prey on the unrealistic media-​stoked fears of the community. 11 P P Craig, “Dicey: Unitary, Self-​Correcting Democracy and Public Law” (1990) 106 Law Quarterly Review 105 at 129-​130. 12 Craig, n 11, at 130. 13 For example, both major parties in Australian politics have passed laws which diminish the asylum rights of genuine refugees. 14 For a comprehensive examination of parliamentary sovereignty, see, for example, J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, Oxford, 1999). 15 Dicey, n 2, p 202. 16 Dicey, n 2, p 202. 17 T R S Allan, “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism” (1985) 44 Cambridge Law Journal 111 at 112-​113.

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Federal Constitutional Law: A Contemporary View

general laws, the rules of society cannot single out particular citizens for special treatment. The law is to constitute a bulwark between governors and governed, shielding the individual from hostile discrimination on the part of those with political power.

Implicit in Dicey’s “first aspect” of the rule of law is that the law should be clear, easily accessible, comprehensible, prospective rather than retrospective and relatively stable.18 The law’s application should also be predictable, consistent and non-​discriminatory, thus there is a need to minimise the discretion available to administrative decision-​makers. However, since Dicey’s day, the complexities of modern government have seen a necessary growth in the amount of discretion delegated to the executive, resulting perhaps in some erosion in the rule of law.19 To some extent the exercise of executive discretion is reviewed under administrative law principles by the judiciary. However, such review is fairly narrow; it only tangentially concerns the merits of a decision, concentrating instead on the procedure by which the decision was made. Dicey clearly linked the rule of law with parliamentary sovereignty, distinguishing the law-​making power of Parliament from the arbitrary excesses which characterised unrestrained executive (monarchical) power before 1689. However, it is nevertheless arguable that the rule of law and parliamentary sovereignty are at one level fundamentally inconsistent with each other. Put simply, “if Parliament can legislate anything it cannot be bound by the rule of law, and thus can exercise power arbitrarily”.20 Furthermore, in the age of strict party discipline it is arguable that the legislature is not an adequate constraint on executive power, as the executive is usually guaranteed the allegiance of a parliamentary majority. Toohey J has stated, extra-​curially, that:21 today there is an increasing recognition of the tension between deference to the will of parliaments as expressed in legislation and maintenance of the rule of law. Parliaments are increasingly seen to be the de facto agents or facilitators of executive power, rather than bulwarks against it.

This perceived tension between the twin pillars of Anglo-​Australian constitutional law has perhaps caused some Australian Judges to be quite willing to depart from the tenets of parliamentary sovereignty.22 However, it must be noted that the late 1990s and early 21st century saw a retreat by the High Court majority from the more radical positions advocated in the early years of the 1990s (see [1.180]). The second aspect of Dicey’s definition of the rule of law is that there should be “equality before the law” as between the governors and the governed.23 Officials were

18 See also J Raz, “The Rule of Law and Its Virtue” (1977) 93 Law Quarterly Review 195 at 198-​202. 19

See [5.25].

20 G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), pp 63-​72. 21 Justice Toohey, “A Government of Laws, and Not of Men” (1993) 4 Public Law Review 158 at 163. 22 Toohey, n 21. See also B Fitzgerald, “Proportionality and Australian Constitutionalism” (1993) 12 University of Tasmania Law Review 263 at 263-​266. 23 Dicey, n 2, pp 202-​203. Note that Dicey was not referring to “equality before the law” in the modern human rights sense of equality of all peoples before the law, regardless of race, gender, religion, etc.

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Chapter 1 Introduction

7

to be subjected to the same law in the same courts as private citizens. The subjection of Government officials to the law ensures that these officials do not act outside the law with impunity. Dicey also distinguished (with some apparent disdain) the British system from the continental system of administrative courts, which provided a separate forum for the resolution of disputes involving public officials.24 Since Dicey’s day, there has been a growth in administrative tribunals and in administrative law in the United Kingdom and in Australia.25 The basic precept remains true, public officials are not immune from the law of the land. Dicey outlined his third and final aspect of the rule of law thus:26 with [Englishmen] the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source, but the consequence of the rights of individuals, as defined and enforced by the courts.

Dicey here was praising the “bottom-​up” nature of the British constitution –​that a natural and unwavering respect for the rights of individuals had evolved, reflecting the traditions of the British people, in the absence of a binding codified Bill of Rights imposed from “above”. The former form of rights protection was superior to the latter, in Dicey’s view, as history had shown how statutory bills of rights could be easily suspended or ignored.27 Dicey’s view of the rights protection offered by the unwritten British constitution complemented his view that the benevolent British Parliament would never act totally unjustly. Dicey’s assertion that there is a natural British respect for rights is questionable. In fact, the common law has on occasion blatantly failed to protect certain fundamental rights,28 though there has been a much greater linkage between the common law and human rights in recent decades via the reinvigorated “principle of legality”.29 In any case, the British mistrust of bills of rights has filtered into Australian law. The federal and State constitutions contain very few individual rights. However, Dicey’s third limb does permit argument that the rule of law is designed to ensure basic

24 Dicey, n 2, pp 194-​195. 25 M Allen and B Thompson, Cases and Materials on Constitutional and Administrative Law (10th ed, OUP, Oxford, 2011), p 117. 26 Dicey, n 2, p 203. 27 Dicey, n 2, p 199. Dicey pointed out how, despite the enactment of the Declaration of the Rights of Man in France, rights were nevertheless insecure, and even non-​existent, during the Reign of Terror which followed the French Revolution. 28 See, for example, Duncan v Jones [1936] 1 KB 249; Malone v Metropolitan Police Commissioner [1979] Ch 344; Dugan v Mirror Newspapers (1978) 142 CLR 583; Kruger v Commonwealth (1997) 190 CLR 1 at 66 per Dawson J. 29 The High Court now places greater emphasis on the “principle of legality” as a basis for constructing statutes in a manner that precludes interference with fundamental common law rights: see M Castan, “The High Court and Human Rights”, in P Gerber and M Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, Pyrmont, 2012), pp 91-​94; also D Meagher, “The Common Law Principle of Legality in the Age of Rights” (2011) 35 Melbourne University Law Review 449. See also Chief Justice R S French, “The Common Law and the Protection of Human Rights”, 4 September 2009, available at http://​www.hcourt.gov.au/​assets/​publications/​speeches/​current-​ justices/​frenchcj/​frenchcj4sep09.pdf.

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8

Federal Constitutional Law: A Contemporary View

rights, possibly in the face of contrary legislation.30 Dicey’s own arguments ironically bolstered the controversial departure from orthodox deference to parliamentary will, witnessed in the High Court in the early 1990s. A classic modern statement of the meaning of the rule of law in England was offered by the late Lord Bingham who has stated “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.31 He went on to explain eight key principles or sub rules, which expand considerably on the Diceyan explanation. First, law must be “accessible and so far as possible intelligible, clear and predictable”;32 with this comes a caution against adventurous judicial activism. Second is the caution against arbitrariness: “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”.33 Bingham acknowledges that judges must exercise discretion in each individual case, but such decision making must not amount to arbitrary exercise of judicial power. Third, equality before the law is fundamental. While “objective differences justify differentiation”,34 the law of the land should generally apply equally. Fourth, Bingham incorporates the principle of judicial review of government action: “ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”.35 In Australia this principle underpins the category of law we call administrative law. These four principles largely correlate with the dimensions of Dicey’s first two aspects of the rule of law. In the fifth principle, Bingham addresses human rights, “the law must afford adequate protection of fundamental human rights”.36 The sixth and seventh principles relate to access to justice: the state must provide a way of “resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”37 and “adjudicative procedures provided by the state should be fair”.38 Finally, Bingham proposed that “compliance by the state with its obligations in international law as in national law”.39

30 Indeed, note the definition of the rule of law by the International Commission of Jurists in 1959, finding that the “dynamic concept” of the rule of law was employed to safeguard civil and political rights, as well as economic, social and cultural rights. See Report of the ICJ, The Rule of Law in a Free Society 1959 (New Delhi, India, 1959), p 3. 31 See T Bingham, The Rule of Law (Penguin, London, 2011), p 8. 32 Bingham, n 31, p 37. 33 Bingham, n 31, p 48. 34 Bingham, n 31, p 55. 35 Bingham, n 31, p 60. 36 Bingham, n 31, p 66. 37 Bingham, n 31, p 85. 38 Bingham, n 31, p 90. 39 Bingham, n 31, p 110.

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Chapter 1 Introduction

9

Bingham’s re-​articulation of the rule of law is grounded in the English legal context, but there are many elements which resonate in the Australian context, despite our having a written constitution, and some quite different approaches to the incorporation of human rights and international law doctrines. Indeed in Plaintiff S157/​2002 v Commonwealth (2003) 211 CLR 476 (at 492) Gleeson CJ asserted the rule of law as an interpretive principle: [T]‌he Australian Constitution is framed upon the assumption of the rule of law.

The Chief Justice then cited Brennan J from Church of Scientology v Woodward (1982) 154 CLR 25 who said (at 70): Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

The majority in Plaintiff S157/​2002 (at 513) cited Dixon J in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 (at 193), who referred to the Constitution as: an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.

Despite numerous references to the rule of law in Australian High Court decisions, the extent to which the rule of law actually acts as a limit on government action or legislation remains contested and ambiguous.40

Constitutional conventions [1.25]  Constitutional conventions are a part of the broader definition of constitutional law. Constitutional “laws” are enforceable in a court of law. If an Australian government breaches a constitutional law, it may be punished by, for example, having its legislation struck down by a court decision or by having its administrative decision annulled. In contrast, conventions are customs or practices that are habitually followed by governments, who are under a moral or political obligation to continue following them. Their breach does not, however, attract any legal sanction. Even though constitutional conventions are not legally enforceable, they are a very important component of Anglo-​Australian constitutional law. Indeed, some of the most important rules in Australian constitutional law are “mere” conventions, and their continuous breach would probably prove more intolerable for the population than the persistence of acts which breach constitutional “law”.41 For example, the bare words of the federal Constitution vest the Queen’s representative, the Governor-​ General, with enormous power. He or she may dissolve the lower house of Parliament “as he thinks fit” (s 5), may disallow legislation by refusing their assent (s 58) and

40 See further, L B Crawford, The Rule of Law and the Australian Constitution (Federation Press, Sydney, 2017). 41 See J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (8th ed, Butterworths, Chatswood, 2009), p 1061.

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Federal Constitutional Law: A Contemporary View

may sack individual Ministers and even the entire government (s 64). It is only a convention that the Governor-​General acts on the advice of the government of the day.42 This convention has only been broken once at the federal level, and then only arguably, in 1975 when Governor-​General Kerr sacked the Whitlam Government (see [1.45]). There is no definitive list of conventions, so their content is sometimes open to debate. The 1975 constitutional crisis was in a large part provoked by differing arguments on both sides of politics concerning the appropriate conventions governing the passage of supply bills through Parliament.43 Why are certain constitutional practices protected by convention rather than law, considering that conventions are inherently uncertain and unenforceable? The fact is that the proper functioning of government has always necessitated the conferral of discretionary power on various persons within the government, to allow a constitution to develop in accordance with new ideas and events without strict legal constraint. It is impossible to codify all of the rules surrounding the processes of government. Conventions generally govern the exercise of these legally conferred discretions.44 Conventions allow for some flexibility to permit gradual, evolutionary shifts in power.45 Even the most important conventions, such as those concerning the Governor-​General, are arguably best not fixed in law to permit the exercise by that person of emergency powers in unforeseen circumstances.46

Bicameralism [1.30]  Most Westminster-​style Parliaments have a bicameral system, in that there are two houses of Parliament. The lower house is the popularly elected house, and generally has the most power. This power is legitimised by its democratic link to the people. Most Australian Parliaments are bicameral, except for Queensland, where the upper house was abolished in 1922, and the Parliaments of the Northern Territory and the Australian Capital Territory. In the United Kingdom, the lower house has the anachronistic name of the House of Commons. In the Australian Federal Parliament, the lower house is more appropriately known as the House of Representatives. The original “upper house” is the House of Lords in the United Kingdom. Membership of the House of Lords was, until relatively recently, largely hereditary, though about 10 per cent of the Lords were appointed by the various political parties for life. The House of Lords descended from the medieval English Parliaments, membership of which was confined to the aristocracy. In 1999, the House of Lords Act 1999 abolished the hereditary peers in

42 The comparable United Kingdom Convention is that the Queen only acts on the advice of her Ministers. 43 See Clarke, Keyzer and Stellios, n 41, pp 1052-​1062. See further [1.45]. 44 See also G Marshall and G C Moodie, Some Problems of the Constitution (5th ed, Hutchinson, London, 1971), p 25. 45 See Clarke, Keyzer and Stellios, n 41, p 1061. 46 See also R McGarvie, Democracy: Choosing Australia’s Republic (Melbourne University Press, Melbourne, 1999), Chapter 7.

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Chapter 1 Introduction

11

the House of Lords. Pending further reform of the Lords, a few hereditary peers will continue to sit with the life peers. Future reform will not necessarily transform the Lords into a democratic institution.47 The Lords’ lack of democratic legitimacy is perhaps justified by its lack of power. It can only delay the passage of bills by the House of Commons for a period of one year, and may only delay money bills for a period of one month. At the Commonwealth level, the upper house is the Senate. The Senate is one of the stronger upper houses to develop out of the Westminster system. This is partially explained by the fact that the Senate is elected, so it has democratic credentials. An example of its power is that the Senate legally has the power to veto bills, even money bills (see also [1.45]).

Representative government [1.35]  The doctrine of “representative government” refers to the make-​up of the lower house of Parliament, and basically means that the lower house is democratically elected,48 though the method of actual election is variable. For example, in the United Kingdom, the House of Commons is elected by a first-​past-​the-​post system, where the person with the most votes within a constituency wins that seat, regardless of whether they win an actual majority of votes in the seat. In Australia at the federal level, a preferential voting system determines the composition of the House of Representatives.49 The Tasmanian lower house, the House of Assembly, is uniquely (within Australia) elected by proportional representation.50 In accordance with the doctrine of representative government, all lower houses in the Australian States and at the federal level are democratically elected. As it happens, democratic elections also determine the composition of all Australian upper houses, and the unicameral Parliaments of Queensland, the Northern Territory and the ACT.

Responsible government [1.40]  Under the doctrine of responsible government, the executive is responsible to the legislature. By convention, the Crown (represented by the Governor-​General) acts on the advice of its Ministers. Those Ministers in turn, including the Prime Minister, may only remain in government while they have the confidence of the House. In practice this means that the government will only stay in power while their party or coalition commands a majority in the House of Representatives. If they should lose that majority through, for example, by-​elections, defections or a coalition breakdown,

47 See Ministry of Justice, An Elected Second Chamber: Further Reform of the House of Lords (2008), available at http://​justice.gov.uk/​publications/​docs/​elected-​second-​chamber.pdf. A  further attempt at reform faltered in 2012: see Report of Joint Committee on the Draft House of Lords Reform Bill, Session 2010-​ 12, 26 March 2012, available at http://​www.parliament.uk/​business/​committees/​committees-​a-​z/​ former-​committees/​joint-​select/​draft-​house-​of-​lords-​reform-​bill/​publications. 48 See Commonwealth Constitution, s 24. 49 This system of voting is described at the website of the Australian Electoral Commission at https://​ www.aec.gov.au/​Voting/​How_​to_​Vote/​. 50 The Tasmanian system of voting is described at https://​www.tec.tas.gov.au/​Info/​VotingSystems. html.

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Federal Constitutional Law: A Contemporary View

the government is required by convention to resign. If no other government can be formed by commanding a new lower house majority, an election must be called by the Governor-​General. However the same principle does not apply to the Senate. The government need not command the support of a majority of senators. Indeed, the government held a Senate majority from July 2005 (the first such majority in over two decades), but this was short-​ lived, lasting only until the election of the Rudd Government in late November 2007. The potential exclusion of the Senate from the doctrine of responsible government is explained by the United Kingdom precedent. In the United Kingdom, the executive government is only responsible to the House of Commons. This is appropriate, as the House of Lords has no democratic legitimacy, and, in the days of hereditary peers, an in-​built Conservative majority. However, the position of Australian upper houses in the scheme of responsible government is uncertain, considering their representative nature.51 In particular, the ability of Australian upper houses to block supply remains controversial, as discussed at [1.45] and [1.105]. This commentary describes the doctrine of collective responsibility. Ministers are also individually responsible to Parliament for the activities of the administrative departments that they head by, for example, answering questions in Parliament about the work of those departments. In this way, public service accountability is ensured: public servants are responsible to their Minister who is responsible to Parliament. If serious blunders or misdeeds occur within a government department, or Parliament has been misled over that department’s activities, the responsible Minister may be required to resign his or her position.52 The doctrine of responsible government links the executive government to the Australian people. The executive government is responsible to the lower house, which is itself responsible to the electorate via the doctrine of representative government. Responsible government is one way of ensuring parliamentary, and therefore popular, supremacy over the executive. However, given strict party discipline, it is rare for lower house majorities to truly hold the executive to account. Indeed, in the absence of very small majorities (where backbenchers are more powerful) or minority governments, it may be that the legislature is effectively dominated by the executive. In the United Kingdom, the huge lower house majorities for the Thatcher Government in the 1980s meant that the lower house was hardly a restraint on the Thatcherite legislative agenda. The same can be said for the Blair Government from 1997 to 2005.53 In Australia, however, the tendency towards executive dominance of the legislature has often been tempered by the presence of strong Senate scrutiny of bills passed by the House of Representatives (see [1.105]). Furthermore, legislative

51 See generally, J Lipton, “Responsible Government, Representative Government, and the Senate: Options for Reform” (1997) 19 University of Queensland Law Review 194. 52 The issue of when a Minister should or should not resign appears to be a particularly flexible convention; see Allen and Thompson, n 25, pp 209-​228. Indeed, the then New South Wales Education Minister John Aquilina described the expectation that Ministers resign due to the actions of their staff as a “very quaint” view of ministerial responsibility. See The Australian, 4 May 2001, p 5. 53 While it retained government in the 2005 General Election, the Blair Government’s majority was significantly reduced.

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Chapter 1 Introduction

13

scrutiny of the executive in both countries does arise via parliamentary committee investigations and questions in Parliament.

Parliamentary control of supply [1.45]  In both the United Kingdom and Australia, supply (the budget for the ordinary annual services of government) must be authorised by Parliament. The emergence of this convention in the United Kingdom helped enshrine the principle of responsible government; no government can govern without money, so parliamentary control of the purse-​strings equates with parliamentary control over the executive. The requirement of legislative authority for the appropriation of moneys is enshrined in ss 81 and 83 of the Commonwealth Constitution (see [10.50]). In the United Kingdom, only the House of Commons has meaningful control over money bills. The Lords may only delay a money bill for a period of one month. In Australia, however, the Senate is not required by any express constitutional or statutory law to allow the passage of a supply bill.54 The only constitutional restriction on Senate power regarding money bills arises from s 53 of the Constitution, which requires that such bills originate in the House of Representatives, and denies the Senate powers to amend such bills. Therefore, the only potential constitutional restriction on Senate rejection or delay of money bills arises from convention. Uncertainty regarding the conventional role of the Senate in passing money bills, and the conventional role of the government if such bills should fail to pass through the Senate, was the crux of the 1975 constitutional crisis. The Whitlam Government’s budget failed to pass through a Senate controlled by the Opposition. One view is that the Senate breached convention by its unprecedented failure to pass a supply bill. The alternative view is that the Whitlam Government breached convention by failing to resign when it could not guarantee supply. The Governor-​General “resolved” the crisis by sacking the Whitlam Government and forcing a double dissolution. This debate has never been conclusively resolved.55

The separation of powers [1.50]  The “pure” doctrine of separation of powers prescribes that the functions of the three arms of government be clearly and institutionally separated. One justification for such separation is to prevent the concentration of too much power in, and consequent abuse of power by, a single arm of government.56 Separation of powers ensures that the three arms of government operate as checks and balances upon each other so that no one governmental arm unduly harms the interests of the governed. In United Kingdom and Australian law, however, the distinction between the executive and the legislature has become increasingly blurred (see [5.25]). Indeed, Commonwealth Ministers are simultaneously members of the executive and the 54 Indeed, any statutory requirement that the Senate pass a money bill could be unconstitutional. 55 See generally, P Kelly, November 1975: The Inside Story of Australia’s Greatest Political Crisis (Allen & Unwin, Crows Nest, 1995); Lipton, n 51. 56 Baron de Montesquieu, L’Esprit des Lois (A Londres, Paris, 1768).

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Federal Constitutional Law: A Contemporary View

legislature, as is required by s 64 of the Commonwealth Constitution, mandating some degree of institutional merger between these two arms of government. United Kingdom and Australian legal systems generally subscribe to the doctrine of the separation of judicial power from the other arms of government. It is vitally important to the reinforcement of the rule of law that the judiciary be insulated from political influences, so that the law can be interpreted and applied in an independent and impartial manner (see generally Chapter 6).

Federalism [1.55]  Australia is a federal state so constitutional power is shared between two levels of government. There are seven autonomous governments: the federal government operating from Canberra, and the six regional State governments. Political and legal power is split between the two levels of government. Though the two levels of Australian governments can, to a certain extent, interfere with each other’s operations,57 the Constitution presupposes the continued independent existence of all seven governments.58 In contrast, the Territorial governments in the Northern Territory and the Australian Capital Territory are not autonomous. They remain under the thumb of the federal parliament which could legally abolish them, and can override any Territorial legislation under s 122, which confers plenary power on the Commonwealth with regard to the Territories. Since the enactment of the Territories Self-​Government Legislation Amendment Act 2011 (Cth), laws passed by the territorial parliaments can no longer be overturned by the federal executive, but the federal parliament retains its power to do so. Similarly, local municipal governments are established and may be legally controlled and even abolished by the State governments. “Federalism” is not a characteristic shared by the United Kingdom. Despite being four separate “countries”, the United Kingdom is a Unitarian State, with legal power centralised in the English Parliament in Westminster. Even though measures of devolution occurred in 1998-​1999, when separate Assemblies for Scotland, Wales and Northern Ireland were created, ultimate sovereign power remains vested in the Westminster Parliament. Westminster retains the constitutional and legal power to revoke the limited grants of power given to Scotland, Wales and Northern Ireland.59 Thus, the federal nature of the Australian Constitution is a fundamental characteristic that does not stem from British constitutionalism. The United States system provided the most influential precedent in establishing a federal system for Australia. For example, a United States-​style upper house designed to protect the States, also called the Senate, was adopted. The United States system of distributing power –​whereby enumerated powers were conferred on the central government, and the residual powers left to the regional governments –​was also incorporated.

57 For example, the Commonwealth can override State legislation under s 109, in areas where the Commonwealth and the States have concurrent power. 58 See also generally Chapter 8, on intergovernmental immunities. 59 Indeed, the Northern Ireland Parliament was temporarily suspended in February 2000.

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Chapter 1 Introduction

15

It is arguable that the relatively small Australian population is over-​ governed, with almost all persons being subjected to two autonomous levels of government. Why is Australia a federation? One reason is historical: a promise of federation was more likely to bring the self-​governing colonies together than a pact to cede all power to a central government. There are also philosophical arguments in favour of federalism. Federalism, like the doctrine of the separation of powers, provides for the decentralisation of power, and thus acts as a check against abuse of power and the development of unwieldy bureaucracies. Decentralisation allows for more local participation in decision-​making. Federalism is also a means of preserving the rights and preferences of local communities as well as minorities who are confined to certain territories.60 For example, in Canada, the province of Quebec acts as a protector of the rights of French-​speaking Canadians. However, the theory of federalism as a vehicle for greater participatory democracy and recognition of minority rights does not always conform to practice. Indeed, no Australian State can be described as one that protects a certain type of minority, though it is arguable that the smaller-​populated States act to protect the rights of persons outside the influential Sydney–​Melbourne–​Canberra “triangle”.61 Much of Australian constitutional law has been concerned with the demarcation of power between the Commonwealth and the States. The Constitution specifies the powers vested in the Commonwealth: the Commonwealth can pass no law without specific constitutional authority for that law. The specific authorisations for federal power are known as “heads of power”. The Commonwealth and States have a number of concurrent powers in s 51 of the Commonwealth Constitution. The States retained exclusive authority over the residual powers, those which are not expressly or implicitly conferred on the Commonwealth. Whereas the early constitutional decisions tended to favour the preservation and enhancement of the powers of the States (see [2.10]), the balance of power between the federal partners has for a long time swung inexorably in favour of the Commonwealth.62 The prevailing interpretations of the tax power (s 51(ii); see [9.10]), the grants power (s 96; see [10.30]) and the prohibition of States’ powers to impose excise duties in s 90 (see Chapter 9) have left financial resources and powers disproportionately in the hands of the Commonwealth. Broad interpretations of powers such as the corporations power (s 51(xx); see Chapter 3), the external affairs power (s 51(xxix); see Chapter 4) and the grants power (s 96; see [10.40]) have allowed the Commonwealth to exercise legislative authority in areas which were traditionally understood to be exclusively in the States’ domain. The prevailing interpretation of s 109, which dictates that Commonwealth laws prevail over State laws in cases of inconsistency, arguably renders it too easy, via the “cover the field” test, for the Commonwealth to oust the States from areas of supposed concurrent power (see [7.35]).

60 See T Fleiner-​Gerster, “Federalism in Australia and Other Nations”, in G Craven (ed), Australian Federation (Melbourne University Press, Melbourne, 1992), p 16. 61 See G Craven, “Varied States Hold the Key to Our Rich Federal Mosaic: There is More to Australia than Sydmelberra”, The Australian, 21 March 2001, p 13. 62 See D Solomon, The Political High Court (Allen & Unwin, Crows Nest, 1999), p 62.

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Federal Constitutional Law: A Contemporary View

While there is no doubt Australia remains a federation, the States’ abilities to meaningfully exercise their powers are dependent in large part on a good faith attitude to practical federalism on the part of the central government. The major political parties seem committed to the continuation of a workable federal relationship. This was not always the case, with the Labor party traditionally advocating greater centralised power at the expense of the States, and the conservative parties being champions of the preservation of “States’ rights”.63 Ironically, the Howard conservative government of the early 21st century displayed considerable centralist characteristics, with proposals being mooted, for example, to centralise control of national ports, universities and health care.64

FROM COLONISATION TO FEDERATION [1.60]  The following commentary discusses the historical progression of Australian constitutionalism from the first European settlement through to federation, and the coming into force of the Constitution in 1901.

Colonisation of Australia: The first settlements [1.65]  After Captain Cook’s claim to “discovery” of the Australian territory, European settlement dates from 1788 when Governor Arthur Phillip arrived in Sydney with the first fleet. At this time, Phillip imported English law into the territory. As of 1788, the colony of New South Wales “received” all of the suitable English law in force in England in 1788. The same was to occur in all of the Australian colonies upon their formation.65 The alleged moral and legal basis upon which Captain Cook could claim “discovery”, and Governor Phillip could declare English law to be the law of the land was based on the false assumption that Australia was an empty land before English settlement: it was terra nullius.66 If that had been the case, no Indigenous legal system would have existed, so English law would have filled a complete legal and political vacuum. Of course, Australia was inhabited prior to English colonisation by Indigenous Australians, who had their own system of laws and society. The terra nullius fiction was not legally rejected until the landmark High Court decision in Mabo v Queensland (No 2) (1992) 175 CLR 1. The Court found that pre-​existing Indigenous customary law had to an extent survived the importation of English law. In particular, Indigenous property law (native title) had not been totally extinguished by European settlement.

63 See, for example, B Galligan, A Federal Republic: Australia’s Constitutional System of Government (Cambridge University Press, Cambridge, 1995), pp 51-​53. 64 See, for example, L Taylor, “Imposing a Centralist State of Mind”, Australian Financial Review, 12 April 2005, p 4. 65 The respective dates of the reception of English statutory law were confirmed by the Australian Courts Act 1828 (Imp) to be 1828 for New South Wales, Tasmania, Victoria and Queensland (though the latter two colonies were not separated from New South Wales until 1851 and 1859, respectively). The reception of the date of English common law is the date of each colony’s settlement; see Williams et al, n 20, p 97, though the dates of 1828 for Western Australia and 1836 for South Australia have been legislatively defined as the respective dates of settlement. 66

See Cooper v Stuart (1889) 14 App Cas 286. See discussion at [14.10] and following.

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However, the Mabo Court did not question the validity of the reception of English law into Australia.67 British settlement and the incorporation of British law was legal in British and international law at the time,68 if not at Indigenous law (see [14.15]). In any case, any question of the legal validity in English law was treated as settled by the passage in 1828 by the Imperial Parliament of the Australian Courts Act 1828. Before 1828, the notion of the importation of English law stemmed from the common law only. The Australian Courts Act 1828 (Imp) asserted that English law was received by the eastern colonies in 1828, thus removing any uncertainty over the issue.69 The 1828 Act also confirmed the ability of the British Parliament to enact new legislation for its Australian colonies after their settlement. The British Parliament could extend any future Act to its Australian colonies, either by express words or by necessary implication. The Australian Courts Act 1828 had the status of a United Kingdom Act of Parliament. According to the principle of parliamentary sovereignty, the Act was therefore unquestionably the law of the United Kingdom and its colonies, regardless of any detrimental impact on Indigenous Australians.

From dictatorship to responsible government [1.70]  Before 1823, New South Wales (then the only Australian colony) was essentially ruled by the Governor as a form of military dictatorship. After that date, the powers of the Governor were slowly diminished, or delegated, until eventually each colony developed a system of responsible government with a bicameral Parliament including a popularly elected lower house.70 New South Wales, Victoria and Tasmania adopted a system of responsible government in 1855, South Australia in 1856, Queensland in 1859 and Western Australia in 1890. Furthermore, the Australian Constitutions Act (No 2) 1850 (Imp) authorised the colonial Parliaments to draft constitutions for their respective colonies. These initial constitutions were the direct ancestors of today’s State constitutions.

Limits on the powers of colonial Parliaments [1.75]  Upon the respective dates of adoption of responsible government within the various colonies, those colonies were regarded by the Imperial Parliament as self-​ governing. What powers did these self-​governing colonies have? The constitutional grants of power to each colonial legislature were similar: they generally had power to make laws for “the peace, order and good government” of the respective colony. Thus, the colonial Parliaments had plenary power within

67

In Walker v NSW (1994) 182 CLR 45, Walker challenged the proposition that Indigenous Australians are bound by English law at all, seeing as they never formally consented to it. In particular, Walker claimed he was not bound by English, and therefore Australian, criminal law. The High Court rejected the claim.

68 See G Simpson, “Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence” (1993) 19 Melbourne University Law Review 195. See also [14.15]. 69 However, due to the declaratory nature of common law, it has been argued that the true date of reception remains 1778; see Sir V Windeyer, “A Birthright and Inheritance: The Establishment of the Rule of Law in Australia” (1962) 1 University of Tasmania Law Review 635 at 636. 70 The initial franchise was limited by qualifications regarding race, sex and property.

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the territory of their respective colonies.71 There were, however, important limits on colonial legislative powers. First, the colonies could not pass any law which was repugnant to a law of the United Kingdom Imperial Parliament. The actual meaning of this rule was clarified in the Colonial Laws Validity Act 1865 (Imp). Section 2 of the Act confirmed that laws enacted by colonial legislatures were void if repugnant to the provisions of United Kingdom legislation extending to that colony. Section 3 declared that, in the absence of such conflict, no colonial law could be impugned by reason of its “repugnance to the laws of England”. Sections 2 and 3 therefore drew a distinction between “received” and “extended” laws. Section 2 confirmed the paramount force of extended legislation which had been deliberately extended to a colony after its settlement, while s 3 conceded colonial power to amend or repeal laws received by colonies upon settlement or upon the date determined by the Australian Courts Act 1828, including the common law. A second limit on the power of colonial legislatures was that they were presumed to have territorial limits to their jurisdiction: they could not enact extraterritorial legislation. No colony could legislate with regard to an act or event outside its territory. This was in contrast to the omnipotent United Kingdom Parliament, which could of course legislate for its colonies.72 This presumption of the extraterritorial incompetence of colonial legislatures was endorsed by the Privy Council in MacLeod v Attorney-​General (NSW) [1891] AC 455. However, throughout the course of the 20th century, the presumption eroded. States (the successors to the colonies) have long been recognised as having some extraterritorial powers, provided there is a sufficient nexus between the State and the extraterritorial matter being regulated.73 A final restriction on colonial power was the reserve power of the English monarch to disallow a colonial law, even after the relevant Governor had given his assent. This rule finds its descendant in s 59 of the Constitution, which still permits the Queen to disallow any Commonwealth law within one year of the Governor-​General’s assent. By convention, she does not exercise this power. Outside the above-​mentioned limits, the colonial Parliaments had total competence to pass whatever law they wished. This was confirmed by the Privy Council in R v Burah (1878) 3 App Cas 889. Burah concerned the power of the Indian legislature, but its precedent applied to all British colonies. Burah related to a challenge to Indian legislation which authorised the Lieutenant-​Governor of Bengal to declare martial law in an area of northern Bengal. The Lieutenant-​Governor duly did so, and removed certain areas from the jurisdiction of the local courts. Burah, who was convicted of murder under these martial laws, sought to challenge his conviction in the Calcutta High Court. Upon a Crown appeal, the Privy Council confirmed that the relevant law 71

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10.

72 Indeed, the absolute sovereignty of the British Parliament means that it can validly pass any statute with extraterritorial effect. Consider a hypothetical law to ban smoking in Paris. Such a law would be held valid by the courts of the United Kingdom, though it would of course not be enforced by the French courts. 73 See, for example, Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337; Pearce v Florenca (1976) 135 CLR 507; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. See [4.10].

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had indeed removed jurisdiction over the crime from the Calcutta High Court, and that the legislation which empowered the Lieutenant-​Governor to remove the High Court’s jurisdiction was valid. In particular, there was no reason, such as repugnance or extraterritoriality, to disallow the law. The sovereignty of the Indian Parliament aside from those limits had to be accepted, despite the inherent oppressiveness of the martial laws.74 It is important to note that few limitations to legislative power arose from the colonial constitutions.75 That characteristic of colonial constitutions has largely carried through to their successors, the modern State constitutions.76 In contrast, the Commonwealth Constitution significantly limits the powers of both the Commonwealth and the States.

The advent of the Constitution [1.80]  How and why did the six separate Australian colonies become the federation known as the Commonwealth of Australia? The desire of the colonies to form a federated Commonwealth was primarily due to the issues of commerce and defence.77 With regard to commerce, it became clear that intercolonial co-​operation and the development of a uniform customs policy would benefit all colonial economies.78 Regarding defence, the expansion of the French and the Germans into the South Pacific provoked fears of invasion which encouraged greater co-​operation among the colonies. A greater feeling of nationalism or patriotism among people born in the colonies was a final catalyst for federation. The terms of federation, ultimately embodied in the document to be known as the Constitution, were hammered out by colonial delegates in Constitutional Conventions conducted in the 1890s. After a false start in 1898, when a draft constitutional Bill failed to attract the necessary support for adoption in referenda,79 the draft Constitution was approved in referenda in all colonies bar Western Australia in 1899.80 The Imperial Parliament, the only legislature with the legal power to form the Australian

74

Burah also illustrates the potential tension between the idea of parliamentary sovereignty and the rule of law. Here, the Indian legislature had the sovereign power to delegate enormous arbitrary power to the Lieutenant-​Governor. The Lieutenant-​Governor’s exercise of that power denied Burah and others access to the courts, which undermines the rule of law. See [1.20].

75

See McCawley v The King (1920) 28 CLR 106 at 117.

76 However, see [1.145]. 77 See P Parkinson, Tradition and Change in Australian Law (5th ed, Lawbook Co, Pyrmont, 2012), pp 137-​138. 78 However, just as a desire for greater economic co-​operation was a factor which encouraged federation, differing economic ideologies among the colonial governments helped delay federation. For example, Victoria in the late 19th century favoured a protectionist policy, that is, high duties on imports so as to protect local industry. New South Wales favoured a free trade policy, that is, lower import duties to encourage competitiveness in local trade. These differences came to the fore during the drafting of the commercial clauses of the Commonwealth Constitution, such as ss 90 and 92. See D Meagher, J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), p 1037. See also [11.10]. 79 In particular, the first draft constitution failed to attract enough support in New South Wales. 80 There was no referendum held in Western Australia at this stage.

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Federal Constitutional Law: A Contemporary View

federation, passed the Commonwealth of Australia Constitution Act in 1900, s 9 of which contained the document to be known as “the Constitution”. The Constitution Act came into force on 1 January 1901, when the Commonwealth of Australia was officially “born”. Western Australia adopted the draft Constitution at referendum in time to be an original member of the new federation.

OVERVIEW OF THE CONSTITUTION [1.85]  The Commonwealth Constitution is arranged in eight chapters. The commentary at [1.90]-​[1.150] gives a brief overview of the most important provisions of the Constitution, and elements of the constitutional system of government established thereunder.

The Parliament [1.90]  Chapter I deals with the Commonwealth legislature, and is divided into five parts. Part I deals with general matters relating to the Parliament. Section 1 vests legislative power in the Commonwealth Parliament, and defines the Parliament as constituting the Queen, the Senate (upper house) and the House of Representatives (lower house). The Queen’s representative is deemed to be the Governor-​General in s 2. The Governor-​General’s main parliamentary role is to assent to legislation. By convention, he or she always does. Section 5 permits the Governor-​General to dissolve the lower house “as he thinks fit”. Again, this power is conventionally exercised on the advice of the Prime Minister.

The House of Representatives [1.95]  Part III deals with the House of Representatives. Section 24 provides the method of election of the House. Other provisions in Pt III deal with miscellaneous matters such as qualifications of electors, duration of the House (that is, the time before members have to retire or submit for re-​election), vacancies, resignations and quorums. As the lower house of Parliament, the House of Representatives follows the tradition of the House of Commons by being the representative “people’s house”. Each Member of the House of Representatives represents a certain constituency or electorate, with all electorates containing roughly the same population to ensure the equality of each elector’s vote.81 Under the doctrine of responsible government, the Prime Minister and Ministers only hold office so long as they retain the confidence of a majority of the members of the House of Representatives.

The Senate [1.100]  Part II deals with the Senate. Most of its sections mirror those in Pt III by providing for matters such as the method of electing the Senate, duration of the Senate, qualifications of voters, Senate vacancies, Senate qualifications, resignations and quorums. Part IV of Chapter I deals with miscellaneous matters pertaining to both 81 Reasonable equality of voting power at the federal level is guaranteed by current electoral laws. Voter equality is not however prescribed by the Constitution. See [13.60].

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Houses of Parliament, such as oaths or affirmations of allegiance, disqualifications, disputed elections, privileges and remuneration. Section 7, in Pt II, prescribes that the “Senate shall be composed of senators for each State, directly chosen by the people of the State”. Furthermore, there must be an equal number of Senators from each of the original States. Tasmanian voters therefore elect the same number of Senators as people from New South Wales, despite the huge difference between the populations of those two States. While the Senate does have some democratic legitimacy, unlike the House of Lords, it is not directly representative of the Australian people, with its in-​built bias towards the smaller States. The Senate was envisaged by the drafters of the Constitution to be a States’ house, similar to the role filled by the United States Senate. The Senate is a concession to the notion of federalism. It was designed to guard the interests of the States against the countervailing interests of the Commonwealth, and to prevent the interests of less populous States being subjugated by larger States. After all, members of the House of Representatives from the larger States dominate the House of Representatives, with Victoria and New South Wales accounting for more than half of the seats. In 1974, the Commonwealth Parliament passed the Senate (Representation of Territories) Act 1973. This Act provided for the election of two Senators from the Australian Capital Territory and the Northern Territory. These Senators had the same powers and rights as other Senators, except that their terms expired upon the dissolution of the House of Representatives.82 The presence of Territorial representatives within the Senate was controversial, as the notion was anathema to the Senate’s role as the States’ house. The States of Western Australia and New South Wales duly challenged the validity of the Act in Western Australia v Commonwealth (Territorial Senators case) (1975) 134 CLR 201. The High Court decided by the barest 4:3 majority that the Act was valid.83 The Territorial Senators case was followed in Queensland v Commonwealth (Second Territorial Senators case) (1977) 139 CLR 585 and decided by a majority of 5:2. Thus, the validity of the position of the Territorial Senators seems assured. It is, therefore, difficult to identify the present-​day Senate as a States’ house. In that regard, however, it is arguable that it never really acted as a bulwark of State power against the interests of the Commonwealth. Rather, the Senate has functioned, like the House of Representatives, as a chamber dominated by party interests.84 Senators virtually always put the interests of their party before any countervailing interests of their State or of the States as a whole.85 As with the House of Representatives, the eligibility of people to run for or even nominate to run for the Senate in an election is governed by s 44 of the Constitution. This provision attracted considerable attention from 2016 to 2018, and possibly 82 State Senators serve a six-​year term under s 13, except when a double dissolution is called under s 57. 83 The reasoning in the Territorial Senators case is examined in greater detail from [1.190]. 84 See, for example, G Sawer, Federation under Strain: Australia 1972–​1975 (Melbourne University Press, Melbourne, 1977), p 124; Meagher et al, n 78, p 93. 85 Independent Senators, such as the late Senator Brian Harradine from Tasmania, have a better record of promoting their State’s interests than Senators from the established parties. See also Williams v Commonwealth (2012) 248 CLR 156 per French CJ at 205-​206.

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beyond, due to the large number of members of Parliament who fell foul of it. Section 44 is discussed below at [1.195] and [1.225].

Relative powers of each House of Parliament [1.105]  Part V deals with the powers of Parliament, including the relative powers of each House of Parliament. Given that, in Westminster systems, the lower house is normally the more powerful House of Parliament, one must ask whether the Senate has the power to frustrate the will of the House of Representatives. Section 53 spells out the powers of each House in respect of legislation. The only explicit restriction on Senate power concerns money bills, which must originate in the House of Representatives, and must not be amended by the Senate. Section 53 then states: Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Thus, each valid law must be passed by simple majority in both the House and the Senate,86 and then receive the assent of the Governor-​General under s 58. The Senate legally has a power of veto over all laws, including money bills.87 Despite its dominance by party politics, the Senate has not functioned as a mere rubber stamp for legislation passed by the House of Representatives. This is because the Senate often has a different political composition to the House for a number of reasons. First, its composition may be distorted by the greater voting power conferred on voters in the smaller States. The Senate is also currently elected by proportional representation, which yields a different distribution of Senate positions to that produced by the constituency-​based voting system for the House of Representatives. Finally, the Houses have different durations. Half of the Senate is normally elected every three years, with every Senator sitting for six years. In contrast, the entire House is elected every three years, or when an early election is called under s 5. These factors often cause the political make-​up of the Senate to be very different to that of the House of Representatives. Indeed, the coalition majority in the Senate, which lasted from mid-​2005 to late 2007, was the first Senate majority for a government since the early 1980s. Commonly now the balance of power is held by a cluster of small and new parties who may, or may not, support government legislation. This fact has prompted arguments that governments should never be required to be responsible to the Senate, as no government can be required to serve “two masters”.88 In particular, this argument supports the notion that the Senate is restrained by convention from rejecting money bills. Regardless of whether a Senate should have the power to bring governments down by rejecting money bills, the Senate is definitely empowered in law and convention to act as a meaningful check on the activities of the House of Representatives and,

86 A simple majority is a majority of Parliamentarians present during a vote, rather than a majority of all Parliamentarians in the respective parliamentary chamber. Of course, there must be a quorum in accordance with ss 22 and 39 of the Constitution. 87 See [1.45] regarding the significance of money bills. 88 See Lipton, n 51, pp 204-​205.

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therefore, of the government. Recent political history demonstrates that the Senate can force governments to amend policies, or even discard them. Given that the political composition of the House of Representatives and the Senate do not necessarily coincide, there is obviously the potential for deadlocks in the legislative process. A hostile Senate could block a government’s entire legislative program. Section 57 provides a process for resolving deadlocks. It provides for an alternative legislative procedure, which allows laws to be passed without formal Senate approval. Section 57 is a complex procedure involving a number of steps. (1) The House of Representatives passes the Bill. (2) The Senate rejects, or fails to pass that Bill, or passes the Bill with amendments to which the House of Representatives will not agree. (3) Three months later, the House of Representatives passes the Bill again. (4) The Senate repeats step 2. (5) The Governor-​General (conventionally upon the advice of the Prime Minister) dissolves both Houses of Parliament, forcing a subsequent election of all parliamentarians (a government therefore risks losing power by attempting to push Bills through the Senate under s 57). (6) After the convocation of the new Parliament, the House of Representatives passes the Bill again. (7) The Senate repeats step 2. (8) The Governor-​General convenes a joint sitting of all members of both Houses of Parliament. (9) If the Bill is passed by an absolute majority of all federal parliamentarians at that joint sitting, the Bill proceeds to step 10. In such joint sittings, the will of the House of Representatives can be expected to prevail as it is the more numerous chamber (s 24 dictates that the number of Members of the House of Representatives be, as nearly as practicable, twice the number of Senators). (10) The Bill receives the assent of the Governor-​General and becomes law. While s 57 has been used seven times to trigger a double dissolution (that is, the submission of the House of Representatives and the entire Senate to an election), the full procedure has rarely been completed. By the end of 2018, only six laws had ever been passed under the s 57 alternative procedure, all in the one joint sitting convened after the Whitlam Government was re-​elected in 1974. Other trigger laws either have been passed in the subsequent Parliament via the standard procedure, or were not passed. In step 2, it is easy to recognise when the Senate has rejected a Bill, or has passed it with amendments to which the House of Representatives will not agree, as both procedures involve a definitive action in the form of a vote. However, controversy arose over the identification of a Senate’s “failure to pass” in Victoria v Commonwealth and Connor (PMA) (1975) 134 CLR 81.89

89

See also Cormack v Cope (1974) 131 CLR 432.

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The Petroleum and Minerals Authority Bill 1973 (Cth) (the PMA Bill) was originally passed by the House of Representatives on 12 December 1973. It was introduced into the Senate on the next day, 13 December. Debate over the Bill was adjourned on that day, and the Senate then adjourned for its Christmas break. The Senate did not resume debate on the Bill until 19 March 1974. The House of Representatives passed the Bill again on 8 April 1974. The Senate voted to defer consideration of the Bill for six months on 10 April 1974. The Governor-​General, on the advice of the Prime Minister, dissolved both Houses of Parliament the next day. After the subsequent general election, where the government was returned with a reduced majority, the House of Representatives again passed the Bill, which was again rejected by the Senate. The Governor-​General then convened a joint sitting, where a majority approved the Bill on 6 August 1974. The Bill then received royal assent and became the Petroleum and Minerals Authority Act 1973 (Cth) (PMA Act). The validity of the Act was then challenged for its alleged failure to comply with the legislative procedures set out in the Constitution. Certainly, the Act had not been passed in accordance with the standard procedure. The issue, therefore, was whether the Act had complied with the requirements of s 57. The problem essentially arose with regard to steps 2 and 3. According to s 57, the second passage of the Bill by the House (step 3, which here occurred on 8 April 1974) must take place at least three months after the completion of step 2. Therefore, step 2 had to have been completed by 8 January 1974. It is clear that by that date the Senate had not rejected or amended the Bill. Had it “failed to pass” the Bill? By that date, the Senate had only had one sitting day to consider the Bill before it had risen for Christmas. Did the Senate “fail to pass” the Bill on that day simply because it did not pass it immediately? If that interpretation had been given to “failure to pass”, it would mean that the calculation of the three-​month period would always start on the day a Senate receives a Bill passed by the lower house. The majority (Barwick CJ, Gibbs, Stephen and Mason JJ) in PMA decided that the Act was invalid for its failure to comply with s 57. Barwick CJ explained (at 122): That a Bill needs consideration and debate is beyond question, though one cannot but observe that due to the dominance of the executive in the House of Representatives and perhaps, at times, in the Senate, opportunity for debate may be very attenuated. But, whatever the exigencies of party politics, the Constitution cannot be read as if laws ought to be passed by the Senate without debate, or as if the House of Representatives may in any respect command the Senate in relation to a Bill. Thus, in approaching the meaning of the word “fails” in s 57, it must be borne in mind that the Senate is both entitled and bound to consider a proposed law and to have a proper opportunity for debate and that its concurrence, apart from the provisions of s 57, is indispensable to a valid act of the Parliament. It seems to me that the word “fails” in s 57 involves the notion that a time has arrived when, even allowing for the deliberative processes of the Senate, the Senate ought to answer whether or not it will pass the Bill or make amendments to it for the consideration of the House: that the time has arrived for the Senate to take a stand with respect to the Bill. If that time has arrived and the Senate rather than take a stand merely prevaricates, it can properly be said at that time to have failed to pass the Bill. In considering whether such a time has arrived, it may be that antecedent conduct of the Senate, particularly in relation

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to the proposed law, may be relevant. But it will be the conduct of the Senate itself and not the conduct or opinions or anticipatory statements of individual senators, whatever may be their party standing or party authority, which can have any relevance to the question whether, the situation having been reached where the Senate is called upon to give an answer on the Bill, it has failed to pass it.

Barwick CJ added (at 123): I have no doubt that it cannot properly be said that when the Senate resolved on 13th December 1973 to adjourn the debate on the motion for a second reading until in effect the next sitting day, it had failed to pass the Bill. In my opinion, it could not be said that the time had arrived that day where the Senate was in any sense obliged to express itself definitively on the Bill. The concept of failure to pass must, it seems to me, mean more than “not pass”. Failure in this sense imports, as I have said, the notion of the presence of an obligation as a House to take a definitive stand.

The majority decision in PMA helps to ensure that the deliberative processes of the Senate when scrutinising government Bills are respected, and that the Senate is not pressured into hasty consideration of Bills, which may be very complex and of vital importance to the nation. However, the decision does mean that it is very difficult to discern exactly when a Senate has “failed to pass” a Bill. The criterion outlined by Barwick CJ, the time when the Senate must “take a stand”, is not capable of precise identification. Given that the consequence of a failure to comply with s 57 is to render an affected Bill invalid, it is unfortunate that the requirements of s 57 are in this respect unclear. The Senate (Representation of Territories) Act 1973 (Cth) was passed along with the PMA Act in the same joint sitting in August 1974. The Senate (Representation of Territories) Bill was passed by the House of Representatives on 30 May 1973 and rejected by the Senate on 7 June 1973. It was passed a second time by the House on 27 September 1973, and rejected again by the Senate on 14 November 1973. There was then a six-​ month hiatus before the double dissolution was called on 11 April 1974. It was argued in the Territorial Senators case that the double dissolution must not be unduly delayed, lest a government abuse the s 57 procedure by stockpiling Bills to enable multiple enactments at a joint sitting. The High Court unanimously rejected this argument. Only Barwick CJ felt that there was any requirement for the double dissolution to take place within a “reasonable time” after the Senate’s second rejection of a Bill; he did not feel that the requirement was breached in this case. Interestingly, in the Territorial Senators case, Murphy J argued that s 57 was non-​ justiciable as it raised “political” issues to be resolved by the Governor-​General in Council (see [5.10]), rather than the courts (at 293-​294). Jacobs J agreed, feeling that any defect in the procedure could be resolved by the people voting at the requisite general election (at 275-​276). This view had been previously iterated by McTiernan J in the minority in PMA (who was silent on the issue of s 57 in the Territorial Senators case). It would certainly be arguable in a future s 57 case that issues raised under that section were non-​justiciable, considering the extent of previous judicial support for that view. The consequence of non-​justiciability is that any defects in following s 57 could not be argued in a court, so any resultant statute would not be invalid by reason of such defects.

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One benefit of the non-​justiciability argument is to cure an anomaly evident in the majority reasoning in PMA. While the majority found that the validity of legislation could be tested for alleged contravention of s 57, the majority also found that the validity of a double dissolution and general election held under s 57 (step 5) could never be questioned, even if the prerequisites for such a double dissolution (that is, steps 1-​4) had not been properly executed. Such reasoning is undoubtedly convenient, as an invalid general election could lead to the validity of all of the legislation of a subsequent Parliament being questioned. However, such reasoning is not internally logical.90 If step 5 is effectively non-​justiciable, perhaps the whole of s 57 should also be non-​justiciable.

Powers of the Commonwealth Parliament [1.110]  Part V of Chapter I also deals with the powers of the Commonwealth Parliament as an entity. Section 51 spells out 39 separate legislative powers that may be exercised by the Parliament.91 The s 51 powers are largely held concurrently with the State Parliaments. Section 52 spells out three powers exclusively held by the Commonwealth. The Commonwealth Parliament was established by the Constitution, so it obviously had no powers prior to the Constitution. It is critical to note that the Parliament only has the enumerated powers specifically conferred by the Constitution. An exercise of Commonwealth legislative power must be specifically authorised by the Commonwealth Constitution or the legislation will be invalid.92 The States are in a different position. There is no need to find specific authority for an exercise of legislative authority by a State Parliament in the Commonwealth Constitution. State legislation is generally valid unless it is specifically prohibited by the Commonwealth Constitution.93

Chapter II: The executive [1.115]  Chapter II of the Constitution deals with the executive power of the Commonwealth. Section 61 prescribes that executive power is vested in the Governor-​ General. Section 64 provides for the appointment of Ministers of the Crown to head administrative departments. The Ministers are also members of the Federal Executive Council, which advises the Governor-​General in the exercise of some of his executive powers (s 62). Chapter II now paints an unfamiliar picture of executive power in Australia. The Governor-​General is vested with enormous power, whereas the Prime Minister and Cabinet, the most important members of the executive government, are not even mentioned. It is in the arena of executive power where conventions are probably most prevalent and most important. Thus, much of the constitutional law surrounding

90 See Meagher et al, n 78, p 221. 91 A number of s 51 powers are examined in succeeding Chapters. 92 See Chapter 2 on the process of characterisation of Commonwealth laws. 93 There are some restrictions on State power in the State constitutions. See [1.145].

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the exercise of federal executive power cannot be found written in the Constitution. Chapter II is addressed in Chapter 5.

Chapter III: The judiciary [1.120]  Chapter III deals with the federal judicature. Section 71 provides for the exercise of the judicial power of the Commonwealth in the High Court, other federal courts and State courts. The judicial power of the Commonwealth is defined in ss 75 and 76, and coincides with the original jurisdiction of the High Court. Section 73 describes the appellate jurisdiction of the High Court. Section 72 deals with the tenure of federal Judges. The chapter also contains a limited guarantee of trial by jury in s 80 (see [12.65]). Chapter III is addressed in Chapter 6.

Chapter IV: Finance and trade [1.125]  As commercial considerations provided some of the main impetus for federation, it is not surprising that an entire chapter of the Constitution, Chapter IV, is devoted to finance and trade. Sections 81 and 83 provide for Parliamentary control over executive money-​raising and expenditure. Sections 88-​92 are designed to harmonise customs and excise policies throughout the nation, and create a free trade area within Australia. Section 96 provides for the provision of financial aid by the Commonwealth to any State. Sections 105 and 105A provide that the Commonwealth may make arrangements to take over State debts and raise loans. A number of provisions in Chapter IV are addressed in separate chapters of this book (see Chapters 9-​11).

Chapter V: The transformation of the colonies into States [1.130]  Chapter V formally transforms the pre-​existing six colonies into States of the Commonwealth. Section 106 expressly preserves the validity of the colonial constitutions, until altered in accordance with the relevant State’s constitution. Section 107 confirms that the States retain their colonial powers except to the extent that those powers have been removed by the Constitution. Section 107 thus confirms the retention of residual legislative power by the States. Section 109 is one of the most important constitutional provisions. As the matters listed in s 51 are areas of concurrent power, there is great scope for the passage of inconsistent federal and State laws. Section 109 provides that, in the case of such inconsistency, the Commonwealth Act prevails (see Chapter 7). Other provisions in Chapter V relate to various matters such as a ban on States coining money, a prohibition on federal laws which curtail freedom of religion (s 116 –​see [12.70]-​[12.90]), and, in s 117, a guarantee of non-​ discrimination on the basis of interstate residence. Section 117 is one of a number of constitutional provisions designed to help bolster a new national identity as opposed to a colonial identity.

Chapter VI: New States and the Territories [1.135]  Chapter VI deals with new States. Most of its provisions have never been utilised, as no new State has been admitted to the Commonwealth since federation. In 1999, a majority at referendum in the Northern Territory rejected a proposal for statehood. A positive referendum would not have transformed the Northern Territory

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into a State, though the wheels may have been set in motion for the Territory to achieve constitutional statehood under s 121. Section 122 vests power in the Commonwealth with regard to territories “surrendered by any State … or otherwise acquired by the Commonwealth”. Since federation, South Australia has ceded the Northern Territory to the Commonwealth, while New South Wales has surrendered the Australian Capital Territory. Other Territories owned by the Commonwealth include Christmas Island, Norfolk Island and the Australian Antarctic Territory. Under s 122, the Commonwealth may exercise plenary power over these Territories in contrast to the limited enumerated power it has within the States. However, the extent of federal plenary power in the Territories is uncertain. The High Court used to routinely hold that certain constitutional prohibitions on federal power, such as the s 80 guarantee of trial by jury, did not apply to laws enacted under s 122.94 In Wurridjal v Commonwealth (2009) 237 CLR 309, the Court overturned a prior decision in confirming that the prohibition on the acquisition of property under federal legislation (see s 51(xxxi)), the payment of just terms applies to constrain federal legislative power under s 122 (see [12.55]). In doing so, French CJ stated (at 253-​254): Section 122 authorises laws which, while they must be for the government if a territory, may have application in the States. The legislative powers of the Commonwealth Parliament are generally capable of application to the States and Territories. These considerations indicate that an integrated approach to the availability of legislative powers and limits on them throughout the Commonwealth is to be preferred where the language of the Constitution so permits. That conclusion favours, although it is not determinative of, the proposition that s 122 is subject to limitations on legislative powers which are of general application.

The Chief Justice was therefore indicating a preference for the general application throughout the entire nation, including the Territories, of constitutional restrictions on federal power. Kirby J, on the same point in the same case, criticised the Court’s previous tendency to exclude s 122 laws from the ambit of constitutional prohibitions on federal power (at 308): One day this Court will correct the unsatisfactory state of its doctrines in relation to the Territories, their people and courts. We should begin that process in these proceedings.

It is possible that Wurridjal might signal a less expansive approach to the interpretation of federal power in the Territories.

Chapter VII [1.140]  Chapter VII deals now with only two issues. Section 125 prescribes the location of the seat of the federal government, the Australian Capital Territory. Section 126 authorises the Governor-​General to delegate some of his duties to deputies. Section 127 used to prescribe that Aborigines would not be counted in the census for “reckoning the numbers of people” in the Commonwealth or the States. It was

94 See, for example, R v Bernasconi (1915) 19 CLR 629 regarding s 80 ([12.65]) and Teori Tau v Commonwealth (1969) 119 CLR 564 regarding s 51(xxxi) ([12.55]).

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assumed by the drafters that the Indigenous population was itinerant, unstable and, in any case, dying, so their number should not be counted for census purposes which would then be used to draw electoral boundaries and determine the number of constituencies per State. Section 127 reflected the disdain with which the drafters regarded the Indigenous population. It was deleted by constitutional amendment in 1967 (see [14.25]).

Chapter VIII: Amendment of the Constitution [1.145]  Chapter VIII contains only one provision, s 128, which deals with amendment to the Constitution. All statutes except the Constitution may be amended or repealed, expressly or impliedly, by subsequent inconsistent legislation. Section 128, however, shields the Constitution from this ordinary process of amendment, and prescribes a more onerous process for amendment. Section 128 can also be seen as a head of power. The Constitution was passed as part of an Imperial Statute, so upon federation the Commonwealth would not have had any power of amendment without the inclusion of s 128. The amendment procedure prescribed by s 128 boils down to the following. The amendment must normally be passed by an absolute majority in both houses of Parliament.95 Within six months the proposed law must be submitted for referendum in each State and Territory. The amendment will only become law if it is passed by a majority of electors within Australia, as well as a majority of electors within a majority of States. If a proposed amendment specifically affects one State, it must be approved by a majority of electors in that State. There is therefore a “double majority” requirement. It is possible for an amendment to receive majority support within Australia, and yet fail to receive approval from the majority of voters in the majority of States.96 The will of the majority of Australians can therefore be thwarted by the minority. The double majority requirement is a concession to the federal nature of Australia, to again prevent the most populous States from trampling the interests of the smaller States. Section 128 has proven extraordinarily successful in protecting the Constitution from alteration. Forty-​four referendums have been held since federation, and only eight amendments have been passed. Constitutional amendments have only been approved when they have received bipartisan support, and even then have occasionally failed. Section 128 is known as a “restrictive procedure” or a “manner and form” provision in that it restricts the manner in which Parliament may amend the Constitution.97 In this respect, s 128 “entrenches” the Constitution. It is the fact of entrenchment which essentially gives the Constitution its status as the superior law of Australia. The Constitution would be an illusory fetter on government power if it could be amended in the normal manner, as inconsistent legislation would simply be taken to amend the Constitution. Entrenchment is a digression from the notion of parliamentary

95 An alternative procedure is prescribed in the second paragraph. It is similar to the procedure described in s 57 (on which see [1.105]) though a referendum is still required. 96 This has occurred a number of times: in 1937, 1946 (on two issues) and 1977. 97 Another name for a restrictive procedure is a “manner and form” provision.

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sovereignty, as the Parliament is denied ordinary powers of amendment with regard to the entrenched subject matter.98 Entrenchment distinguishes the Commonwealth Constitution from the State constitutions. The State constitutions followed more closely the British tradition of parliamentary sovereignty as none are entirely protected by a restrictive procedure like s 128. The “flexibility” of State constitutions is the reason why they do not effectively restrict the powers of State legislatures. However, certain sections of State constitutions are entrenched.99 For example, s 73(2) of the Western Australian Constitution entrenches numerous important elements of the Western Australian government, including the composition of the Parliament, by requiring a referendum for the passage of certain constitutional amendments. Section 85(5) of the Victorian Constitution entrenches the jurisdiction of the Supreme Court of Victoria by requiring that any amendment thereof be expressly mentioned in a statute. Section 85(5) does not prescribe a particularly burdensome procedure. However, it does limit Parliament’s power of implied repeal.100 In 2003 the Victorian Parliament enacted the Constitution Parliamentary Reform Act 2003 (Vic), which amends s 18 of the Victorian Constitution. Section 18 now entrenches various parts of the Constitution by one of three different methods: a referendum of Victorian electors, a special majority of three-​fifths of the whole number of members of the Assembly and the Council or an absolute majority of the whole number of the members of both Houses.

Appraisal of the Constitution [1.150]  A perusal of the Australian Constitution reveals it to be a pragmatic rather than an inspiring document.101 In this respect, it is important to remember that the desire to federate did not evolve from a desire to be free from the colonial master, the United Kingdom. The colonies predominantly wished to federate for practical reasons rather than revolutionary reasons. This may be contrasted with the decolonisation experience of the United States, where a war of emancipation was fought to eject the British. One result of this contrast in United States and Australian history was that the drafters of the United States Constitution were much more concerned with issues of emancipation and freedom from oppression. Thus, the United States Constitution contains a Bill of Rights to protect the individual against the State, which constitutes a considerable restraint on the power of United States legislatures. In contrast, freedom of the individual was not a major concern of the drafters of the Australian Constitution, who omitted a bill of rights. The Australian Constitution therefore

98 It is uncertain whether British Parliaments can enact binding restrictive procedures. See Allen and Thompson, n 25, pp 62-​73. 99 On the powers of State parliaments to prescribe restrictive procedures and thus bind their successors contrary to the doctrine of parliamentary sovereignty, see J Pyke, Constitutional Law (Palgrave Macmillan, South Yarra, 2013), Chapter 15; G Carney, “Manner and Form” in G Carney (ed), The Constitutional Systems of the Australian States and Territories (Cambridge University Press, London, 2006). 100 On the Victorian restrictive procedures, see H P Lee, “Manner and Form: An Imbroglio in Victoria” (1992) 15 University of NSW Law Journal 516; G Taylor, The Constitution of Victoria (Federation Press, Annandale, 2007), Chapter 8. 101 See Justice M Kirby, “The Australian Constitution: A Centenary Assessment” (1997) 23 Monash University Law Review 229 at 243.

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adhered more closely to the British tradition of parliamentary sovereignty and trust in the rule of law. The Constitution essentially reflects the contemporary attitudes of the drafters and the persons in power in the colonies: white, wealthy men. Indeed, in most colonies only men were permitted to vote on whether to adopt the draft Constitution. What were the thoughts regarding federation of the “others”, those excluded from the drafting and approval process? Indigenous Australians had no input into the drafts, and are conspicuous in their virtual absence from the resultant document. No acknowledgment of their prior custodianship of the land is included. The constitutional silence implicitly permitted and lent legitimacy to the continuation of abuse of the human rights of Indigenous people. Section 127 typified the drafters’ belief that the Indigenous peoples were an irrelevant dying race. Section 51(xxvi), the race power, explicitly removed Indigenous peoples from the scope of the Commonwealth Parliament’s power over race. A referendum in 1967 amended s 51(xxvi) to give the Commonwealth power over “the aboriginal race”, and deleted s 127. However, the continuing constitutional silence over Indigenous history should not continue.102 Women were also largely excluded from the Convention debates, both directly and indirectly, as they only had a right to vote for the Convention delegates in South Australia. Irving has persuasively argued that the Constitution reflects a gendered (male) view of the “essentially federal matters” that deserved explicit attention in the federation document.103 Whereas public, external “male” concerns such as defence, trade and commerce, and external affairs were addressed in the Constitution, the chief concerns of women of that time, such as social welfare reform,104 the welfare of the family105 and the domestic “private” sphere, were in the main omitted and therefore left constitutionally unregulated within the States’ domain. A key concern of women in 1901 was the issue of women’s suffrage. At federation, women only had a right to vote in South Australia and Western Australia. A suffragette victory can be seen in s 41, which guarantees all persons with a State franchise in 1901 a Commonwealth franchise. Therefore, adult women (and men) in South Australia and Western Australia in 1901 were guaranteed a right to vote at Commonwealth level. The utility of s 41 has, however, been exhausted, as it only applies to persons who were adults in 1901.106 Instead, the High Court has since uncovered an implied right to vote (see [13.70]).

102 See further [14.35]. 103 H Irving, “A Gendered Constitution? Women, Federation and Heads of Power” (1994) 24 University of Western Australia Law Review 186. 104 A “social welfare” head of power, s 51(xxiiiA) was added by constitutional amendment in 1946. Further, s 51(xxiii) gives the Commonwealth power over invalid and old age pensions. 105 In this respect, Irving (n 103) expresses surprise at the inclusion of s 51(xxii), giving the Commonwealth power over “divorce and matrimonial causes” at 193. “Marriage” is another head of power in s 51(xxi). 106

See R v Pearson; Ex parte Sipka (1983) 152 CLR 254, discussed in [12.105].

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CUTTING THE APRON STRINGS: FROM FEDERATION TO THE AUSTRALIA ACTS [1.155]  Upon federation, the Australian colonies (the renamed States) remained subordinated to the Westminster Parliament under s 2 of the Colonial Laws Validity Act 1865 (Imp). The same applied to the new Commonwealth entity. How did the Commonwealth and the States become free of Imperial control?

Statute of Westminster [1.160]  The first major emancipating step was the passage of the Statute of Westminster 1931. After a series of “Imperial Conferences” among the United Kingdom and its dominions from 1917 and throughout the 1920s, at which it became clear that these dominions were factually if not legally independent, the Statute of Westminster 1931 was enacted in 1931. The Statute did not apply to Australia until it was specifically adopted by the Commonwealth Parliament (s 10). This occurred with the passage of the Statute of Westminster Adoption Act 1942, with adoption backdated to the beginning of the Second World War in 1939. Section 1 of the Statute declared that it applied to the United Kingdom’s “dominions” which are therein identified. These dominions included the Commonwealth of Australia, but not the States, so the Statute had no effect on the States’ legal relationship with the United Kingdom. The commentary below focuses only on the Statute’s effect on the Commonwealth, rather than its effect on the other dominions. Of course, no section applied to the Commonwealth until after the date of adoption, 3 September 1939. Section 2(1) declared that the Colonial Laws Validity Act 1865 (Imp) would not apply to any law of the Commonwealth after the date of its adoption. Section 2(2) confirmed that no law of a dominion would be held to be invalid for the reason of repugnance to any law of the United Kingdom. Section 2(2) also gave the Commonwealth the power to repeal or amend any United Kingdom Act which had previously applied to it; otherwise the Commonwealth would have been forever bound by Imperial Acts passed before 1939. Section 3 declared that the Commonwealth Parliament had full extraterritorial power. While the 19th century presumption against extraterritorial colonial power had waned by 1939 (see [4.10]), s 3 provided ironclad confirmation of the existence of such power. Section 4 removed the power of the United Kingdom Parliament to extend legislation to the Commonwealth except in one circumstance, where the Commonwealth passed an Act requesting and consenting to the enactment thereof. Section 8 is a savings provision; it ensured that nothing in the Statute authorised the Commonwealth to override the Commonwealth Constitution. Thus, the sanctity of s 128 was preserved. Given s 8, s 9 was possibly superfluous. It stated that nothing in the Statute authorised the Commonwealth to make laws in areas of exclusive State power. Thus, as of 3 September 1939, the Commonwealth was legally free from the Parliament of the United Kingdom.

The Australia Acts [1.165]  The States remained legally subservient to the United Kingdom until 1986. For example, in China Ocean Shipping v SA (1979) 145 CLR 172, the High Court found South Australian legislation invalid due to its inconsistency with an 1894 United

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Kingdom merchant shipping law. In 1986, a series of Acts were passed in order to fix this anomalous legal position. In 1986, the Commonwealth Parliament passed the Australia Act 1986 (Cth). In order for the Australia Act 1986 to be valid, there must be a relevant head of power authorising its enactment in the Commonwealth Constitution. The relevant head of power was s 51(xxxviii), which grants power to the Commonwealth Parliament with respect to: The exercise within the Commonwealth, at the request and with the concurrence of all the States directly concerned, of any power which can at the establishment of this Constitution [in 1901] be exercised only by the Parliament of the United Kingdom.

Section 51(xxxviii) appears to authorise the exercise of considerable legislative power by the Commonwealth if it can obtain the request and consent of the relevant States. In 1986, all of the States passed an Australia Acts (Request) Act 1986. These Acts constituted legislative requests and consents by all States for the Commonwealth to terminate United Kingdom power over them, a power which could, in 1901, only have been exercised by the United Kingdom. The legislative scheme of the Australia Act 1986 (Cth) with regard to the States was very similar to that applied to the Commonwealth by the Statute of Westminster 1931. Section 1 terminated the power of the Parliament of the United Kingdom to legislate for any of the States. Thus, as of 1986, no law of the United Kingdom could extend to the States. Section 2(1) confirmed that the States have extraterritorial power. Again, that section may merely have confirmed pre-​existing law.107 Section 2(2) confirmed the plenary power of the States found in their own Constitutions. Section 3(1) terminated the Colonial Laws Validity Act 1865 (Imp) insofar as it applied to the States so, as of 1986, no State law could be void for reason of repugnance to British law. Section 3(2) granted each State power to repeal or amend any law of the United Kingdom that had been extended to it. Section 5 expressly declared ss 2 and 3 to be subject to both the Commonwealth Constitution and the Statute of Westminster 1931. Section 12 repealed certain sections of the Statute of Westminster 1931, in particular s 4, which had contained residual British power to legislate for the Commonwealth. Finally, s 15 entrenches both the Australia Act 1986 and the remaining sections of the Statute of Westminster 1931. Neither Act could be amended except by a s 128 constitutional amendment, or with the request and consent of all of the States. Section 15 thus cuts the apron strings, ensuring that a return by the Commonwealth or the States to British legal rule is virtually impossible. However, two more Acts were passed in order to ensure this severance of legal ties. Prior to passage of its Australia Act 1986, the Commonwealth passed the Australia (Request and Consent) Act 1985. This constituted a legislative request by the Commonwealth to the British Parliament to cut its legal ties with the States. Under s 4 of the Statute of Westminster 1931 (which was subsequently repealed by the

107 See C Gilbert, “Extraterritorial Laws and the Australia Acts” (1987) 17 Federal Law Review 25. See also [4.10].

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Australia Act 1986 (Cth)), the Parliament of the United Kingdom could still extend Acts to the Commonwealth if such enactment was requested and consented to. The British Parliament subsequently enacted the Australia Act 1986 (UK), which contains virtually identical terms to the Australia Act 1986 (Cth). The British Act was considered necessary in order to harmonise the legal positions in Australia and the United Kingdom. Furthermore, there was thought to be no doubt about the validity of the British Act.108 There were significant doubts about the validity of the Australia Act 1986 (Cth) at the time of its enactment. Section 51(xxxviii) had never been interpreted, so its scope was uncertain. In Attorney-​ General (WA) v Marquet (2003) 217 CLR 545, the majority confirmed the validity of the enactment of at least parts of the Australia Act 1986 (Cth) under that head of power.109 Notably, the High Court rejected the necessity for, and relevance of, the United Kingdom version of the Australia Act 1986 in Marquet by basing its reasoning on the Australian version of the Acts.110 Nevertheless, doubts may still perhaps be raised over the validity or the effectiveness of s 15 of the Commonwealth Act.111 In short, the Australia Acts severed the legal relationship between the United Kingdom and Australia from 1986 onwards, while preserving legal continuity and ensuring that no constitutional void resulted.112

An Australian republic in waiting? [1.170]  Australia is now independent in law from the Parliament of the United Kingdom. At the latest, with the enactment of the Australia Acts in 1986, Australia “was transformed into a sovereign independent nation”.113 In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, Callinan J stated (at 82): While a precise date at which Australia actually achieved complete constitutional independence may not, in strict legal, or indeed historical theory, be able to be determined, it is highly desirable that a point in time by which it had occurred be nominated.

108 Kirby J in Attorney-​General (WA) v Marquet (2003) 217 CLR 545 at 612 doubted the continued ability of the United Kingdom to legislate with respect for Australia in 1986. He was in the minority on this point, and later conceded the validity of the Australia Act 1986 (UK) in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 66. 109

See Attorney-​General (WA) v Marquet (2003) 217 CLR 545 at 570-​571. See also Port MacDonnell Professional Fisherman’s Association Inc v South Australia (1989) 168 CLR 340 at 381.

110 Note that Kirby J doubted the validity of the Australia Act 1986 (Cth) in Marquet, but conceded the point in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 66. 111 See J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), pp 459-​461. Section 15 of the Australia Act 1986 (Cth) appears to impose a restrictive procedure for amending that Act. Such a restrictive procedure is not authorised by the Constitution which provides only three methods for passing Commonwealth laws in ss 53, 57 and 128. See also Kirby J in AG (WA) v Marquet (2003) 217 CLR 545 at 612-​615. 112 See A Dillon, “A Turtle by Any Other Name: The Legal Basis of the Australian Constitution” (2001) 29(2) Federal Law Review 10. 113 See Gleeson CJ, Gummow, Hayne JJ and Gaudron J, in Sue v Hill (1999) 199 CLR 462.

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Callinan J, with whom McHugh and Kirby JJ agreed, came to the following conclusion on the “magic date” of Australia’s constitutional independence from the United Kingdom (at 86): In my opinion, the correct date for the change in status of a subject of the Queen in Australia can be no earlier than the coming into force of the Australia Acts: 3 March 1986. The long title of the Australia Act 1986 (Cth) is: An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation. It was this overt legislative act, mirroring simultaneous legislation in the United Kingdom, that gave voice to the completion of Australia’s evolutionary independence. It was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom. Nothing can serve so well to give legitimacy to a nation and its constitutional integrity as a rare and complete consensus of governments of the kind that the enactment of the Australia Acts represents.

Callinan, McHugh and Kirby JJ found in Shaw that the appellant Shaw, a British citizen who gained permanent residency in Australia as an infant in 1974, could not be classified as an alien for the purposes of an exercise of power under the aliens power (s 51(xix)) under the federal Constitution, and therefore could not be lawfully deported. They were, however, in the minority. In a joint judgment, three members of the Shaw majority (Gleeson CJ, Gummow and Hayne JJ) appeared to agree that Australia probably gained constitutional independence with the passage of the Australia Acts.114 However, the consequences of that independence were not as profound for the joint judges as for the minority. In particular, the joint judges felt British citizens who arrived in Australia prior to 1986 could nevertheless be classified as “aliens”. Our only remaining legal tie with a British institution lies in our status as a constitutional monarchy, with the Queen of England, in her capacity as Queen of Australia, as our head of State. The Governor-​General, now an Australian, performs the Queen’s duties, which are largely ceremonial, as her representative. In late 1999, a proposed constitutional amendment was put to the Australian people to transform Australia into a republic by replacing the Queen and the Governor-​ General with an Australian President. The referendum failed in every jurisdiction except the Australian Capital Territory. While polls indicate that a majority of Australians would like to have an Australian head of State, debate has arisen over the appropriate model for an Australian republic. In particular, divisions have arisen over whether the head of State should be directly elected by the people, or whether the head of State should be appointed by the Parliament or, as now, the executive. Until some sort of consensus among republicans can be reached in this respect, the status quo will probably remain.115 114 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 40-​41. Heydon J, also in the majority, did not comment on this matter. 115 See, for example, G Williams, “Where to Now?” (1999) 24 Alternative Law Journal 299; C Munro, “More Daylight; Less Magic: The Australian Referendum on the Monarchy” (2000) Public Law 3.

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JUDICIAL REVIEW [1.175]  Australian statutes must conform to the Constitution. It is ultimately the courts, particularly the High Court as the highest court in the land, who are charged with interpreting and applying the principles of the Constitution.116 Australian courts therefore have the power of judicial review over Acts of Commonwealth and State Parliaments, and the consequent power to strike such statutes down for want of constitutionality.117

The High Court of Australia [1.180]  As the ultimate guardian of the Constitution, the character of the High Court is of the utmost importance in Australia. It is of course vitally important that its independence from interference by the political arms of government is ensured. This independence is in fact guaranteed by the Constitution’s protection of the separation of judicial power (see Chapter 6). The High Court, however, is not an apolitical institution. Its decisions may obviously have huge political ramifications, as they can constitute an insurmountable hurdle for executive government agendas. For example, Chifley’s attempts to nationalise the banking industry,118 Menzies’ attempts to outlaw communism at the height of the Cold War,119 Hawke’s attempt at harmonising corporations law120 and various State revenue-​raising schemes121 have all been derailed by High Court decisions. While the judiciary is protected by the doctrine of the separation of powers, the executive government still has one avenue of intrusion into the independence of the High Court, in that it is in charge of appointments to the Bench. Section 72(i) states that federal justices are appointed by “the Governor-​General in Council”; in fact they are appointed by the Governor-​General on the advice of the executive, normally the Attorney-​General. There are no other constitutional constraints upon appointment. Indeed, there are no constitutional qualifications specified for a High Court Justice.122

116 This is indisputable after the passage of s 11 of the Australia Act 1986 (Cth) which effectively abolishes all appeals from within Australia to the Judicial Committee of the Privy Council. 117 See the seminal case on judicial review under the United States Constitution, Marbury v Madison 5 US (1 Cranch) 137 (1803). 118 See Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1. 119 See Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1. For a comprehensive overview of this case, see G Winterton, “The Significance of the Communist Party Case” (1992) 18 Melbourne University Law Review 630. 120

See New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR 482.

121

South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373; Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575 (on s 96); Ngo Ngo Ha v New South Wales (1997) 189 CLR 465 (on s 90).

122 See Williams et al, n 20, p 433. Legal qualifications are specified in s 7 of the High Court of Australia Act 1979 (Cth).

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Though proposals for a more open process have been made, High Court Justices are still chosen by the Cabinet.123 Despite the government power over High Court appointments, there have been relatively few blatantly political appointments. Of course, any attempted “political appointment” can go awry, as the executive government is not in charge of the removal of judges. A judge can change their political values while on the Bench. For example, the eventual activism of Sir Anthony Mason and Sir William Deane would possibly not have been foreseen upon their appointments by conservative governments in, respectively, 1972 and 1982.124 Historically the legal profession and judiciary, the training ground for High Court Justices, tended to be more conservative than the population at large. Therefore, conservative parties did not have to make seemingly “political” appointments in order to appoint someone with non-​Labor sentiments.125 On the other hand, Labor appointments looked more “political” as the candidate often reflected left-​wing views which were not typical among Bar leaders.126 For example, Barwick CJ was appointed by Robert Menzies as Chief Justice after having served as Attorney-​General in the Menzies Government. Given his brilliant career at the bar, his appointment was hardly contentious. In contrast, Gough Whitlam’s appointment of his first Attorney-​General, Lionel Murphy, to the High Court in 1975, was far more divisive. A controversial appointment was possibly that of Callinan J in 1998, as he was the first appointee straight from the Bar for many years. Further, his appointment by Prime Minister John Howard had been preceded by blatant calls from conservative politicians such as Queensland Premier Rob Borbidge and Deputy Prime Minister Tim Fischer for a “big C Conservative” in light of the perceived activism, particularly in the native title arena, of the High Court.127 Indeed, the extreme affront with which the conservative Howard government greeted certain High Court decisions, especially Wik Peoples v Queensland (1996) 187 CLR 1,128 indicated that the 1997 Court had moved to the left of the government. Indeed, given the move to the right of both the Labor and Liberal/​ National parties since the 1980s, with Labor arguably now occupying the “centre”, it is not so easy to characterise the 21st century bar and judiciary, the pool from which future High Court Justices will be drawn, as natural supporters of conservative politics.129 123 Under s 6 of the High Court of Australia Act 1979 (Cth), the Attorney-​General is required to consult with the Attorney-​Generals of the States before making an appointment. This is a procedural requirement only, and does not fetter the Cabinet’s discretion in appointing High Court Justices. 124 This is not to suggest that the appointments of Mason and Deane JJ were “political”. 125

G Sawer, Australian Federalism in the Courts (Melbourne University Press, Melbourne, 1967), p 64.

126 Sawer, n 125. See also A Blackshield, “The Appointment and Removal of Federal Judges”, in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, Melbourne, 2000), pp 426-​427. 127 Solomon, n 62, pp 50 and 236. See also Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1. 128

In Wik, the High Court decided that pastoral leases did not necessarily extinguish native title rights.

129 See A Goldsmith, “A Profile of the Federal Judiciary”, in Opeskin and Wheeler, n 126, pp 365-​399 for a discussion of an empirical study on the backgrounds of Australian federal judges.

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There have undoubtedly been trends within the High Court’s interpretation of the Constitution, sometimes inspired by the prevailing personalities on the bench at a particular time. For example, in the early 1990s, the “Mason Court” took an unprecedented interest in the protection of human rights. This was most famously evinced in the Mabo (No 2) case, where the majority was unwilling to perpetuate the unjust terra nullius myth, despite its long-​standing recognition in Australian common law. More importantly for constitutional lawyers was the sudden discovery, after decades of High Court ambivalence to human rights, of an implied constitutional right of free political communication in Australian Capital Television v Commonwealth (1992) 177 CLR 106, and the subsequent extension of that doctrine by a majority in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers (1994) 182 CLR 211. Furthermore, an implied constitutional right of due process was found in Leeth v Commonwealth (1992) 174 CLR 455. Toohey J openly talked extra-​curially of the possibility of an “implied Bill of Rights”.130 The retirement of Mason CJ in 1995, followed closely by Deane J, appointed to the post of Governor-​General in 1996, signalled the end of this high tide of human rights recognition within the High Court. The Theophanous definition of the implied right of free communication was watered down in Lange v Australian Broadcasting (1997) 189 CLR 520 (see [13.20]). However, an implied right to vote was endorsed by the Court in Roach v Electoral Commissioner (2007) 233 CLR 162 (see [13.65]). It appears that the implied freedom of political communication and the right to vote may be the two of very few implied rights that the Court will be willing to squeeze out of the Constitution. A second human rights front opened up in the area of due process and separation of powers, sourced in Chapter III of the Constitution. This development was evinced in cases such as Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The interpretations by the Gleeson Court of due process rights in cases such as Al-​Kateb v Godwin (2004) 219 CLR 562, Baker v The Queen (2004) 223 CLR 513, Fardon v Attorney-​ General for the State of Queensland (2004) 223 CLR 575 and Thomas v Mowbray (2007) 233 CLR 307 suggested that those rights were very narrow. However, a series of cases from the French Court on the application of the Kable principle, such as South Australia v Totani (2010) 242 CLR 1 and Wainohu v NSW (2011) 243 CLR 181 (see [6.112]), signalled a potentially broader scope for due process rights with respect to states courts.

Constitutional interpretation [1.185]  The principles underlying constitutional interpretation are not very different from those underlying the interpretation of ordinary statutes. There are a number of interpretative techniques a Judge may adopt in interpreting statutes. As the Constitution, being a fundamental document, is phrased in more open and general language than, for example, a tax or a real property statute, there is more scope for flexibility in a Judge’s interpretation of the Constitution, and more scope for a Judge to pick and choose from a number of interpretative techniques. In SGH v Commissioner of Taxation (2002) 210 CLR 51, Gummow J stated (at 75): 130 Toohey, n 21, p 170.

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Questions of construction of the Constitution are not to be answered by the adoption and application of any particular, all-​ embracing and revelatory theory or doctrine of interpretation. Nor are they answered by the resolution of a perceived conflict between rival theories, with the placing of the victorious theory upon a high ground occupied by the modern, the enlightened and the elect. The provisions of the Constitution, as an instrument of federal government, and the issues which arise thereunder from time to time for judicial determination are too complex and diverse for either of the above courses to be a satisfactory means of discharging the mandate which the Constitution itself entrusts to the judicial power of the Commonwealth.

Callinan J, in a dissenting judgment in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, commented frankly on the vagaries of constitutional interpretation (at 301-​304).131 The truth is that there has been little sustained unanimity on the part of the 46 Justices who have constituted this Court during its 103 years of existence as to how the Constitution should be interpreted: whether strictly textually, by reference to history, purposively, as an exercise in “originalism”, flexibly, according to a particular judge’s perceptions of contemporary conditions, contextually, by searching for implications emerging from the text and structure, or, as a combination of one or more of these. Each of the approaches has had its proponents at times but none has universally prevailed. No doubt each judge has been convinced of his or her correctness of approach, even descending on occasions to unedifying accusations of “heresy” on the part of predecessors or colleagues, no matter how learned and experienced they may have been. … The truth is ultimately that if a judge have [sic] a subjective preference for a particular interpretative approach, somewhere a dictum to support it can usually be found. The reality is that no judge can claim to stride the high ground of exclusive interpretative orthodoxy.

Several of the main interpretative techniques will be examined in the ensuing case study of the judgments in Western Australia v Commonwealth (Territorial Senators case) (1975) 134 CLR 201.132 The case established the validity of the introduction of Senators representing the Australian Capital Territory and the Northern Territory into the Senate, despite the perception at federation of that chamber as a “State’s house”. Case study: The Territorial Senators case [1.190]  This case yielded a 4:3 majority in favour of the validity of the Senate (Representation of Territories) Act 1973 (Cth). The individual judgments largely turned on the meaning of two constitutional provisions. The relevant words of s 7 state that: The Senate shall be composed of Senators for each State. [emphasis added]

The relevant words of s 122 state that: The Parliament … may allow the representation of [Territories] in either House of Parliament to the extent and on the terms which it thinks fit. [emphasis added]

131 See also his Honour at 319-​320. 132 See generally, Stellios, n 111, pp 677-​682.

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The majority decided that the creation of Territorial Senators was authorised by s 122. To this extent, they read s 7 down as only providing for the initial composition of the Senate, rather than its composition for all time. For example, Mason J stated (at 271): Understood in [the light of s 122], s 7 … make[s]‌exhaustive provision for the composition of each House until such time as Parliament might see fit to allow representation to a territory under s 122.

The minority however read s 7 as prescribing that the Senate would be exclusively composed for all time of State representatives. Section 122 was read down so as not to permit the creation of Territorial Senators with full voting rights. For example, Gibbs J stated (at 245): “Representation” is a wide word … It would be … true to say that a law providing for the election by [Territory] residents of a delegate empowered to sit in the Parliament but not vote would … answer the description.

It is instructive to examine the majority and minority decisions. Interestingly, both sides used similar techniques to arrive at opposing views. Text and context [1.195]  Literal interpretation of the text’s words is the least controversial method of statutory interpretation. It involves the least amount of “judicial innovation” and potential “judicial law-​making” and intervention in the legislative domain, as the interpretations are tied to either the text of the relevant provisions, or the text of the surrounding provisions. In the watershed case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129, the Court emphasised that constitutional interpretation should be primarily based on the express provisions of the Constitution, rather than on a desire to promote or avoid certain social or political consequences.133 The majority stated (at 148-​149): What, then, are the settled rules of construction? The first, and “golden rule” or “universal rule”, has been settled in Grey v Pearson (1857) 6 HLC 61 at 106 and the Sussex Peerage case (1844) 11 Cl & Fin 85 at 143, in well-​known passages which are quoted by Lord Macnaghten in Vacher’s case [1913] AC at 117-​18. Lord Haldane, LC, in the same case (at 113) made some observations … His Lordship, after stating that speculation on the motive of the legislature was a topic which judges cannot profitably or properly enter upon, said: “Their province is the very different one of construing the language in which the legislature has finally expressed its conclusions, and if they undertake the other province which belongs to those who, in making the laws, have to endeavour to interpret the desire of the country, they are in danger of going astray in a labyrinth to the character of which they have no sufficient guide. In endeavouring to place the proper interpretation of the sections of the statute before this house sitting in its judicial capacity, I propose, therefore, to exclude consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got by reading it as a whole, before attempting to construe any particular section. Subject to this consideration, I think that the only safe course is to read the language of the statute in what seems to be its natural sense”.

133 Stellios, n 111, p 639. See also [2.15].

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In the Territorial Senators case, both sides resorted to textual or literal arguments to support their views. The majority interpreted the words in s 122 according to their natural meaning while the minority did the same with s 7. For example, Stephen J in the minority stated (at 260):134 I have, in what I have said above, treated “composed” in s 7 of the Constitution as meaning “exclusively comprised of”. This accords, I think, with the primary meaning of “compose” as describing the act of putting together from parts or elements, the whole being constituted by the collection of those parts. Other dictionary meanings of “compose” do not extend to a weaker meaning, that of “inclusive of”, and it seems that it was this stronger, exclusive meaning that, in 1900, their Lordships intended when, in quite different context, they spoke in Walter v Lane (1900) AC 539 of “compose” and “composition”.

The text alone, however, did not suffice to decide this case, as the bare texts of ss 7 and 122 seemed fundamentally inconsistent. Therefore, both sides had to resort to other interpretative techniques in order to explain their respective “readings down”. Another interpretative technique is to interpret the words contextually. This technique was described by Gibbs J in the Territorial Senators case (at 246): [W]‌e must construe the Constitution as a whole … It may be necessary, for this purpose, to restrict the literal meaning of one section to render its provisions harmonious with those of another part of the Constitution.

Both sides read down the respective sections by taking a contextual approach and looking at the words in the context of other constitutional provisions. For a start, the readings down were both justified so that the read-​down provision could accord with s 122 (for the majority) and s 7 (for the minority). For example, the minority noted that s 122 could not be interpreted so as to undermine the essential federal nature of the Constitution, which included the maintenance of the Senate as the “States’ house”. Other contextual arguments were also used. The minority also denied that s 7 was a transitional provision, which is how it had been read by the majority. The minority noted that transitional provisions in the Constitution were expressly flagged. For example, certain arrangements within s 7 itself were expressly to stay in force only “until the Parliament otherwise provide[d]‌”, so Parliament was given express permission to change those arrangements. In Barwick CJ’s opinion (at 228), the absence of those words in the opening clause of s 7, considering their presence elsewhere, was evidence that the clause was not transitional. The majority Justices also used contextual interpretation to justify their position. They noted that Parliament was given extensive powers regarding “representation” in both Houses of Parliament for both Territories under s 122, and new States under s 121. Murphy J stated (at 283): The critical word in s 122 is “representation”. Its ordinary dictionary meaning is “the fact of representing or being represented in a legislative or deliberative assembly, especially in Parliament” (The Oxford English Dictionary). The word “representation” appears in other sections of the Constitution, and the presumption is that when identical words are used in

134 See also Gibbs J at 244: “The ordinary and natural meaning of [s 7] is that the Senate shall be constituted by [State] senators; they, and they alone, make up the Senate.”

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different parts of a statute their meaning is the same. The word is used in the immediately preceding section, s 121 If “representation” in s 121 was construed as the plaintiffs contend, then under this Constitution, Parliament would be debarred from giving a new State membership or any voting power in either House. Any construction leading to such an unreasonable result in the interpretation of s 121 is erroneous.

The majority Justices felt it would be artificial to read the same word appearing in consecutive constitutional provisions as effectively authorising different types of “representation”.135 Mason and Murphy JJ also noted the lack of an express mention of the Territories in s 24, which prescribes the composition of the House of Representatives. Yet Territory representatives had been created, and the constitutional validity of their existence, was preserved, and was indeed affirmed in Queensland v Commonwealth (Second Territorial Senators case) (1977) 139 CLR 585. The differences between textual and contextual interpretation were on display in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 (see [3.55]). The case concerned the validity of a comprehensive industrial relations law enacted by the Commonwealth government, purportedly under the corporations power (s 51(xx)). The majority largely interpreted the scope of s 51(xx) according to its bare text. That interpretation has resulted in the Commonwealth having legislative power over almost all aspects of almost all corporations that operate within Australia. In the minority, Kirby and Callinan JJ interpreted s 51(xx) in the context of another head of power, the industrial relations power in s 51(xxxv). Section 51(xxxv), in the opinion of the minority, imposed important limits on the Commonwealth’s power over industrial relations. Those limits could not be undone by the use of another head of power such as s 51(xx). Kirby J stated (at 201-​202): Paying regard to context is now a settled requirement for the construction of statutes. It follows that, to take the language of the corporations power in par (xx) of s 51 in isolation and to ignore the other paragraphs of that section, would involve a serious mistake. It is not a mistake that our predecessors in this Court made. They read pars (xx) and (xxxv) together as part of the one section of the Constitution containing a grant of many powers. Clearly, it was not intended that s 51(xxxv) should be otiose, irrelevant or entirely optional to the Commonwealth in its application. Nor was it intended that the important restrictions imposed on the federal exercise of legislative powers in par (xxxv), with respect to laws on industrial disputes, should be set at nought by invoking another head of power, such as that contained in par (xx).

Kirby J later defended his view (at 212) as the only interpretation “of the interacting powers” that upheld “the purpose of the Constitution, viewed as an entire, inter-​ related and coherent instrument”. Thus, the textual approach of the majority in Work Choices lead to a very broad interpretation of s 51(xx), while the minority’s contextual approach led to a

135 Mason J at 270, Jacobs J at 273 and Murphy J at 283. The minority indeed tried to distinguish s 121 from s 122, as they admitted that full Senate representation could be granted to new States under s 121. For example, Barwick CJ noted that s 121 referred to “extent of representation” whereas s 122 did not (at 229).

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considerably narrower interpretation. These differing approaches led to differing conclusions over the validity of the law at issue. A strict textual approach has been taken by the High Court to its interpretation of s 44, which governs the eligibility of individuals to nominate, seek and attain election to the Federal Parliament. Section 44(i) excludes any person from being chosen or sitting as a federal parliamentarian who “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 or privileges of a subject or citizen of a foreign power”. A number of politicians had to vacate their positions in both the Senate and the House of Representatives in 2017 and 2018 as they were dual citizens, holding Australian citizenship and that of another nation State. In Re Canavan et al (2017) 91 ALJR 1209, the High Court had to consider the eligibility for nomination and election to the federal Parliament of a number of Senators, as well as one member of the House of Representatives. These people had all been referred to the Court by the relevant House of Parliament for consideration of their eligibility. A unanimous High Court discussed the two limbs of s 44(1). They stated that the first limb addressed the voluntary taking up of an allegiance to another country, while the second limb simply addressed whether a person was entitled to rights akin to those arising from foreign citizenship. With regard to the second limb, knowledge of that status was not necessary. This was an important finding, as those referred to the Court had claimed not to know of their dual citizenship at the time of the relevant election in 2016. After noting earlier authority to the effect that the provision was designed to avoid split allegiances,136 the Court stated (at 1216): It is evident that the first limb of s 44(i) pursues this purpose by looking to the conduct of the person concerned. The second limb of s 44(i) does not look to conduct manifesting an actual split in the allegiance of the person concerned or the person’s subjective feelings of allegiance. On the contrary, it operates to disqualify the candidate whether or not the candidate is, in fact, minded to act upon his or her duty of allegiance.

The Court justified its approach thus, at 1219: to accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government. Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament. This consideration weighs against an interpretation of s 44(i) which would alter the effect of the ordinary and natural meaning of its text by introducing the need for an investigation into the state of mind of a candidate.

The Court found no support for any knowledge requirement in the text or structure of s 44(1) (at 1220). A knowledge requirement would also give rise to difficult questions regarding the nature and extent of the knowledge necessary before a person might be disqualified (at 1220). Hence, the Court found that its stricter interpretation accorded with standard constitutional interpretation and was more practical in its application.

136

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

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At 1223, the Court summarised its construction of s 44(1): A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.

In all cases, foreign law dictated whether the person actually held a foreign citizenship. In no case did that foreign law render it impossible to renounce citizenship, so none were “irremediably prevented by foreign law from” eligibility. Most of those referred to the High Court were accordingly found to have been ineligible to have nominated for election, hence their elections were void, including Larissa Waters, Scott Ludlam, Malcolm Roberts, Fiona Nash and Barnaby Joyce. Senator Matt Canavan was found on the facts not to hold a second citizenship after expert evidence on the law of the relevant second country, Italy, was heard, so he was not disqualified from the Parliament. Senator Nick Xenophon, who had resigned his position by the time of this High Court decision, was also found to be eligible. He had inherited the status of a “British Overseas Citizen” from his Cypriot father. However, that status was not the same as British citizenship and did not confer relevant rights and privileges for the purposes of s 44(i). Joyce recontested his lower house seat in the subsequent byelection and won. Indeed, all relevant byelections have been won by person excluded under s 44(i) where that person has recontested the seat.137 The ineligible Senators were replaced by way of a special count of the relevant Senate ballots, with the seat awarded to the person with the most votes after exclusion of the ineligible person. In most cases, that replacement Senator was from the same party as the excluded person. However, Fiona Nash’s fellow National Party colleague, Hollie Hughes, was also disqualified, as discussed below, so she was ultimately replaced by someone from another party. The High Court has not been completely literalist in its approach to s 44(i), having conceded the existence of an implied exception to its terms, discussed below at [1.200]. There are other disqualifying factors listed in s 44. Section 44(ii) excludes persons “attainted by treason”, as well as persons who have been convicted of a crime for which they are, or might be, sentenced to a term of one year or more under either State or federal law. Section 44(iii) excludes undischarged bankrupts or insolvent persons. Rodney Culleton, who was purportedly elected as a Senator for Western Australia in 2016, managed to be disqualified under both provisions. Prior to his election, he was convicted in absentia in NSW of a crime for which the maximum penalty was more than one year. The conviction was annulled after he was elected. In Re Culleton (No 2) (2017) 91 ALJR 311, the High Court read the annulment as having only prospective effect. As the conviction was not void at the time of Culleton’s election, he had been ineligible for nomination and subsequent election under s 44(ii). Prior to this finding,

137 Exceptionally in this Parliament, David Feeney did not recontest his seat after being found to be a British citizen. The subsequent by-​election was won by his party.

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the Federal Court had found him to be bankrupt, so he would have been disqualified under s 44(iii) if the s 44(ii) finding had been in his favour. Section 44(iv) excludes persons who hold an office of profit under the Crown, or who enjoy a pension “payable during the pleasure of the Crown” out of Commonwealth revenues. Hollie Hughes, the presumed replacement for Fiona Nash, was excluded under the first part of this provision. In the 2016 federal election, she ran on the National Party ticket for the Senate in New South Wales along with Fiona Nash. At that election, it seemed that Nash had been elected and Hughes had not. As explained above, Nash was later found to be ineligible due to her British citizenship. Hughes had received the next largest amount of votes after preferences as the next person on the National Party ticket. However, after the 2016 election, Hughes had taken up a position on the Administrative Appeals Tribunal, which is a “relevant office under the Crown” for the purposes of s 44(iv). The High Court found unanimously in Re Nash (No 2) (2017) 91 ALJR 1209 that the 2016 election was incomplete due to Nash’s ineligibility. Hughes’ subsequent appointment therefore rendered her ineligible too, even though she could not reasonably have anticipated that her eligibility would arise in regard to an election she had reasonably presumed to be over. The High Court continued its tough literalist line with regard to s 44, which ultimately meant that a Senator from a different party, the Liberal Party, replaced Nash. Section 44(v) excludes from nomination and election any person who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons”. The scope of s 44(v) arose in Re Day (No 2) (2017) 91 ALJR 518. Bob Day had been purportedly elected as a Senator for South Australia in the 2016 election. All members of the High Court found that Day was disqualified from nomination under s 44(v) as he had an indirect financial interest, via a family trust, in a Commonwealth leasing arrangement. Nettle and Gordon JJ, for example, noted that the section was designed to ensure that a parliamentarian’s private pecuniary interests did not influence the performance of their public parliamentary duties (at 552). The Judges conceded that there were limits to the nature of “the agreement” which might disqualify a person under s 44(v). Those limits did not have to be articulated, as the lease was clearly caught within the provision’s scope. Originalist arguments [1.200]  Whereas literalism is the most orthodox means of interpreting statutes, including the Constitution, it is often impossible for a judge to discern a statute’s actual meaning by referring to the words alone, as if they were enacted in a vacuum.138 For example, a word often means two things, both of which may make grammatical sense. How should a judge interpret the words in such a situation? At common law, the ordinary rule of interpretation is that the judge must attempt to “give effect to the intention of the [lawmaker]”.139 Thus, statutes are generally to 138

See McGuire v Simpson (1977) 139 CLR 362 at 369 per Barwick CJ.

139

Attorney-​General v Carlton Bank [1899] 2 QB 158 at 164 per Lord Russell.

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be interpreted in accordance with the meaning that they had on the day they were passed. This may be termed “originalist” interpretation. If Judges fail to construe statutes in accordance with the original legislative intent, the meaning of statutes would then change over time without legislative intervention, which would amount to a usurpation of the legislative function.140 The High Court has long confirmed that originalism applies in the context of constitutional interpretation.141 Thus, the Court generally endeavours to interpret constitutional provisions in accordance with the intentions of the drafters of the Constitution.142 Originalism in constitutional interpretation may be criticised for freezing the Constitution according to values, such as 19th century racist and sexist assumptions, which may have been long abandoned. Deane J, in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, stated (at 171-​174): [T]‌o construe the Constitution on the basis that the dead hands of those who framed it reached from their graves to negate or constrict the natural implications of its express provisions or fundamental doctrines would deprive what was intended to be a living instrument of its vitality and its adaptability to serve succeeding generations. the Constitution must be construed as “a living force” representing the will and intentions of all contemporary Australians, both women and men, and not as a lifeless “declaration of the will and intentions of men long since dead”.

Goldsworthy responds that s 128 empowers the present generation to change the Constitution.143 Furthermore, “a Constitution cut loose from its actual historical meaning is adrift on an uncharted sea of judicial discretion”.144 Interpretation in accordance with “contemporary standards” might mean that our constitutional system of government would become overly dependent on the “armchair sociological guesswork” of the judiciary.145 Regardless of the arguments in favour of and against originalism,146 Goldsworthy, writing in 1997, argued that no recent Australian High Court Justice has seriously repudiated its application in constitutional interpretation.147 Even Deane J endorsed

140 J Goldsworthy, “Originalism in Constitutional Interpretation” (1997) 25 Federal Law Review 1 at 9-​10. 141 Goldsworthy, n 140, p 12. 142 It is arguable perhaps that the relevant intention is actually that of the Australian people who approved the Constitution at referendum. Goldsworthy argues that it is reasonable to assume that the intention of the majority at referendum probably coincided with that of the drafters. Indeed, it is most likely that many voters were not specifically aware of the details of the Constitution that they voted for. See Goldsworthy, n 140, pp 25-​27. 143 Goldsworthy, n 140, p 27. 144 J Goldsworthy, “The High Court, Implied Rights, and Constitutional Change” (March 1995) 39(3) Quadrant 46 at 51. 145 Goldsworthy, n 144. 146 These are comprehensively explored in Goldsworthy, n 140. See also J Goldsworthy, “The Case for Originalism” in G Huscroft and B Miller (eds), The Challenge of Originalism (Cambridge University Press, New York, 2011). 147 It is arguable that Kirby J opposed that trend. See [1.230].

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originalist interpretation in a number of constitutional cases.148 That is not to say that decisions have always coincided with the original intent of the drafters. It is to say that Justices generally attempt to support their interpretations, even in the radical “implied rights” decisions, as manifestations of original intent.149 Originalist arguments were used by both sides in the Territorial Senators case. For example, Gibbs J noted (at 247) that, in his opinion, the obvious intent of the drafters was for the Senate to act as a States’ house, acting as “a means of enabling the States to protect their vital interests and integrity”. Therefore, Territories, which were in a completely different legal position, were not permitted in this chamber. Mason J in the majority countered with his own originalist argument (at 270):150 To the framers of the Constitution in 1900 the existing condition of the Territories was not such as to suggest the immediate likelihood of their securing representation in either House, but the possibility of such a development occurring in the future was undeniable. The prospect of its occurrence was foreseen and in my view it found expression in s 122.

Overt originalist interpretation has continued to dot the landscape of constitutional interpretation, arising in such cases as Cole v Whitfield (1988) 165 CLR 360 concerning the meaning of s 92 (see [11.35]), King v Jones (1972) 128 CLR 221 regarding the meaning of “adult” in s 41 (see [12.105]) and Cheatle v The Queen (1993) 177 CLR 541 regarding certain aspects of the meaning of “jury trial” (but not others) in s 80 (see [12.65]). In Eastman v The Queen (2000) 203 CLR 1, the Court had to consider the meaning of “appeal” in s 73, which grants the High Court appellate jurisdiction. A majority (Kirby and Callinan JJ dissenting) decided that “appeal” should be interpreted in accordance with its 1901 meaning as an appeal only on issues raised in the lower court, thus precluding the High Court from hearing appeals which entailed the tendering of fresh evidence. In his dissenting judgment, Kirby J persuasively criticised the Court’s haphazard approach to originalist interpretation (at 97-​98): In my opinion, the Constitution is to be read according to contemporary understandings of its meaning, to meet, so far as the text allows, the governmental needs of the Australian people. There are many instances where the Constitution has been approached in the way that I favour. Thus a jury trial, to which s 80 of the Constitution refers, would in 1900 undoubtedly have meant a “jury” comprising men only, and then, chosen by reference to their property qualifications. So it had been for centuries. Yet this Court rejected those requirements as inherent in that feature of legal procedure inherited from England [in Cheatle]. Why, one asks rhetorically, is the notion of “appeal” stamped indelibly with certain limitations yet the notion of a “jury” is not? There could scarcely be a more vivid illustration of this point than the recent decision in Sue v Hill (1999) 199 CLR 462. There, the reference in s 44(i) of the Constitution to a “subject or a citizen of a foreign power” was held applicable to the United Kingdom. Such an understanding of the provision would have been regarded as self-​evidently erroneous,

148 See Goldsworthy, n 140, pp 16-​18. See, for example, Cheatle v The Queen (1993) 177 CLR 541 per curiam at 560-​562. 149 Indeed, Deane J argued that his Theophanous decision actually accorded with the drafters’ intentions at 171-​174. 150 See also Jacobs J at 274-​275.

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even absurd, in 1900. Yet the Court, looking at the constitutional words with today’s eyes, read them so as to derive their contemporary meaning. There are many similar illustrations. They are sometimes explained by reference to the disputable philosophical distinction between the connotation and denotation of verbal meaning. I contest that distinction. But even if it be applied, it is difficult to reconcile an expansive view of the “denotation” of one inherited legal procedure (“jury”) with a narrow, restricted and immovable view of another then developing procedure of much shorter legal history (“appeal”). This Court should adopt a single approach to the construction of the basic document placed in its care. Constitutional elaboration, above all, should be approached in a consistent way, lest the inconsistencies of an originalist approach here and a contemporary approach there be ascribed to the selection of whichever approach produces a desired outcome.151

Commonwealth v Australian Capital Territory (2013) 250 CLR 441 concerned the validity of Australian Capital Territory legislation which provided for marriages between adults of the same sex. That law was struck down as it was inconsistent with federal legislation (see [7.60]). A preliminary finding concerned the scope of federal power under its constitutional marriage power in s 51(xxi). The High Court unanimously interpreted “marriage” for the purposes of the marriage power as having moved beyond its 1901 definition, when only marriages between persons of the opposite sex were contemplated, to now include the possibility of same sex marriage (at [38]). At [16], the Court stated: The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.

Here, the Court is not in fact rejecting originalist reasoning, as it found that the definition of institution of “marriage” had never been immutable, indicating that it had never been intended to be immutable, even at federation. The issue of originalist interpretation raises the question: from which sources may Judges draw their evidence of original intent? One obvious source is the record of Convention Debates. However, the courts shied away from using the Debates as an interpretational aid until 1988.152 The records of those Debates are of course external to the Constitution. Under the predominant textual approach to interpretation, the meaning of a law should be readily ascertainable and available, rather than hidden in a separate source.153 In 1988, the High Court unanimously endorsed the limited use of the Debates in Cole v Whitfield (1988) 165 CLR 360, a case where the High Court finally clarified the meaning of s 92 (see [11.35]). In Cole, the High Court stated (at 385): Reference to the history of s 92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect –​if such could be established –​which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language

151

See also Singh v Commonwealth (2004) 222 CLR 322 at 412 per Kirby J.

152 See Williams et al, n 20, pp 186-​187. 153 Goldsworthy, n 140, p 10.

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was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

The Judges of the High Court again discussed the interpretational relevance of the Convention Debates in Singh v Commonwealth (2004) 222 CLR 322. Singh concerned the meaning of the Commonwealth’s power over aliens in s 51(xix). Singh was born in Australia in 1998 to Indian parents. She was an Indian citizen by virtue of the citizenship of her parents. Under Australian law, she was not an Australian citizen despite the location of her birth. She and her parents were to be deported under s 198 of the Migration Act 1958 (Cth) as unlawful non-​citizens. It was argued that the Commonwealth lacked power to deport Singh, as she could not be classified as an alien for the purposes of the aliens head of power. Essentially, the argument was that the original meaning of the word “aliens” excluded those born in Australia from the ambit of the term, and that the original intention was that such people could never be included within the term “alien”. A majority of 5:2 found that Singh could be classified as an alien under the aliens power, so her proposed deportation would be valid.154 For the purposes of this book, the reasoning regarding use of the Convention Debates is highlighted, rather than the reasoning regarding the meaning of “aliens”. Gleeson CJ stated (at 337): The public record of the Convention Debates is evidence of what some people, involved in the framing of the Constitution, said about various drafts of the instrument. It is a partial record of the drafting history of most of the provisions of the Constitution. It reveals what some people understood, knew, believed, thought, or intended about the proposed instrument, and the circumstances surrounding some of the events involved in its preparation. For the reasons already given, what the record shows about the subjective beliefs or intentions of some people may be interesting but, of itself, is not a relevant fact. Many people, in Australia and the United Kingdom, were involved, directly or indirectly, in decisions about the form of the Constitution. Not all of them participated in the Convention Debates. Furthermore, as at all gatherings of lawyers or politicians, those who had the most to say were not necessarily the best informed or the most influential. A search for the collective, subjective intention of the framers of the Constitution would be impossible, and the individual subjective intention of any one of them, if it could be established, would not be relevant, because it would not advance any legitimate process of reasoning to a conclusion about the meaning of the text. Nevertheless, the drafting history of the Constitution, including the record of the Convention Debates, may be capable of throwing light on the meaning of a provision. Whether this will be so depends upon the nature of the problem of interpretation that arises, the nature of the information that is gained from the drafting history, and the relevance of that information to the solution of the problem. Whether information is capable of assisting in the rational solution, by a legitimate process of reasoning, of a problem about the meaning of the text, depends upon the nature of the problem, and the nature of the information.

After citing the rule from Cole regarding the proper interpretational use of the Debates, Gleeson CJ explained (at 338): The reference, in Cole v Whitfield, to “identifying the contemporary meaning of language used”, that is, its meaning at the time of the Convention Debates, directs attention to the historical context in which language, the subject of a problem of interpretation, was used.

154

Singh was followed in Koroitamana v Commonwealth (2006) 227 CLR 31.

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For the reasons already given, an understanding of that context is often a valuable, and sometimes necessary, aid to deciding meaning. To deny the relevance of the contemporary meaning of the language used in 1900 would not only be contrary to what was said in Cole v Whitfield, it would be contrary to one of the most elementary principles of legal interpretation, which is that a text must be understood in its context.

Callinan J stated (at 423-​425): The defendants object to the reception of this material. The objection should be dismissed. There is no doubt that the common law and the founders’ understanding of it heavily informed the language of the Constitution. So too of course did history and contemporary perceptions of mischiefs to be dealt with and objectives to be attained. The Court is not only, in my opinion, entitled, but also obliged, to have regard to the Convention debates when, as is often the case, recourse to them is relevant and informative. The debates are certainly relevant and informative here. There are compelling reasons why recourse to the debates is permissible and will usually be helpful. Courts and judges may speak of the changing meaning of language but in practice substantive linguistic change occurs very slowly, particularly in legal phraseology. When change does occur, it generally tends to relate to popular culture rather than to the expression of fundamental ideas, philosophies, principles and legal concepts. Judges should in my opinion be especially vigilant to recognise and eschew what is in substance a constitutional change under a false rubric of a perceived change in the meaning of a word, or an expression used in the Constitution. That power, to effect a Constitutional change, resides exclusively in the Australian people pursuant to s 128 of the Constitution and is not to be usurped by either the courts or the Parliament. In any event, I am not by any means persuaded that an actual change in the meaning of a word or a phrase, if and when it occurs, can justify a departure from its meaning at the time of Federation. The constitutional conservatism of the Australian people reflected in the failure of so many referenda cannot justify a supposed antidote of judicial “progressivism”. This is not to say that adherence to nineteenth century meanings which have become archaic will always be obligatory. But it is to say that instruments, including constitutional ones are still basically to be construed by reference to the intentions of their makers objectively ascertained. Examination of the circumstances which formed the background to the making of the Constitution assists in this examination.

Of course, judges may differ over their interpretation of the Debates, just as they differ over the interpretation of words in statutes or constitutions. The Judges in Singh disagreed over the significance of the decision by the Convention delegates to reject Dr Quick’s proposal to include a federal head of power over the subject of citizenship. Whereas the majority found that the rejection of the proposal threw little light on the meaning of the aliens power, the minority of McHugh and Callinan JJ argued otherwise. McHugh J stated (at 367): The Convention Debates suggest that the paragraph was enacted because delegates feared that, if the Parliament had power to legislate with respect to citizenship, it could exercise the power to deprive a person of his or her citizenship, a concept that was treated as identical with “subject of the Queen”, that is to say, a person born within the dominions of the Queen or a person who had been naturalised under a law of a colony.

Therefore, in the opinion of McHugh J, the exclusion of a citizenship power confirmed an original intention to limit the Commonwealth’s power to meddle with the definition of a citizen, and therefore (by default) its power to manipulate the definition of an alien. He ultimately decided that the exclusion of Australian-​born

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people from the term “alien” was constitutionally mandated.155 Callinan J similarly lauded the significance of the rejection of the Quick proposal (at 425): In my opinion Convention materials showing what the founders deliberately discarded may be especially illuminating in the same way as evidence of what parties to a contract deliberately excluded negates the implication of a term of a contract to the effect of what was excluded.

Another example of originalist interpretation arose in the minority opinion of Callinan and Heydon JJ in XYZ v Commonwealth (2006) 227 CLR 532. The case concerned the scope of extraterritorial power of the Commonwealth under s 51(xxix), the external affairs power (see [4.10]). The majority followed precedent and found that the external affairs power confers plenary extraterritorial power on the Commonwealth. This interpretation was facilitated by a textual interpretation of the words, “external affairs”, which arguably refers to all things which are external to or outside Australian territory. Callinan and Heydon JJ, however, noted the meaning of “external affairs” in 1901. “External affairs” effectively meant the same in 1901 as “foreign affairs” means to us now:156 that is, matters concerning relationships and dealings with other countries. The term “external affairs” was chosen at federation as Australia was not an independent nation, so the term ensured that the head of power related to relationships with foreign countries, as well as with Britain (not then viewed as a “foreign” country)157 and the rest of the Commonwealth. Callinan and Heydon JJ stated (at 586-​587): It is not in dispute that the expression “external affairs” was used in s 51(xxix) in preference to “foreign affairs” in order … “to make it clear that the power comprehended both the relationship between the Commonwealth of Australia and other parts of the then British Empire and the relationship with foreign countries”. That language is significant. It points against the grant of a wider power to legislate on matters located externally to Australia. It points towards a more specific power for the legislature to act in a manner complementing the executive’s conduct of Australia’s relationships with foreign nations and international organisations. If “external affairs” are those which relate to relationships between countries, it is necessary to identify the particular relationship on which the legislation relying on s 51(xxix) rests. A “relationship” in this sense means a dealing between Australia and another country. That dealing can be a treaty, but it need not be: any of a vast range of diplomatic relationships between Australia and other countries could, depending on the circumstances and subject to the Constitution, be a relevant dealing. On this view, what “external affairs” cannot include is something which is the subject of a unilateral act or desire on the part of Australia. That lacks the mutuality inherent in the conduct of “affairs” in the sense of a relationship or dealing with another nation or an international organisation.

155 McHugh J did not stress place of the birth so much as the fact that, in his opinion, an “alien” could not include a person “under an obligation of permanent allegiance to the Queen of Australia and a duty to obey the law, including the law of treason” (at 378). Persons born in Australia have, in McHugh’s view, such an obligation. 156 For example, the federal Department of Foreign Affairs (and Trade) used to be known as the Department of External Affairs. 157

See Sue v Hill (1999) 199 CLR 462.

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The plaintiff’s contention that the power to legislate in relation to external affairs extends beyond legislation implementing treaties to other relationships with other countries, but not beyond that point to include legislation about geographically external matters, is supported by other material reflective of the views of distinguished lawyers contemporary with the federation period, or persons acquainted with those views. While the writers and judges now to be referred to were not considering the precise point under consideration in this case, what they said suggests that the meaning of “external affairs” in the federation period did not include the geographic externality view.

In the last decade, the Court has also utilised historical arguments in construing the meaning of s 51(xx) and s 51(xxxv) in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 [3.55] and ss 61, 81 and 83 of the Constitution in Pape v FCT (2009) 238 CLR 1 (see [5.70] and [10.55]). Historical considerations, however, do not necessarily dictate uniform conclusions, given the gulfs between the majorities and minorities in those cases. Comparative arguments [1.205]  In the absence of Australian precedents, and even in their presence, judges sometimes look to comparable overseas precedents for guidance. In the Territorial Senators case, both the majority and minority relied to some extent on comparisons with the jurisdiction of the United States. Australian federalism was largely modelled on the United States example, so it is not surprising that judges looked to the law of the United States to assist in making a decision with fundamental ramifications for Australia’s federal nature. In most cases, however, the most pertinent and persuasive comparative law comes from England. Indeed, the majority Justices in the Engineers case (at 146-​ 148) criticised pre-​ existing judgments for diverging from English precedents in favour of precedents from the United States, in view of the common English/​Australian constitutional and legal heritage. However, given that England does not have a written Constitution, it is not surprising that precedents from the United States have always influenced constitutional judgments.158 Since the passage of the Australia Acts, there is no doubt that United Kingdom precedents, whether from English domestic courts (for example, House of Lords, Court of Appeal) or the Judicial Committee of the Privy Council, do not bind Australian courts. However, they remain persuasive precedents in the absence of relevant Australian case law. Furthermore, Australian lawyers and judges are more familiar with English cases than cases from other foreign jurisdictions, so English law is still the most likely comparator to be used. These days however, more use is made of non-​English case law, such as the law of the United States, Canada, New Zealand and India.159 Both sides in the Territorial Senators cases used comparative arguments. The minority, for example, noted that there existed a comparative precedent for Senators without full representative rights in the United States, where “territorial” representatives are

158 Sawer, n 125, pp 73-​74. 159 See Sir A Mason, “The Evolving Role and Function of the High Court”, in Opeskin and Wheeler (eds), n 126, p 119.

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denied full voting rights in the United States Congress. For example, Stephen J stated (at 258-​259):160 [The concept of non-​voting Senator] can hardly be supposed to have been unfamiliar to some at least of those responsible for the framing of our Constitution; Lord Bryce’s American Commonwealth, 2nd ed (revsd) (1889) was at that time a standard guide to that great federal Constitution upon which so much of our own Constitution is based and in a chapter devoted to the Territories of the United States the learned author discussed the system whereby, although denied representation by elected senators or representatives, the citizens of a Territory might send delegates to sit and speak, but not to vote, in Congress.

On the other hand, Murphy J in the majority responded that the precedent from the United States demonstrated how the Constitution might work in the absence of a provision like s 122 (at 285):161 [The plaintiffs contended that], as the United States Constitution only allows non-​voting delegates to represent the territories in Congress, the same approach should be used in construing s 122. Section 122 however, is a deliberate departure from the United States model. There is little doubt that s 122 was inserted to ensure that the privilege of membership in each House should not be denied forever to the people of the territories. This was accepted by authoritative textwriters from the earlier days.

Policy arguments [1.210]  Traditional interpretative techniques are designed to ensure that judges resort to “legal” rather than political reasoning in making their decisions. Policy decisions regarding the social or economic outcomes of a decision are traditionally the domain of the legislature and the executive, rather than the judiciary. However, occasionally policy will compel a judge to choose one meaning over a competing meaning, due to the dire consequences of the latter meaning. The Territorial Senators decisions were explicitly influenced by arguments based on “policy”, or the “bad” ramifications of adopting the alternative position. For example, Gibbs J in the minority stated (at 271): If the Parliament can allow a Territory to be represented by senators there is no limit to the number of senators who may be chosen for each Territory. By legislation allowing a sufficiently large representation to the Territories, the House that is intended to be the organ of the States could be brought entirely under the control of senators elected by residents of the Territories. Of course, as a general rule a legislative power is not to be given a restricted construction for fear that it may be abused, but the circumstance that if s 122 had the effect suggested by the Commonwealth the safeguards intended to be afforded to the States by Pt II of Ch. I could be rendered entirely valueless supports the conclusion that it could not have been intended by the framers of the Constitution that s 122 should have that effect.

In response to the above argument, Mason J stated (at 271):162

160 See also Barwick CJ at 231, Gibbs J at 249. 161 See also Mason J at 268. 162 See also Murphy J at 287.

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[I now address] the grim spectre conjured up by the plaintiffs of a Parliament swamping the Senate with senators from the Territories, thereby reducing the representation of the States disproportionately to that of an ineffective minority in the chamber. This exercise in imagination assumes the willing participation of the senators representing the States in such an enterprise, notwithstanding that it would hasten their journey into political oblivion. It disregards the assumption which the framers of the Constitution made, and which we should now make, that Parliament will act responsibly in the exercise of its powers.

The minority argument regarding the potential “swamping” of the Senate can be described as a narrow policy argument. The minority chose a meaning designed to avoid an unquestionably bad circumstance. The majority chose the more orthodox approach of “trusting” the Parliament not to bring about that bad circumstance. However, there were other broader policy arguments that underlay the judgments. Indeed, it is likely that these broader policy issues ultimately decided the case, given the following characterisation of the case originally by Zines:163 No amount of “reasoning” or empirical examination could produce, in the ultimate, the “right” decision. The case rested finally on what, within the limits prescribed by the Constitution and principles of interpretation, the judges considered to be the proper framework of our governmental system … This case is a clear illustration of the court being required to make a decision where there are, so far as the text and other considerations are concerned, compelling arguments that are all rational.

Zines persuasively argues that ultimately, the case was decided according to the number of Justices favouring the respective principles at issue in the case: federalism and democracy. Thus, the minority was fundamentally influenced by their belief in the need to preserve federalist values (that is, maintenance of the sanctity of the power-​sharing arrangement between the Commonwealth and the States, which was facilitated by the preservation of the Senate as a States’ house). For example, Barwick CJ stated (at 232): It is, in my opinion, clear that a Territory, not being a State, could not consistently with the federal nature of the Constitution be represented in the Senate by a senator or senators. To interpret the word “representation” in s 122 as being adequate to authorise a law to permit the election by the Territory of a senator to take his place in the Senate with all the rights and privileges of a senator for a State would, in my opinion, be to subvert the Constitution and seriously to impair its federal character. Some lesser connotation of the word “representation” must be found to make the Constitution, basically federal in nature, consistent throughout. To fit Pt VI into the Constitution as a whole, in my opinion, the expression “allow representation” must be construed so as to be consonant with and indeed to preserve and not to endanger or destroy an essential feature of federation, namely the maintenance of the Senate as the State House.

The majority felt that federalist considerations were outweighed by considerations regarding democracy (that is, the principle that the people of the Territories should be entitled to representation in both Houses of Parliament). For example, Murphy J stated (at 286): The permanent deprivation of representation by membership in the Senate or the House of Representatives is a serious exclusion from the democratic process. These houses are our

163 Stellios, n 111, pp 679-​680.

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most important political institutions, the principal organs of our democracy; their decisions are vital to every Australian. Their importance to the people of the territories is not less than their importance to the people of the States. It is contrary to the democratic theme of the Constitution that Parliament should not be able to allow representation by membership in either House to territories at the time and on the terms which the Parliament considers appropriate.

Thus, in the absence of a clearly “correct” or clearly “wrong” answer to the Territorial Senators conundrum, the case was likely decided by the Justices’ personal preference for the competing values of federalism or democracy. It is natural that the Justices did not explicitly confess to this state of affairs. It is always controversial for justices to expressly decide cases according to their own political or moral preferences. However, it is also on occasion impossible for them not to do so. Indeed, it is perhaps a fiction that judges ignore policy considerations in constitutional decision-​making. Broad policy preferences, such as “States” rights versus centralised power,164 respect for human rights165 or respect for parliamentary sovereignty,166 often underlie a judge’s individual decisions,167 though that judge will not always admit this. Mason J, as he then was, has persuasively argued that strict legalism often serves as a mere cloak for unidentified, often conservative, policy values, and called for courts to “grapple” more openly with policy issues in their decisions.168 Mason J was not calling for policy considerations to be the predominant force behind decisions. He was merely recognising that it is misleading to deny their relevance in judicial decision-​making. Other interpretative techniques [1.215]  This chapter concludes with mention of other interpretative techniques not used in the Territorial Senators case. Stare decisis [1.220]  A conventional method of interpreting constitutional provisions is to apply the doctrine of stare decisis, or to follow precedent. Though the High Court is not bound by its own decisions, it will ordinarily follow existing precedents. However, the principle of stare decisis is regarded as having less influence in constitutional cases, compared to non-​constitutional cases, due to the fact that Parliament cannot easily rectify a judicial error.169 Of the High Court Justices, Barwick CJ, Murphy J and Kirby J have probably evinced the greatest disregard for stare decisis.170 Most other Justices have tended to follow 164

See Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1.

165 Respect for human rights was a particular concern for Murphy J and Kirby J. 166 See Dawson J in Kruger v Commonwealth (1997) 190 CLR 1 at 52-​53 and in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 73-​76. 167 See generally, Stellios, n 111, Chapter 17. 168 As quoted in Solomon, n 62, p 234. 169

L Zines, The High Court and the Constitution (4th ed, Butterworths, Chatswood, 1997), p 433.

170 Zines, n 169, p 433.

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pre-​existing precedents unless they regard them as “plainly wrong”.171 Otherwise, the strong policy consideration of legal stability and predictability dictates that precedent should be followed. There are numerous instances of justices disapproving of relevant precedents, but nevertheless feeling compelled to follow them.172 However, it is ultimately a judge’s personal value judgment as to whether pre-​existing case law is “plainly wrong”. Stephen J has admitted that the “plainly wrong” test is “merely pejorative” and quite subjective.173 Queensland v Commonwealth (Second Territorial Senators case) (1977) 139 CLR 585 provides a good example of the application of stare decisis, as well as examples of its non-​observance. Two years after the Territorial Senators case, a number of States again sought a declaration that the Territorial Senators legislation was invalid. By this time, McTiernan J from the earlier Territorial Senators majority had retired and been replaced by Aickin J. Aickin J voted against the law. However, Aickin J was only joined by Barwick CJ. Gibbs and Stephen JJ, of the minority in the Territorial Senators case, voted with Mason, Murphy and Jacobs JJ in favour of the legislation, yielding a 5:2 vote in favour of the constitutional validity of Territorial Senators. Gibbs and Stephen JJ continued to disapprove of the earlier decision, but nevertheless followed its precedent. Their adherence to the doctrine of stare decisis proved decisive. Gibbs J stated (at 598-​600): It then becomes necessary for me to decide whether I ought to follow the decision of the majority in Western Australia v The Commonwealth, notwithstanding that I believe it to be wrong. There is of course no doubt that this Court is not bound by its own decisions. [However, n]o Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the one hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-​established principle, might be readily reviewed. However the present case does not lie at either of these extremes, and I have had much difficulty in deciding what course my duty requires. As the plaintiffs have urged, the decision in Western Australia v The Commonwealth (1975) 134

171

Australian Agricultural Co v Federated Engine-​Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 278-​279.

172 See, for example, Barwick CJ and Mason J who reluctantly followed the precedent of Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 in Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 and H C Sleigh Ltd v South Australia (1977) 136 CLR 475 with regard to the interpretation of s 90. See at [9.35]. 173

Queensland v Commonwealth (1977) 139 CLR 585 at 603. See also Aickin J at 621.

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CLR 201 was recently given, and by a narrow majority. It has not been followed in any other case. It involves a question of grave constitutional importance. But when it is asked what has occurred to justify the reconsideration of a judgment given not two years ago, the only possible answer is that one member of the Court has retired, and another has succeeded him. It cannot be suggested that the majority in Western Australia v The Commonwealth failed to advert to any relevant consideration, or overlooked any apposite decision or principle. The arguments presented in the present case were in their essence the same as those presented in the earlier case. No later decision has been given that conflicts with Western Australia v The Commonwealth. Moreover, the decision has been acted on; senators for the Territories have been elected under the legislation there held valid. To reverse the decision now would be to defeat the expectations of the people of the Territories that they would be represented, as many of them believed that they ought to be represented, by senators entitled to vote –​ expectations and beliefs that were no less understandable because in my view they were constitutionally erroneous, and that were encouraged by the decision of this Court. When, in The Tramways Case (No 1) (1914) 18 CLR 54, at 69, Barton J said that “Changes in the number of appointed Justices can … never of themselves furnish a reason for review” of a previous decision, it may be that not all who had become his brethren agreed with him, but his statement in my respectful opinion ought to be regarded as, in general, correct, having regard to “the need for continuity and consistency in judicial decision” to which he there referred. Still less should the replacement of one Justice by another in itself justify the review of an earlier decision. Having considered all the circumstances that I have mentioned I have reached the conclusion that it is my duty to follow Western Australia v The Commonwealth, although in my view it was wrongly decided.

In contrast, Barwick CJ in the minority stated (at 593): it is fundamental to the work of this Court and to its function of determining, so far as it rests on judicial decision, the law of Australia appropriate to the times, that it should not be bound in point of precedent but only in point of conviction by its prior decisions. In the case of the Constitution, it is the duty, in my opinion, of each Justice, paying due regard to the opinions of other Justices past and present, to decide what in truth the Constitution provides. The area of constitutional law is pre-​eminently an area where the paramount consideration is the maintenance of the Constitution itself. Of course, the fact that a particular construction has long been accepted is a potent factor for consideration: but it has not hitherto been accepted as effective to prevent the members of the Court from departing from an earlier interpretation if convinced that it does not truly represent the Constitution. There is no need to refer to the instances in which the Court has departed from earlier decisions upon the Constitution, some of long standing. The Constitution may be rigid but that does not imply or require rigidity on the part of the Court in adherence to prior decisions. No doubt to depart from them is a grave matter and a heavy responsibility. But convinced of their error, the duty to express what is the proper construction is paramount.

Kirby J stated in Cheng, Cheng and Chan v The Queen (2000) 203 CLR 248 (at 324), with regard to the prospect of overturning the prior High Court decision of Kingswell v R (1985) 159 CLR 264:174 As to the inconvenience that would be caused by now upholding the view of s 80 which was expounded by the minority in Kingswell, I remind myself of the way in which the Court has from time to time felt obliged to depart from past authority, despite the inconvenience and disturbance that this occasions. In the end, this is an outcome inherent in a society

174 See, on these cases, [12.65].

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living by the rule of law and especially one governed by a written constitution. If parties who claim that a constitutional norm has been breached establish that argument but cannot rely on the courts to uphold the law, where else can they go? With every respect, to suggest that an answer to a departure from a constitutional guarantee is that the Parliament has not so far misused its power is no answer at all. This Court, and not the Parliament, is the arbiter of constitutional requirements.

Kirby J reflected different sentiments in the subsequent case of Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. Shaw overruled the then very recent decision of Re Patterson; Ex parte Taylor (2001) 207 CLR 391 over constitutional issues regarding alienage and immigration. Kirby J had been in the Patterson majority and was in the Shaw minority.175 On the issue of stare decisis, he stated in the latter case (at 55-​56): I recognise that, in respect of the meaning of the Constitution, the duty of each Justice is to the fundamental law of the nation. In the history of this Court the rule of obedience to a majority holding of the Court on a point of law has not been uniformly treated as applying in the same way to a constitutional ruling. Nevertheless, whilst adhering to (and often expressing) individual views concerning the meaning of the Constitution, it is normal for Justices of this Court to give effect to majority rulings on the Constitution, if only to avoid the spectacle of deliberate persistence in attempts to overrule recent constitutional decisions on identical questions on the basis of nothing more intellectually persuasive than the retirement of a member of a past majority and the replacement of that Justice by a new appointee who may hold a different view.176 Those who recognise the stabilising element of the doctrine of precedent in our legal system (even to the extent of suggesting the need for leave of this Court to re-​argue a matter determined by past authority) will ordinarily accept a determination of a rule, especially where that determination is recent and concerns exactly the same legal issue. Otherwise, every important constitutional decision will be resubmitted for redetermination following new appointments until the dissenter gets his or her way.

Kirby J concluded (at 72), somewhat caustically: The success of the Minister’s persistent submission in the conclusion of the new majority gathered in this case, following a change of membership of the Court, is a sharp reminder of the opinionative character of constitutional doctrine. Some citizens and some judges may wish that it were otherwise; but ultimately a case such as the present obliges us to face the facts. About such questions what matters in the end is the conclusion of a majority of this Court. Indeed, there could not be a clearer illustration of that truth. Reason, history, principle, words, adverse risks and legal precedent, all bend in the wind of transient majorities. One day, if a larger challenge comes than is presented by Mr Shaw’s unhappy case, it may be hoped that a new majority in this Court will gather around the view of the Constitution favoured by the majority in Re Patterson and that that view will be restored.

In Plaintiff M76-​2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, the plaintiff argued that the High Court should overturn Al-​Kateb v Godwin (2004) 219 CLR 562 (see [6.150]). The majority did not consider the issue, as

175 The cases concerned the interpretation of the aliens power. 176 At the time of the decision in Shaw, Heydon J had only recently replaced Gaudron J on the Court. Gaudron J had been in the majority in Patterson, while Heydon was in the “new” majority, which overruled Patterson, in Shaw.

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they felt that the facts did not justify a reopening of the case. Hayne J reaffirmed Al-​ Kateb and stated (at 365-​366): Fundamental principle requires that this Court not now depart from the construction of the relevant provisions which was adopted by the majority in Al-​Kateb. All that has changed since Al-​Kateb was decided is the composition of the Bench. That is not reason enough to revisit the decision. And when the Parliament has had repeated opportunities to amend the effect of the decision in that case, but has not done so, this Court should not depart from what was then held to be the proper construction of the relevant provisions.

Implication [1.225]  In the Engineers case, the Court ruled that judges should primarily interpret the Constitution according to the express words therein. Implied meanings could only be construed where such a meaning was necessarily or logically implied from the text of the Constitution. Otherwise judges should not overlay the Constitution with implications which they feel should be there. The boundaries of this approach to implication were certainly pushed, if not breached, in some of the “implied rights” cases before the Mason Court in the early 1990s.177 Famous implications have arisen in cases such as Melbourne Corporation v Commonwealth (1947) 74 CLR 31 regarding the doctrine of implied immunities (see Chapter 8), R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 regarding the doctrine of the separation of judicial power (see [6.55]–[6.70]), and of course the implied rights cases (see Chapter 13).178 One of the main implications abandoned in Engineers was the reserved powers doctrine, which had previously dictated that federal powers be interpreted so as not to trespass on the arena of States’ powers (see [2.10]). The minority in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, Kirby and Callinan JJ, found that limits had to be necessarily implied to the scope of the federal corporations power in s 51(xx) in order to preserve federalism, a key aspect of the structure and design of the Constitution (see [3.55]). Kirby J reconciled his view with Engineers at 229: Defending the [federal] checks and balances of governmental powers in the Constitution is … a central duty of this Court. Because of the potential of modern government, corporate developments, global forces and contemporary technology to concentrate power even more than was possible in earlier decades, the necessity to uphold the place of the States in the federation has become clearer in recent times. Just as the needs of earlier times in the history of the Commonwealth produced the Engineers Case, so the present age suggests a need to rediscover the essential federal character of the Australian Commonwealth.

Kirby J lamented (at 246) the failure of the majority to adopt his view, noting that the result in the case revealed “an apogee of federal constitutional power and a profound weakness in the legal checks and balances which the founders sought to provide to the Australian Commonwealth”. 177 See generally, G Williams, “Engineers is Dead; Long Live Engineers” (1995) 17 Sydney University Law Review 62. 178 See also, on implications, P Emerton, “Political Freedoms and Entitlements in the Australian Constitution: An Example of Referential Intentions Yielding Unintended Legal Consequences” (2010) 38 Federal Law Review 169-​203, and J Goldsworthy, “Constitutional Implications Revisited” (2011) 30 University of Queensland Law Journal 9.

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As noted above, the High Court has taken a strict literalist approach to the eligibility requirements for federal parliamentary representatives in s 44. However, regarding s 44(i), the prohibition on dual citizens, the High Court has conceded the existence of an implied exception. In an earlier s 44(i) case, Sykes v Cleary (No 2) (1992) 176 CLR 77, the Court had stated that an exception might lie where a person had taken reasonable steps to divest themselves of the alternative citizenship. The meaning of this exception arose in Re Gallagher (2018) 92 ALJR 502, which concerned in part the eligibility for Senate nomination and election of one Katy Gallagher for the 2016 election. She had been a British citizen on the date of nomination as well as on the date of her election. She had however lodged the paperwork for renunciation alongside the prescribed fee for that paperwork with the British Home Office prior to her nomination. The United Kingdom did not confirm her renunciation until after her election to the Senate in 2016. In this case, Gageler J explained the reason for the implication (at 510): The “constitutional imperative” recognised in Re Canavan is an implied exception to the operation of that disqualification. The implied exception serves the function of ensuring that the disqualification does not operate so rigidly as to undermine the constitutionally prescribed system of representative and responsible government which the disqualification is designed to protect. The centrally informing notion is that an Australian citizen who [otherwise] meets the qualifications for election as a senator or member … is not to be permanently disabled from participating in the parliamentary and executive government of Australia by a disqualification in s 44, with the possible exception only of an Australian citizen who “is attainted of treason” within the meaning of s 44(ii). That centrally informing notion is complemented in its application to s 44(i) by the notion that an arbitrary or intransigent operation of the law of another country cannot be permitted to frustrate the ability of such an Australian citizen to participate in the parliamentary and executive government of Australia.

The High Court unanimously found that Gallagher did not fall within the “reasonable steps” exception. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ stated (at 507):  Unless the relevant foreign law imposes an irremediable impediment to an effective renunciation, it is necessary that a candidate actually have divested himself or herself of his or her status as a foreign citizen before the commencement of the process of being chosen to which s 44(i) applies. The exception to s 44(i) does not apply to British law because that law does not either in its terms or in its operation render it impossible or not reasonably possible to renounce British citizenship. At the time of her nomination Senator Gallagher remained a foreign citizen and was incapable of being chosen.

Hence, the implied exception is very narrow. Foreign law had to present an “insurmountable obstacle” to the divestment of foreign citizenship (at 508), such as, for example, a foreign law which prohibited any form of renunciation. The example given in Gallagher, and previously in Re Canavan (2017) 91 ALJR 1209, was a hypothetical foreign law requiring that renunciation take place in the territory of the foreign country in a situation where such presence on foreign soil would be personally risky (at 508). The exception did not apply where one was required “to apply for the favourable exercise of a discretion [by a foreign State] to permit renunciation of that foreign citizenship” (at 508). Hence, candidates are required to renounce citizenship in sufficient time to ensure that that renunciation is accepted and processed by the relevant foreign country prior to any nomination to run for the federal Parliament.

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International law [1.230] In Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513, Kirby J advocated the incorporation of a new principle in constitutional interpretation (at 657-​661): Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said. If the Constitution is clear, the Court must (as in the interpretation of any legislation) give effect to its terms. Nor should the Court adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, as has been recognised by this Court and by other courts of high authority, the inter-​relationship of national and international law, including in relation to fundamental rights, is “undergoing evolution”. To adapt what Brennan J said in Mabo v Queensland [No 2], the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights. The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear.

At common law, judges are required to resolve ambiguities in statutory interpretation in favour of compliance with Australia’s international law obligations.179 In Newcrest Mining, Kirby J extended that rule to apply to constitutional interpretation. He repeated this view in numerous cases, such as Kartinyeri v Commonwealth (1998) 195 CLR 337 (at 417-​418) and Thomas v Mowbray (2007) 233 CLR 307 (at 440-​441). So far no other High Court Justice has expressly endorsed his view. Kirby J’s proposed rule of interpretation came under attack from McHugh J in Al-​ Kateb v Godwin (2004) 219 CLR 562. McHugh J stated (at 589): Finally, contrary to the view of Kirby J, courts cannot read the Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1900. Rules of international law at that date might in some cases throw some light on the meaning of a constitutional provision. Interpretation of the term “aliens” by reference to the jus soli or jus sanguinis is an example. But rules of international law that have come into existence since 1900 are in a different category.

179

Polites v Commonwealth (1945) 70 CLR 60 at 68-​69, 77, 80-​81. See also Justice M Kirby, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol –​A View from the Antipodes” (1993) 16 University of NSW Law Journal 363.

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The claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical.

After conceding the rule that statutes should be interpreted in accordance with international law, McHugh J went on to deny the application of the rule in the case of the Constitution (at 591-​595): However, this Court has never accepted that the Constitution contains an implication to the effect that it should be construed to conform with the rules of international law. The rationale for the rule and its operation is inapplicable to a Constitution –​which is a source of, not an exercise of, legislative power. The rule, where applicable, operates as a statutory implication. But the legislature is not bound by the implication. It may legislate in disregard of it. If the rule were applicable to a Constitution, it would operate as a restraint on the grants of power conferred. The Parliament would not be able to legislate in disregard of the implication. Most of the rules now recognised as rules of international law are of recent origin. If Australian courts interpreted the Constitution by reference to the rules of international law now in force, they would be amending the Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares that the Constitution is to be amended only by legislation that is approved by a majority of the States and “a majority of all the electors voting”. Attempts to suggest that a rule of international law is merely a factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if that is done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be the result of the case. The point is so obvious that it hardly needs demonstration. But a simple example will suffice to show the true character of what is done if courts take a post-​1900 rule of international law into account. Immediately before the rule was recognised, our Constitution had meanings that did not depend on that rule. Either the rule of international law has effect on one or more of those meanings or it has no effect. If it has an effect, its invocation has altered the meaning of the Constitution overnight. As a result, a court that took the rule into account has amended the Constitution without the authority of the people acting under s 128 of the Constitution. It has inserted a new rule into the Constitution.

Kirby J defended his position in the same case (at 623-​630): The understanding of the Constitution in this Court is constantly evolving. The interpretive principle that I have expressed is but another step in the process of evolution. McHugh J objects to the use of the “rules” of international law to inform the interpretive principle that I favour. “Rules” is a word I have not used, preferring as I do “principles” or “basic principles”. McHugh J accepts that phenomena other than international law can “result in insights concerning the meaning of the Constitution that were not present to earlier generations”. Once this concession is made, the difference between McHugh J and myself is narrowed. International law, including as it declares universal human rights and fundamental freedoms, exists in the form of “rules” and discourse. This is the tangible manifestation. “[P]‌olitical, social or economic developments”, which McHugh J accepts can throw light on the meaning of the Constitution, generally appear in other forms. But if they can have their influence in the form in which they exist, so can the “rules” of international law in the form in which they manifest themselves. They do not bind as other “rules” do. But the principles they express can influence legal understanding. [T]‌he complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today. That is why national courts, and especially

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national constitutional courts such as this, have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that law states human rights and fundamental freedoms. Consistency with s 128 of the Constitution: Nor, contrary to the opinion of McHugh J, is the interpretive principle that I favour inconsistent with the provisions of s 128 of the Constitution governing its formal amendment. If this argument were valid, it would apply equally to other decisions of this Court in which the Court has given new meaning to the constitutional text and expounded new rights and duties. The Constitution provides both for formal amendment and judicial reinterpretation. From the earliest days of federation both means of adjustment and change have been followed, to the advantage of the Commonwealth and its people. It is idle to suggest otherwise. This Court has played its role in adapting the Constitution to changing times where that was proper and compatible with the constitutional text and legal principle. The developments of international law … represent no more than another change requiring adaptation.

Kirby J frequently used international human rights principles to bolster his (often dissenting) judgments. For example, he found that the extent of the appointments of acting judges to the New South Wales Supreme Court was such as to fundamentally alter the institutional integrity of that Court, and thus breach the doctrine of the separation of powers in Chapter III of the Constitution (Forge v ASIC (2006) 228 CLR 45 as discussed at [6.120]). His decision was explicitly influenced by international and comparative human rights jurisprudence. Contrast the short rejection of the relevance of such material by Heydon J in the same case (at 139-​140): Considerable reliance was placed on cases on the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 6; the Canadian Charter of Rights and Freedoms, s 11(d) and the Bill of Rights of the Constitution of the Republic of South Africa, s 34. These documents all post-​dated Ch III. They did not lead to Ch III and they were not based on Ch III. Accordingly, no assistance is to be obtained from cases on these documents in construing Ch III and evaluating its impact on State laws.

The consequences of invalidity [1.235]  When a court pronounces governmental action, legislation or decision to be invalid, the act or decision is generally treated as void ab initio. It will be treated that way, even though it was presumed to be valid until the finding of invalidity was made.180 When the court, including an appellate court, finally rules on the meaning and effect of valid legislation, that ruling will normally be treated as representing the law as from the time the legislation was made.181 Despite the rule that unconstitutional provisions are void ab initio, numerous qualifications exist to the strict rule.182 One such qualification arose in New South Wales v Kable (Kable No 2) [2013] HCA 26. The case concerned a challenge by one

180 See E Campbell, “The Retrospectivity of Judicial Decisions and the Legality of Governmental Acts” (2004) 4 Monash University Law Review 49 at 50. 181 Campbell, n 180, 83. 182 See E Campbell, “Unconstitutionality and Its Consequences”, in G Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994), p 92ff.

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Mr Kable to the validity of a period of detention he had endured in 1995. Kable had been detained for a further six months after the expiry of his sentence for a crime pursuant to a judicial order made by one Levine J under the Community Protection Act 1994 (NSW). Later, in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, the High Court found that Act to be invalid (see [6.110]). In Kable No 2, Kable sought compensation for his period of detention, on the basis that it had been made under an invalid statute. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ found against Kable (at [38]-[41]): The conclusions reached in these reasons about the effect of the order made by Levine J accord with fundamental considerations about the operation of any developed legal system. There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside. Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order. Finally, it will be recalled that Mr Kable submitted that the effect of this Court’s orders in Kable (No 1) was to render the order of Levine J void ab initio. This Court did not declare the order made by Levine J to be void. As a judicial order of a superior court of record, the order of Levine J was valid until set aside. It was not “void ab initio”.

Therefore, a finding of statutory invalidity may not affect the legality of actions taken pursuant to an earlier court order made under that legislation, when it was presumed valid. A finding of constitutional invalidity will mean that the relevant statutory provision is void. However, courts will adopt various techniques to try and save as much of a law as possible. One technique is to “read down” a law. The other technique is to “sever” a law. In Public Service Association of SA v Industrial Relations Commission of SA (2012) 249 CLR 398, Heydon J described the process of “reading down” (at 431): A statute is to be construed bearing in mind the constitutional limits on the powers of the relevant legislature. If the impugned statute is capable of bearing two meanings, one which would render it invalid and the other which would render it valid, the latter is to be preferred. “[S]‌o far as different constructions … are available, a construction is to be selected which, so far as the language … permits, would avoid, rather than result in, a conclusion that the section is invalid”. But the meaning compatible with validity must be “available”. It is wrong to take words which bear only one meaning, which meaning leads to invalidity,

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and to rewrite them to create another meaning leading to validity. It is not for the Court to stand in the shoes of the legislature and purport to enact legislation within power which is different from the statute which the legislature actually enacted.

If certain provisions of a law, or applications of those provisions, are found to be unconstitutional, the remaining provisions can continue to operate, if the offending provision can be “severed”. For example, if a provision of a statute is found invalid, it might be capable of being separated from the valid provisions, meaning that the valid portion of the statute may continue. The rules of severance involve the application of statutory interpretation principles.183 Severance must be done in such a manner as to maintain Parliament’s purpose in enacting the statute, and to ensure the remaining provisions are coherent; the courts will give effect to the legislation as far as possible.184

CONCLUSION [1.240]  This chapter has provided an overview of various aspects of Australian federal constitutional law: fundamental concepts, a brief post-​settlement history of the development of Australian constitutionalism, an appraisal and overview of the provisions of the Constitution, and a comment on judicial review and constitutional interpretation. This chapter is designed to provide a foundation for the more specific information contained in the following chapters. Chapters 2-​4 deal with the legislative powers of the Commonwealth Parliament. Chapter 2 deals with characterisation, which is essential for the understanding of all exercises of the Commonwealth legislative power. Chapters 3 and 4 deal with specific legislative heads of power, the corporations and external affairs powers. Chapter 5 deals specifically with the Commonwealth executive. The concept of judicial power, and the linked concept of the separation of judicial power, are addressed in Chapter 6. Chapters 7 and 8 deal with, respectively, inconsistency of laws, and intergovernmental immunities, which are essential to an understanding of the legal relationship between the Australian central and State governments. Chapters 9 and 10 deal with the distribution of fiscal power within Australia. Chapters 11-​13 deal with specific prohibitions on governmental power (or freedoms from government intrusion). Finally, Chapter 14 deals with some general themes of current interest in the study of federal constitutional law.

183 See, for example, s 15A Acts Interpretation Act 1901 (Cth), or s 6 Interpretation of Legislation Act 1984 (Vic). See also M Sanson, Statutory Interpretation (2nd ed, OUP, 2016), pp 57-​60. 184 Sanson, n 183, p 59. See also [7.15] and Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500.

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Chapter 2

Characterisation of Commonwealth Laws [2.10] [2.15] [2.20] [2.25]

RESERVED POWERS DOCTRINE: R v BARGER............................................................................. 67 EXPLOSION OF THE RESERVED POWERS DOCTRINE: THE ENGINEERS CASE................ 70 THE MODERN APPROACH TO DIRECT CHARACTERISATION.............................................. 73 INCIDENTAL CHARACTERISATION.............................................................................................. 77 [2.30] Section 51(i) and incidental power...................................................................................... 78 [2.35] Section 51(ii) and incidental power.................................................................................... 84 [2.40] Conclusion on incidental power......................................................................................... 85 [2.45] THE RELEVANCE OF PROPORTIONALITY IN CHARACTERISATION................................... 87 [2.50] Purposive powers.................................................................................................................. 88 [2.55] Proportionality and incidental power................................................................................ 93 [2.60] CONCLUSION....................................................................................................................................... 95

[2.05]  The Commonwealth’s legislative power is enumerated rather than general. In order for a Commonwealth law to be constitutionally valid, specific constitutional authority, or a constitutional “head of power”, must be found for that law. A valid Commonwealth law must be capable of being “characterised” as being within a Commonwealth head of power. Most of these heads of power are found in s 51, though miscellaneous powers may be found elsewhere in the Constitution, such as in ss 52, 81 and 96. In the following commentary, most of the sample cases concern characterisation under s 51(i), the trade and commerce power, and s 51(ii), the taxation power. However, the principles illustrated apply to all heads of power.

RESERVED POWERS DOCTRINE: R v BARGER [2.10]  In the first two decades after federation, the High Court took a very narrow approach to the characterisation of Commonwealth laws. It adopted the view that certain legislative areas were “reserved” for the States. If a Commonwealth law impinged on an area of reserved power, it was found to be invalid. In other words, the High Court characterised Commonwealth laws by looking at what those laws could not do, rather than what they could do. The result was that Commonwealth laws were read narrowly so as to ensure the preservation of the maximum area for unimpeded State regulation.1 1 See D Meagher , J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), p 628.

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A classic example of the application of “the reserved powers doctrine” arose in the case of R v Barger (1908) 6 CLR 41. The case concerned the validity of the Excise Tariff Act 1906 (Cth), which imposed a tax on the manufacturers of agricultural implements. Section 2 exempted from the tax those goods “manufactured by any person … under conditions which were declared by Parliament to be fair and reasonable, or which were in accordance with a federal industrial award”. The Commonwealth argued that its law was a valid exercise of power under s 51(ii), which gives the Commonwealth power “with respect to … taxation”. However, the law clearly had an ulterior purpose aside from the raising of revenue: it was encouraging the adoption of certain labour practices within the agricultural sector. Barger, a manufacturer affected by the tax, challenged the validity of the law. A majority of Griffith CJ, Barton and O’Connor JJ found that the law could not be characterised as falling within s 51(ii). They stated (at 69): The grant of the power of taxation is a separate and independent grant. This is the accepted law in the United States. In interpreting the grant it must be considered not only with reference to other separate and independent grants, such as the power to regulate external and inter-​state trade and commerce, but also with reference to the powers reserved to the States. It was not contested in argument that regulation of the conditions of labour is a matter relating to the internal affairs of the States, and is therefore reserved to the States and denied to the Commonwealth, except so far as it can be brought within one of the thirty-​nine powers enumerated in s 5 We are thus led to the conclusion that the power of taxation, whatever it may include, was intended to be something entirely distinct from a power to directly regulate the domestic affairs of the States, which was denied to the Parliament.

They added (at 74): The professed purpose of an Act is generally stated in its Title. In any of the cases supposed the purpose of the Act, apparent on its face, whatever attempt might be made to disguise it in the Title, would be, not to raise money for the purposes of government, but to regulate the conditions of labour. From this point of view an inquiry into the purpose of an Act is not an inquiry into the motives of the legislature, but into the substance of the legislation. And for the purpose of determining whether an attempted exercise of legislative power is warranted by the Constitution regard must be had to substance –​to things, not to mere words.

They concluded (at 76): In our opinion the exclusive power of the Parliament to impose duties of Excise cannot be construed as depriving the States of the exclusive power to [regulate the domestic matters of States]. The substantial nature and character of the legislation is the same whether it is passed by one legislature or the other. It follows that such an Act would not be in substance an Act imposing duties of Excise within the meaning of s 90 of the Constitution.2 If, then, the Act in question is not, in substance, an Act imposing duties of Excise, what is it? We think

2 The actual head of power relied upon was not s 90, which is not a head of power at all but rather a prohibition on State power, but s 51(ii), the head of power regarding taxation.

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that it is an Act to regulate the conditions of manufacture of agricultural implements, and not an exercise of the power of taxation conferred by the Constitution.

The decision indicated that Commonwealth laws were incapable of “dual characterisation”: they could not be about more than one subject matter. The Excise Tariff law was, objectively, about both taxation and labour conditions: the majority decided (at 77) that the proper characterisation of the law was as one with respect to “conditions of manufacture of agricultural implements”, an area beyond Commonwealth enumerated power. In dissent, Isaacs J, with whom Higgins J agreed, stated (at 97-​98): [S]‌uch a conclusion, as my learned brethren preceding me have reached, necessarily gives determinative force to the purpose and effect of the Act, and the assumed object and motive of the legislature in passing it, and this is not permissible in such a case. The Act is by this process taken to be equivalent to an enactment containing no reference to a tax, and consisting merely of regulative provisions; the words of the Commonwealth Parliament are rejected, and others it has not used are constructively substituted. No similar case can be found. It would be perfectly easy to destroy every Excise Act [or tax Act] in a similar manner. All that is necessary is to apply the doctrine of equivalence. The Commonwealth imposes, say, a gun tax or a dog tax of £1 a year. That might be regarded as a penalty on keeping a gun or a dog; such a tax is very frequently said colloquially to be a penalty. A motor car tax might, in like manner, be held equivalent to a penalty on the possession of motor cars. The State might penalize the possession of opium by £100 fine for every ounce. If the Commonwealth, for the purpose of suppressing the evil, imposes a tax of £100 an ounce, could it be said it was only a penalty for regulation, and not a tax? But I do not see how such an Act could stand, if this Excise Tariff 1906 is bad. Let us get even closer to the present Act. Take the case of cigarettes. A differential Excise tax of, say, sixpence per pound is placed on cigarettes if made by machine. Is that a penalty on using machinery, and unlawful? If not, could the differential tax be placed on cigarettes made by black labour, or by women, or boys, or consumptives? Would it be said to be no tax whatever, but mere regulation by penalty in respect of trade? If an affirmative answer is given, it cuts across all the principles of the unlimited power of taxation, which have been emphasized in the examples already cited. If, however, it be admitted that black labour, or the employment of women and children, may be made the basis of differentiation, why not under-​paid labour? What difference of principle is there between any of the cases suggested? In all of them the tax is on the goods, but for various reasons, motives, objects, or purposes which seem to the legislature appropriate to actuate it in the exercise of the granted power. If it be doubted whether the tax as a tax is really on the goods, though for the purpose of securing fair conditions of labour, an easy test is at hand. Assume, first, the proviso deleted. The Act then stands as a clear and unmistakeable tax on all the machinery specified. A machine made under unreasonable conditions of labour is taxed, so is a machine alongside it made under reasonable conditions. Now assume the proviso to operate. It exempts the latter machine, and says nothing about the former; but the former remains liable as it was before, it is not interfered with. How can it be said the article is not taxed because the legislature, for its own reasons, chooses to differentiate between it and another article which has come into existence under different circumstances? If the tax had been imposed by one Act without a proviso, and then a year or a day after another Act were passed, not as a proviso but independently, exempting machines made under the circumstances specified in the proviso, could anyone have reasonably argued the unconstitutionality of the first Act as not being a taxing Act at all? And if substance is the main thing, why, in the absence of express

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restriction, apply a different rule of validity according as the legislature puts it into one document instead of two?

A tax always taxes something, such as goods, property, services or activities. Following Barger, a tax law would always seem to be about both taxation and the subject matter being taxed. The majority decision indicated that the “thing being taxed” had to fall outside the State’s reserved powers in order to be within Commonwealth power. For example, just as the tax in Barger was found to be a law about labour conditions, could not a tax on dogs be characterised as a law about dogs? As “dogs” are not expressly within the Commonwealth’s heads of power, it is possible, as indicated in Isaac J’s dissenting judgment, that they were part of the States’ reserved powers, rendering a dog tax invalid under Barger reasoning. The majority judgment in Barger imposed substantial limits on the Commonwealth’s taxation power under s 51(ii) by quarantining certain activities from its scope. Barger clearly demonstrated how the application of the reserved powers doctrine imposed limitations on the scope of Commonwealth power which were not expressly demanded by the Constitution itself.

EXPLOSION OF THE RESERVED POWERS DOCTRINE: THE ENGINEERS CASE [2.15]  The doctrine of reserved powers was applied by a High Court majority until the watershed case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129. The case arose out of an industrial claim lodged in the Commonwealth Arbitration Court by an engineers’ trade union against 843 employers, including three Western Australian government employers. Under the reserved powers doctrine, the Arbitration Court could not have exercised jurisdiction under a Commonwealth Act so as to affect the labour relations between a State instrumentality and its employees: this would have been an area of State reserved power.3 An issue before the High Court was whether the Commonwealth could make laws binding State instrumentalities under its conciliation and arbitration power in s 51(xxxv) of the Constitution. The question of the proper method of interpretation of Commonwealth enumerated powers was raised squarely before the Court. The High Court majority stated that the Commonwealth heads of power were to be interpreted in accordance with the natural meaning of the words therein (see [1.195]). This meant that no implied limitations, such as the reservation of non-​enumerated areas exclusively to the States, should be read into those heads of power, unless such implication necessarily or logically followed from the text. Therefore, in the Engineers case itself, the majority was not willing to imply that industrial disputes involving State instrumentalities were somehow cordoned off from the scope of the power in s 51(xxxv). No such limitation was evident from the clear words of the placitum, or from any other provision of the Constitution. The Court stated (at 154-​155):

3 A related issue was whether the Commonwealth could legislate to affect State instrumentalities at all, contrary to the prevailing doctrine of implied immunities. This doctrine was also discredited in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129: see [8.20].

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Applying these principles to the present case, the matter stands thus: –​Section 51(xxxv) is in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to industrial disputes in which States are concerned: but subject to any special provision to the contrary elsewhere in the Constitution. The respondents suggest only s 107 as containing by implication a provision to the contrary. The answer is that s 107 contains nothing which in any way either cuts down the meaning of the expression “industrial disputes” in s 51(xxxv) or exempts the Crown in right of a State, when party to an industrial dispute in fact, from the operation of Commonwealth legislation under s 51(xxxv). Section 107 continues the previously existing powers of every State Parliament to legislate with respect to State exclusive powers and (2) State powers which are concurrent with Commonwealth powers. But it is a fundamental and fatal error to read s 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in s 51, as that grant is reasonably construed, unless that reservation is as explicitly stated. … The doctrine of “implied prohibition” finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters, but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of s 109. We therefore hold that States, and persons natural or artificial representing States, when parties to industrial disputes in fact, are subject to Commonwealth legislation under pl xxxv of s 51 of the Constitution, if such legislation on its true construction applies to them.

Therefore, the majority championed a legalistic literal approach to interpretation of the Constitution:4 their interpretation was to be guided by the text, rather than by perceived desirable outcomes or political necessities. The Court (at 151-​152) targeted the ideological underpinnings of the reserved powers doctrine, namely a desire to avoid the grant of “too much” power to the new central government: We should state explicitly that the doctrine of “implied prohibition” against the exercise of a power once ascertained in accordance with ordinary rules of construction, was definitely rejected by the Privy Council in Webb v Outrim. Though subsequently reaffirmed by three members of this Court, it has as often been rejected by two other members of the Court, and has never been unreservedly accepted and applied. From its nature, it is incapable of consistent application, because “necessity” in the sense employed –​a political sense –​ must vary in relation to various powers and various States, and, indeed, various periods and circumstances. Not only is the judicial branch of the Government inappropriate to determine political necessities, but experience, both in Australia and America, evidenced by discordant decisions, has proved both the elusiveness and the inaccuracy of the doctrine as a legal standard. Its inaccuracy is perhaps the more thoroughly perceived when it is considered what the doctrine of “necessity” in a political sense means. It means the necessity of protection against the aggression of some outside and possibly hostile body. It is based on distrust, lest powers, if once conceded to the least degree, might be abused to the point of destruction. But possible abuse of powers is no reason in British law for limiting the natural force of the language creating them. It may be taken into account by the parties when creating the powers, and they, by omission of suggested powers or by safeguards introduced by them into the compact, may delimit the powers created. But, once

4 G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), p 170.

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the parties have by the terms they employ defined the permitted limits, no Court has any right to narrow those limits by reason of any fear that the powers as actually circumscribed by the language naturally understood may be abused. This has been pointed out by the Privy Council on several occasions, including the case of the Bank of Toronto v Lambe. The ordinary meaning of the terms employed in one place may be restricted by terms used elsewhere: that is pure legal construction. But, once their true meaning is so ascertained, they cannot be further limited by the fear of abuse. The non-​granting of powers, the expressed qualifications of powers granted, the expressed retention of powers, are all to be taken into account by a Court. But the extravagant use of the granted powers in the actual working of the Constitution is a matter to be guarded against by the constituencies and not by the Courts. When the people of Australia, to use the words of the Constitution itself, “united in a Federal Commonwealth”, they took power to control by ordinary constitutional means any attempt on the part of the national Parliament to misuse its powers. If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper. Therefore, the doctrine of political necessity, as a means of interpretation, is indefensible on any ground. The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se.

If the Engineers-​type reasoning had been applied to the interpretation of s 51(ii) in Barger, it is likely that s 2 of the Excise Tariff Act 1906 would likely have been found to be valid. The Commonwealth’s power regarding taxation is plenary, apart from the prohibition in s 51(ii) itself on taxes which discriminate between States or parts of States. Therefore, a “natural” or literal interpretation of s 51(ii) would mean that agricultural implements could be taxed, and tax exemptions could be permitted with regard to the conditions of labour under which those implements were manufactured. Though Barger has never been expressly overruled, it is clear that the majority decision is no longer good law. Why did the Court perform such a volte-​face in the Engineers case? In answering that question, it is important to understand the policy or “values” behind the reserved powers doctrine. In the immediate aftermath of federation, the nascent High Court was probably wary of the new central government polity, the Commonwealth, and naturally favoured constitutional interpretation which enhanced the powers of the “devils they knew”, the former colonies now renamed States. Engineers was decided 20 years after federation, when the nature and operations of the central government were more familiar, and a true national identity had emerged among the Australian people, particularly in the aftermath of the First World War.5 Furthermore, by 1920 High Court personnel had changed such that a new balance of power emerged, in favour of those hostile to the reserve powers doctrine.6 The Engineers case signalled the demise of the reserved powers doctrine and paved the way for a new, expansive approach to characterisation of Commonwealth laws. 5 See R T E Latham, “The Law and the Commonwealth”, in W K Hancock (ed), Survey of British Commonwealth Affairs, Volume 1, Problems of Nationality 1918-​1936 (Oxford University Press, Oxford, 1937, reprinted 1964), p 509. 6 Latham, n 5, p 563; see also Windeyer J in Victoria v Commonwealth (1971) 122 CLR 353 at 396.

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Modern interpretations of the corporations power (see Chapter 3) and the external affairs power (Chapter 4) have in fact raised fears, by commentators and in minority judgments, that those powers have been interpreted so expansively as to potentially obliterate the federal distribution of powers,7 and “radically reduce the application of State laws in many fields”.8 In New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, Callinan J delivered a rare judicial snub to Engineers, labelling its reasoning unsatisfactory (at 305 and 369), unconvincing (at 307) and undeserving of its revered position in Australian constitutional law (at 308). Indeed, Callinan J went so far as to describe Engineers as “a monument to the demolition of State power” (at 315-​316). It must be noted that a number of post-​Engineers judgments have echoed the reserved powers doctrine. For example, the minority judgments regarding the scope of the external affairs power in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 were criticised by Mason J (at 128) in that case for, in his view, resurrecting the reserved powers doctrine.9 Mason J raised the same objection in the same case (at 150) regarding the narrow interpretation given by three Justices to the scope of s 51(xx), the corporations power. The majority in Work Choices raised the same type of criticism of the minority view at 71-​72, 84-​85, 116-​121 and 123.10 Finally, one may note the strength of the dissenting judgment of Murphy J in Attorney-​General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 (at 529-​530), where he claimed that the majority’s narrow reading of the trade and commerce power in that case kept “the pre-​Engineers ghosts walking” (see [2.30]).

THE MODERN APPROACH TO DIRECT CHARACTERISATION [2.20] In Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1, Kitto J described the process of characterisation thus (at 7): [I]‌t is a question as to the true nature and character of the legislation: is it in its real substance a law upon, “with respect to”, one or more of the enumerated [heads of power], or is there no more in it in relation to any of those subjects than an inference so incidental as not in truth to affect its character?

His Honour also elucidated the modern test of characterisation (at 7): [T]‌he question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates, or abolishes.

A similar test of direct characterisation was enunciated by Latham CJ in South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373 (at 424-​425):

7 See Gibbs CJ in Koowarta v Bjelke-​Petersen (1982) 153 CLR 168 regarding the scope of the external affairs power. 8 Kirby J in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 at 224 (see also 225) regarding the scope of the corporations power. 9 See [4.35], for Mason J’s similar criticisms in Koowarta v Bjelke-​Petersen (1982) 153 CLR 168 at 226-​229. 10 Kirby J firmly rejected the criticisms at 201 and 226.

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The question [of the characterisation of a law] may be put in these terms: “What does the law do in the way of changing or creating or destroying duties or rights or powers?” The consequential effects are irrelevant for this purpose. Even though an indirect consequence of an Act, which consequence could not be directly achieved by the legislature, is contemplated and desired by Parliament, that fact is not relevant to the validity of the Act.

In Fairfax, the laws at issue were s 23(j) and 23(ja) of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth). These laws, introduced in 1961 as a response to decreased public securities investment, deprived superannuation funds of income tax exemption unless the Taxation Commissioner was satisfied that the fund included “public securities” (Commonwealth securities, State bonds and stocks and securities in public utilities) within its investment portfolio. The laws were challenged by the trustees of a superannuation fund for employees of John Fairfax and Son Ltd. It was duly argued that the impugned laws were not laws with respect to taxation under s 51(ii), but were in fact laws with regard to investment activities, a subject matter beyond Commonwealth power. This argument was very similar to that which had succeeded in Barger. However, post-​Engineers, the argument failed on this occasion. Applying the test of characterisation outlined in Fairfax, it is clear that the only duty directly imposed by the impugned laws was the obligation to pay income tax.11 No obligation was imposed to invest in public securities, even though such investment was undoubtedly encouraged by the 1961 amendments. Therefore, the laws were characterised as laws “with respect to taxation”, and were therefore valid under s 51(ii). Alternatively, one could argue that the law imposed a duty to pay tax or invest in public securities. Such a characterisation would render the law one with regard to both taxation and investment activity. Dual characterisation of a Commonwealth law is now permissible, so long as one of its characters is within a head of power. We can say that the law in Fairfax “fairly answer[ed] the description of a law ‘with respect to’ one given subject matter appearing in s 51 regardless of [the fact that it was], at the same time, more obviously or equally a law with respect to some other subject matter”.12 The Fairfax approach to characterisation, focusing solely on the direct rather than consequential effect of laws, permits the Commonwealth to enact laws which have significant effects on areas outside its heads of power. This is particularly pertinent to the power of taxation, as taxes are often used to regulate, discourage and deter certain activities.13 For example, while cigarette taxes undoubtedly raise revenue, the 11 See Kitto J in Fairfax v FCT (1965) 114 CLR 1 at 13. 12

Re F; Ex parte F (1986) 161 CLR 376 at 387-​388. See also, for example, Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 189-​192 per Stephen J; Leask v Commonwealth (1996) 187 CLR 579 at 633 per Kirby J. It is undoubtedly the orthodox position that multiple characterisation is permissible. However, see the judgments of Latham CJ in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 and Barwick CJ in Victoria v Commonwealth (1971) 122 CLR 353 and commentary thereon by Meagher et al, n 1, pp 515-​516.

13 See Kitto J in Fairfax v FCT (1965) 114 CLR 1 at 12. See also Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555. Isaacs J described the power of taxation as including the power to “embarrass or to destroy” in his dissenting opinion in R v Barger (1908) 6 CLR 41 at 99. See however Menzies J in Fairfax v FCT at 17-​18, where his Honour indicates that some “special prohibitive taxes” might be so disproportionate as not to constitute taxes at all. The Court disapproved

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extremely high rate of cigarette excise is also designed to promote public health by deterring tobacco consumption. Furthermore, the purpose or motivation behind a Commonwealth law is generally irrelevant (see however [2.45]). In Fairfax, it was obvious that the main purpose behind the 1961 amendments was to stimulate investment in public securities as a response to flagging public securities investment in 1960.14 However, the evident existence of a purpose which lay outside federal power was not a consideration that “suffice[d]‌to invalidate the law” (Kitto J at 13). Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 is a leading case which again demonstrates that the policy behind a law, and the indirect consequences of a law, are generally irrelevant for the purposes of characterising that law. The case concerned characterisation under s 51(i), which gives the Commonwealth power with regard to, inter alia, international trade. Under the Customs (Prohibited Exports) Regulations 1958, enacted under the Customs Act 1901 (Cth), the export of zircon and rutile concentrates was prohibited unless the exporter received written approval from the Minister for Minerals and Energy (reg 9). In 1974 Murphyores sought approval from the Minister to export concentrates which they were to extract from mining operations on the environmentally fragile Fraser Island. The Minister advised Murphyores that no decision would be given until the results of an environmental impact study by a Commission of Inquiry on the effects of mining on Fraser Island were known. The Minister was complying with a governmental directive under the Environmental Protection (Impact of Proposals) Act 1974 (Cth). Murphyores sought an injunction to prevent the environmental inquiry from proceeding. It anticipated that such an inquiry would find that the proposed mining would be detrimental to the ecology of Fraser Island, and would therefore prompt the Minister to deny export approval to Murphyores. Murphyores also sought a declaration that the Minister could not take into account “non-​Commonwealth” considerations, such as environmental impact, when exercising his power of exports approval. In particular, Murphyores denied that the Minister’s proposed course of action was authorised under s 51(i). The High Court unanimously found that the Minister could indeed exercise an unfettered discretion in deciding whether or not to permit mineral exports. For example, Mason J stated (at 19-​20): It is … for Parliament in its wisdom or for the person to whom Parliament delegates the power to decide who may export and what goods may be exported. The means and the criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliament’s power of selection. It does not follow, for example, that because the subject of the power is trade and commerce, selection of the exporter or of the goods to be exported must be made by reference to considerations of trading policy.

of Menzies J’s anomalous dictum in State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 353-​354. 14 Kitto J in Fairfax v FCT (1965) 114 CLR 1 at 12-​13 noted the obviousness of the legislative intent.

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It is enough that the law operates on the topic of trade and commerce with other countries. A law which absolutely or conditionally prohibits exportation of goods is a law that operates on that topic. It is not a law which ceases to deal with that topic because it confers a discretion, unlimited in scope, to permit exportation of particular goods. The point here is that by imposing a conditional prohibition on exportation, a prohibition which may be relaxed according to the exercise of a discretion, the law is dealing with exportation of goods, a matter at the heart of trade and commerce with other countries. It is not to the point that the selection may be made by reference to criteria having little or no apparent relevance to trade and commerce; it is enough that the law deals with the permitted topic and it does not cease to deal with that topic because factors extraneous to the topic may be taken into account in the relaxation of the prohibition imposed by the law. It is now far too late in the day to say that a law should be characterized by reference to the motives which inspire it or the consequences which flow from it.

He added (at 21): It is one thing to say that the trade and commerce power does not enable the Commonwealth to regulate and control directly matters standing outside the subject matter of power, such as the environmental aspects of mining in Queensland. It is quite another thing to say that the Commonwealth cannot in the exercise of that power make laws which have a consequential and indirect effect on matters standing outside the power, even by means of prohibiting conditionally engagement in trade and commerce with other countries. It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate.

The direct legal effect of reg 9 was to prohibit certain exports without Ministerial approval. It was plainly a law about export, a type of international trade and commerce, and thus clearly at the heart of s 51(i). It did not matter that reg 9 was being manipulated so as to impact on the environmental arena, an area, to quote Mason J (at 20), “of little or no apparent relevance to trade and commerce”, and itself not a subject matter of Commonwealth power.15 Therefore, the Minister was permitted to establish the inquiry for the purposes of assisting him to exercise his discretion under reg 9. Ultimately, the Minister refused to grant the permit on environmental grounds. As there was no viable domestic market for the zircon and rutile which Murphyores proposed to extract from Fraser Island, the refusal of export permission indirectly terminated the mining proposal as it was no longer commercially feasible. Work Choices concerned the validity of federal legislation which established a national system of industrial relations. The legislation was enacted under the corporations power in s 51(xx), rather than the industrial relations power in s 51(xxxv), partly to avoid limits to the latter power. The majority found the law was validly enacted under the corporations power (see [3.55]). In the minority, Callinan J highlighted the occasional undesirability in his view of a law touching upon two heads of power (at 269-​270): It has been said more than once that an enactment may be concerned with more than one subject. … So much can be readily accepted. It has also been said that the Commonwealth Parliament may attempt, but fail, to enact legislation under one head of power, yet still achieve

15 However, some Commonwealth power over environmental issues is now recognised as being vested under the external affairs power, s 51(xxix). See [4.35].

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constitutional validity in the courts under some other, apparently previously overlooked, power: that in effect it may score a bullseye by aiming at a different target altogether (the “accidental bullseye” proposition). It has also been held, indeed the [majority] judgment in this case so states, that there is no constitutional proscription upon the achievement indirectly of what could not be done directly (the proposition of “indirect result”). Claims however of accidental bullseyes and indirect results are not merely unconvincing. They have this further unsatisfactory aspect. When the Commonwealth comes to this Court, to contend validity on either of those bases, it asks the Court to do what the legislature was itself unwilling or unable to do: to strip-​mine the Constitution to try to discover in it, or extend, for the Commonwealth some (any one will do) supportive head of power, express or implied. The absence of any reference in the objects provision [of the legislation] to corporations, and the making of the connexion by distributive definition only, suggests that this is the process that the Commonwealth is inviting the Court to undertake here if all else were to fail. At the very least invocation of these propositions is a cause for pause, and provokes scepticism and close scrutiny, on grounds of improbability, uncertainty, or possible lack of candour on the part of the legislature.

Callinan J went on to criticise the decision in Murphyores and, as noted, also criticised Engineers. His Honour’s dissent in Work Choices, the longest judgment in High Court history, exhibited a rare and ultimately fruitless rejection of the modern processes of characterisation, which have served to greatly enhance federal power.

INCIDENTAL CHARACTERISATION [2.25]  If a law cannot be characterised as concerning the heart of the subject matter of a head of power, the law may nevertheless be characterised as an incidental exercise of such power if its subject matter is reasonably connected to a matter within Commonwealth power.16 Section 51(xxxix) expressly confers legislative power “with respect to … matters incidental to the execution of any power vested by [the] Constitution in the Parliament”. The High Court has also confirmed that each head of power in s 51 authorises the exercise of implied incidental power. For example, in Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77, Dixon CJ, McTiernan, Webb and Kitto JJ stated: [E]‌very legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws, governing or affecting many matters that are incidental or ancillary to the subject matter.

The conferral of express legislative incidental power in s 51(xxxix), therefore, seems superfluous. Section 51(xxxix) is of most importance in allowing Parliament to exercise power incidental to the powers of the other arms of government, the executive and the judiciary.17 Incidental exercises of power may be described as laws which lie outside the core or heart of a head of power, and extend out to the “periphery” of a head of power.

16 Meagher et al, n 1, p 321. 17

J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), pp 49-​ 50. See [5.65] on the nationhood power, which is exercisable as an incident of executive power. See also [6.95] on the exercise of power incidental to the judicial power of the Commonwealth.

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However, laws that are characterised as exercises of incidental power are no less valid than “direct” laws: “the core and incidental aspects of a power are not separated; the power is an entirety”.18 Zines originally described the various tests of incidental characterisation thus:19 [The test] is sometimes put in the form of asking if the provision deals with a matter that “directly affects” the subject [matter of a head of power] or is “conducive” to it or whether it is “an appropriate means” or “reasonably necessary” to the effectuation of a purpose within power.

Section 51(i) and incidental power [2.30]  Section 51(i) reads: The Parliament shall … have power … with respect to … trade and commerce with other countries, and among the States.

The “direct” subject matter of s 51(i) is trade and commerce between two or more States, or between Australia and at least one other nation. “Trade and commerce” has been interpreted in a common sense lay fashion. In W & A McArthur Ltd v Queensland (1920) 28 CLR 530, the High Court confirmed that it includes all commercial dealings with goods and services, such as commercial arrangements, mutual communings, negotiations, bargaining, transport and delivery. However, interstate and international trade and commerce, in cases regarding s 51(i), has been interpreted narrowly20 to exclude acts preparatory to trade such as production and manufacture of goods.21 Furthermore, while the first sale of goods inside a State after their importation is now classified as interstate or international trade and commerce,22 dealings with goods after their first sale within a State are intrastate transactions.23 Section 51(i) does not directly concern intrastate trade and commerce. The only way the Commonwealth can utilise s 51(i) to directly affect intrastate trade is by an exercise of incidental power. In Wragg v NSW (1953) 88 CLR 353, Dixon CJ stated (at 385-​386): The distinction which is drawn between interstate trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s 51(i) to make laws with respect to trade and commerce with other countries and among the States may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution

18

Cunliffe v Commonwealth (1994) 182 CLR 272 at 319 per Brennan J; see also Leask v Commonwealth (1996) 187 CLR 579 at 633 per Kirby J.

19 Stellios, n 17, p 48. 20 Professor Zines (n 17, p 82) originally argued that this narrow interpretation was necessitated by the previous broad interpretation given to s 92, which states that interstate trade and commerce “shall be absolutely free”, in order to prevent s 92 from unduly restricting Commonwealth and State legislative power. In view of the narrower interpretation given to s 92 since Cole v Whitfield (1988) 165 CLR 360, it may be that a broader interpretation of “interstate trade and commerce” for the purpose of s 51(i) will emerge in the future. See generally Chapter 11 on s 92. 21

Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55; Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283.

22

Permewan Wright Consolidated Pty Ltd v Trewhitt (1979) 145 CLR 1.

23 See generally, Stellios, n 17, p 86. See also Meagher et al, n 1, pp 240-​243.

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and it must be observed however much inter-​dependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes. A legislative power, however, with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include within laws made in pursuance of the power provisions which can only be justified as ancillary or incidental. But even in the application of this principle to the grant of legislative power made by s 51(i) the distinction which the Constitution makes between the two branches of trade and commerce must be maintained. Its existence makes impossible any operation of the incidental power which would obliterate the distinction.

Dixon CJ indicated that the Court must be wary in permitting the Commonwealth to exercise legislative control over intrastate trade under its implied incidental power in s 51(i), in view of the blatant exclusion of such trade from the ambit of s 51(i). His Honour appears to call for a narrow construction of incidental power under s 51(i). In that respect, his Honour’s judgment appears to echo the reserved powers doctrine by seeking to cede maximum legislative control over intrastate trade to the States. His Honour’s words have been nevertheless heeded, as a conservative approach to incidental characterisation under s 51(i) has indeed emerged. O’Sullivan v Noarlunga Meats (1954) 92 CLR 565 concerned the validity of the Commerce (Meat Export) Regulations (Cth). Noarlunga was required to register its premises under both the Commonwealth regulations and a State statute. Noarlunga argued that the State Act was inconsistent with the Commonwealth regulations, so it did not have to obtain the State licence.24 O’Sullivan, who had prosecuted Noarlunga for its failure to obtain the State licence, argued that the relevant Commonwealth regulation was invalid. Regulation 5 of the Commonwealth regulations provided for the registration of premises used for the “slaughtering of meat for export”. The slaughtering of meat is a step in the production of meat, and is therefore outside the ambit of interstate or international trade in that meat. Therefore, reg 5 could only be valid under s 51(i) as an exercise of incidental power. A High Court majority found that reg 5 could be so characterised. The other Justices did not decide this issue.25 Fullagar J in the majority stated (at 598), that “the power of the Commonwealth [under s 51(i)] extended to the supervision and control of all acts and processes which can be identified as being done or carried out for export” (emphasis added). Importantly, the process of slaughtering meat for export is objectively and identifiably different to the process of slaughtering meat for home consumption. “The whole process [of production] from killing to packing will be conditioned in certain respects by the predetermined destination of the meat” (Fullagar J at 596-​597). “Slaughter for export” is therefore an activity which is clearly identifiable as a step in a chain or series of activities leading to international trade in meat. The clear connection between the regulation of “slaughter for export” and “export” itself sufficed to render reg 5 within incidental power under s 51(i). The same result may well not have arisen had the regulations concerned a production activity which could not be so clearly 24 See [7.40], for discussion of the s 109 aspect of this case. 25 These Justices found that the State law was not inconsistent with the Commonwealth regulations, so it was unnecessary to decide on the validity of the latter.

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differentiated from production for the purposes of intrastate trade. For example, Fullagar J noted (at 597): It does not, of course, follow that any corresponding position exists with regard to any commodity other than meat. It may very well be, for example, that such an expression as “mining metals for export” or “sowing wheat for export” is meaningless except by reference to some subjective element.26

Noarlunga Meats provides an example of “vertical integration” between international trade and intrastate activities. Where intrastate activities are steps in a process which leads in virtually all circumstances27 towards international (or interstate) trade, it is likely that the Commonwealth can control those activities under its incidental power in s 51(i).28 However, the High Court has been more circumspect in permitting the Commonwealth to regulate intrastate trading activities when those activities are “horizontally integrated” with international/​interstate trade.29 Horizontal integration refers to the idea that the intrastate and interstate/​international elements of a certain type of trade might be so intermingled that it is necessary for the Commonwealth to regulate all trading activities in order to meaningfully regulate interstate and international trade.30 In Swift Australian Co Pty Ltd v Boyd-​Parkinson (1962) 108 CLR 189, Swift ran a poultry farm, and had failed to obtain a licence for the slaughter of poultry for human consumption as required under a Queensland Act. Swift claimed that the Queensland Act was invalid due to its inconsistency with the Commerce (Meat Export) Regulations (Cth). Regulation 5 was again at issue. However, this time the slaughter of “poultry for export” was not an objectively different process from the slaughter of poultry for home consumption. Therefore, Swift argued that reg 5 necessarily authorised the regulation of the slaughter of all poultry. The High Court majority disagreed, and found that reg 5 was only intended to regulate the slaughter of poultry for export. Other forms of poultry processing could be regulated under the Queensland Act. Only Owen J was willing to accept the argument that the Commonwealth had to regulate the slaughter of all poultry in order to properly regulate the export market in poultry. At 226, Owen J noted

26 An objectively different production process may not be necessary to ground Commonwealth power in such cases. It may be enough if the producer or manufacturer can show evidence of an intention to export the relevant minerals or wheat. See Meagher et al, n 1, pp 289-​290. Indeed, it is implicit in Swift v Boyd-​Parkinson Pty Ltd (1962) 108 CLR 189 (discussed in n 27) that the Commonwealth could enact legislation to regulate the slaughter of poultry for export, even though this was not an objectively different process to the slaughter of poultry for Australian consumption. However, there will be a consequent presumption of the validity (despite s 109) of parallel State laws to regulate the intrastate aspect of the relevant trading activity. See Stellios, n 17, pp 85-​86. 27

In Swift v Boyd-​Parkinson Pty Ltd (1962) 108 CLR 189 at 209, Fullagar J stated that “slaughter for export” was “characterised by a purpose of exportation objectively manifested as actually formed and existing, although not necessarily unalterable” (emphasis added).

28 See Meagher et al, n 1, p 290. 29 Meagher et al, n 1, p 290. 30

See R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 628 per Latham CJ.

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that it was impossible to know, at the time of slaughter, the ultimate destination of processed poultry. Furthermore, in his Honour’s opinion, it was necessary for quality control purposes to ensure proper conditions for the slaughter of poultry for home consumption if such poultry was slaughtered in the same vicinity as poultry for export. The practical effect of the majority decision meant that Swift had to obtain both types of licences in order to operate in both the export and Australian poultry markets. Indeed, Taylor J, in the majority (at 213), conceded that Swift might even have had to set up separate establishments for the respective slaughter of poultry for export under Commonwealth regulations, and slaughter of poultry for home consumption under Queensland laws.31 Alternatively, Zines postulates that Swift might have had to forego the export market altogether, as it was impossible before slaughter to know which produce was to be exported, and its surest market was in Australia.32 It is clear that the majority’s narrow reading of s 51(i) in this case caused great inconvenience for Swift and like poultry producers. In Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54, the High Court majority determined an instance where the Commonwealth could regulate intrastate trade due to the commingling of all types of trade. The case concerned certain regulations in the Air Navigation Regulations 1947 (Cth), which provided for a system of licensing of aircraft. Initially the regulations only covered international flights, interstate flights and territorial flights. In 1964, the regulations were extended to cover all air navigation, including intrastate flights. Under reg 198 of the Air Navigation Regulations 1947 (Cth), the use of aircraft in regular public transport operations was prohibited unless licensed by the Director-​General of Civil Aviation. Under reg 199, the Director-​General was required to consider only matters of safety, regularity and efficiency of air navigation when deciding whether to issue licences for intrastate air services. The Airlines of New South Wales had obtained a licence under reg 198 for an intrastate flight it ran between Sydney and Dubbo. It sought to have the regulations declared valid as a preliminary step to arguing that a parallel New South Wales licensing scheme was invalid due to inconsistency with the Commonwealth law. The High Court majority held both regs 198 and 199 to be valid exercises of incidental power under s 51(i). Kitto J (at 115) stated that intrastate trade, such as intrastate flights, could be regulated under s 51(i) where “the law, by what it does in relation to intrastate activities, protects against danger of physical interference the very activity itself which is within Federal power”. That is, intrastate trade could be regulated where such regulation was necessary to ensure against physical interference with international or interstate trade. It was impossible, in light of the volume and complexity of modern air traffic operations, “to assume in advance that any impairment of the safety, regularity and efficiency of intrastate air navigation [would] leave unimpaired the safety, regularity and efficiency of the other departments into which air navigation may be divided for constitutional purposes” (Kitto J at 116).

31 Swift had argued that it was effectively impossible to obey both laws within the same premises. Taylor J did not agree, but in any case found that it was not enough to alter his construction of reg 5. The laws were not inconsistent, as they were construed as affecting different poultry markets (see n 26). 32 Stellios, n 17, p 86.

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As reg 199 limited Commonwealth control over intrastate flights to issues of safety, regularity and efficiency, the regulatory scheme in regs 198 and 199 was designed to ensure the safe and efficient passage of interstate and international flights, and was accordingly valid.33 The Court’s judgment regarding regs 198 and 199 may be contrasted with its decision regarding reg 200B. Regulation 200B authorised a licensee under reg 198 to conduct air transport operations irrespective of contrary State laws. Regulation 200B, insofar as it applied to intrastate flights, was designed to aid the profitability of interstate and international airflights by ensuring the provision of feeder regional routes. For example, a Dubbo–​Sydney route helps to ensure that Dubbo passengers can reach Sydney in order to embark on interstate or international flights. However, the clear economic integration of the relevant intrastate and other flights did not suffice to render reg 200B a valid exercise of power under s 51(i). Kitto J stated (at 627): Where the intrastate activities, if the law were not to extend to them, would or might have a prejudicial effect upon matters merely consequential upon the conduct of an activity within Federal power, for example, where profit or loss likely to result from interstate commercial air navigation would or might be affected, that mere fact would not suffice, in my judgment, to make the law a law “with respect to” the activity itself.

Barwick CJ agreed (at 88), that the Commonwealth was not permitted to stimulate and encourage intrastate trade for the purpose of fostering international and interstate trade, even though “interstate air navigation profits by or to a significant extent depend[ed] upon the existence of intrastate air navigation”. Indeed, no Justice in the Airlines of NSW (No 2) found reg 200B to be a valid law. The ultimate result of the case was that airline operators within New South Wales had to obtain both a State and a Commonwealth licence if they wished to engage in intrastate flights operations.34 As in Swift v Boyd-​Parkinson, the Court’s refusal to allow regulation of intrastate activities under s 51(i) caused great inconvenience.35 In Airlines of NSW (No 2), the Court drew a clear distinction between physical integration of intrastate and other trade, which may on occasion be controlled by the Commonwealth, and economic integration, which may not.36 This conclusion is supported by the result in Attorney-​General (WA) v Australian National Airlines Commission (1976) 138 CLR 492. The Australian National Airlines Commission (the Commission) was established under the Australian National Airlines Act 1945 (Cth). Under s 19 of that Act, the Commission was authorised to transport passengers by air between States, between a State and a Territory, and within a Territory (that is, all domestic routes apart from intrastate routes). In 1973, s 19B was inserted into the Act. Section 19B(1) authorised the Commission to transport passengers between places 33 The Court’s emphasis in Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 seems to have been exclusively focused on the safety of interstate flights, rather than on their efficiency or regularity: Stellios, n 17, pp 89-​90. 34 Ultimately, the New South Wales scheme was found not to be inconsistent with the Commonwealth regulations. This finding was assisted by the finding of invalidity of reg 200B. See also [7.40]. 35 Such was admitted by Menzies and Windeyer JJ in Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 114 and 156-​157 respectively. 36 Meagher et al, n 1, pp 287 and 297-​298.

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within one State, to the extent provided by subs (2). Section 19B(2) stated that the powers in subs (1) could be exercised for the purpose of the efficient, competitive or profitable conduct of the Commission’s business (that is, its transportation of passengers on non-​intrastate routes). The link between s 19B(2) and s 51(i) was based on the economic links between the Commission’s conduct of interstate flights and its proposed conduct of intrastate flights. The Commission intended to establish a flight, operated by its airline, Trans-​Australian Airlines (TAA), between Perth and Darwin with a stopover in Port Hedland. The intrastate leg between Port Hedland and Perth was necessary to ensure the economic viability of the route. The Attorney-​General of Western Australia, on the behalf of TAA’s competitor, Ansett, sought a declaration that s 19B was invalid, so as to prevent the establishment of the Port Hedland–​Perth route, and effectively thwart the creation of the Perth–​Darwin route. The majority of the Court found that s 19B could not be characterised under s 51(i). In a five-​man Court, Barwick CJ, Gibbs and Stephen JJ maintained the Airlines of NSW (No 2) distinction between physical and economic integration of trading activities. Murphy J dissented on this point, and argued (at 530-​531) that it was “as illogical to exclude commercial considerations from the construction of the commerce power as it would be to exclude defence considerations from the defence power … or industrial considerations from the industrial power”. His Honour found “no basis in the Constitution for the distinction” drawn by Kitto J in Airlines of NSW (No 2). Indeed, his Honour argued (at 529) that the majority’s narrow view of s 51(i) represented “the persistence of the doctrine that national legislative powers are to be limited so that the reserved power of the State is not invaded”. A different majority (Stephen, Mason and Murphy JJ) in the ANA Commission case found s 19B to be a permissible exercise of power under s 122, the Territories power, if it was read down so as to only authorise intrastate flights in order to promote the profitability of flights between States and Territories. The route at issue in the case was of course such a flight. This result manifests an inconsistent approach to characterisation. Whereas economic factors were considered irrelevant for the purposes of incidental characterisation under s 51(i), they were treated as relevant for the purposes of incidental characterisation under s 122.37 The High Court has been cautious in its decisions regarding incidental characterisation under s 51(i), in accordance with the dictum of Dixon CJ in Wragg. That dictum itself may be criticised for its possible revival of the reserved powers doctrine. In any case, the significance of the distinction between intrastate and other forms of trade, so rigidly maintained with regard to s 51(i), has been eroded under other heads of power, most notably the corporations power, s 51(xx) (see Chapter 3), so as to allow the Commonwealth to exercise considerable power over intrastate trading activities. Indeed, the Commonwealth now habitually uses s 51(xx) rather than s 51(i) as the basis for national regulation of trade and commerce.38 It is notable that no significant

37 It must be noted, however, that only Stephen J actually adopted such a judgment. Murphy J and probably Mason J felt that economic considerations were relevant to characterisation under both heads of power (Mason J did not comment on s 51(i)), whereas Barwick CJ and Gibbs J found economic considerations irrelevant to characterisation in both instances. See, generally, Stellios, n 17, pp 89-​93. 38 Meagher et al, n 1, p 284.

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case on s 51(i) has arisen since the 1970s, when the broad interpretation of s 51(xx) began to emerge.

Section 51(ii) and incidental power [2.35]  Section 51(ii) states: The Parliament shall … have power … with respect to … taxation; but so as not to discriminate between States or parts of States.

Section 51(ii) confers plenary power on the Commonwealth over taxation (except for taxes which discriminate between States and parts of States (see [14.40]-​[14.55])) and incidental power over matters reasonably connected to federal taxation. An example of an incidental exercise of power under s 51(ii) arose in Griffin v Constantine (1954) 91 CLR 136. On the facts in Griffin, a tax was imposed on potable spirits, such as gin and whisky. Industrial spirits, such as methylated spirits, were taxed at a lower rate. The permissible uses of industrial spirits were outlined in s 14 of the Spirits Act 1906-​1952 (Cth). Constantine was charged under s 16 of the Spirits Act 1906-​1952, which prohibited the sale of industrial spirits for human consumption; Constantine allegedly tried to sell an “article of drink” containing methylated spirits. Constantine duly challenged the validity of s 16. Section 16 was clearly not enacted directly under the tax power, as it imposed no duties with regard to taxation at all. The High Court found s 16 to be a valid exercise of incidental power under s 51(ii). The Court found that the potable spirits tax would be thwarted if industrial spirits could be sold for human consumption. The lower tax on industrial spirits was designed to benefit industry. If industrial spirits were used for human consumption, they were being used in a way that undermined the revenue policy of charging a higher tax on drinkable spirits. The obvious public health benefits of banning the sale for human consumption of industrial spirits were accordingly irrelevant to the question of the validity of s 16. The key issue was the proximity of the subject matter of the law to the tax power. In Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575, one of the laws at issue was s 221 of the Income Tax Assessment Act 1936 (Cth). Section 221(1)(a) prohibited taxpayers from paying any State income tax before they had fully discharged their income tax debt to the Commonwealth. Section 221(1)(a) was part of a scheme designed to force the States out of the income tax arena.39 Section 221(1)(a) could not be characterised directly under the tax power. The duties directly imposed therein related to State taxes rather than Commonwealth taxes, specifically duties not to pay State taxes. “Taxation” in s 51(ii) has consistently been interpreted to mean “taxes levied by the Commonwealth”.40 Therefore, s 221(1)(a) did not come within direct power.

39 See, on this scheme, [10.30]. 40

See Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 at 232; Victoria v Commonwealth (1957) 99 CLR 575 at 614. Compare Murphy J in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 637. See also Stellios, n 17, pp 514-​518.

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The opening words of s 221(1) stated that its provisions were “for the better securing to the Commonwealth of revenue”. Postponement of State debts would indeed facilitate a taxpayer’s ability to fulfil Commonwealth tax debts. It was therefore arguable that s 221(1)(a) was appropriately designed to effect a purpose within power, namely the payment of tax. However, a 4:3 majority found otherwise. Dixon CJ, delivering the majority judgment on this point, found (at 614) that the law went “beyond any true conception of what is incidental to a legislative power”. His Honour went on (at 615) to reason by analogy: if State debts could be postponed in order to ensure payment of Commonwealth tax debts, then other debts could also be postponed. Dixon CJ found it implausible that s 51(v), the power regarding telephonic and like services, could authorise the postponement of particular debts in order to ensure payment of one’s telephone bill. Dixon CJ thus indicated that s 221(1)(a) was an unreasonable law. The relevance of the “reasonableness” of a law with regard to questions of characterisation is controversial, and is discussed at [2.45].

Conclusion on incidental power [2.40]  A diagrammatic illustration of legislative power within a Commonwealth head of power might look as follows, with the inner darker concentric circle representing core direct exercises of power, the grey space between the circles representing incidental exercises of power and the outer rim representing the periphery of the head of power.

It is logical to assume that a judge with a broader view of the direct scope of a head of power would consequentially permit the exercise of greater incidental power under that head of power than a judge with a narrower view of the direct scope. Referring to the diagram, one could say that the larger the inner core of the power, the larger the circumference of the outer circle, and thus the greater the scope of incidental power and the outer limits of the head of power. However, judgments regarding incidental power are not so uniformly logical. For example, in Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169, the High Court unanimously found s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth), which outlawed secondary boycotts of corporations, to be a valid direct exercise of power under the corporations power, s 51(xx).41 However, the Court was split regarding the actual scope of direct power under that provision, with Mason, Murphy and Aickin JJ taking a broad view, and Gibbs CJ and Wilson J taking a

41 See [3.50], for a thorough discussion of this aspect of Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169.

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narrower view of that power. Stephen and Brennan JJ did not commit to either view, as the narrowest view sufficed to decide upon the validity of s 45D(1)(b)(i). Also at issue in the case was s 45D(5) of the Trade Practices Act 1974 (Cth), which rendered trade unions liable for the secondary boycott activities of their members, even in the absence of any proof of union complicity in those activities. Liability could be avoided only if the trade union could prove that it had taken all reasonable measures to prevent its member or members from engaging in such conduct. All of the Justices agreed that this provision did not fall within direct power under s 51(xx). A majority found that the provision fell outside incidental power, as its connection with the subject matter of s 51(xx) was too remote.42 However, a minority of Gibbs CJ and Wilson J found s 45D(5) to be valid, and reasonably incidental to the power conferred by s 51(xx).43 Yet these two Justices were the two who took the narrowest view of direct power under s 51(xx) and thus could have been expected to take the narrowest view of incidental power. The judicial split in Actors Equity regarding the validity of s 45D(5) demonstrates the inexact, flexible nature of the test of incidental power, which was conceded by Dixon CJ in Burton v Honan (1952) 86 CLR 169 at 179: “matters of incidental powers are largely questions of degree”.44 As Kirby J stated in Leask v Commonwealth (1996) 187 CLR 579 at 636-​637: Verbal formulae … are offered in the hope of supporting a principled, consistent and predictable decision in a disputed case of constitutional characterisation. Yet, in the end, such formulae can only go so far. Unavoidably, such decisions involve an exercise of judgment. It is futile to pretend that words and phrases are sufficient, without more, to yield the solution in every case. Were it so, there would be no dissenting opinions in cases of constitutional characterisation. Disagreement exists because different judicial minds see the boundaries of constitutional power differently located. The verbal tests afforded by the Court’s past authority are not precise enough to command a single, simple solution. The most that they can offer are techniques by which to test the impugned law. They provide expressions which point the decision-​maker in the direction of some of the considerations which, in the past, have been found to be useful for the ultimate judgment which has to be made.

Decisions regarding the “reasonableness” of a connection between a law and a head of power, or the “appropriateness” of a law for furthering the purpose of a head of power, can inevitably give rise to value judgments on the part of judges. A judge’s personal policy preferences probably have a sub-​conscious role to play when applying tests of reasonableness or appropriateness. One might, therefore, guess that the Justices in Actors Equity who were more willing to uphold the validity of a provision which attacked trade unions were of a more conservative political persuasion than their fellow Justices.

42 See, for example, Mason J in Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169 at 211. 43 See, for example, Gibbs CJ in Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169 at 187. 44 See also J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (8th ed, Butterworths, Chatswood, 2009), p 365.

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THE RELEVANCE OF PROPORTIONALITY IN CHARACTERISATION [2.45]  “Proportionality” refers to the idea that “there should be a reasonable relationship or balance between an end and the means used to achieve that end”.45 Thus, an inquiry into the proportionality of a law involves a value judgment into its reasonableness and appropriateness. Dixon CJ, in Burton v Honan (1952) 86 CLR 169 at 179, denied the relevance of issues of “justice, fairness, morality, or propriety” in questions of characterisation, direct or incidental: “those are not matters for the judiciary to decide upon”. In Burton, the Court unanimously found that s 262 of the Customs Act 1901 (Cth), which provided for the automatic forfeiture of goods imported in breach of customs law, to be valid. Section 262 was incidental to the appropriate enforcement of customs laws, which were themselves clearly laws regarding international trade and commerce under s 51(i). It did not matter that the law in this case deprived an innocent person, Burton, of a car that he had purchased in good faith; “fairness” was not a relevant issue.46 However, Dixon CJ’s portrayal of characterisation as a value-​free process does not bear greater scrutiny.47 For example, in the Second Uniform Tax case, discussed at [2.35], Dixon CJ himself found that the Commonwealth had chosen an inappropriate method, compulsory postponement of State income tax debts, to facilitate its collection of income tax under s 51(ii). Though “proportionality” was not expressly mentioned, Dixon CJ’s judgment undoubtedly utilised its principles in finding s 221(1)(a) of the Income Tax Assessment Act 1936 (Cth) to be invalid.48 The High Court undertook a comprehensive analysis of the role of proportionality in characterisation in Leask v Commonwealth (1996) 187 CLR 579. The case concerned the validity of s 31(1) of the Financial Transaction Reports Act 1988 (Cth). Under the Act, currency transactions of over A$10,000 had to be reported to the Director of the Australian Transaction Reports and Analysis Centre (AUSTRAC). This reporting obligation was designed to prevent tax evasion and money laundering. Section 31(1) rendered it an offence for one to be a party to two or more non-​reportable cash transactions (that is, those less than $10,000), if it could reasonably be believed that the transactions were being performed in a way which concealed their existence from AUSTRAC. The High Court unanimously found the law to be a valid direct exercise of power under s 51(xii), the currency and coinage power.49 The main importance of this case, however, lies in its dicta concerning the notion of proportionality. Leask had argued that s 31(1) imposed strict liability, in that there was no need to prove any criminal intention on the part of the offender. Leask accordingly argued that the

45 J Kirk, “Constitutional Guarantees, Characterisation, and the Concept of Proportionality” (1997) 21 Melbourne University Law Review 1 at 2. 46 See Dixon CJ in Burton v Honan (1952) 86 CLR 169 at 178. 47 See Williams et al, n 4, p 869. 48 See also [14.60]. See also Stellios, n 17, pp 53-​54. Proportionality probably also influenced the various judgments in Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169 regarding the validity of s 45D(5) of the Trade Practices Act 1974 (Cth); see [2.40]. 49 A number of Justices also found the law to be an incidental exercise of power under s 51(ii) as it prevented tax evasion.

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law was disproportionate to the ends of s 51(xii); it was an inappropriate method of achieving an end within power and thus invalid. This argument gave the Court an opening to explore the concept of proportionality. Their observations are outlined in [2.50] and [2.55].

Purposive powers [2.50] In Leask, the Court stated that proportionality was an irrelevant issue with regard to direct characterisation under most heads of power. For example, Dawson J stated (at 602): To introduce the concept of proportionality, whether it be via the notion that a law must be reasonably appropriate and adapted to some end in view or by any other route, is to introduce a concept which is alien to the principles which this Court has hitherto applied in determining the validity of laws passed by the Commonwealth Parliament.

In this respect, one may note that in Fairfax and Murphyores the policy and the purpose behind the law at issue, and therefore the law’s perceived “merit”, were irrelevant considerations when applying tests of direct characterisation under, respectively, s 51(ii) and s 51(i).50 The exception to this rule concerns the so-​ called “purposive powers”. Some Commonwealth heads of power have been found to be “purposive” in that they describe a specific purpose, such as s 51(vi), the defence power. Most Commonwealth heads of power do not describe a purpose, but describe something else such as an activity (for example, trade and commerce), a type of person (for example, aliens, corporations), a recognised category of legislation (taxation, bankruptcy) or an object (for example, lighthouses, fisheries, currency).51 In Leask, the High Court majority agreed that proportionality was relevant when considering direct or incidental exercises of power under purposive powers.52 For example, Dawson J stated (at 605-​606): The situation may be different where the purpose of a law is a crucial determinant of validity, as it where a power is conferred in purposive terms. … To determine the validity of a law said to be supported by a purposive power, a court must ask whether it is a law for the specified purpose, and the court may have to inquire into whether the law goes further than is necessary to achieve that purpose. That is an exercise in proportionality.

In determining the validity of a law under a purposive power, it is necessary to investigate whether the law is appropriate and adapted to the power’s purpose. When the Court inquires into the purpose behind a law, it does not look at the “actual extrinsic motives and intentions of the legislative authorities”, but at the purpose as

50 See also H P Lee, “Proportionality in Australian Constitutional Adjudication”, in G Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, Sydney, 1994), pp 131-​132. 51

See also Stenhouse v Coleman (1944) 69 CLR 457 at 472 per Dixon J.

52 Kirby J (at 635), expressed dissent at the singling out of the purposive powers in Leask: “It is difficult, in principle, to embrace the proposition that proportionality might be an appropriate criterion for some paragraphs of s 51 of the Constitution yet impermissible in respect of others”. See also Kirk, n 45, p 36. Toohey J also appeared to challenge the distinction, by denying the relevance of proportionality to all questions of direct characterisation: see Kirk, n 45, p 41.

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evinced from the face of the “instrument in question, the facts to which it applies and the circumstances which called it forth”.53 Thus, Parliamentary debates and Cabinet announcements about the policies behind laws are not taken into account by the Court when considering the “purpose” of a law.54 A law enacted under s 51(vi), the defence power, must be reasonably adapted for the purpose of the military and naval defence of the nation against enemy aliens.55 In Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1, the Court examined the validity of the Communist Party Dissolution Act 1950 (Cth). Section 4 of that Act declared the Australian Communist Party (ACP) to be an unlawful organisation, and dissolved that organisation. Section 5, in conjunction with s 6, authorised the Governor-​General to dissolve affiliated organisations if he deemed those organisations to be prejudicial to the security of the Commonwealth. Section 9 authorised the Governor-​ General to make declarations regarding individuals that he believed were members or officers of the ACP or who were communists and who were engaged or likely to be engaged in activities prejudicial to the security of the Commonwealth: a declared person would be subjected to certain civil disqualifications under ss 10-​14. The Act was challenged as being outside Commonwealth power. The Commonwealth claimed that the Act was enacted under s 51(vi).56 Indeed, the preamble to the Act expressly labelled the ACP and its members as threats to the security of the Commonwealth. Furthermore, the powers vested by the Act in the Governor-​General were only to be exercised when a threat to the nation was perceived. The majority found that the Act could not be characterised as being for the defence of the nation. There was insufficient available evidence, beyond the opinion of the legislature and the executive, to classify the need to combat communism as a subject matter capable of coming within s 51(vi). In other words, it was disproportionate to the purpose of defending the nation to dissolve the ACP and confer discretion upon the Governor-​General to dissolve affiliated organisations, and prejudice the civil rights of individuals against whom he made declarations under s 9 (see also [13.10] and [14.75]). For example, Dixon J stated (at 202-​203): It must be evident that nothing but an extreme and exceptional extension of the operation or application of the defence power will support provisions upon a matter of its own nature prima facie outside Federal power, containing nothing in themselves disclosing a connection with Federal power and depending upon a recital of facts and opinions concerning the actions, aims and propensities of bodies and persons to be affected in order to make it ancillary to defence. It may be conceded that such an extreme and exceptional extension may result from the necessities of war and, perhaps it may be right to add, of the imminence of war. But the

53

Stenhouse v Coleman (1944) 69 CLR 457 at 471 per Dixon J.

54 Reliance upon such “extrinsic” material would mean that a statute’s meaning would not be readily ascertainable and available. See J Goldsworthy, “Originalism in Constitutional Interpretation” (1997) 25 Federal Law Review 1 at 10. 55

See Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 225 per Williams J. See Fullagar J (at 259) on the meaning of “defence”.

56 A related argument concerned the implied nationhood power; this power is discussed from [5.65].

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reasons for this are to be found chiefly in the very nature of war and of the responsibility borne by the government charged with the prosecution of a war. “The paramount consideration is that the Commonwealth is undergoing the dangers of a world war, and that when a nation is in peril, applying the maxim salus populi suprema lex, the courts may concede to the Parliament and to the Executive which it controls a wide latitude to determine what legislation is required to protect the safety of the realm” –​per Williams J, Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR, at 400. A war of any magnitude now imposes upon the Government the necessity of organising the resources of the nation in men and materials, of controlling the economy of the country, of employing the full strength of the nation and co-​ordinating its use, of raising, equipping and maintaining forces on a scale formerly unknown and of exercising the ultimate authority in all that the conduct of hostilities implies. These necessities make it imperative that the defence power should provide a source whence the Government may draw authority over an immense field and a most ample discretion. But they are necessities that cannot exist in the same form in a period of ostensible peace. Whatever dangers are experienced in such a period and however well-​founded apprehensions of danger may prove, it is difficult to see how they could give rise to the same kind of necessities. The Federal nature of the Constitution is not lost during a perilous war. If it is obscured, the Federal form of government must come into full view when the war ends and is wound up. The factors which give such a wide scope to the defence power in a desperate conflict are for the most part wanting.

Kitto J expanded upon the purposive nature of the defence power (at 273-​274): [T]‌he defence power is purposive … it possesses a constant meaning, its application is of greater or less width according to circumstances. … Thus, in time of peace, when there is no special reason to apprehend a war, the class of laws which can be seen to possess a defence character is much more limited than it is when a danger of hostilities arises; it becomes wider still when war breaks out; it reaches its maximum amplitude when a war is raging which is of so serious a character as to call for the devotion to its prosecution of the entire resources and activities of the nation; it fluctuates according to “the nature and dimensions of the conflict … the actual and apprehended dangers, exigencies and course of the war, and … matters that are incident thereto” (Andrews v Howell (1941) 65 CLR at 278); it contracts again when hostilities cease, but even then remains sufficient to include laws to wind up after the war and to restore conditions of peace … All of these stages in the waxing and waning of the defence power have been witnessed in recent years.

The Court conceded that the exercise of power in the Communist Party Dissolution Act may have been permissible if Australia had been “on a war footing”.57 The defence power accordingly expanded and contracted according to the actual risk of enemy attack upon Australia. For example, certain wartime measures, such as the rationing of goods, could easily be proportionate defence laws during a state of war, but would be unlikely to be so classified during a state of peace.58

57

Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196 per Dixon J. The majority found that Australia was at peace despite the contemporary engagement of some Australian forces in the Korean War; see Dixon J at 196 and McTiernan J at 207.

58

See Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 255 per Fullagar J. See generally G Winterton, “The Significance of the Communist Party Case” (1992) 18 Melbourne University Law Review 630.

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Thomas v Mowbray (2007) 233 CLR 307 concerned the constitutional validity of legislation which provided for the issuance of “control orders”. Under Div 104 of the Criminal Code 1995 (Cth), control orders may be issued by judges against individuals upon the application of the federal police. Control orders mandate a number of restrictions on the activities of a person. They are issued when the Court is satisfied on the balance of probabilities that the order will “substantially assist in preventing a terrorist attack” or that the target of the control order has provided to or received training from an organisation designated as a terrorist organisation, and that the requirements of the control order are “reasonably necessary” and proportionate to the “purpose of protecting the public from a terrorist act” (s 104.4). Terrorism was broadly defined in Div 100 as acts done or threats made “with the intention of advancing a political, religious or ideological cause”, where the said acts or threats are intended to coerce or influence a government, or intimidate the public or part of the public. The acts or threats must entail serious physical harm or threat to a person, serious damage to property, or serious interference, disruption, or destruction of infrastructure. Advocacy, protest, dissent and industrial action are excluded from the definition so long as those actions are not intended to physically harm any person. This definition of terrorism is quite broad and could, for example, encompass a striking worker manning a picket line to protest against a government policy, who then intentionally assaults a person trying to pass through.59 The plaintiff in Thomas was Jack Thomas, who was at the time subject to an interim control order;60 counsel for Thomas argued that Div 104 lacked a head of power.61 The majority found that it could be characterised under the defence power. The majority found that that power was not limited to wars against foreign nations and external threats, or to “waging war in a conventional sense”, or to protection of the body politic compared to the general public:62 the power could be used to authorise measures to combat terrorism, as defined in Australian legislation, at home and abroad.63 Callinan J (at 504) went so far as to say that serious discussion of the issue was hardly necessary, as the conclusion that the law came within s 51(vi) was “so right and obvious”. In dissent, Kirby J found that the defence power was concerned with the protection of the bodies politic of the Commonwealth and States, rather than the general protection of people in Australia, which was a matter for the police powers of the State.64 Kirby J found (at 400) that Div 104 was directed to the protection of both persons and property, rather than simply the protection of the body politic, and was

59 S Joseph, “Australian Counter-​Terrorism Legislation and the International Human Rights Framework” (2004) 27 University of NSW Law Journal 428 at 432. 60 The obligations under that interim order included a curfew, compulsory reporting to Victoria police three times a week, furnishing of fingerprints, prohibition on carrying certain items (for example, weapons), restrictions on communication with certain people (including Osama Bin Laden) and restrictions on the use of certain technologies. See Callinan J at 494-​495. 61 See also [6.10]. 62 Gleeson CJ at 324-​325. 63 See also Gummow and Crennan JJ at 361-​364. 64 See Kirby J at 393-​395; see also Commonwealth of Australia Constitution (Cth), s 119.

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thus disproportionate to addressing any threat posed to the bodies politic by modern terrorism. Division 104, in his Honour’s view (at 401), drifted “into areas of ordinary civil government [which were] within the essential ‘police powers’ of the States”. He stated (at 401): [T]‌he scope of Div 104 is far broader than the preservation of the constitutional structure and the institutions of government, or the maintenance and execution of the laws of the Commonwealth. As drafted, Div 104 is a law with respect to political, religious or ideological violence of whatever kind.

In contrast, Hayne J, in the majority on this point, stated (at 458): It may be accepted that, as the plaintiff submitted, the defence power is concerned centrally with the defence of the Commonwealth and the several States as bodies politic; the power does not focus upon the physical safety of individuals or their property. Nonetheless, it is important to recognise that in war, force is ultimately applied to persons and property. The aerial bombing campaigns of the Second World War show that force is applied in war in ways that directly affect civilian populations and their property. The distinction drawn by the plaintiff between the defence of the Commonwealth and the several States as bodies politic, and the defence of citizens or inhabitants of the Commonwealth or the States in their “individual capacities as such, or their property”, should, to that extent, be rejected as unhelpful. There is, however, a related distinction that should be made. It may be drawn between the application of force by individuals whose motives for doing so are not to further any international political aim and the application of force in furtherance of international political objectives. The latter kind of case, in which there are international political objectives, may engage the defence power; the former would seem unlikely to do so.

The Court in Thomas did not deny that a law had to be proportionate to the notion of defence in order to come within s 51(vi). Kirby J adopted a more restrictive view of the meaning of “defence” for the purposes of s 51(vi), so he therefore found that Div 104 had overreached and was disproportionate to that head of power. The majority on the other hand adopted a broader view of “defence”, and found that the law was well within s 51(vi). Indeed, Callinan J seemed to believe that the definition of “defence” adopted in the Communist Party case had in fact been too narrow: he stated (at 503): Defence is not something of concern to a nation only in times of a declared war. Nations necessarily maintain standing armies in times even of apparent tranquillity. Threats to people and property against which the Commonwealth may, and must defend itself, can be internal as well as external. With respect, insufficient critical attention to these matters was given by the majority in the Communist Party Case. The references by Dixon J to “ostensible peace” and protection against external enemies as the “central purpose” of the defence power evince both a preoccupation with the events of the recent past, of a declared war, uniformed, readily distinguishable external enemies, generally culturally, ethnically, ideologically and religiously homogenous states, and an incomplete appreciation, despite Hiroshima and Nagasaki, of the potential of weaponry for massive harm.

And (at 504-​505): I have commented on aspects of the judgment of Dixon J in the Communist Party Case which time, to say the least, as well as the facts proved here, make questionable: the drawing by his Honour of a distinction, as if there were a clear line between them for constitutional and all practical purposes, between times of peace and serious armed conflict, and internal

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and external threats. Perhaps it was the country’s recent emergence from a prolonged and costly declared war during which liberties had been curtailed and rights suspended, that influenced his Honour’s responses to the CPA. Latham CJ, although in dissent, was in a sense more perceptive and alive to the gravity of direct and indirect internal threats inspired externally, and the different manifestations of war and warfare in an unsettled and dangerous world. To regard war as a declared war only, to assume that a nation’s foes would all identify themselves, and rarely act covertly, that they would act logically, and that they would not be people drawn from the Australian community was even then however to be somewhat naïve.

Gummow and Crennan JJ were less critical of the case, but also indicated (at 361-​ 362) that the Communist Party case Court had interpreted “defence” for the purposes of s 51(vi) in a way that focussed too much on “defence against external threats to [Commonwealth and State] bodies politic, typically by the waging of war by nation states”. Kirby J in dissent expressed shock at what he saw as the denigration of the case.65 Section 51(xxix), the external affairs power, also contains a purposive element. When the Commonwealth uses s 51(xxix) for the purpose of incorporating a treaty into Australian law, the ensuing legislation must be “appropriate and adapted” to the provisions of that treaty (see [4.55]). The nationhood power, whether it stems from ss 61 and 51(xxxix) or from an implied legislative power, is also purposive, and therefore circumscribed by a notion of proportionality (see [5.75]). In Kartinyeri v Commonwealth (1998) 195 CLR 337, Gaudron and Kirby JJ indicated that there is also a purposive element to the race power, s 51(xxvi), by stating that the laws had to be “necessary” and therefore appropriate and adapted for the needs of a particular race. In Kartinyeri, Gummow and Hayne JJ disagreed that race laws under s 51(xxvi) had to be “necessary”, stating that they merely had to fall short of a “manifest abuse” of power. The remainder of the Court did not comment on the scope of s 51(xxvi). The scope of s 51(xxvi) remains unresolved at the time of writing (see [14.30]). In Al-​Kateb v Godwin (2004) 219 CLR 562, Kirby J (in dissent) radically suggested that all heads of power are purposive (at 626): If the defence power expands and contracts, as it does, by reference to the needs of war and a state of profound peace, so it is with the trade and commerce power and every other federal head of power in the Australian constitutional list. In the case of most powers, the differences may not always be so noticeable or profound as in cases concerning the defence power. However, in terms of constitutional principle, the concept must be the same.

No other judge appears to agree with Kirby J on this issue. However, it is possible that further purposive powers, or at least splits in the High Court regarding the identification of certain powers as purposive or non-​purposive, will come to light in future cases.

Proportionality and incidental power [2.55]  The high point in the use of proportionality as a tool for characterisation occurred the early 1990s, coinciding with the High Court’s inroads into the arena

65 See also [13.10].

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of the implied constitutional protection of rights and freedoms.66 In particular, in a number of cases, various Justices explicitly used proportionality as the touchstone for establishing an incidental connection between a law and a subject matter. For example, in Nationwide News v Wills (1992) 177 CLR 1, Mason CJ stated (at 30): even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, ie, unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression.

Not only was his Honour expounding proportionality as a decisive test of incidental power, he was also promoting a particularly strict test of proportionality.67 In Nationwide News, the Court examined the validity of s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), which rendered it an offence to use words calculated to bring a member of the Industrial Relations Commission into disrepute. A majority found the law to be an impermissible restriction on the implied constitutional right of political communication.68 Mason CJ, Dawson and McHugh JJ found the law invalid as it could not be characterised as an incidental exercise of power under s 51(xxxv), the industrial relations power. Mason CJ (at 32) conceded that the law would operate so as to protect the reputation of the Commission and its members, which would presumably facilitate the Commission’s role in settling industrial disputes. Thus, it would seem possible to find the law was within incidental power. However, his Honour was swayed towards a finding of invalidity by the law’s disproportionate impact on freedom of expression. The Justices in Leask conceded that proportionality could be a relevant factor in deciding whether a law had a sufficient connection to a Commonwealth power so as to constitute an incidental exercise of power. “The disproportion of a law to an end asserted to be within power may suggest that the law is actually a means of achieving another end which is beyond power” (Dawson J at 605). “[P]‌roportionality … is one of several considerations that may be taken into account in determining … whether a law is relevantly connected with a particular subject or with a head of constitutional power” (Gaudron J at 616). McHugh J stated (at 617): Where, however, the dominant subject matter of an impugned law is not itself a head of federal power, but that law has ostensibly been passed to achieve some purpose falling within a subject of Commonwealth power, the sub-​test of proportionality may sometimes prove helpful in determining whether the subject matter of the impugned law is sufficiently

66 Kirk, n 45, p 35. See also Chapter 13 on implied rights. 67 See [14.65] on the differing levels of proportionality inquiries. 68 See, on this right, Chapter 13.

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connected to the subject of federal power. … However, it needs to be firmly kept in mind in such a case that proportionality is nothing more than a guide to sufficiency of connection.

Kirby J stated (at 636): Of course, a point may eventually be reached where the drastic turns into the invalid. The law, or part of it, may lose the quality of sufficient connection with the constitutional head of power. Put another way, it may be so disproportionate to the legitimate attainment of the subject-​matter of the grant of power as to take it outside that grant. When that happens the boundary of constitutional validity will have been passed. This Court is the ultimate guardian of that boundary. By the Constitution it has been entrusted with the responsibility of identifying where the boundary lies.

No Judge in Leask indicated that proportionality was a decisive factor in determining the validity of a purportedly incidental law. In McCloy v New South Wales (2015) 257 CLR 178 the majority (French CJ, Kiefel, Bell and Keane JJ) stated (at 195) that proportionality analysis applies to “incidental powers, which must serve the purposes of the substantive powers to which they are incidental”. Earlier, in Plaintiff S156/​ 2013 v Commonwealth (2014) 254 CLR 28 the majority had spurned the suggestion that comments in Leask supported the plaintiff’s submission that proportionality analysis was integral in the issue of connection in the characterisation process (at 45). This suggests we should be cautious of overemphasising the role of proportionality analysis in characterisation tests. While this test has some role to play in the characterisation of laws as having “sufficient connection” to the core of a head of power, it does not replace the connection test itself.

CONCLUSION [2.60]  Since the Engineers case of 1920, the High Court Justices have purported to interpret Commonwealth heads of power according to the literal meaning of the words therein. Once a law is found to fall within the subject matter of a head of power, the law is valid unless a constitutional prohibition, such as those relating to the protection of religious freedom in s 116, applies to render it invalid. The test of direct characterisation is to examine the rights, duties, powers and privileges directly affected by the law at issue. If a law fails to fall within the core of a subject matter, it may nevertheless be an exercise of incidental power under a head of power. The test of incidental characterisation is more flexible and open to value judgments in that the Court must find a sufficient connection between the law and the particular subject matter. The sufficiency of a connection is ultimately a subjective judgment. Generally, High Court Judges have maintained that characterisation is a value-​free process. However, they have conceded that the inherent merits of a law, and the notion of the proportionality of a law, may be relevant to incidental characterisation, as well as direct characterisation under purposive heads of power.

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Chapter 3

The Corporations Power [3.10] [3.15]

FROM HUDDART PARKER TO THE CONCRETE PIPES CASE.................................................. 98 CONSTITUTIONAL CORPORATIONS........................................................................................... 101 [3.20] Foreign corporations........................................................................................................... 101 [3.25] Trading corporations........................................................................................................... 101 [3.30] Financial corporations........................................................................................................ 104 [3.35] Inactive corporations........................................................................................................... 105 [3.40] Conclusion on the definition of constitutional corporations........................................ 107 [3.45] SCOPE OF THE CORPORATIONS POWER................................................................................... 108 [3.50] The development of the broad and narrow views......................................................... 108 [3.55] The Work Choices case....................................................................................................... 112 [3.60] The incidental scope of the corporations power............................................................. 116 [3.65] The corporations power and natural persons................................................................. 121 [3.70] Regulation of the creation of corporations...................................................................... 121 [3.75] Payments to corporations................................................................................................... 124 [3.80] CONCLUSION..................................................................................................................................... 125

  [3.05]  Section 51(xx) states: The Parliament shall, subject to this constitution, have power to make laws with respect to … Foreign Corporations, and trading or financial Corporations, formed within the limits of the Commonwealth.

The corporations power lay virtually dormant for 60 years, by way of the High Court’s initially limited interpretation in Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330. However, the power was revived in Strickland v Rocla Concrete Pipes (Concrete Pipes case) (1971) 124 CLR 468. Since that case, the Commonwealth has relied heavily on the corporations power to regulate the activities, functions, relationships and the business of corporations. It is through this head of power that the Parliament has been able to control a variety of economic activities, as so much commercial activity is carried on by corporate entities, from the largest of public companies with thousands of shareholders to small private enterprises. In 2005, the Commonwealth chose to base a comprehensive industrial relations law on s 51(xx). The High Court finally confirmed the enormous scope of the corporations power in the case that challenged that legislation, New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1. The subject matter of the provision is a class of legal persons, particular types of corporate entities, rather than a certain type of activity, such as “taxation” or “trade and commerce”, or a purpose, such as “defence”. The jurisprudence of s 51(xx) has

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concerned two main issues. First, what types of corporations may be controlled under the corporations power? Second, what aspects of a corporation’s affairs can be regulated through the use of this power? That is, what is the scope of legislative regulations and controls that can be supported by s 51(xx)?

FROM HUDDART PARKER TO THE CONCRETE PIPES CASE [3.10]  Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 was the High Court’s first exposition on the scope of the corporations power. The case involved a challenge to ss 5 and 8 of the Australian Industries Preservation Act 1906 (Cth). This Act purported to outlaw trade monopolies and restraints of trade. Huddart Parker was a company formed under Victorian law. The company and its manager were each fined five pounds for refusing to answer certain questions in relation to suspected offences under the Act. The company challenged the imposition of the fines. It was argued that the relevant sections of the Act were invalid because they were beyond the Commonwealth’s power under s 51(xx). The sections of the Act which imposed the fines prohibited foreign, trading or financial corporations from engaging in agreements in restraint of trade, or from forming trade monopolies, in relation to all trade and commerce within the Commonwealth. The High Court majority held that the provisions in question were invalid, that majority being composed of Griffith CJ, Barton, O’Connor and Higgins JJ. Isaacs J dissented. Griffith CJ (with Barton and O’Connor JJ) relied on the “reserved state powers doctrine” in his examination of s 51(xx).1 When the words were read in the context of the notion that the States were reserved the power of regulating intrastate trade laws and domestic criminal laws, the construction of the placitum had to be narrow. The majority felt that s 51(xx) should not be interpreted so as to invade the field of State law over domestic trade. Thus, in Griffith CJ’s view, s 51(xx) permitted the Commonwealth to legislate only to control the legal capacity of corporations to legitimately enter a field or area of operation: s 51(xx) did not permit the Commonwealth to control the operations of a corporation once the activities were within a corporation’s legitimate capacity. He stated (at 354): In my judgment the words of pl xx are not clear and unequivocal, but are open to two constructions, and, applying the principles which I have stated, I think that they ought not to be construed as authorising the Commonwealth to invade the field of State law as to domestic trade, the carrying on of which is within the capacity of trading and financial corporations formed under the laws of the State. In other words, I think that pl xx empowers the Commonwealth to prohibit a trading or financial corporation formed within the Commonwealth from entering into any field of operation, but does not empower the Commonwealth to control the operations of a corporation which lawfully enters upon a field of operation, the control of which is exclusively reserved to the States.

Higgins J gave the placitum a broader reading, as he was not an advocate of the reserved powers doctrine. In his Honour’s view, the Commonwealth had power to regulate the conditions under which corporations might carry on business, the status

1 See, on the reserved powers doctrine, [2.10].

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and the capacity of corporations. However, he sounded a warning against an overly broad interpretation of the power, with his list of “horribles”2 (at 409-​410): If the argument for the Crown is right, the results are certainly extraordinary, big with confusion. If it is right, the Federal Parliament is in a position to frame a new system of libel laws applicable to newspapers owned by corporations, while the State law of libel would have to remain applicable to newspapers owned by individuals. If it is right, the Federal Parliament is competent to enact licensing Acts, creating a new scheme of administration and of offences applicable only to hotels belonging to corporations. If it is right, the Federal Parliament may enact that no foreign or trading or financial corporation shall pay its employees less than 10s per day, or charge more than 6 per cent interest, whereas other corporations and persons would be free from such restrictions. If it is right, the Federal Parliament can enact that no officer of a corporation shall be an Atheist or a Baptist,3 or that all must be teetotallers. If it is right, the Federal Parliament can repeal the Statute of Frauds for contracts of a corporation, or may make some new Statute of Limitations, applicable only to corporations. Taking the analogous power to make laws with regard to lighthouses, if the respondent’s argument is right, the Federal Parliament can license a lighthouse for the sale of beer and spirits, or may establish schools in lighthouses with distinctive doctrinal teaching, although the licensing laws and the education laws are, for ordinary purposes, left to the State legislatures.

Isaacs J wrote a forceful dissent, finding that s 51(xx) permitted the Commonwealth to regulate the conduct of corporations in their “transactions that affected the public”, a far wider view than the majority adopted. Some matters of internal management would also come within the power, because they were necessarily incidental to the control of corporations in relation to persons outside the corporation itself. Isaacs J’s dissenting interpretation of the corporations power would have given the Commonwealth substantial scope to control commercial enterprises. Although in the minority at the time, his view took on new credibility in the later reinterpretation of the power. The Huddart Parker interpretation of s 51(xx) left the Commonwealth with little power to regulate corporate activities. On four occasions Commonwealth governments attempted to alter the Commonwealth’s corporations power, and each time the proposal was rejected at referendum. After the High Court rejected the reserved powers doctrine in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129 (see [2.15]), the way was open to reverse Huddart Parker, as the decision was so clearly based on that doctrine. Nevertheless, it remained unchallenged until the Concrete Pipes case in 1971. The Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 involved a challenge to certain provisions in the Trade Practices Act 1965 (Cth). Those provisions made certain anti-​competitive agreements subject to examination (s 35) by requiring corporations to provide the particulars of all such restrictive trade agreements to the Commonwealth Commissioner of Trade Practices (ss 41-​43). Rocla was a party to an agreement which sought to reduce competition between concrete pipe manufacturers. The agreement related to trade carried out exclusively in Queensland, so the agreement related only 2

P Lane, The Australian Federal System (2nd ed, Law Book Co, North Ryde, 1979), coined the term at p 160.

3 This hypothetical law may raise issues under s 116. Section 116 is discussed from [12.70].

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to intrastate trading activities, activities quarantined from s 51(xx) by the Huddart Parker majority. Rocla was charged under the Act when it failed to disclose particulars of the agreement to the Commissioner. When a lower court dismissed the charges against Rocla on the authority of Huddart Parker, the Trade Practices Commissioner appealed to the High Court, as the integrity of the trade practices system appeared to be under threat. The High Court unanimously overturned Huddart Parker. Barwick CJ explained (at 488) that the Court’s reliance on the old reserved powers doctrine had “emasculate[d]‌the legislative power given by s 51(xx)”. Barwick CJ put the issue clearly (at 489): The question in relation to the validity of a Commonwealth Act is whether it fairly falls within the scope of the subject matter granted to the Commonwealth by the Constitution. That subject matter will be determined by construing the words of the Constitution by which legislative power is given to the Commonwealth irrespective of what effect the construction may have upon the residue of power which the States may enjoy.

Barwick CJ considered (at 489) that the laws at issue in Huddart Parker dealt with the very “heart of the purpose for which the corporation was formed”. In his view, a law controlling a corporation’s trading activities was clearly a law with respect to s 51(xx). The Commonwealth could not be prevented from regulating constitutional corporations on the basis that “their trading activities in intrastate trade was a matter for the State legislation exclusively” (at 488). Thus, the reasoning in Huddart Parker had to be understood as erroneous and could no longer be accepted by the High Court. As to the facts of Concrete Pipes, the majority, made up of Barwick CJ, Menzies, Windeyer and Owen JJ, held that the particular provisions in the Trade Practices Act 1965 (Cth) were not authorised by s 51(xx), as they purported to encompass all corporations. Barwick CJ explained this (at 499): I am unable so to construe the Parliament’s enactment as to disclose a law with respect to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth. Therefore though I am clearly of opinion that the Parliament could have made a valid law in the terms of the Act specifically limited either as the sole or as a separate part of its operation to agreements made or practices followed by such corporations, I am of opinion that it has not done so. Indeed, because of the manner in which the Parliament has expressed its enactment, the Act is in my opinion wholly invalid. It purports to impose obligations upon all persons who make the agreements or follow practices of the described kind in relation to all forms of trade and its terms are incapable of being construed in any more limited sense.

In short, the Court gave a wider reading to the scope of the corporations power, but the Trade Practices Act in its 1965 version reached out to corporations beyond those listed in s 51(xx). Despite the finding of invalidity, it was clear from this case that the corporations power would allow the Commonwealth Parliament to regulate the trading activities of trading corporations.4 The trade practices legislation was

4

J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), pp 437 and 105.

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amended after this case; it was expressly limited in its application to trading, financial and foreign corporations.5 The Concrete Pipes case marked a new start for the corporations power. The Commonwealth gained significant regulatory power over economic activity if such activity was carried out by a trading, financial or foreign corporation. Furthermore, the case confirmed that the corporations power could be used to regulate intrastate trade and commerce insofar as it was carried out by a constitutional corporation.6 However, the Concrete Pipes case left open a number of issues. Indeed, the Court expressly declined to define the scope or the limits of the corporations power, saying (at 490) that the “law develops case by case”.

CONSTITUTIONAL CORPORATIONS [3.15]  How do we recognise which corporations are within the Commonwealth’s control when it uses the corporations power? The Constitution identifies three types of corporations: foreign, trading and financial. The last two must be “formed within the limits of the Commonwealth”. Corporations that are not within these three categories are beyond the direct scope of s 51(xx).

Foreign corporations [3.20]  The definition of a foreign corporation is not problematic, as any entity formed under the law of a foreign country and accorded a corporate legal personality either by the foreign law, or by Australian law, will be a foreign corporation. Thus if a corporation is incorporated in another country, then it can be regulated under the corporations power, even if the corporation is not a trading corporation or a financial corporation. The extent of regulatory power that may be exercised over foreign corporations (and other “constitutional” corporations) under s 51(xx) is set out in the Work Choices case (see [3.55]).

Trading corporations [3.25]  The issue of how to identify a corporation as a “trading” corporation was examined in a series of cases, beginning with R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533. In that case a majority of 3:2 in the High Court decided that a local government entity, which sold electricity and electrical appliances, was not a trading corporation. Rather they treated the incorporated association as a public authority, supplying goods and services to the public. Two Justices, Menzies and Gibbs JJ determined this by examining the “purposes” for which the company was established, which were found in the Local Government Act 1919 (NSW). As the purposes under the Act demonstrated that the Council was established to perform local government functions, it was viewed by the Judges as

5

See the Restrictive Trade Practices Act 1971 (Cth), and later the Trade Practices Act 1974 (Cth), which extended the Commonwealth’s regulation over the trading aspects of corporate activities, based upon the wider interpretation of the power in Strickland v Rocla Concrete Pipes (1971) 124 CLR 468.

6 This area of trade and commerce remained beyond the scope of the trade and commerce power in s 51(i), and thus appeared beyond the control of the Commonwealth until this judgment. See [2.30].

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a “local government corporation”, rather than a “trading corporation”. A trading corporation was therefore, for these two Justices, identifiable by the purposes for which it was established. Gibbs J explained (at 562): “[i]‌t is necessary to determine the true character of the corporation upon a consideration of all the circumstances that throw light on the purpose for which it was formed”. No clear majority emerged in this case however, as McTiernan J based his concurring decision on different reasoning. Barwick CJ and Stephen J dissented. Barwick CJ stated (at 543) that the test of identifying a trading corporation was to inquire as to whether its predominant and characteristic activity was that of trading in goods or services. The Chief Justice’s minority judgment, which focused on the activities of a corporation rather than the purpose for which it was established, signposted the direction of the law on this issue in subsequent cases. In R v Judges of Federal Court and Adamson; Ex parte Western Australian National Football League and West Perth Football Club (1979) 143 CLR 190, a majority of four Justices found that the St George County Council case was wrongly decided. In Adamson’s case the issue before the Court was whether the South Australian and Western Australian football leagues and the West Perth football club were trading corporations, for the purposes of the Trade Practices Act 1974 (Cth). In the evidence before the High Court, it was demonstrated that the three incorporated associations were established to promote football matches for profit. They also engaged in activities such as selling souvenirs and advertising, selling television and catering rights, renting premises, and the provision of car parking facilities. All profits were used to promote football and flowed back to the clubs. The High Court held by a majority of 4:3 that the leagues and the club were trading corporations within the meaning in s 51(xx), and so within the reach of the Trade Practices Act 1974 (Cth). Barwick CJ, with Mason and Jacobs JJ, said that when determining if a corporation was a “trading corporation”, the prime consideration was the activities or functions of that corporation, rather than the purposes of incorporation. For example, Barwick CJ (at 208) stated a trading corporation was one which engaged in “substantial” trading activity. Murphy J stated (at 239) that a corporation could be identified as “a trading corporation” “so long as trading is not insubstantial”. Mason J (at 233) considered a trading corporation to be one whose trading activities formed a “sufficiently significant proportion” of the corporation’s overall activities. In Mason J’s view “trading” included those activities which produce revenue. The content of the expression “trading” was not limited to buying and selling for profit: it extended to business activities carried on with a view to earning revenue, even though in this particular case the distribution of profits was prohibited. Mason J, however, confirmed that not every corporation was a trading corporation (at 234): Not every corporation which is engaged in trading activity is a trading corporation. The trading activity of a corporation may be so slight and so incidental to some other principal activity, viz religion or education in the case of a church or school, that it could not be described as a trading corporation. Whether the trading activities of a particular corporation are sufficient to warrant its being characterised as a trading corporation is very much a question of fact and degree.

The minority, Gibbs, Stephens and Aickin JJ, found the corporations were outside s 51(xx) as the corporations were established for the purpose of “the fostering of

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football”. This revealed “the very nature of the club to be other than that of a trading corporation” (Stephen J at 219). The trading was merely ancillary or incidental to the fulfilment of the dominant purpose. The High Court remained split on the definition of “a trading corporation” in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. The Tasmanian liberal Government under Premier Grey had an economic development policy that included the building of a hydro-​electric dam in a wilderness area, the Gordon River, in south-​west Tasmania. The construction of the dam was to be undertaken by the Tasmanian Hydro-​Electric Commission (HEC), a corporation established by a Tasmanian statute. One of the stated policies of the newly elected federal ALP Government in 1983 was to stop the construction of the Franklin Dam and to preserve the south-​west Tasmanian wilderness. The new federal government enacted the World Heritage Properties Conservation Act 1983 (Cth) in order to achieve this outcome. A number of issues regarding the corporations power were raised in the Tasmanian Dam case, one of which was the identification of the HEC as a trading corporation. The HEC was responsible for the generation and distribution of electricity in Tasmania. Its functions included supply of electricity, and the construction, operation and maintenance of the generating plants and dams. The majority, made up of Mason, Murphy, Brennan and Deane JJ, held that the HEC was a trading corporation, because its trade in electricity made up “a sufficiently significant proportion” of its overall activities. Even though the HEC had wide semi-​governmental powers and functions, its substantial sales of electricity nevertheless rendered it a trading corporation. Furthermore, Mason J made it very clear (at 155) that St George was “no longer correct” and that Adamson was to be followed. Following Adamson and the Tasmanian Dam case, the prevailing interpretation is that the Court now applies the current activities test. That is, a corporation is identifiable as a trading corporation if a substantial or sufficiently significant proportion of its activities constitute “trade”. This test is presumed to cover a wide variety of corporate bodies such as schools, universities, child care centres, hospitals, charities, non-​profit organisations7 and various other incorporated State statutory bodies.8 This interpretation is supported by the parallel interpretation that has emerged of “financial” corporations. In Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union v Queensland Rail (2015) 256 CLR 171 the High Court rejected the submission that Queensland Rail Transit Authority was not a trading corporation. The Authority was established under Queensland legislation which specified in s 6(2) of the Queensland Rail Transit Authority Act 2013 (Qld) that it was “not a body corporate”. It had been established as a commercial business to supply labour to Queensland Rail Limited. In enacting s 6(2), the Queensland Government had possibly aimed to put it beyond the reach of federal law.

7

In Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union v Queensland Rail (2015) 256 CLR 171 at 200, Gageler J stated that “a profit-​making objective is not essential to trade”.

8 N Gouliaditis, “The Meaning of ‘Trading and Financial Corporations’: Future Directions” (2008) 19 Public Law Review 110.

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The High Court held that an entity can be a constitutional corporation even when its corporate status is denied by legislation. At 184, the majority stated: a State Parliament cannot determine the limits of federal legislative power. More particularly, it would be necessary to observe that whether any entity is a corporation of a kind referred to in s 51(xx) presents an issue of substance, not mere form or label.

At 188, the majority stated, en route to deciding that the Authority was a trading corporation: the Authority is created as a separate right and duty bearing entity. It may own, possess and deal with real or personal property. It is an entity which is to endure regardless of changes in those natural persons who control its activities and, in that sense, has “perpetual succession”. Its constituting Act provides for mechanisms by which its assumption of rights and duties may be formally recorded and signified. The Authority has “the full character of a corporation”.

Gageler J agreed (at 199):  The constitutional reference to corporations formed within the limits of the Commonwealth encompasses all artificial entities invested with legal personality under Australian law. Queensland Rail has legal personality because it is legislatively conferred with capacity to own property, to contract and to sue. It is unnecessary to consider whether any lesser subset of those attributes might suffice. The statutory declaration that Queensland Rail is not a body corporate does not deprive Queensland Rail of any of those attributes.

Hence, the Authority was deemed to be a constitutional corporation for the purposes of the applicability of federal legislation.

Financial corporations [3.30] In Re Ku-​ring-​gai Co-​operative Building Society (No 12) Ltd (1978) 36 FLR 134, Deane J, then of the Federal Court, described “financial activities” (at 642) as: transactions in which the subject of the transaction is finance (such as borrowing or lending money) as distinct from transactions (such as the purchase or sale of particular goods for a monetary consideration) in which finance, although involved in the payment of the price, cannot properly be seen as constituting the subject of the transaction. A common but not invariable characteristic of the relevant type of transaction is that the obligation on each side is to pay money.

Thus, “financial activities” are distinguished from trading activities in that the former transactions involve only money and the generation (or loss) of money, whereas the latter concern dealings in goods and services. In State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282, the High Court examined whether the State Superannuation Board of Victoria (SSB) was a financial corporation within the ambit of the corporations power, and thus susceptible to the Trade Practices Act 1974 (Cth). The SSB administered the Victorian public servants’ superannuation fund. As part of its administrative duties, the SSB invested considerable funds in housing and commercial loans and property purchases. The SSB therefore undertook a number of “financial activities”.

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The majority (Mason, Murphy and Deane JJ) applied the current activities test as expressed in Adamson’s case, and found that the Board’s “financial activities” were substantial enough to warrant its classification as a “financial corporation”. They stated (at 305): Like the expression “trading corporation”, the words “financial corporation” are not a term of art; nor do they have a special or settled legal meaning. They do no more than describe a corporation which engages in financial activities or perhaps is intended so to do. The nature and the extent or volume of a corporation’s financial activities needed to justify its description as a financial corporation do not call for much discussion in the present case. A finance company is an obvious example of a financial corporation because it deals in finance for commercial purposes, whether by way of making loans, entering into hire purchase agreements or providing credit in other forms, and this activity is not undertaken for the purpose of carrying on some other business. However, just as a corporation may be a trading corporation, notwithstanding that its trading activities are entered into in the course of carrying on some primary or dominant undertaking, so also with a corporation which engages in financial activities in the course of carrying on its primary or dominant undertaking. Thus a corporation which is formed by an employer to provide superannuation benefits for its employees and those of associated employers may nevertheless be a financial corporation if it engages in financial activities in order to provide or augment the superannuation benefits.

The majority went on to endorse Deane J’s definition of “financial transactions” in the Ku-​ring-​gai Co-​operative case. It would seem likely that most “financial corporations”, under the prevailing High Court definition, are also “trading corporations”. For the purposes of s 51(xx), the designation of a corporation as either one or the other, or both, is not particularly important.9 The minority Justices, Gibbs and Wilson JJ, adopted the “current activities” test, but applied it in such a way that the financial activity had to be the dominant or characteristic activity of a corporation, if it were to be a financial corporation under s 51(xx). They concluded that although the Board undertook substantial borrowing and lending activities, its principal function was to provide benefits to public servants and their dependants. Its investment activities were incidental to the dominant activity of providing benefits. Although the minority purported to apply the “current activities” test, it was expressed in such a way as to be extremely close to the discredited “purpose” test.10

Inactive corporations [3.35] In Fencott v Muller (1983) 152 CLR 570, the High Court had to decide whether a “shelf company” could be regulated as a “trading or financial corporation”. A shelf company is an inactive corporation which can be used as a legal vehicle for a variety of transactions. The Adamson “activities” test is clearly inappropriate for a company that does not engage in much, if any, activity at all. The majority of the High Court (Mason, Murphy, Brennan and Deane JJ) found that Oakland Nominees Pty Ltd, a 9 Stellios, n 4, p 113. See also Fencott v Muller (1983) 152 CLR 570 at 601. 10 See also G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), p 911.

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“shelf company”, could nevertheless be a trading or financial company absent any current activities (at 601-​602): Oakland has not engaged in trading activities. Nor has it engaged in any financial activity, for it has not hitherto engaged in any financial transactions. And so the question arises whether a corporation with objects and powers appropriate for a trading or financial corporation can bear that character before it engages in any trading or financial activity. That question did not arise for consideration in Adamson’s case. The majority judgments in that case which held that the established activities of the football league concluded its character as a trading corporation did not suggest that trading activities are the sole criterion of character. Absent those activities, the character of a corporation must be found in other indicia. While its constitution will never be completely irrelevant, it is in a case such as the present where a corporation has not begun, or has barely begun, to carry on business that its constitution, including its objects, assumes particular significance as a guide (see State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR, at 304). Oakland’s memorandum and articles of association reveal that the objects for which it was established include engaging in financial activities and carrying on a large variety of businesses, though it lay dormant –​“on the shelf” –​after its incorporation. In the circumstances of the present case, there is no better guide to its character than its constitution and its constitution establishes its character as a trading or financial corporation. It is immaterial whether it is a trading corporation or a financial corporation or which of those characters its future activities may give it.

The majority found that Oakland Nominees was a constitutional corporation on the basis that trading and financial activities were specified as objects within the corporation’s capacities, and therefore as “purposes” for which it had been set up. The majority therefore purported to resort to the “purpose” test in characterising shelf companies, while retaining the activities test for functioning corporations. The minority (Gibbs CJ, Wilson and Dawson JJ) instead applied a test of “subjective intention”: did the directors intend for their shelf company to engage in substantial trading and/​or financial activities? The minority felt the majority’s test was too broad. In particular, they noted that it was common practice for a corporation’s memorandum of association to include a wide range of objects, including trading and financial activities, to prevent inconvenient restrictions on its future capacities.11 Furthermore, commentators have noted that the majority seem to confuse a shelf company’s “purpose” with its “capacities”, so their judgment is not internally coherent.12 Despite the persuasiveness of these criticisms, a test of “subjective intention” is also fraught with difficulties, considering that such a test is easy for directors to manipulate in the context of litigation.13 Since the Company Law Review Act 1998 (Cth), corporations are no longer required to have memoranda of association. Under s 125 of the Corporations Act 2001 (Cth) (as amended), corporations (other than mining corporations) may choose to have a

11 See Gibbs CJ at 589. See also K Booker, A Glass and R Watt, Federal Constitutional Law: An Introduction (2nd ed, Butterworths, Chatswood, 1998), p 87. 12 See Dawson J at 624. See also, A Stone, N Aroney, S Murray, S Evans and P Emerton, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (4th ed, Thomson Reuters (Professional) Australia, Pyrmont, 2017), p 471. 13 Stellios, n 4, pp 111-​112.

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constitution, which may or may not contain an objects clause. Even if a corporation’s constitution contains an objects clause, acts outside those objects are no longer ultra vires (although they may constitute a breach of directors’ duties under s 112(4) of the Corporations Act 2001 (Cth)). The correctness of Fencott v Muller regarding the characterisation for constitutional purposes of inactive corporations has not been tested since these provisions were adopted.

Conclusion on the definition of constitutional corporations [3.40]  According to the prevailing High Court majorities, a corporation can be identified as “trading” or “financial” for the purposes of s 51(xx) if its trading and/​ or financial activities form a sufficiently significant or substantial proportion of its overall activities. If a corporation’s trading or financial activities are non-​existent or insignificant, it is beyond the reach of s 51(xx). The High Court has never clarified the precise meaning of “substantial” or “sufficient significance” within the activities test. For example, if 20 per cent of a corporation’s activity is devoted to trade, does that constitute a “substantial” amount? In any case, the prevailing “activities” test seems very broad, and potentially includes most Australian corporations within the definition of “trading or financial corporations”. Public bodies, such as the Tasmanian HEC and the SSB of Victoria, and incorporated sports clubs have been caught within the definition, and a wide range of other public and “non-​profit” entities are presumed to come within the reach of the head of power. Furthermore, the test applied by the majority in Fencott v Muller indicates that most inactive corporations are also within the definition. Although there was no call for the High Court to review the “current activities” test in the Work Choices case, there was a gentle invitation issued by the majority to reopen the issue at 75, where the joint judges stated that debate about that question awaited a future case.14 The Work Choices invitation may have prompted a single judge of the Federal Court of Australia, Spender J, to decide in Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (2008) 171 FCR 102 that the Etheridge Shire Council, a local government authority, was not a constitutional corporation. Spender J decided (at 118-​119) that the correct test was that of the minority judgment of Barwick CJ in St George County Council. That is, one should identify the “predominant and characteristic activity” of the corporation in order to decide if it is a trading and/​ or financial corporation. With respect, that early judgment, while influential in the developments of the Court’s doctrines, seems narrower than the “activities” tests later applied in Adamson and Tasmanian Dam.15 Further uncertainties remain. For example, the High Court has never been called upon to decide whether a holding company falls within the definition of a “trading” or “financial” corporation.16

14 See also Stellios, n 4, p 108 and Callinan J at 373. 15 In contrast, a less strict “activities” test was applied in Aboriginal Legal Service of Western Australia v Lawrence (No 2) (2008) 178 IR 168 by the Western Australian Industrial Appeal Court. 16 See Stone et al, n 12, p 489, and, for a more detailed discussion, B L Lloyd, “The Constitutional Validity of the Trade Practices Act and Regulation of the Conduct of Holding Companies” (1993) 21 Federal Law Review 279.

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SCOPE OF THE CORPORATIONS POWER [3.45] The Concrete Pipes case established that the Commonwealth Parliament can control and regulate the trading activities of trading corporations. However, the Court in that case explicitly resisted deciding upon the outer limits of the power. For example, it did not clarify whether all of the activities of corporations could be so regulated. Two interpretations of the core of the power emerged from Concrete Pipes. The “narrow” view suggests that the aspects or activities of a corporation which may be regulated by the Commonwealth must relate to those characteristics that bring a corporation within the reach of the head of power. The law must therefore have a sufficient connection to the trading activities of trading corporations and the financial activities of financial corporations. In contrast, the “broad” approach constructs the scope of the power as plenary. As long as a corporation satisfies the tests for identification as a “foreign, trading or financial corporation formed within the limits of the Commonwealth”, all of its activities may be subjected to the Commonwealth’s regulation and control. A third “middle” view, discussed at [3.50], emerged in the Tasmanian Dam case in 1984. The issue was finally resolved in Work Choices, where the majority favoured the “broad” view. Therefore, a law which singles out constitutional corporations as the subject of the regulation will be a law with respect to s 51(xx).

The development of the broad and narrow views [3.50] In Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 the High Court had to consider the validity of s 45D of the Trade Practices Act 1974 (Cth). Section 45D(1)(b)(i) prohibited a person, acting in concert with another, from engaging in conduct that hindered or prevented the supply of goods and services, by a third person, to a trading corporation, where the conduct was for the purpose of and likely to cause substantial loss to the business of the trading corporation. The section was aimed at preventing trade unions from pressuring suppliers not to supply goods and services to a targeted trading corporation; such actions are known as “secondary boycotts”.17 Actors Equity, a trade union, sought to compel Fontana Films, a trading corporation, to agree to employ union members exclusively. Fontana refused. Actors Equity then organised a boycott of Fontana, persuading theatrical booking agents to stop contributing actors to Fontana Films. Without actors Fontana was forced to cease production of films. Fontana applied to the Federal Court for an injunction under the Trade Practices Act 1974 (Cth). The injunction was granted to restrain Actors Equity and its officers from acting in concert with others to prevent the supply of actors by theatrical agents to Fontana Films. Actors Equity appealed, arguing that s 45D(1)(b)(i) of the Act was invalid for being beyond the scope of the corporations power. The High Court unanimously found that s 45D(1)(b)(i) was supported by the corporations power. The Court found that a law made under s 51(xx) can be directed towards the activities of a natural person at least insofar as the law is protecting a 17 A “primary boycott”, or strike, occurs when one refuses to supply goods and services to another with the intention of harming the other’s business.

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trading corporation. In this respect, note the test of direct characterisation enunciated in Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1: a law’s character is determined by reference to the direct effect it has on rights, duties, powers and privileges (see [2.20]). The secondary boycott prohibition directly conferred “rights”, as in rights to trade without undue interference, rather than regulatory “duties” upon trading corporations. Despite the unanimous decision, the Justices differed as to how they came to their conclusions on the validity of the provision. Gibbs CJ and Wilson J found that the corporations power would only support those laws which deal with the trading activities of trading corporations, and the financial activities of financial corporations. The secondary boycott provision was such a law, as it was designed to protect the trading activities (“the business”) of trading corporations (see Gibbs CJ at 183). The “narrow” view put by Gibbs CJ maintains that s 51(xx) is not a plenary power over any or all activities of constitutional corporations. Such a limitation on the scope of the power is not suggested by the text of the power, and appears to be drawn from concepts akin to those that underlay the reserved powers doctrine.18 A more expansive view was accepted by Mason, Aickin and Murphy JJ: the corporations power will support laws which directly regulate any of a constitutional corporation’s activities. Mason J, with whom Aickin and Murphy JJ essentially agreed, stated (at 207-​208): The subject matter of the power is corporations –​of the kind described; the power is not expressed as one with respect to the activities of corporations, let alone activities of a particular kind. A constitutional grant of power should be construed liberally and not in any narrow or pedantic fashion. Nowhere in the Constitution is there to be found a secure footing for an implication that the power is to be read down so that it relates to “the trading activities of trading corporations” and, I would suppose, correspondingly to the financial activities of financial corporations and perhaps to the foreign aspects of foreign corporations. Even if it be thought that it was concern as to the trading activities of trading corporations and financial activities of financial corporations that led to the singling out in s 51(xx) of these domestic corporations from other domestic corporations it would be mere speculation to say that it was intended to confine the legislative power so given to these activities. The competing hypothesis, which conforms to the accepted approach to the construction of a legislative power in the Constitution is that it was intended to confer comprehensive power with respect to the subject matter so as to ensure that all conceivable matters of national concern would be comprehended. The power should, therefore, in accordance with that approach, be construed as a plenary power with respect to the subjects mentioned free from the unexpressed qualifications which have been suggested.

Stephen and Brennan JJ decided the case on the basis of the narrow view, though they did not reject the broad view. As the narrow view sufficed to dispose of the issues on the facts of the case, these two Justices decided not to commit themselves to either view.

18 See also D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), pp 319-​320.

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The debate over the restrictive view and the wider view of the scope of s 51(xx) continued in the Tasmanian Dam case. The World Heritage Properties Conservation Act 1983 (Cth) was designed to prevent construction of a dam in south-​ west Tasmania on the Franklin River. The HEC intended to build this dam to generate and sell electrical power. Section 10(2) of the Act prohibited “foreign and trading corporations” from conducting certain activities on “identified property”,19 such as felling or damaging trees, excavating and using explosives, without the consent of the relevant Commonwealth Minister. These activities were not “trading activities” per se. The Commonwealth was apparently relying on the wider interpretation of the corporations power endorsed by three Justices in the Actors Equity case to justify the validity of s 10(2). Section 10(4) prohibited a trading corporation from carrying out those prohibited activities if the activities were done “for the purposes of trading activities”. Section 10(4) was a narrower provision, which presumably was enacted in case s 10(2) was invalid. Mason, Murphy and Deane JJ found s 10 to be valid in its entirety, as they supported the broad view from three Justices in Actors Equity that s 51(xx) supported laws which regulated any activities of trading corporations, including, for example, “tree-​felling” or “excavating” activities. There did not need to be a “nexus” with trading activities at all, once the law properly targeted the correct type of corporation. Mason J put it in strong terms when he said (at 151-​152): There is nothing in the context of s 51(xx) which compels the conclusion that the language in which the power is expressed should be given a restricted interpretation. … A law which prohibits trading and foreign corporations from doing an act is a law about trading and foreign corporations, notwithstanding it is also a law about the act which is prohibited … [I]‌t is simply impossible to say that that the law has no substantial connection with trading and foreign corporations.

Deane J stated (at 269-​270): No one with knowledge of the political and other non-​ trading activities of trading corporations in and since the days of the East India Company would suggest that the non-​trading activities of trading corporations are any less appropriate to be placed under the legislative control of a national government than are their trading activities. Nor is it realistic to treat the trading activities of a trading corporation as compartmentalised and isolated from its non-​trading activities. The trading activities and the non-​trading activities are likely to be conducted in the context of overall corporate strategy and financial planning and restraints. Their viability and financial stability are likely to be interdependent. Power and success on one side are likely to contribute to power and success on the other. Failure on one side is likely to involve failure of the whole. In my view, the legislative power conferred by s 51(xx) is not restricted to laws with respect to trading corporations in relation to their trading activities. It is a general power to make laws with respect to trading corporations.

Gibbs CJ, Wilson and Dawson JJ reiterated the narrow view of s 51(xx). Section 10(2) had no connection with the trading activities of trading corporations and was therefore invalid. Dawson J justified this narrow view (at 316):

19 Identified properties were identified as such by the Governor-​General under s 7 of the Act. The site of the proposed dam was so identified.

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For a law to be a valid law with respect to a trading or financial corporation the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it.

Brennan J did not decide on the validity of s 10(2). On the facts, he felt it was only necessary to decide upon the validity of s 10(4), which prohibited the performance of non-​trading activities, for example excavations, if they were done for trading purposes. After all, the HEC proposed to perform the impugned activities for the ultimate purpose of building a dam to generate electricity to sell to the Tasmanian public. In other words, the HEC was proposing to perform the activities for the purposes of facilitating its trade in electricity, so its actions fell within s 10(4). In contrast to the Court’s 3:3 decision on the validity of s 10 as a whole, a clear majority of 5:2 found s 10(4) valid. The majority in this respect were Mason, Murphy, Deane, Brennan JJ and Gibbs CJ.20 They found that the corporations power supported a law that regulated the activities of constitutional corporations done preliminary to, preparatory to, or for the purposes of later trading activities. The conclusion of Mason, Murphy and Deane JJ followed from their conclusion regarding s 10 in its entirety: if s 51(xx) authorised regulation of all of a constitutional corporation’s activities, it obviously authorised the regulation of activities done for the purposes of trade. Brennan J and Gibbs CJ reached the conclusion that s 10(4) was valid by a different route. They both decided on the basis that the core or direct scope of the corporations power related to the regulation of the trading activities of a trading corporation. Gibbs CJ decided this as a matter of conviction, whereas Brennan J’s judgment is best understood on the basis that there was no need on the facts of the case to endorse a broader scope for the core of s 51(xx) than was evident under the narrow view. According to both Justices, the Commonwealth could regulate acts done by constitutional corporations “for the purposes of trade” as a matter of incidental power. There was, for these two Justices, a reasonable connection between the regulation of acts done “for the purposes of trade” (incidental exercise of power) and trading activities themselves (exercise of core power).21 Thus, it seems that these Justices found s 10(4) to be a valid exercise of incidental power under s 51(xx), while the other three majority Justices found s 10(4) to be within the direct scope of the head of power. The minority, Wilson and Dawson JJ, adopted, along with Gibbs CJ, the narrow view of the core of the corporations power. However, they, in contradistinction to Gibbs CJ, found that s 10(4) lacked a reasonable connection to that core power because the law itself had not been enacted for the purposes of trade. Rather, the law had been enacted for the purpose of protecting the Tasmanian environment. This reasoning may be criticised for apparently attributing a “purposive” nature to s 51(xx) where none exists.22 The legal position after Tasmanian Dam may be described as follows. Three Justices endorsed the Actors Equity broad view of the direct scope of s 51(xx) power, while 20 The Chief Justice, however, found s 10(4) inapplicable to the HEC as it was not, in his view, a “trading corporation”. See [3.25] on the definition of trading corporations. 21 On core and incidental exercises of power, see Chapter 2. See also [3.60]. 22 On purposive powers, see [2.50]. See also Stellios, n 4, pp 114-​115.

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three Justices endorsed the Actors Equity narrow view of the core of s 51(xx). Brennan J failed to explicitly support either view. A majority did emerge over an important issue. Tasmanian Dam is authority for the proposition that the Commonwealth could, at the minimum, regulate the trading activities of trading corporations (and the financial activities of financial corporations), as well as activities done for the purposes of trade (or finance). The latter regulation is permitted as an exercise of either direct or core power (Mason, Deane and Murphy JJ) or incidental power (Gibbs CJ and Brennan J). Acts which are done for the purposes of trade or finance include acts preparatory to trade or finance.23 The Tasmanian Dam majority, however, did not spell out how proximate an act must be to a trading activity before it will be deemed to come within this view of the scope of s 51(xx).24 Certainly, preparation of the dam site was deemed sufficiently connected to the ultimate trading activity of selling electricity for the purposes of s 51(xx). Thus, a third “middle” view emerged after Tasmanian Dam, that is, that the Commonwealth can regulate a corporation’s trading activities as well as activities conducted for the purposes of trade. This “middle” view attracted the approval of the Dam majority (though three Judges within that majority were willing to support a broader scope), and represented the minimum scope of s 51(xx) from that case. However, while the broad view had not been explicitly supported by a majority, it had not been rejected by a majority either, as Brennan J did not give his opinion on this matter. Thus, Tasmanian Dam left open the possibility that the broad view represented the true scope of the corporations power. In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, a majority seemed to support the broad view, but only in obiter dicta, as the case essentially concerned incidental power under s 51(xx). The scope of the corporations power was not resolved until the Work Choices case.

The Work Choices case [3.55] The New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 concerned the validity of changes to the Workplace Relations Act 1996 (Cth) which had been introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The amendments introduced a national system of industrial relations law. The previous system was shared between the Commonwealth and the States, with federal legislation being largely based on s 51(xxxv), the head of power expressly concerned with industrial relations. Section 51(xxxv), however, imposes specific limits on the Commonwealth’s power in this arena: it is limited to interstate industrial disputes and prescribes conciliation and arbitration as the manner of resolving such disputes.25 The Work Choices scheme satisfied neither of these limitations. Its link to the corporations power was provided largely through ss 5 and 6 of the amended Act, which dictated that it applied to regulate relations between employers, defined inter

23 Stellios, n 4, p 115. 24 Of course, for three of the majority, such an analysis was unnecessary, as they thought all of a constitutional corporation’s activities were within the direct scope of s 51(xx). 25 See Kirby J at 184-​185.

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alia as constitutional corporations, and their employees.26 The amended Act went far beyond regulating the trading activities of a constitutional corporation and activities done for the purposes of trade. The amended Act provided for thorough regulation of the relationship between constitutional corporations and their employees. Of the three views espoused in previous cases, only the broad view sufficed to confirm the validity of the legislation. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) described the competing narrow and broad views as follows (at 103): The plaintiffs submitted that in the cases decided after Huddart Parker there could be found views “as to the scope of s 51(xx), or the appropriate test for characterisation of a law with respect to foreign, financial and trading corporations”. Two tests were said to be thus revealed –​a “distinctive character test”, and an “object of command test” … The “distinctive character test” was said to be: “the fact that the corporation is a foreign, trading or financial corporation should be significant in the way in which the law relates to it” if the law is to be valid. The “object of command test” was said to be: that a constitutional corporation is “an ‘object of command’ [of a law], permitting or prohibiting a trading or financial corporation from engaging in conduct or forming relationships”.

Thus, the narrow view (and/​or perhaps the middle view) was described as the “distinctive character test” while the broad view was described as the “object of command” test. The majority went on to reject the “distinctive character” test (at 121): In so far as the plaintiffs contended that a test of distinctive character or discriminatory operation is to be adopted it is enough to say that, as these reasons will explain, the impugned provisions of the Amending Act which depend upon s 51(xx) either single out constitutional corporations as the object of statutory command (and in that sense have a discriminatory operation) or … are directed to protecting constitutional corporations from conduct intended and likely to cause loss or damage to the corporation. In so far as the plaintiffs’ contentions required tests of distinctive character or discriminatory operation to be understood as inserting a new or different filter into the process of characterisation those contentions should be rejected.

The majority had earlier noted (at 104) that the narrower view seemed to be premised on a need to preserve a certain federal balance of powers, a view akin to the discredited reserved powers doctrine (see also [2.10]).27 The joint judges ultimately endorsed the “object of command” view. Indeed, they went further at 114-​115 in endorsing the following description of the scope of s 51(xx) from Gaudron J in Re Pacific Coal Pty Ltd; Ex parte Construction, Mining and Energy Union (2000) 203 CLR 346 at 375: I have no doubt that the power conferred by s 51(xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-​section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders

26 Other types of employers are included in the definition of “employer”, utilising other heads of power such as the Territories power in s 122 (see, for example, s 6(e) of the amended Act). 27 See also at 119-​121.

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and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.

As will be discussed at [3.60], this understanding of the corporations power not only endorses the broad view, but also expands the scope of incidental power under s 51(xx). Whilst endorsing the broad view and the view of Gaudron J in Pacific Coal, the majority rejected an argument that s 51(xx) was limited to regulating the external relationships of a constitutional corporation, and not its internal relationships with, for example, employees, directors and shareholders. The contention was based, optimistically in light of subsequent authority,28 on the dissent of Isaacs J in Huddart Parker.29 Of course, his Honour’s judgment evolved to become the most credible from that case, as it had not been tainted by the reserved powers doctrine. Nevertheless, the Work Choices majority rejected the distinction as “unhelpful”, “inappropriate” and “unstable” (at 121). Kirby and Callinan JJ dissented. The crux of their respective decisions meant that they did not have to endorse either the broad or the narrow views.30 However, Callinan J expressed a preference for the narrower views (at 373). Kirby J (at 224) criticised the majority’s view as having the following consequences, in his own list of “horribles”: The States, correctly in my view, pointed to the potential of the Commonwealth’s argument, if upheld, radically to reduce the application of State laws in many fields that, for more than a century, have been the subject of the States’ principal governmental activities. Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated. Likewise, in healthcare, where hospitals (public and private), clinics, hospices, pathology providers and medical practices are, or may readily become, incorporated. Similarly, with the privatisation and out-​sourcing of activities formerly conducted by State governments, departments or statutory authorities, through corporatised bodies now providing services in town planning, security and protective activities, local transport, energy, environmental protection, aged and disability services, land and water conservation, agricultural activities, corrective services, gaming and racing, sport and recreation services, fisheries and many Aboriginal activities. All of the foregoing fields of regulation might potentially be changed, in whole or in part, from their traditional place as subjects of State law and regulation, to federal legal regulation, through the propounded ambit of the corporations power.

Regardless of whether the broad view was adopted by the Court, the Australian Workers Union, one of the plaintiffs in the case, argued that s 51(xx) was nevertheless necessarily qualified by s 51(xxxv). The majority described this argument (at 122): [T]‌he power [in s 51(xx)] should not be read as extending to “similar matters” to those dealt with in s 51(xxxv). The result was said to be that the selection in s 51(xxxv) of one method of preventing and settling industrial disputes [ie, conciliation and arbitration] and

28 P Applegarth, “The Work Choices Case: Corporations Power Aspects”, Gilbert and Tobin Constitutional Law Conference 2007, available at http://www.gtcentre.unsw.edu.au/sites/gtcentre. unsw.edu.au/files/mdocs/153_PeterApplegarth.pdf, p 12. 29

See Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 395-​396.

30 These two Judges based their decision on the need to qualify the scope of s 51(xx) in light of s 51(xxxv). This argument is discussed directly below.

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the limitation of that paragraph to disputes extending beyond the limits of any one State indicated that other powers, particularly s 51(xx), should not be construed so as to support laws without those limitations.

The majority rejected that argument (at 123): [S]‌everal difficulties with the submissions of the AWU appear. First, the text of s 51(xxxv) (as the Commonwealth stressed and Victoria recognised) is concerned with a narrower subject-​matter than industrial matters or relations and their regulation. Legislation may prescribe, independently of any mechanism for the resolution of disputes, a wide range of matters which may fairly be regarded as affecting the mutual relations of employers and employees who from time to time are engaged in an industry. Part 7 of the Act, which prescribes what are identified in s 171 as “key minimum entitlements of employment”, is a law of this description. Why should the heads of power, particularly s 51(xx), which are relied upon by the Commonwealth as supporting a law such as Pt 7, be construed as not doing so for the reason that s 51(xxxv) identifies particular means for the prevention and settlement of certain industrial disputes? The other heads of power should not be so construed. Secondly, it is contrary to established principle, in the case of a law which may bear several characters, one of which attracts a particular head of legislative power, to ask, as a requirement of validity, whether there is anything in that head of power which suggests it may be used to deal with those other matters.

Kirby and Callinan JJ in dissent found the AWU argument to be compelling and correct. At 205-​206, Kirby J stated: It follows that the content of s 51(xx) takes on a reduced scope from what it otherwise might have had if par (xxxv) had not appeared in the Constitution at all, indeed in the very same section within which each paragraph is to be read together with the others. A law can be validly made with respect to more than one head of power. The fact that it might be characterised as a law with respect to some other subject matter(s) is irrelevant if it properly answers to the description of a law with respect to another subject matter designated in s 51. This will be so even if there is no independent connection between the two constitutional subject matters. What is forbidden is the making of a law in reliance upon a specified subject matter (such as s 51(xx)) when that law is properly characterised as one with respect to another head of power (such as s 51(xxxv)) in circumstances where the latter power is afforded to the Federal Parliament “subject to a safeguard, restriction or qualification”

Kirby J found that s 51(xxxv) was intended to ensure that the Commonwealth’s power over industrial disputes was limited to those disputes that extended beyond the limits of one State, and that such disputes would be resolved by the method of conciliation and arbitration. Kirby J interpreted the latter as a requirement of “industrial fairness”.31 Section 51(xx) could not, in his view, be utilised to avoid those constitutional constraints. Callinan J largely relied on historical arguments to come to the same conclusion as Kirby J. He stated (at 275): And if two … things are clear from the Convention Debates they are that any federal power in relation to industrial affairs was to be confined to those of an interstate character, and that the former colonies were to retain power over internal industrial disputes.

31 See at 216-​220 and 244.

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Callinan J also noted that the numerous failed referenda held to expand federal power over industrial relations and corporations were largely pointless if the proposed majority interpretation of s 51(xx) was correct.32 He concluded (at 350): Because of the extent of the power conferred by s 51(xxxv), as repeatedly held by the Court, as well as its usage alone of all the placita, of the language of industrial affairs, it can be seen to represent the totality of the Commonwealth’s powers of control of industrial affairs, and to give rise to a negative or restrictive implication of the absence of a conferral of industrial power elsewhere under s 51, except of course in relation to employees of the Commonwealth and perhaps other limited categories of employees which it is unnecessary to define in this case. I would not regard this holding, of a negative implication, as different in substance from the holding of Kirby J that s 51(xx) be read down so as to exclude its application to industrial affairs.

The majority Judges went on to uphold the validity of the Work Choices legislation in its entirety. Many provisions were upheld as they were directed to regulating constitutional corporations, so such corporations were the “object of command” of the legislation. Other provisions were upheld as they were analogous to the provisions discussed in Actors Equity v Fontana Films; they protected constitutional corporations from the detrimental activities of other parties, notably certain industrial actions by their employees. Finally, as discussed at [3.60], other provisions fell within the incidental scope of s 51(xx).

The incidental scope of the corporations power [3.60]  The scope of the corporations power, as with every head of power, is extended through the use of the incidental scope of the power.33 Every constitutional head of power carries with it the authority to legislate in relation to matters that are incidental or ancillary to the subject matter, in order to achieve the main purpose of the law.34 If the court can establish a reasonable connection between a law’s direct operation and the subject matter which is within the Commonwealth’s power, the law is a valid exercise of incidental power. Judicial opinion can vary dramatically in identifying the required reasonable connection –​this is because matters of incidental powers are largely a subjective question of degree.35 A good demonstration of the vagaries of the incidental scope of the corporations power was seen in the Actors Equity case. One of the challenged provisions of the Trade Practices Act 1974 (Cth) was s 45D(5), which made trade unions vicariously liable for the actions of their members and officers where those actions constituted a secondary boycott. Liability could be avoided only if the trade union could prove that it had taken all reasonable measures to prevent its member or members from engaging in such conduct. A majority (Mason, Stephen, Murphy, Aickin and Brennan JJ) found that s 45D(5) could not be supported by the corporations power, so it was invalid. Mason J (at 210) found the provision to be a law about trade unions, having only a 32

See at 284-​301.

33 Indeed, see the commentary [3.50] on the judgment of Gibbs CJ and Brennan J in Commonwealth v Tasmania (1983) 158 CLR 1. 34

Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77 per Dixon CJ. See also [2.25].

35

Burton v Honan (1952) 86 CLR 169 at 179 per Dixon CJ.

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very remote connection with corporations, so it was outside the incidental scope of s 51(xx). Brennan J concluded (at 223) that “the corporations power does not support a law which makes an organisation liable for conduct which it has not engaged and which it has not counselled, aided or abetted”. However, Gibbs CJ and Wilson J found the section was supported by the incidental aspect of the corporations power. The provision was “reasonably incidental” to the corporations power because it required the trade union to take steps to prevent its members from conduct likely to cause harm to a constitutional corporation’s business. It is pertinent to note that Gibbs CJ and Wilson J took the narrowest view of the scope of the core of the corporations power, and yet the widest view of the scope of incidental power on the facts of the case (see also [2.40]).36 Another demonstration of incidental power is found in Fencott v Muller (1983) 152 CLR 570. The Court examined s 82(1) of the Trade Practices Act 1974 (Cth), which permitted any person who had suffered a loss because of a corporation’s misleading or deceptive conduct to recover that loss from any natural person involved in that deception. It was submitted that the provision was not supported by the corporations power, because it did not impact directly upon a corporation’s rights or duties. However, the Court agreed that the imposition of duties on natural persons under s 82(1) was valid under s 51(xx). Mason, Murphy, Brennan and Deane JJ (with whom Gibbs CJ, Wilson and Dawson JJ agreed on this point) stated (at 598): [T]‌he power must extend to the imposition of duties on natural persons. Two considerations … sustain this conclusion. The first is that corporations act through natural persons. The second … is that in order to be effective, a regulation of the activities of corporations calls for the imposition of duties on those natural persons who would or might, in the ordinary course of events, participate in the corporate activities, the subject of the intended regulations.

These four Judges found that the regulation was “incidental to the regulation of corporate activities”, while the other three Judges, who adopted the narrow view of core power under s 51(xx), found the regulation incidental to the trading activities of trading corporations. All Judges therefore found the law to be within power. The sufficiency of connection between a law and the subject matter of the corporations power was addressed again in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323. This case involved a challenge to certain sections of the Industrial Relations Act 1988 (Cth). Sections 127A and 127B gave the Commonwealth Industrial Relations Commission the power to review and vary contracts to which independent contractors were a party, if those contracts were unfair, harsh or contrary to the public interest. Section 127C(1) defined the contracts in question as: (a) those contracts to which a constitutional corporation is a party; (b) a contract relating to the business of a constitutional corporation; and (c) a contract entered into by a constitutional corporation for the purposes of the business of the corporation. It may be noted that s 127C(1)(a) defined a group of contracts which encompassed those described in s 127C(1)(c). Section 127C(1)(a) contracts would be within the corporations power if the broad view from Tasmanian Dam was upheld by a majority.

36 See Meagher et al, n 18, p 320.

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Section 127C(1)(c) describes contracts which correspond with the minimum scope of power identified in Tasmanian Dam, and was therefore inserted as a failsafe device if s 127C(1)(a) was ultimately found to be invalid. However, the contracts described in subs (b) went beyond even those listed in subs (a), as corporations did not even have to be parties to such contracts. Dingjan concerned a challenge to the validity of ss 127A and 127B insofar as they related to the contracts described in s 127C(1)(b). On the facts in Dingjan, Tasmanian Pulp and Forest Holdings was a trading corporation which conducted a woodchip business. It contracted with Mr and Mrs Wagner to harvest and transport timber. The Wagners sub-​contracted some of the work to Mr and Mrs Dingjan. The arrangements were satisfactory until 1992, when the company varied its practices and requirements, causing the Wagners to alter their arrangements with the Dingjans. The Dingjans sought review and variation of their contracts under ss 127A and 127B of the Industrial Relations Act 1988. The Wagners then terminated the contracts, and the Commission subsequently reinstated the contracts. The contracts at issue were s 127C(1)(b) contracts, as they related to the “business” of a s 51(xx) corporation, Tasmanian Pulp and Forest Holdings. The Wagners then argued that the Commission could not make such a ruling, because ss 127A and 127B, insofar as they related to contracts in s 127C(1)(b), were beyond the scope of the corporations power. The majority found that the provisions in question were outside the scope of the corporations power. Brennan, Toohey and McHugh JJ said that the Commonwealth could not impose general regulations on contracts, just because they “related to” the business of a trading corporation.37 These Justices found that a s 51(xx) law must at least operate so as to have some effect on a constitutional corporation. For example, McHugh J stated (at 370) that a s 51(xx) law must operate so as to have some definite significance for a constitutional corporation, in that it must normally cause some beneficial or detrimental effect on such a corporation. Brennan J stated (at 336):38 To attract that support [from s 51(xx)], the law must discriminate between the constitutional corporations and other persons, either by reference to the persons on whom it confers rights or privileges or imposes duties or liabilities or by reference to the persons whom it affects by its operation.

Brennan J (at 338) describes how variation of a s 127C(1)(b) contract might have no impact on a constitutional corporation: Take, for example, a contract between A and B, both being natural persons, for the delivery by B as an independent contractor of goods to A’s customers, some of whom are constitutional corporations others of whom are not. If the contract were varied as to the place for picking up the goods, the loading machinery to be provided, the make or specifications of the delivery vehicle, the number or proportion of deliveries to be made by B or the period for which the contract is to subsist, the variation might not affect the businesses of A’s customers (whether corporate or not). They might well be unconcerned by the variation.

37 Dawson J took a different approach from the other majority Justices. He reiterated the narrow view that he took in Commonwealth v Tasmania (1983) 158 CLR 1. 38 See also Toohey J at 354.

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Gaudron and Deane JJ were in the minority but appeared to agree with Brennan, Toohey and McHugh JJ that a s 51(xx) law must operate in such a way as to have “significance” for a constitutional corporation. However, they interpreted s 127C(1)(b) contracts as having such significance, on the basis that they bound persons who had business relationships with such corporations. Alternatively, they felt that the subsection could be read down so as to exclude their application to contractual variations which had no effect on a constitutional corporation.39 Therefore, it seems that a majority of Justices in Dingjan enunciated a test for invalidity under s 51(xx). Five Justices agreed that a law would fall outside the placitum if it operated so as to have no effect, either beneficial or detrimental, on a constitutional corporation. In the result, two of those judges found that the law in Dingjan could be read down so as to have such an effect. As noted at [3.55], the majority in Work Choices endorsed the following description of the scope of the corporations power from Gaudron J in Pacific Coal: the power extends to: the regulation of the activities, functions, relationships and the business of a corporation described in that sub-​section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business. [emphasis added]

It is unclear if this description encompasses direct power, or both direct and incidental power.40 It is submitted that the italicised section of the quote represents a description of incidental power under s 51(xx), except to the extent that the imposition of rights and duties on those mentioned in the italicised section result in the correlative conferral of direct rights and duties on corporations, as occurred in Actors Equity v Fontana Films.41 The endorsement of Gaudron J’s dicta from Pacific Coal seems to significantly extend the scope of direct and incidental power under s 51(xx). The regulation of persons whose “conduct … is capable of affecting” a corporation seems to extend beyond the regulation of persons in such a way as to actually affect a corporation. However, the ramifications of the extension of power to all people who are “capable of affecting” a corporation are so enormous as to cast doubt on the true applicability of Gaudron J’s dicta. The Dingjan test of invalidity was not expressly overruled by the majority. However, its continuing authority may perhaps be doubted in light of some of the findings by the majority regarding actual legislative provisions.42

39 See Gaudron J at 366. In contrast, Brennan J refused to read the provision down at 339-​340. 40 It may be noted that High Court Judges often fail to distinguish between core and incidental power: a law is after all not less valid if it falls within incidental rather than core power. 41 See [3.50] and [2.20]. 42 Applegarth, n 28, pp 14-​18.

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In particular, s 755 of the Act at issue in Work Choices regulated the right of persons to enter a workplace for the purposes of assessing compliance with occupation health and safety (OHS) standards. Some of these rights were regulated under s 51(xx) by virtue of the fact that the relevant entry would impact directly on a constitutional corporation. For example, such rights came within s 51(xx) when the inspected premises were occupied or otherwise controlled by a constitutional corporation under s 755(1)(a)(i).43 Such provisions were clearly valid under the majority view, given their direct connection to a constitutional corporation. However, some rights to make OHS inspections under s 755 were regulated by virtue of their connection to persons contracted by constitutional corporations, rather than to a constitutional corporation. For example, s 755(1)(d)(iii) regulated the right of entry where such a right related to OHS requirements to be met by “a contractor providing services to a constitutional corporation”.44 The majority stated (at 146): All plaintiffs submitted that s 755(1)(d)(iii), (e)(iii) and (f)(iii) were invalid. These provisions concern contractors providing services for constitutional corporations. The plaintiffs submitted that these provisions do not require that the right of entry be exercised in relation to an activity of a contractor engaged in for the purposes of providing services to the constitutional corporation. The Commonwealth accepted that on that construction the provisions would exceed power and therefore urged that the provisions be construed as limited in their application to requirements or activities in which a contractor is engaged in the course of providing services to a constitutional corporation. That construction of the provisions is to be preferred. So construed, the provisions are laws with respect to constitutional corporations. [emphasis in original]

The Commonwealth conceded that the provisions were not valid unless they only operated with respect to contractors who were engaged in the course of providing services to a constitutional corporation; the Court stated that such a “construction of the provisions [was] to be preferred”. However, the provision as read down still seems to fail the Dingjan test. Entry onto premises for purposes related to the OHS practices of such contractors may still operate in a way that may not necessarily impact at all on the constitutional corporation. Yet, in the words of Gaudron J from Pacific Coal, the provisions operated upon persons who were “capable of” affecting a constitutional corporation. While the confirmation of the broad view of direct power in Work Choices may have accorded with the trajectory of previous authorities, the extension of incidental power was less predictable. Kirby J criticised the endorsement of Gaudron J’s dicta from Pacific Coal, arguing that her comments had been taken out of context from a minority opinion in a case that essentially concerned s 51(xxxv) rather than s 51(xx).45 Indeed, the extension of incidental power is so large as to arguably move beyond the traditional test of incidental power, that a provision be “reasonably related” to the heart of the power. Furthermore, the failure to explicitly overrule Dingjan possibly indicates that its precedent may be revived in the future. 43 See, for example, s 755(1)(d)(i), 755(1)(e)(i) and 755(1)(f)(i). 44 See also s 755(1)(e)(iii) and 755(1)(f)(iii). See also the finding regarding s 497 of the amended Act at 139-​140. 45 See at 206-​207. See also Callinan J at 366.

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The corporations power and natural persons [3.65]  As is clear from Actors Equity, Fencott v Muller and the Work Choices case, it is possible for natural persons to be regulated under the corporations power. Intuitively, this circumstance is more likely to occur as an exercise of incidental power, as was the case in Fencott v Muller and in Work Choices. However, it can also arise from an exercise of direct power, as probably occurred in Actors Equity, and also with regard to some of the impugned provisions in Work Choices. Though the law in Actors Equity directly regulated the activities of a natural person, it directly conferred a right, as in protection from secondary boycotts, upon constitutional corporations.

Regulation of the creation of corporations [3.70]  Can s 51(xx) authorise laws that regulate the incorporation or creation of trading and financial corporations? All of the Justices in Huddart Parker in 1909 agreed that the Parliament did not have power to create corporations, under the corporations power.46 The question was not reviewed until the Commonwealth purported to pass uniform corporation laws in 1988. After the Tasmanian Dam case, the federal government was encouraged by the possible shift to the wider reading of the corporations power. It undertook to impose a national scheme of corporate laws and securities industry regulation by passing a package of laws that purported to control the formation, internal affairs and winding up of trading and financial corporations. The Corporations Act 1989 (Cth) was enacted on the assumption that the Commonwealth had power under s 51(xx) to legislate for the incorporation or formation of trading and financial corporations. The scheme required that the registration papers of a new company be accompanied by an activities statement which would demonstrate the degree of trading or financial activities anticipated by the company, thus assisting in the identification of the nascent companies as “trading” or “financial corporations”. Parliament passed the Act despite the objections of many States, who feared loss of their power to regulate and collect fees from the incorporation of companies under the various State laws. A number of States subsequently challenged the Commonwealth’s incorporation scheme in New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR 482. A majority of 6:1 rejected the validity of the incorporation provisions of the legislative scheme. The majority (Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ) held that the words, “trading and financial corporations formed within the limits of the Commonwealth” (emphasis added), in s 51(xx) must be read in the past tense. Thus, they found that the words “formed” limited the use of corporations power to legislation with respect to corporations already formed in Australia under some other law, whether it be of the Commonwealth, a State or a Territory. The majority stated (at 498): The word “formed” is a past participle used adjectivally, and the participial phrase “formed within the limits of the Commonwealth” is used to describe corporations which have been

46 It may use other heads of power in some circumstances, such as s 122, s 51(i) and the nationhood power. The executive may also incorporate some companies under its prerogative powers. The extent of this power is uncertain (see [5.50]).

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or shall have been created in Australia. (Clearly enough, the phrase is used to describe corporations formed after as well as those formed before federation.) The subject of a valid law is restricted by that phrase to corporations which have undergone or shall have undergone the process of formation in the past, present or future. That is to say, the power is one with respect to “formed corporations”. That being so, the words “formed within the limits of the Commonwealth” exclude the process of incorporation itself. … The power conferred by s 51(xx) to make laws with respect to artificial legal persons is not a power to bring into existence the artificial legal persons upon which laws made under the power can operate.

Therefore, the corporations power could not be used to regulate the formation of corporations. The majority gave three reasons for their interpretation: the plain meaning of the word “formed”, the drafting history of s 51(xx) and the obiter dicta from Huddart Parker.47 The majority also referred to a speech in the 1891 constitutional convention, in which Samuel Griffith asserted that the corporations clause did not authorise incorporation. This part of the judgment has been criticised for its failure to recognise that the 1891 version of the draft s 51(xx) was quite different from that which ultimately emerged in 1901.48 Furthermore, there is no way of knowing whether Griffith’s fellow delegates were in agreement.49 The High Court also made reference to Quick and Garran’s 1901 contemporaneous work (at 502-​503) of their judgment: Indeed, the history of the paragraph plainly indicates that the draftsmen of the provision did not contemplate that it should confer any power otherwise than in respect of corporations already formed. Contemporary opinion, which was reflected in the decision in Huddart Parker, is to be seen in the following passage from Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), where the authors say, at p 607: It would therefore seem that this provision refers to companies created under State laws. Such bodies, once launched, will come within the control of Federal legislation.

The majority further pointed out (at 503) that there were considerable practical difficulties in applying the scheme, because of the need to apply a “current activities” test (the test for identification of a trading or financial corporation) to an unformed entity. It is arguably inappropriate for the High Court to take account of difficulties in administering laws when determining the validity of that law.50 The majority’s approach was criticised by a number of commentators. For example, it has been suggested that “the decision will delight pedants, lawyers and zealots of States’ rights”.51 Another critic of the decision was Deane J, the lone dissenter. He stated (at 512):

47 As stated earlier, this 1909 case was overruled by Strickland v Rocla Concrete Pipes (1971) 124 CLR 468, where the Court specifically rejected the earlier reliance on the reserved powers doctrine. In New South Wales v Commonwealth (1990) 169 CLR 482, the High Court was prepared to rely on the reasoning of the overruled case because the issue of incorporation was understood not to be affected by the reserved powers doctrine, but merely by textual considerations, at 499. 48 Stellios, n 4, pp 129-​130. 49 Booker, Glass and Watt, n 11, p 88. 50 Booker, Glass and Watt, n 11, p 89. 51 T Sykes, “From the Desk”, Australian Business, 21 February 1990, p 6.

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The argument that par (xx)’s grant of legislative power “with respect to … trading or financial corporations formed within the limits of the Commonwealth” should be construed as not extending to laws with respect to the incorporation of such corporations focussed upon the word “formed”. The legislative power could not, so it was said, extend to authorise laws governing the formation of such corporations since, until they are formed, they do not exist as the subject-​matter of the power. Any superficial appeal of that argument does not, in my view, survive close examination. One objection to it is that it fails to distinguish between the abstract subject-​matter of the legislative power and concrete instances of that subject-​matter. One might as well say that a legislative power with respect to locally manufactured motor vehicles would not extend to laws governing the local manufacture of motor vehicles or that the legislative power with respect to lighthouses does not extend to laws governing the erection of lighthouses since, until it is manufactured locally or erected, neither the locally manufactured motor vehicle nor the lighthouse exists as such. Another objection is that the argument fails to accord proper scope to the words “with respect to” in s 51 or to the settled principle which requires that para (xx), which is a constitutional grant of plenary legislative power, be liberally, and not narrowly or technically … In that regard, it is important to note that the basis of the argument is a reading of the word “formed” as meaning “which have already been formed at the time of application of the relevant law”. That constrictive interpretation of the word seems to me to be quite unjustified. In the context of the use of the phrase “formed within the limits of the Commonwealth” in contradistinction to “foreign”, the word “formed” is properly to be understood as representing a use of the past participle as part of an adjectival phrase which is without temporal significance.

Deane J in dissent held that s 51(xx) extended to authorise the making of laws governing the formation or incorporation of trading and financial corporations. Despite the strong criticisms, the Incorporation case established that the Common­ wealth cannot regulate the incorporation of constitutional corporations. However, in R v Hughes (2000) 202 CLR 535, Kirby J noted his dissatisfaction with the Incorporation case (at 564): This narrow decision of the Court will, in my opinion, one day need to be revisited. A factual consequence has been the grotesque complications that exist in the regulation of corporations under Australian law 

In 2001, the federal government enacted the Corporations Act 2001 to “deliver with certainty a single national regulatory regime governing the affairs of more than one million companies”.52 The constitutional authority for this Act is derived from a variety of heads of power, including s 51(xx). The Corporations Act 2001 (Cth) takes effect by way of the referred States’ power to legislate with respect to corporations (including incorporation) to the Commonwealth under s 51(xxxvii). Each State, after a protracted period of negotiation with the Commonwealth, passed legislation referring part of their corporations power to the Commonwealth, under s 51(xxxvii).53 The referral of legislative power was initially for a period of five years, but has now been extended. 52

See Corporations Bill 2001, Second Reading Speech by Joe Hockey MP, 4 April 2001.

53 For example, the Victorian Parliament referred the power to legislate with respect to the “formation of corporations, corporate regulation and the regulation of financial products and services” to the Commonwealth in the Corporations (Commonwealth Powers) Act 2001 (Vic). The Australian Securities and Investments Commission Act 2001 (Cth) now operates in much the same manner with some relevant adjustments. ASIC still administers and enforces the corporations law regime.

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In dissent in Work Choices, Callinan J stated that the majority finding implicitly overruled the Incorporation case (at 375-​376): In my opinion, a consequence of the apparent acceptance of the “object of command” test by the majority here is that The Incorporation Case may well now be effectively overruled. In that case, Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ held that the Commonwealth lacked legislative competence for the incorporation of corporations under s 51(xx), and did so for textual, structural, doctrinal and historical reasons. Now that the Commonwealth may, it seems, legislate that “a s 51(xx) corporation shall …”, or “no s 51(xx) corporation shall …”, the States’ powers over incorporation may well be rendered meaningless. The Commonwealth might legislate that “no s 51(xx) corporation shall do business without a licence”, and make that licence a licence, for all useful purposes, to exist. It might now seek to require, for example, that the corporation be of a certain type, that its proposed name be approved, that the name and address of each corporator and proposed director be supplied to a particular authority of the Commonwealth, and that the other sorts of requirements now found in s 117 of the Corporations Act 2001 (Cth) be satisfied. But an equivalent of s 117, along with other provisions of the Corporations Act 1989 (Cth), were held to be invalid by the majority in The Incorporation Case. The “object of command” test is not reconcilable with the majority’s holdings in The Incorporation Case, but as to this the joint reasons are silent.

Regardless of the views of Callinan J, the Work Choices majority explicitly stated (at 102) that its decision did not disturb the finding in the Incorporation case. The majority also noted that no party had challenged the case, so there was no reason to consider it further. The majority, perhaps notably, did not take the opportunity to enthusiastically endorse the Incorporation precedent.

Payments to corporations [3.75] In Williams v Commonwealth (No 2) (2014) 252 CLR 416 the High Court addressed a challenge to federal funding of a school chaplaincy program (see [5.55]). One question that arose was whether the corporations power might be used to enact legislation to authorise expenditure where the recipient entity is a constitutional corporation. The Court rejected that submission (at 461): A law which gives the Commonwealth the authority to make an agreement or payment of that kind is not a law with respect to trading or financial corporations. The law makes no provision regulating or permitting any act by or on behalf of any corporation. The corporation's capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions. Unlike the law considered in New South Wales v The Commonwealth (Work Choices Case), the law is not one authorising or regulating the activities, functions, relationships or business of constitutional corporations generally or any particular constitutional corporation; it is not one regulating the conduct of those through whom a constitutional corporation acts or those whose conduct is capable of affecting its activities, functions, relationships or business.

Hence, the corporations power cannot of itself authorise the payment of money by the Commonwealth to a constitutional corporation.

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CONCLUSION [3.80]  The scope of the corporations power in s 51(xx) was finally clarified in the Work Choices case, where the broad “criterion of operation” view was upheld. While Work Choices only confirmed the broad scope that had been signalled by many judges in earlier cases such as Actors Equity and Tasmanian Dam, its implications are nevertheless radical. It therefore seems as though Higgins J’s “horribles” from Huddart Parker, now supplemented by Kirby J’s “horribles” from Work Choices itself, could come to pass. The majority decision in Work Choices probably does pave the way for the Commonwealth, in the view of Kirby J (at 225), to engage in: optional or “opportunistic” federalism in which the Federal Parliament may enact laws in almost every sphere of what has hitherto been a state field of lawmaking by the simple expedient (as in this case) of enacting a law on the chosen subject matter whilst applying it to corporations, their officers, agents, representatives, employees, consumers, contractors, providers and others having some postulated connection with the corporation.

Professor Greg Craven went so far as to describe the case as “the greatest constitutional disaster to befall the States in 80 years” and “the constitutional equivalent of a dirty bomb”.54

54 G Craven, “Struggle Ahead for the States”, The Australian, 16 November 2006, p 10.

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Chapter 4

The External Affairs Power [4.10] [4.15] [4.20]

EXTRATERRITORIAL POWER......................................................................................................... 127 RELATIONS WITH OTHER COUNTRIES...................................................................................... 133 IMPLEMENTATION OF TREATIES................................................................................................. 134 [4.25] Ratification of treaties......................................................................................................... 134 [4.30] The effect of international treaties on Australian law.................................................... 135 [4.35] Incorporation of treaties into domestic law..................................................................... 137 [4.40] Treaty ratification must be bona fide................................................................. 141 [4.45] The need for a treaty “obligation”..................................................................... 141 [4.50] The specificity principle...................................................................................... 144 [4.55] The conformity principle.................................................................................... 145 [4.60] Implementation of international documents other than treaties.................. 148 [4.65] MATTERS OF INTERNATIONAL CONCERN............................................................................... 149 [4.70] CUSTOMARY INTERNATIONAL LAW.......................................................................................... 150 [4.75] CONCLUSION..................................................................................................................................... 151

[4.05]  Section 51(xxix) of the Constitution confers power on the Commonwealth Parliament with respect to “external affairs”. It is now one of the Commonwealth’s most substantial and important heads of power. This power has a number of components to it: extraterritorial power, legislative power regarding relations with other nations and, most controversially, power to implement treaty provisions. Arguably, it also includes a separate power regarding matters of “international concern”. The various components of the external affairs power are analysed in the following commentary.

EXTRATERRITORIAL POWER [4.10]  The exercise of extraterritorial power arises when a Parliament legislates with respect to acts or matters beyond its borders. It was initially presumed that all British colonies had no extraterritorial power.1 For example, such a presumption was manifested by the Privy Council’s decision in MacLeod v Attorney-​General for New South Wales [1891] AC 455, whereby a New South Wales bigamy law was held not to apply to prohibit a second marriage in the United States. As late as 1920, in Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association (No 3) (1920) 28 CLR 495, the High Court held that the Commonwealth’s industrial

1

See [1.75].

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relations power under s 51(xxxv) was limited to industrial disputes within Australian territorial limits, and did not include disputes outside Australian territorial waters.2 However, this presumption against colonial extraterritorial power was overturned in the 1930s, in a number of cases such as Croft v Dunphy [1933] AC 156 (concerning the powers of the Canadian federal Parliament), Millar v Commissioner of Stamp Duties (1932) 48 CLR 618 and Broken Hill South Ltd v Commissioner of Taxation (1937) 56 CLR 337 (both concerning the legislative power of New South Wales). These cases indicated that British colonies could indeed exercise extraterritorial power so long as there was a sufficient “nexus” between the legislating jurisdiction and the matter being regulated. This need for a “nexus” regarding State extraterritorial legislation has been confirmed on numerous occasions,3 though currently the nexus requirement is now interpreted very liberally.4 A real nexus is still needed for State extraterritorial legislation, but that nexus does not have to be strong. The High Court unanimously stated in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14: [I]‌t is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce [v Florenca at 518] where his Honour stated that the requirement for a relevant connection between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connection between the subject-​matter of the legislation and the State will suffice.

Dicta in Union Steamship (at 14) indicates that the express conferral of extraterritorial power on states by s 2(1) of the Australia Act 1986 (Cth) has not altered the need for a nexus for post-​1986 legislation.5 Cases concerning post-​1986 legislation, such as Mobil Oil v Victoria (2002) 211 CLR 1, have not involved a fact situation lacking a nexus, so the point has not been conclusively adjudicated yet. However, it is likely that a nexus is still required. In Union Steamship (at 14), the Court indicated that another constitutional limit on State territorial power exists:6 [A]‌s each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s 2(1); Australia Act 1986 (UK), s 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. [emphasis added]

2 G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), p 111. 3 See, for example, Welker v Hewett (1969) 120 CLR 503. 4 See, for example, Pearce v Florenca (1976) 135 CLR 507 at 518 per Gibbs CJ. 5 See, on the Australia Acts, [1.165]. 6

See also Port MacDonnell Professional Fishermen’s Assn Inc v South Australia (1989) 168 CLR 340 at 369-​ 373 and State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 271.

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Thus, the Court indicated that the extraterritorial power of States may be limited where the exercise of such powers interferes unduly with the legislative powers of another State.7 This limit arises implicitly from the nature of the federal system established by the federal Constitution. This “federal” limit on State power arose in Mobil Oil v Victoria (2002) 211 CLR 1. The case concerned a class action against Mobil regarding its manufacture and sale of allegedly defective aeroplane fuel. Mobil claimed, inter alia, that the class action provisions in Victoria extended beyond the State’s territorial competence, as it provided for causes of action within Victorian Courts by non-​Victorians concerning transactions outside Victoria. Indeed, such claimants (along with all other claimants) were deemed to be part of the class action unless they specifically “opted out” of it. The Court unanimously dismissed Mobil’s motion to dismiss. All of the judges found that a nexus existed between the State of Victoria and the impugned activities and transactions. After all, the defendant was based in Victoria, and the fuel was manufactured in Victoria. The judges also addressed the “federal” limit on State extraterritorial powers, as is evident in Kirby J’s judgment (at 51): Self-​evidently, if the Parliament of one State were to enact laws that purported to impose obligations upon persons resident in other States, by reference to events occurring in such other States, the result could be legislative chaos. Such chaos is denied not by statute or common law but by the federal Constitution itself.

Gleeson CJ expressed the limit as one which prevented one State from exercising legislative power “which destroys or weakens the legislative authority of another State or its capacity to function as a government” (at 26). Kirby J gave examples of such laws (at 63-​64): If, for example, there were demonstrated an operational inconsistency between the law of one State and the law of another, such inconsistency would have to be resolved in accordance with the Constitution. Moreover, the law of one State could, on its face, clearly express a territorial “over-​reach” which this Court would disallow. An extreme instance, cited by Mobil, was of a law of the Parliament of Victoria which sought to regulate traffic flow in Brisbane, Queensland. Even if such a Victorian law purported to demonstrate a territorial nexus by confining the rights and obligations for which it provided to vehicles manufactured in Victoria, such a law would self-​evidently offend the territorial limitations inherent in the Constitution. The same could be said of a law of one State that purported to regulate beyond that State’s borders the exercise of the jurisdiction and powers of an organ of government of another State. Or of an attempt by the law of one State to acquire land compulsorily in another State for the first State’s purposes.

Kirby J concluded (at 65): Ultimately, the extraterritorial legislation of one State could challenge the legislative power of the Parliament of another State. So much is self-​evident. It is the result of “the predominantly territorial interest of each [State] in what occurs within its territory”. But no such inconsistency has been shown at this stage with respect to the legislation of the Victorian Parliament in question in these proceedings. Accordingly, Mobil has not demonstrated its entitlement to the relief that it seeks. 7 See D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), pp 57-​58.

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Kirby J found that legislation which breached this “federal principle” was rare, and did not arise on the facts of Mobil. The mere fact that a State’s law operates in the territory of another State is insufficient to breach this constitutional limit. For example, Gleeson CJ noted (at 26): There is nothing either uncommon, or antithetical to the federal structure, about legislation of one State that has legal consequences for persons or conduct in another State or Territory. An example is to be found in the provisions of the Clean Waters Act 1970 (NSW) considered in Brownlie v State Pollution Control Commission. That legislation was held to apply to acts or omissions (in that case, trans-​border pollution) outside New South Wales which had, or were likely to have, consequences within New South Wales. The idea that all transactions and relationships giving rise to legal consequences can be located “in” one particular State or Territory is unrealistic.

Only half of the Mobil Court (Gleeson CJ, Kirby and Callinan JJ) clearly endorsed the existence of this “federal” extraterritorial limitation.8 The other half of the Court (Gaudron, Gummow and Hayne JJ) may have endorsed its existence,9 but appear to believe that the problem of States interfering with each other is adequately dealt with by rules regarding choice of law, forum non conveniens and cross-​vesting.10 The existence and parameters of this “federal” limitation on State power was again left unresolved in Sweedman v Transport Accident Commission (2006) 226 CLR 362. The case concerned a traffic accident in New South Wales between a Victorian and a New South Wales car. The Victorian driver was indemnified by the Victorian Transport Accident Commission, which then sued the New South Wales driver for indemnity in the Victorian Courts, pursuant to Victorian legislation. The New South Wales driver, Sweedman, argued that the matter should be governed by New South Wales law, which was, in her opinion, inconsistent with the Victorian law regarding the issue of indemnity. The majority found no inconsistency, and therefore did not decide on the consequences of such an inconsistency. Callinan J in dissent found (at 432) that the Victorian law in fact represented “an unconstitutional interference with, project into, or intrusion upon the State of New South Wales”. It may be assumed that the Commonwealth, like New South Wales and Canada, also had its extraterritorial power recognised by the 1930s. In any case, s 3 of the Statute of Westminster 1931 (UK) confirmed that all Commonwealth dominions, including the Commonwealth of Australia, had extraterritorial power. The Statute of Westminster 1931 was adopted by the Commonwealth in 1942,11 with its effect backdated to

8 Callinan J, alone among the judges, read down the class action provisions. The provisions included all potential claimants among the class unless they “opted out” of the action. Callinan J read the provisions down so that the following claimants had to specifically “opt in” to the action: non-​resident claimants who were not registered or incorporated in Victoria and who did not carry on business in Victoria. 9 See Mobil Oil v Victoria (2002) 211 CLR 1 at 33-​34. 10 It is beyond the scope of this book to address these issues in any detail. “Choice of law” rules help courts to resolve which law (for example, the law of one State or the law of another) is applicable in a particular factual scenario. Forum non conveniens is a common law doctrine which permits Courts to exercise discretion to dismiss cases if they have been commenced in an inappropriate jurisdiction. Finally, cross-​vesting principles allow the exercise of one State’s jurisdiction by another State’s courts. 11 Statute of Westminster Adoption Act 1942 (Cth); see also [1.160].

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1 September 1939. Therefore, the Commonwealth has definitely had some degree of extraterritorial power since the beginning of the Second World War. In New South Wales v Commonwealth (Seas and Submerged Lands case) (1975) 135 CLR 337, the High Court had to consider the validity of legislation vesting sovereignty in respect of the territorial sea, and sovereign rights in respect of the natural resources in Australia’s continental shelf, in the Commonwealth. The majority in the Court found that the territorial sea (that area between the low water mark and three miles offshore) and the continental shelf were outside Australian borders. The whole Court found that s 51(xxix) permitted the Commonwealth to exercise power with respect to “matters or things geographically situated outside Australia” (Mason J at 471).12 The Seas and Submerged Lands case confirmed that s 51(xxix) conferred extraterritorial power on the Commonwealth. Other heads of power did so as well, but only in relation to specific subject matters. The question of whether s 51(xxix) conferred plenary extraterritorial power arose in Polyukhovich v Commonwealth (1991) 172 CLR 501. In Polyukhovich, the legislation at issue was the War Crimes Amendment Act 1988 (Cth), which amended the War Crimes Act 1945 (Cth) so as to retrospectively criminalise certain war atrocities committed in Europe during the Second World War.13 The amendment prohibited the commission of certain crimes outside Australia, regardless of the nationality of the victim or the perpetrator at the time the act was committed. While liability only attached, under s 11, to Australian citizens or residents at the time the charge was brought, there was no requirement that the perpetrator have any connection to Australia at the time of the alleged act.14 One issue in the case was whether the Commonwealth could regulate extraterritorial matters under s 51(xxix) without the requirement of a nexus between the Commonwealth and that matter. Mason CJ, Deane, Dawson and McHugh JJ confirmed that s 51(xxix) gave the Commonwealth plenary extraterritorial power, so there was no nexus requirement. Gaudron J decided that a nexus was necessary, but the very decision of the Commonwealth to legislate upon a matter was conclusive evidence of such a nexus. The practical effect of her judgment is essentially no different from that of the majority, as she renders the issue of nexus virtually non-​justiciable. Brennan and Toohey JJ interpreted s 51(xxix) more narrowly, so as to only give the Commonwealth power over matters with a genuine connection to Australia. Toohey J felt the requirement was satisfied in Polyukhovich due to Australia’s involvement in the Second World War. Therefore, Toohey J may have decided differently with regard to war crimes in armed conflicts in which Australia did not participate, such as those

12 The arrangements regarding sovereignty over the territorial sea were changed by the Offshore Settlement of 1979-​1980 under which the States were granted sovereignty over the territorial sea and title to the seabed under the territorial sea. See the Coastal Waters (State Powers) Act 1980 (Cth). 13 The retrospective aspect of this legislation was also challenged, as a breach of the doctrine of separation of judicial power, see [6.160]. 14 See Mason J at 526.

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in the early 1990s in the territories of the former Yugoslavia and Rwanda.15 Brennan J in dissent found the legislation invalid, for lack of a sufficient nexus. In Victoria v Commonwealth (ILO case) (1996) 187 CLR 416, the majority of six Justices (Dawson J not commenting) stated (at 485): The modern doctrine as to the scope of the [extraterritorial] power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth (1991) 172 CLR 501. Dawson J expressed the doctrine in these terms: “(T)he power extends to places, persons, matters or things physically external to Australia. The word ‘affairs’ is imprecise, but is wide enough to cover places, persons, matters or things. The word ‘external’ is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs’.” Similar statements of the doctrine are to be found in the reasons for judgment of other Justices … They must now be taken as representing the view of the Court. [footnotes omitted]

In XYZ v Commonwealth (2006) 227 CLR 532, the validity of ss 50BA and 50BC of the Crimes Act 1914 (Cth) was tested. These provisions enable the prosecution in Australia of Australian citizens, or residents, if they commit certain sexual offences against children under 16 years of age in other countries. The plaintiff had been charged under the Act for alleged sexual relations with a person under 16 in Thailand. Callinan and Heydon JJ recommended the overturning, in this respect, of the Polyukhovich principle on textual and historical grounds, as detailed in [1.200]. These two judges seemed to deny that any extraterritorial power beyond that (discussed at [4.15]) regarding relations with other countries and the power to implement treaties was granted under s 51(xxix). That is, these two judges adopted an even narrower view of the extraterritorial scope of s 51(xxix) than the narrowest views in Polyukhovich (as expressed by Brennan and Toohey JJ). The majority (Gleeson CJ, Gummow Hayne and Crennan JJ) in XYZ endorsed the Polyukhovich principle that s 51(xxix) granted plenary extraterritorial power, thus enabling the Commonwealth to legislate for any offence overseas. Kirby J decided the case on another basis, and suggested (at 572) that it might be prudent for the Court to revisit Brennan J’s reasoning in Polyukhovich, in which his Honour had suggested that a nexus to Australia was required. The Court of Appeal of New South Wales addressed this aspect of the external affairs power in Alqudsi v Commonwealth of Australia (2015) 91 NSWLR 92. The case concerned the characterisation of offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Under s 6(1)(a), it was an offence to “enter a foreign State with intent to engage in a hostile activity in that foreign State”. Section 6(3)(aa) rendered in an offence to do an act “with the intention of … engaging in armed hostilities in the foreign State”. Finally, s 7(1)(e) rendered it an offence to “give money or goods to, or perform services for, any other person … with the intention of supporting or promoting the commission of an offence against s 6”.

15 On the other hand, the receipt of numerous refugees from those conflicts may suffice to provide a nexus.

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Mr Hamdi Alqudsi had been charged with an offence under s 7(1)(e), in conjunction with s 6(1)(a) and 6(3)(aa), in allegedly seeking to assist others to travel abroad to fight with Islamic State in Syria. While s 6(1)(a) directly concerned extraterritorial activity, s 7(1)(e) concerned preparatory acts which, in Alqudsi’s case, had taken place inside Australia. Leeming JA, with whom McCallum JA agreed, stated that the extraterritoriality aspect of s 51(xxix) was not confined to “physical things” (at 93). His Honour found that conduct under s 7(1)(e) was necessarily conduct “linked to a place outside Australia” (at 116). Alternatively, His Honour confirmed that s 7(1)(e) came within the incidental power (at 116). The latter is the preferable analysis.

RELATIONS WITH OTHER COUNTRIES [4.15]  Under s 51(xxix), the Commonwealth may legislate with respect to relations with foreign nations. For example, in R v Sharkey (1949) 79 CLR 121, the creation of the offence of “sedition”, which prohibited the excitement of disaffection against the governments of the United Kingdom or any of the King’s Dominions, was a valid exercise of power under s 51(xxix). Latham CJ stated (at 136-​137): The Commonwealth of Australia is a political organisation which is associated with other Dominions by political conventions which are recognised both by the King’s Dominions and internationally. The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs, a subject with respect to which the Commonwealth Parliament has power to pass laws –​Constitution, s 51(xxix). The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth. The prevention and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other Dominion may reasonably be thought by Parliament to constitute an element in the preservation of friendly relations with other Dominions.

Other examples of such laws are extradition laws,16 or laws regarding the judicial notice taken of foreign judgments of foreign evidence. In Koowarta v Bjelke-​Petersen (1982) 153 CLR 168, Brennan J (at 258) endorsed the extension of the Sharkey principle to cover laws regarding relations with other “international persons”, such as the United Nations and other intergovernmental organisations. Kirby J based his decision in XYZ, confirming the validity of Australia’s child sex tourism laws, on this sub-​heading of s 51(xxix). He found (at 578-​579) that the law concerned Australia’s relations with the nations in which the offences occurred (Thailand on the facts in XYZ) as well as Australia’s relationship with the United Nations Committee on the Rights of the Child.17

16 See, for example, Vasiljkovic v Commonwealth (2006) 227 CLR 614. 17 Australia is a party to the Convention on the Rights of the Child, and the UN Committee established under that treaty could be expected to ask questions on Australia’s response to child sex tourism.

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On the other hand, Callinan and Heydon JJ found that the law did not come under this subset of s 51(xxix). They felt the link to other countries was tenuous. Even though the relevant Minister had introduced the legislation by noting that Australia was gaining a bad reputation regarding child sex tourism, there was no evidence that the “conduct targeted … had worsened Australia’s relations with other nations” (at 605). Indeed, Callinan and Heydon JJ noted (at 605-​606) that the laws themselves could adversely affect Australia’s foreign relations, as they might constitute intrusion into the sovereign affairs of other nations. Their Honours seem to be assuming that laws under this sub-​heading of s 51(xxix) have to enhance Australia’s foreign relations, rather than simply relate to ties to a foreign country. In contrast, Professor Zines has stated that the law does not have to concern “friendly” relations, so long as the law directly concerns ties with a foreign government.18 Thomas v Mowbray (2007) 233 CLR 307 partially concerned the definition of “terrorist acts” for the purposes of federal law, which included destructive acts or threats designed to coerce or influence foreign governments, or intimidate the public in other countries.19 Three judges found that the application of anti-​terrorism laws, in particular provisions regarding control orders,20 to terrorist threats in other countries fell within the part of s 51(xxix) that concerns Australia’s relations with other countries.21 Three judges did not feel a need to comment on the external affairs power in this case. In dissent, Kirby J stated (at 410): Whilst I do not doubt that “terrorism” is a matter of concern to the community of nations, I do not accept that declaring [the control order legislation] invalid … would affect Australia’s international relations.

IMPLEMENTATION OF TREATIES [4.20]  The most controversial and complex aspect of the external affairs power concerns the Commonwealth’s power to incorporate the provisions of international treaties to which Australia is a party into domestic legislation. As international treaties can potentially concern any subject matter, the existence of Commonwealth power to implement legislation concerning the subject matter of treaties has the potential to severely undermine the traditional federal/​State balance of legislative powers.

Ratification of treaties [4.25]  The Commonwealth executive has inherent prerogative power to ratify international treaties (see [5.45]). The States do not have such power, as they lack international personality. For example, an agreement between an Australian State and another country has the status of an international contract, rather than an international treaty.

18

J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), p 437.

19 See Chapters 2 and 6 on Thomas v Mowbray (2007) 233 CLR 307. 20 See [6.10] for the definition of a “control order”. 21 See Gleeson CJ at 324, Gummow and Crennan JJ at 364-​365.

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The ratification of a treaty has a number of consequences. First, it signals that Australia is bound in international law to follow that treaty’s provisions. Despite its status as a federation, Australia speaks internationally with only one voice, that of the Commonwealth.22 Thus, the Commonwealth government alone is responsible for any violation of a treaty, even if that violation arises from the actions of a State government.23 Second, ratification may render administrative decision-​ makers liable to take those treaty provisions into account when making decisions.24 Third, it gives the Commonwealth Parliament power to legislate to implement that treaty (see [4.35]). Given the consequences of treaty ratification, there have been a number of reforms to the treaty-​making process, to ensure more participation from the Commonwealth legislature and from the State governments.25 The reforms have facilitated legislative and community scrutiny and consultation over treaty ratification. None of these reforms are, however, enshrined in legislation, so a recalcitrant executive government can legally bypass the reform mechanisms and simply ratify a treaty without consultation.

The effect of international treaties on Australian law [4.30]  When Australia ratifies a treaty and becomes a party to it, Australia is bound in international law to obey the terms of that treaty. A ratified treaty does not, however, become enforceable in Australian domestic law unless it is specifically incorporated into Australian law by an Act of Parliament. For example, Australia ratified the International Covenant on Civil and Political Rights 1966 (ICCPR) in 1981, and is yet to specifically incorporate that treaty into domestic law. Therefore, nobody can go to court to specifically claim a remedy for a breach of her or his rights under the ICCPR. Though the ICCPR imposes obligations on Australia in the international plane of law, those obligations have not specifically been undertaken in Australian domestic law. Further, in Plaintiff S195/​2016 v Minister of Immigration and Border Protection (2017) 261 CLR 622 the unanimous Court said neither “the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law” (at 186). This is consistent with earlier decisions such as Horta v Commonwealth (1994) 181 CLR 183.26

22 Stellios, n 18, p 418. 23 For example, the Commonwealth government was responsible in international law for the breach of the International Covenant on Civil and Political Rights entailed in Tasmanian anti-​gay laws in the case of Toonen v Australia (reported at (1994) 1 International Human Rights Reports, No 3, at 97). See [4.75]. 24

See Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

25 Meagher et al, n 7, p 351. 26

In Plaintiff S195/​2016 v Minister for Immigration and Border Protection (2017) 261 CLR 622, the High Court also confirmed that there is no constitutional principle that limits federal power on the basis of any need to conform to the domestic law of another country. The case concerned the treatment of asylum seekers on Manus Island in light of a decision of the Supreme Court of Papua New Guinea.

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That is not to say that an unincorporated treaty has no effect on Australian domestic law. It can have an effect on a judge’s interpretation of Australian law. For example, it is a common law rule that judges will attempt to interpret statutes in a way that conforms to Australia’s international law obligations.27 This rule of statutory construction will not, however, apply when a law unambiguously contradicts international law. In such a circumstance, the domestic law will prevail over the international law obligation, unless the law is somehow constitutionally invalid. The fact that a law breaches international law is not of itself a reason grounding constitutional invalidity.28 Australia’s international law obligations have also been used to interpret or mould the common law. Most famously, in Mabo v Queensland (No 2) (1992) 175 CLR 1, Australia’s modern-​day human rights obligations influenced the High Court in its rejection of the fictional legal doctrine of terra nullius, which paved the way for its finding that Aboriginal native title had survived European annexation. Brennan J (at 42) stated: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.29

The High Court, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, further expanded the utility of unincorporated treaties in Australian law. Teoh was a convicted drug dealer who was denied permanent residence by the Minister for Immigration. His imminent deportation would have breached the rights of his children under the United Nations Convention on the Rights of the Child (CRC), which has not been specifically incorporated into Australian law. The High Court set aside the order on the basis that the Minister’s decision had not taken into account Teoh’s legitimate expectation that his residency application would be treated in a manner consistent with Australia’s CRC obligations. Teoh should have been given an opportunity to argue that the CRC should be followed. The Teoh decision therefore indicated that unincorporated treaties have a procedural effect in Australian law; their existence impacted on the procedures to be followed in the case of administrative decisions which did not comply with their provisions. Teoh does not confer substantive effect on the provisions of unincorporated treaties. Ultimately, the Minister for

27 See M Kirby, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol –​ A View from the Antipodes” (1993) 16 University of NSW Law Journal 363. Thus far, Kirby J has been the only High Court judge to extend this principle to apply in the context of interpreting the Constitution, as opposed to an ordinary statute. 28 See also [1.230]. 29 Indeed, it is arguable that the High Court in Mabo used international law to support a change in an unambiguous yet unjust doctrine in Australian common law, rather than to resolve an ambiguity, or fill gaps within the common law. See also [14.15].

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Immigration could still have decided to deport Teoh in breach of the CRC, but only after the correct procedures had been followed. Teoh is not a constitutional case as such; the decision makes no change to the Commonwealth’s constitutional power with regard to treaties. The Commonwealth can legislate to overturn the decision. Indeed, relevant legislation was drafted by both the Keating and Howard governments, but was never enacted. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, a case which did not require consideration of Teoh on its facts, three members of the five-​man High Court (McHugh, Gummow and Callinan JJ) expressed dissatisfaction with the Teoh precedent, indicating that it is vulnerable to being overturned if it should be challenged before the Court.

Incorporation of treaties into domestic law [4.35]  Treaties therefore have only limited effect on Australian domestic law unless they are incorporated into that law by the passage of a statute. In the early 1980s, it was finally established that the Commonwealth Parliament has the power to incorporate Australia’s treaty obligations under s 51(xxix). The High Court split over this issue in the early case of R v Burgess; Ex parte Henry (1936) 55 CLR 608. Latham CJ, McTiernan and Evatt JJ supported the view in obiter that the Commonwealth had power to incorporate all of its treaty obligations under s 51(xxix). In contrast, Dixon and Starke JJ adopted a narrow view, suggesting that such power only existed where the subject matter of the treaty was one of “sufficient international significance” (Starke J at 658). All members of the Court agreed that the Commonwealth had the constitutional power to incorporate the Convention Relating to the Regulation of Aerial Navigation. In Koowarta v Bjelke-​Petersen (1982) 153 CLR 168, the validity of the Racial Discrimination Act 1975 (Cth) was at issue. The statute sought to incorporate a number of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination 1966 (CERD), which was ratified by Australia in 1975. A majority of 4:3 found that the legislation was valid, though the majority Justices differed in their reasoning. Mason, Murphy and Brennan JJ found that the Commonwealth had power to implement any treaty obligation, regardless of its subject matter, under s 51(xxix). Gibbs CJ, Aickin and Wilson JJ found that the Commonwealth could only implement a treaty under s 51(xxix) when its subject matter was itself an “external affair”, in that it concerned extraterritorial matters or relations with other States. Protection of people within jurisdiction from racial discrimination was not such a subject matter, so the Act, for these minority Justices, was invalid. Gibbs CJ (at 198) defended the narrower view of the scope of s 51(xxix): There are strong arguments which support the conclusion that s 51(xxix) does not empower the Parliament to give effect in Australia to every international agreement, whatever its character, to which Australia is a party. If the Parliament is empowered to make laws to carry into effect within Australia any treaty which the Governor-​General may make, the result will be that the executive can, by its own act, determine the scope of Commonwealth power. … It could, for example, by making an appropriate treaty, obtain for the Parliament powers to control education, to regulate the use of land, to fix the conditions of trading

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and employment, to censor the press, or to determine the basis of criminal responsibility –​ it is impossible to envisage any area of power which could not become the subject of Commonwealth legislation if the Commonwealth became a party to an appropriate international agreement. In other words, if s 51(xxix) empowers the Parliament to legislate to give effect to every international agreement which the executive may choose to make, the Commonwealth would be able to acquire unlimited legislative power. The distribution of powers made by the Constitution could in time be completely obliterated; there would be no field of power which the Commonwealth could not invade, and the federal balance achieved by the Constitution could be entirely destroyed.

In contrast, Mason J (at 225) defended the broader interpretation of s 51(xxix): [T]‌he consequence of the failure [to adopt the broader view] would have been to leave the decision on whether Australia should comply with its international obligations in the hands of the individual States as well as the Commonwealth, for the Commonwealth would then lack sufficient legislative power to fully implement the treaty. The ramifications of such a fragmentation of the decision-​making process as it affects the assumption and implementation by Australia of its international obligations are altogether too disturbing to contemplate. Such a division of responsibility between the Commonwealth and each of the States would have been a certain recipe for indecision and confusion, seriously weakening Australia’s stance and standing in international affairs.

Mason J (at 226-​229) criticised the arguments in favour of a narrower interpretation: First, it is emphasised that the subject of the power is external affairs. This, it is said, means that the Constitution distinguishes between internal and external affairs. Suggested conclusion: internal affairs lie outside the scope of the power. The Constitution does not draw any distinction between external affairs and internal affairs so as to give power over the former but deny all power over the latter. The true position, in accordance with received doctrine, is that a law, which according to its correct characterisation is on a permitted topic, does not cease to be valid because it also happens to operate on a topic which stands outside power. The critical question is whether in the present case the law is with respect to external affairs, not whether it is with respect to internal affairs. The fallacy in the argument is compounded by the assumption on which it proceeds –​ that affairs are either internal or external in the sense that the two categories are mutually exclusive. The assumption is false. An affair will very often have characteristics which endow it with both internal and external qualities. The same restriction on the power, it is argued, is dictated by the nature of the federal compact and the distribution of powers effected by the Constitution. To concede to the Commonwealth a capacity to enter into treaties by which it undertakes to enact domestic legislation of its own choosing and a legislative power to give effect to that undertaking would enable the Commonwealth by this means to legislate on any topic, no matter that it stands outside the specific powers conferred on the Commonwealth by the Constitution. The argument has several flaws. It is perhaps going too far to say that it rests on the underlying assumption that various fields of legislative activity, racial discrimination being the relevant example, inalienably belong to the States for the reason that specific power over the topic is not given to the Commonwealth. After all the doctrine of reserved powers was decisively rejected in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“the Engineers case”) (1920) 28 CLR 12930 … The rejection of the doctrine was a fundamental and decisive event in the evolution of this Court’s interpretation of the Constitution and in the 30 See discussion of the Engineers case at [2.15].

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later cases the correctness of the rejection has never been doubted. The consequence is that it is quite illegitimate to approach any question of interpretation of Commonwealth power on the footing that an expansive construction should be rejected because it will effectively deprive the States of a power which has hitherto been exercised or could be exercised by them. There is no reason at all for thinking that the legislative power conferred by s 51(xxix) was intended to be less than appropriate and adequate to enable the Commonwealth to discharge Australia’s responsibilities in international and regional affairs. It is unrealistic to suggest in the light of our knowledge and experience of Commonwealth-​State co-​operation and of co-​operation between the States that the discharge of Australia’s international obligations by legislation can be safely and sensibly left to the States acting uniformly in co-​operation. As the object of conferring the power was to equip the Commonwealth with comprehensive capacity to legislate with respect to external affairs, it is not to the point to say that such is the scope of external affairs in today’s world that the content of the power given to the Commonwealth is greater than it was thought to be in 1900. The consequence of the expansion in external affairs is that in some instances the Commonwealth now legislates on matters not formerly within the scope of its specific powers, to the detriment of the exercise of State powers. But in the light of current experience there is little, if anything, to indicate that there is a likelihood of a substantial disturbance of the balance of powers as distributed by the Constitution. To the extent that there is such a disturbance, then it is a necessary disturbance, one essential to Australia’s participation in world affairs.

The decisive judgment in Koowarta was that of Stephen J, who found that the Commonwealth, under s 51(xxix), could implement a treaty when it related to a matter of “international concern” (see also [4.65]). The various United Nations and regional actions in the area of racial discrimination readily identified the topic as such a subject matter, so Stephen J joined Mason, Murphy and Brennan JJ in finding the legislation to be valid. In Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, a clear majority of Mason, Murphy, Deane and Brennan JJ confirmed that s 51(xxix) granted the Commonwealth the legislative power to incorporate all of its treaty obligations into Australian law. Thus, the Commonwealth was authorised to enact a law to implement the UNESCO Convention for the Protection of the World Cultural and Natural Heritage 1972 (the World Heritage Convention) so as to prevent the construction of a dam by the Tasmanian government in an area protected by that Convention. For example, Murphy J stated (at 169-​170): In this case, it was contended that the use of the external affairs … to support the Acts would upset “the federal balance”. There are two serious objections to this doctrine. One is that the State powers brought into the balance can only mean “reserved State powers”. The other is that no rational argument is advanced for disregarding the particular federal power relied upon when achieving the balance. It builds upon the doctrine of reserved State powers by a fallacious method of “balancing” those notional State powers with some only of the undoubted federal powers. As advanced in this and recent constitutional cases the doctrine of federal balance presents only a balance between fallacies. The power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs authorises the Parliament to make laws with respect to external affairs which govern conduct, in as well as outside, Australia. The core of Tasmania’s

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case was that the construction of the dam and the regulation of the South West area of Tasmania were purely domestic or internal affairs of the State. However it is elementary that Australia’s external affairs may be also internal affairs (see Burgess; New South Wales v The Commonwealth (1975) 135 CLR 337 (the Sea and Submerged Lands Case) and Koowarta); examples are control of traffic in drugs of dependence, diplomatic immunity, preservation of endangered species and preservation of human rights. The circumstances which bring a law within the power have not been stated exhaustively. It was recognised in Burgess, and is even clearer now, that along with other countries, Australia’s domestic affairs are becoming more and more involved with those of humanity generally in its various political entities and groups. Increasingly, use of the external affairs power will not be exceptional or extraordinary but a regular way in which Australia will harmonise its internal order with the world order. The Constitution in its references to external affairs (s 51(xxix)) and to matters arising under treaties or affecting consuls or representatives of other countries (s 75) recognises that while most Australians are residents of States as well as of the Commonwealth, they are also part of humanity. Under the Constitution Parliament has the authority to take Australia into the “one world”, sharing its responsibilities as well as its cultural and natural heritage.

The minority in Tasmanian Dam adopted Stephen J’s approach from Koowarta, that is that the relevant treaty could only be incorporated into domestic law under s 51(xxix) if it concerned a matter of international concern. According to the minority, the subject matter at hand, the protection of world heritage sites, was not a “burning international issue” (Gibbs CJ at 102). This aspect of the minority judgment was criticised by Mason J in the following terms (at 25): The point is that if a topic becomes the subject of international co-​operation or an international convention it is necessarily international in character –​the existence of co-​operation and the making of a convention establish that the subject matter is an appropriate vehicle for the creation of international relationships or, in the case of a bilateral treaty, a relationship between the parties to it. And participation in a convention indicates a judgment on the part of participating nations that they will derive a benefit from it. All this indicates an absence of any accept able criteria or guidelines by which the Court can determine the “international character” of the subject matter of a treaty or convention. The existence of international character or international concern is established by entry by Australia into the convention or treaty. In any event, as I observed in Koowarta, at 651, the Court would undertake an invidious task if it were to decide whether the subject matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the Executive Government and Parliament. The fact of entry into, and of ratification of, an international convention, evidences the judgment of the Executive and of Parliament that the subject matter of the convention is of international character and concern and that its implementation will be a benefit to Australia. Whether the subject matter as dealt with by the convention is of international concern, whether it will yield, or is capable of yielding, a benefit to Australia, whether non-​observance by Australia is likely to lead to adverse international action or reaction, are not questions on which the Court can readily arrive at an informed opinion. Essentially they are issues involving nice questions of sensitive judgment which should be left to the Executive Government for determination. The Court should accept and act upon the decision of the Executive Government and upon the expression of the will of Parliament in giving legislative ratification to the treaty or convention.

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The thin majority in Tasmanian Dam in favour of the Koowarta broad interpretation of the scope of s 51(xxix) was converted into unanimous acceptance in Richardson v Forestry Commission (1988) 164 CLR 261. Thus, it is now accepted that the Commonwealth can implement all of its treaty obligations regardless of their subject matter under s 51(xxix). New controversies have, however, arisen over the possible qualifications to that rule. Treaty ratification must be bona fide [4.40]  A number of High Court Justices have indicated that the Commonwealth can only implement treaties which have been entered into in good faith. For example, Brennan J stated in Koowarta (at 260): I would agree, however, that a law with respect to a particular subject would not necessarily attract the support of para (xxix) if a treaty obligation had been accepted with respect to that subject merely as a means of conferring legislative power upon the Commonwealth Parliament.

It appears very difficult to establish that the Commonwealth has entered into a treaty in bad faith.31 Indeed, Gibbs CJ correctly suggests in Koowarta (at 200) that the “doctrine of bona fides would at best be a frail shield available in rare cases”. The need for a treaty “obligation” [4.45] In Tasmanian Dam, Gibbs CJ stated (at 106): [The precedents] strongly suggest that if an international convention imposes no obligations on the Commonwealth the power given by s 51(xxix) is not available. … In other words, the external affairs power does not enable the Parliament to make laws with respect to any matter which is dealt with by an international convention to which Australia is a party, even if the matter is one of international concern, when the laws do not give effect to the convention. (The case in which a convention gives a benefit may be put aside, for the enactments in the present case do not secure any benefit given by the Convention.) If there is no obligation, but merely a recommendation, then, assuming that no other power conferred by the Constitution is available, the Commonwealth can do no more than endeavour to persuade the States to give effect to the recommendation by exercising the legislative power which they possess and the Commonwealth does not.

Thus, Gibbs CJ was indicating that the Commonwealth cannot use s 51(xxix) to implement treaty provisions which impose no actual obligation on States’ parties. In contrast, Mason J stated (at 129-​130): If the carrying out of, or the giving effect to, a treaty or convention to which Australia is a party is a matter of external affairs, and so much is now accepted, it is very difficult to see why a law made under s 51(xxix), that is, a law with respect to the matter of external affairs, should be limited to the implementation of an obligation. To say this is to import an arbitrary limitation into the exercise of the power, one which might deprive Australia of the benefits which a treaty or convention seeks to secure. Take, for example, a treaty by which another country undertakes to provide technological and other benefits in connection with a joint enterprise to be undertaken in this country between Australia and the other party

31 Meagher et al, n 7, pp 365, 375.

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to the treaty. Why would the power not extend to Commonwealth legislation facilitating the enjoyment by Australia of the benefits promised by the treaty and to facilitating the carrying on of the activities for which it makes provision?

Deane J warned against the imposition of strict standards regarding the characterisation of treaty provisions as obligations (at 261-​262): International agreements are commonly “not expressed with the precision of formal domestic documents as in English law”. The reasons for this include the different importance attributed to the strict text of agreements under different systems of law, the fact that such agreements are ordinarily “the result of compromise reached at the conference table” and the need to accommodate structural differences in official languages … It is, therefore, not surprising that, in a Convention to which more than seventy States are parties and which was drawn up in no less than five “equally authoritative” official languages (Art 30), the terms in which the obligations of “the States Parties” are defined do not possess the degree of precision which is desirable in a private contract under the common law. That absence of precision does not, however, mean any absence of international obligation. In that regard, it would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law. To adopt a phrase that has been the subject of some discussion in this Court, Australia would, in truth, be an “international cripple” if it needed to explain to countries with different systems of law and completely different domestic rules governing the enforceability of agreements that the ability of its national Government to ensure performance of “obligations” under an international convention would depend upon whether those obligations were or were not held by an Australian court to be merely “illusory”.

While a majority of four (Mason, Murphy, Deane and Brennan JJ) found that the World Heritage Convention did in fact impose obligations which could be implemented under s 51(xxix), no clear majority emerged over whether obligatory words are necessary before a treaty can be so implemented. Mason, Murphy and Deane JJ felt that the Commonwealth could implement “non-​obligations”, while Gibbs CJ, Brennan and Wilson JJ argued the opposite (though Brennan J was somewhat ambiguous in this respect). Dawson J did not express an opinion in this respect. The “obligation” issue arose again in Richardson v Forestry Commission (1988) 164 CLR 261, which once more concerned the validity of Commonwealth legislation designed to protect heritage sites in accordance with the World Heritage Convention. The Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) established a Commission of Inquiry into the heritage value of two forests in Tasmania to ascertain whether any part of those areas should be identified as protected sites under the Convention. The Court unanimously found that the Convention imposed an obligation to identify such areas, so the establishment of the Inquiry to undertake the task of such identification was a valid exercise of the power under s 51(xxix) to implement treaty obligations. Section 16 of the Act also prohibited the performance of certain acts (that is, those which would harm the heritage value of the site) within the Lemonthyme and Southern Forests throughout the duration of the inquiry. The acts prohibited by s 16 would have had the effect of diminishing any heritage value that the forests had. At the time of the challenge, Australia had no obligation to protect the heritage value

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of the Lemonthyme and Southern Forests. It was only obliged to protect properties of heritage value which were listed on the World Heritage List, and those forests were not on the List. It was therefore clear that s 16 did not give effect to any specific Australian obligation under the treaty. The High Court majority found s 16 to be valid, despite the lack of an obligation. The minority’s reasons for dissent did not concern the issue of “obligation”. In the majority, Mason CJ and Brennan J stated (at 295): The matters to which we have referred provide a basis for a legislative judgment that substantial parts of the area, the location of which cannot be identified at this time with any certainty, may conceivably possess world heritage characteristics which should be protected. If part of an area might possess world heritage characteristics and if that part might be damaged unless the area is protected by legislative measures appropriate to preserve that part, a failure to take those measures involves a risk that the Convention obligation will not be discharged. It is only by taking those measures that the risk of failing to discharge the Convention obligation can be avoided. As the external affairs power is a plenary power, it extends to support a law calculated to discharge not only Australia’s known obligations but also Australia’s reasonably apprehended obligations. The power extends to support a law required to discharge a treaty obligation which is known to exist and also a law which is required to ensure the discharge of a treaty obligation which is reasonably apprehended to exist. In making provision for the establishment of the Commission of Inquiry and for the regime of interim protection of the protected area, Parliament has made a legislative judgment about the situation and the Convention obligation that may be proved to exist. It is not for us to impugn the bona fides of that judgment. It is enough that the legislative judgment could reasonably be made or that there is a reasonable basis for making it. Particularly is this so when the ultimate decision to be made by the Executive Government, whether the area, or parts of it, should be proposed for inclusion in the World Heritage List, involves a calculus of factors, including factors which are cultural, economic and political. Of course, if the legislative judgment cannot reasonably be supported, the Court will not hesitate to declare that it is invalid as an excess or abuse of power. [emphasis added]

Earlier (at 290), these two Justices stated that: This is not to say that a failure on the part of a State [party to the World Heritage Convention] to protect land, which is ultimately identified as part of the heritage, pending that identification is a breach of duty capable of enforcement. It is for each State to determine what it will do by way of protecting a particular property pending resolution of its status as part of the heritage. But the taking of action by a State to protect or conserve a particular property in its territory pending resolution of the status of that property as part of the heritage is to carry out and give effect to the Convention because the taking of the action is incidental to the State’s duty to ensure protection of the heritage and to the attainment of the object of the Convention. Granted ultimate identification of the property as part of the heritage, the absence of such action by way of interim protection in the meantime would expose the property to the possibility of irreparable damage.

As the Commonwealth had a duty to identify heritage sites and recommend their inclusion on the World Heritage List, whereupon a duty to protect those sites would in fact crystallise, the Commonwealth’s undertaking to protect a property while its heritage value was being determined can readily be perceived as incidental to a treaty obligation. The decision in Richardson does not therefore stand for the proposition that the Commonwealth can implement all of the provisions of a treaty, even if they clearly impose no obligation. It stands rather for the principle that the

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Commonwealth can legislate with respect to treaty obligations, as well as matters which are reasonably incidental to those treaty obligations. Richardson does not extend the scope of s 51(xxix) beyond what had been confirmed in the Tasmanian Dam case. Tasmanian Dam had confirmed that the Commonwealth can implement treaty obligations: the existence of power incidental thereto could have been readily assumed as all heads of power authorise core and incidental exercises of power.32 Wilson J in Richardson commented (at 300) that the concept of obligation appeared to be relaxed, indicating that the Justices will not read the words of a treaty pedantically in order to establish the existence of an obligation. This is important, as treaties are often drafted in diplomatic woolly language, in order to satisfy the political sensitivities of nation States. This addresses Deane J’s concerns in Tasmanian Dam (at 261-​262) that the degree of precision commonly found in common law statutes cannot be expected of the language in treaties. The next major s 51(xxix) case, Victoria v Commonwealth (ILO case) (1996) 187 CLR 416, did not resolve this issue regarding the possible need for an actual obligation. As noted at [4.60], the case suffers from some inconsistent reasoning. In Pape v FCT (2009) 238 CLR 1, Hayne and Kiefel JJ seemed to reinforce the need for an international obligation to enliven power under s 51(xxix),33 as did Heydon J (at 164-​165). The other judges did not discuss the matter. The specificity principle [4.50]  Victoria v Commonwealth (ILO case) (1996) 187 CLR 416 concerned Commonwealth legislation which, in part, incorporated various Conventions and Recommendations of the International Labour Organization. The majority stated (at 486), with regard to the scope of s 51(xxix): There may be some treaties which do not enliven the legislative power conferred by s 51(xxix) even though their subject-​ matter is of international concern. For example, Professor Zines has suggested that a treaty expressed in terms of aspiration (for example “to promote full employment”) cannot support a law which adopts one of a variety of possibly contradictory ways that might be selected to fulfil the aspiration. He writes: Accepting … that the agreement by nations to take common action in pursuit of a common objective amounts to a matter of external affairs, the objective must, nonetheless, be one in relation to which common action can be taken. Admittedly, this raises questions of degree; but a broad objective with little precise content and permitting widely divergent policies by parties does not meet the description. When a treaty is relied on under s 51(xxix) to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. The 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. But, as Judge Dillard observed in his opinion in the Appeal Relating to the Jurisdiction of the ICAO Council, the point at which ideals merge into legal obligations “constitutes one of the most delicate and difficult problems of law and especially so in the international

32 See [2.25] on the concept of incidental power. 33 See, for example, 127-​128.

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arena where generally accepted objective criteria for determining the meaning of language in light of aroused expectations are more difficult to ascertain and apply than in domestic jurisdictions”.

The ILO majority indicated that a treaty must be reasonably specific as to what States are expected to do. The cited example of an obligation to “promote full employment” can arguably be achieved in a large number of ways, as there is no consensus (domestic or international) as to how full employment is best achieved. Different governments may be ideologically driven to pursue opposing policies which they claim are necessary in order to achieve that outcome.34 To take another example, a bare treaty obligation to “minimise drug deaths” may not be sufficiently specific enough to be implemented under s 51(xxix), as it may be plausibly argued that such a duty compels criminalisation and “zero tolerance”, or that it may compel “harm minimisation”, decriminalisation and tolerance of minor drug offences. The Justices in ILO are possibly wary of allowing s 51(xxix) to give the Commonwealth government too much discretionary power with regard to a treaty’s subject matter. A large amount of discretion is conferred if the treaty does not provide a sufficiently specific regime to guide the State party in its treaty implementation, and the goals of the treaty are such that there is no real consensus over how to achieve them. Where such consensus exists, it is perhaps unnecessary for the treaty to be particularly specific in its guidance to States. For example, in the mid-​1980s, a bare duty to “combat HIV/​AIDS” may have been too non-​specific to pass the ILO test. However, much more is now known about HIV/​ AIDS and the ways of containing the virus, and so the duty has probably evolved so that it is specific enough to enliven Commonwealth power under s 51(xxix) in the presence of a relevant treaty. The line between sufficient and insufficient specificity will be difficult to draw, as the Court readily admitted in ILO. The conformity principle [4.55]  The discussion at [4.35]-​[4.50] limits to the power of the Commonwealth to implement treaties arise with regard to the nature of the treaty. In contrast, the “conformity principle” arises with regard to the nature of the implementing legislation. The implementing legislation must conform to the requirements of the treaty. The principle was described as follows by the ILO majority (at 486-​488): Where the legislative power is said to be enlivened by a treaty binding on the Commonwealth of Australia, and the law prescribes a regime affecting a domestic subject-​matter, a question arises as to the connection which must exist between the law and the treaty. 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. Thus, it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end.

34 See Stellios, n 18, p 435.

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But that is not to say that an obligation imposed by treaty provides the outer limits of a law enacted to implement it. The term “purpose” has been used to identify the object for the advancement or attainment of which a law was enacted. Hence, the statement by Brennan J in Cunliffe v The Commonwealth that the external affairs power has “a purposive aspect”. As this phrase indicates, care is required in relevant analysis. Where a treaty relating to a domestic subject-​matter is relied on to enliven the legislative power conferred by s 51(xxix) the validity of the law depends on whether its purpose or object is to implement the treaty.35 It has been said that a law will not be capable of being seen as appropriate and adapted in the necessary sense unless it appears that there is “reasonable proportionality” between that purpose or object and the means adapted by the law to pursue it. The notion of “reasonable proportionality” will not always be particularly helpful. The notion of proportion suggests a comparative relation of one thing to another as respects magnitude, quantity or degree; to ask of the legislation whether it may reasonably be seen as bearing a relationship of reasonable proportionality to the provisions of the treaty in question appears to restate the basic question. This is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty, so that the law is one upon a subject which is an aspect of external affairs. [footnotes omitted].

Dawson J issued a separate concurring decision in ILO, where he rejected the conformity principle. He stated (at 572): The external affairs power is not purposive. As I pointed out in Richardson it is not a power to make laws for the purpose of cementing international relations or achieving international goodwill or even for implementing treaties. It is a power to make laws with respect to particular matters, namely, external affairs, and the subject-​matter of a law either answers that description or it does not. A purposive power is different. Taking the defence power, which is truly purposive, it is possible to ask whether a law is for the purpose of defence and to take the view that the disproportion of the law to the achievement of that purpose suggests that it is not a law for that purpose. It is not possible to ask whether a law is for the purpose of external affairs. Either it falls within that description or it does not and whether it does or does not is to be determined by reference to the acts, facts, matters or things upon which it operates. The question to be asked is not, as in the case of a purposive power, what the law is for, but what it operates upon. The concept of proportionality has no useful part to play in answering that question.

Dawson J is the only judge since the entrenchment of the broad interpretation of the treaty implementation power to have rejected the purposive nature of s 51(xxix), which gives rise to the conformity principle.36 Therefore, the conformity principle is essentially entrenched within s 51(xxix) jurisprudence.37 The conformity principle dictates that legislation will not be authorised as an exercise of treaty implementation under s 51(xxix) if it plainly undermines the object and purpose of the treaty. Thus, for example, CERD requires nations’ parties to combat

35 See discussion of “purposive powers” in [2.50]. 36 See also Dawson J in Richardson v Forestry Commission (1988) 164 CLR 261 at 326-​327. 37

In R v Tang (2008) 237 CLR 1, the High Court found that the relevant provisions of Div 270 of the Commonwealth Criminal Code defining “slavery” were reasonably capable of being considered appropriate and adapted to give effect to Australia’s obligations under the International Convention to Suppress The Slave Trade and Slavery 1926, so they came within the external affairs power.

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racial discrimination. Australia’s ratification of CERD does not thereby give the Commonwealth legislature plenary power over the topic of racial discrimination. For example, the Commonwealth Parliament could not use such ratification to authorise a law which promotes racial discrimination. Nor can the Commonwealth Parliament use plainly disproportionate means to achieve the object of a treaty. For example, it would be plainly inappropriate and disproportionate for the Commonwealth to prescribe capital punishment as the routine penalty for breach of such laws. In Richardson v Forestry Commission (1988) 164 CLR 261, Deane and Gaudron JJ in the minority found most of the impugned laws to be invalid, due to non-​conformity with the relevant treaty, the World Heritage Convention. Section 16 of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) prohibited the performance of certain acts (for example, destruction of trees, construction of roads, excavation) within the Lemonthyme and Southern Forests throughout the duration of an inquiry into the heritage value of those forests. Deane J explained his reasons (at 315-​316): There could be circumstances in which the establishment, on an interim or permanent basis, of a legislative regime of the type established by Part III of the Act could be justified as capable of being reasonably considered to be appropriate and adapted to achieving the discharge of Australia’s obligations under the Convention and the pursuit of international aspirations and objectives in relation to the Convention. In the present case, however, no real attempt has been made to demonstrate that the overall protective regime established by Part III is in fact capable of being reasonably considered to be so appropriate and adapted. There is nothing at all to suggest that there exists an identified threat of anything other than logging operations to any part of the protected areas. Indeed, there has been no effort to identify to the Court the activities of those persons, other than forestry operators, whose use of land or earning of livelihood might be interfered with or precluded by the operation of the protective regime. The Court was informed that there are areas of freehold land owned by individuals within the protected areas. Insignificant though those areas may be in the overall perspective from Canberra, their owners, few though they may be, are citizens whose lives and property are beyond the reach of the Parliament except to the extent authorised by a relevant grant of Commonwealth legislative power. Yet there was no effort by the Commonwealth to justify the application of the protective regime, with all its stringency, to those privately owned areas of freehold land. Indeed, at times in the argument, it seemed that the Commonwealth had not ascertained what the practical impact of the imposition of the restrictive regime would be on the lives and livelihood of those who own or use land within the protected areas for other than logging purposes. Be that as it may, the blanket prima facie prohibition throughout the whole of the protected areas of the making of even a minor temporary vehicular track or small excavation works remains without plausible justification.

Thus, Deane J (and Gaudron J) felt that the impact of the law on the rights of freehold landowners on their own property was disproportionate to the purpose of fulfilling the duty under the treaty to identify heritage sites and the incidental duty to provide interim protection during the process of such identification. The majority evidently disagreed. This split in the Court demonstrates how judicial views on the “appropriateness” or “proportionality” of a measure can differ on the facts –​what is unreasonable for one Judge may be perfectly reasonable for another.38

38 See also [14.75] regarding proportionality.

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It might seem possible to argue that partial implementation of a treaty does not adequately “conform” to that treaty’s object and purpose. The ILO majority (Dawson J not commenting) refuted this idea (at 488-​489): It would be a tenable proposition that legislation purporting to implement a treaty does not operate upon the subject which is an aspect of external affairs unless the legislation complies with all the obligations assumed under the treaty. That appears to have been the view taken by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry. But the Tasmanian Dam case and later authorities confirm that this is not an essential requirement of validity. Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.

This reasoning indicates that the conformity principle is breached when legislation goes too far but is not necessarily engaged if legislation does not go far enough in implementing treaties. Having said that, it might be difficult to characterise a law as coming within s 51(xxix) if its legislative effort to “implement” a treaty is minimal. Implementation of international documents other than treaties [4.60]  Treaties are denoted by a number of names, such as Charters, Conventions, Covenants, Pacts or Protocols. In international law, there are also numerous documents which resemble treaties but do not in fact have treaty status. Such documents are known by a number of names, such as Declarations or Recommendations. Such documents do not impose obligations in international law –​they are merely “aspirational”. In the ILO case, the impugned legislation in part purported to implement a number of ILO Conventions and Recommendations. The latter documents do not have the status of a treaty, so one issue in ILO was whether the Commonwealth had power under s 51(xxix) to implement the terms of those Recommendations. The majority arguably ruled that such power did exist, by citing (at 483) the following quotation from Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687: [I]‌ t is not to be assumed that the legislative power over “external affairs” is limited to the execution of treaties or conventions; and … the Parliament may well be deemed competent to legislate for the carrying out of “recommendations” as well as the “draft international conventions” resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations.

This passage seems to endorse the use of s 51(xxix) to implement the terms of draft treaties and international recommendations, though the use of the word “may” is ambiguous. The passage was quoted without critique by the ILO majority. It is remarkable, however, if the majority endorsed a broad extension of legislative power under s 51(xxix) without analysis beyond a cursory reference to a statement by two High Court Justices in 1936. The judgment stands as authority for the Commonwealth’s power, under s 51(xxix), to implement at least some international Declarations and Recommendations, as

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s 170BC(3) of the Industrial Relations Act 1988 (Cth) was held valid as it gave effect to ILO Recommendations 90 and 111. However, the majority stated (at 509): That provision can be supported under s 51(xxix) if, but only if, the terms of the Recommendations themselves can reasonably be regarded as appropriate and adapted to giving effect to the terms of the Conventions to which they relate.[emphasis added]

Hence, the Court seems to pull back from the proposition that ILO Recommendations can be implemented per se, by indicating that the terms of such Recommendations must themselves be proportionate to the terms of the treaties to which they relate. Power to enact such legislation could readily be found to be, at the least, incidental to the implementation of those associated treaties. If so, the power to implement ILO recommendations, and perhaps all non-​treaties, may be dependent upon their terms being proportionate to the requirements of actual treaties (though note that the Court did not specify that they had to be proportionate to treaty obligations). Indeed, the Court in the ILO Case went on (at 509) to indicate that they did not need to decide whether Recommendations could be independently implemented under s 51(xxix) in the absence of overriding treaties and treaty obligations. In Pape v FCT (2009) 238 CLR 1, Heydon J (at 164-​165) confirmed that the ILO Court had only ruled on the validity of legislation enacted pursuant to Recommendations which gave effect to associated treaty obligations, rather than free-​ standing Recommendations. In Alqudsi v Commonwealth (2015) 91 NSWLR 92, Leeming JA, with whom McCallum JA agreed, spent some time reconciling the inconsistent passages in the ILO case and came to the conclusion that the Commonwealth is not authorised under s 51(xxix) to implement the recommendations of international agencies, unless those instruments give effect to treaties.39 This view appears to be the preferable understanding of the scope of the power.

MATTERS OF INTERNATIONAL CONCERN [4.65] In Tasmanian Dam, all Justices agreed that the Commonwealth has power to implement legislation with regard to “matters of international concern”. However, the Justices differed greatly as to the meaning they gave to “matters of international concern”. In Tasmanian Dam, the majority endorsed the view that the Commonwealth could implement any treaty obligation, regardless of subject matter. The minority Justices adopted Stephen J’s view from Koowarta, and found that only treaties that related to matters of international concern could be implemented under s 51(xxix). They duly characterised the subject matter of the World Heritage Convention as one that was not of international concern. The majority agreed that the Commonwealth could implement s 51(xxix) laws regarding matters of “international concern”, but adopted a broader definition thereof. For example, the majority judges found that the existence

39

See Alqudsi at [148]-[167].

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of a treaty on a subject matter such as the World Heritage Convention was enough to establish that matter as one of international concern. The residual importance of the concept of “international concern” lay in its potential to provide authority for the Commonwealth to implement legislation with regard to matters which are not extraterritorial, which do not directly affect international relations, and which are not authorised by the power to implement treaties.40 In XYZ, Kirby, Callinan and Heydon JJ all commented on the idea of a power within s 51(xxix) regarding matters of international concern. Kirby J found that the concept of “international concern” as a touchstone of constitutionality was undeveloped. Callinan and Heydon JJ found that the doctrine had been sporadically and inconsistently applied in individual decisions across a range of cases. They concluded (at 612): There are immense difficulties facing any court wishing to recognise, as a matter of decision, the international concern doctrine. The arguments advanced in this case have not resolved those difficulties. In these circumstances it would not be right to uphold the legislation impugned in this case by reliance on the doctrine.

In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, Heydon J again expressed scepticism over the existence of a separate “international concern” component to s 51(xxix). In Alqudsi v Commonwealth (2015) 91 NSWLR 92, Leeming JA, with whom McCallum JA agreed, reviewed High Court dicta on the matter and concluded (at 122): The absence of a principled basis for the doctrine, the weight of High Court authority against it … lead me to conclude, respectfully, that there is no separate aspect of the external affairs power based on “international concern”.

While a future High Court majority could revive “international concern”, it seems unlikely. Hence, it is submitted that there is presently no recognised federal legislative power within s 51(xxix) based simply on the notion of international concern.

CUSTOMARY INTERNATIONAL LAW [4.70]  Treaties are one primary source of international law obligations. The other primary source is known as “customary international law”. Customary international laws are binding international norms arising from the “general and consistent practice of states [state practice] followed by them from a sense of legal obligation [‘opinio juris’]”.41 All nations are bound by customary international law norms, unless a nation is classified as a “persistent objector”. Therefore, Australia is bound by most if not all norms of customary international law. Given that there is no authoritative “list” of customary law norms, there is clearly much room for debate about the content of customary international law. That debate is beyond the scope of this book. 40 See also P Hanks, F Gordon and G Hill, Constitutional Law in Australia (3rd ed, LexisNexis Butterworths, Chatswood, 2012), pp 496-​499. 41

Restatement (Third) of the Foreign Relations Law of the US § 102(2) (1987). See also A Cassese, International Law (2nd ed, OUP, Oxford, 2005), pp 156-​166. Discussion of the meaning of these terms is beyond the scope of this book.

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As with Australia’s treaty obligations, Australia’s obligations under customary law do not automatically become part of Australian law unless they are specifically incorporated by legislation. In Nulyarimma v Thompson (1999) 96 FCR 153, the claimants contended that certain acts by government Ministers, such as the implementation of policies which extinguished native title, constituted genocide. The Federal Court had to consider whether genocide, an international crime prohibited by customary international law, was a crime in Australia in the absence of specific legislation. In Nulyarimma, only Merkel J found that norms of customary international law automatically became part of Australian common law. The majority (Whitlam and Wilcox JJ) found that customary international criminal laws had to be incorporated by legislation. The majority focused only on international criminal law rather than customary international law per se.42 The Commonwealth should certainly be able to incorporate its international duties under customary international law into domestic law under s 51(xxix). Indeed, most if not all of those duties, such as the duty to refrain from perpetrating genocide as well as the duty to prohibit genocide, are found in treaties to which Australia is a party, and thus come within the “treaty implementation” power.43 In any case, customary international law norms, which must necessarily be accepted as legally binding by a large number of nations who generally conduct themselves in compliance with those norms, would clearly be classified as “matters of international concern”, even by the minority in Tasmanian Dam. For example, one of the reasons why Gibbs CJ (in the minority) found in Tasmanian Dam that “world heritage protection” was not a matter of international concern was because it was not, in his view, protected under customary international law.44 Furthermore, Stephen J in Koowarta indicated that the status of the prohibition on racial discrimination as an aspect of customary international law would have qualified it as a “matter of international concern” even in the absence of a treaty.45

CONCLUSION [4.75]  The Commonwealth has extensive power under s 51(xxix), especially with regard to the implementation of international treaties. As international treaties can potentially be about any subject matter, it is theoretically true that s 51(xxix) could be the vehicle through which an activist Commonwealth Parliament could effectively destroy the federal balance of powers. To date, federal governments, especially those from the conservative side of politics, have been hesitant to “abuse” their legislative power with regard to external affairs, by taking over areas of traditional State power. The greatest political controversy regarding treaty implementation has arisen when the federal government has sought to implement a treaty governing traditionally 42 See also A Mitchell, “Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson” (2000) 24 Melbourne University Law Review 15. The court also found that the claims of genocide were not made out. Genocide is now a specific crime in Australia: see International Criminal Court (Consequential Amendments) Act 2002 (Cth), Sch 1. 43

See Convention on the Prevention and Punishment of the Crime of Genocide, GA Res 260A (III) (1948).

44

See Commonwealth v Tasmania (1983) 158 CLR 1 at 102.

45

See Koowarta v Bjelke-​Petersen (1982) 153 CLR 168 at 220.

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“internal” affairs, such as environmental protection and protection of human rights. Indeed, it is these matters which have enlivened the major recent external affairs cases. As evinced by the World Heritage Convention cases, the federal government has passed a number of important environmental statutes. In contrast, the federal government has been reticent to incorporate international human rights treaties. Legislation has been enacted to deal with important issues such as discrimination on the basis of race, sex, and disability, the crime of torture, and, to a limited extent, privacy. However, broader human rights concerns, such as Australia’s obligations under the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, have not made their way into federal legislation. In particular, there is no comprehensive human rights legislation at the federal level, which would help Australia fulfil its international human rights obligations. It would also represent a great inroad into legislative areas of traditional State control, such as police powers and the regulation of prisons. In any case, the growth in federal power under s 51(xxix) is not due to a particularly centralist interpretation of that placitum, but rather due to a growth in the subject matters covered by treaties.46 Since the seminal Tasmanian Dam case, the acceleration of globalisation in all of its forms (with regard to, for example, trade, social concerns such as the environment and human rights, information technology) means that more matters are being internationalised, and concomitantly fewer matters are truly “internal” affairs. Just as s 51(xxix) has grown so as to potentially erode the power of the Australian States, globalisation and internationalisation have grown so as to erode the political power, and the legal power in international if not domestic law, of the Commonwealth and other national governments.

46 Stellios, n 18, pp 428-​429. See also Mason J in Koowarta at 229, at [4.35].

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Chapter 5

The Commonwealth Executive [5.10]

PERSONS WITHIN THE EXECUTIVE............................................................................................. 154 [5.15] The reserve powers............................................................................................................. 155 [5.20] SCOPE OF EXECUTIVE POWER...................................................................................................... 156 [5.25] Execution and maintenance of the laws of the Commonwealth.................................. 156 [5.30] Execution of the Constitution............................................................................................ 161 [5.35] Maintenance of the Constitution....................................................................................... 161 [5.40] Inherent executive power: The common law.................................................................. 162 [5.45] Prerogative power................................................................................................ 162 [5.50] Other common law executive powers.............................................................. 164 [5.55] The power to enter contracts and spend moneys........................................... 165 [5.60] The relationship between s 61 and common law executive powers............ 167 [5.63] No autonomous powers to detain..................................................................... 171 [5.65] The nationhood power....................................................................................................... 173 [5.70] Nationhood and expenditure............................................................................. 173 [5.75] Coercive nationhood power............................................................................... 181 [5.80] Commonwealth/​State co-​operation................................................................. 185 [5.85] Conclusion on nationhood power..................................................................... 186 [5.90] CROWN IMMUNITY.......................................................................................................................... 187 [5.95] PRIVATISATION AND EXECUTIVE POWER................................................................................ 190 [5.100] CONCLUSION..................................................................................................................................... 190

[5.05]  The function of the executive or administrative arm of government is to administer laws, that is to put them into practice and deal with the general minutiae of legal and policy administration. Chapter II of the Constitution deals with the executive arm of the Commonwealth government. The provisions therein do not present a clear picture of the function and content of executive power. Indeed, the picture painted of executive power by the words of the Constitution is very different to the way executive power is exercised in reality. Executive power is the branch of government power most governed by convention, rather than strict constitutional law.1 This means that the executive is the most amorphous and legally ill-​defined branch of government in terms of its functions and even its personnel. This is possibly disconcerting considering that the executive is the enforcement arm, “the sword”, of government.2 However, such vagueness is perhaps necessary to ensure the flexibility that the executive may need to cope with the administrative challenges posed by

1 See, on conventions, [1.25]. 2 For example, the executive branch includes the police and the army.

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unforeseen circumstances, such as the advent of new technologies, international developments and emergency situations.

PERSONS WITHIN THE EXECUTIVE [5.10]  The executive government at Commonwealth and State level is personified by “the Crown”.3 The Crown is a legal person, capable of seeking enforcement of its rights in Court and enjoying rights under common law and statute.4 The Crown is essentially an artificial person like a corporation, and acts through its personnel. Section 61 vests federal executive power, and states: The executive power of the Commonwealth is vested in the 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.

Section 61 expressly vests executive power in the Queen, and declares that her powers are exercisable by the Governor-​General as her delegate.5 This confirms Australia’s status as a constitutional monarchy. Executive government is therefore vested in the Crown, and is carried out by Crown servants, such as Ministers and employees in Ministerial departments. It has become unfashionable to refer to the executive governments of either the Commonwealth or the States by explicit reference to “the Crown”, given Australia’s independence from the United Kingdom. Rather, references are generally made to the respective “executive governments”.6 The ensuing provisions in Ch II state that certain powers are exercisable by the Governor-​General alone, while others are exercisable by the “Governor-​General in Council”, defined in s 63 as: “the Governor-​General acting with the advice of the Federal Executive Council”. The Federal Executive Council (FEC) is in turn defined in s 62 as persons “chosen and summoned by the Governor-​General”, who “hold office during his pleasure”. Section 64 authorises the creation of administrative departments supervised by “the Queen’s Ministers of State for the Commonwealth”. Ministers are members of the FEC, and “hold office during the pleasure of the Governor-​General”, so they can constitutionally be sacked by the Governor-​General. Section 64 also prescribes that no Minister may hold office for more than three months without becoming a member of the Commonwealth Parliament, ensuring a measure of individual “Ministerial responsibility”.7 The remaining provisions of Ch II deal with miscellaneous issues, such as the payment of Ministerial salaries,

3 The Crown in its various Australian guises is distinguished by referring to “The Crown in Right of the Commonwealth” and the “Crown in Right of the [relevant State]”. See D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), pp 735-​740. 4 Meagher et al, n 3. 5 Under s 2 of the Constitution, the Governor-​General is appointed by the Queen. By convention she acts on the advice of the Prime Minister. 6 G Winterton, “The Relationship between Commonwealth Legislative and Executive Power” (2004) 25 Adelaide Law Review 21 at 34. 7 See [1.40] on the notion of individual Ministerial responsibility.

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and the confirmation of the Governor-​General as the Commander-​in-​Chief of the Commonwealth armed forces. It is plain from the above commentary that Ch II vests enormous legal power in the Governor-​ General, and identifies that person as the head of the Commonwealth executive acting as the Queen’s surrogate. Important executive officers such as the Prime Minister and the Cabinet are absent from its text. This is, of course, a far cry from the reality of the way Commonwealth executive power is truly exercised. For example, the principle of responsible government requires that the Governor-​ General acts only on the advice of the Prime Minister and Cabinet (see [1.40]). Therefore, executive power is truly exercised at the behest of the government of the day, rather than according to the whims of the unelected Governor-​General. The Prime Minister and Cabinet are themselves creatures of convention. The Cabinet is a modern-​day reduced version of the FEC. By convention, the FEC contains only present government Ministers. The Cabinet, since the 1950s, is an inner core of Ministers, separate from the outer Ministry. The size and portfolios within the Cabinet vary according to the arrangements of the government of the day. Thus, the legal picture of Commonwealth executive power in Ch II prescribes the following executive personnel: the Governor-​General, the FEC, the Ministers, Ministerial departments and the armed forces. This picture is misleading and incomplete. The conventional or “real” players are the Prime Minister, the Cabinet, the outer Ministry, Ministerial departments, the armed forces, statutory bodies and commissions, administrative tribunals and miscellaneous government workers such as police officers, postal workers, quarantine and customs officials. The Governor-​General is the official head of State but generally has only formal and ceremonial duties, and rarely acts independently of the Prime Minister and Cabinet.

The reserve powers [5.15]  Certain powers may, by convention, be exercised by the Governor-​General acting alone, without (or indeed against) the advice of the Prime Minister and Cabinet. These are known as the “reserve powers”. However, these powers are not codified so their identification and application is controversial. Three powers are generally identified as reserve powers: appointment of a Prime Minister, refusal to dissolve Parliament and dismissal of a Prime Minister. The first power may be exercised to commission the leader of the party who has won the confidence of the lower house as Prime Minister, whether after a general election or between elections. The second power may be exercised when an incumbent Prime Minister advises the Governor-​General to dissolve Parliament after a vote of no confidence, but the leader of another party has in fact gained the confidence of the lower house (see also [1.40]). It is also possible that a Governor-​General may have reserve power to refuse to call a double dissolution under s 57 on the grounds that the prerequisites for a double dissolution have not been satisfied.8

8 See Report of the Republic Advisory Committee, An Australian Republic: The Options (AGPS, Canberra, 1993), p 92. See also [1.105] on s 57.

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The final reserve power, the power to dismiss a Prime Minister and therefore a government, is the most contentious. A Prime Minister can certainly be dismissed after he or she has lost a vote of no confidence in the lower house and refuses to resign or call an election. He or she can also be dismissed if the government has persistently engaged in a fundamental breach of the Constitution, despite a court judgment and/​or calls by the Governor-​General to desist.9 The final instance, where a Governor-​General may be able to dismiss a Prime Minister, occurs when the latter cannot guarantee supply; he or she cannot guarantee that the Parliament will pass the budget for the ordinary annual services of government. The Governor-​General is certainly entitled to sack the Prime Minister if that person cannot guarantee passage of supply through the lower house, as this effectively amounts to a vote of no confidence by that house. However, as the budget must be passed by both houses, it is possible for supply to be thwarted by a hostile Senate. The indefinite deferral of a Senate vote on the budget in 1975 prompted Governor-​General John Kerr to sack the Whitlam government. Commentators remain split over whether the Governor-​General broke convention, or legitimately exercised a reserve power.10

SCOPE OF EXECUTIVE POWER [5.20]  Section 61 outlines the following types of executive power: execution and maintenance of the Constitution, and execution and maintenance of the laws of the Commonwealth.

Execution and maintenance of the laws of the Commonwealth [5.25]  The executive is charged under s 61 with the administration and implementation “of the laws of the Commonwealth”, namely the statutes enacted by the Commonwealth Parliament. For example, the Department of Immigration and Citizenship Affairs and the Federal Police will generally be charged with the implementation and application of, respectively, immigration legislation and Commonwealth criminal laws. The legislature often authorises the exercise of considerable power by the executive with regard to the implementation of legislation. Indeed, the executive is often delegated power to enact binding subordinate legislation, often called “rules”, “regulations” or “delegated legislation”. Thus, much of the power exercised by the executive is essentially legislative power that has been delegated by the Parliament. There is therefore no clear separation of powers between the legislature and the executive in Australia (see also [1.50]). The true issue with regard to the demarcation of executive and legislative power concerns the extent to which legislative power can be conferred upon the executive.

9 The Lang government in New South Wales was dismissed by the Governor on the grounds of illegality in 1932. The weight of opinion holds that this dismissal was premature and improper. See, for example, G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), pp 438-​439. 10 See generally, P Kelly, November 1975: The Inside Story of Australia’s Greatest Political Crisis (Allen & Unwin, Crows Nest, 1995). See also [1.45].

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In Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73, the validity of s 3 of the Transport Workers Act 1928 (Cth) was challenged. Section 3 authorised the Governor-​General to make regulations, which, “notwithstanding anything in any other Act …, shall have the force of law”, with regard to “the employment of transport workers”. Section 3 was a particularly broad grant of legislative power for a number of reasons. First, there were no discretionary guidelines imposed on the Governor-​General, indicating that the executive had unfettered discretion to make any law with regard to transport workers’ employment. Second, the Act itself did not set up a legal regime with respect to transport workers; its sole effect was to authorise the making of the regulations.11 Third, the delegation expressly authorised the overriding of prior Acts of Parliament. It was therefore apparent that legislative power with regard to the important and highly politicised topic of transport workers’ employment was wholly delegated to the executive under s 3.12 Section 3 was duly challenged in Dignan on grounds mainly related to its sheer breadth. This challenge was unanimously rejected. Evatt J explained (at 114): In dealing with the doctrine of “separation” of legislative and executive powers, it must be remembered that, underlying the Commonwealth frame of government, there is the notion of the British system of an Executive which is responsible to Parliament. That system is not in operation under the United States Constitution. Nor, indeed, had it been fully developed in England itself at the time when Montesquieu first elaborated the doctrine or theory of separation of governmental powers. But, prior to the establishment of the Commonwealth of Australia in 1901, responsible government had become one of the central characteristics of our polity. Over and over again, its existence in the constitutional scheme of the Commonwealth has been recognised by this Court. This close relationship between the legislative and executive agencies of the Commonwealth must be kept in mind in examining the contention that it is the Legislature of the Commonwealth, and it alone, which may lawfully exercise legislative power.

Evatt J continued (at 117-​118): It is very difficult to maintain the view that the Commonwealth Parliament has no power, in the exercise of its legislative power, to vest executive or other authorities with some power to pass regulations, statutory rules, and by-​laws which, when passed, shall have full force and effect. Unless the legislative power of the Parliament extends this far, effective government would be impossible. In truth the full theory of “Separation of Powers” cannot apply under our Constitution. Take the case of an enactment of the Commonwealth Parliament which gives to a subordinate authority other than the Executive, a power to make by-​ laws. To such an instance the theory of a hard and fast division and sub-​division of powers between and among the three authorities of government cannot apply without absurd results. It is clear that the regulation-​making power conferred in such a case upon the subordinate authority is not judicial power. If it is a “power” of the Commonwealth at all, it must, according to the theory, be either legislative or executive power. But, if the former, the statute granting power would be invalid because the Legislature itself was not exercising the power; and if the latter, the statute would be bad because an authority other than the Executive Government of the

11 See Williams, Brennan and Lynch, n 9, p 485. 12 For a lively account of the circumstances surrounding the Dignan case, see L Zines, “Social Conflict and Constitutional Interpretation” (1996) 22 Monash Law Review 195 at 199-​203.

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Commonwealth was vested with executive power in defiance of s 61 of the Constitution. It is no longer disputed that, if Parliament passes a law within its powers, it may, as part of its legislation, endow a subordinate body, not necessarily the Executive Government, with power to make regulations for the carrying out of the scheme described in the statute. Does the Constitution impliedly prohibit Parliament from enlarging the extent of the powers to be conferred on subordinate authorities? In my opinion every grant by the Commonwealth Parliament of authority to make rules and regulations, whether the grantee is the Executive Government or some other authority, is itself a grant of legislative power. The true nature and quality of the legislative power of the Commonwealth Parliament involves, as part of its content, power to confer law-​making powers upon authorities other than Parliament itself. If such power to issue binding commands may lawfully be granted by Parliament to the Executive or other agencies, an increase in the extent of such power cannot of itself invalidate the grant. It is true that the extent of the power granted will often be a very material circumstance in the examination of the validity of the legislation conferring the grant. But this is for a reason quite different and distinct from the absolute restriction upon parliamentary action which is supposed to result from the theory of separation of powers. The following matters would appear to be material in examining the question of the validity of an Act of the Parliament of the Commonwealth Parliament which purports to give power to the Executive or some other agency to make regulations or by-​laws:

1. The fact that the grant of power is made to the Executive Government rather than to an authority which is not responsible to Parliament, may be a circumstance which assists the validity of the legislation. The further removed the law-​making authority is from continuous contact with Parliament, the less likely is it that the law will be a law with respect to any of the subject matters enumerated in ss 51 and 52 of the Constitution.



2. The scope and extent of the power of regulation-​making conferred will, of course, be very important circumstances. The greater the extent of law-​making power conferred, the less likely is it that the enactment will be a law with respect to any subject matter assigned to the Commonwealth Parliament. The fact that the regulations made by the subordinate authority are themselves laws with respect to a subject matter enumerated in s 51 and 52, does not conclude the question whether the statute or enactment of the Commonwealth Parliament conferring power is valid. A regulation will not bind as a Commonwealth law unless both it and the statute conferring power to regulate are laws with respect to a subject matter enumerated in s 51 or 52. As a rule, no doubt, the regulation will answer the required description, if the statute conferring power to regulate is valid, and the regulation is not inconsistent with such statute. On final analysis therefore, the Parliament of the Commonwealth is not competent to “abdicate” its powers of legislation. This is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or by-​laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law-​making authority to another body would be bad merely because it would fail to pass the test last mentioned.

Under s 3, the executive could indeed enact legislation which impliedly or expressly altered prior Acts of Parliament. Evatt J stated (at 125):

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Regulations validly made by a Commonwealth authority other than Parliament itself, acquire the character of laws of the Commonwealth. Whether they supplant any previous Commonwealth law, depends upon the circumstances of the particular case. But if the express will of the Commonwealth Parliament is that the regulations shall prevail over statutes passed by Parliament itself, then prevail they do. Section 3 clearly expresses such an intention on the part of Parliament. It follows that if regulations which are otherwise valid, operate so as to override Commonwealth statutes, they may also override awards or orders which themselves take their force and sanction from a Commonwealth statute.

Indeed, the Commonwealth Parliament can in fact delegate power to the executive to amend or override the Act in which that delegation is contained. Such a delegation is known as a “Henry VIII” clause.13 In Dignan, Evatt J stated that Parliament could delegate legislative power, but it could not abdicate such power. It must always retain the ability to divest the executive of its legislative power in all delegated areas (see Dixon J at 102 and Evatt J at 121). He also stated that a delegation could fail for reason of its breadth. An overly broad delegation may well fall outside the legislative power of the Commonwealth, as it will be incapable of being “characterised” as a law “with respect to” a Commonwealth head of power (see also Chapter 2). The Parliament obviously cannot delegate power that it does not have (see Dixon J at 101 and Evatt J at 119-​120). Evatt J gave an example (at 119-​120): The matter may be illustrated by an example. Assume that the Commonwealth Parliament passes an enactment to the following effect: “The Executive Government may make regulations having the force of law upon the subject of trade and commerce with other countries or among the States.” Such a law would confer part of the legislative power of the Commonwealth upon the Executive Government, and those who adhere to the strict doctrine of separation of powers, would contend that the law was ultra vires because of the implied prohibition contained in ss 1, 61 and 71 of the Constitution. For the reasons mentioned such a view cannot be accepted. At the same time, I think that in ordinary circumstances a law in the terms described would be held to be beyond the competence of the Commonwealth Parliament. The nature of the legislative power of the Commonwealth authority is plenary, but it must be possible to predicate of every law passed by the Parliament that it is a law with respect to one or other of the specific subject matters mentioned in ss 51 and 52 of the Constitution. The only ground upon which the validity of such a law as I have stated could be affirmed, is that it is a law with respect to trade and commerce with other countries or among the States. But it is, in substance and operation, not such a law, but a law with respect to the legislative power to deal with the subject of trade and commerce with other countries or among the States. Thus, s 51(1) of the Constitution operates as a grant of power to the Commonwealth Parliament to regulate the subject of inter-​State trade and commerce, but the grant itself would not be truly described as being a law with respect to inter-​State trade and commerce.

Outside these limits, Parliament has extensive power to delegate legislative power to the executive. The executive is frequently conferred broad discretionary powers

13 See G Moens and J Trone, “The Validity of Henry VIII Clauses in Australian Federal Legislation” (2012) 24 Giornale di Storia Costituzionale 133 at 134-​135. See also Capital Duplicators Pty Ltd v ACT (No 1) (1992) 177 CLR 248 at 265 per Mason CJ, Dawson and McHugh JJ.

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under legislation. Indeed, the High Court has never ruled legislation invalid “for contravening the separation between legislative and executive power”.14 For example, in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, s 356 of the Workplace Relations Act 1996, as amended, provided that “prohibited content” in the context of workplace agreements between employers and employees would be specified in regulations. Section 356 effectively delegated to the executive the power to decide what would and what would not be allowed in workplace agreements. The plaintiffs in Work Choices claimed that this delegation of power was too broad, and did not in fact amount to a “law”, as there were no constraints on the executive in deciding upon the scope of “prohibited content”. The majority agreed (at 175) that “the technique employed in s 356 [was] an undesirable one which ought to be discouraged”. Nevertheless, the delegation was valid. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ stated (at 181): The new Act has laid down the main outlines of policy in relation to workplace agreements but has indicated an intention of leaving it to the Executive to work out that policy in relation to what workplace agreements may not contain by specific regulation. Section 356 thus has a wide ambit. Its ambit must be construed conformably with the scope and purposes of the new Act as a whole, and with the provisions of Pt 8 in relation to workplace agreements in particular. The extent of the power is marked out by inquiring whether any particular regulation about the prohibited content of workplace agreements can be said to have a rational connection with the regime established by the new Act for workplace agreements. It follows that although the ambit of the regulation-​making power so stated is imprecise, with the result that assessing whether particular regulations are ultra vires may not be easy, s 356, read with s 846(1), is a “law”.

In contrast, Kirby J in the minority found the regulation-​making power to be opaque and unconstitutional. In a rare (and exasperated) judicial attack on the breadth of parliamentary delegations, his Honour stated (at 197-​198): Under the Constitution, it is the duty of this Court to uphold the law-​ making and supervisory powers of the Parliament. We should not sanction still further erosion of those powers and their effective transfer to the Executive Government … There comes a point when a regulation-​making power becomes so vague and open-​ended that the law which establishes it ceases to be a law with respect to a subject of federal law-​making power, becoming instead a bare federal attempt to control and expel State laws. When that line is crossed, this Court has a duty to say so. Until this Court exhibits its disapproval in a judicial fashion, by invalidating such provisions, the lesson of history is that executive governments will present such provisions in increasing number to distracted or inattentive legislators. The legislators will be unlikely to notice them in the huge mass of legislative materials, such as those presented in the present case, and contest them. They will overlook the affront to proper parliamentary supervision, particularly in the context of regulation-​making provisions that are typically found at the end of bills and ordinarily attract little parliamentary attention because they are assumed to be in the standard form. The relationship between the Parliament’s function of lawmaking and the legitimate delegation to the Executive Government of promulgating regulations to carry a law into

14 Winterton, n 6, p 38.

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effect, is a point of great constitutional significance. … The plaintiffs’ challenge to the constitutional acceptability of the mode of delegation adopted in the present legislation should be upheld both to defend the proper constitutional role of the Federal Parliament and to discourage future similar measures. The impugned provisions border on an endeavour to enact an abdication of the Parliament’s responsibilities. This Court should say so and forbid it.

These limbs of executive power, that is regarding execution and maintenance of the laws of the Commonwealth, are obviously subject to control by the legislature, which can alter or remove the executive’s delegated power altogether. Indeed, each House of the Commonwealth Parliament is entitled to “disallow” delegated legislation under s 48 of the Acts Interpretation Act 1901 (Cth). These days the courts, through the process of judicial review of administrative action, provide a substantial fetter on the executive’s delegated powers. For example, in Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365, the Court permitted the delegation of vast discretionary power to the Federal Commissioner of Taxation. Most Justices were expressly influenced in their decisions by the ability of the courts to import some limits on the Commissioner’s discretion.15

Execution of the Constitution [5.30]  The Constitution confers specific miscellaneous powers upon the executive, apart from the broad grant of power in s 61. For example, s 67 vests power to appoint civil servants. Section 72 vests power to appoint High Court and federal court judges. Section 86 vests the power to collect and control duties of customs and excise within the Commonwealth executive. Under s 64 of the Constitution, the executive has power to administer government departments, and to spend money towards that end on the ordinary activities of government (see [5.55]). As such powers are specifically conferred by the Constitution, they presumably cannot be removed or amended by legislation without constitutional amendment by referendum.

Maintenance of the Constitution [5.35]  This limb of executive power appears to confer specific power upon the Commonwealth executive to take measures to protect the Constitution or rather, the Australian constitutional system of government.16 Gummow, Crennan and Bell JJ recently described this limb of s 61 as conveying “the idea of the protection of the body politic or nation of Australia”.17 Such measures include the power to defend the nation against external and internal threats. For example, the Australian Security Intelligence Organisation (ASIO) was initially established by the Chifley government without statutory authority, though it now operates on a statutory basis.18 Australia’s

15 Meagher et al, n 3, p 73. 16

G Winterton, Parliament, The Executive, and the Governor-​ General (Melbourne University Press, Melbourne, 1983), p 32. See, for example, Communist Party case (1951) 83 CLR 1 at 151, 211-​212, 232, 255.

17

Pape v FCT (2009) 238 CLR 1 at 83.

18 H P Lee, P J Hanks and V Morabito, In the Name of National Security (Law Book Company, North Ryde, 1995), p 37. ASIO is now governed by the Australian Security Intelligence Organisation Act 1979 (Cth). ASIO was first put on a statutory basis in 1956.

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other main intelligence services, the Australian Security Intelligence Services (ASIS) and the Defence Signals Directorate (DSD) were not brought under statutory control until 2001.19 Notably, these powers regarding maintenance of the Constitution can be exercised without prior legislative authority; the executive can implement such powers autonomously. This limb of executive power thus potentially authorises extremely oppressive exercises of power by the enforcement arm of government without the authority of, or guidance from, the democratic arm of government, the legislature. World history is littered with instances of executive governments abusing such “national security” powers to protect themselves, rather than “the constitutional system of government” per se.20 Such sentiments may seem alarmist in the Australian context. However, note that the Governor-​General reportedly put troops on standby on 11 November 1975 in anticipation of civil strife in the wake of his summary sacking of the democratically elected Whitlam government.21 It is not unusual for a government to possess such non-​ statutory powers. The Commonwealth executive clearly possesses inherent common law powers regarding the protection of national security. It is uncertain whether the powers conferred by this limb of s 61 are entirely encompassed within common law inherent power. We turn now to discuss that type of executive power, before discussing its relationship with s 61.

Inherent executive power: The common law [5.40]  At common law, the Commonwealth and State executives have certain inherent executive powers that may be exercised without legislative authority. These powers are the prerogative powers and other common law non-​statutory powers. Prerogative power [5.45]  The descriptions of executive power given in s 61 are not exhaustive.22 Implicit in the grant of “executive power” in the opening phrase of s 61 is the vesting of prerogative power within the Commonwealth executive. Prerogative power is that “residue of arbitrary authority which at any given time is legally left in the hands

19

See Intelligence Services Act 2001 (Cth).

20 See Dixon J in the Communist Party case at 187. 21 M Head, “Olympic Security” (June 2000) 25 Alternative Law Journal 131 at 132. In September 2000, the Commonwealth Parliament enacted the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth), which authorised the use by the Australian military of a wide range of powers at the behest of the executive in response to any threat of terrorism and civil disobedience at the Sydney Olympic Games. The relevant heads of power for the Act were s 51(vi) (defence power) as well as ss 51(xxxix) and 61. Civil libertarians decried the threat to civil rights posed by the Act. See, for example, M Gorton, “Rights Trampled in an Olympic Dash”, The Sunday Age, 27 August 2000. However, it must be noted that such military power could possibly be authorised by the executive acting without legislative authority. 22

See Barton v Commonwealth (1974) 131 CLR 477.

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of the Crown”.23 Prerogative power has also been described as executive power stemming from the common law, rather than from statute.24 H V Evatt has described the Crown prerogatives as being of three types.25 “Executive prerogatives” are unique powers to perform various acts, such as the power to declare war, make peace, execute treaties, coin money, pardon offenders, conduct inquiries under Royal Commissions and request extraditions. “Prerogative immunities and preferences” are special rights which vest only in the Crown, as opposed to other persons. For example, the executive has a prerogative priority with regard to debts. At common law, a bankrupt must wholly discharge her or his debt to the Crown before paying off other creditors. “Proprietary prerogatives” refer to the Crown’s special rights of ownership such as its entitlement to royal fish, royal metals and the seabed. The Australian executive governments have inherited most of those prerogatives which vest in the United Kingdom Crown. However, certain prerogatives, which are simply not relevant in Australia, have not crossed the ocean, such as the Queen’s prerogatives with regard to the Church of England.26 In the early days of federation, the High Court believed that certain prerogatives which characterised an independent nation had not vested in the Commonwealth government, such as the power to declare war or make peace.27 This view changed as Australia progressed to independent statehood and it became clear that such prerogatives could be exercised on behalf of Australia independently of British interests.28 In Australia, the prerogative powers are split between the Commonwealth and State Crowns, according to whichever body is the more appropriate vessel for a particular prerogative. For example, the Commonwealth Crown, as the national government with international standing, is vested with treaty-​ making prerogatives, and the powers to declare war and peace. The State Crowns have prerogatives relevant to their respective jurisdictions such as the power to pardon persons convicted of State offences, as well as ownership of royal metals.29 The federal division of legislative powers provides the foundation for deciding whether a particular prerogative inheres in the Commonwealth or the States.30 Prerogative powers may be exercised without statutory authority. However, Parliament may limit or even extinguish prerogative power by enacting a relevant

23 L Rutherford and S Bone, Osborn’s Concise Law Dictionary (8th ed, Sweet & Maxwell, London, 1993), p 257. 24

Barton v Commonwealth (1974) 131 CLR 477 at 498 per Mason J.

25 H V Evatt, The Royal Prerogative (Law Book Company, North Ryde, reprinted 1987), p 30. 26 B Selway, “Executive” in The Laws of Australia (LBC Online edition, accessed 9 August 2009) 19.3 Chapter 3, Part C, para 45. 27 See, for example, Commonwealth v Colonial Combing Spinning and Weaving Co Ltd (1922) 31 CLR 421. 28

J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), pp  371-​372.

29 See, on royal metals, Cadia Holdings Pty Ltd v NSW (2010) 242 CLR 195. 30 See also [5.85].

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statute.31 Statutes which cover the same area as prerogative powers are not, however, presumed to abrogate prerogative power in the absence of necessary implication or express words.32 Judicial review of the prerogative was once very narrow; the judiciary would only review the existence of a prerogative, rather than the manner of its exercise.33 However, the judiciary now recognises that the actual exercise of prerogative powers may be subjected to judicial review.34 Certain prerogatives are held to be non-​justiciable due to their “political” nature, rather than their classification as a prerogative power. Such non-​justiciable prerogatives include declarations of war, the ratification of treaties and the prerogative of mercy.35 Other common law executive powers [5.50]  Blackstone, and Zines, have drawn a distinction between the Crown’s exclusive prerogative powers, and the personal rights enjoyed by the Crown in common with others, excluding the latter from the ambit of “the prerogative”.36 These powers include the powers to form corporations, to employ and dismiss persons and to make payments.37 An extreme application of this principle arose in Malone v Metropolitan Police Commissioner [1979] Ch 344, where Megarry VC found that the placement of telephone taps by the police, without statutory authorisation, was permitted as a private person could, at the time, also eavesdrop. Megarry VC failed to recognise the inherent differences in the consequences that may arise for a person who is “bugged” by the police, such as the revelation of material that might subject the person to prosecution, and a person whose conversation is overheard by a private individual. Furthermore, at the time few private individuals would have had the resources to arrange a phone tap. Winterton has suggested that courts should recognise these powers for executive bodies only in situations where the actions of those bodies are truly comparable to private actions.38 However, it is uncertain the criteria by which courts could decide when a government is acting like a government, and when it is acting like a natural

31

See Attorney-​General (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161. See however Stellios, n 28, pp 368-​369 who queries whether the extinguishment, as opposed to the circumscription, of certain prerogative powers would be permissible.

32

See Attorney-​General v De Keyser’s Royal Hotel Ltd [1920] AC 508 at 576; Barton v Commonwealth (1974) 131 CLR 477 per Menzies and McTiernan at 491, and Mason J at 501. See also Oates v Attorney-​General (2003) 214 CLR 496, and Ruddock v Vadarlis (2001) 110 FCR 491.

33 F Wheeler, “Judicial Review of Prerogative Power in Australia: Issues and Prospects” (1992) 14 Sydney Law Review 432 at 435. 34

See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; Minister for Arts, Heritage and the Environment v Peko-​Wallsend (1987) 15 FCR 274; R (Bancoult) v Foreign Secretary (no 2) [2008] 3 WLR 955.

35 See V Waye, “Justiciability”, in M Harris and V Waye (eds), Australian Studies in Law: Administrative Law (Federation Press, Annandale, 1991), p 47. 36 Stellios, n 28, pp 374-​375. See also Williams v Commonwealth (2012) 248 CLR 156 per French CJ at 185, per Gummow and Bell JJ at 227-​228. 37 See generally B Harris, “The ‘Third Source’ of Authority for Government Action” (1992) 109 Law Quarterly Review 626. 38 See Winterton, n 16, pp 121-​122.

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person. One suggestion has been that such personal prerogative powers be denied in situations that impact directly on human rights.39 The power to enter contracts and spend moneys [5.55]  The scope of the Commonwealth executive’s autonomous powers to enter into contracts and to spend money were at issue in Williams v Commonwealth (2012) 248 CLR 156, which concerned a challenge to the Commonwealth’s funding of school chaplains in public schools. That funding was not authorised by any statute, so it would have to be grounded in an autonomous executive power to spend if it was to be valid. The Commonwealth tried to argue that it had an unlimited power to autonomously enter into contracts and pay moneys pursuant to them, just like other legal persons. It maintained that such an autonomous power was justified on the basis that expenditure did not affect rights and duties, unlike coercive regulatory power. That broad contention was rejected by the High Court. Indeed, the power of expenditure via contract “is now a powerful tool of public administration”.40 There are of course relevant differences between the Commonwealth and a private person. In particular, Commonwealth contracts concerned public moneys41 and fettered “future executive action in the public interest”. Furthermore, such a power would undermine the role of the Senate, as the only legislative control would be that of appropriation, where the Senate has no powers of amendment, though it does have powers of rejection (see [1.45]).42 Crennan J added (at 353) that such an autonomous power would deprive people of access to relief under s 109 of the Constitution: [I]‌ f the Commonwealth’s capacities to contract and to spend generally permitted the Commonwealth Executive to intrude into areas of responsibility within the legislative and executive competence of the States in the absence of statutory authority other than appropriation Acts, access to s 109 of the Constitution may be impeded. For example, in the specific circumstances of the [National School Chaplaincy Program (“NCSP”)], such a wide view of the scope of s 61 could hypothetically lead to the result that citizens caught by any inconsistency between a State legislature’s regulation of chaplaincy services and the Commonwealth Executive’s acts in respect of the NSCP would be unable to avail themselves of the constitutional protection in s 109 against inconsistent legislation.

Kiefel J explained a key general concern with the notion of unbounded autonomous spending power (at 370): Considerations as to the supremacy of Parliament which underlie the doctrine of responsible government may provide a basis for limiting executive power to certain of the legislative heads of power. As was pointed out by the plaintiff and the Solicitor-​General of Queensland 39 M Cohn, “Medieval Chains, Invisible Inks: On Non-​Statutory Powers of the Executive” (2005) 25 Oxford Journal of Legal Studies 97 at 120. 40 French CJ at 193 (quoting Mark Seddon, Government Contracts: Federal, State and Local (4th ed, Federation Press, Annandale, 2009), p 65) and 213. 41 Gummow and Bell JJ at 236-​237, Hayne J at 258-​259, Crennan J at 352 and Kiefel J at 368-​369. 42 French CJ at 205.

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in argument, if the Executive’s power to spend was unlimited, s 51(xxxix), when used to support the executive power, might operate to extend that power beyond those matters which may, expressly or impliedly, be otherwise the subject of legislative power. In that event the relationship between the Executive and the Parliament and the dominant position of the Parliament may be altered. Such an extension of power may enable the Commonwealth to encroach upon areas of State operation and thereby affect the distribution of powers as between the Commonwealth and the States.

The High Court majority imposed a similar limit on the Commonwealth’s power to conclude contracts: the Commonwealth was not able to conclude a contract for any purpose. In any case, the utility of such a power is negligible if it is not accompanied by a concomitant power to pay moneys pursuant to a contract.43 The Court’s rejection of the broad argument probably applies to the other personal powers of the executive, such as its power to establish corporations. That is, the executive probably cannot set up a corporation for any purpose, but only for a purpose bounded by federal legislative powers. A narrower argument in Williams, confining the executive’s autonomous powers to spend to expenditure that could be authorised under a federal head of power, was also rejected by the majority (see [10.55]). For example, Gummow and Bell JJ explained (at 232-​233) that: such a proposition would undermine the basal assumption of legislative predominance inherited from the United Kingdom and so would distort the relationship between Ch I and Ch II of the Constitution. … [T]‌here remain considerations of representative as well as of responsible government in cases where an executive spending scheme has no legislative engagement for its creation or operation beyond the appropriation process.

Crennan J stated (at 358): If the fact that the Parliament could pass valid Commonwealth legislation were sufficient authorisation for any expenditure by the Commonwealth Executive, and, in this case, if the possibility of enabling legislation permitted the Commonwealth Executive to enter the Funding Agreement and make payments to [Scripture Union Queensland], the Commonwealth’s capacities to contract and to spend would operate, in practice, indistinguishably from the Commonwealth Executive’s exercise of a prerogative power. Such a view ignores the restrained approach to the prerogative …, and disregards the constitutional relationship between the Executive and Parliament affecting spending. For these reasons, the Commonwealth defendants’ narrower submission must also be rejected.

Hence, a majority rejected the existence of autonomous executive power to spend, even within the bounds of the federal Parliament’s heads of power. The same limit seemed to apply to the power to conclude contracts. Having said that, the power to enter into contracts might perhaps be exercised in advance of legislation, so long as moneys paid under such a contract are authorised by legislation. Williams was confirmed unanimously in Williams v Commonwealth (No 2) (2014) 252 CLR 416. Therefore, the federal executive generally lacks autonomous powers to enter into contracts or to spend moneys. It is not known whether this lack of autonomy from

43 See Kiefel J at 373-​374.

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the legislature afflicts its other mooted common law powers, such as that to set up a corporation. The federal executive may, however, have considerable autonomous powers to spend under its constitutional “nationhood power”, as discussed at [5.70]. Furthermore, it must be reiterated that it has considerable autonomous powers under s 64 of the Constitution (see [5.30]) to spend for the purposes of conducting the ordinary business of government departments.44 The definition of “ordinary government business” will change over time, and could generate lively debates in litigation. In Williams, it was held not to include the funding of school chaplaincy programs.45 The relationship between s 61 and common law executive powers [5.60]  It is uncertain whether s 61 might furnish the Commonwealth with more non-​ statutory powers than are recognised at common law. This issue is of most relevance, or perhaps concern, when considering the scope of inherent executive coercive powers. Coercive prerogative power has historically been recognised to exist in order to protect national security.46 For example, Brennan J noted in Davis v Commonwealth (1988) 166 CLR 79 at 110: “there is no doubt that the Executive Government of the Commonwealth has an executive power to protect the nation”. It is possible that s 61 augments these traditional powers. The relationship between prerogative powers and s 61 arose before the Federal Court in Ruddock v Vadarlis (2001) 110 FCR 491, when the constitutionality of some of the Howard government’s actions in the 2001 controversy surrounding the MV Tampa was tested. A Norwegian ship, the MV Tampa, rescued people from a sinking vessel in August 2001. That vessel had been on its way to Christmas Island, where its 433 occupants intended to seek asylum in Australia. At the time, the rescuees would have been entitled to the right to remain in Australia, albeit in a detention centre, while their asylum claims were processed under the Migration Act 1958 (Cth) if they had reached Christmas Island.47 The Australian government refused the Tampa permission to dock in Christmas Island, presumably to avoid this consequence. The MV Tampa, which was not equipped to carry over 400 passengers, eventually entered Australian territorial waters with the intention of docking in Christmas Island and unloading the rescuees, some of whom required medical attention. At that point the MV Tampa was intercepted and boarded by Australian SAS troops who provided the rescuees with water and medical attention; the vessel was not permitted to dock on Christmas Island. The rescuees were forcibly removed from the MV Tampa to the HMAS Manoora, and transported to Nauru and New Zealand.

44 See, for example, Williams v Commonwealth (2012) 248 CLR 156 per French CJ at 191, 211-​212 and 214-​ 215, per Gummow and Bell JJ at 232-​233. See also, regarding the parallel power of the New South Wales executive, NSW v Bardolph (1934) 52 CLR 455. 45 See Gummow and Bell JJ at 233-​234. See also Crennan J at 343 and 354-​355. 46

See Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121.

47 Such rights no longer vest in people who land unlawfully by boat on Christmas Island, or indeed anywhere in Australia.

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At the time of the SAS interception, a Melbourne solicitor, Eric Vadarlis, and the Victorian Council for Civil Liberties commenced proceedings in the Federal Court seeking the release of the asylum seekers onto Australian land pursuant to a writ of habeas corpus. At first instance, North J found that the rescuees were effectively detained by the Commonwealth executive without lawful authority, so he granted the writ.48 On appeal, a 2:1 majority of the Full Federal Court reversed the decision. It was clear that the actions of the SAS were not authorised by statute, so a key question was whether the executive had non-​statutory power to do what had been done. Beaumont J decided (at 521) that no habeas corpus action lay because none of the rescuees had any right to enter Australia. He did not, therefore, address issues regarding sources of executive power. French J, in the majority along with Beaumont J, did address the constitutional issues. He, stated (at 49): The executive power of the Commonwealth under s 61 cannot be treated as a species of the royal prerogative … While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chapters I, II and III of the Constitution.

Thus, French J seemed to infer that Commonwealth inherent executive powers extend beyond those traditionally recognised by the common law because they stemmed from s 61 rather than the common law. French J went on to find that the Commonwealth executive had relevant non-​statutory powers to act as it did towards the rescuees (at 52): In my opinion, the executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-​citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the Executive would, in the absence of statutory authority, have a power to expel non-​citizens other than as an incident of the power to exclude. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering. In my opinion, absent statutory authority, there is [an executive] power at least to prevent entry to Australia. It is not necessary, for present purposes, to consider its full extent. It may be that, like the power to make laws with respect to defence, it will vary according to circumstances. Absent statutory abrogation it would be sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result. Absent statutory authority, it would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave. The question for determination now is whether, if such power exists absent statute, it has been abrogated by the Migration Act.

French J (at 54) resolved that question in the negative. 48

See Victorian Council of Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452.

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The question is whether the Act operates to abrogate the executive power under s 61 to prevent aliens from entering into Australia. There are no express words to that effect. It is necessary then to look to whether by implication it has that effect. It is not necessary for this purpose either to determine the full extent of the executive power or the full effect of the Act upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-​citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-​citizens on it from landing upon Australian territory. In considering what is the implied intention of the Act and in particular the provisions referred to earlier, it is necessary to have regard not only to the general approach, supported by authority, to the question whether executive power is taken to be abrogated by statute, but also the importance to national sovereignty of the particular power in question. In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away. The term “intention” of course is a fiction. What must be asked is whether the Act operates in a way that is necessarily inconsistent with the subsistence of the executive power described. It is facultative. Its object is control of entry. Subject to certain specific provisions, such as those relating to the grant of protection visas, its object is not to confer rights upon non-​citizens seeking to enter Australia. There are of course process rights at various stages of the visa granting system including those arising under the provisions of Part 8 relating to judicial review but they do not operate in the circumstances to which the executive power posited for the purposes of this case applies. The steps taken in relation to the MV Tampa which had the purpose and effect of preventing the rescuees from entering the migration zone and arranging for their departure from Australian territorial waters were within the scope of executive power. The finding does not involve a judgment about any policy informing the exercise of that power. That is a matter which has been and continues to be debated in public and indeed international forums. Through that debate and the parliamentary process the Ministers involved can be held accountable for their actions. If Parliament is concerned about the existence of an executive power in this area, deriving from s 61 of the Constitution, it can legislate to exclude it by clear words. The task of the Court is to decide whether the power exists and whether what was done was within that power, not whether it was exercised wisely and well.

Black CJ dissented (at 12). He was sceptical over whether a relevant prerogative power existed: This survey [of case law and text writers] amply supports, in my view, the conclusion that it is, at best, doubtful that the asserted prerogative [to exclude aliens in times of peace] continues to exist at common law … The affirmative conclusion that the prerogative no longer exists may well be justified, but I do not find it necessary to express a concluded view on that matter.

Black CJ added: If it be accepted that the asserted executive power to exclude aliens in time of peace is at best doubtful at common law, the question arises whether s 61 of the Constitution provides some larger source of such a power. It would be a very strange circumstance if the at best doubtful and historically long-​unused power to exclude or expel should emerge in a strong modern form from s 61 of the Constitution by virtue of general conceptions of “the national

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interest”. This is all the more so when according to English constitutional theory new prerogative powers cannot be created: see generally … British Broadcasting Corporation v Jones [1965] Ch 32 in which Diplock LJ said (at 79): “[I]‌t is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative”.

Black CJ indicates that the existence or non-​existence of the power to exclude aliens in the prerogative is decisive of whether such a power exists within inherent executive power. For Black CJ, s 61 does not augment prerogative power. In this respect, Black CJ’s view is to be preferred to that of French J. It seems unlikely that the Imperial Parliament, in enacting s 61 of the Constitution, conferred greater inherent powers on the Commonwealth executive than it itself possessed.49 From a policy point of view, it seems desirable to rein in the inherent coercive powers of the executive: such power should be conferred upon the executive by the more democratic and accountable arm of government, the legislature, unless clearly recognised as an aspect of prerogative power.50 Finally, prerogative powers can clearly be curtailed or abolished by legislation. If certain coercive powers stem independently from s 61, it might be arguable that Parliament cannot abrogate powers conferred by the Constitution. It would be far from satisfactory if the executive possessed coercive powers regarding national security that could not be controlled by Parliament.51 Black CJ went on to decide (at 19) that any relevant prerogative power had been extinguished by the Migration Act 1958: This review of the Act shows that it provides for a very comprehensive regime relating to –​in the words of the long title –​“the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens.” By virtue of the Amendment Act that regime specifically extends to protection of Australia’s sea borders. The regime is comprehensive in its coverage of powers of apprehension and detention. No doubt gaps can be found in the scheme, but the existence of these does not detract from the comprehensive character of the statutory regime. The conclusion to be drawn is that the Parliament intended that in the field of exclusion, entry and expulsion of aliens the Act should operate to the exclusion of any executive power derived otherwise than from powers conferred by the Parliament. This conclusion is all the more readily drawn having regard to what I have concluded about the nature and the uncertainty of the prerogative or executive power asserted on behalf of the Commonwealth.

The High Court refused leave to appeal as, by the time the application for leave was heard, the rescuees were located in other countries.52 Therefore, the High Court never ruled upon the existence of relevant executive power in the case.53

49 L Zines, “The Inherent Executive Power of the Commonwealth”, unpublished paper produced for a Roundtable on Inherent Executive Power at the University of Melbourne, 15 July 2005 (paper on file with the authors), p 4. 50 Winterton, n 6, p 35. 51 However, Winterton finds it doubtful that the High Court would adopt such a view; see n 6, pp 39-​42. 52

See Vadarlis v MIMIA and Others, M/​93/​2001, 27 November 2001.

53 The executive acts related to the Tampa incident were retrospectively authorised by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) after the Federal Court appeal.

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No autonomous powers to detain [5.63]  The Commonwealth executive has no autonomous powers to detain people. In Chu Kheng Lim v Minister for Immigration (1992) 276 CLR 1, Brennan, Deane and Dawson JJ stated (at 19): Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.

This principle has been upheld in numerous cases. One issue which arose in Ruddock v Vadarlis was whether the rescuees were detained by the Commonwealth. Black CJ in dissent agreed with the lower court Judge that they were, as a matter of practicality, unable to realistically leave the ship. While the SAS would permit the ship to leave Australian territorial waters, that was not a realistic option, given the ship carried 433 people and was only permitted to carry 50, and there were no nearly countries which were likely to give permission to land. The coerced refusal to permit the ship to dock in Australia meant that there was no “reasonable or practical means of egress for the rescued people” (at 512). In contrast, French J found that the rescuees were not detained by the Commonwealth. As explained above, he found that the executive had exercised prerogative power in excluding the rescuee aliens from Australian soil, and thus preventing them from landing. However, the Commonwealth did not prevent them from going elsewhere in the world. “Their inability to go elsewhere derived from circumstances which did not come from any action on the part of the Commonwealth” (at 548). French J was essentially arguing that any such detention arose from circumstances beyond the Commonwealth’s control, such as the actions of the Tampa captain in failing to leave Australian territorial waters, even if such a departure might have endangered all on board. CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 concerned a challenge to certain actions by federal maritime officers. The plaintiff and others were Sri Lankans on an Indian-​flagged vessel which was presumed on reasonable grounds to be en route to Australia, where the passengers would seek asylum. The vessel was intercepted on the high seas by Australian maritime officers. The passengers were taken on board the Commonwealth vessel on 29 June 2014 and began sailing to India on 1 July 2014. The Commonwealth ship reached Indian territorial waters on 10 July 2014 and remained there until 22 July 2014, by which time it had become clear that India would not take the passengers, who had no lawful right to be in India. The Commonwealth vessel then took the passengers to the Australian territory of the Cocos (Keeling) Islands where they were taken into immigration detention on 27 July 2014. The legal action was a claim of the tort of false imprisonment, entailed in the alleged detention of the plaintiff by the Commonwealth on the high seas before reaching Cocos Islands. A key issue in the case was whether the impugned actions by the maritime officers were authorised by statute.54 If so, the prohibition on non-​ statutory executive detention would be irrelevant. 54 Some judges found that the passage to India was not authorised by statute, as the passengers had no right to enter India.

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The majority (French CJ, Crennan, Gageler and Keane JJ) found that the actions were validly authorised by s 72(4) of the Maritime Powers Act 2013 (Cth), thus dismissing the claim. Hayne and Bell JJ found, as a matter of statutory interpretation, that the passage to and from India was not authorised by s 72(4). Therefore, they had to address whether there was any relevant non-​statutory power which authorised the maritime officers’ actions. They followed the above principle from Chu Kheng Lim in finding that the actions were not so authorised. At 568: Chu Kheng Lim focused upon the exercise of [the power of detention] within Australia. This case concerns actions taken beyond Australia’s borders. But why should some different rule apply there, to provide an answer to a claim made in an Australian court which must be determined according to Australian law?

To adopt and adapt what was said in Chu Kheng Lim, why should an Australian court hold that an officer of the Commonwealth Executive who purports to authorise or enforce the detention in custody of an alien without judicial mandate can do so outside the territorial boundaries of Australia without any statutory authority?55 Hayne and Bell JJ duly found that the plaintiff had been unlawfully detained by the Commonwealth during the whole time that he was transported to and from India. They ordered that the case be remitted to the Federal Court. Kiefel J agreed, and cited Black CJ with approval from Ruddock v Vadarlis, indicating disagreement with the decision of French J from that case. She upheld the claim, but only awarded nominal damages, given the plaintiff would likely have been detained validly in Australian immigration detention for the period of time during which he was invalidly detained on board the ship. While Keane J joined the majority in finding that there was valid statutory authority for the Commonwealth’s actions on the high seas, he offered some observations on the scope of any relevant executive non-​statutory power. He quoted French J with approval from Ruddock v Vadarlis and found that the Commonwealth’s actions could be characterised as incidental to its non-​statutory power to exclude aliens. The various judgments from CPCF potentially throw into doubt the correctness of the decision of the Federal Court in Ruddock v Vadarlis. Plantiff M68/​2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 concerned a challenge to the constitutionality of the plaintiff’s detention in Nauru pursuant to an intergovernmental agreement between Australia and Nauru. The plaintiff was detained in a detention centre on Nauru which was funded by the Australian government and staffed by personnel from private entities acting pursuant to an Australian government contract. The majority found that that detention did not contravene the Constitution. Keane J found that the plaintiff was not detained by the Commonwealth, but by Nauru. Hence, Lim was not engaged on the facts (at 125), and no constitutional violation arose. 55 See also Kiefel J at 600.

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French CJ, Kiefel and Nettle JJ found (at 70) that “Lim has nothing to say about the validity of actions of the Commonwealth and its officers in participating in the detention of an alien by another State” [emphasis added]. As their Honours went on to find that that participation was authorised by s 198AHA of the Migration Act 1958 (Cth), they did not decide whether participation in another State’s detention scheme could be authorised as an exercise of non-​statutory executive power. Bell J essentially agreed with the joint judges. Gageler J found that the “procurement” of the plaintiff’s detention on Nauru by the Commonwealth “lay beyond the non-​statutory power of the Commonwealth” (at 108). As he found that the detention was retrospectively and validly authorised by statute, he found against the plaintiff. Gordon J dissented and found that the detention of the plaintiff on Nauru breached Australian law. As the Commonwealth had funded, caused, procured and effectively controlled the circumstances of the detention. She accordingly found that the “Commonwealth detained the Plaintiff on Nauru” (at 152 and 154). While she found that the detention came within s 198AHA, she found that s 198AHA breached Ch III of the Constitution, hence the detention was invalid (see [6.150]). The recent cases arising from Australia’s offshore detention and processing scheme for asylum seekers have enshrined the Lim bar on executive detention as a constitutional principle.

The nationhood power [5.65]  The Commonwealth executive is also vested with a “nationhood” power. Unfortunately, the scope of this power is unclear. The High Court has often coupled its discussion of the nationhood power with analysis of the Commonwealth’s power to spend money appropriated by the legislature (see [10.55]), though the nationhood power has also been raised in respect of regulatory, coercive laws. Nationhood and expenditure [5.70] In Victoria v Commonwealth and Hayden (AAP case) (1975) 134 CLR 338, the Appropriation Act (No 1) 1974-​75 (Cth), which authorised substantial expenditure on “the Australian Assistance Plan”, was at issue. The money was to be allocated to 35 Regional Councils for Social Development across Australia, which would in turn disburse the money to a number of State, federal, local government and voluntary agencies to spend on social and community welfare programs.56 The expenditure was to be administered within a complex executive, as opposed to statutory, scheme. One issue in AAP was whether the Commonwealth executive had the power to administer such a spending scheme. A majority of five (McTiernan, Murphy, Mason, Stephen and Jacobs JJ) to two (Barwick CJ and Gibbs J) found that the allocation of the money to the Regional Council was a valid appropriation under s 81 (see [10.50]). A different majority of four (McTiernan, Murphy, Stephen and Jacobs JJ) to three (Barwick, CJ, Gibbs and Mason JJ)

56

P Lane, A Digest of Australian Constitutional Cases (5th ed, Law Book Company, North Ryde, 1996), p 3.

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found that the planned expenditure, as well as the establishment of the scheme to administer that expenditure, would be a valid exercise of power (see [10.55]). Five judges linked their decisions regarding expenditure to the Commonwealth’s power to appropriate money, an approach that has since been rejected (in the case of Pape, discussed at [5.70]). The most enlightening judgments in regard to the power of the executive to spend appropriated money were those of Mason and Jacobs JJ. These two Justices separated the Commonwealth’s power to appropriate and allocate money under s 81 from its power to administer the expenditure of that allocated money. Therefore, they had to consider the true ambit of Commonwealth executive power to decide if the executive had the power to undertake comprehensive expenditure and administration in the social welfare arena. The distribution of executive power between the States and the Commonwealth is influenced by the division of federal and State legislative power. Mason J stated (at 397): [The content of Commonwealth executive power] does not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution, responsibilities which are ascertainable from the distribution of powers, more particularly the distribution of legislative powers, effected by the Constitution itself and the character and status of the Commonwealth as a national government. The provisions of s 61 taken in conjunction with the federal character of the Constitution and the distribution of powers between the Commonwealth and the States make any other conclusion unacceptable.

The legislative distribution of powers is not therefore the only factor which governs the respective allocation of federal and State executive power. In the above quote, Mason J refers to a further consideration: “the character and status of the Commonwealth as a national government”. He expanded upon this idea (at 397): in ascertaining the potential scope of the power there are several important considerations which need to be kept steadily in mind. First, the incidental power contained in s 51(xxxix) taken in conjunction with other powers, notably s 61 itself, adds a further dimension to what may be achieved by the Commonwealth in the exercise of other specific powers. So in Burns v Ransley (1949) 79 CLR 101 and The King v Sharkey (1949) 79 CLR 121, ss 24A, 24B and 24D of the Crimes Act 1914-​1946 (Cth) were held to be supported by the combination of ss 51(xxxix) and 61. Secondly, the Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity (Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-​188). So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion. But in my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation. [emphasis added]

Mason J was not the first High Court Justice to talk of a “nationhood power”. As he points out, this power had been alluded to in a number of early cases regarding national security laws to protect the Commonwealth polity.57 In Attorney-​General 57

The Communist Party case concerned laws designed to redress the national security danger of communism (see also [2.50] and [13.10]). The Burns and Sharkey cases upheld the validity of Commonwealth laws proscribing, respectively, subversion and sedition.

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(Vic) (Ex Rel Dale) v Commonwealth (Pharmaceutical Benefits case), Dixon J (at 269-​271) and Starke J (at 266) both talked of a “nationhood power” as a determinant of the boundaries of Commonwealth appropriation and spending power. In the AAP case itself, Barwick CJ (at 362) supported the notion that “some powers, legislative and executive, may come from the very formation of the Commonwealth as a polity and its emergence as an international state”. Jacobs J too supported the notion; his judgment is considered below. Mason J’s definition of the “nationhood power” (in the italicised extract) is the most succinct and useful definition of this elusive power. What matters are included within this nationhood power? Mason J stated (at 398): The functions appropriate and adapted to a national government will vary from time to time. As time unfolds, as circumstances and conditions alter, it will transpire that particular enterprises and activities will be undertaken if they are to be undertaken at all, by the national government.

Mason J confirmed that “internal security and protection of the State” are within this nationhood power. Others identified “nationhood” areas are exploration; the conduct of scientific and technical research; and inquiries, investigation and advocacy in relation to matters affecting public health.58 However, Mason J was careful to delineate limits to this power (at 398): However, the executive power to engage in activities appropriate to a national government, arising as it does from an implication drawn from the Constitution and having no counterpart, apart from the incidental power [s 51(xxxix)], in the expressed heads of legislative power, is limited in scope. It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to this aspect of the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth’s area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programmes standing outside the acknowledged heads of legislative power merely because these programmes can be conveniently formulated and administered by the national government.

Mason J duly went on to find, as did Barwick CJ, that the planned expenditure under the Australian Assistance Plan was outside the nationhood power, despite the convenience in having a co-​ordinated unified approach to social welfare issues.59 Barwick CJ stated (at 363-​364): It was then suggested that, because social welfare itself and, in particular, the co-​ordination of the efforts of a large number of diverse agencies was a national problem, there was power in the national Parliament to deal with it, by appropriation of funds as well as by particular legislation. But, as I have already pointed out, to describe a problem as national, does not attract power. Though some power of a special and limited kind may be attracted to the Commonwealth by the very setting up and existence of the Commonwealth as a polity, no power to deal with matters because they may conveniently and best be dealt with on a national basis is similarly derived. However desirable the exercise by the Commonwealth of power in affairs truly national in nature, the federal distribution of power for which the Constitution provides must be maintained. 58 Stellios, n 28, p 449, citing Barwick CJ, Gibbs, Mason and Jacobs JJ from AAP. 59 Mason J conceded (at 401) that some of the planned expenditure could have been authorised by Commonwealth legislation under s 51(xxiii) and s 51(xxiiiA).

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Jacobs J, like Mason J, separated the issues regarding the respective validity of the appropriation and the proposed expenditure plan. The appropriation, in his view (at 410), was non-​justiciable and therefore valid. Regarding the expenditure, he felt it was authorised by the nationhood power (at 412-​413): The growth of national identity results in a corresponding growth in the area of activities which have an Australian rather than a local flavour. Thus, the complexity and values of a modern national society result in a need for co-​ordination and integration of ways and means of planning for that complexity and reflecting those values. Inquiries on a national scale are necessary and likewise planning on a national scale must be carried out. Moreover, the complexity of society, with its various interrelated needs, requires co-​ordination of services designed to meet those needs. Research and exploration likewise have a national, rather than a local, flavour. In two ways the Australian Assistance Plan is in substance within the powers of the Commonwealth. First, it is an expenditure of money in the exercise by the Commonwealth of its executive power to formulate and co-​ordinate plans and purposes which require national rather than local planning and of its legislative power to appropriate its funds accordingly.

Jacobs J appears to define the nationhood power in a similar manner to Mason J. However, he obviously differed from Mason J regarding the “necessity” for a national approach to social welfare. Jacobs J felt such an approach was “required”, whereas Barwick CJ and Mason J felt such an approach was merely convenient, and not sufficiently essential to attract the nationhood power. The final result in the AAP case was that both the appropriation and the expenditure were valid, though no clear majority emerged regarding the executive’s power of expenditure. The links between expenditure and an implied nationhood power arose again in Pape v FCT (2009) 238 CLR 1. Pape was a taxpayer who challenged certain aspects of a federal government stimulus package adopted to combat the effects of the global financial crisis of 2008-​2009. Under the Tax Bonus for Working Australians Act (No 2) 2009 and the Tax Bonus for Working Australians (Consequential Amendments) Act 2009, the government was authorised to pay out means-​ tested bonuses to taxpayers who earned less than $100,000 in taxable income in the fiscal year 2007-​2008. The payments ranged from $250 (for the highest earners) up to $900 per person. Pape himself was entitled to a $250 bonus. He claimed the payment of his bonus, as well as all bonuses under the Act, were invalid. The entire Court concluded that no power of expenditure was found in s 81. As s 81 had been a basis for some of the judgments in AAP, the Pape decision significantly elevates the importance of s 61 in regard to federal expenditure (see [10.55]). The majority of French CJ, Gummow, Crennan and Bell JJ found that the expenditure was authorised under legislation passed pursuant to s 51(xxxix) in conjunction with s 61.60 French CJ stated (at 23-​24):

60 Section 51(xxxix) gives the Commonwealth power to legislate over matters incidental to, inter alia, executive power, hence it provided the head of power for legislation based on the nationhood power, sourced in s 61. See also discussion of s 51(xxxix) at [5.75].

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The executive power of the Commonwealth conferred by s 61 of the Constitution extends to the power to expend public moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy disclosed on the facts of this case, and which expenditure is on a scale and within a time-​frame peculiarly within the capacity of the national government.

The Chief Justice went on (at 60): [Executive power] is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government. On the other hand, the exigencies of “national government” cannot be invoked to set aside the distribution of powers between Commonwealth and States and between the three branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions.

Thus, the Chief Justice limited the nationhood power by reference to the federal distribution of powers. On the facts in Pape, he stated (at 60): As for this case, it is difficult to see how the payment of moneys to taxpayers, as a short-​ term measure to meet an urgent national economic problem, is in any way an interference with the constitutional distribution of powers.

The Chief Justice added (at 63-​64) that the power to authorise short-​term economic measures to combat a global economic downturn which was impacting on Australia’s economy did not equate with “a general power to manage the national economy”. Gummow, Crennan and Bell JJ conceived of the nationhood power in the following terms (at 83): The conduct of the executive branch of government includes, but involves much more than, enjoyment of the benefit of those preferences, immunities and exceptions which are denied to the citizen and are commonly identified with “the prerogative”; the executive power of the Commonwealth enables the undertaking of action appropriate to the position of the Commonwealth as a polity created by the Constitution and having regard to the spheres of responsibility vested in it.

Even though the majority of French CJ, Gummow, Crennan and Bell JJ found that the nationhood power was constrained by notions of federalism, they nevertheless seemed to envisage broad spending powers for the federal government derived from this power. French CJ suggested (at 24) that the power of expenditure originating in the implied nationhood power in s 61 was potentially very large, and might make up for the apparent loss of federal power resulting from the narrow interpretation given in Pape to ss 81 and 83: The constitutional support for expenditure for national purposes, by reference to the executive power, may arguably extend to a range of subject areas reflecting the established practice of the national government over many years, which may well have relied upon ss 81 and 83 of the Constitution as a source of substantive spending power. It is not necessary for present purposes to define the extent to which such expenditure, previously thought to have been supported by s 81, lies within the executive power.

Gummow, Crennan and Bell JJ also hinted at considerable breadth in the federal executive power of expenditure (at 85): But what are the respective spheres of exercise of executive power by the Commonwealth and State governments? We have posed the question in that way because it is only by some

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constraint having its source in the position of the Executive Governments of the States that the government of the Commonwealth is denied the power, after appropriation by the Parliament, of expenditure of moneys raised by taxation imposed by the Parliament. Otherwise there appears no good reason to treat the executive power recognised in s 61 of the Constitution as being, in matters of the raising and expenditure of public moneys, any less than [the very broad powers] of the executive in the United Kingdom at the time of the inauguration of the Commonwealth.

Thus, the majority in Pape indicated that the federal spending power which exists under s 51(xxxix) in conjunction with s 61 is quite broad. The ratio of the decision is more limited. The joint judges ultimately refused (at 87) to speculate on the outer limits of the nationhood power to spend. They found that the impugned stimulus package was authorised under the nationhood power by reference to the national government’s ability to react to a national crisis. They stated (at 89): It can hardly be doubted that the current financial and economic crisis concerns Australia as a nation. Determining that there is the need for an immediate fiscal stimulus to the national economy in the circumstances set out above is somewhat analogous to determining a state of emergency in circumstances of a natural disaster. The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale here. This power has its roots in the executive power exercised in the United Kingdom up to the time of the adoption of the Constitution but in form today in Australia it is a power to act on behalf of the federal polity.

They stated further (at 91): “this case may be resolved without going beyond the notions of national emergency and the fiscal means of promptly responding to that situation”. Therefore, the majority ratio indicates that the federal government has broad power to spend money on programs to counter the effects of an economic crisis.61 On the nationhood power per se, Hayne and Kiefel JJ agreed that such a power existed within the executive. They also agreed with the majority that the power was constrained by the federal balance of powers. However, for Hayne and Kiefel JJ, the consequences of those constraints were more profound, such as to deny the authorisation of the expenditure under the nationhood power in this case. Indeed, they seemed to adopt a narrower interpretation of that power than Mason J in AAP.62 Hayne and Kiefel JJ criticised the majority reasoning regarding spending powers in emergencies, stating (at 121-​122): It is not shown that [the expenditure] is supported as an exercise of executive power identified as derived from the character and status of the Commonwealth as a national polity or as deduced from the existence and character of the Commonwealth as a national government. That proposed expenditure is not shown to fall within this area by demonstrating only that

61 French CJ did not link his judgment explicitly to the notion of a power to combat economic emergencies (see 24). It is therefore arguable that his judgment extends further than that of Gummow, Crennan and Bell JJ. 62 They did not accept Mason J’s distinction between pure expenditure and the engagement by the Commonwealth in activities. The joint judges (at 120-​121) said that the “attention must focus on the ambit of executive power, not upon a supposed distinction between spending money and engaging in activities”.

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the expenditure in question is directed to an end that is described as a national economic emergency. It is necessary to say something in amplification of this last point. It is said that, because there is a national economic crisis or emergency to which a national response must be made, the executive power under s 61, to spend money that has been lawfully appropriated, extends to spending money to meet that crisis in whatever way the Executive chooses. And it is said that the Impugned Act is valid because the Parliament may make a law providing for the execution of the power of the Executive by requiring the Commissioner of Taxation to make the payments that the Impugned Act requires. Words like “crisis” or “emergency” do not readily yield criteria of constitutional validity. It may be accepted, for the purposes of argument, both that there is shown to be a national crisis to which a national response is required and that only the Commonwealth has the administrative and financial resources to respond. It does not follow, however, that the Commonwealth’s executive power to respond to such circumstances by spending money is a power that is unbounded. Were it so, the extensive litigation about the ambit of the defence power during World War II was beside the point. Though variously expressed, the argument by reference to national “crisis” or “emergency” can be summed up as being: “There is a crisis; if the Commonwealth cannot do this, who can?” What that and similar forms of rhetorical question obscure is a conflation of distinct questions about ends and means. The questions are conflated because the legislative power to enact the Impugned Act is treated as depending upon the execution of a power, said to be implicitly vested by the Constitution in the Executive, to meet a national crisis (in this case a financial or economic crisis). But if that is the end to which the exercise of power is to be directed, it by no means follows that any and every means of achieving that end must be within power. To argue from the existence of an emergency to either a general proposition that the Executive may respond to the crisis in any way it sees fit, or to some more limited proposition that the Executive has power to make this particular response, is circular. Describing the expenditure in issue in this matter as a “short term fiscal [measure] to meet adverse economic conditions affecting the nation as a whole” engages no constitutional criterion of a kind hitherto enunciated by this Court. It is a description that conflates the distinction between ends and means that this Court must maintain. It is for the political branches of government, not this Court, to fix upon the ends to be sought by legislative or executive action. It is for the Court, not the political branches of government, to decide whether the means chosen to achieve particular political ends are constitutionally valid and it is for the Court to identify the criteria that are to be applied to determine whether those particular means are constitutionally valid. The question for decision is whether the response that has been made (by the enactment of the Impugned Act) is within power. That question is not answered by pointing out why the Impugned Act was enacted. Reference to notions as protean and imprecise as “crisis” and “emergency” (or “adverse effects of circumstances affecting the national economy”) to indicate the boundary of an aspect of executive power carries with it difficulties and dangers that raise fundamental questions about the relationship between the judicial and other branches of government. [emphasis in original]

These joint judges pointed out (at 123) that there were numerous means by which the federal government could stimulate the economy which were undoubtedly

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constitutional.63 Inevitably, given their previous comments, Hayne and Kiefel JJ concluded (at 126): The Impugned Act is not supported by considerations stemming from the position of the Commonwealth as the central government of the nation.

Heydon J in dissent expressed considerable scepticism over the existence of a nationhood power within s 61. He found that there were few measures that, in Mason J’s words from AAP, could truly only “be carried on for the benefit of the nation” by the national government. This was especially so given the accepted breadth of federal power under s 96 and the possibilities of cooperative federalism. Heydon J did not concede that Mason J’s limited version of the nationhood power was correct,64 and he seemed to invite (at 182) a challenge to Davis v Commonwealth (1988) 166 CLR 79, where a limited form of nationhood power was endorsed by a majority (discussed at [5.75]). Heydon J also attacked the idea that the laws were authorised as an incident to an implied executive power to tackle an economic crisis (at 193-​194): [T]‌here is no constitutional warrant for the supposed power to deal with a national fiscal emergency. There is no express warrant for it. The claim that it exists is entirely novel. Its existence is doubtful because of its potential for abuse. … Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought. Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions. Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use. The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste”.

In conclusion, it appears that numerous Commonwealth initiatives have been implemented under the purported authority of the nationhood power, such as the establishment of the Australian National Gallery, the Australian Institute of Sport, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), the Australian Film Commission and the National Library. AAP, by a slim majority, had indicated that the administration of and expenditure on these bodies is valid. Pape may indicate that such expenditure is constitutionally suspect, given that no judge now accepts that s 81 grants power to spend money. However, a slim majority of 4:3 seemed to indicate that powers of expenditure under the executive nationhood power might be very broad. The minority on the other hand seemed to take a view of the nationhood power that was as narrow, if not narrower, than the minority in AAP.

63 In fact, they found that most of the stimulus package was supported by the taxation power under s 51(ii): see 129-​131. 64 See 181 and 191.

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Williams v Commonwealth (2012) 248 CLR 156 confirmed extensive limitations to the Commonwealth’s spending powers. In particular, the majority found that expenditure by the executive must generally be authorised by federal legislation under a federal head of power (see [5.55] and [10.55]). The relevant expenditure in that case, the funding of school chaplains, clearly fell outside the nationhood power.65 As noted by Gummow and Bell JJ (at 235): In Pape, the short-​ term, extensive and urgent nature of the payments to be made to taxpayers necessitated the use of the federal taxation administration system to implement the proposal, rather than the adoption of a mechanism supported by s 96. However, the States have the legal and practical capacity to provide for a scheme such as the [National School Chaplaincy Program].

It is uncertain whether statutory authority is needed to authorise spending within the nationhood power, given its unique status as a power vested primarily in the executive via s 61 rather than the legislature, which has incidental power in aid of that executive power under s 51(xxxix). Pape of course did not answer this question as the relevant expenditure was authorised by statute. At 191 of Williams, French CJ indicated that statutory authorisation would not be needed for such spending. Coercive nationhood power [5.75] The AAP case concerned the nationhood power as an authorisation for government expenditure, and the existence of the machinery to administer that expenditure. Expenditure is essentially a facultative government function. It is not directly regulatory or “coercive”, as it confers no rights or duties upon anybody. On the other hand, Pape also concerned expenditure, but the law in that case could arguably be described as regulatory. It conferred rights on most taxpayers to receive bonuses and a corresponding duty on the Commissioner of Taxation to pay out the bonuses. Yet French CJ did not seem to classify the law as “coercive”,66 perhaps because it did not impose duties on anybody besides the federal government itself. Heydon J on the other hand stated (at 182-​183) that the legislation at issue involved more than mere appropriation and expenditure:67 The present problem concerns something more: legislation to regulate the payment of money which has been appropriated. That legislation created, in s 5, a right to receive the payment. It also created, in s 7, an obligation to make it.

In Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, four Justices considered the validity of a coercive law, s 6(2)(e) of the World Heritage Properties Conservation Act 1983 (Cth), under the nationhood power. Section 6(2)(e) prohibited the performance of certain acts on property which could be identified as having distinctive heritage value. All four Justices agreed on the existence of the nationhood power, but none found s 6(2)(e) to be within that power. Wilson J stated (at 203):

65 See French CJ at 216-​217 and Crennan J at 346. 66

See  24.

67 See also Heydon J citing the arguments of New South Wales as an intervenor at 196-​197.

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The Commonwealth argues that, independently of any express legislative power conferred by the Constitution, the existence of the circumstances described in s 6(2)(e) of the Act brings into being an inherent power to legislate. The circumstances are the following: a heritage distinctive of the Australian nation, an absence or inadequacy of any other available means for its protection, and a conclusion that it is peculiarly appropriate that the Parliament and Government of the Commonwealth should protect it. I am unable to accept the argument. I know of no occasion when a coercive law declaring certain conduct to be unlawful and imposing penalties has been enacted by the Parliament otherwise than pursuant to a given head of power. Such an approach to federal legislative power would in my opinion be wholly subversive of the Constitution and cannot be permitted.

Deane J stated (at 252): It becomes increasingly predictable that any such [nationhood] powers will be confined within areas in which there is no real competition with the States. … Even in fields which are under active State legislative and executive control, Commonwealth legislative or executive action may involve no competition with State authority: an example is the mere appropriation and payment of money to assist what are truly national endeavours. … It suffices, for present purposes, to say that I consider that the inherent powers of the Commonwealth could not, on any proper approach, be seen as including the power to enact a law imposing drastic restrictions of the type contained in s 9 of the Act in respect of “identified property” (as defined in s 3(2) of the Act) in relation to which the requirements of subss 2(e) and (3) of s 6 of the Act are satisfied. Those restrictions would involve the potential freezing of the “identified property” to which they were applied and would, to no small extent, override and displace the ordinary legislative and executive powers of the State, in which such property was situate, to authorise or regulate conduct thereon. The fact that particular physical property or artistic, intellectual, scientific or sporting achievement or endeavour is “part of the heritage distinctive of the Australian nation” may well be decisive of the question whether the protection, preservation or promotion of such property, achievement or endeavour may be made the object of an appropriation of money by the Commonwealth Parliament or of Commonwealth action to assist or complement actions of a State. In the absence of any relevant grant of power to the Commonwealth however, that fact cannot constitute the basis of some unexpressed power in the Commonwealth to arrogate to itself control of such property, achievement or endeavour or to oust or override the legislative and executive powers of the State in which such property is situate or such achievement or endeavour has been effected or is being pursued.

The Justices in Tasmanian Dam drew a clear distinction between the nationhood power in the field of expenditure, where it was potentially very broad, and in the field of regulatory coercive law, where it was narrow. Davis v Commonwealth (1988) 166 CLR 79 concerned the validity of s 22 of the Australian Bicentennial Authority Act 1980 (Cth), which prohibited the use of certain symbols and words without the consent of the Australian Bicentennial Authority (ABA). These words included “200 years”, “Bicentenary”, “Bicentennial”, “Sydney” and “Melbourne”, when used in conjunction with “1788”, “1988” or “88”. Davis was refused permission to sell T-​shirts emblazoned with the words “200 years of suppression and depression”, bordered by “1788” and “1988”. Davis sought and obtained, in a unanimous judgment, a declaration that s 22 was invalid. The Justices agreed that the Commonwealth’s nationhood power sufficed to authorise the establishment of the ABA, and the co-​ordination by the federal government of the Bicentennial commemoration and celebrations. However, all Justices agreed that s 22,

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at least insofar as it applied to the words “200 years” (no other words were at issue in the case) was disproportionate to the end of commemorating the Bicentennial, and was thus beyond the scope of the nationhood power. Davis confirmed that, whatever the scope of the nationhood power, it was a “purposive” power which incorporated a notion of proportionality with regard to characterisation of laws thereunder. The “appropriateness” and the “fairness” of the law at issue will be relevant in determining whether a law is authorised by the nationhood power,68 at least when the law at issue is a coercive law.69 In Davis, the “extraordinary intrusion” into Davis’ freedom of expression represented by s 2270 persuaded the Justices to unanimously find that the law went outside the bounds of the nationhood power, and was ultra vires.71 Brennan J drew attention to the limits of the nationhood power with respect to coercive laws (at 112-​113): Where the Executive Government engages in activity in order to advance the nation –​ an essentially facultative function –​the execution of executive power is not the occasion for a wide impairment of individual freedom (cf The Tasmanian Dam case, per Wilson J at 203-​204). In my opinion, the legislative power with respect to matters incidental to the execution of the executive power does not extend to the creation of offences except insofar as is necessary to protect the efficacy of the execution by the Executive Government of its powers and capacities.

While ostensibly restricting nationhood “coercive” power, Brennan J confirmed its breadth with regard to “facultative functions” (at 110-​111): This Court has not settled the questions whether and to what extent it is within the executive power of the Commonwealth for the Executive Government of the Commonwealth to exercise its prerogative powers or to engage in lawful activities or enterprises calculated to advance the national interest. Though the Constitution gives no express answer to these questions, the answer may be derived from what the Constitution was intended to do and has done. With great respect to those who hold an opposing view, the Constitution did not create a mere aggregation of colonies, redistributing powers between the government of the Commonwealth and the governments of the States. The Constitution summoned the Australian nation into existence, thereby conferring a new identity on the people who agreed to unite “in one indissoluble Federal Commonwealth”, melding their history, embracing their cultures, synthesising their aspirations and their destinies. The reality of the Australian nation is manifest, though the manifestations of its existence cannot be limited by definition. The end and purpose of the Constitution is to sustain the nation. If the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered. There is no reason to restrict the executive power of the Commonwealth to matters within the heads of legislative power. So cramped a construction of the power

68 See generally on proportionality and characterisation, [2.45] and [14.75]. See also H P Lee, “Proportionality in Constitutional Adjudication”, in G Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, Sydney, 1994), pp 136-​138. 69 It is difficult to see how proportionality can be relevant when examining the validity of a facultative law. 70

See Davis v Commonwealth (1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ.

71

Davis predated the “implied freedom of political speech” cases. If decided today, it is likely that s 22 would be found to infringe that implied right. See generally, Chapter 13.

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would deny to the Australian people many of the symbols of nationhood –​a flag or anthem, for e­ xample –​or the benefit of many national initiatives in science, literature and the arts.

All Justices in Davis agreed that the source of executive nationhood power was s 61, and that a legislative nationhood power could be derived from s 51(xxxix), which authorises the legislature to make laws which are incidental to, inter alia, the execution of any power vested in the executive. For Wilson, Dawson and Toohey, ss 61 and 51(xxxix) were the only sources of the nationhood power. Mason, Deane and Gaudron JJ (at 93) suggested that there may also exist an implied legislative nationhood power separate from the power generated by the pairing of ss 61 and 51(xxxix). Brennan J did not comment on the issue. Given that all Justices in Davis reached the same conclusion on the validity of s 22, one may legitimately doubt whether this disagreement over the source of the nationhood power has any substantive consequences. There are, however, potential consequences which may result from the different views regarding the source of the power. The view of Wilson, Dawson and Toohey JJ traces the ultimate source of the nationhood power to the executive. Legislative power only exists to the extent that it can be classified as “incidental” to a valid exercise of executive power. Under that view, all legislative nationhood power is dependent upon the existence and exercise of executive nationhood power. On the other hand, Mason J et al indicated that there exists some autonomous legislative nationhood power, which can be exercised independently of the executive power. Mason, Deane and Gaudron JJ have therefore located two sources of nationhood power, within the executive and legislature respectively. Their view would therefore appear to authorise a broader range of activities under the nationhood power, as autonomous legislative power is inherently greater than autonomous executive power. In particular, the legislature has greater power to authorise coercive laws than the executive. For example, in Davis Brennan J noted (at 112): At least since the Case of Proclamations (1611) 12 Co Rep 74 [77 ER 1352], the exercise of prerogative power has not been capable of creating a new offence. Nor can the exercise by the Executive Government of a non-​statutory capacity create an offence.

Thus, the view of Mason J et al would seem to authorise a greater range of coercive laws than that of Wilson J et al. That is not to say that coercive laws cannot be enacted as an incident to the executive nationhood power. For example, as an incident of the executive power to set up the ABA, or the CSIRO, it may be presumed that legislation can be enacted to regulate the employment regimes of those bodies.72 Indeed, coercive powers were authorised by legislation regarding, respectively, subversion and sedition in Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121. Notably, those cases concerned internal national security, one of the few areas where the executive has undoubted coercive prerogative power.73 Therefore, it is not surprising that there existed incidental legislative power to enact such coercive laws.74 72 Stellios, n 28, p 452. 73 See also Hayne and Kiefel JJ in Pape at 125. 74 Proportionality is still relevant in determining whether coercive laws in the area of internal security are valid, as evinced by the finding in the Communist Party case, where the Communist Party Dissolution Act 1950 (Cth) was found invalid (see [2.50]).

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In R v Hughes (2000) 202 CLR 535, the High Court again intimated that coercive laws may only rarely be authorised by the nationhood power. The case concerned the validity of a co-​operative State/​Commonwealth scheme of corporate regulation.75 Under this scheme, the Commonwealth Director of Public Prosecutions was authorised to prosecute persons for violations of Western Australian corporations laws. Thus, the case did not concern the creation of new offences; it concerned the conduct of prosecution of State offences. It had been argued that the nationhood power could provide authority for the exercise of such powers by the DPP, in that it was “peculiarly appropriate” for the Commonwealth officer to co-​ordinate the complex task of prosecuting corporate offences, which often cross State boundaries, throughout Australia. In the circumstances of the case, the Court was able to find alternative sources for the power of the DPP besides the nationhood power. However, Kirby J cast doubt on the possibility of grounding such a law within the nationhood power (at 188-​189): Obviously, to the extent that federal law purports to authorise an officer or authority of the Commonwealth to perform functions conferred by State law which seriously affect the liberty and property rights of individuals, it may be expected that, when challenged, those who propound the constitutional validity of such authorisation will be able to demonstrate that validity exists. The more drastic the consequences for those affected, the more vigilant will be the scrutiny of the impugned law, measured against the constitutional warrant. The proposition that serious and burdensome consequences of criminal proceedings may be sustained by reference to nothing more than the creation of the office of the Commonwealth DPP and incidents thereto in the context of the joint co-​operative scheme (or this with the execution of the Executive power of the Commonwealth or the implied nationhood power) is highly doubtful. For such outcomes a firm foundation of constitutional authority would appear to be necessary. Under our Constitution, criminal liability and punishment, when provided in a federal law, must be supported by demonstrable constitutional authority. Convenience and desirability are not enough if the constitutional foundation is missing.

The decisions in Pape were not very enlightening on issues regarding coercive power and the source of the nationhood power. Gummow, Crennan and Bell JJ did not discuss these issues. French CJ claimed (at 24) that the “application of the executive power to the control or regulation of conduct or activities under coercive laws, absent authority supplied by a statute made under some head of power other than s 51(xxxix) alone, are likely to be answered conservatively”. The Chief Justice also stated (at 63-​64) that it was not necessary to consider whether there was an implied legislative nationhood power. Hayne and Kiefel JJ opined (at 125) that implied legislative nationhood power might exist in regard to “putting down subversive activities and endeavours”, such as the laws upheld in Burns v Ransley and Sharkey. Heydon J rejected the existence of an independent implied legislative nationhood power (at 177). Indeed, it is not certain his Honour accepted the existence of an implied executive nationhood power in s 61 (at 191). Commonwealth/​State co-​operation [5.80] In R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 560, Mason J said of the nationhood power: 75 This scheme was necessitated by the Court’s decision in the Incorporation case; see [3.70].

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It is beyond question that [the nationhood power] extends to entry into government agreements between the Commonwealth and State governments on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution.

At issue in the Duncan case was the authority for the establishment of a Tribunal to exercise federal and State powers in preventing and settling interstate disputes in the Coal industry. Mason J indicated that one of the heads of power which authorised the Commonwealth’s participation in this joint co-​operative venture with the States was the nationhood power.76 Indeed, he indicated that the nationhood power might authorise any such venture, so long as it was not specifically prohibited by the Constitution. Mason J’s expansive view of the Commonwealth’s power to participate in co-​operative ventures with the States was implicitly rejected in R v Hughes (2000) 202 CLR 535, which concerned the powers of the Commonwealth Director of Public Prosecutions to prosecute offences under a State law. In that case, the power to prosecute the particular offences at issue was found to exist in s 51(i) and s 51(xxix). However, the majority indicated that the nationhood power would not provide authority for the DPP’s powers in the absence of authority from an express head of power. The Hughes judgment has thrown into doubt the validity of a number of powers conferred on Commonwealth officers under Commonwealth/​State agreements.77 Kirby J in disagreement (but not in dissent in the case’s result) decried the threat to such co-​ operation in Hughes (at 170): This court should be the upholder, and not the destroyer, of lawful co-​operation between the organs of government in all of the constituent parts into which the Commonwealth of Australia is divided. No other approach is appropriate to the interpretation of the basic law of the “indissoluble Federal Commonwealth”.

Conclusion on nationhood power [5.85]  To date, the parameters of the nationhood power have been developed on an incremental case-​by-​case basis, and there have been only a few cases. Under this nationhood power, the Commonwealth executive government has powers that are appropriate for a national government as opposed to a provincial government. In the words of French CJ in Pape (at 60), the power allows the Commonwealth executive to “be capable of serving the proper purposes of a national government”. While the power is constrained by the federal balance of powers, the exact nature or consequences of those constraints requires further elucidation. In Pape and Williams, the High Court rejected the idea that executive spending power is located within ss 81 and 83 of the Constitution. A 4:3 majority in Pape found that significant spending power is located within the nationhood power: a bare majority favoured a broad view of the nationhood power while the minority adopted a

76 An alternative head of power, s 51(xxxv), also existed in this case. 77 See generally, A De Costa, “The Corporations Power and Cooperative Federalism after The Queen v Hughes” (2000) 22 Sydney Law Review 451 at 464-​467.

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narrow view. The nationhood power is narrow with regard to coercive regulatory laws. Finally, Hughes indicates that the nationhood power does not provide authority for the Commonwealth to enter into agreements with the States in order to exercise powers outside its express heads of power.

CROWN IMMUNITY [5.90]  The Crown (at both Commonwealth and State levels) has a prerogative presumptive immunity from suit. For example, a Crown servant is immune if he or she is sued while acting in his or her capacity as a Crown servant, but not if the servant is sued in his or her individual capacity, or has acted outside his or her authority.78 Statutory corporations79 and corporations formed by the Crown under company law80 rarely benefit from this presumption. Thus, the Crown is not bound at common law in tort or contract. Sections 57 and 58 of the Judiciary Act 1903 (Cth) remove the common law Crown immunity from the Commonwealth and from the States in respect of “federal jurisdiction”.81 If these provisions should ever be repealed, it is possible that the Crown common law immunity would be fully restored.82 The presumption that the Crown is immune from statutes can be rebutted by express words. In Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107, the Court indicated that a rebutting statement such as: “This Act binds the Crown”, will be taken to refer only to the Crown in right of the enacting legislature. For example, the reference to “the Crown” in the Trade Practices Act 1974 (Cth) was held to apply only to the Commonwealth and not the State executives. Thus, a safe way for a Parliament to expressly bind all executive governments is to expressly bind the “Crown in right of the Commonwealth” and the Crown in right of each of the States.83 The Crown can also be held to be bound by a statute if such is “necessarily implied” from the Statute. A strict test of necessary implication was applied in this regard by the Privy Council in Province of Bombay v Municipal Corporation of Bombay [1947] AC 58; Crown liability had to be “manifest from the very terms of the statute” or necessary in order to avoid total frustration of the legislative purpose. This rigid test of necessary implication was considerably loosened in Bropho v Western Australia (1990) 171 CLR 1.

78

P Hogg, Liability of the Crown (Law Book Co, Sydney, 1971), p 174.

79

Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282.

80

Commonwealth v Bogle (1953) 89 CLR 229.

81 See [6.50] on the definition of “federal jurisdiction”. 82

In Commonwealth v Mewett (1997) 191 CLR 471, Gummow and Kirby JJ found that the source of the right to sue the Commonwealth arose from Ch III of the Constitution, rather than from the Judiciary Act 1903. Compare Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 325-​326 per McHugh J.

83

See also Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1. See Chapter 8 on the constitutional capacity of the federal and State legislatures to bind each other’s executive governments.

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Bropho concerned the application of the Aboriginal Heritage Act 1972 (WA) to the Western Australia Development Corporation, a statutory corporation which was an instrumentality of the Crown in right of Western Australia.84 Section 17 made it an offence for a person to interfere with a site of cultural, spiritual or historical significance to aboriginal people, except with the authorisation of the trustees of the Western Australian Museum or with the consent of the Minister for Aboriginal Affairs. The majority of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated (at 19-​20): The historical considerations which gave rise to a presumption that the legislature would not have intended that a statute bind the Crown are largely inapplicable to conditions in this country where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour and where it is a commonplace for governmental commercial, industrial and developmental instrumentalities and their servants and agents, which are covered by the shield of the Crown either by reason of their character as such or by reason of specific statutory provision to that effect, to compete and have commercial dealings on the same basis as private enterprise. It is in that contemporary context that the question must be asked whether it is possible to justify the preservation in our law of an inflexible rule which, in the absence of express reference, requires a reading down of the general words of a statute to exclude the Crown (and its instrumentalities and agents) unless it is “manifest from the very terms of the statute” that it was the legislative intent that the Crown should be bound and which, in ascertaining whether such a legislative intent is manifest, allows account to be taken of the purpose of the statute only if it is possible to affirm that that purpose must be “wholly frustrated” unless the Crown is bound.

After having identified the anachronistic nature of the presumption of prerogative immunity, the majority outlined a new test of Crown immunity (at 23-​24): The effect of the foregoing is not to overturn the settled construction of particular existing legislation. Nor is it to reverse or abolish the presumption that the general words of a statute do not bind the Crown or its instrumentalities or agents. It is simply to recognise that a stringent and rigid test for determining whether the general words of a statute should not be read down so as to exclude the Crown is unacceptable. On the other hand, it must be acknowledged that, in the period since the Province of Bombay case, the tests of “manifest from the very terms of the statute” and “purposes of the statute being otherwise wholly frustrated” came to be established as decisive of the question whether, in the absence of express reference, the general words of a statute bind the Crown. That being so, it may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that those tests were seen as of general application at the time when the particular provision was enacted. If, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail. In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words

84 Section 4(3) of the Western Australia Development Corporation Act 1983 (WA) expressly stated that the Corporation was a Crown instrumentality. Otherwise, it may well have fallen outside the shield of the Crown.

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of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong (cf Canadian Broadcasting Corporation v Attorney-​General for Ontario (1959) SCR 188 at 204-​205). On the other hand, if the question in issue is of the kind involved in the present case, namely, whether the employees of a governmental corporation engaged in commercial and developmental activities are bound by general provisions designed to safeguard places or objects whose preservation is of vital significance to a particular section of the community, the presumption against the applicability of general words to bind such employees will represent little more than the starting point of the ascertainment of the relevant legislative intent. Implicit in that is acceptance of the propositions that, notwithstanding the absence of express words, an Act may, when construed in context, disclose a legislative intent that one of its provisions will bind the Crown while others do not and that a disclosed legislative intent to bind the Crown may be qualified in that it may, for example, not apply directly to the Sovereign herself or to a Crown instrumentality itself as distinct from employees or agents. Always, the ultimate questions must be whether the presumption against the Crown being bound has, in all the circumstances, been rebutted, and, if it has, the extent to which it was the legislative intent that the particular Act should bind the Crown and/​or those covered by the prima facie immunity of the Crown.

In Bropho, the Court dictated a different rule for post-​Bropho statutes than for pre-​ Bropho statutes, the latter being subjected to a more rigid test for implied rebuttal of Crown immunity, though possibly not as rigid a test as that pronounced in the Province of Bombay case. This judgment implied that Bropho only prospectively altered the test regarding implied rebuttal of Crown immunity. Brennan J, in a separate opinion, dissented in this respect (at 28-​29), claiming that the same test for Crown immunity should apply to all statutes, whenever enacted. Brennan J’s view was apparently endorsed in Ngo Ngo Ha v New South Wales (1997) 189 CLR 465 by the majority (Brennan CJ, McHugh, Gummow and Kirby JJ) who stated (at 504) that “prospective overruling [was] inconsistent with judicial power”. In Bropho, the Court found that the Western Australia Corporation was necessarily bound by s 17. Given that 93 per cent of Western Australia was Crown land, and 50 per cent was vacant Crown land, the Court found (at 24) that s 17 would have been “extraordinarily ineffective to achieve its stated purpose of preserving Western Australia’s Aboriginal sites and objects if it applied only in respect of the comparatively small proportion of the State which is not Crown land”. The Act at issue was a 1972 Act, enacted prior to the Bropho decision. The Court explicitly stated that Crown immunity was clearly rebutted under all relevant tests, as there was “clear legislative intent that the general words of s 17 should apply to employees and agents of governmental instrumentalities such as the Corporation in the course of their duties as such”. The Bropho test of Crown immunity has been extended to apply to Commonwealth legislation binding a State, State legislation which binds the Commonwealth, as well as State legislation which binds another State.85 For example, the presumption was rebutted with little debate in Re Residential Tenancies Tribunal (NSW); Ex parte 85 A Stone, P Gerangelos, S Murray, N Aroney, S Evans and P Emerton, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (4th ed, Thomson Reuters (Professional) Australia, Pyrmont, 2017), p 962.

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Defence Housing Authority (1997) 190 CLR 410 to hold that a 1987 New South Wales Statute bound a Commonwealth government agency. It is notable that the Statute predated the Bropho decision, and the Court was conspicuously silent on the issue of “prospective overruling”.86 In Australian Competition and Consumer Commission v Baxter (2007) 232 CLR 1, the High Court majority (Callinan J dissenting) held that the Bradken principle of construction was modified and rendered more flexible in Bropho.87 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ stated (at 34): The Court’s statement in Bradken of the principle about Crown immunity no longer accurately represents the law. It has been overtaken by the decision in Bropho.

However, the Court did not confirm whether Bropho only applies to post-​1990 laws, as it was not required to do so.

PRIVATISATION AND EXECUTIVE POWER [5.95]  Privatisation is a common phenomenon in Australia. At both Commonwealth and State levels, functions which were previously the preserve of administrative bodies, such as the supply of utilities and “public” transport, and the running of prisons, have been handed over to private bodies. The constitutional limits of privatisation are uncertain. Presumably, the powers specifically conferred upon the executive by the Constitution (ie laws regarding the “execution of the Constitution”) cannot be assigned to a private body.88 However, it has been argued in this chapter that all other executive powers, barring those specifically conferred by the Constitution (see [5.30]), can be controlled by the legislature, which means they can be altered or even extinguished by statute. There would seem therefore to be no constitutional impediment to the removal of a power from the executive and its bestowal upon a private body. Furthermore, the executive might be able to independently outsource certain inherent functions to a private body. Only implicit policy considerations or philosophical values, which can on occasion prove decisive in constitutional interpretation (see [1.210]), would seem to dictate that certain executive powers, such as control and maintenance of the police, or the ratification of treaties, are fundamentally governmental functions which cannot be privatised.

CONCLUSION [5.100]  Chapter II provides an incomplete and even misleading sketch of Commonwealth executive power. For example, it omits any reference to Cabinet and the Prime Minister, the de facto heads of the Commonwealth executive. Most executive power stems from statute, though some is inherently conferred by the Constitution or via the common law. The executive is also vested with “nationhood

86 The “prospective” aspect of Bropho was however acknowledged in Jacobsen v Rogers (1995) 182 CLR 572 at 586 and State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 269-​270. 87

See at  26-​28.

88 See also Stellios, n 28, pp 413-​414.

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power”, though the scope of that power remains uncertain and contentious. At common law, the Commonwealth Crown benefits from an immunity from the law. Common law immunity has been revoked by the Judiciary Act 1903. The presumption of immunity from statutes may be expressly rebutted, and has been significantly watered down by the Bropho decision. Finally, it is uncertain the extent to which the Commonwealth administrative and executive functions may be privatised under the Constitution.

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Chapter 6

Separation of Judicial Power [6.10]

[6.50] [6.55]

[6.75]

[6.105]

[6.135]

JUDICIAL POWER.............................................................................................................................. 194 [6.15] Enforceability....................................................................................................................... 199 [6.20] Binding and conclusive decisions..................................................................................... 201 [6.25] Need for a controversy....................................................................................................... 202 [6.30] Breadth or nature of discretion to be exercised............................................................... 203 [6.35] Decisions regarding existing rights and duties............................................................... 207 [6.40] Historical considerations.................................................................................................... 209 [6.45] Conclusion on judicial power and the “chameleon principle”..................................... 210 JUDICIAL POWER OF THE COMMONWEALTH ....................................................................... 210 SEPARATION OF JUDICIAL POWERS –​COMMONWEALTH ................................................. 211 [6.60] Principle 1: Judicial power may only be exercised by Chapter III courts................... 211 [6.65] Principle 2: Federal courts may not exercise non-​judicial power................................. 214 [6.70] Wakim: Extension of the Boilermakers doctrine............................................. 216 EXCEPTIONS TO THE TWO PRINCIPLES .................................................................................... 219 [6.80] Exceptions to principle 1.................................................................................................... 219 [6.80] Delegation of judicial power.............................................................................. 219 [6.85] Discrete exceptions.............................................................................................. 220 [6.90] Exceptions to principle 2.................................................................................................... 221 [6.95] Incidental powers................................................................................................. 222 [6.100] Persona designata exception.............................................................................. 223 SEPARATION OF JUDICIAL POWERS –​STATE .......................................................................... 229 [6.110] The Kable principle and its subsequent application...................................................... 229 [6.112] The revival of the Kable principle..................................................................................... 237 [6.115] Persona designata and State judges.................................................................................. 246 [6.120] Required characteristics of State courts............................................................................ 249 [6.125] The investiture of judicial power in non-​judicial bodies at the State level................. 254 [6.130] Summary of the Kable doctrine at the State level........................................................... 258 CHAPTER III AS A SOURCE OF INDIVIDUAL RIGHTS ............................................................ 259 [6.140] The broader scope of the incompatibility doctrine......................................................... 259 [6.145] Legislative usurpation of judicial power......................................................................... 262 [6.150] Powers to detain.................................................................................................................. 265 [6.155] Powers of sentencing.......................................................................................................... 274 [6.160] Retrospective criminal laws............................................................................................... 277 [6.165] Implied right of legal equality........................................................................................... 281

[6.170] Right to a fair trial................................................................................................................ 284 [6.175] SEPARATION OF JUDICIAL POWER IN THE TERRITORIES ................................................... 285 [6.180] CONCLUSION  .................................................................................................................................... 286

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[6.05]  Adherence to the doctrine of separation of judicial power is an essential feature of a government operating under the rule of law. The separation of the judiciary from the legislature and the executive, the political arms of government, is designed to ensure that the judiciary is independent of political pressure, and therefore that cases can be decided in a fair and impartial manner. The doctrine helps to safeguard the individual’s right to a fair trial, and the fair administration of justice. Further, the enforced division of power between the institutions of government guards against the concentration of power that may be harmful to liberty.1 “Judicial power” is a nebulous concept. This is obviously unfortunate, as it is difficult to delineate a strict separation of judicial power from non-​judicial power if the line between those powers is vague. The definition of judicial power is discussed in [6.10]. The High Court has long held that Ch III of the Constitution, which deals with the federal judiciary, requires the complete separation of federal judicial power from the exercise of federal legislative or executive power. Thus, federal judicial power may only be exercised by appropriately constituted courts, known as Chapter III courts. Furthermore, federal courts may not exercise non-​judicial power. Certain exceptions have been fashioned to these two principles. In contrast, it was long held that no doctrine of separation of judicial power constitutionally constrained the exercise of State judicial power. This position was considerably altered by the landmark decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, when at least some aspects of the doctrine binding federal courts were found to apply to certain State courts. It remains uncertain how pervasive the doctrine of separation of judicial power is at the State level. In some judgments, especially in the 1990s, the doctrine has been used as a foundation for certain individual rights. Despite the retreat of the Gleeson High Court from the high point of implied rights and freedoms in the Mason/​Brennan Courts (see [1.180]), Ch III remains a viable source of new implied constitutional rights.

JUDICIAL POWER [6.10]  The acknowledged classic definition of “judicial power” in Australia is derived from the judgment of Griffith CJ in Huddart Parker and Co v Moorehead (1909) 8 CLR 330 (at 357): I am of the opinion that the words “judicial power” as used in s 71 of the Constitution mean the power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

Despite this deceptively simple definition, the concept of “judicial power” remains elusive and vague.

1 C Saunders, “The Separation of Powers”, in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, Melbourne, 2000), p 33.

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The Justices of the High Court have assiduously avoided formulating a comprehensive or exhaustive definition of judicial power, instead allowing for a degree of flexibility. Even after a century of judicial commentary, the definition is no firmer. As Gageler J said in (2017) 259 CLR 478 at 496: Nowhere is an appreciation of the historical context within which the Australian Constitution was brought into existence more important than in seeking to understand the “judicial power of the Commonwealth”, which s 71 vests solely in this Court, in federal courts which the Commonwealth Parliament chooses to create in accordance with s 72 and in courts which the Commonwealth Parliament chooses to invest with “federal jurisdiction” with respect to one or more of the nine categories of “matter” specified in ss 75 and 76. The difficulty and the danger of attempting to formulate some all-​encompassing abstract definition of the judicial power of the Commonwealth was acknowledged from its inception, was repeatedly recognised in judicial pronouncements throughout the twentieth century and has been reiterated in this century.2

In particular, the line between the judicial decisions made by courts and certain non-​ judicial decisions made by administrative tribunals, such as the Refugee Review Tribunal or the Administrative Appeals Tribunal, is hard to draw. However, there are certain functions of the courts that are now “established as incontrovertibly and exclusively judicial in their character”.3 We can here elicit five functions which are quintessentially judicial in nature; declaring the common law, adjudicating and punishing criminal guilt, deciding constitutional validity, reviewing the lawfulness of administrative action and ascertaining the meaning of statutes.4 First, the courts of common law systems necessarily carry the function of determining the common law. The High Court plays a key role in this system because the precedents it sets bind every other court in the Australian judicial system. In Mabo v Queensland (1992) 175 CLR 1 Justice Brennan said (at 4): [i]‌ncreasingly since 1968 the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation.

In Farah Constructions v Say-​Dee (2007) 230 CLR 89, the High Court posited a restriction on the scope of the lower courts to develop the law, by asserting that lower courts are bound by “seriously considered dicta” of the High Court, effecting a view that there is one common law of Australia, rather than different bodies of common law in each of the States and Territories.5 The Court was propounding that common law principles should be uniform across the country.

2

Palmer v Ayres (2017) 259 CLR 478.

3

Polyukhovich v Commonwealth (1991) 172 CLR 501 at 608 (Deane J).

4 See L B Crawford, J Boughey, M Castan and M O’Sullivan, Public Law and Statutory Interpretation, Principles and Practice (Federation Press, 2017), Chapter 6, for an expanded discussion of these judicial functions. 5 It has been suggested that the principle expressed in Farah Constructions v Say-​Dee (2007) 230 CLR 89 unnecessarily limits the development of the common law. See M Harding and I Malkin, “The High Court of Australia's Obiter Dicta and Decision-​Making in the Lower Courts” (2012) 34(2) Sydney Law Review 239. However there is no suggestion that the development of the common law is anything but a judicial function.

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Second, criminal convictions can only be determined by an independent and impartial court: it is an exclusively judicial function to determine whether a person has broken the law and to decide upon the consequences of that breach.6 Brennan, Deane and Dawson JJ explained this in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at 27: There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and “could not be excluded from” the judicial power of the Commonwealth. That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-​sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive. … the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is “ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else”.7

This judicial function is bound to the concept of the rule of law, discussed at [1.20]. The issue of non-​judicial detention is discussed further at [5.63] and [6.150]. In Australian Communications and Media Authority v Today FM (2015) 255 CLR 352 the High Court considered the characterisation of certain powers vested in the Australian Communications and Media Authority (ACMA) to investigate whether a criminal offence had been committed in breach of the radio station Today FM’s broadcasting licence.8 Today FM sought a declaration from the Federal Court that ACMA, a non-​ judicial body, was not authorised to reach a conclusion that a criminal offence had been committed in the absence of a court finding to that effect.9 The Court (in a joint judgment from French CJ, Hayne, Kiefel, Bell and Keane JJ) found (at 376-​377):10 It is the Authority's function to monitor and regulate broadcasting services throughout Australia. There is no incongruity in empowering the Authority to take administrative enforcement action against a licensee who uses the broadcasting service in the commission of an offence, whether the offence is against Commonwealth, State or Territory law. Nor is it incongruous that the Authority may suspend or cancel a licence based upon its determination that the broadcasting service has been used in the commission of an offence notwithstanding the licensee’s (or a third person’s) subsequent acquittal of the offence. The

6 See, for example, Gageler J in Australian Communications and Media Authority v Today FM (2015) 255 CLR 352 at 380: “The function of judging and punishing criminal guilt, which is exclusively judicial in character and no part of which can be conferred by Commonwealth legislation on a body that is not a Ch III court, is the function of conclusively determining a controversy about criminal liability and the punitive consequences of that criminal liability”. See also Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333. 7 See also Duncan v NSW (2015) 255 CLR 388 at 407-​408. 8 The incident in question was a prank call by radio hosts on the radio station, Today FM, to a London hospital where a member of the Royal family had recently given birth. 9 As discussed below, the Commonwealth may not vest judicial power in non-​judicial bodies (see [6.125]). 10 Gageler J concurred in a separate judgment.

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court trying the criminal offence is required to determine guilt upon admissible evidence beyond reasonable doubt. In determining that a licensee has breached the [relevant] licence condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with the relevant offence. It may find that the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.

Later (at 379) the plurality found: It is well settled that functions may be judicial or administrative depending upon the manner of their exercise. Edmonds J [of the Federal Court] rightly concluded that none of the features of the power conferred on the Authority to investigate and report on breach of the [relevant] licence condition and to take consequential administrative enforcement action support the conclusion that it is engaged in the exercise of judicial power.

In this case, ACMA was not vested with any powers to determine whether a crime had been commited, and no criminal consequences arose from any of its decision (see [6.110]). Duncan v NSW (2015) 255 CLR 388 concerned a challenge to New South Wales legislation which cancelled three mining licences, and which included a legislative declaration that Parliament was satisfied that the original award of the licences had been “tainted by serious corruption”. This opinion was likely prompted by findings made the NSW’s Independent Commission Against Corruption (ICAC). The High Court unanimously dismissed a challenge to the law, in which the plaintiffs had argued that the impugned legislation, the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW), was invalid as it amounted to an exercise of judicial power by the New South Wales Parliament. After noting (at 408) that the plaintiffs remained “subject to the ordinary processes of criminal law”, the Court stated (at 408-​409): The Amendment Act does not adopt, and does not fasten upon, any of the numerous specific findings made by ICAC in the [relevant reports] as to the corrupt conduct of individuals. Nor does it impose any legal burden on any of those individuals. They remain subject to the ordinary processes of the criminal law. What the New South Wales Parliament has done in the Amendment Act is of a different nature. Having informed itself by reference to the [relevant ICAC reports], but without having limited its consideration or linked its conclusions to any one or more specific findings in those reports, the Parliament has formed and expressed its own satisfaction that the administrative processes by which the three specified exploration licences were issued were tainted by corruption. The Parliament has gone on to express, and to give effect to, its own determination that it was in the public interest that the products of those tainted processes –​the licences themselves –​be cancelled, that the State be restored so far as possible to the position the State would have been in had those licences not been issued, and that those who had held the licences not obtain any advantage from having done so. That [the mine owners] were deprived by those provisions of valuable assets, for which they were not compensated by the State, does not mean that they were thereby punished in the sense in which that term is used when describing an exercise of judicial power

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consequent on a finding of criminal guilt. Legislative detriment cannot be equated with legislative punishment.

The Duncan legislation did not intrude onto the quintessential judicial function of determining criminal guilt.11 The third quintessential judicial function is the power to interpret the Commonwealth Constitution, and to ascertain whether the legislative and executive branches have complied with it. If Parliament or the executive breach the limits of the powers conferred on them by the Constitution, the courts will declare those actions to be invalid.12 Fourth, it is the courts’ role to decide whether an executive decision-​maker has exceeded the legal limits of its authority.13 This is known as “judicial review of executive action”. The High Court has held that this function cannot be removed from either itself or from state supreme courts, although for different reasons. Section 75(v) of the Commonwealth Constitution entrenches the High Court’s original jurisdiction to review the lawfulness of executive action in cases where certain remedies are sought against federal government officials.14 Furthermore, the High Court has held that this is constitutionally entrenched because judicial review of executive action is a “defining characteristic” of superior courts (see [6.120]).15 Finally, courts are responsible for interpreting, and deciding authoritatively, what statutes mean, so statutory construction (or interpretation) is a quintessential judicial function.16 Hence, while the Parliament can make the law, it falls to the courts to ascertain what the statute means, and how it applies in a particular case. The executive branch can administer the law, but it is the courts’ role to interpret the law in question and ascertain the scope of the power that it confers. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, the Court stated (at 381):  the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

11 Hence, the Court did not have to decide whether the New South Wales Parliament has the constitutional power to exercise judicial power. See [6.10]. 12 With the exception of exceptional appeals to the Privy Council prior to 1968. In general see Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1. 13

Attorney-​General (NSW) v Quin (1990) 170 CLR 1.

14

Plaintiff S157/​2002 v Commonwealth (2003) 211 CLR 476.

15

See Kirk v Industrial Court (NSW) (2010) 239 CLR 531. Of course, State Supreme Courts can also review the decisions of inferior courts; this is an essential and defining characteristic of those courts.

16 S Gageler, “The Legitimate Scope of Judicial Review” (2001) 21 Australian Bar Review 279 at 279. See, for example, Attorney-​General (NSW) v Quin (1990) 170 CLR 1 at 35-​36.

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Australian Parliaments can enact legislation that directs how legislation should be interpreted and the courts must apply these statutory rules of construction in deciding what a statute means.17 However, the separation of powers principles prevents the legislatures from fundamentally altering the nature of the court’s interpretive task. The courts’ decision as to what a statute means is the one that is legally binding (unless and until Parliament amends that statute). A number of further indicators, most of which are unfortunately not conclusive, also help to characterise a power as judicial or non-​judicial.18 These indicators are considered in turn, though it is conceded that the issues arising with regard to these indicators overlap. The notion of judicial power was explored at some length in Thomas v Mowbray (2007) 233 CLR 307. This case concerned the power of federal judges to issue “control orders” pursuant to anti-​terrorism provisions of the Criminal Code 1995 (Cth). Under Div 104, control orders, which can mandate a number of restrictions on the activities of a person, may be issued by judges against individuals, upon application of the federal police. They are issued when the court is satisfied on the balance of probabilities that the order will “substantially assist in preventing a terrorist attack” or that the target of the control order has provided training to or received training from an organisation designated as a terrorist organisation, and that the requirements of the control order are “reasonably necessary” and proportionate to the “purpose of protecting the public from a terrorist act” (s 104.4). The plaintiff was Jack Thomas, who was at the time subject to an interim control order.19 Counsel for Thomas argued that the Div 104 was unconstitutional as it conferred non-​judicial power on federal judges. The majority held that the powers conferred were judicial powers, constitutionally conferred upon federal judges.20 Where relevant, the judgments in Thomas v Mowbray will be referred to.

Enforceability [6.15]  The strongest indicator of judicial power is that judicial findings are binding and enforceable. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, the Human Rights and Equal Opportunity Commission (HREOC) (now renamed the Australian Human Rights Commission) was given the power to register its decisions under anti-​discrimination legislation with the Federal Court. Upon registration, HREOC’s decisions were able to be enforced as if they were Federal Court judgments. The High Court found that this arrangement was invalid, as it

17 For instance see the Acts Interpretation Act (Cth) and its State and Territory equivalents. 18 See D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), p 879-​880, for an excellent list of such indicators. That list informed the ensuing analysis of judicial power. 19 The obligations under that interim order included a curfew, compulsory reporting to Victoria police three times a week, furnishing of fingerprints, prohibition on carrying certain items (for example, weapons), restrictions on communication with certain people (including Osama Bin Laden), and restrictions on the use of certain technologies. See Callinan J at 492-​495. 20

See also Condon v Pompano Pty Ltd (2013) 252 CLR 38, for example, French CJ at 53 and 78-​79.

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authorised the enforcement of the decisions of a non-​judicial body. Deane, Dawson, Gaudron and McHugh JJ stated (at 268): There is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers’ Federation of Australia v JW Alexander Ltd ((1918) 25 CLR at 451) Barton J said: It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete. And in Federal Commissioner of Taxation v Munro ((1926) 38 CLR 153 at 176) Isaacs J pointed out that the concept of judicial power includes enforcement: the capacity to give a decision enforceable by execution. It was this characteristic of judicial power which was emphasised by Latham CJ in Rola Co (Australia) Pty Ltd v The Commonwealth ((1944) 69 CLR 185 at 198-​199). He pointed to the fact that in Huddart, Parker and Co Proprietary Ltd v Moorehead Griffith CJ referred not only to the giving of a binding and authoritative decision as being indicative of the exercise of judicial power, but also spoke of such a decision being given by a tribunal “called upon to take action”. Thus, Latham CJ pointed out, where a tribunal is able to give a binding and authoritative decision and is able to take action so as to enforce that decision, “all the attributes of judicial power are plainly present”. However, notwithstanding the reference by Griffith CJ to a tribunal “called upon to take action”, it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision. As Dixon CJ and McTiernan J observed in R v Davison ((1954) 90 CLR at 368), an order of a court of petty sessions for the payment of money is made in the exercise of judicial power, but the execution of such an order is by means of a warrant granted by a justice of the peace as an independent administrative act.

The Court rejected the contention that the decision could somehow be characterised as a decision of the Federal Court itself (at 270): Under s 25ZAA registration of a determination is compulsory and under s 25ZAB the automatic effect of registration is, subject to review, to make the determination binding upon the parties and enforceable as an order of the Federal Court. Nothing that the Federal Court does gives a determination the effect of an order. That is done by the legislation operating upon registration. The result is that a determination of the Commission is enforceable by execution under s 53 of the Federal Court Act. It is the determination of the Commission which is enforceable and it is not significant that the mechanism for enforcement is provided by the Federal Court.

Indeed, the “enforcement” of an administrative decision can only take place after enforcement proceedings have been undertaken in a court.21 In Attorney General (Cth) v Alinta (2008) 233 CLR 542, the argument was put that the power of the Takeovers Panel to make a declaration of unacceptable circumstances in relation to breaches of the takeovers provisions of the Corporations Act 2001 (Cth) was a judicial power. These declarations had ramifications for proposed corporate takeovers. The powers were found to be non-​judicial, and therefore appropriately 21 P H Lane, A Manual of Australian Constitutional Law (6th ed, Law Book Company, North Ryde, 1995), p 205. See also Luton v Lessels (2002) 210 CLR 333 at 346 per Gleeson CJ, and 376 per Kirby J.

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vested in an administrative non-​judicial body such as the Takeovers Panel. One factor in the characterisation of the power as non-​judicial was that the orders of the Panel were ultimately enforced by the Federal Court, acting in an independent capacity rather than as a mere rubber stamp for the Panel.

Binding and conclusive decisions [6.20]  Judicial power is said to involve the making of a “final and conclusive” decision about “existing rights”. It is generally an exercise of judicial power to make authoritative findings on questions of law.22 Some confusion arises with regard to the power to make determinations of fact. In Rola Company (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185, the majority denied that the determination of facts was an attribute exclusive to judicial power.23 On the other hand, denial of a right of court review regarding questions of fact from a Taxation Board of Appeal in British Imperial Oil Co v Federal Commissioner of Taxation (1925) 35 CLR 422 was held to effectively vest judicial power in that Board. Since Rola, it is uncertain whether an administrative finding of fact can be final and conclusive. If so, it paves the way for conceptual confusion due to the consequent need to draw a sharp divide between questions of fact and law.24 However, it is probably permissible for administrative bodies to come to conclusive findings of fact and law, if an appeal to a court is available, especially if such an appeal is by way of a new hearing on all questions of fact and law (a de novo hearing).25 Alternatively, it may be permissible in some circumstances to give someone who wants an administrative decision reviewed the choice of appealing either to a court or an administrative board.26 In Luton v Lessels (2002) 210 CLR 333, the power of a Child Support Registrar to make assessments regarding liability for child support payments was deemed not to be “conclusive” as an “appeal” regarding an assessment was permitted to a court, which exercised “original” rather than “appellate” jurisdiction in such cases.27 The Registrar’s powers were found to be non-​judicial. In Brandy, it was argued that the enforceability of the registered HREOC decisions was permissible as a comprehensive appeal to the Federal Court was available to applicants. The available appeal was not however a hearing de novo, which essentially amounts to a totally new hearing, as if the original hearings had never occurred. In particular, new evidence (that which had not been adduced before HREOC) could not be presented before the Federal Court. In a hearing de novo, any relevant evidence may be presented. Therefore, the

22 P Keyzer, C Goff and A Fisher, Principles of Australian Constitutional Law (4th ed, LexisNexis Butterworths, Chatswood, 2017), p 500; J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), p 239. 23 Keyzer et al, n 22, pp 500-​501. 24 Stellios, n 22, p 240. 25 Stellios, n 22, pp 243-​245. 26

See Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530.

27 See, for example, Luton v Lessels (2002) 210 CLR 333 at 346 per Gleeson CJ, 360 per Gaudron and Hayne JJ, 374 per Kirby J and 388 and 389 per Callinan J.

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constitutionality of the HREOC powers was not preserved by the availability of the appeal.

Need for a controversy [6.25]  If the decision-​maker acts as an impartial “umpire” to settle a controversy between two or more parties, that decision is more likely to be judicial. Generally, for example, there must be a “matter” between parties. It is not an exercise of judicial power to give a mere advisory opinion.28 Furthermore, judicial decision-​makers generally decide controversies that are independently brought to them; they do not commonly intervene of their own initiative.29 Momcilovic v The Queen (2011) 245 CLR 1 concerned, in part, the validity of several provisions in the Charter of Human Rights and Responsibilities Act 2006 (Vic). While this case concerns separation of judicial power at the State level (see [6.110]), the various judgments outlined important principles relevant to both the States and the Commonwealth. The Charter sets out several human rights in its Pt II. In Pt III, s 32 requires courts to interpret statutes “in a way that is compatible with human rights” if “it is possible to do so” consistently with the statute’s purpose. Section 36 permits the Supreme Court to issue Declarations of Inconsistent Interpretation if it is unable to interpret a statute consistently with the human rights in Pt II. Such a Declaration has no legal effect, beyond that specified in s 37, which is that the relevant Minister must table a response in Parliament within six months. There is no requirement that the relevant provision be amended. Momcilovic concerned the application of the Charter to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Section 5 provided for the shifting of the burden of proof for drug trafficking allegations in certain circumstances. The Court of Appeal of Victoria could not interpret s 4 consistently with the presumption of innocence recognised in s 25(1) of the Charter. Hence, it issued a Declaration of Inconsistency. The interpretation of s 5 facilitated the conviction of Momcilovic on drug trafficking offences, so she appealed to the High Court. In the result, the High Court was able to read s 5 in such a way as to vacate her conviction.30 The entire Court found that the making of a Declaration under s 36 was an exercise of non-​judicial power. For example, French CJ stated at 65: [A]‌declaration of inconsistent interpretation made under s 36 does not involve the exercise of a judicial function. At the point at which such a declaration is made the Court will have

28 K Booker, A Glass and R Watt, Federal Constitutional Law: An Introduction (2nd ed, Butterworths, Chatswood, 1998), pp 157-​158. See also Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266-​267 and Attorney-​General of the Commonwealth v The Queen (1957) 95 CLR 529 at 541. 29

See Luton v Lessels (2002) 210 CLR 333 at 389 per Callinan J.

30 Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) places the legal burden on the defendant of disproving possession on the balance of probabilities. Ms Momcilovic was convicted of trafficking under s 71AC of the Act in relation to drugs which belonged to her partner, but which were found in her apartment. The High Court found by majority that this reverse onus provision should not have been held to apply to the offence with which Ms Momcilovic had been charged.

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decided all matters relevant to the disposition of the proceedings. The power conferred by s 36 plays no part in that process. The declaration sets down no guidance for the disposition of future cases involving similar principles of law. It has no legal effect upon the validity of the statutory provision which is its subject. It has statutory consequences of a procedural character. Those statutory consequences are relevant to the Attorney-​General as a member of the Executive and as a member of the Victorian Parliament and to the Parliament itself. The declaration of inconsistent interpretation cannot be regarded as analogous to the judicial function nor to any functions historically exercised by courts and which, for that reason, have been regarded as judicial.

Gummow J said that s 36 provided for, “in substance, formal advice to the Attorney-​ General” (at 95). Similarly, Heydon J found that “a s 36 declaration is merely advisory in character” (at 185).31 The existence of a “controversy” between parties is not a decisive characteristic of judicial power. In R v Davison (1954) 90 CLR 353 (discussed in [6.40]), the sequestration order at issue was made in response to the bankrupt’s unopposed application, yet the making of the order was characterised as a judicial function. The same can also be said in some circumstances with regard to the administration of a trust, and the grant of a probate, which both concern the exercise of judicial power.32

Breadth or nature of discretion to be exercised [6.30]  One must examine the extent of discretionary powers conferred upon the relevant decision-​maker; the broader the discretion conferred, the less likely it is that the function is judicial. Permissible consideration of a wide range of policy and political considerations exemplifies non-​judicial rather than judicial power. Indeed, if the decision-​maker is free to make her or his decision on the basis of broad policy considerations, it is arguable that there are no antecedent “rights” involved in the determination.33 In R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277, the High Court found that the jurisdiction conferred under s 140 of the Conciliation and Arbitration Act 1904 (Cth) on the Commonwealth Industrial Court was a non-​judicial function. Under s 140, the Court could disallow any industrial organisation’s rule upon its own motion if it considered the rule to be “tyrannical or oppressive” or “unreasonable”. The High Court found that the discretion conferred under s 140 was to be exercised according to industrial and administrative criteria, rather than legal criteria. Similarly, in R v Spicer; Ex parte Waterside Workers Federation (1957) 100 CLR 312, the discretion conferred under s 37 (regarding the registration of waterside workers) of the Stevedoring Industry Act 1954 (Cth) on the Commonwealth Industrial Court was non-​judicial, as it was not sufficiently “bounded or governed by … ascertainable tests or standards” (at 319). Despite the Spicer cases, numerous subsequent decisions have upheld the conferral of broad discretionary jurisdiction upon courts.34 In post-​ Spicer cases, the High 31 See also Crennan and Kiefel JJ at 222. 32 Lane, n 21, p 203. 33 Stellios, n 22, p 255. 34 Stellios, n 22, pp 255-​260. See, for example, Cominos v Cominos (1972) 127 CLR 588, regarding the breadth of discretion conferred upon State Supreme Courts under the Matrimonial Causes Act 1956 (Cth).

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Court has found that discretions given to courts, even though broadly defined in the legislation, were nevertheless circumscribed by the nature of the judicial process. Judges themselves will limit their exercise of broad discretion in accordance with accepted principles of judicial interpretation and the doctrine of precedent.35 Professor Lane has correctly suggested that “one can nearly always restrict, if this be the term, the discretion of a … court within these loose limits”.36 In Thomas v Mowbray, the plaintiff attacked the decision-​making process by which Judges issued control orders. Judges were required to predict, on the balance of probabilities, whether certain acts were or were not likely. They also had to decide whether certain restrictions on the person subject to the control order were “reasonably necessary” in the circumstances. Such decisions arguably confer too much discretion on judges. Yet the majority pointed out that judges commonly made decisions, even decisions regarding the constitutional validity of legislation,37 according to the criterion of reasonableness. Gummow and Crennan JJ in the majority noted (at 352-​353):38 The term “reasonable” which thus is a significant integer in s 104.4 is one with which courts are well familiar. This term has provided what is the great workhorse of the common law. One commentator has remarked, with some cogency, that this general concept, which draws its determinative force from the circumstances of each action on the case, yet has perhaps the most significant determinative role of all the general concepts which underpin common law doctrines.

Hayne J dissented in Thomas, finding that the powers were non-​judicial and therefore could not be conferred on a court. He stated (at 468-​469): [E]‌xamination will show that the impugned provisions have a number of features common to many forms of the exercise of judicial power. There is the giving of the power to courts, the requirement to find facts, the specification of a standard of proof, the articulation of the connection that is to be drawn between premise and conclusion using terms familiar to judges and lawyers (“reasonably necessary” and “appropriate and adapted”). But what sets the impugned provisions apart from an exercise of judicial power is the indeterminacy of the criterion that the courts are required to apply –​“for the purpose of protecting the public from a terrorist act”. That criterion is unlike any that hitherto has been engaged in the exercise of judicial power. It is a criterion that does not call for the judicial formulation of standards of conduct or behaviour. It is a criterion that does not require the application of any familiar judicial measure of a kind found in fields as diverse as the law of tort (“reasonable”), matrimonial causes (“just and equitable” or “necessary … to do justice”), corporations law or related fields (“just and equitable”), regulation of contractual relations (“inequitable or unduly onerous”) or industrial relations (“oppressive, unreasonable or unjust”). It is a criterion that does not direct attention to whether an identified person is likely to offend against the criminal law if released from prison. It is a criterion that seeks to require federal courts to decide whether and how a particular order against a named person will achieve or tend to

35 Stellios, n 22, p 258. 36 Lane, n 21, p 201. 37 Indeed, see Chapter 14 on the general concept of proportionality. 38 See also Gleeson CJ at 332-​333.

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achieve a future consequence: by contributing to whatever may be the steps taken by the Executive, through police, security, and other agencies, to protect the public from a terrorist act. It is a criterion that would require a federal court to consider future consequences the occurrence of which depends upon work done by police and intelligence services that is not known and cannot be known or predicted by the court.

Later, Hayne J added (at 472-​473): A court deciding whether to grant an interim control order, and deciding how that order would be framed, would usually, perhaps inevitably, give close attention to what the evidence adduced reveals about what the person who is to be the subject of the order would do, or would be likely to do, if the order were not made. The Code does not require, however, that the court decide, or even consider, whether the conduct to be restrained would otherwise be lawful or not. The Code offers no legal standard of that kind as a standard against which threatened or intended conduct on the part of the person who is to be the subject of the order is to be measured. No question of antecedent right or liability is to be determined. Rather, the focus of the relevant provisions of the Code falls exclusively upon a future consequence: the order’s achieving, or tending to the achievement of, “the purpose of protecting the public from a terrorist act”. The indeterminacy of the inquiry requires the conclusion that the task assigned to a federal court by s 104.4 is not the authority to decide a “matter”. The task assigned is not to exercise the judicial power of the Commonwealth.

Gummow and Crennan JJ in the majority also addressed the argument that the criteria to be used in issuing a control order were too policy-​oriented to be validly applied by judges (at 348-​351): Something should be said here of the significance of criteria for curial determination which fix upon considerations of “policy”. What is meant by the use of that word? In its general sense, a policy is a principle or course of action which is adopted or proposed, particularly by the legislature and by the executive in its administration of legislation. In Australian Communist Party v The Commonwealth Kitto J declared that “[t]‌he courts have nothing to do with policy”, but spoke too broadly. Where legislation is designed to effect a policy, and the courts then are called upon to interpret and apply that law, inevitably consideration of that policy cannot be excluded from the curial interpretative process. No principle of the separation of the judicial power from that of the other branches of government should foreclose that activity, for it is apt to lead to the just determination of controversies by the courts. Statutes implement particular legislative choices as to what conduct should be forbidden, encouraged, or otherwise regulated. It is a commonplace that statutes are to be construed having regard to their subject, scope and purpose. Much attention now is given by the courts, when engaged on that task, to placing the law in question in its context and to interpreting even apparently plain words in the light of the apprehended mischief sought to be overcome and the objects of the legislation. Courts are now inevitably involved on a day-​to-​day basis in the consideration of what might be called “policy”, to a degree which was never seen when earlier habits of thought respecting Ch III were formed. The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether “making the order would substantially assist in preventing a terrorist act” (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and

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circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-​making. It is true that an interim control order may depend for its effectiveness upon activities of the police and intelligence services. However, the presence of these considerations in a predictive assessment which founds relief of a quia timet nature is not repugnant to the exercise of federal judicial power.

Kirby J in dissent responded on this issue (at 418-​419): I accept that considerations of the “public interest” or “public policy” are sometimes applied in legal, including judicial, contexts. However, such considerations can easily be distinguished from the judicial standard that federal courts are asked to exercise in giving effect to s 104.4(1)(d) and (2) of the Code. The court in question here is not asked to take into account considerations of public policy. It is asked to determine what is necessary for “protecting the public”. This criterion is not merely one of the factors to be considered. It is the only factor. The role of determining what is “reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act”, balanced against the individual rights of the person subjected to the order, is at odds with the normative function proper to federal courts under the Constitution. I agree with Hayne J that the stated criteria “would require the court to apply its own idiosyncratic notion as to what is just”. The court would be required to make its decision without the benefit of a stated, pre-​existing criterion of law afforded by the legislature. In the present context and with the consequences that follow, the stated criteria attempt to confer on federal judges powers and discretions that, in their nebulous generality, are unchecked and unguided. In matters affecting individual liberty, this is to condone a form of judicial tyranny alien to federal judicial office in this country. It is therefore invalid.

Hayne J agreed with Kirby J (at 474): The subject-​matter of the particular power given to federal courts by s 104.4 (the power to make orders for the purpose of protecting the public from a terrorist act) is public protection. That is a subject which is quintessentially for the Parliament and the Executive to consider and it is for those branches of government to decide what steps are to be taken to achieve that purpose. It is not for the judicature to establish criteria that will decide those questions. It is for the judicature to decide whether the steps taken by the legislative and the executive branches are lawful. That role of the judicature is fundamental to the system of government for which the Constitution provides and is as important in times of threat as it is in other, more peaceful times. It is a role that must not be abdicated.

As noted at [6.25], Momcilovic concerned the validity of certain provisions of the Victorian Charter. One relevant provision was s 7(2), which sets out limits to the human rights recognised in the Charter, namely a test of proportionality. Only Heydon J in dissent found s 7 to be invalid, and with it the entire Charter. He found that s 7 “create[d]‌a kind of ‘proportionality’ regime without comprehensive criteria” (at 172). As its language was so vague and untrammelled, he found that “it contemplate[d] the making of laws by the judiciary, not the legislature” (at 172). Therefore, the section did not confer judicial power, and was in fact invalid according to Heydon J. The rest of the Court disagreed. For example, Crennan and Kiefel JJ found that “[t]he tests state in s 7(2) for proportionality are not novel” (at 214).39 39 See Chapter 14 ([14.60]) on proportionality generally.

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The Spicer doctrine has been more successfully argued in the reverse situation: that the conferral of seemingly judicial power upon a non-​ judicial body is in fact permitted due to the breadth of discretion granted.40 For example, the breadth of discretion conferred upon the Trade Practices Tribunal (TPT) in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 (that is, the power to declare agreements “contrary to the public interest”) helped identify its powers as non-​judicial. In Alinta, the Court was influenced in its characterisation of the relevant powers as non-​judicial by the fact that the Takeovers Panel took account of a broad range of economic issues in regulating takeovers. Thus, despite the strict approach evinced in the Spicer cases, the Court has adopted a far more lenient position, permitting Parliament to confer broad discretionary powers on both courts and non-​judicial bodies.

Decisions regarding existing rights and duties [6.35]  The creation of new rights and duties is a characteristic of non-​judicial decisions. Judicial decisions tend to authoritatively identify and declare existing rights and obligations arising from past conduct. In contrast, the making of an industrial award entails the creation of new rights: numerous cases have confirmed that this power is non-​judicial.41 Similarly, administrative assessments commonly create new rights and obligations.42 And of course, legislation creates new rights. However, exceptions to this principle exist. For example, legislatures do pass laws which have the effect of retrospectively changing existing rights.43 In Momcilovic, Heydon J in dissent said the following at 173-​174 of s 7 of the Victorian Charter, discussed at [6.25]: Section 7(2) requires the court to carry out the function which the legislature failed to carry out –​refashioning the ss 8-​27 human rights by working out what reasonable limits exist. The court is thus legislating through s 7(2) by giving a meaning to a particular “human right” which Parliament did not give. The legislature, instead of deciding for itself which rights are limited and in which circumstances, has delegated those tasks to the courts.

As noted, s 32 of the Victorian Charter required judges to interpret statutes in accordance with the Charter’s rights where possible. Heydon J interpreted s 32, the interpretation provision of the Victorian Charter, as authorising judges to change the meaning of legislation, and thus to legislate themselves.44 Again, the rest of the Court disagreed. For example, Crennan and Kiefel JJ found that the section did “not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes” (at 217).

40 Lane, n 21, p 201. See, for example, Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 191. 41

Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167.

42

See Luton v Lessels (2002) 210 CLR 333 at 345-​346 per Gleeson CJ, 360 per Gaudron and Hayne JJ, 374 per Kirby J and 389 per Callinan J.

43 See, regarding the legislature’s power to enact retrospective criminal laws, [6.160]. 44 See, for example, 181-​182.

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The nature of the “right” at issue is important in identifying an exercise of judicial or non-​judicial power. In R v Quinn; Ex parte Consolidated Foods (1977) 138 CLR 1, the Court held that the power vested in the Registrar for Trademarks (a non-​ judicial body) to cancel trademarks on the basis of existing statutory rights was not necessarily judicial. The “rights” concerned were not traditional legal rights, but special statutory rights created by the Parliament. The Parliament, as the creator of those rights, was found to be free to confer the power to remove those rights on any body, either judicial or non-​judicial. The legislation at hand was thus found to concern the investiture of “innominate” statutory powers, which could be classified as either judicial or non-​judicial.45 Similarly, in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361, the TPT was empowered to declare agreements to be contrary to the public interest; these declarations rendered targeted agreements unenforceable. The TPT could also make orders against traders seeking to implement such agreements. The majority found that the TPT was not vested with judicial power. Professor Zines originally explained the decision thus:46 The court was concerned with a new area of social control [restrictive trade practices] that had little resemblance to ordinary criminal or civil actions in a court of law. The description of the proceedings as “quasi-​legislative” is justified, and whether the tribunal should be in a position to determine the limits of its jurisdiction to deal with those matters of policy is itself a question of policy that (subject to other constitutional considerations) should be treated as one for parliament to decide.

In Thomas v Mowbray, one argument raised was that, in issuing control orders, federal judges were creating rights and duties under the control orders rather than resolving disputes about existing rights. A related concern was that control orders were largely based on perceptions of a person’s future conduct, rather than his or her past conduct. The majority did not deny that the issuance of a control order created new rights and duties. However, as noted at [6.40], the majority found that there were historical precedents for the exercise of such powers by judges, which indicated that they were not exclusively non-​judicial.47 In Alinta, the relevant powers of the Takeovers Panel were found to create new rights and obligations regarding a corporate takeover, which was a factor in the Court ultimately characterising those powers as non-​judicial. In Australian Communications and Media Authority v Today FM (2015) 255 CLR 352, discussed at [6.10], the power of ACMA to decide on whether a criminal offence had been committed was attached to its non-​judicial administrative power to issue, suspend and cancel licences, all of which create new rights and duties.

45 Lane, n 21, p 197. 46

L Zines, The High Court and the Constitution (5th ed, Federation Press, Annandale, 2018),p 232.

47 Gleeson CJ at 329.

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Historical considerations [6.40]  The history of a function is relevant to an issue of whether that function is judicial or non-​judicial.48 In R v Quinn; Ex parte Consolidated Foods (1977) 138 CLR 1, the Court dismissed the argument that the deregistration of trademarks was historically a judicial function. Comparatively recent legislation was held not to provide such a historical basis. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361, the Justices were influenced by the fact that the power vested in the TPT was relatively new, so “no traditional concepts” could be applied (Kitto J at 373). Similarly, Callinan J found that the powers conferred on the Child Support Registrar in Luton v Lessels (2002) 210 CLR 333 were new types of powers, which had not “traditionally” been conferred on courts.49 In R v Davison (1954) 90 CLR 353, the Court agreed that the making of sequestration orders in cases of bankruptcy was traditionally considered a judicial power at federation, and could not therefore be validly vested in the Deputy Registrar in Bankruptcy. This was so even though such sequestration orders can be seen as the creation of new rights, rather than as declarations of existing rights. Therefore, historical considerations have been used to facilitate the characterisation of functions as judicial, despite the occasional divergence of those functions from other classical indicia of “judicial power”. Historical considerations seemed to be important in Thomas v Mowbray. As noted at [6.35], it was argued that it was incompatible with the notion of judicial power that judges were issuing orders based on assessments of future rather than past conduct. The majority noted that the judiciary was commonly involved in preventative justice. For example, orders regarding bail, apprehended violence orders and binding over orders all involved assessments of likely future conduct. Those historical powers helped to prompt the majority to find that the power to issue control orders was judicial and could be validly conferred on federal courts.50 As noted by Gummow and Crennan JJ (at 357): The matters of legal history relied upon do support a notion of protection of public peace by preventative measures imposed by court order, but falling short of detention in the custody of the State. The plaintiff’s submission that such legislation is repugnant to Ch III should be rejected.

In Palmer v Ayres (2017) 259 CLR 478 the Court warned that “[h]‌istory alone does not provide a sufficient basis for defining the exercise of a power as judicial power” (at 494). Gageler J writing separately said (at 504): The perspective on the significance of history … is as important to determining whether a particular function is inherently non-​judicial (so as to lie beyond that which is capable 48

See also TCL Air Conditioner (Zhongshan) Co Ltd v Federal Court (2013) 251 CLR 533 at [105] per Hayne, Crennan, Kiefel and Bell JJ.

49

Luton v Lessels (2002) 210 CLR 333 at 389 per Callinan J. While Courts have traditionally made decisions regarding child maintenance, they have not made the decisions at issue in Lessels, which substituted a federal “collection and disbursement agency” as the body to whom payments were made. See discussion at [9.10].

50 In contrast, Kirby J distinguished control orders from these traditional functions on several bases at 422-​425.

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of being conferred on a court) as it is to determining whether a particular function is exclusively judicial (so as to be capable of being conferred only on a court). The primary question in each case is not as to how the function might have been exercised in practice at or around 1900. The answer to that narrow temporal question will be relevant, but it cannot be determinative. The aim is not simply to take a snap-​shot of the historical position at a moment in time. The fundamental question is as to how the particular function is now to be characterised having regard to the systemic values on which the framers can be taken to have drawn in isolating the judicial power of the Commonwealth and in vesting that power only in courts. The aim is to be faithful to those values.

Conclusion on judicial power and the “chameleon principle” [6.45]  Apart from the issue of enforceability, the line between judicial and non-​ judicial powers is unclear at the margins. It is also true that some powers are neither inherently judicial nor non-​judicial, and therefore they “take their character from the tribunal in which they are reposed and the way in which they are to be exercised, and thus, may be conferred on courts and tribunals as the Parliament chooses”.51 Kirby J referred to this principle as the “chameleon principle of innominate functions” (at 371) in Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350, and warned that it could “subvert the constitutional separation of powers” if “left uncontrolled”. However, the application of the principle is always up to the courts: it does not effectively allow Parliament rather than the courts “to draw the constitutional line”.52 It is ironic that the High Court, as will be seen, has insisted on a high degree of separation between judicial bodies and non-​judicial government organs, at least at the Commonwealth level, and yet has failed to delineate a clearer line between judicial and non-​judicial functions.

JUDICIAL POWER OF THE COMMONWEALTH [6.50]  Just as legislative power and executive power are split between the Commonwealth and the States, so too is judicial power. The judicial power of the Commonwealth is exercised with regard to the matters described in ss 75 and 76 of the Constitution. Section 75 lists matters which are deemed to be within the original jurisdiction of the High Court. As this jurisdiction is conferred by the Constitution itself, jurisdiction over such matters cannot be removed from the High Court except by constitutional amendment. Further, the Commonwealth may confer original jurisdiction on the High Court with regard to the matters listed in s 76, though it can choose not to, or may remove such jurisdiction if conferred. The High Court also has general appellate jurisdiction under s 73.53 Under s 77, the Commonwealth may also confer jurisdiction over ss 75 and 76 matters upon federal courts and State courts. 51 Per Gaudron J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360. See also Precision Data Holdings v Wills (1991) 173 CLR 167 at 188-​189, Gageler J in Magaming v The Queen (2013) 252 CLR 381 at 399, and Stellios, n 22, p 241. 52

See also Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381 at 393.

53 The High Court may hear appeals from all State Supreme Courts and federal courts. This sweeping appellate jurisdiction may be contrasted with the more limited appellate jurisdiction of the Supreme Court of the United States, which may only hear appeals related to federal issues.

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Section 75 lists the following matters as being within the original jurisdiction of the High Court: (i) matters arising under any treaty; (ii) matters affecting consuls or other representatives of foreign countries; (iii) matters in which the Commonwealth or a Commonwealth representative is a party; (iv) matters with an interstate character (that is, disputes between States, between residents of different States or between a State and a resident of another State); and (v) matters where certain orders (mandamus, prohibition or an injunction) are being sought against a Commonwealth officer. Section 76 authorises the federal Parliament to confer original jurisdiction on the High Court with regard to the following matters: (i) matters arising under the Constitution, or concerning its interpretation; (ii) matters arising under any law of the Commonwealth Parliament; (iii) matters of admiralty and maritime jurisdiction; and (iv) matters “relating to the same subject-​matter claimed under the laws of different States”. The meaning of s 76(iv) has not yet been properly elucidated, as the federal Parliament has conferred no jurisdiction under this provision. It seems to concern matters which overlap considerably with those in s 75(iv). It has been suggested that s 76(iv) refers to matters which could potentially be resolved in more than one State under the rules relating to conflict of laws.54

SEPARATION OF JUDICIAL POWERS –​COMMONWEALTH [6.55]  The doctrine of separation of judicial powers at the Commonwealth level consists of two distinct principles derived from Ch III of the Constitution. First, the Commonwealth may only confer judicial power on so-​called Chapter III courts, those courts described in s 71 of the Constitution. Second, the Commonwealth may not confer non-​judicial power on Chapter III courts. The application of both principles ensures the quarantining of the functions of the federal judicature from those of the federal legislature and the federal executive.

Principle 1: Judicial power may only be exercised by Chapter III courts [6.60]  The first limb of the doctrine of Commonwealth separation of judicial power was fashioned in the early days of federation. NSW v Commonwealth (Wheat case) (1915) 20 CLR 54 concerned the powers of the federal Interstate Commission, created 54 Moens and Trone give an example of a case of succession to property, where the property is located in one State, and the deceased dies in another State: G Moens and J Trone (eds), Lumb, Moens and Trone: The Constitution of the Commonwealth of Australia Annotated (9th ed, LexisNexis Butterworths, Chatswood, 2016), p 346.

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under s 101 of the Constitution.55 Section 103 dictates the terms and conditions of the Interstate Commissioners, including the fact that they only hold office for seven years. The Commonwealth Parliament vested the Interstate Commission with a mixture of non-​judicial and judicial powers, the latter including the power to hear and determine complaints, to grant injunctions, to grant declarations, and to penalise people for disobedience of its orders. An action was brought before the Commission in which it was alleged that the Wheat Acquisition Act 1914 (NSW) was constitutionally invalid. The Commission agreed, and issued an injunction against New South Wales prohibiting it from taking action under the Act. New South Wales appealed to the High Court on the basis that the Commission had no power to issue such an order. A High Court majority agreed, and set aside the order. The Court found that judicial power could only be conferred by the Commonwealth upon the classes of courts expressly listed in Ch III of the Constitution. Such was implicit in the words of s 71, which reads: The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

The Wheat majority found that s 71 provided an exhaustive description of the bodies which could be invested with judicial power of the Commonwealth. Rich J explained (at 108): The Constitution draws a clear distinction –​well known in all British communities –​between the legislative, executive and judicial functions of government of the Commonwealth. The legislative power is, by s 1, vested in Parliament, the constitution and powers of which are carefully defined in Chapter I. Chapter II deals with the Executive Government … Chapter III deals with the judiciary, and contains the most ample and meticulous provisions as to the tribunals which shall exercise such judicial powers and as to the subject matter of their jurisdiction.

Griffith CJ added (at 62): In my judgment the provisions of s 71 are complete and exclusive, and there cannot be a third class of courts which are neither federal courts nor State courts invested with federal jurisdiction.

Therefore, unless the Interstate Commission could be deemed one of the three types of court therein listed, it could not exercise federal judicial power. The Interstate Commission was clearly not the High Court. Nor was it an “other court”, which Rich J defined (at 89) as “such courts as Parliament finds already in existence, that is, State courts”. Was it “a federal court” created by the Commonwealth Parliament? Section 72 of the Constitution directed the terms and conditions of federal Judges. At the time of the Wheat case, such Judges had life tenure (unless removed for misconduct on an address by both Houses of Parliament).56 The Interstate Commissioners only 55 Section 101 reads: “There shall be an Interstate Commission, 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 of all laws made thereunder”. 56 No federal Judge has ever been so removed.

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had seven-​year terms, and were thus clearly not Federal Court Judges under s 72 of the Constitution, so the Commission itself could not be classified as a federal court. Therefore, the investiture of judicial power in the Commission was invalid. The Wheat decision was upheld in Waterside Workers’ Federation v J W Alexander (1918) 25 CLR 434, where the Commonwealth Court of Conciliation and Arbitration, despite its nomenclature, was held not to be a Chapter III court as its President did not have life tenure. As a result, the Court’s judicial powers of enforcing awards were invalidly conferred. Isaacs and Rich JJ (at 469-​470) addressed an argument that the tenure requirement was inconvenient, and duly explained why life tenure was important to the doctrine of separation of judicial power: An argument ab inconvenienti was urged. It was this: The Commonwealth might wish to create inferior Courts, and it would be seriously impeded if all the Justices were necessarily to have a life tenure. There are several answers: –​First, whatever the inconvenience to which the power of creating Courts other than the High Court (for the Constitution itself creates the High Court, leaving Parliament the mandate of completing its organisation) is subject, the conditions of s 72 and the words of s 72 are precise. Secondly, there is no real inconvenience, because under the power of investing State Courts with jurisdiction all the existing inferior Courts of Australia can be utilised. Thirdly, the Constitution does not look to the creation of Courts which, though subordinate to this Court, are of such calibre as to be officered by Judges whose tenure is of little importance. Fourthly, the suggestion overlooks the fact that s 72 is one of the strongest guarantees in the Constitution for the security of the States. The Constitution places by s 74 the whole fate of the State Constitutions, where they compete with the Federal Constitution, in the hands of the High Court. That Court’s decision in such a question is final, unless in the exercise of its discretion it grants a certificate permitting an appeal to His Majesty in Council. It is plain that the independence of the tribunal would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life, subject to proved misbehaviour or incapacity. It is not like the case of a unitary Parliament having one interest only to consider, namely, the one territory. It is the case of a Federation, where the central legislative and executive bodies are largely competitive with, and in a sense adverse to, the State authorities. On the whole, the suggested inconvenience sinks into insignificance when the greater considerations are borne in mind.

Certainly, Judges are much less prone to seek “the approval” of the other political branches of government by giving “favourable” decisions if they have secure tenure, and are not required to seek reappointment. The Wheat and Waterside Workers’ Federation cases thus establish that federal judicial power may only be vested in “Chapter III courts”: that is, the High Court, federal courts or State courts. One characteristic of a federal court (and the High Court) is that its members have tenure. Currently, federal Judges, including High Court Justices, have tenure until the age of 70, when they must retire.57 The federal courts in operation in 2019, apart from the High Court, are the Federal Court, the Family Court and the Federal Circuit Court. This may of course change in the future. The Wheat principle was reaffirmed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. The HREOC had the power to conciliate and arbitrate 57 In 1977, the Constitution was amended to give federal Judges tenure only until the age of 70.

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disputes under Commonwealth anti-​discrimination legislation. If that process failed, HREOC used to make a decision on whether a breach of the legislation had occurred. At the time of the Brandy case, the Racial Discrimination Act 1975 (Cth) provided that HREOC decisions could be enforced if they were “registered” in the Federal Court as if they were a decision of that Court. The High Court found that the mere fact of registration could not convert the HREOC decision into a Federal Court order, as the latter body had not considered the facts or the law of the case at hand. The registration provisions were invalid, as they essentially authorised the exercise of judicial power by HREOC, clearly a non-​judicial body. The first principle of the doctrine of separation of judicial power, which confines the exercise of judicial power to independent courts, is generally felt to protect the integrity of the judicial process and the civil rights of people to a fair trial. Nevertheless, the Brandy decision demonstrates how application of this limb of separation of powers can lead to inconvenient results.58 The Brandy decision necessitates the enforcement of human rights statutes in the formal and potentially intimidating atmosphere of a court by Judges who might have less expertise in the complex area of discrimination law than the HREOC commissioners. Furthermore, the cost of proceedings before a federal court is considerably more than the cost of seeking a remedy from HREOC (now renamed the Australian Human Rights Commission).

Principle 2: Federal courts may not exercise non-​judicial power [6.65] In R v Kirby; Ex parte Boilermakers Society of Australia (Boilermakers case) (1956) 94 CLR 254, the powers of the Commonwealth Court of Conciliation and Arbitration were again at issue. The “Court” had been reconstituted after Waterside Workers to ensure that all members had tenure. The Conciliation and Arbitration Act 1904 continued, however, to confer a mixture of judicial and non-​judicial powers upon the Court. Section 25 gave the Court powers to settle industrial disputes through the process of conciliation and arbitration, and to make orders and industrial awards to regulate the working conditions within industries. These powers had been classified as non-​judicial in Waterside Workers. Section 29 conferred judicial powers to impose penalties for breach of orders or awards, to order compliance with the orders or awards, to interpret those orders and awards and to issue injunctions to prevent contravention of the orders and awards. Section 29A gave the Court the same powers to punish for contempt as were vested in the High Court. In Boilermakers, the High Court was asked to consider whether the simultaneous vesting of judicial and non-​ judicial power in the one body was a breach of Ch III. The majority found that the investiture of such a mixture of powers was indeed a breach of the constitutional doctrine of the separation of powers. The majority, of Dixon CJ, McTiernan, Fullagar, and Kitto JJ, reaffirmed and justified the Wheat principle (at 270): It is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State. It is a proposition which has been 58

See also Lane v Morrison (2009) 239 CLR 230, regarding the invalidity of the establishment of the Australian Military Court.

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repeatedly affirmed and acted upon by this Court … Indeed to study Chapter III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in the affirmative but its very nature puts out of question the possibility that the legislature may be at liberty to turn away from Chapter III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia. No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chapter III. The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted very early in the development of the principles of interpretation.

The majority then went on to enunciate a new reciprocal principle, prohibiting the Commonwealth from vesting non-​judicial power in Chapter III courts (at 271-​272): A number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of courts established by or under Chapter III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto. First among them stands the very text of the Constitution. If attention is confined to Chapter III it would be difficult to believe that the careful provisions for the creation of a federal judicature as the institution of government to exercise judicial power and the precise specification of the content or subject matter of that power were compatible with the exercise by that institution of other powers. … To one instructed only by a reading of Chapter III and an understanding of the reasons inspiring the careful limitations which exist upon the judicial authority exercisable in the Federal Commonwealth of Australia by the federal judicature brought into existence for the purpose, it must seem entirely incongruous if nevertheless there may be conferred or imposed upon the same judicature authorities or responsibilities of a description wholly unconnected with judicial power. It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive. What reason could there be in treating it as an exhaustive statement, not of the powers, but only of the judicial power that may be exercised by the judicature? It hardly seems a reasonable hypothesis that in respect of the very kind of power that the judicature was designed to exercise its functions were carefully limited but as to the exercise of functions foreign to the character and purpose of the judicature it was meant to leave the matter at large.

The Court added (at 274-​275): With reference to the federal judicature, the true contrast in federal powers is not between judicial power lying within Chapter III and judicial power lying outside Chapter III. That is tenuous and unreal. It is between judicial power within Chapter III and other powers. To turn to the provisions of the Constitution dealing with those other powers surely must be to find confirmation for the view that no functions but judicial may be reposed in the judicature.

On appeal in Attorney-​General (Cth) v R; Ex parte Australian Boilermakers Society (1957) 95 CLR 529, the Privy Council agreed with the enunciation of this second limb to separation of judicial powers (at 540-​541): In a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive. To vest in the same body executive as well as judicial power is to remove a vital constitutional safeguard.

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This second doctrine of the separation of powers was ostensibly based on implications from the text. However, it is arguable that a number of implications could arise from the fact that express provision was only made for the conferral of federal judicial power on Chapter III courts: it is not inevitable that conferral of other powers was necessarily prohibited.59 Further, the Privy Council was clearly influenced (at 538-​539) by the division of the Constitution into separate Chapters, dealing with legislative, executive and judicial power, feeling that this separation implied complete separation of functions. An alternative deduction from this structure is that it was simply a convenient way of organising the text of the Constitution.60 Given the disputable nature of these implications, it is likely that the High Court and Privy Council decisions were largely influenced by a policy objective of preserving the integrity and reputation of the federal judicial system.61 The High Court and Privy Council ultimately found that the Commonwealth Court of Conciliation and Arbitration was essentially an arbitral tribunal, and thus a non-​ judicial body. Thus, its judicial powers were invalidly conferred. In Magaming v The Queen (2013) 252 CLR 381, the facts of which are discussed at [6.155], the majority rejected Magaming’s submission that the imposition, by a court, of a mandatory minimum sentence in circumstances that were arbitrary amounted to an exercise of non-​judicial power by a court. The majority stated (at 397-​398): The basic proposition which the appellant advanced was that the prescription of a mandatory minimum penalty for the offence created by s 233C of the Act contravened Ch III of the Constitution. No satisfactory reason was provided for applying proportionality reasoning … in determining whether Ch III was contravened. At what point of the analysis of that proposition proportionality reasoning would properly be deployed, or how it would be deployed, was not explained. All that was said, in effect, was that the sentence which had to be, and was, imposed on the appellant was too “harsh”. But the standard of comparison implicitly invoked was not identified. The comparison sought to be made was not amplified beyond, or supported by more than, generalised assertions of what was “necessary” to work sufficient general deterrence of the proscribed conduct. How, or whether, this Court could decide what generally prescribed level of penalty is “necessary” or “not necessary” to deter certain conduct need not be considered in this appeal. It is enough to say that the appellant demonstrated no basis for applying proportionality reasoning or for forming the factual conclusions on which this aspect of his argument depended. If, as the appellant submitted, the sentence which the Act required the sentencing judge to impose on him was too “harsh” when measured against some standard found outside the relevantly applicable statutory provisions, that conclusion does not entail invalidity of any of the impugned provisions.

Wakim: Extension of the Boilermakers doctrine [6.70]  Adherence to this second limb of the doctrine of separation of judicial powers was evinced in Re Wakim; Ex parte McNally (1999) 198 CLR 511, where the validity of the cross-​vesting scheme, under which State jurisdiction was conferred on the Federal

59 Stellios, n 22, pp 219-​220. 60 Meagher et al, n 18, p 877. 61 Stellios, n 22, pp 219-​220.

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and Family Courts, was challenged.62 The purpose of the cross-​vesting scheme was to enable the hearing of matters, containing a mixture of federal and State jurisdictional issues, in the one Court. It also enabled the federal courts to build up expertise and, by virtue of the national reach of their jurisdiction, to promote uniformity throughout Australia in particular legal areas, namely corporations law and family law. Whereas the Commonwealth can certainly vest State courts with federal jurisdiction under s 77 of the Constitution, the Constitution is silent with regard to the reciprocal situation. In Wakim, a majority of 5:1 found that State jurisdiction could not be vested in federal courts. Thus, Wakim extends the doctrine in Boilermakers. The Boilermakers case decided that the Commonwealth could not vest non-​judicial power in Chapter III courts. Wakim prescribes that only the judicial power of the Commonwealth (which is confined to the matters listed in ss 75 and 76 of the Constitution) can be vested in federal courts. Thus, the States are not permitted to vest State judicial power in federal courts, nor can the Commonwealth authorise the reception of such judicial power by federal courts. The majority rejected arguments based on the convenience and efficacy of the cross-​vesting scheme: such arguments provided no basis for ignoring the constitutional limits to the powers that can be conferred on federal courts. In the majority, McHugh J stated (at 557): The legislatures of the States have no power, with or without the consent of the Parliament of the Commonwealth, to invest State jurisdiction or judicial power in federal courts. There is not a word in Chapter III which indicates expressly or by implication that it authorises the Parliament of the Commonwealth to create federal courts to exercise State jurisdiction or State judicial power. Nor is there a word in Chapter III which indicates that the States can invest such jurisdiction or power in the federal courts. That is hardly surprising. “In a dual political system you do not expect to find either government legislating for the other” or its courts. Because that is so, s 77(iii) of the Constitution expressly empowers the Parliament of the Commonwealth to invest “any court of a State with federal jurisdiction”. Given the presence of s 77(iii), the absence of any express power in the States to invest State jurisdiction in federal courts is itself enough to indicate that the States lack the power to do so. But in addition, the settled doctrine of this Court is that Chapter III exhaustively defines the “matters” that may be the subject of the judicial power of the Commonwealth and exhaustively defines the “matters” that the Parliament of the Commonwealth may invest in the federal courts which it creates. The irresistible conclusion from the terms of Chapter III is that it authorises the Parliament of the Commonwealth to create federal courts but only for the purpose of exercising jurisdiction with respect to the matters specified in ss 75 and 76 of the Constitution.

McHugh J added (at 562): In R v Kirby; Ex parte Boilermakers Society of Australia, Dixon CJ, McTiernan, Fullagar and Kitto JJ said that “[t]‌he judicial power, like all other constitutional powers, extends to every authority or capacity which is necessary or proper to render it effective”. But the effectiveness of the creation of federal courts or the conferring upon them of federal jurisdiction with

62 The cross-​vesting scheme had previously been challenged in Gould v Brown (1998) 193 CLR 346, which yielded a split 3:3 decision. The cross-​vesting scheme was supported by a statutory majority, as its validity had the support of the Chief Justice. With the subsequent retirements of two members of the majority, Brennan CJ and Toohey J, it was not surprising that the cross-​vesting scheme was challenged again within two years.

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respect to the matters specified in ss 75 and 76 of the Constitution does not require the exercise of State jurisdiction. Conferring State jurisdiction on federal courts may make the exercise of State jurisdiction more effective. But it does nothing for the effective exercise or execution of federal jurisdiction or the creation of federal courts. Indeed, it could plausibly be argued that conferring State jurisdiction on federal courts hampers the effective exercise of the federal jurisdiction of those courts by diverting the time and resources of federal judges from the determination of matters of federal jurisdiction. But whether that be so or not, the jurisdiction which the States purport to confer on the federal courts has nothing to do with federal jurisdiction or the execution of the powers of the federal courts.

Gummow and Hayne JJ, with whom Gaudron J agreed, paid cursory attention to the argument that the scheme was convenient and therefore should be deemed constitutional.63 They stated (at 572): It was suggested in argument that, in considering the validity of the legislation, significance should be attached to the statement in the preamble as to the legislative purpose of ameliorating what is identified as inconvenience and expense occasionally caused to litigants by jurisdictional limitations in federal, State and Territory courts. However, the purposes, motives or intentions of the relevant legislatures and their members do not provide a criterion by which validity is to be determined. Rather, it is the operation and effect of the law in question which defines its constitutional character.

The decision in Re Wakim demonstrates the occasional inconvenience entailed in strict adherence to the second Boilermakers principle. Indeed, this principle has previously attracted judicial criticism. Barwick CJ in R v Joske; Ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87 stated (at 90, see also Mason J at 102): The principal conclusion of the Boilermakers Case (1956) 94 CLR 254; (1957) 95 CLR 529; (1957) AC 288 was unnecessary, in my opinion, for the effective working of the Australian Constitution or for the maintenance of the separation of the judicial power of the Commonwealth or for the protection of the independence of courts exercising that power. The decision leads to excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit. But none the less and notwithstanding the unprofitable inconveniences it entails it may be proper that it should continue to be followed. On the other hand, it may be thought so unsuited to the working of the Constitution in the circumstances of the nation that there should now be a departure from some or all of its conclusions.

There is no doubt that certain functions, such as the “core” of legislative (for example, enacting statutes) or executive powers (for example, performing a ministerial role) cannot and should not be invested in a court.64 However, it may be questioned whether the judicial process is tainted by a court’s involvement in the exercise of any non-​judicial power. An alternative policy underlying this second limb may be the need to ensure that political decisions (which are non-​judicial) are made by politically accountable decision-​makers, rather than judges with secure tenure.65 This second

63 Kirby J issued an energetic dissent, see 602ff. 64

L Zines, The High Court and the Constitution (4th ed, Butterworths, Chatswood, 1997), p 214.

65 E Handley, “Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power” (1998) 20 Sydney Law Review 183 at 202.

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policy reason still fails to justify the denial of all non-​judicial functions to courts, as not all of those functions are “political”.

EXCEPTIONS TO THE TWO PRINCIPLES [6.75]  Strict adherence to both principles regarding the separation of judicial powers can prove inconvenient, as has been evinced in the Brandy and Wakim cases. It is therefore not surprising that a number of exceptions have been built into both principles.

Exceptions to principle 1 Delegation of judicial power [6.80]  A general exception to the principle that judicial power must only be exercised by Chapter III courts is that judicial power may, within limits, be delegated to non-​judicial bodies by Chapter III courts. In Harris v Caladine (1991) 172 CLR 84, the Court found s 37A of the Family Law Act 1975 (Cth) valid. Section 37A authorised the delegation of discrete judicial functions by the Family Court to Family Court registrars, namely the making of consent orders for the dissolution of a marriage, and regarding the custody, guardianship and welfare of children. Mason CJ and Deane J stated (at 95): It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court’s jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters.

Section 37A did not confer fundamentally important judicial powers upon the registrars. Consent orders are made without argument, and require no real adjudication on the part of the registrar. Mason CJ and Deane J went on (at 95): The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.

Again, s 37A complied with the second of the Justices’ conditions, as a full review was available to parties on all questions of fact and law before the Court.

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Discrete exceptions [6.85]  There are also a number of discrete exceptions to the principle that federal judicial power may only be exercised by Chapter III courts. Section 49 of the Constitution, which deals with “the powers, privileges and immunities” of the Parliament, authorises the Commonwealth Houses of Parliament to punish for contempt of Parliament, as was confirmed in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157. In R v White; Ex parte Byrnes (1963) 109 CLR 665, the Court held that public service disciplinary tribunals were permitted to impose punishments for disciplinary offences by Commonwealth public servants. Similarly, the Court in Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350 found that the investiture of disciplinary powers in the Australian Securities and Investments Commission, a non-​judicial body, in respect of liquidators was permissible. However, the Court suggested that the powers were truly non-​judicial, thus indicating that no “exception” arose on the facts. In R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 453, the High Court held that courts martial and other military tribunals could validly exercise judicial power. Later cases66 rendered the extent of the permissible jurisdiction of courts martial unclear, though it is certain that courts martial do have the ability to exercise some judicial power over military personnel. In particular, it is uncertain whether military tribunals can exercise judicial power with regard to any alleged offence perpetrated by a person in the military, or whether they can only exercise jurisdiction in respect of offences with a “service connection”.67 The courts martial “exception” had been explained by Dixon CJ in R v Cox; Ex parte Smith (1945) 71 CLR 1 (at 23) as well as the majority in White v Director of Military Prosecutions (2007) 231 CLR 570 in the following way: courts martial did not exercise the judicial power of the Commonwealth but were, rather, institutions that were essential to maintaining military discipline in a just manner within military structures under the defence power, s 51(vi). The military court structure in Australia was redesigned under the Defence Legislation Amendment Act 2006 (Cth), which inserted a new Div III of Pt VII into the Defence Force Discipline Act 1982 (Cth). The new s 114 created the Australian Military Court (AMC) which, unlike courts martial, sat outside the ordinary military command structure. The separation of the new court from that structure was intended to enhance its independence and impartiality. The validity of the new court structure was challenged in Lane v Morrison (2009) 239 CLR 230. At 260-​261, Hayne, Heydon, Crennan, Kiefel and Bell JJ stated: [T]‌he question which is presented by Ch III of the Constitution is whether the body under consideration exercises the judicial power of the Commonwealth.

66

Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18; White v Director of Military Prosecutions (2007) 231 CLR 570.

67

See Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308 at 321-​322 per McHugh J.

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That constitutional question was resolved in respect of courts-​martial, as it was in R v Bevan, R v Cox and later Re Tracey, at a time when courts-​martial were not independent of the chain of command of the forces. Courts-​martial were convened only by order from within the chain of command; conclusions of guilt and determinations of punishment were subject to review or confirmation within that chain of command. A court-​martial did not make a binding and authoritative decision of guilt or determination of punishment. A court-​martial did not enforce its decisions. Enforcement of any decision, other than acquittal of the accused, depended upon the outcome of review of the decision within the chain of command. But a central purpose of the creation of the AMC was to have the new body make binding and authoritative decisions of guilt and determinations about punishment which, without further intervention from within the chain of command, would be enforced. That the AMC is to make binding and authoritative decisions on the issues identified without further intervention from within the chain of command is reason enough to conclude that it is to exercise the judicial power of the Commonwealth.

The AMC, unlike its predecessor courts martial, did not therefore come within an exception to the principle of the separation of powers. It was a court that exercised the judicial power of the Commonwealth and which therefore had to comply with Ch III. As its Judges did not have tenure, the High Court unanimously found that the AMC had been invalidly established. Division III of Pt VII of the Defence Force Discipline Act 1982 was entirely invalid. The demise of the AMC led the federal government to enact the Military Justice (Interim Measures) Act (No 2) 2009 (Cth), which purported to validate the punishments that had been imposed pursuant to AMC decisions in its Item 5 of Sch 1. That item was challenged in Haskins v Commonwealth (2011) 244 CLR 2268 by one Joseph Haskins, who sought to sue the Commonwealth for the tort of false imprisonment, as he had been detained pursuant to an AMC order. The High Court majority found Item 5 to be valid. As the plaintiff’s detention could have arisen by order or an ordinary court martial, that is by a body that was not a Chapter III court, it was held that the retrospective validation of the punishment was not an impermissible exercise of judicial power by the legislature. Hence, the existence of the “courts martial exception” permitted the Commonwealth to retrospectively validate orders that could have been made by a court martial, even though they were not. Heydon J’s dissent is discussed at [6.150].

Exceptions to principle 2 [6.90]  There are two exceptions to the principle that the Commonwealth may not confer non-​judicial powers on Chapter III courts. First of all, courts may exercise those non-​judicial powers which are incidental to the effective exercise of their judicial functions. Second, judges may act in non-​judicial roles in their personal, as opposed to official, capacity (the “persona designata” exception).

68

See also Nicholas v Commonwealth (2011) 244 CLR 66.

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Incidental powers [6.95] In Boilermakers, the Court outlined one exception to the second limb of the doctrine of separation of judicial power (at 269-​270): Section 51(xxxix) extends to furnishing courts with authorities incidental to the performance of the functions derived under or from Chapter III and no doubt to dealing in other ways with matters incidental to the execution of the powers given by the Constitution to the federal judicature.

In R v Joske; Ex parte Shop Distributive and Allied Employees Association (1976) 135 CLR 194, certain sections of the Conciliation and Arbitration Act 1904 (Cth), which conferred broad discretionary powers upon the Industrial Court to rectify or validate the actions of, or to approve schemes to reorganise, trade unions after the Industrial Court had made a judicial decision to invalidate pre-​existing rules, were challenged as a breach of the Boilermakers principle. All of the High Court agreed that the Industrial Court could validly exercise all of those powers. Barwick CJ (at 201) and Stephen J (at 210) found that the Industrial Court’s powers to address the consequences of its order for invalidity were incidental to its judicial power to make a decision of invalidity. Mason and Murphy JJ agreed that the powers were ancillary to the exercise of judicial power, and were in fact inherently judicial.69 Thus, non-​judicial powers which are incidental to the exercise of judicial power are likely to be at the cusp of the divide between non-​judicial and judicial power, which is, as we have seen, itself uncertain. In Wakim, McHugh J noted (at 562-​563) that federal courts could exercise “accrued jurisdiction” over State law when the exercise of such jurisdiction was incidental to the determination of federal issues in a case. Thus, federal courts may make determinations under State laws if such determinations are part and parcel of a single justiciable issue involving, in the main, federal jurisdiction. In Momcilovic, Crennan and Kiefel JJ joined their fellow Judges in finding that the power of the Supreme Court of Victoria to issue Declarations of Inconsistent Interpretation under s 36 of the Victorian Charter was non-​judicial (see [6.25]). However, they found that such a Declaration followed on from the ordinary judicial process, under s 32 of the Charter (see [6.25]), of attempting to interpret a Victorian statute (s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)) in accordance with a Charter right (in this case s 25(1)). At 223: The exercise of judicial power by the Court of Appeal in proceedings concerning the interpretation of s 5 of the Drugs Act placed that Court in a position to identify any inconsistency between s 5 of the Drugs Act and s 25(1) of the Charter, and to draw a conclusion in respect of that inconsistency. That connection is not sufficient to render the power to make a declaration an exercise of judicial power, but it serves to show that the making of a declaration is a function incidental to an exercise of judicial power.

Of course, Momcilovic concerned the exercise of powers by a state rather than a federal court. Nevertheless, Crennan and Kiefel JJ indicate that a like power conferred on a federal court would be valid due to the exception regarding incidental powers. All of the other Judges indicated that such a power could not be conferred at the federal

69

See also Cominos v Cominos (1972) 127 CLR 588; Stellios, n 22, p 264; Meagher et al, n 18, pp 910-​911.

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level, as no relevant exception would apply to permit the exercise by a federal court of a non-​judicial power.70 Persona designata exception [6.100]  The existence of the “persona designata” exception was confirmed by a slim majority in Hilton v Wells (1985) 157 CLR 57. Section 20 of the Telecommunications (Interception) Act 1979 (Cth) authorised “a Judge of the Federal Court of Australia”71 to issue warrants for the interception of telephone communications. In Hilton, the admissibility of certain evidence obtained by phone tapping, as well as the validity of s 20, was challenged on the basis that s 20 authorised the exercise of non-​judicial power (the power to issue search warrants) by federal judicial bodies. In essence, the argument was that to confer power on a federal Judge was tantamount to conferring power on a federal court. A majority of 3:2 found that the section was valid. The majority, of Gibbs CJ, Wilson and Dawson JJ, found s 20 was valid as the power was conferred upon a Judge in his/​her personal capacity, as a “designated person” or “persona designata”, rather than upon a Judge in her or his judicial capacity as a member of the Federal Court. Mason and Deane JJ issued a vigorous dissent, arguing (at 81-​82, and at 83-​84): The ability of Parliament to confer non-​judicial power on a judge of a Chapter III court, as distinct from the court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers Case. One may ask: what is the point of our insisting, in conformity with the dictates of the Boilermakers Case, that non-​judicial functions shall not be given to a Chapter III court, if it is legitimate for Parliament to adopt the expedient of entrusting these functions to judges personally in lieu of pursuing the proscribed alternative of giving the functions to the court to which the judges belong? Another reason for adhering to a strict application of settled principle is that when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled to expect that he will perform the function in that capacity. To the intelligent observer, unversed in what Dixon J. accurately described –​and emphatically rejected –​as “distinctions without differences” … it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade.

Indeed, the minority’s fears of the exception dismantling the second limb of the doctrine of separation of powers are justified in light of a presumption outlined in the majority joint judgment (at 73): The nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person. If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue

70 See, for example, French CJ at 65-​66. 71 “Judge” was also defined within the legislation to mean a State judge or judge from the Australian Capital Territory or Northern Territory. On the facts of Hilton, only the validity of the reference to a “Federal Court Judge” was at issue.

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of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person.

The majority concluded (at 73-​74), with a policy justification for its decision: [W]‌e conclude that s 20 confers no power on the Federal Court and does not infringe the rule laid down in the Boilermakers Case. … The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers.

Hilton v Wells, being decided by only a bare majority in a five-​man High Court, was a vulnerable precedent. However, a 6:1 majority in Jones v Commonwealth (1987) 71 ALR 497 refused to revisit Hilton v Wells, thus entrenching the persona designata principle as an exception to the Boilermakers principle.72 Indeed, the doctrine does provide an explanation for the numerous appointments of federal Judges in non-​judicial roles which have occurred throughout Australian history, including appointments to administrative tribunals, Royal Commissions and even as international ambassadors.73 The persona designata exception therefore allows the Commonwealth Parliament to confer powers upon single Judges in their personal capacity. The “capacity” issue is essentially a question of construction of the statutory language, though the Hilton majority certainly indicated that the Court was likely to give the legislature the benefit of the doubt in this regard, facilitating the valid investiture of non-​judicial powers in judges. Subsequent cases have not been concerned with the existence of the exception, but with limitations to the exception. Grollo v Palmer (1995) 184 CLR 348 again concerned the validity of telephone interception legislation, which was upheld by a majority of 4:1. The majority, Brennan CJ, Deane, Dawson and Toohey JJ, noted (at 364) the following statement by the majority judgment in Hilton (at 73-​74): If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers Case would doubtless render the legislation invalid.

The majority in Grollo extrapolated on when the limits to the “persona designata” exception might arise (at 364-​365): The conditions thus expressed on the power to confer non-​judicial functions on Judges as designated persons are twofold: first, no non-​judicial function that is not incidental to a judicial function can be conferred without the Judge’s consent; and, second, no function can be conferred that is incompatible either with the Judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (“the incompatibility condition”). The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-​judicial

72 Nevertheless, judgments in Wainohu v NSW (2011) 243 CLR 181 seemed to concede that “the distinction [between a personal appointment and an appointment as a judge] is difficult to grasp” (French CJ and Kiefel J at 211-​212). 73 See F Wheeler, “Federal Judges as Holders of Non-​Judicial Office”, in Opeskin and Wheeler (eds), n 1, pp 446-​450 for examples of such appointments. See also Wainohu v NSW (2011) 243 CLR 181 at 199.

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functions by a Judge that the further performance of substantial judicial functions by that Judge is not practicable. It might consist in the performance of non-​judicial functions of such a nature that the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-​ judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-​judicial functions so as to prejudice the capacity either of the individual Judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. So much is implied from the separation of powers mandated by Chapters I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power.

Thus, the majority outlined a doctrine of incompatibility which limits the persona designata exception. Judges, even in their personal capacity, cannot be vested with powers or functions which undermine or are perceived to undermine their ability to perform their judicial functions. Relevant considerations are whether the function would impair or be perceived to impair the judge’s independence, or would undermine public confidence in the integrity of the judicial process.74 The applicant in Grollo had submitted that the exercise by Judges of the function of issuing telephone interception warrants was incompatible with their judicial role, due to its secretive and oppressive nature. The majority disagreed, claiming (at 367): [I]‌t is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today’s continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law’s protection of privacy and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a Judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible Judge’s function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible Judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.

McHugh J dissented in Grollo, finding that the function of issuing telephone tap warrants was in fact incompatible with a Judge’s judicial role. He argued that the inherent oppressiveness of the function told against compatibility, as it would place the designated Judge “in the uniform of the constable” (at 378-​379). Public confidence in the judiciary would be undermined if judges were authorised to permit public agencies to invade the privacy of ordinary citizens. McHugh J’s second and major concern was with the inherent secrecy of the procedure. Naturally, the person under surveillance is never told of the application, nor of the fact that her or his phone is bugged, unless evidence from the tap is later introduced in court proceedings. McHugh J stated (at 379-​380):

74 See also Williams J in his dissent in Boilermakers at 314.

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Open justice is the hallmark of the common law system of justice and is an essential characteristic of the exercise of federal judicial power. Participation in secret, ex parte administrative procedures that approve the acts of federal law enforcement officers by those who hold federal judicial office contravenes the spirit of the requirement that justice in the federal courts should be open; it weakens the perception that the federal courts are independent of the federal government and its agencies.

McHugh J concluded his critique of the incompatibility of the warrant function with the following observation (at 382): The increasing number of applications for warrants that are being made simply reinforces the conclusion that this persona designata jurisdiction is incompatible with the exercise of judicial functions by members of the Federal Court. The number of warrants issued annually increased from 246 in the 1988/​89 year to 668 in the 1993/​94 year. Of the 2,639 applications made between 1988/​89 and 1993/​94 only 13 have been refused or withdrawn. The increase in the use of warrants indicates the increase in the involvement of judges in these executive activities. Slowly but surely, persons who hold office as judges of the Federal Court are becoming an important part of the criminal investigative process.

The decision of the majority seems well-​founded, considering its conformity with numerous comparative precedents from, for example, Canada, the United States and the European Court of Human Rights, where it was found that it was preferable for judges, rather than laypersons, to supervise the issuing of warrants, and the consequent invasions of privacy.75 However, the majority did not adequately address McHugh J’s criticisms, simply describing them (at 366) as “troubling”. McHugh J’s alarming statistics regarding judicial acquiescence to police requests for such warrants, with only 0.004 per cent of warrants refused or withdrawn, raise serious questions about whether warrant requests were in fact treated in a dispassionate, impartial way by the relevant judges, and deserved greater scrutiny by the majority.76 The incompatibility principle was revisited in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island case) (1996) 189 CLR 1. The federal Minister for Aboriginal and Torres Strait Islander Affairs appointed Mathews J, a Federal Court Judge, to prepare a report under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) on the potential detrimental impact on Indigenous heritage entailed in the construction of a bridge from the mainland to Hindmarsh Island (Kumarangk) which was being planned by the South Australian government, and of the measures the federal Minister should take to preserve any such heritage value (including orders to prevent the building of the bridge). The federal government’s potential intervention to override South Australian legislation in “the Hindmarsh Bridge affair” was very controversial at the time (see also [14.30]).

75 See, for example, Klass v Federal Republic of Germany (1978) 2 EHRR 214, judgment of the European Court of Human Rights. These comparative cases were discussed by the majority at 367-​368. 76 In 1997, the Attorney-​General informed Parliament that the Federal and Family Court Judges had decided to withdraw from the activity of issuing warrants to authorise telephone interceptions. This decision was motivated by workload concerns. Members of the Administrative Appeals Tribunal are now authorised to issue the warrants. The Attorney-​General also hinted that concerns over “public confidence in judicial independence” may have influenced the federal judges’ decision. Legislation still authorises individual federal judges to issue such warrants, in case of a shift in the attitudes of those judges. See Wheeler, n 73, p 451.

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The appointment of Mathews J as a persona designata for the clearly non-​judicial reporting role was challenged. A 6:1 majority in the High Court found that her appointment was incompatible with her role as a judge, and was therefore invalid. Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, with whom Gaudron J essentially concurred, outlined a test for determining whether a non-​judicial function was incompatible with a judge’s judicial role. They stated (at 17): The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears.

If, however, the function is closely connected with one of the two political arms of government, two further questions must be asked. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter “any non-​judicial instruction, advice or wish”). If an affirmative answer does not appear, it is clear that the separation has been breached. The breach is not capable of repair by the Chapter III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function.

Even if the function is to be performed independently, a final question arises: If the function is one which must be performed independently of any non-​ judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Chapter III judge to be exercised on political grounds –​that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Chapter III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

Thus, for the majority, the determination of incompatibility concerns a three-​step test. (1) Ask if the non-​judicial function is closely connected with the functions of the legislature or the executive. If no such close connection is evident, there is no constitutional incompatibility. If there is such a close connection, one must ask: (2) Must the function be performed independently of the instruction, advice or wishes of the Executive and/​or Legislature? If the function is not necessarily performed independently, incompatibility arises. If the function is to be performed independently, a final question arises: (3) Does the function involve a discretion to be exercised on political grounds? An alternative way of phrasing the third step is to ask whether a judicial manner of performance is required in the performance of the function. If the answer to the

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first question on discretion is yes, or the answer to the second question on judicial manner is no, the function is incompatible with a judge’s judicial role, and cannot therefore be conferred upon a judge, even in his/​her personal capacity. In applying the above test, the majority found that Mathews J was not necessarily required to act independently of the Minister, nor was a judicial standard of performance expressly required in the preparation of her report. Indeed, the joint Justices felt (at 19) that the “decisions to be made by a reporter [were] political in character”, and the reporter essentially acted as “ministerial adviser”, “shorn of the usual judicial protections”. The reporting function was therefore incompatible with Mathews J’s judicial role, so her appointment was invalid. Application of the test in Wilson indicates that steps 2 and 3 of the test are very strict. Mathews J’s appointment was invalid as she was not strictly required to act in an independent judicial manner, even though she may in fact have acted in such a manner. The Wilson test for incompatibility is reminiscent of the Spicer prohibition of the conferral of broad discretion upon courts (see [6.30]). Wilson also appears inconsistent in some respects with Grollo. In Grollo, the majority felt that judges, with their professional experience at being impartial and evaluating evidence (that is, at acting judicially), were well suited for the role of issuing warrants. In Wilson, the majority was not willing to assume that a judge, when vested with non-​judicial powers, would act judicially in the absence of a legislative direction to do so. Indeed, it is arguable that the preparation of an advisory report on a particularly controversial issue, balancing the interests of many conflicting groups including Indigenous groups and the South Australian State government, was well suited to the pragmatic impartial nature of a judge.77 Kirby J dissented in Wilson, stating (at 49-​50): In my view and with great respect to those of a different opinion, the contrary conclusion represents a significant narrowing of the application of the accepted authority of this Court in Hilton and Grollo, if not of the authority itself. If the suggested test is impermissible closeness to the Legislature or the Executive Government and their respective functions, the activities of a federal judge, secretly and anonymously authorising telephonic intercepts, is clearly much closer to the functions of the other branches than are those of a statutory reporter, publicly identified, evaluating evidence and submissions, judicially reviewable and presenting a report which reality suggests would inevitably find its way into the public domain, save for any specially confidential parts. Yet by the authority of this Court, Hilton and Grollo permit the former and that authority was not challenged. This case will prohibit the latter. It is said that “historically” judges have been vested with functions such as authorising the issue of warrants. So they have. But they have also, in our history, been called upon to report to the Executive upon difficult and sensitive questions. History does not stand still. In my respectful opinion, the decision in this case involves a departure from long-​standing practice in Australia in the use of judges, including federal judges; a rejection of the principles found to be appropriate in the more rigid constitutional context considered by the Supreme Court of the United States; an undue constriction of the Parliament’s decision to authorise utilisation of “any person” as a reporter; and a serious limitation on the privilege of the

77 Handley, n 65, pp 200-​201.

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Executive Government to choose a person, who happens to be a judge, where the sensitivity and importance of the particular case is considered by it to warrant that course.

Kirby J correctly identified that the Wilson majority decision significantly rolled back the persona designata principle. Wheeler has suggested that this diminution in the persona designata doctrine, and the consequent reinforcement of a strict separation of judicial power, may have been prompted in part by the increasing personal and political criticism of judges in the 1990s,78 perhaps flagging a need to shore up the independence of the judiciary and the perception of such independence.

SEPARATION OF JUDICIAL POWERS –​ STATE [6.105]  For most of the 20th century, no constitutional doctrine of the separation of judicial power applied to affect State power over State courts. In Building Construction Employees and Builders Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372, the New South Wales Court of Appeal found that no constitutional rule mandating the separation of judicial power could be found in the New South Wales Constitution. Similar decisions have been reached regarding the South Australian Constitution by the Privy Council in Gilbertson v State of South Australia [1978] AC 772, regarding the Victorian Constitution in City of Collingwood v State of Victoria (No 2) [1994] 1 VR 652 and regarding the Western Australian Constitution in JD and WG Nicholas v Western Australia [1972] WAR 168. As the Commonwealth Constitution does not expressly mention the judicial power of the States (that vested by State parliaments) nor State courts (except as potential vessels for federal jurisdiction), it was long assumed that the Commonwealth Constitution imposed no limitations on the type of power that could be conferred upon State courts by State parliaments. However, the novel assertion that Ch III did in fact constrain State parliaments was upheld in the landmark case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

The Kable principle and its subsequent application [6.110]  Kable concerned the validity of the Community Protection Act 1994 (NSW). Section 5 of the Act authorised the Supreme Court of New South Wales to order the detention of a person, for up to six months, if it was satisfied, on reasonable grounds, that (a) the person was more than likely to commit a serious act of violence; and (b) that it was appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody. These orders were renewable. Section 3 limited the potential application of the Act to one man, Gregory Wayne Kable. Kable had been convicted of the manslaughter of his wife in 1990, and was sentenced to just over five years’ imprisonment. An initial charge of murder was dropped after the prosecution accepted Kable’s plea of diminished responsibility. During his imprisonment, Kable sent threatening letters to members of his deceased wife’s family, who consequently feared for their safety upon his release. Kable’s impending release in 1994, after a sentence which was perceived by the public as

78 Wheeler, n 73, pp 466-​467. See also S Parker, “The Independence of the Judiciary”, in Opeskin and Wheeler (eds), n 1, pp 85-​87.

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being far too lenient, created a political furore in the midst of a State election campaign dominated by “law and order” issues.79 The (then) Liberal government responded to the controversy by steering the Act through the New South Wales Parliament. Under the authority of the Act, Kable was detained upon order of Levine J of the Supreme Court of New South Wales for a further six months after the expiry of the last day of his sentence. Counsel for Kable argued before the New South Wales courts and then the High Court that the Act was invalid. A High Court majority of 4:2 agreed.80 The majority construed a limitation on the powers of State courts “vested with federal jurisdiction” under Ch III of the Constitution. McHugh J stated (at 114-​115): Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power.

Thus, certain State courts, including all State Supreme Courts, come within the rubric of Ch III by virtue of their status as courts vested with federal jurisdiction. McHugh J went on to describe the constitutional limitations placed upon the powers that could be given to such courts (at 116): One of the basic principles which underlie Chapter III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government. Given the central role and the status that Chapter III gives to State courts invested with federal jurisdiction, it necessarily follows that those courts must also be, and be perceived to be, independent of the legislature and executive government in the exercise of federal jurisdiction. Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government. In the case of State courts, this means they must be independent and appear to be independent of their own State’s legislature and executive government as well as the federal legislature and government.

McHugh J gave his conclusions on the fetters placed on State powers by Ch III (at 118-​119): It follows therefore that, although New South Wales has no entrenched doctrine of the separation of powers and although the Commonwealth doctrine of separation of powers cannot apply to the State, in some situations the effect of Chapter III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration

79 Charges were pending against Kable with regard to the threatening letters, but he had not yet been convicted of any crime in respect of those letters. 80 Mr Kable later brought a suit for false imprisonment against the State, arguing that he had been detained pursuant to an invalid non-​judicial order. He failed in New South Wales v Kable (2013) 252 CLR 118 [1.235].

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of the judicial functions of State courts. If it could, it would inevitably result in a lack of public confidence in the administration of invested federal jurisdiction in those courts. State governments therefore do not have unrestricted power to legislate for State courts or judges. A State may invest a State court with non-​judicial functions and its judges with duties that, in the federal sphere, would be incompatible with the holding of judicial office. But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court.

McHugh J, with whom the majority agreed, incorporated a version of the doctrine of incompatibility into the State sphere: States cannot invest certain courts (those vested with federal jurisdiction) with powers that undermine the independence of the judiciary, or public confidence in the judicial process. This test appears very similar to the doctrine of incompatibility which applies regarding persona designata in the federal sphere in Grollo and Wilson.81 However, McHugh in Kable contends that the State doctrine is narrower than that at the federal level. We return to this question at [6.130]. The majority in Kable went on to find that the “Kable” Act undermined public confidence in the State Supreme Court, which was, of course, a court vested with federal jurisdiction. It was impermissible to give the Court power to detain a specified person without a finding of criminal guilt, but rather upon an assessment of what that individual might do in the future. Gaudron J explained (at 107): The integrity of the courts depends on their acting in accordance with the judicial process and, in no small measure, on the maintenance of public confidence in that process. Particularly is that so in relation to criminal proceedings which involve the most important of all judicial functions, namely, the determination of the guilt or innocence of persons accused of criminal offences. Public confidence cannot be maintained in the courts and their criminal processes if, as postulated by s 5(1), the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so. Mention should be made of one other aspect of the function purportedly conferred on the Supreme Court by s 5(1) of the Act. Public confidence in the courts requires that they act consistently and that their proceedings be conducted according to rules of general application. That is an essential feature of the judicial process. It is that feature which serves to distinguish between palm tree justice and equal justice. Public confidence cannot be maintained in a judicial system which is not predicated on equal justice.

All of the majority Justices were concerned about the ad hominem nature of the statute (that is, the fact that it was aimed at one named person). Gaudron J concluded (at 108): In truth, the proceedings contemplated by s 5(1) are unique with unique procedures and with rules which apply only to the appellant. They are proceedings which the Act attempts to dress up as proceedings involving the judicial process. In so doing, the Act makes a 81 E Campbell, “Constitutional Protection of State Courts and Judges” (1997) 23 Monash Law Review 397 at 421, argued that the incompatibility doctrine operates in the same way at both the Commonwealth and State levels.

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mockery of that process and, inevitably, weakens public confidence in it. And because the judicial process is a defining feature of the judicial power of the Commonwealth, the Act weakens confidence in the institutions which comprise the judicial system brought into existence by Chapter III of the Constitution.

The minority of Brennan CJ and Dawson J took the orthodox approach in asserting that no doctrine of separation of powers bound the State legislature. Dawson J, for example, argued that the Constitution clearly contemplated differences between federal courts, created by the Commonwealth under Ch III requirements, and State courts, which the chapter accepted as “existing institutions, the characteristics of which did not necessarily and did not in fact satisfy [Ch III] requirements” (at 81). For example, s 72 tenure requirements clearly only apply to federal judges. Thus, Dawson J disputed McHugh J’s contention that the Constitution did not contemplate “two grades of federal jurisdiction”. The majority in Kable thus found that Ch III imposed some constraints on the powers of the States. The principle from Kable was formulated in various ways by the majority Judges. The Judges essentially stated that State legislatures could not confer powers on State courts which would undermine, or be seen to undermine, their independence from the political branches of government, if those courts were vested with federal jurisdiction. In K Generation v Liquor Licensing Court (2009) 252 ALR 471, a majority confirmed that the Kable principle extended to all State courts capable of exercising federal jurisdiction, and not only State supreme courts.82 Various Judges in Kable emphasised “public confidence” in the judiciary must be maintained. The use of “public confidence” as a touchstone to establish invalidity is potentially problematic if “public confidence” equates with “public popularity”.83 Indeed, considering the popularity of “law and order” measures and the public clamour for Kable’s continued incarceration, the granting of detention orders under s 5 would probably have increased public approval of the Supreme Court of New South Wales. In Fardon v Attorney-​General (Qld) (2004) 223 CLR 575, Kirby J stated (at 629-​630):84 All judges in the majority in Kable referred to the importance of maintaining community confidence in the integrity of the courts. However, as such, this is not a criterion for the application of the Kable principle. It is what will be lost as a result of neglecting the considerations which the principle defends. Such a view of what was meant by the reasons of the majority in Kable is increasingly accepted. It is singularly inappropriate to place undue emphasis on the fiction of public perceptions in this context. At the time of a constitutional challenge on this basis, it is quite possible that the public will share, at least in the short run, some of the passions that may have led to the legislation under consideration. So it may have been in Kable. So it may have been at first in the Communist Party Case. So it may be in the present proceedings. The cautionary voice of constitutional principle is not always popular, assuming that it is expressed at all.

82 An argument had been raised that the Liquor Licensing Court of South Australia was not a State court for the purposes of Chapter III of the Constitution. The argument was rejected. 83 Handley, n 65, pp 195-​99. 84

See also Baker v The Queen (2004) 223 CLR 513 at 542-​543.

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The crucial aspect of the Kable test is that the court maintains independence and freedom from political control, as well as the perception thereof. Such independence is not necessarily popular, especially considering the lack of public awareness of the importance of separation of powers.85 In Fardon, McHugh J clarified the Kable principle (at 598-​599): The doctrine of the separation of powers, derived from Chapters I, II and III of the Constitution, does not apply as such in any of the States, including Queensland. Chapter III of the Constitution, which provides for the exercise of federal judicial power, invalidates State legislation that purports to invest jurisdiction and powers in State courts only in very limited circumstances. One circumstance is State legislation that attempts to alter or interfere with the working of the federal judicial system set up by Chapter III. Another is the circumstance dealt with in Kable: legislation that purports to confer jurisdiction on State courts but compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction invested under Ch III impartially and competently. Subject to that proviso, when the Federal Parliament invests State courts with federal jurisdiction, it must take them as it finds them.

McHugh’s formulation of the Kable principle moves away from a test involving notions of “public confidence”, focusing instead on whether a law impairs the “institutional integrity” of those Courts. Similarly, Gummow J stated (at 617-​618):86 Although in some of the cases considering the application of Kable, institutional integrity and public confidence perhaps may have appeared as distinct and separately sufficient considerations, that is not so. Perception as to the undermining of public confidence is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity.

Thus, the Kable test, as formulated in Fardon, prohibited the investiture in State courts of powers that undermine their institutional integrity as a vessel for federal jurisdiction. The reference to “public confidence” in Kable refers not to public acceptance of the relevant measure, but rather the idea that the investiture of the relevant powers in a court will undermine public confidence in the true independence of those courts from the other arms of government, a crucial aspect of its institutional integrity.87 Kable was extensively discussed in 2004 in Fardon as well as Baker v The Queen (2004) 223 CLR 513. These cases suggested that the Kable principle would only apply in the narrowest of circumstances. Fardon concerned the constitutional validity of s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The effect of the section was described by Gleeson CJ (at 587-​588): Under Pt 2, Div 3 of the Act, the Supreme Court may order, in respect of a prisoner serving imprisonment for a serious sexual offence, that the prisoner be detained in custody for an indefinite term, or that, upon release, the prisoner be subject to continuing supervision. Any continuing detention order is subject to periodic review. The Court may make such an order 85 See Handley, n 65, p 196. 86 See also Gleeson CJ at 591 and Hayne J at 648, Callinan and Heydon JJ at 655-​656. 87 See also Handley, n 65, pp 195-​199.

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only if satisfied that the person would constitute a serious danger to the community, the danger taking the form of “an unacceptable risk that the prisoner [would] commit a serious sexual offence” (s 13(2)). The onus of establishing the serious danger to the community rests on the Attorney-​General. It can only be discharged by acceptable, cogent evidence which satisfies the Court to a high degree of probability (s 13(3)). Detailed reasons must be given for any order (s 17). There is an appeal to the Court of Appeal. Provision for interim orders is made (s 8). The appellant challenges the validity of both s 8 and s 13.

Therefore, s 13 authorised the Supreme Court to keep a person in prison after the expiry of her or his sentence if satisfied that the person would be likely to commit a serious sexual offence upon release. Section 13 thus authorised preventive detention of certain persons deemed by the Court to pose a serious danger to the community. Section 13 was challenged on the basis that the Act conferred powers on the Supreme Court that were incompatible with its role as a court that exercises federal jurisdiction, contrary to the principle in Kable. A majority of 6:1 found that s 13 was valid. McHugh J, with whom the majority essentially agreed, distinguished s 13 from the unconstitutional provisions in Kable (at 596-​597): The differences between the legislation considered in Kable and the Act are substantial. First, the latter Act is not directed at a particular person but at all persons who are serving a period of imprisonment for “a serious sexual offence”. Second, when determining an application under the Act, the Supreme Court is exercising judicial power. It has to determine whether, on application by the Attorney-​General, the Court is satisfied that “there is an unacceptable risk that the prisoner will commit a serious sexual offence” if the prisoner is released from custody. That issue must be determined in accordance with the rules of evidence. It is true that in form the Act does not require the Court to determine “an actual or potential controversy as to existing rights or obligations”. But that does not mean that the Court is not exercising judicial power. The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. The powers exercised and orders made by the Court under this Act are of the same jurisprudential character as in those cases. The Court must first determine whether there is “an unacceptable risk that the prisoner will commit a serious sexual offence”. That is a standard sufficiently precise to engage the exercise of State judicial power. Indeed, it would seem sufficiently precise to constitute a “matter” that could be conferred on or invested in a court exercising federal jurisdiction. Third, if the Court finds that the Attorney-​General has satisfied that standard, the Court has a discretion as to whether it should make an order under the Act and, if so, what kind of order. The Court is not required or expected to make an order for continued detention in custody. The Court has three discretionary choices open to it if it finds that the Attorney-​General has satisfied the “unacceptable risk” standard. It may make a “continuing detention order”, a “supervision order” or no order. Fourth, the Court must be satisfied of the “unacceptable risk” standard “to a high degree of probability”. The Attorney-​General bears the onus of proof. Fifth, the Act is not designed to punish the prisoner. It is designed to protect the community against certain classes of convicted sexual offenders who have not been rehabilitated during their period of imprisonment. Sixth, nothing in the Act or the surrounding circumstances suggests that the jurisdiction conferred is a disguised substitute for an ordinary legislative or executive function. Nor is there anything in the Act or those circumstances that might lead to the perception that the Supreme Court, in exercising its jurisdiction under the Act, is acting in conjunction with, and not independently of, the Queensland legislature or executive government.

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McHugh J went on to emphasise his view of the narrowness of the Kable principle (at 601): In my opinion, Kable does not govern this case. Kable is a decision of very limited application. That is not surprising. One would not expect the States to legislate, whether by accident or design, in a manner that would compromise the institutional integrity of their courts. Kable was the result of legislation that was almost unique in the history of Australia. More importantly, however, the background to and provisions of the Community Protection Act pointed to a legislative scheme enacted solely for the purpose of ensuring that Mr Kable, alone of all people in New South Wales, would be kept in prison after his term of imprisonment had expired.

Thus, McHugh J emphasised the ad hominem nature of the Kable legislation in his conclusions. Kirby J dissented, and found that s 13 was invalid under the Kable principle. He noted five “features” of the legislation that rendered the powers conferred upon the Supreme Court to be “repugnant to Chapter III”: the “civil commitment” of a person to a prison for convicted criminals; detention in prison on the basis of potential future offences rather than past criminal conduct; non-​conformity with the principles governing the analogous detention of the mentally ill; the imposition of additional punishment on a limited class of prisoners selected by the legislature; and finally, “double punishment” for the original criminal act, which forms part of the basis for the preventive detention order, even though a judicially imposed sentence for that crime has been served.88 Baker v The Queen concerned the validity of s 13A of the Sentencing Act 1989 (NSW), which governed the conditions upon which prisoners who had been given “life” sentences could apply for parole. Under subs (2), such prisoners could apply to the Supreme Court for the determination of a minimum sentence. After that minimum sentence had been served, they would be able to apply for release on parole. Life prisoners were not able to make such an application until they had served eight years of their sentence (s 13A(3)(a)). However, a special regime applied to certain life prisoners, namely those who had been subjected to a “non-​release recommendation”, that is a recommendation by the original sentencing court that the person never be released from imprisonment. The appellant, Baker, was such a person, along with nine other prisoners in New South Wales. The non-​release recommendations in these ten cases, which had no binding force at the time they were made, were prompted by the horrific nature of the crimes committed by the ten men.89 The ten life prisoners subjected to non-​release recommendations were unable to apply for a minimum sentence before 20 years of their sentence had been served (s 13A(3)(b)). Furthermore, under subs (3A):

88

See Fardon v Attorney-​General (Qld) (2004) 223 CLR 575 at 631-​632. Mr Fardon subsequently successfully claimed before the United Nations Human Rights Committee for a breach of his right to be free from arbitrary detention under the International Convention on Civil and Political Rights in Fardon v Australia (2010) CCPR/​C/​98/​DR/​1629/​2007.

89 Most of the ten men had been convicted of either the savage murder and multiple rape of nurse Anita Cobby in 1986, or the similar murder of bank teller Janine Balding in 1988.

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A person who is the subject of a non-​ release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person’s application under this section, is satisfied that special reasons exist that justify making the determination.

The appellant contested the constitutionality of s 13A, insofar as it set out the special regime for life prisoners subjected to non-​release recommendations. He claimed that the special regime imposed powers on the courts which breached the principle in Kable. The High Court, by a majority of 6:1, disagreed, with Kirby J again in dissent. Several arguments were put by counsel to challenge the constitutionality of the regime. First, it was claimed that it was effectively impossible to establish “special reasons” under s 13A(3)(b), so the Supreme Court of New South Wales was complicit in a legislative scheme to keep the ten men in prison for life. The majority disagreed. For example, Gleeson CJ stated (at 525): In order to make that argument good, it is not sufficient to show that it is difficult to establish special reasons, or that successful applications are likely to be rare. It is necessary to show that it is impossible to establish special reasons, and that no application could succeed. That has not been shown.

In contrast, Kirby J stated (at 556-​558): In effect, such an “exception” was … included to permit the conscription of judges of the New South Wales Supreme Court into a charade pretending to the availability of discretion for fantastic possibilities of heroic prison rescues or intramural community service when in truth it was intended to ensure that the judges could never, in law or fact, order the eligibility for release of any of the named offenders.

Second, the majority felt that it was within the power of the Parliament to select “non-​release recommendations” as a criterion for distinguishing between categories of life prisoners. Gleeson CJ stated (at 522): As a matter of legislative power, it was open to the New South Wales Parliament to enact legislation reflecting such opinion. The distinction drawn by the legislature was not arbitrary. If, for any reason, one wanted to identify prisoners who had committed the most heinous crimes, searching for those who had been the subject of a non-​release recommendation would be at least a good start. The selection was not arbitrary, and the criterion was not irrelevant. If it was unfair, its unfairness could have been thought to lie in the consequence that some other offenders of a most serious kind received more favourable treatment.

Kirby J disagreed (at 552-​553): Present judges, obliged by the impugned provisions to attach the gravest punitive consequences to “non-​release recommendations” made 30 years earlier by some judges, would also be aware of the differences of personality, temperament and emotion that often lay behind such recommendations. For Parliament to select non-​normative, non-​binding and possibly emotional remarks in one judge’s reasons for sentence as the ground, decades later, to control the judicial orders of contemporary judges is to impose on the latter obligations of arbitrary conduct by reference to a discriminatory criterion.

Finally, the majority was not concerned that the legislation essentially impacted on only ten identifiable men. It appears that no “independent submission” was made

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on this ground by counsel.90 McHugh, Gummow, Hayne and Heydon JJ noted (at 534) that “it could not be said that the appellant was the sole and direct “target” of the 1997 [amendments], so it [was] unnecessary to determine what would have been the consequences of such a conclusion”.91 Unlike the legislation in Kable, the appellant and the nine other affected men had not been named in the legislation. Moreover, the majority felt that the legislation was not directed at those men; it just so happened that only ten men fell within the category of people for which the special parole regime was prescribed.92 Finally, their sentence was not altered as they remained subjected to life sentences; the legislation “merely” made it more difficult for them to gain parole. On the other hand, Kirby J felt that the legislation was clearly aimed at the ten men, and he referred to parliamentary reading speeches as evidence thereof. The relevant Minister had stated in the New South Wales Parliament that the legislation was designed to keep the ten “animals” in prison forever.93 Kirby J therefore felt that the legislation effectively recruited the Supreme Court to fulfil the legislative aim of keeping the men in prison for the rest of their lives, in breach of the Kable principle. Another feature of the legislation that told against its validity for Kirby J was its retrospective effect (discussed at [6.160]). Kirby J bemoaned the majority’s apparent limitation of the Kable principle to Kable itself in Baker (at 544). Ironically, the first application of the Kable precedent by the High Court arose soon after Kirby J’s retirement from the bench in 2009, in International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319.

The revival of the Kable principle [6.112]  The provision at issue in International Finance Trust Company was s 10 of the Criminal Assets Recovery Act 1990 (NSW). Section 10 provided for the making of orders restraining the use or disposal of property by persons suspected of serious crimes. Section 10(2) provided that the NSW Crime Commission could apply for such orders ex parte, that is without notice to the affected person. Section 10(3) provided that the Supreme Court of NSW had to hear such a s 10(2) application ex parte, and had to grant the order so long as certain conditions precedent were satisfied. The majority of the Court found that s 10 was invalid. French CJ was most concerned about the Supreme Court’s lack of discretion in hearing and determining the application ex parte if the NSW Crime Commission chose to make such an application.94 He stated (at 355): In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial 90

Baker v The Queen (2004) 223 CLR 513 at 534.

91

Baker v The Queen (2004) 223 CLR 513 at 534.

92

See also Nicholas v The Queen (1998) 193 CLR 173 at 203.

93

Baker v The Queen (2004) 223 CLR 513 at 537-​538 and 546-​547.

94

See also Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40.

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function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction.

Gummow and Bell JJ, also in the majority, were disturbed by the fact that the Supreme Court had to make the relevant restraining order against a person based on a Crime Commission officer’s suspicion of the serious criminal activities of a person, so long as it found that reasonable grounds for that suspicion existed. Such an order could only be discharged by removal of the application by the Crime Commission, or a laborious appellate process where the affected person had to prove that it was “more probable than not that the interest in property for which exclusion is sought is not “illegally acquired property”” (at 366). Their Honours concluded (at 366-​367): The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.

Heydon J, also in the majority, stated (at 385): A duty in the Supreme Court to grant an ex parte restraining order for a short period pending an application by the defendant to oppose its continuation, or dissolve it, is not repugnant to the judicial process in a fundamental degree. … Creating a capacity in the Commission to retain a restraining order it has obtained ex parte without there being any procedure by which the defendant may apply to have it speedily dissolved is another.

Heydon J went on to find that “it was not possible for a defendant to apply for speedy dissolution of the ex parte restraining order” (at 386). In those circumstances, the provision was “repugnant to the judicial process in a fundamental degree”, and therefore invalid (at 386). Hence, the majority based its findings of invalidity on a variety of reasons. First, as highlighted by French CJ, the Court’s discretion to refuse an ex parte hearing, and to refuse the order requested in such a hearing, was impermissibly curtailed. Second, this problem was exacerbated by the apparent lack of a speedy process whereby an affected person could challenge and seek the discharge of such an ex parte order. The minority of Hayne, Crennan and Kiefel JJ found s 10 to be valid. They found that the Act did not preclude the swift application by the affected person that the order be set aside. They did not agree that the appellate procedure was as onerous as was presumed by Gummow, Bell and Heydon JJ. Hence, they felt that the availability of a swift process for an appeal against the order removed any constitutional “repugnancy” from the provision. Hence, the minority and some members of the majority differed as to their construction of the Act, which led to very different conclusions as to its constitutionality.

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In International Finance Trust, the Kable test seemed to move from the Fardon test of “institutional integrity” to a newly worded test of “repugnance to the judicial process in a fundamental degree”, though French CJ retained the Fardon formulation. In later cases, the wording has moved back to that of “institutional integrity”. It seems doubtful there is a meaningful difference between these tests. The Kable revival continued in South Australia v Totani (2010) 242 CLR 1. The case concerned South Australian legislation designed to combat criminal “bikie” gangs, the Serious and Organised Crime (Control) Act 2008 (SA). Under s 10, the Attorney General of South Australia had the power to make a declaration in respect of an organisation that its members were involved in “serious criminal activity” and that it posed a risk to public safety. In making such a declaration, the Attorney General could take account of numerous matters, and he/​she was not required to reveal the reasons for the declaration. A number of legal consequences flowed from such a declaration.95 At issue in Totani was s 14(1) of the Act, which obliged the Magistrates’ Court to make a “control order” in respect of a member of a declared organisation upon application of the Commissioner of Police. The Finks Motorcycle Club was a declared organisation, and the case concerned a control order and a proposed control order (stayed while the case was run) against two of its members. Control orders were not contingent upon findings of guilt. Crucially, the Court had no discretion whether to make an order or not. Section 14(5)(b) dictated the minimum content of such orders, which included extensive restrictions on the freedom of such members to associate and communicate with each other. A majority of six Judges to one found s 14 to be invalid. As explained by Gummow J (at 66): The place of s 14(1) in the scheme of the Act is that it supplements the exercise by the Attorney-​General of the politically accountable function conferred by Pt 2 with respect to the declaration of organisations. But that supplementation involves the conscription of the Magistrates Court to effectuate that political function. This is achieved by obliging the Magistrates Court to act upon the declaration by the executive, by making a control order in respect of the defendant selected by the Commissioner, subject only to the satisfaction of the Magistrates Court that the defendant is a member of the declared organisation. It is the declaration by the executive which provides the vital circumstance and essential foundation for the making by the Magistrates Court of the control order.

Therefore, Gummow J found at 67 that: This Court should accept the submission by the respondents that the practical operation of s 14(1) of the Act is to enlist a court of a State, within the meaning of s 77(iii) of the Constitution, in the implementation of the legislative policy stated in s 4 by an adjudicative process in which the Magistrates Court is called upon effectively to act at the behest of the Attorney-​General to an impermissible degree, and thereby to act in a fashion incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity. Section 14(1) is invalid.

95 For example, s 35 listed offences related to declared organisations, such as the prohibition on a person associating with a member of a declared organisation on six or more occasions (s 35(1)).

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French CJ concluded (at 52-​53): Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as “criminal intelligence”, would not be disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. In the exercise of the function conferred on it by s 14(1), the Magistrates Court loses one of its essential characteristics as a court, namely, the appearance of independence and impartiality. In my opinion, s 14(1) is invalid.

Crennan and Bell JJ (in a joint judgment), Hayne J and Kiefel J essentially agreed. All spoke in the language of “institutional integrity” as the key touchstone for Kable invalidity rather than “repugnance”. Heydon J dissented, finding that crucial adjudicative tasks remained with the Court, such as the determination of whether someone was in fact a “member” of a declared organisation. The “complexity” of those tasks indicated that the Court was acting as more than a simple puppet of the Executive in exercising functions under s 14, in his Honour’s view. Section 14 was found to be invalid due to the removal of the Court’s discretion over whether to issue a control order with certain minimum content or not. Those orders were issued as a consequence of the police application for such an order once the Attorney General had made a declaration in respect of an organisation. This lack of discretion distinguished Totani from Thomas v Mowbray (see [6.30]), where the powers of courts to issue control orders were found to be valid exercises of federal judicial power. The High Court had previously signalled that the nullification of a court’s discretion in certain circumstances would breach the Kable principle in Gypsy Jokers Motorcycle Club v Commissioner of Police (2008) 234 CLR 532 and K-​Generation v Liquor Licensing Court (2009) 237 CLR 501. In both of those cases, the relevant legislation was interpreted as preserving the court’s relevant discretions. Condon v Pompano Pty Ltd (2013) 252 CLR 38 concerned the powers of a Supreme Court to make declarations against criminal organisations upon application by the Commissioner of Police, this time under the Criminal Organisation Act 2009 (Qld) (COA). Again, such declarations led to adverse consequences for the members of declared organisations. At issue were provisions relating to the admission of certain evidence, “criminal intelligence”, in proceedings for an application for a declaration against an organisation. Criminal intelligence was defined in s 59 as information relating to actual or suspected criminal activity which cannot be disclosed, as such disclosure could be reasonably expected to prejudice an ongoing criminal investigation, reveal the existence or identity of a confidential source, or endanger a person’s life or physical safety. Hence, criminal intelligence was not to be revealed to the persons challenging a proposed

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declaration or their legal representatives. At any point in proceedings regarding the declaration of an organisation, the Commissioner of Police could apply under s 66 for a declaration that certain evidence was “criminal intelligence”: that application would then have to be heard in closed court without the respondents (s 70). The Court retained discretion as to whether to make such a “criminal intelligence” declaration, and, if it was admitted, the weight to be attributed to it. If declared criminal intelligence was later used in the substantive proceedings, that part of the hearing would have to take place in closed court without the respondent (s 78). Section 76 allowed for the admission of “criminal intelligence” by police affidavit without the source of the information being called to give evidence –​hence, hearsay evidence could be admitted. A criminal organisation public interest monitor (COPIM) could attend these closed sessions. The COPIM monitors criminal intelligence applications, and may make submissions to the Court on the appropriateness of an application for a declaration of criminal intelligence. The COPIM is not an advocate for the respondents, but provides the Court with access to the views of an independent person, rather than only the police. French CJ explained the issue before the Court like so (at 70): The effects of the COA, on the defining characteristics of the Supreme Court, insofar as it requires that an application for a declaration of criminal intelligence be heard ex parte in a closed court, the use of declared criminal intelligence in a closed court insubstantive proceedings coupled with the exclusion of the respondent in that part of the proceedings, and the non-​identification and non-​compellability of informants providing such intelligence

Hayne, Crennan, Kiefel and Bell JJ simplified the argument further (at 87): The arguments that the CO Act’s provisions dealing with criminal intelligence render s 10 invalid, though expressed in various ways, depended upon one central proposition: that Ch III of the Constitution puts beyond the legislative power of a State any enactment that would permit a State Supreme Court to decide a disputable issue by reference to evidence or information of which one party does not know and to which that party can have no access whether personally or by a representative.

For a variety of reasons, the Court unanimously confirmed the validity of the impugned provisions. For example, Judges noted the existence of analogous situations regarding public interest immunity claims and trade secret cases, where open justice is not fully adhered to due to overriding countervailing interests.96 Most importantly, while French CJ conceded that the provisions “represent[ed] incursions upon the open court principle and procedural fairness”, the Court nevertheless “retain[ed] its decisional independence and the powers necessary to mitigate the extent of the unfairness” (at 79-​80). Similarly, Hayne, Crennan, Kiefel and Bell JJ were swayed by the retention of the Supreme Court’s powers “to act fairly and justly” (at 102), leading to this conclusion (at 103): When it is said, as it was in this case, that there has been a departure from hitherto accepted forms of procedure and thus a departure from accepted judicial process, the significance of providing for some novel procedure must be measured against some standard or criterion. Consideration of the continued institutional integrity of the State courts directs attention to

96 See French CJ at 75 and the plurality at 100.

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questions of independence, impartiality and fairness. In cases where it is said that the courts have been conscripted to do the Executive’s bidding, the principal focus will likely fall upon questions of independence and impartiality. But that is not and was not said to be this case. Where, as here, a novel procedure is said to deny procedural fairness, attention must be directed to questions of fairness and impartiality. Observing that the Supreme Court can and will be expected to act fairly and impartially points firmly against invalidity.

Gageler J was less impressed by the likelihood that the Supreme Court would act fairly throughout proceedings regarding the declaration of an organisation. He decided the case on a very narrow basis (at 115), indicating that, for him, the law came very close to invalidity: To attempt to overcome a want of procedural fairness in a court by relying on the court to compensate in the way the court reasons to a decision is, in the long run, self-​defeating. The attempted resolution leverages off the institutional integrity of the court. The problem is that the appearance, if not the actuality, of that institutional integrity will not endure if there is manifest unfairness in the procedure of the court. The procedural difficulty demands a procedural solution. There is a procedural solution. It is implicit in the acknowledgement by the Solicitor-​General of Queensland that the use by the commissioner of declared criminal intelligence could in some circumstances amount to an abuse of process. The solution lies in the capacity of the Supreme Court of Queensland to stay a substantive application in the exercise of its inherent jurisdiction in any case in which practical unfairness to a respondent becomes manifest. The criminal intelligence provisions are saved from incompatibility with Ch III of the Constitution only by the preservation of that capacity.

In Kuczborski v Queensland (2014) 254 CLR 51, State anti-​bikie laws again survived a challenge on the basis of the Kable principle. The majority dismissed the plaintiff’s case, though in part because he lacked standing in respect of many of his claims. Hayne J in dissent upheld one of the challenges. Sections 60A, 60B and 60C of the Criminal Code Act 1899 (Qld) rendered it an offence for a person to perpetrate certain acts if the person was a “participant in a criminal organisation”. The acts included otherwise lawful conduct such as associating with two or more other such “participants” in a public place, entering a prescribed place or attending prescribed event, and recruiting a person to become such a “participant”. The Queensland legislature and executive were empowered with making declarations as to whether an organisation was “criminal” and had significant discretion in that regard. The majority in Kuczborski found that the new offences breached no constitutional principle. For example, in determining whether the offence had arisen, courts retained the discretion to decide if a person was a “participant”, and whether the relevant acts had been committed.97 In a joint judgment, Crennan, Kiefel, Gageler and Keane JJ stated (at 118): Sections 60A, 60B and 60C of the Criminal Code do not require a court to lay down new norms of conduct. The new norms of conduct are created by the legislature anterior to the performance of the judicial function. Sections 60A, 60B and 60C do not require a court to

97 See French CJ at 74.

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perform any function other than a characteristically judicial function. … They require a court to find facts and impose punishment as a result of the contravention of norms of conduct laid down by the legislature. That is not unorthodox.

In dissent, Hayne J found that the new offences breached the Kable principle by requiring courts to afford “the same legal significance” to the “legislative or regulatory determination of what is a criminal organization … as a judicial determination of that question, against stated criteria, in accordance with accepted judicial methods” (at 93). He concluded that the Kable principle was breached (at 93): To require the courts to treat two radically different kinds of judgment as equivalent is repugnant to and incompatible with the institutional integrity of the courts.

In Attorney-​General (NT) v Emmerson (2014) 253 CLR 393 the Court addressed the power of the Supreme Court of the Northern Territory to declare a person a “drug trafficker” under s 36A of the Misuse of Drugs Act (NT) upon application from the Director of Public Prosecutions (DPP). While the DPP had a broad discretion on whether to seek such a declaration, the Court had to make the declaration if certain conditions precedent were satisfied. The conditions precedent were that the relevant person had been found guilty of at least three drug-​related offences within the preceding ten years (which were specified in s 36A(6)). While the court had to establish that the conditions precedent existed, such a determination was easily made: the existence of the relevant convictions was not hard to prove or disprove. Nevertheless, despite the essential lack of meaningful judicial discretion, the power was found to be valid. The plurality stated (at 433): That the determination of whether the statutory criteria are satisfied may readily be performed, because of the ease of proof of the criteria, does not deprive the process of its judicial character.

Under s 94(1) of the Criminal Property Forfeiture Act 2002 (NT), the property of a declared drug trafficker was liable to forfeiture if it was the subject of a restraining order issued by a court upon application of the DPP under s 44 of the same statute (see [12.40]). However, the court’s discretion on whether to issue such a restraining order was again limited to the determination of fairly simple conditions precedent (at 68). It may be noted, perhaps crucially, that the validity of s 44 was not challenged in the case. Emmerson seems to provide a template for States and Territories to escape the constraints of Totani and International Finance Trust. Courts might be enlisted in government schemes to inflict significant penalties on people (for example, control orders, forfeiture of property) with the exercise of minimal and almost formal rather than substantive exercises of judicial discretion.98 In Duncan v Independent Commission Against Corruption (2015) 256 CLR 83, the High Court again dismissed a challenge based on Kable principles. The applicant, Duncan, challenged a new Pt 13 inserted into Sch 4 of the Independent Commission Against Corruption Act 1988 (NSW). The ICAC had published a report in 2013 which concluded

98 See also P Johnston, “The High Court, Kable, and the Constitutional Validity of Criminal Property Confiscation Laws: Attorney General (Northern Territory) v Emmerson” (2014) 26 Bond Law Review 3.

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that certain conduct in which the applicant had engaged was “corrupt conduct” within the meaning of the ICAC Act. In April 2015, the High Court delivered its judgment in Independent Commission Against Corruption (NSW) v Cunneen (2015) 256 CLR 1, which interpreted “corrupt conduct” in the ICAC Act as excluding the conduct that was the subject of the 2013 report. In May 2015, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sch 4 to the ICAC Act, which sought to retrospectively validate ICAC’s interpretation of “corrupt conduct”, notwithstanding the Cunneen decision. In Duncan the applicant sought a declaration that Pt 13 was invalid, on the basis that it directed courts to treat as valid acts of ICAC that were in fact invalid, namely ICAC’s findings that the applicant had engaged in “corrupt conduct”. French CJ, Kiefel, Bell and Keane JJ (with Gageler J concurring) concluded that relevant provisions of Pt 13 simply deemed ICAC’s past administrative acts to be valid, rather than direct a court to treat invalid acts as valid. At 98, they stated that it “is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III”.99 In North Australian Aboriginal Justice Agency Ltd (NAAJA) v Northern Territory (2015) 256 CLR 569, the High Court rejected a challenge to the validity of Div 4AA of the Police Administration Act 1978 (NT). This Division empowered a police officer to arrest a person without a warrant where the office believed, on reasonable grounds, that the person has committed, was committing or was about to commit an “infringement notice offence”, which were largely minor public order offences. Arrested persons could be held for up to four hours or longer if they were intoxicated. At the end of the period of arrest, they could be released or brought before a court which might authorise further detention. The new provisions provided for what was known as the “paperless arrest” scheme. One argument, discussed at [6.125] was that the scheme improperly vested the Northern Territory police with judicial power in the form of the power of punitive detention. The majority rejected that construction of the scheme. The plaintiffs also argued that the laws undermined the institutional integrity of the Northern Territory courts contrary to the Kable principle100 by excluding them from a process in which they should be involved, namely the punitive detention of alleged offenders. All but Gageler J rejected this contention. Gageler J found that the scheme did authorise punitive detention (see [6.125]), and that it did so in breach of the Kable principle. At 620, he stated: Courts are defined as much by what they don't do as by what they do and how they do it. Implicit in a tradition which reserves punitive detention presumptively to the judicial power is an understanding that punitive detention imposed in the exercise of judicial power is in consequence of adjudication by a court acting in accordance with a judicial process. Part of what sets courts apart from other institutions within our system of government is that they do not participate in a punitive deprivation of liberty by another arm of government.

99 Nettle and Gordon JJ agreed, but preferred a construction of Pt 13 that did not “amend” the definition of “corrupt conduct” in its application to acts done by ICAC prior to the decision in the Cunneen case (at 255). 100

The Kable principle applies to Territory courts; see [6.175].

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However, (at 620) Gageler J found that the “problem” with the legislation did not arise from “courts being kept out of the process”. Rather, the problem arose “from those courts being brought into the further processes which Div 4A contemplate will occur after that period of punitive detention is over”. After all, courts were involved subsequent to the period of detention under Div 4A unless the person was unconditionally released by police. At [134], Gageler J stated that that meant: Courts of the Northern Territory are thereby made support players in a scheme the purpose of which is to facilitate punitive executive detention. They are made to stand in the wings during a period when arbitrary executive detention is being played out. They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice.

Keane J did not decide whether the detention authorised under the scheme was punitive (at 628), as he found that it would be constitutional, regardless. He found the Kable arguments ill-​founded as the complaint essentially concerned the powers vested in the executive rather than the courts. Therefore, for Keane J it was not “a complaint which engages the Kable principle” (at 639). We return to the judgments of Gageler and Keane JJ from this case at [6.125]. In Momcilovic, the facts of which are outlined at [6.25], French CJ, with whom Bell J agreed, decided that the power of the Victorian Supreme Court under s 36 of the Victorian Charter to issue Declarations of Inconsistent Interpretation was non-​judicial (see [6.25]). However, the power was validly conferred. At 68, French CJ stated: The making of the declaration, however, does no more than manifest, in a practical way, the constitutional limitations upon the Court’s role and the fact that it is Parliament’s responsibility ultimately to determine whether the laws it enacts will be consistent or inconsistent with human rights. By exemplifying the proper constitutional limits of the Court’s functions it serves to reinforce, rather than impair, the institutional integrity of the Court.

In contrast, Gummow J, with whom Hayne J agreed, found s 36 to be invalid. He stated (at 96): In the division between judicial and legislative functions it is appropriately the responsibility of the legislature to decide whether the existing statute law should be altered or replaced. It is no part of the judicial power, in exercise of a function sought to be conferred on the courts by statute, formally to set in train a process whereby the executive branch of government may or may not decide to engage legislative processes to change existing legislation.

This led his Honour to conclude (at 97) that “the practical operation of s 36 … is incompatible with the institutional integrity of the Supreme Court and therefore the section is invalid”. As noted above, Crennan and Kiefel JJ characterised the function conferred under s 36 as being incidental to judicial power. As their reasoning would find s 36 valid even in the federal sphere, it is hardly surprising that they confirmed its validity in the state sphere.101 Therefore, four Judges, a majority, affirmed the provision’s validity.102 101 See also 225-​226 and 227. 102 Heydon J found the entire Charter to be invalid, as discussed at [6.30].

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Persona designata and State judges [6.115] The Kable test, with its language of “incompatibility”, arguably resembled the test of incompatibility regarding application of the persona designata exception in the federal sphere. Wainohu v NSW (2011) 243 CLR 181 was the first case to consider the constitutionality of non-​judicial powers conferred on “designated serving judges” under State laws.103 Wainohu concerned a regime for judicially imposed control orders against “declared” organisations. The power to make declarations against organisations under the Crimes (Criminal Organisations Control) Act 2009 (NSW) was vested in “an eligible judge”, normally a judge of the Supreme Court of NSW, under Pt 2 of the Act. The judge could make declarations on the basis of a wide range of considerations, including access to secret criminal intelligence, if he or she was satisfied that the organisation’s members associated for the purposes of pursuing “serious criminal activity” or that the organisation posed a threat to public safety (s 9). The judge was not required to provide reasons for the making of a declaration, and was not bound by the rules of evidence in doing so. No legal consequences flowed directly from a declaration, but the declaration was a condition precedent to the Supreme Court’s power to make control orders in Pt 3 of the Act, discussed below. Hence, the non-​judicial power of declaration, which was vested in the executive in the legislation at issue in Totani, was here vested in an eligible judge. It was not clear that the judge was acting in a personal capacity under Pt 2. At the federal level, such powers can only be exercised by judges acting in their personal capacity as a “persona designata” [6.100]. No such requirement exists at the State level. That is, it need not be made clear that the judge is acting in a personal capacity.104 Certainly, however, the positions of a judge performing a non-​judicial role at a State level and a judge acting as a “persona designata” performing a non-​judicial role at the federal level are comparable, and perhaps barely distinguishable to a lay person. Under Pt 3, the Supreme Court could issue a control order restricting certain freedoms, including freedom of association, of members of declared organisations, upon application by the Commissioner of Police. The Supreme Court had discretion whether or not to issue the order, unlike in Totani. Wainohu concerned a challenge to the legislative scheme by a member of the Hells Angels Motorcycle Club of NSW, Derek Wainohu, against the pending declaration of that organisation. A majority of 6:1 found the scheme to be invalid, with Heydon J again the lone dissenter. The majority decision indicates that the principles governing the conferral of non-​judicial powers on State judges are in fact similar to those governing “persona designata” appointments at the federal level. French CJ and Kiefel J were concerned (at 200-​201) that the power of declaration took up a considerable amount of an eligible judge’s time. They did not, however, find the power to be invalid on that basis. It is notable, however, that such concerns were raised as a key matter in determining the constitutionality of a federal “personal 103 See French CJ and Kiefel J at 202. 104 See French CJ and Kiefel J at 211-​212.

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designata” appointment in Grollo v Palmer (1995) 184 CLR 348 (see [6.100]). Similarly, the Pt 2 powers were conferred with a judge’s consent,105 another constitutional requirement raised in Grollo. At 210, their Honours stated: The principle in Kable also leads to the conclusion that a State legislature cannot enact a law conferring upon a judge of a State court a non-​judicial function which is substantially incompatible with the functions of the court of which the judge is a member. Although the function may be conferred upon the judge in his or her capacity as an individual, the statute may create a close connection and therefore an association with the person’s role as a judge. Where this is the case, the potential for incompatibility of the non-​judicial function is brought more sharply into focus. The question which then arises is whether the performance of that function would impair the defining characteristics of that court. It is that question with which the Court is concerned in this case.

Hence, a key to this case was the fact that the non-​judicial power of declaration exercised by an eligible judge was so closely connected with the judicial powers of the Supreme Court to issue control orders. The two functions were “closely connected”.106 French CJ and Kiefel J found the scheme to be invalid. They were particularly troubled that, under s 13(2) of the Act, the eligible judge could exercise the power of declaration without giving reasons. At 219-​220, their Honours stated: a judge of the Court performs a function integral to the exercise of jurisdiction by the Court, by making the declaration, but lacks the duty to provide reasons for that decision. The appearance of a judge making a declaration is thereby created whilst the giving of reasons, a hallmark of that office, is denied. These features cannot but affect perceptions of the role of a judge of the Court, to the detriment of the Court. the declaration itself would be effectively unexaminable in the proceedings in the Supreme Court. A critical element of the Court’s power to make an interim control order or a control order would necessarily be unexplained and unable to be explained by the Court.

Accordingly, they found the declaration powers to be invalid. Gummow, Hayne, Crennan and Bell JJ confirmed the correlation between the Kable doctrine as applied to designated non-​judicial powers for State judges and the principles for federal personal designata appointments outlined in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. At 228-​229, they state: The Commonwealth Solicitor-​ General correctly submitted that the reasoning in the decisions in Wilson and Kable v Director of Public Prosecutions (NSW), delivered respectively on 6 and 9 September 1996, share a common foundation in constitutional principle. That constitutional principle has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or State. The principle applies throughout the Australian integrated court system because it has been appreciated since federation that the Constitution does not permit of different grades or qualities of justice. It follows that repugnancy to or incompatibility with that institutional integrity may be manifested by State (and Territory), as well as federal, legislation which provides for the conferral of functions upon a judicial officer persona designata.

105 See French CJ and Kiefel J at 200. 106 See French CJ and Kiefel J at 218.

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As with French CJ and Kiefel J, these four Justices found that the removal of the duty to give reasons for a declaration led to invalidity of the eligible judge’s power. At 230: The effect of Pt 2 is to utilise confidence in impartial, reasoned and public decision-​making of eligible Judges in the daily performance of their offices as members of the Supreme Court to support inscrutable decision-​making.

Heydon J dissented. He found that while eligible judges did not have to give reasons, they ordinarily would do so. “[T]‌he validity of s 13(2) is to be assessed bearing in mind practical realities and likelihoods, not remote or fanciful possibilities”.107 Indeed, his Honour was correct to note (at 244) that the analogous power of issuing warrants for wiretaps was upheld in Grollo despite the absence of a duty to give reasons. Indeed, an inconsistency can perhaps also be detected between Wainohu and Pompano (see [6.110]), given the importance in the latter case of the Supreme Court’s ability to “cure” procedural defects by acting fairly in its consideration of “criminal intelligence”. Hayne, Crennan, Kiefel and Bell JJ were alert to this possible inconsistency and explained in Pompano (at 102-​103): It will be recalled that the CCOC Act provided [in Wainohu] that an eligible judge need not give reasons for declaring an organisation to be a declared organisation. That an eligible judge could choose to do so was not to the point. The CCOC Act was held invalid as repugnant to or inconsistent with the institutional integrity of the Supreme Court of New South Wales. But in the present case, the CO Act does not in any way alter the duty of the Supreme Court to assess the cogency and veracity of the evidence that is tendered in an application for a declaration of an organisation as a criminal organisation.

Importantly in Wainohu, Heydon J explicitly acknowledged that the majority decision extended the Kable doctrine. At 247, he outlined the following argument from the State of Victoria, with which he later agreed (at 248): All the authorities on designated persons relate to federal judges. None of the authorities in which the Kable doctrine has been successfully invoked in relation to State judges were designated persons cases, although there are dicta of Gaudron J opposing the extension to designated persons and of McHugh J favouring it. To decide for the plaintiff would involve a new step –​a merger between the Grollo v Palmer principle limiting the activities of federal judges as designated persons, and the Kable doctrine limiting the functions of State courts, and an extension of it to State judges as designated persons.

Heydon J and the State of Victoria were correct. The High Court has now taken that step. Furthermore, Wainohu does not indicate any meaningful difference between the principles applying to the determination of the constitutionality of the conferral of non-​judicial powers on individual State judges, and the constitutional principles in Grollo and Wilson applying to federal personal designata appointments. In that sense, Wainohu is probably the most important post-​Kable case on the limits of State powers to confer functions on courts and judges, as it signals a clear extension of the Kable principle.

107 Heydon J at 241.

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Required characteristics of State courts [6.120] In Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, Gummow, Hayne and Crennan JJ stated (at 76): Because Ch III requires that there be a body fitting the description “the Supreme Court of a State”, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. … [T]‌he relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-​making bodies. It is neither possible nor profitable to attempt to make some single all-​ embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.

French CJ remarked on the same principle in Pompano (at 71): The respondents invoke the general principle, established in decisions of this Court, that a State legislature cannot confer upon a court of a State a function which impairs its institutional integrity and which is therefore incompatible with the role of that court as a repository of federal jurisdiction. The “institutional integrity” of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision-​making bodies. The defining characteristics of courts include: • the reality and appearance of decisional independence and impartiality; • the application of procedural fairness; • adherence as a general rule to the open court principle; • the provision of reasons for the courts’ decisions. Those characteristics are not exhaustive.

Kirk v Industrial Court of NSW (2010) 239 CLR 531 concerned the scope of a privative clause, s 179(1) of the Industrial Relations Act 1996 (NSW), which purported to oust the jurisdiction of the Supreme Court to review decisions of NSW’s Industrial Court. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated (at 580): In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description “the Supreme Court of a State”, and the constitutional corollary that “it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description”.

At 580-​581: The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That

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supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth. There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. … And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics. This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-​jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-​ jurisdictional error of law appearing on the face of the record is not beyond power.

Therefore, State legislatures may not remove the jurisdiction of the Supreme Court to review and overturn lower court decisions afflicted by “jurisdictional error”, as opposed to non-​ jurisdictional error, as such removal would alter a defining characteristic of Supreme Courts contrary to Ch III. The dividing line between these two different grounds of review is complex, and is beyond the scope of constitutional law and this book.108 Public Service Association of SA v Industrial Relations Commission of SA (2012) 249 CLR 398 confirmed that the Kirk principle applies to Supreme Court reviews from any body, judicial or non-​judicial: Kirk “drew no distinction between different types of jurisdictional error” with regard to the application of its constitutional principle.109 The Kirk basis for invalidity was argued unsuccessfully in Duncan v Independent Commission Against Corruption (2015) 256 CLR 83, the facts of which are discussed at [6.115]. It was agreed that the impugned ICAC report from 2013 was “affected by jurisdictional error” (at 92). The retrospective change to the meaning of “corrupt conduct” effected by Sch 4, Pt 13 of the ICAC Act was argued to remove the court’s supervisory jurisdiction to review and overturn such errors. French CJ, Kiefel, Bell and Keane JJ stated (at 99):

108 See L B Crawford and J Boughey, “The Centrality of Jurisdictional Error: Rationale and Consequences” (2019) 29(4) Public Law Review (forthcoming) 109 Heydon J at 427; see also 429-​430.

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This Court's decision in Kirk was concerned with legislative intrusion upon the supervisory jurisdiction of the Supreme Courts of the States over administrative agencies and inferior courts; but it did not deny the competence of State legislatures to alter the substantive law to be applied by those agencies and courts. As has been explained, Pt 13, properly understood, effects an alteration in the substantive law as to what constitutes corrupt conduct; it does not withdraw any jurisdiction from the Supreme Court. The Court of Appeal remains seized of the proceedings pending before it. Accordingly, Pt 13 does not contravene the Kirk principle.

Forge concerned a challenge to the appointment of acting judges in New South Wales under s 37 of the Supreme Court Act 1970 (NSW). Acting judges do not enjoy tenure, unlike permanent judges who enjoy tenure under s 27 in New South Wales until the age of 72. The majority found that the arrangements regarding acting judges in New South Wales did not threaten the institutional integrity of the New South Wales Supreme Court to such an extent as to breach the Kable principle. The federal Constitution does not explicitly demand that State judges be tenured. In fact, acting judges have been appointed to State courts since federation, and in colonial courts in the 19th century. Nevertheless, all parties in Forge conceded that the power of State governments to appoint acting judges was not unlimited: the New South Wales government, for example, had to ensure that the court was principally composed of permanent judges.110 Gummow, Hayne and Crennan JJ stated (at 85): If it is accepted that some acting appointments may lawfully be made under s 37, a quantitative criterion for marking the boundary of permissible appointments would treat the circumstances seen by the appointing authority as warranting the appointment of an acting judge as wholly irrelevant to the inquiry about validity. It would assume that the external observer considering the independence and impartiality of the court as a whole should, or would, ignore why it had been thought necessary to appoint those who had been appointed to act as judges. Thus the necessity presented by sickness, absence for other sufficient cause, or the embarrassment of a judge or judges in one or more particular cases would be treated as irrelevant; all that would matter is how many have been appointed. And that, in turn, presents the question: how would the particular number or proportion of acting judges that would compromise the institutional integrity of the court be fixed? That is a question to which none but an arbitrary answer can be given. Rather than pursue the illusion that some numerical boundary can be set, it is more profitable to give due attention to the considerations that would have to inform any attempt to fix such a boundary: the fact and appearance of judicial independence and impartiality.

Section 37 permitted the appointment in an acting capacity of practitioners but, by the time of Forge, New South Wales had adopted a practice of appointing only retired judges. The appointment at issue on the facts was that of Foster AJ, a retired Federal Court judge who subsequently served several commissions on the New South Wales Supreme Court in an acting capacity. Gummow, Hayne and Crennan JJ, whose decision essentially reflected the majority opinion, suggested (at 87) that the appointment of legal practitioners to acting judicial appointments might raise constitutional issues, given the temptation of such a person to seek to please the government to attract a permanent appointment. Ultimately, these three Judges concluded (at 88):

110 See Gummow, Hayne and Crennan JJ at 79.

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Whether, or when, the institutional integrity of the court is affected depends, then, upon consideration of much more than the bare question: how many acting judges have been appointed? Regard must be paid to who has been appointed, for how long, to do what, and, no less importantly, why it has been thought necessary to make the acting appointments that have been made. Those alleging invalidity in the present matter did not seek to make a case founded in any examination of the circumstances that led either to the successive appointments of Foster AJ, or any of the other appointments made at or about the time of his appointments. To the extent that those alleging invalidity sought to make any case separate from and additional to their basic proposition that s 37 is wholly invalid, they did no more than point to the numbers of appointees. For the reasons that have been given, s 37 is not to be read down by reference to some numerical criterion. Section 37 of the Supreme Court Act is not invalid. It is not demonstrated that s 37 was not validly engaged to appoint Foster AJ as an acting judge of the Supreme Court of New South Wales. The first issue tendered for decision in these matters and in the application for special leave should be resolved against those alleging invalidity.

Ultimately, the majority seemed to base its decision on the apparent acceptability of the acting appointment of Foster AJ. Kirby J in dissent adopted a more global approach, focusing on New South Wales’ practices regarding acting appointments rather than the actual appointment of Foster AJ. Kirby J accepted that historical and practical considerations dictated that acting appointments were permitted in the States. However, he noted that New South Wales had, since 1989, appointed acting judges in increasing and substantial numbers. He stated (at 102): There comes a time when quantitative change turns into a qualitative change; when special need becomes a settled practice; when a number of individual commissions becomes an institutional restructuring. This is what has happened in New South Wales courts, specifically in the Supreme Court. It has happened without an alteration of the relevant legislation to afford the specific endorsement by the State Parliament of such restructuring. It has occurred by the use of statutory provisions, expressed in general terms, for appointing acting judges, although such provisions were obviously intended, and initially only used, for ad hoc and special needs. In the case of the Supreme Court, the cohort of acting judges has now effectively become part of the Court’s institutional arrangements. This is even truer of the District Court. It is such arrangements that the plaintiffs challenge.

Kirby J concluded (at 94-​95): In my opinion, the number and type of acting appointments made under the impugned provisions of s 37 of the Supreme Court Act 1970 (NSW) … are such as to amount to an impermissible attempt to alter the character of the Supreme Court. They attempt to work a change in a fundamental respect forbidden by the federal Constitution. What was intended as a statutory provision for occasional and exceptional additions to judicial numbers, in special circumstances, has become a means for an institutional alteration that is incompatible with the role of the State courts, particularly the Supreme Court. It has made the courts beholden to the Executive for regular short-​term reappointments of core numbers of the judiciary. This is offensive to basic constitutional principle. The time has come for this Court to draw a line and to forbid the practice that has emerged in New South Wales, for it is inimical to true judicial independence and impartiality. When viewed in context, the acting judicial commission in question in these proceedings was not an ad hoc, special one for particular purposes. When the line is crossed, this Court should

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say so. It should not postpone the performance of its role as guardian of the Constitution. The challenge to the validity of the legislation should be upheld.

In short, Kirby J found that the practice of appointing acting judges in New South Wales had become so extensive that it altered the institutional structure of the New South Wales Supreme Court to such an extent as to breach the Kable principle. He read s 37 down so that it only permitted “exceptional and occasional appointments of acting States judges”, rather than the appointments en masse “of such a number of acting judges, for such durations as would have the effect of altering the character of the Supreme Court” as an appropriate vessel for federal jurisdiction (at 135). Therefore, he found the appointment of Foster AJ to be invalid. Hogan v Hinch (2011) 243 CLR 506 concerned the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic), which authorised inroads into the “open court” principle. Under s 42, courts had discretion to order the suppression of information relating to sex offence trials, including information regarding the identity of an alleged offender, if it believed it was in the public interest to do so. Such orders could bind non-​parties to a case. The radio broadcaster Derryn Hinch was charged with an offence when he breached a s 42 order and named an offender on a website. His challenge to the validity of s 42 failed. At 541-​542, French CJ, with whom the rest of the Court essentially agreed, said: The open hearing is an essential characteristic of courts, which supports the reality and appearance of independence and impartiality. Its corollary is the freedom to make a fair and accurate report of what transpires in court proceedings, including the orders made by the court. However, at common law the open justice principle has, consistently with the judicial function, long been subject to qualifications reflected in the inherent jurisdiction of courts or their implied incidental power to hear part of their proceedings in camera and to restrict the publication of evidence or the names of witnesses. Chapter III does not impose on federal courts or the courts of the States a more stringent application of the open justice principle than that described above. The extent at common law of a power to prohibit publication of evidence or information disclosed in proceedings in open court may be contentious. The existence of a power to make such orders to bind the world at large is doubtful. Debate on that issue goes to the common law and implied powers of courts. Its resolution does not conclude the question whether such a power is one which cannot be conferred by statute. Having regard to the existence of analogous common law powers, albeit powers not as far reaching as s 42, it cannot be said that that section confers upon the court functions inconsistent with its essential curial characteristics or deprives it of those characteristics. Importantly, the section confers a discretion on the court to decide whether or not to prohibit publication of certain information derived from proceedings before it. It requires the court to apply familiar criteria in reaching that decision. There is nothing in the nature of the power conferred upon the court by s 42, properly construed, which is repugnant to or incompatible with the judicial function or otherwise incompatible with any implication derived from Ch III.

In Pompano, Gageler J stated (at 105): My view, in short, is that Ch III of the Constitution mandates the observance of procedural fairness as an immutable characteristic of a Supreme Court and of every other court in Australia. Procedural fairness has a variable content but admits of no exceptions. A court cannot be required by statute to adopt a procedure that is unfair. A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right

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or legally protected interest of a person without affording that person a fair opportunity to respond to evidence on which that order might be made.

As noted, Gageler J found the impugned provisions in Pompano valid, so he concluded that they did not require the Supreme Court to act in an unfair manner. This principle regarding the “requisite characteristics of courts” has, on occasion, been divorced from Kable. Indeed, Kable is not cited once in Kirk. This principle may develop to provide a sound constitutional basis for some sort of right to a fair trial (see [6.170]).

The investiture of judicial power in non-​judicial bodies at the State level [6.125]  The ratio of Kable does not seem to place any limit on the ability of State parliaments to vest non-​judicial bodies with judicial power.111 Indeed, in Fardon, McHugh J stated (at 600): [There is nothing] in the Constitution that would preclude the States from legislating so as to empower non-​judicial tribunals to determine issues of criminal guilt or to sentence offenders for breaches of the law.112

It is disturbing to contemplate that the Community Protection Act 1994 in Kable was invalid for conferring the power to order Kable’s detention on the Supreme Court of New South Wales, but that it may have been valid if the power had simply been vested in an administrator, such as a Minister or a police chief. Indeed, the reasoning in Kable may indicate that such a scenario would have amounted to the investiture of non-​ judicial power in a non-​judicial body, which raises no separation of powers issues.113 Detention at the behest of an administrator would have been a greater infringement on Kable’s liberty than the regime contemplated in the Act. Administrators are more likely to have been influenced by the public opprobrium against Kable. Indeed, Grove J of the Supreme Court refused to issue a second order for Kable’s detention, so Kable was actually released in August 1995. The key issue for the Kable Court was the maintenance of public confidence in the independence of the judiciary and the integrity of the Supreme Court as a vessel for federal jurisdiction, rather than the preservation of Kable’s rights per se.114 While it was possibly permissible for the New South Wales Government to pass legislation to keep Kable detained after the

111 G Carney, “Wilson and Kable: The Doctrine of Incompatibility: An Alternative to Separation of Powers?” (1997) 13 Queensland University of Technology Law Journal 175 at 190. 112 In Totani, Gummow J noted an argument (at 67) that a State legislature could “authorise a body other than a court to exercise judicial power”. That argument fell outside the matter at hand. 113 See McHugh J in Kable (at 121): “The Parliament of New South Wales has the constitutional power to pass legislation for the imprisonment of a particular individual”. See also G Zdenkowski, “Community Protection through Imprisonment without Conviction: Pragmatism versus Justice” (1997) 3 Australian Journal of Human Rights 8 at 22. See [6.125] regarding the characterisation of powers of detention as “judicial” or “non-​judicial”. 114 Handley, n 65, p 198.

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expiry of his sentence, it was impermissible for the government to seek to clothe such detention with judicial approval.115 No High Court case since Kable has decided on the outer limits of the States’ powers to vest judicial power in non-​judicial bodies. For example, that question did not fall to be determined in Duncan v NSW (2015) 255 CLR 388 as the Court found that no such question arose (see [6.10]). Furthermore, no case has yet determined the bounds of State government powers to detain or restrict liberty without any involvement of judges. Hayne J alluded to this fact in Kuczborski v Queensland (2014) 254 CLR 51 at 89 stating that there was “no direct or immediate application [to the States] of what has been said in the context of Ch III about the ‘usurpation’ of judicial power”. In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, much of the challenge to the “paperless arrest scheme” [6.145] was based on a claim that the Northern Territory legislation conferred a power of punitive detention on the police, which amounted to a usurpation of judicial power. Usurpation is a form of exercise of judicial power by the legislature, and is discussed below, largely in relation to the federal sphere (see [6.135]). The majority found that the arrest scheme did not confer such power (see [6.112]), so the constitutionality of any such conferral did not have to be determined. Gageler J found that the power of detention at issue in this case was in fact punitive. However, he found that usurpation per se did not breach any constitutional principle, as the principle of separation of powers did not apply to the Territories (see [6.175]). Nevertheless, as noted above, Gageler J found (in dissent) that Kable applied to invalidate the law (see [6.95]), as the sidelined role of the courts undermined their institutional integrity. This judgment demonstrates how the investiture of judicial powers in non-​judicial bodies by the Territory (or presumably the States) might still undermine the institutional integrity of courts and breach the Kable principle by reducing their role to an unacceptable minimum. In that sense, perhaps this case was analogous to Totani. Furthermore, French CJ, Kiefel and Bell JJ alluded tentatively to this possibility in stating (at 596): It might be possible to envisage a scheme in which power was conferred on the executive in such a way as effectively to deprive the courts of supervision of its exercise. Such a scheme might on established principles, or some extension thereof, be impermissible. But that is not this case. The plaintiffs' argument based on the Kable doctrine must fail.

Nevertheless, Gageler J’s judgment is still premised on the residual, and in his view impermissible, role of the courts in the scheme. It seems that even he might find Kable inapplicable in a scheme where the courts had no role at all, in his comments (at 621): Lest it be thought incongruous that the constitutional defect in a legislative scheme of punitive executive detention is to be found at the periphery of that detention, in the subsidiary role which the legislative scheme gives to courts, it is important to recognise

115 See the influential case of Mistretta v United States 488 US 361 (1989) at 407, regarding the similar doctrine in the United States of America: “[The judiciary’s] reputation may not be borrowed by the political Branches to cloak their work in the neutral colours of judicial action”.

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that a constitutional doctrine which limits legislative design has flow-​on effects for political accountability. Were the provisions which contemplate a role for courts to be removed, the legislative scheme of Div 4AA would appear to be quite different. The legislative scheme would be starkly one of catch and release. The scheme would be reduced so as to appear on the face of the legislation implementing it to be one which authorises police to detain, and then release, persons arrested without warrant on belief of having committed or having been about to commit an offence. The political choice for the Legislative Assembly would be whether or not to enact a scheme providing for deprivation of liberty in that stark form.

Keane J did not decide whether the detention was punitive or not. As with Gageler J, he found that the broad doctrine of separation of powers did not apply in the Territories (see [6.175]). On the Kable argument, he stated the following (at 638-​639): To the extent that the plaintiffs argued that Div 4AA adversely affects the courts by effectively sidelining them in respect of the matters for which it provides, the plaintiffs' argument confuses the Kable principle with the requirements of the constitutional separation of powers at the level of the Commonwealth. Their argument on this point is, in truth, a complaint that functions which ought to be performed by the judiciary are being performed by the executive. That is a complaint about a failure to observe the requirements of the separation of powers. It is not a complaint which engages the Kable principle.

Hence, it seems that Keane J envisages no role for Kable in challenging the powers vested in non-​judicial bodies at the Territory level. As Kable clearly also applies in the States, it seems likely that his Honour would find no role for any constitutional doctrine which limits the ability of States to vest judicial powers in non-​judicial bodies. Indeed, Keane J also made it clear that the State legislatures can vest the power of punitive detention, a judicial power, in non-​judicial bodies. In denying a like prohibition on the Northern Territory legislature (see [6.125]), his Honour justified that finding in part by noting that it would be strange for Territory residents to be “in a better position in relation to immunity against executive detention than residents of States” (at 632). There is however at least one constitutional limit to the power of the States to vest judicial power in non-​judicial bodies. Burns v Corbett (2018) 92 ALJR 423 concerned a challenge to judicial anti-​discrimination proceedings in a non-​judicial administrative tribunal, the Civil and Administrative Tribunal of NSW, between residents of different States. The proceedings therefore entailed an exercise of jurisdiction over matters between residents of different States, that is the “diversity jurisdiction” under s 75(iv) of the Constitution (see [6.50]). In Burns, a majority of Kiefel CJ, Bell and Keane J, with Gageler J concurring, found that Ch III prohibits States from vesting jurisdiction over the matters in ss 75 and 76 of the Constitution in non-​judicial bodies. According to Kiefel CJ, Bell and Keane JJ (at 435), “adjudicative authority in respect of the matters listed in ss 75 and 76 of the Constitution may be exercised only as Ch III contemplates and not otherwise”. Hence, jurisdiction over those matters can only be vested in the courts mentioned in s 71. The reasoning behind this implication is thoroughly explored in the concurring judgment of Gageler J, who placed extensive reliance on his interpretation of s 77(ii)

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of the Constitution. Section 77(ii) gives the Commonwealth legislative power to “define the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs or is invested in the courts of the States”. Under this head of power, the Commonwealth has enacted ss 38 and 39 of the Judiciary Act 1903 (Cth), which specify that the only source of federal jurisdiction for State courts is from the Commonwealth. These provisions help to ensure the unity of federal jurisdiction, and that an appeal always lies to the High Court under s 73 of the Constitution in respect of a matter within ss 75 and 76. Any purported vestment of jurisdiction over the ss 75 and 76 subject matters in State courts by State legislatures is therefore void under s 109 due to inconsistency. As s 77(ii) makes no mention of non-​judicial State bodies, Gageler J accordingly found that the Commonwealth had no power to exclude jurisdiction from such bodies (at 443). Hence, for Gageler J (and the rest of the majority) it was necessary to find an implication in Ch III which prohibited the vesting of jurisdiction over ss 75 and 76 matters in State non-​judicial bodies, as the Commonwealth had no power to legislate to achieve that outcome. Otherwise, the possibilities afforded by s 77 for the Commonwealth to choose to create a uniform structure for the exercise of federal jurisdiction would be easily thwarted. At 446-​447, his Honour stated: [The question of the existence of the implication] falls to be considered against the background of an absence of Commonwealth legislative power to achieve the same result. If the existence of State legislative power to confer State judicial power with respect to a matter identified in s 75 or s 76 other than on a State court would mean that there is a hole in the structure of Ch III, there would be no option but to accept the existence of that hole as part of a flawed constitutional design. The Commonwealth Parliament would have no capacity to plug it. The necessity for the implication, in my opinion, arises as follows. Within the structure of Ch III of the Constitution, the legislative powers conferred on the Commonwealth Parliament by s 77(ii) and (iii) operate in conjunction with s 109 of the Constitution … to enable the Commonwealth Parliament to produce the result that any matter identified in s 75 or s 76 can be adjudicated in the exercise of federal jurisdiction by a federal court or a State court to the exclusion of such State jurisdiction as might be conferred on a State court by the Parliament of a State. A constitutionally mandated condition of legislation attaining that constitutionally permissible result is that the federal court or State court with federal jurisdiction to adjudicate the matter is to have and maintain the minimum characteristics of independence and impartiality required of a Ch III court.

Three Judges, Nettle, Gordon and Edelman JJ, disagreed on the existence of the new implication. They all interpreted s 77(ii) as authorising the Commonwealth to exclude jurisdiction from State non-​judicial bodies over the matters in ss 75 and 76. As explained by Edelman J (at 471), “a constitutional implication removing part of a State’s concurrent power could not be necessary if there is Commonwealth power to exclude the concurrent State power”. Nettle, Gordon and Edelman JJ each found that the Commonwealth had in fact legislated under the Judiciary Act 1903 (Cth) so as to exclude the State vestment of jurisdiction over ss 75 and 76 matters in non-​judicial bodies, so the purported vestment of s 75(iv) jurisdiction by NSW in its Civil and Administrative Tribunal failed due to a consequent breach of s 109. Hence, the Court unanimously found that the proceedings in the Civil and Administrative Tribunal could not proceed, but for different reasons.

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Summary of the Kable doctrine at the State level [6.130]  The principles regarding separation of powers principles at the State level can be summarised as follows. First, States can prima facie vest State courts and judges with non-​judicial powers. Second, States cannot vest those courts and judges with powers that undermine, or otherwise enact legislation which undermines, the institutional integrity of those courts if those courts are capable of being vested with federal jurisdiction under Ch III. This second step has been variously discussed by Judges in terms of public confidence (since abandoned), incompatibility, repugnance, institutional integrity, the defining characteristics of courts and combinations thereof. Wainohu arguably indicated that the doctrine of separation of powers at the State level was becoming equal to that in the federal sphere, with regard to the conferral of non-​ judicial powers on courts. This impression was boosted by the decision of Gummow J, with whom Hayne J agreed on this point, in Momcilovic regarding the validity of s 36 of the Victorian Charter, the Supreme Court’s power to issue Declarations of Inconsistent Interpretation. At 95-​96, Gummow J stated: [T]‌he creation of the advisory structure in s 36 and associated provisions (ss 33 and 37) attempts a significant change to the constitutional relationship between the arms of government with respect to the interpretation and application of statute law. … In addition, s 36 has the vice described in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, namely the giving to the Executive of an advisory opinion upon a question of law. In Wilson that activity by a federal judge as persona designata was incompatible with the holding of that office; thus a fortiori were the function conferred on a federal court. The decision in Wainohu [300] indicates that the Supreme Court is in no relevantly different position.

However, a number of other recent judgments have indicated that the powers of federal judges and federal courts are more constitutionally constrained than those of State judges and courts. For example, the decision of French CJ, with whom Bell J agreed, found that the non-​judicial power in s 36 could be validly conferred on State courts but not federal courts. Indeed, French CJ went so far as to say that the High Court itself was unable to review such Declarations of Inconsistent Interpretation, even though the Supreme Court could make them.116 And in Pompano, Hayne, Crennan, Kiefel and Bell JJ stated (at 452): the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth. that a State law does not infringe the principles associated with Kable does not conclude the question whether a like Commonwealth law for a Ch III court would be valid.

In any case, there are different starting points when considering separation of powers at federal and State levels. States can in fact confer non-​judicial powers on State courts. In contrast, the Commonwealth cannot, unless an exception applies. While Wainohu indicates the two doctrines are closer together than might have been imagined at the time of Kable, they are not mirror images. Furthermore, no further breaches of the Kable doctrine have been found by a majority since Wainohu. Finally, as noted at [6.125], no

116 See, for example, French CJ at 66 and 70.

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High Court decision has only found one constitutional constraint upon the ability of States to vest judicial power in non-​judicial bodies: they may not do so with regard to the matters listed in ss 75 and 76 of the Constitution according to the majority in Burns v Corbett.

CHAPTER III AS A SOURCE OF INDIVIDUAL RIGHTS [6.135] The Kable case arguably demonstrates how Ch III can be interpreted to protect individual human rights. The majority was able, through application of the doctrine of incompatibility, to strike down an Act which constituted a grave breach of Kable’s human right to liberty and to be free from arbitrary detention.117 This is not surprising, seeing as one of the underlying rationales for the separation of powers doctrine is to enhance the fair administration of justice for the benefit of people who come before courts. The beneficial effect of the separation of powers doctrine on the protection of individual rights, or an absence thereof, is discussed in the following sections.

The broader scope of the incompatibility doctrine [6.140]  The incompatibility doctrine emerged in Grollo and Wilson as a limitation to the “persona designata” exception. In Kable, the doctrine seemed to take on a life of its own and acted as a limit on the power that State parliaments could confer on State Courts. A lull then arose in which the Kable principle was constantly distinguished, leading Kirby J to lament the possibility that the cases were “treating Kable as a constitutional guard-​dog that would bark but once”.118 However, the Kable doctrine has now been reinvigorated by the decisions in International Finance Trust, Totani and Wainohu. In the former case, powers regarding the restriction of property rights of unconvicted persons were struck down. In the latter two cases, powers which could lead to the severe restriction on freedom of association were struck down. In Thomas v Mowbray, an alternative argument for the plaintiff was that the powers of federal courts to issue control orders, even if classified as judicial, were nevertheless incompatible with Ch III of the Constitution. The minority upheld this argument. Kirby J (at 433-​435) noted several offending features of the legislation, which rendered the issuance of control orders incompatible in his view with Ch III: the ex parte determination of interim orders, minimal notice periods for the hearing to confirm an interim order, the furnishing of incomplete reasons for an interim control order to the relevant individual, and the likelihood of evidence being withheld altogether on national security grounds. His Honour concluded (at 436): It follows that Div 104 of the Code is at odds in important respects with the features of “independence, impartiality and integrity” that are implied or assumed characteristics of the federal courts for which Ch III of the Constitution provides. Requiring such courts, as

117 The decision, in its result, did protect Kable’s rights though admittedly, it permitted the passage of an Act even more prejudicial to Kable (that is, an Act authorising his detention without judicial oversight) which never eventuated. Compare Handley, n 65, p 198, arguing that Kable “derogated” from the protection of Kable’s rights. Also note that Kable failed in his tort action against the government for false imprisonment (see [1.235]). 118 Baker v The Queen (2004) 223 CLR 513 at 535.

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of ordinary course, to issue orders ex parte, that deprive an individual of basic civil rights, on the application of officers of the executive branch of government and upon proof to the civil standard alone that the measures are reasonably necessary to protect the public from a future terrorist act, departs from the manner in which, for more than a century, the judicial power of the Commonwealth has been exercised under the Constitution.

Hayne J, also in dissent, expanded on the issue regarding the withholding of intelligence material (at 477-​478): The desirability of keeping intelligence material secret is self-​evident. Often it will be essential. But the problem presented by the use of intelligence material is more deep-​rooted than any question of preserving secrecy. Even if taking steps to secure the continuing secrecy of intelligence material is, or can be made, consistent with the generally open and adversarial nature of litigation in the courts, it is the nature of the material to be considered that presents issues of a kind not suited to judicial determination. In particular, by its very nature, intelligence material will often require evaluative judgments to be made about the weight to be given to diffuse, fragmentary and even conflicting pieces of intelligence. Those are judgments of a kind very different from those ordinarily made by courts. For the most part courts are concerned to decide between conflicting accounts of past events. When courts are required to predict the future, as they are in some cases, the prediction will usually be assisted by, and determined having regard to, expert evidence of a kind that the competing parties to the litigation can be expected to adduce if the point in issue is challenged. Intelligence information, gathered by government agencies, presents radically different problems. Rarely, if ever, would it be information about which expert evidence, independent of the relevant government agency, could be adduced. In cases where it could not be tested in that way (and such cases would be the norm rather than the exception) the court, and any party against whose interests the information was to be provided, would be left with little practical choice except to act upon the view that was proffered by the relevant agency. These difficulties are important, but not just because any solutions to them may not sit easily with common forms of curial procedure. They are important because, to the extent that federal courts are left with no practical choice except to act upon a view proffered by the Executive, the appearance of institutional impartiality and the maintenance of public confidence in the courts are both damaged. To that extent, “[t]‌he judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature”. These are signs or symptoms of a more deep-​seated problem. The difficulties that have been mentioned both emerge from and reveal a fundamental feature of the impugned provisions: that a decision about what is necessary or desirable for public protection is confided to the judicial branch of government.

Gleeson CJ in the majority rejected the argument in the following terms (at 335): Finally, it was argued that, even if Div 104 confers judicial power, it purports to require that power to be exercised in a manner inconsistent with the essential character of a court or inconsistent with the nature of judicial power. This argument fails. We are here concerned with an interim control order which was made ex parte, pursuant to subdiv B, but, as has been pointed out, in the ordinary case a confirmation hearing would have been held before now. Applications for control orders are made in open court, subject to the power to close the court under the court’s general statutory powers. The rules of evidence apply. The burden of proof is on the applicant. Prior to the confirmation hearing, the subject of a control order is given the documents that were provided to the Attorney-​General for the purpose of seeking consent to the application for the interim order, together with any other

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details required to enable the person to respond (s 104.12A). The confirmation hearing involves evidence, cross-​examination, and argument (s 104.14). The court has a discretion whether to revoke or vary or confirm the order (s 104.14). An appeal lies in accordance with the ordinary appellate process that governs the issuing court’s decisions. The outcome of each case is to be determined on its individual merits. There is nothing to suggest that the issuing court is to act as a mere instrument of government policy. On the contrary, the evident purpose of conferring this function on a court is to submit control orders to the judicial process, with its essential commitment to impartiality and its focus on the justice of the individual case. In particular, the requirements of s 104.4, which include an obligation to take into account the impact of the order on the subject’s personal circumstances, are plainly designed to avoid the kind of overkill that is sometimes involved in administrative decision-​making. Giving attention to the particular circumstances of individual cases is a characteristic that sometimes distinguishes judicial from administrative action.

Similarly, Callinan J in the majority stated (at 508-​509): Chapter III of the Constitution is not infringed by s 104.4. Division 104 makes and implies the usual indicia of the exercise of judicial power: evidence, the right to legal representation, cross-​examination, a generally open hearing (subject to a qualification with respect to some sensitive intelligence material), addresses, evaluation of the evidence, the ascertainment and application of the law to the found facts, and in all other respects as well, the application of orthodox judicial technique to the making of a decision which may be the subject of an appeal on either or both fact and law. This is not the way that any arm of the Executive conventionally operates. Risks to democracy and to the freedoms of citizens are matters of which courts are likely to have a higher consciousness. That the material upon which the courts may be forced by the exigencies to rely, may be incomplete, fragmentary and conflicting does not deprive the process which the Code requires them to undertake of its judicial character, or mean that the issues are not justiciable. If courts could only decide cases in which the materials were complete and the facts not in conflict, there would be little work for them to do and many controversies left unquelled. The necessity and obligation to decide on what is available is well settled. … [C]‌ourts must evaluate the evidence having regard to the capacities of the respective parties to adduce it, reflect the necessary pragmatism and experience of the common law with respect to human affairs and evidence about them.

Gleeson CJ remarked that the upholding of the plaintiff’s argument would not necessarily have been a good outcome for human rights. He stated (at 329): [T]‌he argument is that, even assuming it is within the power of the federal Parliament to legislate for such restraints upon the liberty of individuals, the power to make control orders cannot be given to judges. The corollary appears to be that it can only be exercised by the executive branch of government. The advantages, in terms of protecting human rights, of such a conclusion are not self-​evident. In Fardon, I indicated that the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided. An argument, as a matter of policy, that legislation for anti-​terrorist control orders ought to be subject to some qualification in aid of the human rights of people potentially subject to such orders is one thing. An argument that the making of such orders should be regarded as totally excluded from the judicial function is another. … To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights.

Kirby J felt otherwise (at 436-​437):

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The exercise of serious powers affecting individual liberty by judges is indeed ordinarily a good thing and sometimes it is constitutionally obligatory. But it becomes a bad thing if the powers are granted in vague and inappropriate terms, for that engages judges in the exercise of powers that are in truth unbridled discretions, governed by the most nebulous of criteria. And it is a very bad thing if the judge concerned is required to act in exceptional ways in private and subject to constraints not normal or proper to the judicial office. These are consequences against which the federal separation of powers doctrine stands guard in Australia.

Legislative usurpation of judicial power [6.145]  “Legislative usurpation of judicial power” arises when the legislature interferes in the judicial process: this may be characterised as the legislature effectively usurping or exercising judicial power. Usurpation is therefore a breach of the first principle of the separation of powers: non-​judicial bodies may not exercise judicial power. It is well recognised, for example, that a “Bill of Attainder”, alternatively known as a “Bill of Pains and Penalties”, amounts to legislative usurpation of judicial power. McHugh J discussed the elements of a Bill of Attainder in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 (at 70): A Bill of Attainder or a Bill of Pains and Penalties is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3) without the procedural safeguards involved in a judicial trial.

Such Bills, therefore, amount to legislative pronouncements of the “guilt” of certain people, an exclusively judicial function. A classic example of usurpation arose in the Privy Council decision of Liyanage v The Queen [1967] 1 AC 259. In Liyanage, 11 persons had been tried for their alleged participation in an attempted coup d’état in Ceylon on 27 January 1962. The Ceylonese Parliament passed special legislation blatantly designed to secure the conviction of the 11 alleged conspirators. The legislation redefined the relevant crimes and the relevant penalties, altered the rules of evidence, reconstituted the trial Court so the judge sat without a jury, and retrospectively validated the relevant arrests without warrant and the detentions before trial. The legislation was deemed to have come into effect on 1 January 1962, and was limited in its application to offences which allegedly occurred on 27 January 1962. The Privy Council found that the legislation breached the doctrine of separation of powers enshrined in the Ceylonese Constitution. Their Lordships (at 290) described the legislation as “a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals”. As such, they “constituted a grave and deliberate incursion into the judicial sphere” (at 291): If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges.

The Liyanage legislation amounted to a legislative judgment of the guilt of the 11 alleged conspirators, and therefore an impermissible legislative usurpation of judicial power. The Privy Council did, however, caution that the existence of legislative usurpation would have to be determined on a case-​by-​case basis. The personal

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ad hominem nature of the law and its retrospectivity certainly helped establish its invalidity, but were not decisive in that determination. Indeed, the fatal flaw in the Liyanage law was probably that it so blatantly singled out the trial of the 11 alleged conspirators for special legislative treatment. More subtle drafting may have saved the law, as is indicated in the following cases. The issue of usurpation came before the High Court in Australian Building Construction Employees and Builders Labourers Federation v Commonwealth (1986) 161 CLR 88. On 10 April 1986, the Commonwealth Conciliation and Arbitration Commission made a declaration that the Builders’ Labourers’ Federation (BLF) had engaged in certain unlawful conduct; the declaration authorised the deregistration of the BLF. The BLF immediately commenced proceedings to challenge the Commission’s declaration, and thus stave off attempts to deregister it. However, on 14 April 1986, the Commonwealth Parliament enacted the Builders Labourers’ Federation (Cancellation of Registration) Act 1986 (Cth), which legislatively cancelled the BLF’s registration. In the BLF case, the BLF argued that the Act amounted to a usurpation of judicial power, as it effectively pre-​empted the BLF’s pending legal challenge against the Commission’s declaration. The BLF’s legal case was designed to prevent deregistration, which had now been mandated by the Act, regardless of the outcome of the case. The High Court denied that the Act usurped judicial power. The legislature was permitted, as it had here, to alter the substantive rights that might be involved in pending litigation. It was not permitted, as in Liyanage, to intervene in the judicial process itself. The Act did not directly intervene in the BLF’s litigation. The BLF was still able to proceed with the challenge to the Commission’s declaration. Of course it did not, as the remedy it sought (continued registration) had been removed by legislation. Usurpation arose in Building Construction Employees and Builders Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, another case in the BLF saga.119 Here, the New South Wales Minister for Industrial Relations cancelled the registration of the New South Wales branch of the BLF. The BLF then brought administrative proceedings to challenge the Minister’s decision. The BLF lost and appealed to a Court for judicial review. While the appeal was pending in 1986, the State Parliament enacted the Building Industry Act 1985 (NSW) which retrospectively validated the Minister’s decision “notwithstanding commencement of any proceedings … and notwithstanding any judgment in such proceedings”. This Act expressly pre-​empted the result of those proceedings, and even directed how costs in the pending matter would be worked out. Some Judges in the

119 The BLF was a militant trade union which attracted the ire of the Australian Council of Trade Unions (ACTU) and various Labor governments in the 1980s because of its strong-​arm negotiation tactics and because it was seen to be used as a vehicle by its leader, Norm Gallagher, to avoid corruption charges brought against him personally. A Royal Commission, criminal charges against Gallagher, ACTU recommendations and BLF deregistration legislation in New South Wales, Victoria and federally were used to effectively shut down the union by April 1986. Gallagher was found guilty of receiving corrupt secret commissions during his time as union official and was sentenced to 18 months in jail by the Victorian Supreme Court in September 1986. For an account of these events written by a prominent BLF official from the period, see B Boyd, Inside the BLF: A Union Self Destructs (Ocean Press, Melbourne, 1991).

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New South Wales Court of Appeal conceded that this legislation did usurp judicial power. However, as no doctrine of separation of powers was held to bind the New South Wales Parliament in this pre-​Kable case, the Act was nevertheless valid. Given that Kable and its successors do not seem to change the principles regarding the ability of State parliaments to vest judicial power in non-​judicial bodies (including themselves), the New South Wales BLF case seems to remain good law.120 The BLF cases appear to confirm that the usurpation rule is more concerned with form rather than substance. Both the Commonwealth and New South Wales statutes were enacted with the clear intention of ensuring the deregistration of the BLF. The New South Wales law directly intervened in the pending judicial proceedings by expressly mentioning them and directing their outcome, thus usurping judicial power. The Commonwealth Act did not expressly mention the pending federal proceedings at all, but successfully pre-​empted them and rendered them futile by abolishing the substantive right that the BLF was seeking to protect (registration). The BLF cases indicate that careful drafting will facilitate the ability of legislatures (or those that are not permitted to usurp judicial power) to nevertheless direct the outcome of litigation.121 Similar allegations of usurpation arose in Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117. The case arose in the context of a dispute between two organisations, the Australian Education Union (AEU) and the Australian Principals Federation (APF). In particular, the AEU sought and won a declaration that the APF could not be registered under the Workplace Relations Act 1996 (Cth) from the Federal Court in Australian Education Union v Lawler (2008) 169 FCR 327. Subsequently, the Fair Work (Registered Organisations) Act 2009 (Cth) was enacted. Section 26A of that Act operated so as to retrospectively validate the registration of the APF by retrospectively removing the ground for which its registration had been refused. It may be noted that s 26A was couched in general language: it did not explicitly apply to the APF. The AEU argued before the High Court that s 26A dissolved and reversed the Federal Court’s decision in Lawler. The High Court unanimously disagreed. French CJ, Crennan and Kiefel JJ stated (at 141-​142): If a court exercising federal jurisdiction makes a decision which involves the formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by the court. Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment. Section 26A was such a law.

At 143, they added: [I]‌t would be an impermissible interference with the judicial power of the Commonwealth if the Parliament were to purport to set aside the decision of a court exercising federal

120 It was cited with approval by Keane J in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at note 185. 121

See also Health Insurance Commission v Peverill (1994) 179 CLR 226, discussed at [12.35], and City of Collingwood v State of Victoria (No 2) [1994] 1 VR 652 for examples of retrospective legislation which thwarted court challenges.

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jurisdiction. There is no such interference, however, if Parliament enacts legislation which attaches new legal consequences to an act or event which the court had held, on the previous state of the law, not to attract such consequences. That was the substantive operation of s 26A. It changed the rule of law embodied in the statute as construed by the Full Federal Court in Lawler. … To change that rule generally and for the particular case was within the legislative competence of the Commonwealth. The challenge to the constitutional validity of s 26A fails.

Gummow, Hayne and Bell JJ stated (at 156): [Section 26A] does not purport to declare what the law was at the time of the decision of the Full Court in the Lawler matter. On the contrary, s 26A assumes that the Lawler matter was correctly decided. And as has already been pointed out, s 26A did not intersect with any litigation that was pending in the judicial system at the time it came into operation.

Gummow, Hayne and Bell JJ conceded that s 26A was prejudicial to the AEU’s interests but that was not a reason to ground constitutional invalidity. At 156, they said: The AEU is right to observe that, because s 26A altered the law as it did, the APF has now and since the time at which it was purportedly registered as a registered organisation had the status of a registered organisation. The AEU is also right to observe that the effect of that law is to deny to the AEU whatever was the advantage it gained from succeeding in obtaining the issue of writs of certiorari in the Lawler matter. But s 26A is not, on either account, an impermissible interference with judicial power.

Powers to detain [6.150]  In a number of cases, it has been argued that the investiture in the executive of broad powers to detain by the legislature contravenes the doctrine of separation of powers. These arguments have been largely unsuccessful. The autonomous powers of the executive to detain people, or rather the lack thereof, are discussed at [5.63]. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, various amendments to the Migration Act 1958 (Cth) were challenged. Sections 54L and 54N authorised the detention of “designated persons”. “Designated persons” were defined in s 54K as persons arriving unlawfully in Australia by boat between 19 November 1989 and 1 December 1992. The amendments had been introduced to deal with an influx of so-​called “boat people” from South East Asia, and to thwart an attempt by a number of those people to secure a judicial order for their release from immigration detention. It was argued that the broad powers of detention in ss 54L and 54N were exclusively judicial, and could not therefore be authorised by any body besides a Court. The High Court unanimously rejected this argument. Brennan, Deane and Dawson JJ, with whom the other Justices agreed on this point, stated (at 114): There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. In exclusively entrusting to the courts designated by Chapter III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the

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Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is “ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else”.122

Thus, the power to detain people for the purpose of criminal punishment was characterised as a judicial power. There are nevertheless numerous instances where non-​judicial bodies may authorise detention. Courts martial and punishment for contempt of parliament have already been cited at [6.85] as permissible exceptions to the doctrine of separation of powers. Furthermore, the police, of necessity, must have power to detain a person for a limited time before charge or release without charge. Finally, involuntary detention in cases of mental illness or infectious disease may be ordered by a non-​judicial body. The latter detentions, crucially, are not of a punitive character. Similarly, Brennan, Dawson and Deane JJ found that the detention of an alien for the purposes of expulsion or deportation was not for a punitive purpose. At 33, they stated: the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.

This detention power was incidental to the executive’s power to permit or disallow entry into Australia by aliens, or to expel aliens. Thus, detention under ss 54L and 54N was not an exercise of judicial power, and the sections were valid. Section 54R of the Migration Act 1958 (Cth) was also challenged in Chu Kheng Lim. Section 54R prohibited a court from ordering the release from custody of a designated person. The High Court majority found s 54R to be invalid, as it purported to direct courts as to how to exercise their jurisdiction, and thus constituted a direct interference in the judicial process. Furthermore, it purported to deprive courts of their inherent judicial power (embodied in the classic writ of habeas corpus) to order the release of unlawfully detained persons. The minority read s 54R down to mean that courts could not order the release from custody of designated persons who were lawfully detained. The minority interpretation of s 54R left the section without effect, as the courts plainly would not order the release of someone who was detained in accordance with the law. Indeed, Chu Kheng Lim’s victory regarding s 54R was pyrrhic. Sections 54L and 54N unambiguously authorised the detention of “designated persons”, so the detention of anyone who fell within the definition of a “designated person” would be plainly lawful. The detention of anyone wrongly classified as a designated person would have been outside the ambit of s 54R. The severance of s 54R simply granted designated

122 See also [1.20] on the rule of law.

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persons an empty right to access a court to challenge their detention; such challenges would be plainly futile.123 Chu Kheng Lim was followed in Re Woolley; Ex parte Applicants M276/​2003 by their next friend GS (2004) 225 CLR 1, where the High Court unanimously decided that the mandatory detention of children in immigration detention, if they were unlawful arrivals in Australia, was constitutional. In Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1, the validity of several provisions of the Aboriginals Ordinance 1918 (NT) was challenged.124 Section 16 of that Ordinance provided that the Chief Protector (the legal guardian of all Aboriginal people in the Northern Territory) could order the compulsory detention of any Aborigine “or half-​caste” on an Aboriginal reserve or within an Aboriginal institution. It was argued, inter alia, that s 16 invalidly bestowed judicial power on the Chief Protector, plainly a non-​judicial body. Three of the six sitting Justices found that the doctrine of separation of powers did not apply in the Territories (see [6.175]). The other three Justices, Toohey, Gaudron and Gummow JJ, denied that s 16 conferred judicial power.125 Toohey and Gummow JJ agreed with the Chu Kheng Lim principle that the punitive detention of citizens was part of the judicial power of the Commonwealth. However, the detention authorised by s 16 was not considered punitive; history and the express words of the legislation indicated that Aboriginal people were only to be detained under s 16 for their own welfare and protection. Certainly, bigotry and ignorance of Aboriginal culture prevailed during the time of the Ordinance (1918-​1953), so judgments regarding Aboriginal welfare would have been made in an ill-​informed manner. Nevertheless, as the statute evinced a “welfare purpose” (albeit a misguided one) for the detentions, rather than a punitive purpose, the detention powers did not breach Ch III. Gaudron J’s judgment offered less constitutional protection from arbitrary detention. She reasoned that it was impossible to clearly distinguish between judicial detention orders and non-​judicial detention orders. The latter were clearly permissible in a large number of scenarios, as had been conceded in the joint judgment in Chu Kheng Lim (for example, detention in psychiatric institutions, detention for the purposes of deportation, detention of enemy aliens during wartime). Gaudron J stated (at 110): Once exceptions are expressed in terms involving the welfare of the individual or that of the community, it is not possible to say that they are clear or fall within precise and confined categories. More to the point, it is not possible to say that, subject to clear exceptions, the

123

In A v Australia Communication No 560/​1993, UN Doc CCPR/​C/​59/​D/​560/​1993 (30 April 1997), the United Nations Human Rights Committee found that this circumstance constituted a breach of Art 9(4) of the International Covenant on Civil and Political Rights, which guarantees all detainees a right to challenge the legality of their detentions in a court. The Human Rights Committee found that Art 9(4) required that judicial review of administrative detentions be “real and not merely formal”. See S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd ed, OUP, New York, 2013), pp 384-​386.

124 Unusually, the Ordinance had been repealed by the time of the challenge (1953). 125 See S Joseph, “Kruger v Commonwealth: Constitutional Rights and the Stolen Generations” (1998) 24 Monash University Law Review 486 at 488-​490.

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power to authorise detention in custody is necessarily and exclusively judicial power. Accordingly, I adhere to the view that I tentatively expressed in Lim, namely, that a law authorising detention in custody is not, of itself, offensive to Chapter III.

The extent of federal legislative detention powers was again confirmed, by a 4:3 majority, in Al-​Kateb v Godwin (2004) 219 CLR 562. This case again concerned the mandatory detention provisions of federal migration legislation. The appellant arrived unlawfully in Australia, and was accordingly detained under s 189 of the Migration Act 1958 (Cth). Under s 196, he was to be kept in detention until granted a visa or removed from Australia. The appellant requested his removal after his visa application failed. Under s 198, immigration officers had a duty to remove him from detention “as soon as practicable” due to both his request (under subs (1)) and the exhaustion of his visa application without success (under subs (6)). However, the appellant was a stateless Palestinian, and no other country was prepared to take him. Therefore, there was no prospect of his successful deportation in the foreseeable future. If his detention was lawful, he could potentially be detained indefinitely. The appellant argued that the Migration Act 1958 did not authorise detention in such circumstances, or alternatively, that detention in such circumstances was beyond the constitutional power of the Commonwealth. The minority of Gleeson CJ, Gummow and Kirby JJ construed the provisions of the Migration Act 1958 as failing to authorise detention in the appellant’s circumstances. According to Gleeson CJ, “the Act does not say which is to happen if, through no fault of his own or of the authorities, he cannot be removed” (at 577). Furthermore (at 577-​578): The possibility that a person, regardless of personal circumstances, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.

Therefore, the minority found that the appellant’s detention was not authorised by the Migration Act 1958, so it was unlawful. This argument essentially concerns statutory construction, and is not per se a constitutional one. The majority found that the Act authorised the appellant’s detention; detention was authorised until removal to another country was “reasonably practicable”. Therefore, according to Hayne J: “The duty [to remove from detention] remains unperformed: it has not yet become practicable to effect removal. That is not to say that it will never happen”.126 Therefore, the majority had to decide if such detention was constitutional. The majority also decided that such detention fell within the Commonwealth’s heads of power. On the issue regarding separation of powers, McHugh J stated (at 584): Nor does the continued detention of a person who cannot be deported immediately infringe Chapter III of the Constitution. Chapter III is always infringed where the detention of a person other than by a curial order –​whatever the purpose of the detention –​is authorised by a law of the Commonwealth and imposes punishment. However, a law authorising detention will not be characterised as imposing punishment if its object is purely protective. Ex hypothesi, a law whose object is purely protective will not have a punitive 126

Al-​Kateb v Godwin (2004) 219 CLR 562 at 639 (emphasis in original).

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purpose. That does not mean, however, that a law authorising detention in the absence of a curial order, but whose object is purely protective, cannot infringe Chapter III of the Constitution. Even a law whose object is purely protective will infringe Chapter III if it prevents the Chapter III courts from determining some matter that is a condition precedent to authorising detention. A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-​punitive.

Hayne J, with whom Heydon J agreed, added (at 648-​649): As Gaudron J demonstrated in Kruger, the line which their Honours drew in Chu Kheng Lim is a line which is difficult to identify with any certainty. It is a line which appears to assume that there is only a limited class of cases in which executive detention can be justified. And that assumption is at least open to doubt. But doubtful or not, it is an assumption which turns upon the connection between such detention and the relevant head of power, not upon the identification of detention as a step that can never be taken except in exercise of judicial power. That is why it is important to recognise that once the step is taken, as it was in Chu Kheng Lim, of deciding that mandatory detention of unlawful non-​citizens can validly be provided without contravention of Ch III, it is plain that unlawful non-​citizens have no general immunity from detention otherwise than by judicial process.

Finally, Hayne J addressed whether the detention was punitive due to its oppressive nature (at 651): It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non-​citizen came to or remained in this country without permission. The removal of an unlawful non-​citizen from Australia then depends upon the willingness of some other country to receive that person. If the unlawful non-​citizen is stateless, as is Mr Al-​Kateb, there is no nation state which Australia may ask to receive its citizen. And if Australia is unwilling to extend refuge to those who have no country of nationality to which they may look both for protection and a home, the continued exclusion of such persons from the Australian community in accordance with the regime established by the Migration Act does not impinge upon the separation of powers required by the Constitution.

Gummow J in the minority disagreed. He also queried whether the “punitive or non-​ punitive” character of an instance of detention should be the touchstone of whether such detention fell exclusively within the judicial realm. He states (at 611-​612): The respective submissions in the present case fixed upon the question whether the detention authorised by the Act was punitive or non-​punitive in character. This reflects the general discussion in Lim and Kruger of the Commonwealth’s power to impose administrative detention. However, there is often no clear line between purely punitive and purely non-​ punitive detention. [The] coincidence of punitive and non-​punitive purposes is not uncommon. In Veen v The Queen [No 2], this Court recognised that among the purposes which inform a criminal sentence are not only the punitive purposes of deterrence, retribution and reform, but also what may be seen as the non-​punitive purpose of protection of society. Once it is accepted that many forms of detention involve some non-​punitive purpose, it follows

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that a punitive/​non-​punitive distinction cannot be the basis upon which the Chapter III limitations respecting administrative detention are enlivened. Accordingly, the focusing of attention on whether detention is “penal or punitive in character” is apt to mislead. As Blackstone noted, in a passage quoted by Brennan, Deane and Dawson JJ in Lim, “[t]‌he confinement of the person, in any wise, is an imprisonment and one which, subject to certain exceptions, is usually only permissible if consequent upon some form of judicial process”. It is primarily with the deprivation of liberty that the law is concerned, not with whether that deprivation is for a punitive purpose. The point is encapsulated in the statement [by judges of the US Supreme Court in] Hamdi v Rumsfeld by Scalia J (with the concurrence of Stevens J): The very core of liberty secured by our Anglo-​Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.

Gummow J went on to find (at 613) that “sustained laws for the segregation by incarceration of aliens without their commission of any offence requiring adjudication, and for a purpose unconnected with the entry, investigation, admission or deportation of aliens” cannot be valid under Ch III. His decision was based on considerations of the fundamental right to liberty, rather than technical considerations regarding the characterisation of an instance of detention as “punitive” or “non-​punitive”.127 Kirby J agreed with Gummow J. In contrast, the other five Justices emphasised and maintained the punitive/​non-​ punitive distinction.128 Al-​Kateb was followed in the very similar case of Minister for Immigration and Multicultural and Indigenous Affairs v Al-​Khafaji (2004) 219 CLR 664. In Behrooz v Secretary of DIMIA (2004) 219 CLR 486, the High Court (Kirby J dissenting) held that the allegedly inhumane conditions of immigration detention did not render that detention “punitive” and therefore such conditions did not deprive such detention of constitutionality. For example, Gleeson CJ stated (at 499): There is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power.

In Plaintiff M76-​2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, the plaintiff argued that the High Court should overturn Al-​ Kateb. The majority found that the question of overturning that precedent did not arise on the facts.129 Nevertheless, Hayne (who had been in the majority in Al-​Kateb), Keifel and Keane JJ took the opportunity to affirm their support for the continuing authority of Al-​Kateb. In Plaintiff M76, Crennan, Bell and Gageler JJ explained Chu Kheng Lim as follows (at 370): 127 It is also possible that Gummow J’s decision was influenced by a purposive interpretation of the aliens power. 128 See Gleeson CJ at 573, McHugh J at 584 and 589, Hayne J (with whom Heydon J agreed) at 649, Callinan J at 659-​660. 129 All possibilities for obtaining an Australian visa had not been exhausted, according to the Court.

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The constitutional holding in Lim was therefore that conferring limited legal authority to detain a non-​citizen in custody as an incident of the statutory conferral on the executive of powers to consider and grant permission to remain in Australia, and to deport or remove if permission is not granted, is consistent with Ch III if, but only if, the detention in custody is limited to such period of time as is reasonably capable of being seen as necessary for the completion of administrative processes directed to those purposes.The plurality (French CJ, Hayne, Crennan, Kiefel and Keane JJ) supported this statement in Plaintiff S4/​2014 v Minister for Immigration (2014) 253 CLR 219, in stating at 232: The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time. Otherwise, the lawfulness of the detention could not be determined and enforced by the courts, and, ultimately, by this Court.

Immigration detention in Australia is deemed to terminate upon the occurrence of certain events, which are all capable of determination by a court, such as the award of a visa or the removal to another country. Hence, immigration detention has generally fallen within these requirements. Northern Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 concerned the so-​called “paperless arrest” scheme. Under Div 4A of the Police Administration Act (NT), a police officer was empowered to arrest a person without a warrant where the officer believed, on reasonable grounds, that the person had committed, was committing or was about to commit an “infringement notice offence”, which were largely minor public order offences. Arrested persons could be held for up to four hours or longer if they were intoxicated. One of the bases for the challenge to the law was that it impermissibly vested the power of punitive detention in the Northern Territory executive.130 The majority found that the Division did not authorise punitive detention. For example, French CJ, Kiefel and Bell JJ found that the law served non-​ punitive purposes such as the preservation of public order, the prevention or cessation of certain offences and ensuring the person was available to be dealt with in respect of the offence (at 591-​592). The joint judges conceded that a punitive purpose might be discerned if the maximum period of detention was “significantly greater” than the four hours specified (at 593). Gageler J found that the law did authorise punitive detention. In doing so, he made the following observations on the scope of police discretion with regard to such arrests: The discretion is … not constrained to be exercised so as to ensure that the person is detained only for such time as is reasonable or practicable to enable the person to be brought before a justice or a court of competent jurisdiction or to enable the person to be dealt with in another way permitted by law. Nor is the discretion constrained to be exercised only in a manner which ensures that the detention is protective of the person or of other persons or preventive of harm.

130 See also [6.112], [6.125] and [6.175].

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Gageler J found that non-​punitive detention could not extend longer in duration than was necessary to effectuate a statutory purpose capable of fulfilment, and that the duration was capable of objective determination by a court from time to time (at 612). While he felt those conditions were satisfied with regard to the powers concerning the detention of intoxicated arrestees, they were not otherwise satisfied. At 612: The duration of the detention within the four hour maximum specified in s 133AB(2)(a) is not limited by reference to the time needed to effectuate any identified statutory purpose, and the duration of that detention within the four hour maximum is designedly left to the discretion of a member of the Police Force. The duration of the detention depends on the choice of the member as to how long to take a person out of circulation.

Gageler J went on to find that no constitutional principle prevented punitive detention by police officers under Northern Territory law (see [6.125]). Keane J agreed. As noted at [6.145], it is also likely that non-​judicial bodies in the States such as State police may exercise this power. Plaintiff M68/​2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 concerned the detention of the plaintiff, a person claiming refugee status, on Nauru pursuant to intergovernmental arrangements between the Australian and Nauruan governments. Under this arrangement, unauthorised maritime arrivals to Australia were transferred to Nauru where they were detained for the purpose of processing their protection claims, unless they returned to their home countries voluntarily. The plaintiff was detained in a detention centre funded by the Australian Government run by a company contracted by the Australian Government and its sub-​contractors. French CJ, Kiefel and Nettle JJ found (at 70): Lim has nothing to say about the validity of actions of the Commonwealth and its officers in participating in the detention of an alien by another State. It is nevertheless necessary that the Commonwealth's indisputable participation in the detention of the plaintiff on Nauru be authorised by the law of Australia.

The joint judges found the requisite authority within s 198AHA of the Migration Act 1958 (Cth), which authorised the executive to participate in the detention regime on Nauru for the purposes of facilitating the offshore processing of the claims of alien asylum seekers. That law was valid under the federal aliens power, s 51(xix), and the joint judges did not inquire into potential usurpation issues due to their finding that Nauru rather than Australia had detained the plaintiff. Keane J adopted a similar approach at 125. However, he nevertheless rejected an argument that offshore regional processing was punitive due to its deterrent effect. While the deterrent effect may have been a desired consequence, the purpose of the impugned legislation was to facilitate the removal of unauthorised maritime arrivals from Australia (at 131). Bell J found that Lim was engaged due to the fact that the plaintiff’s detention on Nauru was “as a matter of substance, caused and effectively controlled by the Commonwealth parties” (at 85). At 87, Her Honour states:  There is no principled reason why the Parliament may confer a power on the Commonwealth to cause and effectively control the detention of an alien taken from Australia, to a country which has been designated by Australia as a regional processing country, without being subject to the same constitutional limitations as apply to the detention of aliens for the

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purposes of processing their protection claims in Australia. In my opinion, the plaintiff's invocation of the Lim principle fails, not because that principle has no application but because her detention in Nauru did not infringe the principle.

She ultimately found that the plaintiff’s detention on Nauru was for the purpose of facilitating the processing of her claim for protection as a refugee, rather than for any punitive purpose. Gageler J agreed (at 111-​112). Gordon J in dissent found that the law impermissibly authorised punitive detention. As the Commonwealth had funded, caused, procured and effectively controlled the circumstances of the detention. She accordingly found that the “Commonwealth detained the Plaintiff on Nauru” (at 152 and 154). She found that s 198AHA breached the Lim principle (at 159-​160): The relevant operation of the law now in issue (s 198AHA) goes beyond regulation of entry of aliens and goes beyond providing for removal of aliens. It goes beyond those subjects by providing … for the Commonwealth to detain certain aliens, in a foreign state, after those persons have been removed from (or denied entry into) Australian territory. That operation of s 198AHA presents a fundamental question about the power of the Parliament to provide for detention by the Commonwealth outside Australia. That is, it presents a fundamental question about the powers (or more specifically, the limit of the powers) of the Commonwealth beyond its borders. Those powers are not unlimited.

At 162: Section 198AHA does not deal with the power to exclude admission or to deport. Exclusion and deportation are complete and finally effective on landing on Nauru. Section 198AHA is relied upon as authorising the Executive to detain persons on Nauru. But there is a fundamental problem. The aliens power does not authorise a law which permits or requires detention in those circumstances. It does not authorise that kind of law because the involuntary detention of persons at the behest of the Executive is permitted in only exceptional circumstances. Detention under s 198AHA does not fall within either of the recognised exceptions in Lim. And a new exception should not be created for this kind of detention.

Thus, the High Court regards only punitive detention as being within the exclusive realm of judicial power, in which case a seemingly large array of detention powers may be conferred by the Commonwealth legislature on the executive, so long as they are characterised as “non-​punitive”. The line of cases from Chu Kheng Lim through Kruger to Al-​Kateb and M68 indicate that the non-​judicial powers to detain on a non-​ punitive basis are extensive, even going so far as to permit indefinite detention for life (according to Hayne J in Al-​Kateb at 651). Thomas v Mowbray concerned the powers of courts to impose significant restrictions on liberty by way of control orders. It was argued that only courts could order penal or punitive detention, “but only as an incident to deciding or punishing criminal guilt”.131 Thus, the plaintiff argued that control orders restricted liberty to such a degree as to amount to detention, and that such detention could not be ordered by courts. The argument was an inversion of the failed arguments in Chu Kheng Lim

131 Gleeson CJ at 330.

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and its progeny: it concerned limitations to judicial powers of detention rather than executive powers of detention. Gleeson CJ rejected the contention (at 330): It may be accepted that control orders may involve substantial deprivation of liberty, but we are not here concerned with detention in custody; and we are not concerned with executive detention. We are concerned with preventive restraints on liberty by judicial order. Fardon was an example of preventive detention in custody pursuant to judicial order. Apprehended violence orders made by judicial officers also involve restrictions on liberty falling short of detention in custody. It is not correct to say, as an absolute proposition, that, under our system of government, restraints on liberty, whether or not involving detention in custody, exist only as an incident of adjudging and punishing criminal guilt. It is true that the circumstances under which restraints on liberty may be imposed by judicial order other than as an incident of adjudging and punishing criminal guilt are carefully confined, both by the Parliament and by the courts, but we are here dealing with a different argument. The proposition on which the plaintiff’s argument depends is too broad.

Gummow and Crennan JJ also found (at 356) that the restrictions imposed by interim control orders did not equate with “detention in the custody of the State”. In any case, the argument was analogous to the failed incompatibility argument, discussed at [6.140]. As noted at [6.85], the High Court majority upheld the validity of federal legislation, Item 5 of Sch 1 of the Military Justice (Interim Measures) Act (No 2) 2009 (Cth), which retrospectively validated punishments meted out by AMC, an invalidly constituted “court”. The plaintiff in Haskins v Commonwealth (2011) 244 CLR 22 argued that Item 5 usurped judicial power by validating his detention without the safeguards of a judicial trial. The majority found no usurpation, as the punishment could in fact have been authorised by a court martial rather than a Chapter III court. Heydon J dissented. At 62, he stated: The plaintiff did not submit or assume that only a Ch III court could impose a punishment of detention. Indeed the plaintiff made an explicit submission to the contrary. He submitted that whether the traditional military tribunal system operates as an exception to Ch III, or as a qualification to it, or outside it, there is no doubt it permits a general court martial lawfully to impose a sentence of detention. That is correct. But that is not the imposition of a sentence of detention by the legislature. As the plaintiff submitted, it has never been held that the legislature (as distinct from a military tribunal subject to review in the chain of command) could create a valid sentence of detention on the basis of what a hypothetical general court martial might have ordered but never did, on the basis that a competent reviewing authority had hypothetically reviewed the punishment but never did, and on the basis that possibilities of further review were hypothetically exhausted when they were not. … The [regime] reviews non-​ existent events and invalid acts. The regime … is intermediate between the valid traditional system and a Ch III court system. The distinct reasons why each of those systems is valid do not apply to the intermediate regime.

Powers of sentencing [6.155]  Magaming v The Queen (2013) 252 CLR 381 concerned certain provisions of the Migration Act 1958 (Cth). Section 233 provided for people-​smuggling offences. The simple version of the crime in s 233A(1) provided for no mandatory minimum sentence. The aggravated version in s 233C(1) provided for a mandatory minimum sentence of five years and a minimum non-​parole period of three years. The simple

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offence arose if a person smuggled one person or more illegally into Australia. The aggravated offence arose if a person so smuggled five or more people. Hence, a person who smuggled five or more people into Australia could be charged with either offence. Magaming was convicted under s 233C(1) and duly received the mandatory minimum sentence, even though the sentencing judge explicitly stated that the sentence was harsh in the circumstances. Magaming challenged the exercise of prosecutorial discretion in the case. It was argued that the prosecutor’s decision to charge him under s 233C instead of s 233A meant that the prosecutor could effectively dictate a crucial part of the outcome if Magaming was convicted, namely the minimum term of his sentence. Hence, the argument was made that the prosecutor was, in such circumstances, exercising judicial power. The majority (French CJ, Hayne, Crennan, Kiefel and Bell JJ) rejected Magaming’s argument in a joint judgment. In doing so, they upheld prior High Court authority in Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100. They also stated (at 394): If, as in this case, one available charge is of an offence for which a mandatory minimum penalty is provided and there is another available charge of a different offence for which no minimum penalty is prescribed, the prescription of a mandatory minimum penalty for one of the offences does not lead to any different conclusion. Prosecutorial choice between the two charges is not an exercise of judicial power. In this respect, it is no different from the choice which a prosecutor must often make between proceeding summarily against an accused and presenting an indictment (which commonly will expose the accused to a penalty heavier than could be imposed in summary proceedings). Prosecutorial choice between proceeding summarily and proceeding on indictment is not an exercise of judicial power.

Gageler J dissented in Magaming. He was prepared to overrule Fraser Henleins and uphold the following limitation on prosecutorial discretion (at 4210): The limitation will be transgressed by a Commonwealth law which purports to confer on an executive officer what is in substance a power to determine the punishment to be imposed by a court in the event of conviction of an offender in a particular case. Absent some ameliorating factor in the legislative scheme of which it might form part, a Commonwealth law will be likely to have that substantive effect if it allows an executive officer to prosecute some offenders within a class of offenders for an offence which carries a mandatory minimum penalty but to prosecute other offenders within that class for another offence which does not carry a mandatory minimum penalty or which carries a lesser mandatory minimum penalty. In the … language which has more recently been used in the context of Ch III of the Constitution to connote “[l]‌egislation that removes from the courts their exclusive function ‘of the ajudgment and punishment of criminal guilt under a law of the Commonwealth’ “, it is a “usurpation of judicial power”.

Gageler J continued (at 411): The constitutional vice of [the mandatory sentencing provisions] of the Act lies in their effect on the character of the discretion necessarily exercised by the [prosecutor] in deciding to prosecute a person within that class for the aggravated offence created by s 233C instead of one or more counts of the offence created by s 233A. That effect is to empower the [prosecutor] in effect to determine the minimum penalty to be imposed on the conviction of any individual within the class.

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That discretion, according to Gageler J, could not be validly vested in the prosecutorial office. Unlike sentencing, the award of parole is a purely executive function. Crump v NSW (2012) 247 CLR 1 concerned a challenge to s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW). Kevin Crump had been sentenced to life imprisonment in 1974 for murder, and the sentencing judge had fixed no non-​parole period. Indeed, the judge recommended that Crump never be released: Crump was in fact a member of that small class of persons to whom the legislation upheld in Baker v The Queen (2004) 223 CLR 513 applied. In 1997, McInerney J in the Supreme Court made an order under s 13A of the Sentencing Act 1989 (NSW), specifying a minimum non-​parole period for Crump of 30 years, meaning he would be eligible for, but not entitled to, parole as of 12 November 2003. After that decision, s 154A was enacted: it prescribed that prisoners in Crump’s position could not be paroled unless he was dying or was so incapacitated that he could not harm another. These conditions meant he was unable to apply for parole in 2003, or on any date since. Counsel for Crump claimed that s 154A altered the sentence prescribed by McInerney J in breach of Ch III of the Constitution. The High Court unanimously rejected that argument. In particular, the High Court simply did not agree that the “sentence” had been altered. As explained by Heydon J (at 28-​29): Section 154A … did not alter either the rights and entitlements created by McInerney J’s order or the effect of the order. The effect of McInerney J’s order was that the plaintiff was obliged to undergo penal servitude for life. The plaintiff might have hoped that the statutory regime regarding parole at the time of McInerney J’s order would still be in force when the minimum term expired. It was … much more benign than s 154A. But he had no right or entitlement that that regime should continue to apply to him. It was open to the legislature to alter the legislation in place when the order was made in relation to criteria for the grant of parole –​either by making it easier for persons in the plaintiff’s position to gain release on parole, or by making it harder. … In 2001, when s 154A was enacted, the legislature made it harder still. McInerney J’s order was unaffected by these changes.

In early 2014, the Victorian government introduced an amendment to the Parole Act designed to keep Julian Knight, the perpetrator of the “Hoddle Street massacre” in 1987, detained for life. Section 74AA of the Corrections Amendment (Parole) Act 2014 (Vic) rendered it virtually impossible for Knight to receive parole. The Act was clearly modelled on the legislation which was unanimously upheld in Crump. However it singles out Knight alone and by name, so its blatant ad hominem nature distinguished it from the Crump legislation. The High Court dismissed Knight’s challenge to the Act:132 Crump cannot be distinguished and should not be reopened. That s 74AA has an operation more specific than s 154A of the Administration of Sentences Act is a distinction without a difference. Section 154A targeted a closed class of prisoners each of whom was at the time of its enactment serving a sentence of imprisonment for life and each of whom answered the description in that section of a “serious offender the subject of a non-​release

132

Knight v Victoria (2017) 261 CLR 306 at 323.

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recommendation”. The legal and practical operation of s 154A in respect of each member of that class, including the plaintiff in Crump, was identical in substance to the legal and practical operation of s 74AA in respect of Mr Knight. The conclusion in Crump  that s 154A “did not impeach, set aside, alter or vary the sentence under which the plaintiff suffers his deprivation of liberty” applies equally to s 74AA … There are circumstances in which the party-​specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power. This is not one of them.

The court decided that s 74AA might make it more difficult for Knight to obtain a parole order after the expiration of the minimum term, but it did not contradict the minimum term that was fixed. Nor did it make the sentences of life imprisonment “more punitive or burdensome to liberty”. The amending section did not replace a judicial judgment with a legislative judgment.

Retrospective criminal laws [6.160]  The notion of a retrospective law prima facie offends the doctrine of the rule of law (see [1.20]). One cannot be in a position to know one’s rights or duties under law if a law can be enacted with retrospective effect. Nevertheless, it is clear that the Commonwealth Parliament has the power to pass retrospective civil laws. Indeed, one of our most fundamental laws, the Statute of Westminster Adoption Act 1942 (Cth), had retrospective effect (see [1.160]). Retrospective criminal laws clearly pose the greater threat to individual security and freedom. It is vitally important that one is always in a position to know whether one’s actions may attract criminal sanction. It is impossible to do so if one’s actions can be rendered criminal after they have been performed: one cannot undo what one has already done. Is it permissible under Ch III for the Commonwealth to vest judges with the power to enforce retrospective criminal laws, in view of the incompatibility of such laws with the rule of law? In R v Kidman (1915) 20 CLR 425, the High Court held that retrospective criminal provisions in the Crimes Act 1914 (Cth) were valid. However, no particular argument in respect of the separation of powers was made. The issue of retrospective criminal laws returned to the High Court in 1991 in the case of Polyukhovich v Commonwealth (1991) 172 CLR 501. Polyukhovich concerned the validity of s 9 of the War Crimes Act 1945 (Cth), which had been inserted by amendment in 1988. Section 9(1) provided that an Australian citizen or resident was guilty of an offence if he or she “committed a war crime” in Europe during the Second World War. Thus, in 1988, war crimes in Europe between 1939 and 1945 were rendered criminal under Australian law. Despite the obvious heinousness of such crimes, World War II war crimes in Europe had not previously been indictable in Australia. Section 9(1) was challenged as unconstitutional because, inter alia, it directed courts to find that conduct amounted to a crime in Australia when, at the time it was committed, it was not.133 Brennan J found s 9 invalid for lack of a head of power, so he did not consider the argument based on retrospectivity. Of the six Justices who found that the law came within the external affairs power, s 51(xxix) (see [4.10]), four found s 9 to be valid

133 Meagher et al, n 18, pp 1266-​1267.

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(Mason CJ, Dawson, Toohey and McHugh JJ), and two found the law invalid for breach of separation of judicial power (Deane and Gaudron JJ). Counsel for Polyukhovich argued that the retrospective criminal law was in substance a declaration of guilt by the legislature on a general rather than individual scale. In the minority, Deane J agreed (at 631-​632): The critical question upon the answer to which this judgment turns is ultimately one of abstract constitutional law. It is whether the Commonwealth Parliament possesses power to legislate that a “person … is guilty” of a crime against Commonwealth law if, in the past, he has done some specified thing which was not, when done, such a crime. That question must, in my view, be answered in the negative for the reason that a law which declares that a person “is guilty” of a crime against a law of the Commonwealth if he has done an act which did not, when done, in fact contravene any such law is inconsistent with Chapter III of the Constitution. Both in substance and in form, the central operation of the Act is as such a legislative declaration of criminal guilt. It prohibits nothing, prescribes no rule of conduct and is incapable of being contravened since, by its terms, it is inapplicable to acts committed after its enactment. … What is to the point for the purposes of the present case is the combined effect of two propositions which are basic to the criminal jurisprudence of this country. The first of those propositions is almost a truism. It is that criminal guilt, under our system of law, means being guilty of a contravention of the requirements of a then existing and applicable penal law … The second of those two propositions is that the function of determining whether a person is in fact guilty of a crime against a law of the Commonwealth is a function which appertains exclusively to, and which cannot be excluded from, the judicial power which our Constitution vests solely in the courts which it designates. That being so, it is beyond the competence of the Parliament to declare, as s 9(1) of the Act purports to do, that a “person … is guilty” of a crime against a law of the Commonwealth by reason of having committed a past act which did not, when done, contravene any applicable Commonwealth law and was therefore not in fact such a crime.

Thus, Deane J found that the law offended the first limb of separation of judicial power. The legislature had usurped judicial power by purporting to declare people guilty of crimes based on past conduct. Gaudron J, also in the minority, stated (at 706-​707): The usurpation of judicial power by a law which declares a person guilty of an offence produces the consequence that the application of that law by a court would involve it in an exercise repugnant to the judicial process. It is repugnant to the judicial process because the determination of guilt or innocence is foreclosed by the law. The only issue is whether the person concerned was a person declared guilty by the law. And all that involves is the determination, as a matter of fact, whether some person is the person, or answers the description (whatever form it takes) of the persons, declared guilty by the Act. It does not involve, and indeed negates, that which is the essence of judicial power in a criminal proceeding, namely, the determination of guilt or innocence by the application of the law to the facts as found. Accordingly, such a law is invalid as infringing s 71 because it involves the exercise by Parliament of a power which can be exercised only by the courts named or indicated in s 71 and because its application by a court would involve it in exercising a power repugnant to the judicial process. If Kidman holds otherwise, it should no longer be followed.

Gaudron J therefore found that the law offended both limbs of the separation of powers doctrine. As a legislative declaration of guilt, it usurped judicial power.

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Furthermore, application of the law by a court would have amounted to “a travesty of justice” (at 704), and therefore an exercise by a court of powers which were repugnant to, or incompatible with, the court’s judicial function. Gaudron J’s decision appears to be a precursor to the plenary High Court judgments (Grollo, Wilson and Kable) on the incompatibility doctrine. Mason CJ, Dawson and McHugh JJ found that the Commonwealth did have power to enact retrospective criminal laws. In their view, s 9 could be likened to an ordinary criminal law, as all determinations of fact and law remained with the courts. The law’s only extraordinary aspect was its retrospectivity. For example, McHugh J stated (at 721-​722): There is not a scintilla of difference between the roles of the judge and jury in a trial under this Act and the roles of the judge and jury in a trial under a hypothetical law, in substantially identical terms to this Act, passed on 1 September 1939 and operating prospectively. The only difference between the present Act and that hypothetical law would be that the present Act makes it a legislative offence to do what was not a legislative offence at the time when it was done. That is to say, the difference is that the present Act retrospectively, and not prospectively, imposes penal sanctions on proscribed conduct. The imposition of penal sanctions on proscribed conduct, however, is an exercise of legislative, not judicial, power. Accordingly, the present Act does not interfere in any way with the judicial process or with the judicial power of the Commonwealth.

Parliament clearly, in the view of Mason CJ, Gaudron and McHugh JJ, had the ability to pass retrospective laws in both the civil and criminal spheres. The crucial “swinging” judgment in Polyukhovich was that of Toohey J. Toohey J was clearly inclined to sympathise with the views of Deane and Gaudron JJ. Toohey J stated (at 689) that: It is only if a law purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power that a contravention of Chapter III may be involved. It is conceivable that a law, which purports to make criminal conduct which attracted no criminal sanction at the time it was done, may offend Chapter III, especially if the law excludes the ordinary indicia of judicial process.

However, Toohey J found that s 9 was not retrospective “in any offensive way” because (at 688): In so far as the principle of non-​retroactivity protects an individual accused, it is arguably a mutable principle, the right to protection dependent, to some extent, on circumstances. Where, for example, the alleged moral transgression is extremely grave, where evidence of that transgression is particularly cogent or where the moral transgression is closely analogous to, but does not for some technical reason amount to, legal transgression, there is a strong argument that the public interest in seeing the transgressors called to account outweighs the need of society to protect an individual from prosecution on the basis that a law did not exist at the time of the conduct. But it is not only the issue of protection of an individual accused at the point of prosecution which is raised in the enactment of a retroactive criminal law. It is both aspects of the principle –​individual and public interests –​ which require fundamental protection.

Thus, Toohey J imports a notion of proportionality into the determination of the validity of a retrospective criminal law. The public interest in protecting an individual from the inherent oppressiveness of such a law must be weighed against the public

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interest in nevertheless enforcing the law. The latter public interest will be very strong if the impugned conduct is a heinous act, such as the conduct criminalised by s 9.134 The status of Commonwealth retrospective criminal laws after Polyukhovich is unclear. Three Justices clearly decided that such laws do not offend the separation of powers doctrine, while two Justices decided the opposite. One Justice, Toohey J, confined his decision to the law at issue, and indicated that retrospective criminal laws would only be allowed if the law criminalised extremely grave and serious moral transgressions. The final Justice, Brennan J, gave no opinion on the matter. The only clear majority regarding retrospectivity to emerge was the view that a Bill of Attainder would breach Ch III.135 In Baker v The Queen, the retrospective effect of the impugned parole provisions was cited by Kirby J in dissent as a reason telling against their validity.136 He stated (at 548-​549): Reading the language of the impugned provisions and especially alongside the record of the Parliamentary debates, there can be no doubt that their substantive purpose was to impose upon the appellant, and the other named prisoners, special, personal and additional punishment that would not otherwise have applied to them under their original sentence, burdening their potential liberty. In this sense, the impugned law is in substance one that has, and was designed to have, serious retroactive effects on the appellant’s entitlement to liberty. By superimposing that consequence upon the operation of the life sentence imposed by the judge upon the appellant at his trial, Parliament has intruded, with retroactive effect, upon the operation of a judicial sentence. Moreover, it has recruited the State judiciary to play a particular part in that outcome. In these respects, the impugned law crosses the boundary between permissible and impermissible legislation of retrospective effect. It involves a legislative “usurpation of judicial power”.

On the other hand, the majority denied that the impugned provisions were relevantly “retrospective”. McHugh, Gummow, Hayne and Heydon JJ endorsed a distinction between a statute “which provided that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions”.137 The impugned provisions were of the latter kind, which posed no constitutional dilemmas. In any case, it is doubtful whether States are actually prohibited from enacting retrospective criminal laws. Indeed, uncertainty also reigns in the Commonwealth context, given the lack of a clear majority on the point in Polyukhovich.

134 See also [14.80]. 135 G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law & Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), p 715. 136 On these provisions, see [6.110]. 137

Baker v The Queen (2004) 223 CLR 513 at 528-​529, using a test from Jordan CJ in Coleman v Shell (1943) 45 SR (NSW) 27 at 31.

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Implied right of legal equality [6.165]  The possibility of an implied right to legal equality was raised in Leeth v Commonwealth (1992) 174 CLR 455 where the Court was asked to consider the constitutional validity of s 4 of the Commonwealth Prisoners Act 1967 (Cth) which required that a Court, when sentencing a person convicted of a Commonwealth offence, determine the relevant non-​ parole period in accordance with the laws operating in the State or Territory in which the person had been convicted. There were significant differences between the relevant State and Territory laws which meant that the non-​parole period imposed for the same Commonwealth offence, and often therefore the period of actual incarceration, would differ from jurisdiction to jurisdiction. It was argued that requiring judges exercising federal judicial power to subject offenders to such unequal treatment violated an implied guarantee of legal equality arising from Ch III of the Constitution. Deane and Toohey JJ found a general principle of legal equality necessarily implied by the Constitution. They stated (at 486): The essential or underlying theoretical equality of all persons under the law and before the court is and has been a fundamental and generally beneficial doctrine of the common law … Conformably with its ordinary approach to fundamental [common law] principles, the Constitution does not spell out that general doctrine of legal equality in express words.

One basis for their Honours’ finding of a right of legal equality was the idea that the Constitution was a “free agreement” between the people of the federating Colonies, which presupposed their “inherent equality … as the parties to the compact” (at 486). Deane and Toohey JJ presumed that the people of the colonies would not have implicitly given up their common law rights of equality in agreeing to form the Commonwealth. In the absence of express words denying a general right of equality, it had to be presumed that those pre-​existing rights of equality remained afoot.138 Further, Deane and Toohey JJ noted the doctrine of State immunity from discriminatory Commonwealth laws (see [8.35]). They felt it would be surprising if there was no concomitant principle to protect the people of the States. In Leeth, Deane and Toohey JJ outlined a right of substantive as opposed to procedural equality. Procedural equality, described in the above excerpt as equality “before the court”, requires judges to implement and apply the law in a fair and non-​ discriminatory manner. Substantive equality, described above as equality “under the law”, requires that the law itself must be fair and non-​discriminatory, and therefore provides a much broader right. Substantive equality does not require that all people be treated exactly the same. Deane and Toohey JJ stated (at 488): The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment.

138 Joseph, n 125, p 490; see also Justice J Toohey, “A Government of Laws, and Not of Men” (1993) 4 Public Law Review 158 at 170.

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In the view of Deane and Toohey JJ, the impugned law discriminated between offenders on an irrelevant ground, namely the site of the place of conviction, and was therefore invalid. Gaudron J found an implied right of “due process” (that is, the fair administration of justice) within Ch III. She felt that s 4 required judges to treat people unequally when passing sentences, and therefore that s 4 required judges to act in a manner which was contrary to the judicial process. It was uncertain in Leeth whether Gaudron J was endorsing a right of procedural or substantive due process. The Leeth law, in imposing duties on judges when passing sentences, potentially breached both types of right. She made her thoughts clearer in her decision in Kruger on the issue of legal equality, discussed below. Brennan J appeared to endorse a right of equality in terms potentially as broad as that of Deane and Toohey JJ. However, he found that the site of the place of conviction was a relevant difference which could justify the imposition of different non-​parole periods. As Commonwealth prisoners were, under s 120 of the Constitution, housed in State prisons with State prisoners, it was important in Brennan J’s opinion for all prisoners within the same prison to be governed by the same parole Board under the same parole rules. In a joint judgment Mason CJ, Dawson and McHugh JJ rejected any suggestion that the Constitution, apart from specific protections such as s 99, generally guaranteed substantive equality so as to prevent the enactment of discriminatory legislation. They conceded (at 470) that Ch III might prevent a legislature from requiring a judge to act contrary to natural justice. They further argued, in similar terms to Brennan J, that s 4 imposed no such requirement: it was perfectly reasonable to require judges to incorporate the local rules regarding non-​parole periods when passing sentences. In the result, a majority of Mason CJ, Brennan, Dawson and McHugh JJ upheld the validity of the law.139 However, the case potentially provided the springboard for broad implied rights of equality in the Constitution. These hopes were shattered by the decision in Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1. One of the claims brought in Kruger was that the law, which authorised special detrimental treatment for Aborigines (their enforced detention on reserves or in institutions, and the enforced separation of Aboriginal children from their parents), breached an implied guarantee of equality in the Constitution. In order to succeed, the plaintiffs had to establish a guarantee of substantive equality, rather than mere procedural equality, in the Constitution. Thus, the plaintiffs relied heavily on the Leeth judgment of Deane and Toohey JJ to establish their case. Only Toohey J was willing to find an implied right of substantive equality in the Constitution in Kruger.140 He endorsed his own Leeth judgment. He found that more evidence needed to be adduced before deciding whether the Northern Territory Ordinance actually breached the implied right.

139

See also Putland v The Queen (2004) 218 CLR 174.

140 Deane J had retired from the Court by the time of the Kruger decision.

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Brennan CJ, who had possibly endorsed a wide right of equality in Leeth, confined his judgment in Kruger to noting that no such right could be held to apply to laws enacted under s 122 of the Constitution. Thus, no rights of equality existed to protect the people of the Territories. Gaudron J clarified her Leeth judgment in Kruger (at 112): In Leeth, I expressed the view, to which I still adhere, that Chapter III operates to preclude the conferral on courts of discretionary powers which are conditioned in such a way that they must be exercised in a discriminatory manner. If that view is correct, there is a limited constitutional guarantee of equality before the courts, not an immunity from discriminatory laws which, in essence, is what is involved in the argument that there is an implied constitutional guarantee of equality.

Thus, Gaudron J confined the Leeth rights of equality to procedural rights to be treated fairly by courts in their application of the law. The Kruger laws, which imposed no powers on courts, were not caught within her definition of the right. The most detailed attack on the notion of an implied right of substantive equality came from Dawson J, with whom McHugh and Gummow JJ agreed. Dawson J rejected the unorthodox approach of Deane and Toohey JJ in Leeth. For example, he noted the number of express constitutional prohibitions of discrimination, which contextually denied the existence of a general guarantee of equality. Furthermore (at 66): The plain matter of fact is that the common law has never required as a necessary outcome the equal, or non-​discriminatory, operation of laws. It is not possible, in my view, to dismiss the discriminatory treatment of women at common law or such matters as the attainder of felons as “past anomalies”. To do so is to treat the doctrines of the common law with selectivity. Moreover, the supremacy of parliament, which is itself a principle of the common law, necessarily leaves the common law subject to alteration without reference to notions of equality. The common law thus provides no foundation for a doctrine of equality, at all events substantive equality as opposed to the kind of procedural equality envisaged by the rule of law. But even if a doctrine of substantive equality were discernible in the common law, it would not appear that it was a doctrine which was adopted in the drafting of the Constitution. Apart from anything else, it is clear that the Commonwealth Parliament was intended to have the capacity, in the exercise of its legislative powers, to alter the common law.

Dawson J did outline his version of an implied right of equality, which was similar to that of Gaudron J (at 63): A Chapter III court cannot be made to perform a function which is of a non-​judicial nature or is required to be performed in a non-​judicial manner. Chapter III may, perhaps, be regarded in this way as affording a measure of due process, but it is due process of a procedural rather than substantive nature. As was pointed out in Leeth v The Commonwealth [at 469 by Mason CJ, Dawson and McHugh JJ], “to speak of judicial power in this context is to speak of the function of a court rather than the law which a court is to apply”.

The status quo after Kruger is that there is no right of substantive equality in the Constitution. There may be constitutional rights of procedural equality, in that judges cannot implement a law in an arbitrary or discriminatory way, and cannot be

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required by statute to do so.141 Indeed, the recent decisions regarding the “required characteristics of courts”, particularly the judgment of Gageler J in Pompano (at 105), point strongly in this direction (see [6.120]). It may even be arguable that this constitutional right extends to require courts to impose the same standards on other persons involved in the administration of justice, such as police officers, in their implementation of the law.142 However, at present there is no constitutional right that laws themselves dispense rights and duties to all in a fair manner without discrimination (see also [14.55]).

Right to a fair trial [6.170] In Dietrich v The Queen (1992) 177 CLR 292 the accused was charged with a serious criminal offence but was unable to afford legal representation. He sought an adjournment of his trial to arrange representation but that application was refused. That refusal was challenged before the High Court. A majority of the High Court (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ; Brennan and Dawson JJ dissenting) held that the refusal of an adjournment until legal representation was obtained constituted a common law miscarriage of justice. Going further than the other members of the majority, both Deane and Gaudron JJ argued that Ch III incorporated the common law guarantee of a fair trial, although they differed as to the precise basis and breadth of the guarantee. While Gaudron J argued that the Constitution gave effect to a general guarantee of a fair trial, applying to any exercise of judicial power throughout Australia, Deane J appeared to limit the guarantee to the exercise of Commonwealth judicial power. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 concerned allegations that a judge’s shareholdings in a case would lead a reasonable person to apprehend bias in the judge’s decision. The Court rejected the contention. In obiter, Gaudron J stated (at 363) that Ch III acts to guarantee the impartiality and the appearance of impartiality of the judiciary throughout the Australian court system, even extending this principle to courts without federal jurisdiction. Kirby J noted (at [115]) that Ch III required that all courts act in accordance with the “judicial process”. The majority did not comment on potential Ch III guarantees, preferring to decide the case on the basis of the common law prohibition of actual or apprehended judicial bias. A High Court majority has never endorsed the idea that Ch III guarantees a right to a fair trial per se. However, as noted at [6.165] regarding procedural equality, the decisions regarding the “requisite characteristics of courts” might indicate that such a right exists in some form.

141 Judges are required at common law to act in a non-​discriminatory non-​arbitrary manner. So a “constitutional right” is perhaps only necessary with regard to the prohibition on statutory derogation from this common law requirement. See also discussion at [6.170] regarding Dietrich and Ebner. 142 See the minority judgments of McHugh and Kirby JJ in Nicholas v The Queen (1998) 193 CLR 173. McHugh J found (at 224) that a direction to a court to ignore the public interest in ensuring “the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement … infringe[d]‌the judicial power of the Commonwealth” [emphasis added].

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SEPARATION OF JUDICIAL POWER IN THE TERRITORIES [6.175] In Spratt v Hermes (1965) 114 CLR 226, the High Court indicated that judicial power in the territories was not subject to any separation of powers doctrine. In Kruger, the majority of the Court (Brennan CJ, Dawson, McHugh and Gummow JJ) found that the doctrine of separation of powers did not apply in the Territories, as the Commonwealth’s plenary power under s 122 enabled it (or its surrogate these days, the Northern Territory Parliament) to pass laws without being fettered by the doctrine of separation of powers. In Ex parte Eastman (1999) 200 CLR 322, a majority decided that a Territory Court is not a s 72 court, and thus did not have to conform to all of the requirements of Ch III for federal courts. In North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569, the plaintiff challenged a series of amendments to the Police Administration Act (NT) as being contrary to Ch III of the Constitution and the Kable principle (see [6.115]). Gageler and Keane JJ held that the separation of powers doctrine did not apply to the Territories, while the other Judges did not decide the matter. Gageler J stated that Kruger was authority for the proposition that the separation of powers doctrine did not apply to laws enacted under s 122, nor to laws enacted by the Northern Territory Parliament (at 613-​614). He declined to reopen that case (at 617). Keane J stated that the doctrine of the separation of powers did not apply in the circumstances of the case. He remarked, for example, on the incongruity of putting Territory residents “in a better position in relation to immunity against executive detention than residents of the States” (at 623). He also explained that “the disruption and instability which would be caused by reopening Kruger militates powerfully against acceptance of the plaintiffs’ invitation to open it” (at 632-​633). While the federal doctrine of separation of judicial power does not apply to the Territories, the Kable principle does apply, as confirmed in North Australian Aboriginal Legal Aid Services v Bradley (2004) 218 CLR 146. The Court (at 162-​163) endorsed the following contention by Gaudron J in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at 363): Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system. Because State courts are part of the Australian judicial system created by Chapter III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW), that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-​federal jurisdiction. And as courts created pursuant to s 122 of the Constitution may also be invested with the judicial power of the Commonwealth, it should now be recognised, consistently with the decision in Kable, that the Constitution also requires that those courts be constituted by persons who are impartial and who appear to be impartial.

In Attorney-​General for the Northern Territory v Emmerson (2014) 253 CLR 393 and North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569, all judges assumed that the Kable principle was capable of invalidating laws that undermine the institutional integrity of Northern Territory courts.

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CONCLUSION [6.180]  The doctrine of separation of judicial power has been traditionally perceived as a safeguard of liberty within a society operating under the rule of law. A related policy underlying the principle is that it helps to preserve the independence of the judiciary, and the perception thereof. At the Commonwealth level, two principles prevail. First, the judicial power of the Commonwealth may only be exercised by Chapter III courts. Second, the Commonwealth may not vest non-​ judicial power in Chapter III courts. Wakim introduced a variation on the second principle: only the judicial power of the Commonwealth may be vested in federal courts. The two basic rules throw up a large variety of issues. Most fundamentally, the definition of judicial power remains uncertain. Moreover, exceptions to both doctrines have evolved to create further complexity, such as the “persona designata” exception and its concomitant limit, the incompatibility doctrine. Finally, there has been debate, within and outside the courts, over the extent to which Ch III acts as a guarantee of individual rights. The Kable case has, at least partially, incorporated the doctrine of incompatibility into State laws: State legislatures may not vest certain State courts (those vested or that might be vested with federal jurisdiction) with powers that would undermine public confidence in the independence of those courts, or, since Fardon, the institutional integrity of those courts. After a period of sustained non-​application of Kable, its principle was applied in a series of cases (for example, Totani and Wainohu) so as to curtail the types of powers that may be conferred on judges by State legislatures. However, the principle has more often been raised without success, such as in Pompano and Emmerson. It seems unlikely that there are many restrictions on the ability of States to confer judicial power on non-​judicial bodies. One restriction arose in the recent case of Burns v Corbett: adjudicative authority over the matters that may be the subject of federal jurisdiction in ss 75 and 76 may not be vested in the non-​judicial bodies of the States.

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Chapter 7

Inconsistency [7.10] [7.15] [7.20] [7.25] [7.30] [7.35]

WHAT IS A “LAW” FOR THE PURPOSES OF SECTION 109?.................................................... 288 MEANING OF “INVALIDITY”......................................................................................................... 288 TESTS FOR INCONSISTENCY.......................................................................................................... 289 IMPOSSIBILITY OF SIMULTANEOUS OBEDIENCE.................................................................... 289 CONFERRAL OF RIGHTS................................................................................................................. 290 INDIRECT INCONSISTENCY/​COVERING THE FIELD............................................................. 294 [7.40] Identification of the “field”................................................................................................ 295 [7.45] Overlapping fields: The subject matter approach........................................................... 296 [7.50] Commonwealth intention to cover the field.................................................................... 299 [7.55] Express intention.................................................................................................. 299 [7.60] Implied intention.................................................................................................. 303 [7.65] INCONSISTENT CRIMINAL LAWS................................................................................................ 307 [7.70] REASSESSING THE TESTS FOR INCONSISTENCY..................................................................... 312 [7.75] CONCLUSION..................................................................................................................................... 313

[7.05]  Federal systems of government, by their very nature, share power to legislate over the territory and inhabitants of their jurisdiction; this necessitates some mechanism for resolving conflicts between the competing systems of laws. When the central and regional Parliaments share legislative powers concurrently, there are always areas or subject matters where clashes and inconsistencies between the two sets of laws may occur. This is particularly the case in the Australian constitutional system, where the Commonwealth largely shares the subject matters over which it exercises legislative power with the States; very few Commonwealth powers are exclusive.1 Section 109 of the Commonwealth Constitution provides that, in case of conflict, it is the federal law which prevails. It states: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

There are three broad issues that arise concerning the operation of s 109:2 ( 1) What is a “law” for the purposes of s 109 inconsistency? (2) What does “invalid” mean for the operation of the State law? (3) When does an “inconsistency” arise?

1 Examples of exclusive powers are in s 52. 2 See also P Hanks, F Gordon and G Hill, Constitutional Law in Australia (3rd ed, LexisNexis Butterworths, Sydney, 2018), pp 308-​321.

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WHAT IS A “LAW” FOR THE PURPOSES OF SECTION 109? [7.10]  Naturally Acts of Parliament are treated as “laws” for the purpose of s 109 inconsistency. Where Acts of Parliament operate through subordinate or delegated legislation, such as regulations, statutory rules and industrial awards, those subordinate forms of laws come within the reach of s 109 because they are made under the authority of the primary Act. For example, in Ex parte McLean (1930) 43 CLR 472 Dixon J explained (at 484) that inconsistency arises between the Commonwealth statute which empowers the arbitration of an award, and the relevant State provisions, rather than between the award itself and the State law.3 Administrative orders made under the authority of Commonwealth legislation are not treated as laws for s 109 purposes, and will not override State laws. In Airlines of NSW v NSW (No 1) (1964) 113 CLR 1 a majority found that administrative directions such as air navigation orders, information and notices to pilots and similar directives did not amount to “laws of the Commonwealth”. In the context of s 109 “law” does not refer to the common law as such. Normal rules of construction dictate that the common law will be set aside by any valid statute, whether Commonwealth or State, operating in the relevant jurisdiction. If federal and State jurisdiction both apparently operate, the federal jurisdiction prevails. As Walsh J explained in Felton v Mulligan (1971) 124 CLR 367 at 412: In my opinion the problem must be resolved by treating the Commonwealth law as paramount and as excluding, in relation to the matters to which that law applies, the operation of the laws under which the State jurisdiction of the court would be exercised.

Section 109 does not resolve conflicts between laws of the Territories, and those of the Commonwealth. Section 122 is the source of paramountcy of Commonwealth laws with respect to the Territories, and although the Australian Capital Territory and the Northern Territory enjoy self-​governing status, the Commonwealth may displace Territory laws through that head of power.4

MEANING OF “INVALIDITY” [7.15]  Section 109 prescribes that an inconsistent State law will be “invalid to the extent of the inconsistency”. Only the inconsistent portions of a State law are invalidated. For example, one provision or section of a State law may be found inconsistent with a Commonwealth law and thus inoperative, but the rest of the Act will continue to operate. The inconsistent provisions in a State Act can occasionally be severed for inconsistency (see [1.235]). However, if the provisions are not severable, the whole Act is deemed inoperative ab initio, or from the date that the inconsistency arose. This is demonstrated in the case of Wenn v Attorney-​General for Victoria (1948) 77 CLR 84, where the High Court found inconsistency between State and federal legislation regulating employment for returned military personnel. Although the

3 Note that until its amendment in 2009, the Workplace Relations Act 1996 (Cth), s 152 expressed Parliament’s intention that the awards made under the Act operate to the exclusion of State laws and awards. See also Jemena Asset Management v Coinvest (2011) 244 CLR 508 at 516-​517. 4 See Lockhart J in Attorney-​General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 at 75.

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inconsistent provisions related to employment in the private sector, and there was no inconsistency regarding employment in the public sector, the High Court found that the whole of the State Act was invalidated under s 109. This was based on the finding that the State legislation was intended to provide a single code of employment for returned military personnel, and that the Victorian Parliament did not intend to enact a Statute which only regulated those servicemen who found work in the public sector. The impugned provisions were not severable because the Court considered that the State law was dependent on the validity of the inconsistent private sector provisions for its efficacy.5 The High Court has interpreted “invalid” to mean “inoperative”. Consequently, State laws struck down for inconsistency under s 109 may “revive” if the relevant Commonwealth law is repealed. The State Parliament is not required to re-​enact the dormant law in order to restore its application if the source of the inconsistency is removed or modified. This has been confirmed by the High Court in Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 and Butler v Attorney-​General (Vic) (1961) 106 CLR 268.6

TESTS FOR INCONSISTENCY [7.20]  As a starting point to any inquiry into the matter of inconsistency, it must be established that valid laws are in fact operative on the subject matter in question. If either the Commonwealth or State law is found to be invalid or ultra vires (for reasons other than s 109), there will of course be no need to test for inconsistency. Having established that the laws in issue are within the scope of the relevant legislature’s power, and otherwise operative, the inquiry then turns to the question of inconsistency. Three principal tests or approaches to inconsistency have evolved over the past century: the “simultaneous obedience” test, the “conferral of rights” test and the “cover the field” test. The first and second tests are often described as “direct” forms of inconsistency, in contrast with the third “indirect” inconsistency test. However, the distinction between direct and indirect, particularly with reference to the conferral of rights test, is not always clear-​cut, and many have called for a re-​ evaluation of the utility of these descriptions, as explored at [7.70].

IMPOSSIBILITY OF SIMULTANEOUS OBEDIENCE [7.25]  The earliest interpretations of s 109 restricted findings of inconsistency to situations where it was impossible to obey both the State law and the Commonwealth law, which arises when one law commands what the other forbids, or when one law compels disobedience of the other. For example in R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23, Queensland legislation required a referendum on liquor licensing to be held on the same day as Senate elections, while the Commonwealth Electoral (Wartime) Act 1917 (Cth) prohibited referenda on days when Senate elections 5 A judge will sever a provision, or text within a provision, if the remaining text, in her or his opinion, still basically reflects the enacting Parliament’s intention when initially enacting the relevant statute or provision. 6

See also Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500.

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were being conducted. It was impossible to simultaneously obey both laws, thus the State law was found invalid for inconsistency. This rather limited test for inconsistency clearly left many State laws intact, even where they modified rights granted in Commonwealth laws. For example, in Australian Boot Trade Employees Federation v Whybrow (1910) 10 CLR 266, the industrial laws in a number of States prescribed a lower minimum wage than that prescribed by the Commonwealth under its conciliation and arbitration legislation. The laws, however, were not found to be constitutionally inconsistent, as it was possible to obey both laws by paying the higher minimum wage. The simultaneous obedience test arose in McBain v Victoria (2000) 99 FCR 116. In McBain, Sundberg J of the Federal Court found that s 8 of the Infertility Treatment Act 1995 (Vic) was invalid for inconsistency with s 22 of the Sex Discrimination Act 1984 (Cth). The Victorian Act compelled discrimination on the basis of marital status in relation to access to a service, while such discrimination was prohibited by the Commonwealth Act. It was accordingly impossible for a provider of IVF services to obey both Acts. The early narrow interpretation of s 109 reflected the early Court’s desire to preserve as much of the States’ autonomy as possible, reflecting concepts drawn from the “reserved powers” doctrine. As that approach fell away after Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129 in 1920 (see [2.15]), a modification of the test for s 109 followed.

CONFERRAL OF RIGHTS [7.30]  The “conferral of rights” test developed after Engineers. In Clyde Engineering v Cowburn (1926) 37 CLR 466, Knox CJ and Gavan Duffy J stated (at 478) that two laws will be inconsistent with each other under s 109 when a State law “takes away a right conferred” by the Commonwealth. Thus, a State law will be invalid if it alters, impairs or detracts from the operation of a federal law. This test became particularly important regarding conflicting standards in industrial relations. For example, in Clyde Engineering, this test was applied to laws which regulated working hours. The Forty Four Hours Week Act 1925 (NSW) provided that a worker’s “ordinary working hours” were to be 44 hours per week (with overtime rates payable beyond that period). The Commonwealth award made under the Conciliation and Arbitration Act 1904 (Cth) fixed the ordinary working hours at 48 hours; deductions had to be taken out of the standard wage for less hours worked. Cowburn worked the 44-​hour week as set out in the State Act, but his employer deducted an amount in reliance on the Commonwealth standard of 48 hours. Simultaneous obedience was possible, as the employee could work a 44-​hour week, and then have his pay docked four hours for failing to work the 48 hours stipulated in the Commonwealth legislation. However, the State law was diminishing the rights conferred on the employer to expect a 48-​hour week to be worked, and the right of the worker to be paid the full rate for those 48 hours. The State law was therefore inconsistent by reason of the modification of the rights conferred by the Commonwealth. The High Court found the State Act was invalid to the extent of the inconsistency, and was inapplicable to workers employed under the Commonwealth award.

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In Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 a Commonwealth award, again enacted under the Conciliation and Arbitration Act 1904 (Cth), stated that relevant employers could employ females to work in the industries covered by the award, which included milling machines. The State Factories and Shops Act 1912 (NSW) made it an offence to employ females on such machinery. It was possible to obey both laws, by not employing women on the specified machines. However, the rights conferred on the employers and the prospective female workers were diminished by the State law, so an inconsistency was found. The Racial Discrimination Act 1975 (Cth) confers certain rights of equality and non-​ discrimination on the basis of race or ethnic origin. This Act was considered by the High Court in Mabo v Queensland (No 1) (1988) 166 CLR 186, a hearing that arose within the course of the ten years of litigation that culminated in the decision of Mabo v Queensland (No 2) (1992) 175 CLR 1, when the High Court decided that Indigenous native title rights had survived European settlement. During the course of the hearings, Queensland introduced the Queensland Coast Islands Declaratory Act 1985 (Qld), which purported to extinguish any traditional rights to land which the Torres Strait Islander plaintiffs might have had. Although the High Court had not yet decided whether native title in fact existed, it was prepared to hear the plaintiffs’ demurrer to the defence mounted by Queensland. The plaintiffs argued that the Queensland Act was inconsistent with the Racial Discrimination Act 1975 (Cth) because of a diminution of rights conferred. Section 10(1) of the Commonwealth Act provides: If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-​mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

The reference to a “right” in subs (1) includes the rights articulated in Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which includes the right to own property, and the right to inherit, as rights to which equality before the law must be guaranteed.7 The Queensland Act indeed sought to diminish the property rights of a group of Indigenous Australians, should such rights eventually be articulated by the High Court, specifically on the basis of their race. Brennan, Toohey and Gaudron JJ, with whom Deane J agreed, found as follows (at 218): By extinguishing the traditional legal rights characteristically vested in the Meriam people, the 1985 Act abrogated the immunity of the Meriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The Act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Meriam people … the 1985 Act has the effect of precluding the Meriam people from enjoying some,

7

International Convention on the Elimination of all Forms of Racial Discrimination 1966, 660 UNTS 195, Art 5(d)(v) and (vi).

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if not all of their legal rights in and over the Murray Islands, while leaving all other persons unaffected in their legal rights in and over the Murray Islands.8

The State law, which purported to extinguish native title, worked to limit or diminish the human rights of the Indigenous plaintiffs. It could not prevail over s 10(1) of the Racial Discrimination Act 1975, which operated to restore and preserve the human rights of those plaintiffs to the same standard enjoyed by the rest of the community. The State Act thus failed for s 109 inconsistency. The High Court again found that a State Act that diminished the rights of native title holders was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) in Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373. Six members of the Court found a conferral of rights inconsistency. The Court held (at 442) that s 7 of the Land (Titles and Usage) Act 1993 (WA) purported to extinguish any native title to land existing before the commencement of the Act, and created only rights of “traditional usage” for Indigenous persons who formerly held, or would have been entitled to, native title. As the rights of “traditional usage” were less secure than native title rights, the majority of the Court found that the State Act purported to diminish the rights of native title holders, and was inconsistent with the Racial Discrimination Act 1975, citing the Mabo (No 1) (at 438).9 It is not always easy to know what rights the Commonwealth intends to confer or remove with the enactment of a statute. For example, in Ansett Transport Industries v Wardley (1980) 142 CLR 237 the High Court had to consider the rights conferred by the State and Commonwealth Acts at issue. The Equal Opportunity Act 1977 (Vic) prohibited discrimination on the grounds of a person’s sex or marital status. The federal Airline Pilots Agreement, which had the status of an industrial award under the Conciliation and Arbitration Act 1904 (Cth), prescribed a certain procedure to be followed if a pilot was to be sacked. That procedure did not have to be followed if the pilot was sacked within a year of commencing employment. Ms Wardley sought employment with Ansett as a trainee pilot but was refused, on the grounds of her gender. Ansett was in clear breach of the Victorian Act, so the Equal Opportunity Board (Vic) ordered the company to employ Wardley. At the time Ansett came before the High Court, Wardley had been employed for less than six months. Ansett sought a declaration from the High Court to the effect that the State Act was not applicable with regard to the employment or dismissal of the defendant, by reason of inconsistency with the Commonwealth Agreement. It argued that the Victorian law was directly inconsistent with the rights conferred upon it by the federal Agreement as, in Ansett’s view, the Agreement granted it an absolute right to sack employees before they had worked 12 months. The Victorian Act diminished

8 Mason CJ and Dawson J were not prepared to make assumptions of fact regarding the possibility of finding in favour of the plaintiff’s native title claim, so they did not decide the s 109 issue. Wilson J dissented (at 206) on the basis that the Queensland Act did not create an inequality between the Meriam people and other people, but in fact removed a source of inequality (as native title rights vested only in Indigenous peoples), and thus the Act did not discriminate in the sense prohibited by s 10 of the Racial Discrimination Act 1975 (Cth). 9

See also Gerhardy v Brown (1985) 159 CLR 70. For a more recent example of inconsistency on the basis of the conferral of rights test, see Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500.

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that unlimited right, as it prohibited dismissal for reason of one’s gender. Ansett also submitted that there was indirect inconsistency (see [7.35]). The crucial question regarding direct inconsistency in this case was: what right or immunity did the Commonwealth intend to confer? Did the Commonwealth intend to confer upon the airlines an absolute right to dismiss, so long as any relevant procedure in the agreement was followed? That finding would lead to a finding of direct inconsistency with the Equal Opportunity Act 1977 (Vic). However, if the Commonwealth did not intend to confer such an unqualified right, and only conferred a limited right to dismiss, then no direct inconsistency ensued. Barwick CJ and Aickin J found that the Commonwealth had intended to confer an unlimited right for airlines to dismiss staff before they had been employed for a year, so there was direct inconsistency with the Victorian law. The majority, however, found there was no Commonwealth intention to confer an absolute right to dismiss. Three Justices in the majority found that the federal Agreement was intended to regulate only the process of dismissing pilots, and conferred no rights on employers regarding the grounds for the dismissal of airline pilots. This conclusion meant that there was scope for the operation of a State law which regulated the grounds for dismissal, such as the Victorian Act. Stephen J took a different approach. He agreed that, to a certain extent, the federal Agreement did grant Ansett a right to dismiss employees, but only in the context of orthodox industrial disputes. Otherwise, the right to dismiss was limited by the “general law”, which included Victorian anti-​discrimination laws. He explained (at 246-​247): In my view there is in this case no inconsistency within the meaning of s 109 of the Constitution. I regard the right of termination of the contract of employment which cl 6 of the Agreement confers as no absolute right, such as that for which Ansett contends. The right which it confers is not one which is capable of exercise regardless of the unlawfulness under State law of the ground for its exercise. On the contrary it is a right the nature of which is to be understood against the background to its operation which general laws of the land, whether State or federal in origin, provide. The Agreement is not, I think, to be read as if creating a partial vacuum, within which the relationship between Ansett and its pilots lies wholly withdrawn from the operation of those general laws of the land which are applicable to other members of the community. … The present industrial agreement, made in settlement of an industrial dispute, is concerned with industrial matters and its terms should be construed accordingly; they should not be regarded as trespassing upon alien areas remote from its purpose and subject matter, whether those areas concern the nation’s foreign affairs or social evils such as discrimination upon the ground of sex. When the power of termination which cl 6B confers upon the parties to the contract of employment comes to be construed it can be seen to contain nothing in its quite unexceptional wording to suggest that it should stand inviolate, unresponsive to a general law applicable to the community at large and directed to the prevention of some evil practice which, of its nature, may manifest itself in a variety of ways, including the exercise by an employer of his power of dismissal. The concern of the Agreement is, after all, entirely unremarkable, being exclusively devoted to the settlement of an industrial dispute. This is an inherently improbable source in which to discover, in the form of a simple power to bring their contract to an end conferred upon both parties to a contract of employment, a

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right on the employer’s part to practise discrimination upon the grounds of sex, contrary to, and immune from the prohibition of, State law.

In Stephen J’s view, the federal Agreement was never intended to impact upon the area of sex discrimination. That was (at 251) “simply not a subject within the purview of the award”. The judgments in Ansett suggest that some flexibility exists within the test of direct inconsistency. Direct inconsistency can be eliminated by attributing to the Commonwealth an intention that the rights in the relevant law be read narrowly, or that the law be read so as not to limit the operation of the relevant State law.10 Alternatively, direct inconsistency can be contrived by attributing an intention that the rights conferred by the relevant law be read expansively so as to eject the application of any State law.

INDIRECT INCONSISTENCY/​COVERING THE FIELD [7.35]  Both the tests described at [7.25]-​[7.30] are “direct” in the sense that they prohibit inconsistency which is apparent in the text or factual application of the competing laws in question. A third analysis has developed which tests for indirect inconsistency, that is inconsistency where the text or the factual operation of the laws does not generate actual conflict. Isaacs J explained the “cover the field” test for indirect inconsistency in Clyde Engineering v Cowburn (1926) 37 CLR 466 at 489: If … a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.

Dixon J explained the nature of this indirect test in Ex parte McLean (1930) 43 CLR 472 at 483: [Inconsistency] depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

Where the Commonwealth has legislated in an area or “field” and intends to “cover” that field, any State legislation in that “field” will be deemed to be inconsistent. There are three steps, first outlined by Isaacs J in Clyde Engineering (at 489-​490), to be followed in applying the “cover the field” test:

(a) Identify or characterise the field, or subject matter, that the Common-​wealth law deals with and regulates. (b) Ascertain whether the State law attempts to regulate a field which the Commonwealth intends to cover. If there is no overlap of the fields, then no indirect inconsistency will be found.

10 See J D Goldsworthy, “Legal Rights Subject Matters and Inconsistency: Ansett Transport Industries (Operations) Pty Ltd v Wardley” (1981) 7 Adelaide Law Review 486. This article contains a thorough analysis of Ansett Transport Industries v Wardley (1980) 142 CLR 237 decision.

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(c) If the two laws do overlap, ascertain if the Commonwealth intended to cover the field –​ did the Commonwealth Parliament intend its law to be the only law on the subject matter in question?

If no such intention to cover the field is evident, then no indirect inconsistency will be found. Where a State law does purport to encroach on a “field” or area, or subject matter, which the Commonwealth legislation intends to cover, then that intrusion will represent a conflict or inconsistency with the Commonwealth’s intention to “cover the field”, and a breach of s 109 will arise. This test certainly represents an expansion of the scope of s 109, and thus has considerable impact upon the operation of a wider range of State laws than that of the “direct” tests.

Identification of the “field” [7.40]  The principles or indicia of how to identify the field apply to both State and Commonwealth laws, and involve characterising the subject matter of the competing legislative regimes. A number of cases demonstrate this process, and the outcomes of those cases demonstrate the difficulty in predicting the application of the indirect test for inconsistency. In O’Sullivan v Noarlunga Meat (1954) 92 CLR 565 the Commonwealth and State laws at issue dealt with the use of premises for “slaughtering stock for export”. The Commerce (Meat Export) Regulations (Cth) established a licensing regime for premises used for export meat production, and set appropriate standards of hygiene and production quality. The Metropolitan and Export Abattoirs Act 1936 (SA) also regulated the slaughter of stock for export purposes, although this Act was concerned with the licensing of “fit and proper” persons and ensuring that slaughtering premises were in suitable locations. The High Court in a statutory majority found that both laws concerned the same field, being the regulation of slaughtering stock for export. By considering the wider subject matter of the legislation, the regulation of abattoirs, the Court cast the “fields” as overlapping. They went on to find that the Commonwealth intended to cover the field, so the State legislation was held not applicable due to indirect inconsistency. The approach of the bare majority was affirmed by the Privy Council on appeal at (1955) 95 CLR 177. This outcome should be contrasted with a similar case regarding overlapping licensing requirements in Airlines of NSW v NSW (No 2) (1965) 113 CLR 54. Both the Air Navigation Regulations 1947 (Cth) and the Air Transport Act 1964 (NSW) prohibited the operation of certain commercial air operations without the appropriate licence. The Commonwealth licence would be granted upon consideration of matters of safety, regularity and efficiency of air navigation. Award of the State licence required consideration of matters such as public transport demands, the facilitation of competition in the industry and the suitability of the applicant. The Court, if it had followed the methodology in O’Sullivan, could have identified the “field”, as the subject matter of “licensing commercial air operations”. If this were the approach the laws would have overlapped in their fields, and an inquiry as to the Commonwealth’s intention would have ensued. However, the Court instead

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noted that the State Act did not concern itself with any of the topics with which the Commonwealth Act dealt. So, even though both Acts concerned a licensing system within the same industry, the Court considered that the purposes of the licences were dissimilar, and thus the Acts concerned different fields. In O’Sullivan’s case, the “field” was cast in wide terms, increasing the likelihood of overlap, whereas in the Airlines case (No 2), the “field” was characterised in narrow terms, reducing the opportunity for overlap.11 In Ansett v Wardley, narrow and broad approaches to definition of the field were evident in the one case. With regard to Ansett’s submission regarding indirect inconsistency, the minority adopted a broad approach to “the field” of the Commonwealth award, interpreting that field as the dismissal of airline pilots. The majority indicated that the field was merely the procedure for the dismissal of pilots. Therefore, the State anti-​discrimination law, which limited the grounds upon which a person could be dismissed, trespassed on the minority’s field but not on that of the majority. Thus, indirect inconsistency was impossible on the majority’s analysis, regardless of whether the Commonwealth intended to cover the field of its law. The differing views were clearly influenced by the respective judges’ views on the parallel “direct inconsistency” argument, which is discussed at [7.30]. The test for identification of the field does not therefore appear to offer objective criteria for analysis. Consider the prophetic warning offered by Evatt J in Victoria v Commonwealth (Shipwrecks case) (1937) 58 CLR 618 on the difficulties inherent in the use of the “cover the field” test (at 634): any analogy between legislation and its infinite complexities, and varieties, and the picture of a two dimensional field seems to be of little assistance.

Overlapping fields: The subject matter approach [7.45]  The indicia of how to identify the field are similar for both State and Commonwealth laws. Therefore, just as there are difficulties in ascertaining the definition of the Commonwealth “field”, there are also difficulties in ascertaining whether the State has trespassed on that field. One approach to the issue of encroachment is the so-​called “subject matter” approach taken by Stephen J in Ansett Transport Industries v Wardley (1980) 142 CLR 237. On the indirect inconsistency submission Ansett had argued that the Federal Pilots’ Agreement was intended to “cover the field” regarding the employment conditions of pilots or at the very least the field of the dismissal of pilots. Thus it was argued that there was no scope for any operation within those respective subject matters for the Victorian Equal Opportunity legislation. Stephen J rejected Ansett’s contention and stated (at 251):

11 The definitions of the “field” in O’Sullivan v Noarlunga Meat (1954) 92 CLR 565 and Airlines of NSW v NSW (No 2) (1965) 113 CLR 54 cases were undoubtedly influenced by the definition given to the scope of the Commonwealth’s power under s 51(i) in those respective cases. See [2.30]. A more recent example of a narrow drawing of the fields, such that they were found to co-​exist, arose in Jemena Asset Management v Coinvest (2011) 244 CLR 508.

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The Victorian legislature has concerned itself quite generally with the social problem of discrimination based upon sex or marital status and occurring in a variety of areas of human activity. It has declared various manifestations of such discrimination to be unlawful. This is a subject matter upon which the Commonwealth’s Conciliation and Arbitration Act is understandably silent, silent because of its general irrelevance to the subject matter of that Act. That silence will necessarily extend to the factum through which it operates, the present Agreement. The disputes with which the Conciliation and Arbitration Act are concerned are disputes as to industrial matters, pertaining to the relationship of employer and employee; they have nothing inherently to do with questions of discrimination on the grounds of sex. No doubt it may happen that in a particular dispute, apparently of an industrial character, some question of discrimination of this sort may appear to be involved. The precise nature of its involvement may then determine whether or not the dispute is indeed an industrial dispute. However in the present case the Agreement gives not the slightest indication of any such involvement and has all the hallmarks of being made in settlement of an entirely orthodox industrial dispute.

Earlier Stephen J stated (at 247): The present industrial agreement, made in settlement of an industrial dispute, is concerned with industrial matters and its terms should be construed accordingly; they should not be regarded as trespassing upon alien areas remote from its purpose and subject matter, whether those areas concern the nation’s foreign affairs or social evils such as discrimination upon the ground of sex.12

In Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 the Court examined whether there was “cover the field” inconsistency between the Broadcasting and Television Act 1942 (Cth) and the Environmental Planning and Assessment Act 1979 (NSW). It was argued that the Commonwealth Act “covered the field” regarding the regulation of the height of broadcasting antennae, thus excluding any limitations placed on that height by the New South Wales Act. The Commonwealth found that the laws at issue were directed towards quite different purposes, and thus no encroachment into the “fields” could be found.13 Wilson, Deane and Dawson JJ stated (at 57-​58): The intention of the Commonwealth Act is to maintain the provision of high quality and technically efficient broadcasting services which are commercially viable and receptive to the needs of the community. It does so by the prohibition of broadcasting except under licence granted subject to certain conditions. But the relaxation of the prohibition by the granting of a licence does not confer an immunity from other laws, Commonwealth or State. The Act does not purport to lay down the whole legislative framework within which the activity of broadcasting is to be carried on. It is intended to operate within the setting of other laws with which the grantee of a licence will be required to comply. … In the words of Dixon J in Ex Parte McLean … the Act was intended to be “supplementary to or cumulative upon State law”.14

12 It may be noted that Stephen J here inverts the test of “trespass” by asking if the federal law trespassed on the State field. Any differences that flow from the inversion of the test are probably of academic interest only. 13 G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), p 399. 14 An argument was also made regarding direct inconsistency. The argument was that the Commonwealth Act granted a right for the radio station to have an antenna of a certain height, which was removed by

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Thus, the “subject matter” approach indicates that Commonwealth and State laws are less likely to overlap when they concern objectively different subject matters. In Ansett v Wardley, Stephen J construed the two subject matters of the law, anti-​ discrimination and an industrial award dealing with dismissal of pilots, as being so clearly different that he could not find that the fields overlapped. Similarly, the two laws in Commercial Radio Coffs Harbour v Fuller concerned, in the view of the court, objectively different topics: environmental law and broadcasting law. Of course, this test, which seems to rely on a judge’s opinion of when subject matters are “far apart”, is not particularly easy to apply. For example, it may be noted that the topics of discrimination and dismissal, which Stephen J clearly felt to be “remote” from each other in Ansett, may not be generally seen as particularly distant from each other in the present day. In any case, the subject matter approach is not a decisive test. For example, AMP Society v Goulden (1986) 160 CLR 330 is a case where the subject matter approach was not taken. Section 49K(1) of the Anti-​Discrimination Act 1977 (NSW) prohibited discrimination on the basis of, inter alia, disability. Goulden, who had been blind since birth, claimed that a breach of the New South Wales Act was entailed in AMP’s refusal to vary his life insurance policy to permit waiver of the premium payments should he suffer total disablement from illness, accident or injury; that refusal was based on Goulden’s blindness. AMP argued that the Life Insurance Act 1945 (Cth) covered the field of life insurance, thus excluding any application on the facts of the New South Wales Act. The Court stated (at 337): [T]‌he [Commonwealth] Act should be understood as giving expression to a legislative policy that the protection of the interests of policy holders is to be achieved by allowing a registered life insurance company to classify risks and fix rates of premium in its life insurance business in accordance with its own judgement founded upon the advice of actuaries and the practice of prudent insurers. In the words of Dixon J in Victoria v The Commonwealth (1937) 58 CLR 618 at 630, it would alter, impair or detract from the Commonwealth scheme of regulation established by the Act if a registered life insurance company was effectively precluded by the legislation of a State from classifying different risks differently, from setting different premiums for different risks or from refusing to insure risks which were outside the class of risk in respect of which it wished to offer insurance. In particular, State legislation which, either absolutely or subject to qualifications and exceptions, made it generally unlawful for a life insurance company to take account of physical impairment in determining whether it would or would not accept a particular proposal or the terms upon which it would grant insurance cover would be inconsistent with the essential scheme of the provisions of the Act regulating the issue of policies and the fixing of premiums.

If the subject matter approach had been taken, the Court could have classified the Acts as covering the distinct subject matters of life insurance and anti-​discrimination law, with consequently no overlap. For example, the Court could have found that the Commonwealth Act generally regulated life insurance, but not to the extent of permitting breaches of State anti-​discrimination law. Instead, the Court found that

the State Act. The Court found that the Commonwealth did not intend to confer such a right, so there was no direct inconsistency. The case is thus similar to Ansett v Wardley in terms of the arguments made and the outcome.

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the Commonwealth Act was designed to cover all matters of life insurance, leaving no room for any State law at all.

Commonwealth intention to cover the field [7.50]  Even if Commonwealth and State laws or “fields” overlap, there is no indirect inconsistency if it is found that the Commonwealth does not intend to cover its field as the exhaustive expression of law on the subject matter. The Commonwealth’s intention may be manifested expressly or, as is more often the case, impliedly. Express intention [7.55]  The Commonwealth may make its intention to cover the field quite clear. For example there may be a provision in the legislation that ousts the operation of any State law. Or conversely the Commonwealth may expressly provide that its laws are to sit alongside those of the States, and thus express an intention to leave the field open for complementary State laws. Although there were some early decisions that suggested that the Commonwealth could not enact laws that expressly ousted the States’ laws from an area or field, it is now clear that the Commonwealth can legislate to indicate its intention to cover the field, and can thus “manufacture” indirect inconsistency.15 In Wenn v Attorney-​ General for Victoria (1948) 77 CLR 84, the High Court held that a Commonwealth law validly used express words to exclude State laws from the “field” of preferential employment and rehabilitation for returned servicemen. The provision, s 24(2) of the Re-​establishment and Employment Act 1945 (Cth), stated: The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the forces, of any law of a State, or of any industrial award, order, determination or agreement made or filed under or in pursuance of any such law.

Latham CJ put it in plain terms (at 110): In the Commonwealth Act now under consideration, however, the Commonwealth Parliament has not left this matter [of Commonwealth intention to cover the field] to be determined by an inference (possibly disputable) from the nature and scope of the statute. The Parliament has most expressly stated an intention which in the other cases mentioned was discovered only by a process of inference. If such a parliamentary intention is effective when it is ascertained by inference only, there can be no reason why it should not be equally effective when the intention is expressly stated.

Commonwealth expressions of an intention to cover the field have been upheld in Botany Municipal Council v Federal Airports Corp (1992) 175 CLR 453, Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373 and New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1. However, such a challenge may still be upheld if the express clause purports to eject State laws in areas where the Commonwealth has no legislative power. Such was the case with regard to reg 200B 15

See West v Commissioner of Taxation (1937) 56 CLR 657 and Victoria v Commonwealth (1937) 58 CLR 618 for instances where Evatt J suggested that such clauses were beyond Commonwealth power. See also Williams et al, n 13, pp 414-​423.

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of the Air Navigation Regulations 1947 (Cth) in Airlines of New South Wales v New South Wales (No 2) (1965) 113 CLR 54 (see [2.30]). The Commonwealth Parliament may express an intention to clear the field, and leave the State laws operating alongside the Commonwealth’s laws as a complementary regime. The effectiveness of such expressions of consistency was examined in R v Credit Tribunal; Ex parte General Motors Acceptance Corp (1977) 137 CLR 54. A majority in that case found that the Commonwealth could express that there was no intention that its law be the exhaustive or exclusive regulatory regime on the given topic. In that case, s 75 of the Trade Practices Act 1974 (Cth) provided:

(1) Except as provided by sub-​section (2), this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory. (3) Except as expressly provided by this Part, nothing in this Part shall be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.

After considering Wenn’s case, Mason J treated the Commonwealth’s intention to clear the field as entirely valid (at 563): [A]‌Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.16

However, Mason J also pointed out that such an express intention could not save a State law from invalidation due to direct inconsistency, that is where simultaneous obedience is impossible, or where one law modifies rights conferred by the other. An express indication of the Commonwealth’s intention to clear the field will only save a State law that might have otherwise been considered indirectly inconsistent. Mason J’s view on this distinction between direct and indirect inconsistency with regard to express clearances of the field was upheld in Palmdale AGCI v Workers Compensation Commission (NSW) (1978) 140 CLR 236.17 An interesting example of this expressed intention is found in the case of University of Wollongong v Metwally (1984) 158 CLR 447, which arose out of a change to the Racial Discrimination Act 1975 (Cth), which had been prompted by the result in an earlier case, Viskauskas v Niland (1983) 153 CLR 280. In Viskauskas the High Court had to consider whether the Racial Discrimination Act 1975 (Cth) was intended to cover the field of race discrimination. The Court accepted that the Act implemented the Commonwealth’s international obligations to combat discrimination on the basis of race, giving effect to the International Convention on the Elimination of all Forms of Racial Discrimination, to which Australia is a party. The Court found that implementation of international obligations was a subject matter which required a uniform regime.

16 See also, for example, John Holland Pty Ltd v Victorian Workcover Authority (2009) 239 CLR 518. 17 See also D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), pp 605-​606.

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Hence the Court found that the Commonwealth impliedly intended to cover the field of race discrimination, rendering the Anti-​ Discrimination Act 1977 (NSW) inoperative. Immediately after the Viskauskas decision was handed down, the Commonwealth Parliament amended the Racial Discrimination Act 1975 so as to make it explicit that the Commonwealth did not intend to exclude any State regimes that pursued similar social justice objectives. That amendment, s 6A, was inserted into the Commonwealth Act and came into force in June 1983:

(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act. [emphasis added]

The Court unanimously decided in Metwally that the Commonwealth amendment to the Racial Discrimination Act 1975 could prospectively remove the implied Commonwealth intention to cover of the field of race discrimination. Thus s 6A revived the State anti-​discrimination regime as of the date it came into force, June 1983. However, in the case at issue, the University was challenging a finding for damages awarded by the New South Wales Equal Opportunity Tribunal to Mr Metwally in response to a complaint from March 1981. The High Court majority found that Metwally was precluded from relying on the New South Wales legislation, because his complaint dated back to a time when the State regime was inoperative, in conformity with the finding of inconsistency in Viskauskas. The order in his favour made by the New South Wales Equal Opportunity Board was void and unenforceable. The majority found that the Commonwealth could not uncover the field and retrospectively revive a State law which had been previously invalidated under s 109, for this would permit an ordinary Commonwealth statute to prevail over the Constitution. Gibbs CJ explained the majority’s position (at 457-​458): Before the Amendment Act came into effect, the Commonwealth Act, on its proper construction, was intended to be a complete and exclusive statement of the law of Australia with regard to racial discrimination, and Part II of the Anti-​Discrimination Act was inconsistent with that law and therefore invalid by force of s 109. What the Amendment Act in effect provides is that the Commonwealth Act should now be understood as though it did not have that intention and that Part II of the Anti-​Discrimination Act was therefore not inconsistent with it. In other words, the Parliament has attempted to exclude the operation of s 109 by means of a fiction. The short answer to the submissions of the respondents is that the Parliament cannot exclude the operation of s 109 by providing that the intention of the Parliament shall be deemed to have been different from what it actually was and that what was in truth an inconsistency shall be deemed to have not existed. Section 109 deals with “a matter of prime importance” in the constitutional framework …, namely the effect of an inconsistency between the enactments of two legislatures both of which operate in the same territory. Its provisions are not only critical in adjusting the relations between the legislatures of the Commonwealth and the States, but of great importance for the ordinary citizen, who is entitled to know which of two inconsistent laws he is required to observe.

In contrast the minority felt that what the Parliament could do prospectively, it could also do retrospectively. It could therefore retrospectively revive a State law, for the purposes of the test of indirect (though not direct) inconsistency. Mason J pointed out

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that s 109 has no role as a guarantee of individual rights, but is a purely mechanical provision, resolving conflicts between statutes (at 463): The object of s 109, no more and no less, is to establish the supremacy of Commonwealth law where there is a conflict between a Commonwealth and a State law. Where no such conflict arises or such a conflict is removed by subsequent retrospective Commonwealth legislation s 109 has no role to play –​there is no problem which requires to be solved by an insistence on the supremacy of Commonwealth law. The section is not a source of individual rights and immunities except in so far as individual rights and immunities are necessarily affected because the section renders inoperative a State law which is inconsistent with a Commonwealth law. Nor is the section a source of protection to the individual against the unfairness and injustice of a retrospective law. That is a matter which lies quite outside the focus of the provision. In these circumstances to distil from s 109 an unexpressed fetter upon Commonwealth legislative power is to twist the section from its true meaning and stand it upon its head.

The proposition from Metwally is that the Commonwealth cannot retrospectively uncover the field so as to engineer the retrospective revival of a previously invalid State law. However, the majority in Metwally split over whether the Commonwealth could retrospectively uncover a field, thus clearing the way for a State to retrospectively “fill” that field with its own law. The latter issue was resolved in Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373. As a prelude to discussion of the Native Title Act case, we may recall that the discriminatory extinguishment of native title had been held in Mabo (No 1) to contravene s 109, as such extinguishment by a Queensland Act was (directly) inconsistent with the Racial Discrimination Act 1975 (Cth) (see [7.30]). The Native Title Act 1993 (Cth) provides in ss 7(3) and 19 that certain past acts by States and Territories will be taken to effectively extinguish or diminish native title, regardless of any contemporaneous inconsistency between those acts and the Racial Discrimination Act 1975 (Cth), if the States and Territories legislate to retrospectively revive those acts. In the Native Title Act case, the majority of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, found that the arrangement was constitutional (at 454-​455): The provision authorising the future validation of past acts attributable to a State is not affected by the principle that a law of the Commonwealth cannot retrospectively avoid the operation of s 109 of the Constitution on a State law that was inconsistent with a law of the Commonwealth (University of Wollongong v Metwally (1984) 158 CLR 447). Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act consisting of a State law which was “invalid” by force of s 109 of the Constitution because of inconsistency with the Racial Discrimination Act is recognised only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s 19.

Thus, the Commonwealth may authorise the retrospective removal of inconsistency, and permit the States to pass retrospective legislation to take advantage of such

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removal.18 Indeed, it appears that the retrospective removal of inconsistency may concern both indirect and, in the case of the Native Title Act 1993, direct inconsistency. The result regarding direct inconsistency does not appear to comply with the decision in Palmdale AGCI, which had indicated that while the Commonwealth may prospectively clear the field and “waive” the possibility of indirect inconsistency, it may not authorise future direct inconsistency on the part of State laws. The Native Title Act case provides perhaps a rare instance of the Commonwealth being able to do retrospectively what it cannot do prospectively. Implied intention [7.60]  When the Commonwealth’s intention regarding coverage of the field is not made clear by express words, the Court must ascertain Parliament’s implied intention: did the Commonwealth intend or not intend to cover the field. Although the judicial process of deriving such implied intention is not entirely consistent, the cases have tended to generate two bases for implying the Commonwealth’s intention: first, the detail of the legislative regime, and second, the subject matter of the legislation. The Courts may use either or both of these as indicia of the Commonwealth’s intention to cover the field. Unfortunately, neither indicator is decisive. Indeed, the uncertainty in the search for implied intention in the context of s 109 was noted by Kirby P (as he then was) in Flaherty v Girgis (1985) 63 ALR 466 at 471: Reference to the “intention” of a legislature involves, in matters of this kind, an even greater appeal to legal fictions than is ordinarily the case.

He also noted as a High Court Judge in a later case, Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 497 that: those who regard the search for “intention” as fictitious must content themselves with an acceptance that it is the function of the courts, ultimately this Court, to specify what the purpose and effect (and hence the imputed intention) of the competing legislation is. As this case illustrates, the resolution of that task is controversial.

In O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565, the statutory majority held that the subject matter of both State and Commonwealth laws was the regulation of premises for slaughtering of livestock for export. The State law encroached onto the Commonwealth’s field. They went on to find that the Commonwealth regulations demonstrated an intention to cover that field, rendering the State law invalid to the extent that it purported to regulate those relevant abattoirs. Fullagar J examined the terms of the regulations, and found them (at 591) to be “extremely elaborate and detailed”, compelling him to conclude that they evinced the intention to provide exhaustive legal requirements relating to the field of “slaughter of stock for export”. The Privy Council upheld Fullagar J’s analysis when the case came before it on appeal in O’Sullivan v Noarlunga Meat Ltd (No 2) (1956) 94 CLR 367. In T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177, a Commonwealth award made under the Conciliation and Arbitration Act 1904 (Cth) regulated employment in the footwear industry. It made no provision for workers’ entitlements to long service 18 J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (8th ed, Butterworths, Chatswood, 2009), p 279.

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leave. The Long Service Leave Act 1955 (NSW) gave workers an entitlement to paid leave after ten years of employment. The High Court found that the omission of any provision for long service leave demonstrated that the Commonwealth had not intended to oust any relevant State provisions regarding matters such as long service leave entitlements. Similarly, in Ansett Transport Industries v Wardley (1980) 142 CLR 237, the incompleteness of the federal law was found by the majority to indicate a lack of intention to cover the field.19 Thus, Robinson and Ansett appear to conform to the O’Sullivan requirement of a sufficient level of detail in the Commonwealth Act before an intention to exclude State law will be found. However, the absence of detail in a federal law is not fatal to a claim of indirect inconsistency. In Australian Broadcasting Commission (ABC) v Industrial Court of SA (1977) 138 CLR 399 the High Court found inconsistency between the Broadcasting and Television Act 1942 (Cth) and the Industrial and Conciliation Act 1972 (SA) despite a lack of detail in the former Act. The Commonwealth law dealt with employment conditions of workers at the ABC, but no provision in the Act specifically dealt with the issue of the unfair dismissal of temporary employees. The State Act gave the South Australian Industrial Court the power to order the re-​employment of workers who were unfairly dismissed, whether they had been employed on a permanent or temporary basis. The court found the State provision inconsistent with the Commonwealth legislation, despite the acknowledgment that the Commonwealth provisions dealing with temporary employees were less detailed and less comprehensive than those applicable to permanent employees. The rationale was said to be that the Commonwealth intended to give the employer, the ABC, unlimited power to set the conditions for temporary workers. Mason J explained (at 417): The absence of detailed provisions applying to them is not an indication that it is contemplated that other laws will apply to them, but rather that the employer has an unqualified authority to make decisions affecting their employment and the termination of their services.

Although this case would seem to go against the approaches reflected in O’Sullivan and Robinson, it was endorsed in Dao v Australian Postal Commission (1987) 162 CLR 317, where the High Court held that the Commonwealth intended to cover the field of the employment of postal workers under the Postal Services Act 1975 (Cth). That Act authorised the Postal Commission to specify the requirements for employment. The State’s Anti-​Discrimination Act 1977 (NSW) prohibited discrimination on the grounds of sex in employment conditions. The Court found Mason J’s comments from the ABC case pertinent, and thus held the State’s sex discrimination standards inapplicable to the practices of the Australian Postal Commission by reason of indirect inconsistency.20 19 See Stephen J at 247-​248. 20

In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, Kirby J, in dissent, found that the federal legislation was intended to displace State laws on the matter of defence housing, despite a lack of detailed provisions. He said (at 498) “the fact that federal legislation does not deal elaborately with an area of law may not evidence an abandonment of that area to [the State Act]. It may simply indicate an intention to afford the subjects of the federal law an uncontrolled discretion to fix their own rules, adopting State law as they choose, where that was considered desirable, but otherwise not being bound by it to the extent of any inconsistency”.

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Turning to the subject matter of Commonwealth legislation, the Court will often draw the inference that the Commonwealth intended to cover the field when the field or subject matter is one in which uniformity of approach is considered necessary. There are certain subject matters that the Commonwealth regulates, which by their nature require a uniform regime, and Commonwealth laws on these subject matters will be treated as the exclusive, exhaustive expression of regulation, thus displacing relevant State laws. Some of these subject matters are of the type that, in practical terms, require a single nationwide system, for example matters of currency, copyrights and trademarks, weights and measures, and quarantine. These are all apparently concurrent powers under s 51, yet it is presumed that Commonwealth laws in these areas will be treated as the exhaustive regulatory regime. For example, in Viskauskas v Niland (1983) 153 CLR 280, the Court indicated that the fulfilment of international treaty obligations was a subject matter that required uniform legislation. The Court stated (at 292): The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract from the efficacy of the Commonwealth law. The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and exclusive, and this conclusion is supported by the fact that the provisions of Pt II (and especially those of s 9) are expressed with complete generality, and by the further fact that s 6 reveals an intention to bind the Crown in right of each State as well as the Crown in right of the Commonwealth. It appears from both the terms and the subject matter of the Commonwealth Act that it is intended as a complete statement of the law for Australia relating to racial discrimination.

The Court has also nominated the following subject matters as requiring uniformity: • the prevention of collisions at sea (Hume v Palmer (1926) 38 CLR 441, Victoria v Commonwealth (1937) 58 CLR 618); • the fields of employment preferences for discharged military personnel (Wenn v Attorney-​General for Victoria (1948) 77 CLR 84); and • protection of Commonwealth property from destruction (R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338). It seems that for most of these examples, the Commonwealth laws in fact dealt with what might be regarded as “federal matters”; the fields concern matters that are understood as effectively exclusive to the Commonwealth. Certainly this conclusion can be drawn from the Blacklock’s case, in which a conflict between the Crimes Act 1914 (Cth) and the State’s criminal law provisions was claimed by an accused who allegedly destroyed Commonwealth property in a Commonwealth place. The Court agreed that the federal criminal law provisions were supported by the Commonwealth’s exclusive power over its public places, as set out in s 52(i) of the Constitution. Thus Mason J said (at 347):

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It is not to be supposed that the Commonwealth law, when it formulated the relevant rule of conduct in relation to Commonwealth property and that of its public authorities, proceeded on the footing that other and different rules of conduct might be enacted in relation to such property or that the rule of conduct which it formulated might be subjected to a different penalty. To conclude otherwise would be to say that the Commonwealth law contemplated the concurrent application of an inconsistent State law, a result which cannot be sustained.

Similarly, regulation of the Commonwealth public service is an exclusive power under s 52(ii), which helps explain the results in ABC and Dao.21 The issues of employment for military personnel and implementation of international treaty obligations are matters which might be considered “quasi-​exclusive”. Although the relevant heads of power (defence and external affairs) are strictly concurrent, certain subject matters within those heads of power are effectively treated as exclusive for all intents and purposes. However, it is puzzling that prevention of shipping collisions was considered to be a subject requiring uniformity, while on the other hand, the removal of shipwrecks constituting a danger to shipping was deemed not to require uniformity of legislation. In Victoria v Commonwealth (Shipwrecks case) (1937) 58 CLR 618 the Court found that there was no Commonwealth intention to cover the field of removal of shipwrecks, without much explanation. Once again the Commonwealth’s intention appears to be somewhat elusive. Certainly it might be clear that certain subject matters are most effectively regulated through a single uniform regime. Nevertheless, it is a difficult task to predict the subjects which might be seized upon by the court as indicative, by their very nature, of the Commonwealth’s intention to cover the field. A recent and topical application of the cover the field test arose in Commonwealth v Australian Capital Territory (Same Sex Marriage case) (2013) 250 CLR 441, concerning the validity of Australian Capital Territory legislation which provided for marriages between adults of the same sex. As the case concerned a territory law rather than a State law, s 109 was not directly engaged. Rather the key issue was whether the Australian Capital Territory law complied with s 28 of the Australian Capital Territory (Self-​Government) Act 1988 (Cth), which provides that Australian Capital Territory laws are inoperative to the extent of any inconsistency with federal laws.22 The High Court did not answer whether s 28 operated in precisely the same way as s 109, but it did confirm that the “cover the field” test was incorporated into that provision. It duly found that the Marriage Act 1961 (Cth) was “a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage” (at [57]). The Marriage Act 1961 had been amended in 2004 to provide

21 See also A Fisher, C Goff and P Keyzer, Principles of Australian Constitutional Law (5th ed, LexisNexis Butterworths, Chatswood, 2017), pp 597-​598. 22 No inconsistency provision was included in the Northern Territory (Self-​Government) Act 1978 (Cth) on the assumption that the repugnancy principle would apply. See further, A Twomey “Same-​Sex Marriage. Inconsistency between Commonwealth and Territory Laws”: http://​www.sydney.edu.au/​ law/​cru/​documents/​2013/​same_​sex_​marriage.pdf,  at  3.

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that “marriage” be specifically defined so as to exclude the possibility of same sex marriage.23 The Court unanimously stated (at [58] and [59]): The 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage. Those amendments applied the newly introduced definition of marriage to the provisions governing solemnisation of marriage and gave effect [81] to that definition in the provisions governing the recognition of marriages solemnised outside Australia. Section 88EA of the Marriage Act (inserted by the 2004 amendments) provides expressly that a union solemnised in a foreign country between persons of the same sex must not be recognised as a marriage in Australia. These particular provisions of the Marriage Act, read in the context of the whole Act, necessarily contain the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia. It follows that the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the Marriage Act and accordingly are inoperative.

Hence, the recent history of amendment of the federal Marriage Act 1961 provided evidence of the Commonwealth’s intent to cover the field of marriage.24 Finally, it may be noted that the “subject matter approach” may be applied to the issue of intention just as it has been to the issue of “field” in cases such as Ansett v Wardley and Commercial Radio Coffs Harbour. Just as disparate subject matters indicate a lack of overlap between Commonwealth and State laws, the existence of disparate subject matters also indicates that the Commonwealth does not intend to exclude operation of the State law in case of occasional overlap (see also [7.45]). However, such a test is again not decisive, as seen in AMP v Goulden.

INCONSISTENT CRIMINAL LAWS [7.65]  Conflicting Commonwealth and State penalties for criminal conduct are often a source of inconsistency, although not every case of differing penalties will generate a s 109 invalidity.25 As a general rule, overlapping sentencing laws are held to be inconsistent, as Dixon J made clear in Ex parte McLean (1930) 43 CLR 472 at 483: When the Parliament of the Commonwealth and the Parliament of the State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes and s 109 applies. That this is so is settled, at least when the penalties they impose are diverse.

Thus, McLean indicates that where the Commonwealth and the State each prohibit certain conduct, and where the penalties differ, the Commonwealth law prevails over the State law. The Court has indicated that this proposition extends to inconsistent 23 “Marriage” is now defined in the Act at s 5 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. 24

The Marriage Act 1961 (Cth) was amended in 2017 to permit same sex marriage.

25 See also J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (9th ed, Butterworths, Chatswood, 2013), pp 483-​491.

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sanctions of all kinds, whether for criminal or civil breaches, in Viskauskas v Niland (1983) 153 CLR 280 at 293: At least with regard to the subject matter of racial discrimination in relation to the provision of goods and services, the test as stated in Ex parte McLean (1930) 43 CLR 472 applies exactly –​the two legislatures have legislated upon the same subject, and have prescribed what the rules of conduct will be and (if it matters) the sanctions imposed are diverse. Clearly in respect of that subject matter there is an inconsistency.

In McLean’s case, Dixon J stated (at 483) that the matter depends upon the intention of the Commonwealth Parliament, to “completely exhaustively or exclusively express, through its law, what shall be the law governing the particular conduct or subject”. Thus where the Commonwealth prescribed a penalty for certain conduct, McLean indicates that there is a presumption that the Commonwealth intended to cover the field of the conduct subjected to regulation. So, for example, in R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 the Court considered federal and State criminal laws which set differing penalties for wilful destruction of property. The federal law related specifically to damage to Commonwealth property, and the State law applied more generally to property damage. Menzies J stated (at 342-​343): I have come to the conclusion that s 29 of the Crimes Act should be regarded as exhaustive so that, when it is alleged that it is property belonging to the Commonwealth or any public authority under the Commonwealth that has been wilfully and unlawfully destroyed or damaged, s 29 of the Crimes Act governs the matter to the exclusion of any law of a State.

The laws were found to be indirectly inconsistent, as the subject of preservation of Commonwealth property was a field that required uniform regulation. In R v Winneke; Ex parte Gallagher (1982) 152 CLR 211, Gallagher was convicted under apparently identical Commonwealth and State provisions for failing to answer questions at a Royal Commission that encompassed both State and federal inquiry processes. Different penalties applied for the offences but the State law was not found to be inconsistent with the Commonwealth laws. As Gibbs CJ put it (at 219): In the present case the Commonwealth Act and the State Act deal with different subjects. The Commonwealth Act deals with inquiries conducted under Commonwealth authority and the State Act with inquiries conducted under State authority. … The different penalties provided by the two Acts are in respect of what are in truth independent offences which are created by law to serve different purposes. It is not right to say that the Acts provide different penalties for the one offence. There is no inconsistency between Acts which prescribe different penalties for offences which, albeit constituted by the same conduct, are in substance different from one another.

In McWaters v Day (1989) 168 CLR 289, a Commonwealth law and a State law each prescribed different penalties for driving a vehicle while intoxicated. The Traffic Act 1949 (Qld) provisions prohibited anyone from driving while under the influence of alcohol. The Defence Force Discipline Act 1982 (Cth) penalised a defence force member for driving while under the influence of liquor or a drug, and the penalty for breach set a higher maximum penalty than that set in the State Act. When a soldier was caught driving under the influence, the question arose as to whether the laws were consistent. The Court held that the State law was valid, finding that the federal law

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prescribed a military offence, as opposed to the general criminal law offence. The joint judgment stated (at 299): The Discipline Act is supplementary to, and not exclusive of, the ordinary criminal law, it follows that it does not deal with the same subject matter or serve the same purpose as laws forming part of the ordinary criminal law. The result is there is no inconsistency.

Both of the previous cases arguably generate outcomes inconsistent with the proposition expressed in McLean’s case. However, they are better understood as illustrations of the importance of characterising the field, or subject matter of the laws. In each case, the Court found that a single act breached two separate laws on separate subject matters. Inconsistent penalties arose again in Momcilovic v The Queen (2011) 245 CLR 1. The two laws (s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and s 302.4 of the Criminal Code 1995 (Cth)) both proscribed trafficking in drugs. The Victorian law prescribed a higher maximum penalty of 15 years compared to ten years for the federal offence. Heydon, Crennan and Kiefel JJ analysed the differing penalties as a potential instance of indirect inconsistency, in accordance with prior authority. As the Commonwealth had manifested an intention not to cover the field in s 300.4 of the Criminal Code 1995, indirect inconsistency was not found, so s 109 was not enlivened (in accordance with R v Credit Tribunal; Ex parte General Motors Acceptance Corp (1977) 137 CLR 54).26 Gummow J, with whom French CJ and Bell J agreed on this point, also found that inconsistency did not arise, but for a different reason. He drew a distinction, at 113, “between a law which is self-​executing and operates immediately upon a subject-​ matter, and one which does so only at the point of exercise of a power conferred by that law”. In articulating this notion of “operational inconsistency”,27 he found that inconsistency between the sentencing provisions would only arise upon the concurrent exercise of prosecutorial powers under both statutes. That is (at 113): it was only upon the actual exercise of federal executive authority conferred by a law of the Commonwealth that there could arise a conflict to be resolved by the operation of s 109.

As Momcilovic had been prosecuted in Victoria, Gummow J found that no inconsistency regarding the potential penalties would arise unless a federal prosecutor sought to bring a charge under s 302.4. Given federal provisions guarding against such double jeopardy, such an occasion is unlikely. This theory of operational inconsistency, to which two other judges adhered, seems to significantly reduce the chances of s 109 inconsistency arising when State and federal criminal laws prescribe different penalties for the same offence. It represents a departure from Ex parte McLean. Hayne J in dissent found that the sentencing provisions were directly inconsistent, so the State law was not saved by the Commonwealth’s “negative intention” to clear

26 See, for example, Heydon J at 191, Crennan and Kiefel JJ at 235-​236 and 238-​239. 27 Operational inconsistency had been raised previously in cases such as Commonwealth v Western Australia (1999) 196 CLR 392 and Yanner v Eaton (1999) 201 CLR 351.

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the field, which only operates in cases of possible indirect inconsistency.28 He stated (at 146): where the punishments to be exacted are to be fixed according to different provisions of differing content, it is a legal nonsense (a perfect solecism) to say that two laws directed to the same subject matter which each create a crime (with identical elements but different modes of trial and punishment) can coexist. A choice must be made between them in any case in which it is alleged that a person has done what each prohibits.

Hayne J was perturbed that the penalty to which a person could be exposed for criminalised behaviour could be determined by an “accident of the application of police resources” (at 146). Having adopted the assumption that the two laws prescribed identical offences, he concluded (at 148): the two laws prescribe different punishments and are inconsistent. Which is the more lenient is irrelevant.29

Dickson v The Queen (2010) 241 CLR 491 concerned the constitutionality of the concurrent operation of offences of conspiracy at both the federal and State level. Hence, the case concerned inconsistency between the substances of the actual offences, rather than inconsistency in penalties. The appellant had been convicted of conspiracy under s 321(1) of the Crimes Act 1958 (Vic). The High Court unanimously quashed the conviction, as it found s 321(1) to be inconsistent with s 11.5 of the Criminal Code 1995 (Cth), which prescribed the federal conspiracy offence. The provisions were found to be directly inconsistent, as the Victorian law was much broader than the federal significant “areas of liberty” had been deliberately left open by the Commonwealth, but were closed by the State (at 505). For example, the Commonwealth offence only applied where the primary offence had a minimum level of seriousness, whereas the Victorian law of conspiracy attached to any offence (at 505). In those circumstances, the Victorian law removed liberties deliberately preserved by the federal statute. The Court explained (at 504): The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.

A second area of inconsistency, referred to in the above passage, concerned the differing provisions for jury trials. Federal jury trials must be unanimous in accordance with 28 See Hayne J at 145. 29 See also Mason J in R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 347, also suggesting that inconsistent criminal penalties give rise to direct rather than indirect inconsistency.

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s 80 of the Constitution (see [12.65]), whereas Victorian law provided for majority verdicts, as well as juries as small as ten persons. However, the Court had earlier stated (at 504) that the differences regarding jury trials “strengthened” the case for inconsistency, indicating perhaps that inconsistency may not have arisen on that ground alone. Dickson seemed to pose a grave threat to the validity of numerous State criminal laws, whenever they overlapped with federal criminal laws. It seemed to indicate that such laws would not survive s 109 scrutiny if they were broader than the corresponding federal law, and if non-​unanimous juries were permitted. As noted by Hayne J in Momcilovic (at 125): the federal Parliament, in exercise of the external affairs power, has enacted criminal laws dealing directly with subject matters … that for many years were dealt with only by State and Territory criminal laws.

In Momcilovic, the majority found that s 71AC was not inconsistent with s 302.4, even though they related to the same offence, as had been the case in Dickson. French CJ in fact found that the State was “less stringent in its application” than the federal law at 72-​73, as did Gummow J (with whom Bell J agreed) at 122. Hence, inconsistency did not lie, where the federal law closed zones of liberty that the State left open. These judges were also influenced by the Commonwealth’s express intention to leave the field open for concurrent State law in this case.30 Hayne J proceeded on the basis that any differences between the substantive elements of the two crimes were not relevant for constitutional purposes (at 129-​130) because he concentrated on the inconsistency (in his view) arising in the sentencing provisions. Heydon J found that the “area of liberty each [law] leaves is the same” (at 190-​191), as did Crennan and Kiefel JJ (at 235). In all judgments, the Dickson precedent did not apply, as the State law did not close a zone of liberty left open by the Commonwealth. The same issue regarding jury trial as had arisen in Dickson arose again in Momcilovic. Gummow J, with whom French CJ and Bell J agreed, began consideration of this issue by stating that the relevant “laws” for the purposes of the s 109 inquiry were the two criminal laws at issue, including “the physical elements and the fault elements of the” respective offences (at 108). He then stated (at 108-​109): However, the process of abstraction and characterisation which yields that result does not have the consequence that each law with which the appellant seeks to engage s 109, that of the State and that of the Commonwealth, includes the general provisions at federal and State level for the trial by jury of indictable offences. The steps in the prosecution, conviction and punishment of the appellant were taken in the general milieu of the system for adjudication of criminal guilt. The body of legislative provisions for the operation of that system is not part of the “law of a State” which may be rendered inoperative by reason of inconsistency with the federal laws upon which the appellant relied.

Crennan and Kiefel JJ stated at 239, with whom the rest of the Court essentially agreed, stated:31

30 See Gummow J at 121 and 122. 31 See also Gummow J, with whom French CJ and Bell J agreed, at 108-​109 and Heydon J at 190-​191. Hayne J decided not to examine the issue at 130.

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different modes of trial and different sentencing regimes are part of the legal and constitutional landscape in respect of the administration of criminal justice in Australia. They are a product of constitutional arrangements which permit both the Commonwealth … and the State of Victoria … to legislate in respect of the administration of their respective criminal justice systems, and also of the circumstance that s 80 of the Constitution applies only in relation to offences against some Commonwealth laws. Such considerations cannot give rise to relevant inconsistency for the purpose of s 109.

No member of the Court found that inconsistency arose in respect of the differing jury provisions, seemingly departing from Dickson in that regard. The contemporaneous operation of State and federal criminal laws is anticipated by s 11 of the Crimes Act 1914 (Cth) which states that, although a person may be prosecuted under either law, no one may be punished twice for the same offence. This safeguard from double jeopardy is repeated in s 30 of the Acts Interpretation Act 1901 (Cth).

REASSESSING THE TESTS FOR INCONSISTENCY [7.70]  Evatt J may have accurately articulated the difficulties in relying upon the “cover the field” test for inconsistency in Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 when he stated (at 147): This is a very ambiguous phrase, because subject matters of legislation bear little resemblance to geographical areas. It is no more than a cliché for expressing the fact that, by reason of the subject matter dealt with, and the method of dealing with it and the nature and multiplicity of the regulations prescribed, the federal authority has adopted a scheme which will be hindered or obstructed if any additional regulations whatever are prescribed upon the subject by any other authority.

It seems a common complaint that the apparent formula or criteria given as elements of the cover the field test are no more than rationalisations or obscurities that mask the process of judicial determination, which relies more on the factors that Evatt refers to than a strict test.32 It may well be that the process for testing for indirect inconsistency depends upon the value or utility of the Commonwealth regime, as perceived or understood by the Justices of the Court, and the disruption to that regime through the provisions of the alternate, State laws in question. Thus there have been attempts to identify the “real” test for inconsistency, and consequently speculation about the concrete differences between the notions of direct and indirect inconsistency. There have been suggestions that the search for the Commonwealth’s intention is the key to unlocking the inconsistency puzzle. For example, the facts in Ansett Transport Industries v Wardley (1980) 142 CLR 237 generated arguments regarding both direct and indirect inconsistency. In their respective judgments, all of the Justices seemed to blur the distinctions between the

32 This is the complaint made in V Morabito and H Strain, “The Section 109 ‘Cover the Field’ Test of Inconsistency: An Undesirable Legal Fiction” (1993) 12 University of Tasmania Law Review 182 at 193-​ 194; as well as by G A Rumble, “The Nature of Inconsistency under Section 109 of the Constitution” (1980) 11 Federal Law Review 40 at 54-​57; A Murray-​Jones, “The Tests for Inconsistency under Section 109 of the Constitution” (1979) 11 Federal Law Review 25 at 52, and Goldsworthy, n 10.

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conferral of rights test and the “cover the field” test. Indeed some of the Justices expressly stated there was only one true test of inconsistency –​the ascertainment of the Commonwealth’s intention.33 Aickin J said (at 280): The two different aspects of inconsistency are no more than a reflection of different ways which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct. Whether it be right or not to say there are two kinds of inconsistency, the central question is the intention of the particular federal law.

In Wardley’s case, Barwick CJ and Aickin J found that the Federal Pilots Agreement was intended to cover the field of airline employment, and so there was indirect inconsistency with the Equal Opportunity Act 1977 (Vic). They also found that the Commonwealth had intended to confer an unlimited right for employer airlines to dismiss pilots when they had worked for less than one year, whereas the State Act qualified that right, by prohibiting sex or marital status as a ground for dismissal. Thus they also found direct inconsistency. Both aspects of their findings were dependent upon the same factor, the Commonwealth’s intention. In contrast, the majority found there was no intention by the Commonwealth to cover the field of dismissal of pilots, and also found no intention to confer an absolute right to dismiss. The occasional merging of the tests for inconsistency is also evident in Blacklock’s case, regarding the treatment of the competing penalties for the same conduct.34 Although there may be a degree of merger of the tests, one must be careful not to fall into the trap of muddling them.35 Once direct inconsistency is found, the State law cannot be saved by seeking to demonstrate that the Commonwealth did not intend to cover the field. Once s 109 is activated through a direct inconsistency, the lack of an indirect inconsistency is irrelevant.

CONCLUSION [7.75]  While the issue of a single test might hover as a tantalising theoretical issue, the High Court is still apparently bound by the traditional tri-​level inquiry into constitutional inconsistency based upon the questions of simultaneous obedience, conferral of rights and cover the field inconsistency. Application of the first two tests of “direct inconsistency” is normally applied predictably, though Ansett uncovered uncertainties within the “conferral of rights” test. We must doubt, however, whether the cover the field test ultimately is a true “test” with stable indicia producing reliable and consistent outcomes.36

33 Hanks, Gordon and Hill, n 2, pp 319-​321. 34 In this respect, compare the judgments of Menzies and Mason JJ in that case. 35

See also Telstra Corporation Ltd v Worthing (1999) 197 CLR 61.

36 See A Murray-​Jones, n 32, p 52, where he calls for more discussion by the Justices of the High Court on the reasons for their decisions in s 109 cases.

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Chapter 8

Intergovernmental Immunities [8.10] [8.15] [8.20] [8.25]

PRELIMINARY ISSUE: CROWN IMMUNITY ............................................................................... 316 THE EARLY LAW: THE DOCTRINE OF IMPLIED IMMUNITIES ............................................ 316 THE ENGINEERS CASE: ABANDONMENT OF IMPLIED IMMUNITIES .............................. 317 COMMONWEALTH LEGISLATIVE POWER OVER THE STATES ........................................... 318 [8.30] The State Banking case........................................................................................................ 318 [8.35] Discriminatory laws............................................................................................................ 319 [8.40] Indirect discrimination........................................................................................ 321 [8.45] “Rational” discrimination................................................................................... 323 [8.50] Prohibition on the impairment or curtailment of a State’s capacity to function as a government................................................................................................................... 328 [8.55] Austin v Commonwealth: A reformulation of the test for State immunity?.............. 332 [8.60] STATE LEGISLATIVE POWER OVER THE COMMONWEALTH ............................................. 337 [8.60] Reciprocity............................................................................................................................ 337 [8.65] The folly of Cigamatic: Reciprocity abandoned.............................................................. 337 [8.70] The “affected by” doctrine................................................................................................. 340 [8.75] Section 64 of the Judiciary Act........................................................................................... 341 [8.80] The criminal law exception................................................................................................ 343 [8.85] A reformulation of Cigamatic: The Residential Tenancies Tribunal case.................... 344 [8.90] CONCLUSION  .................................................................................................................................... 348

[8.05]  In a federation, it is essential for a constitution to regulate legal relationships between the regional governments and the central government, and, specifically, the extent to which the two federal partners can regulate each other. In the early years of Australian federation, the High Court adopted a simple solution: both governments were immune from each other’s legislation. The doctrine of implied intergovernmental immunity was, however, comprehensively rejected by the Court in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129 decision of 1920. Since Engineers, it has never been doubted that the Commonwealth government has power to regulate State government instrumentalities. This power is not limitless, as was made clear in Melbourne Corporation v Commonwealth (State Banking case) (1947) 74 CLR 31 of 1947, and, later, the Australian Education Union case in 1995. The law regarding the ability of the States to bind the Commonwealth has taken a rockier route, caused largely by the confusing jurisprudence arising in and since the case of Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372. Whereas the extent of the Commonwealth power to bind States is relatively clear, clarity is lacking with regard to the reciprocal situation, that is the extent to which States may bind the Commonwealth.

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PRELIMINARY ISSUE: CROWN IMMUNITY [8.10]  Most instances of intergovernmental regulation arise when the legislation of one federal partner purports to bind an executive body within the other government. It is possible for the law of one federal partner to attempt to bind the other’s legislature, or its judiciary, but such laws are very rare.1 In cases where the legislation of one government is purporting to bind a member of the executive of the other government, a preliminary issue is whether the legislation at issue has rebutted the common law presumption of Crown (or executive) immunity. The issue of Crown immunity is, however, conceptually different from the issue of intergovernmental immunity, as it arises in both the intergovernmental and intragovernmental contexts, and it concerns the legislature’s intention to bind the Crown, as opposed to its capacity to do so. Crown immunity is discussed in Chapter 5 (at [5.90]).

THE EARLY LAW: THE DOCTRINE OF IMPLIED IMMUNITIES [8.15] In D’emden v Pedder (1904) 1 CLR 91, the early High Court found that a Commonwealth officer could not be obliged, under a Tasmanian statute, to pay a tax on his salary. This case established the principle that the Commonwealth and its officers were impliedly immune from State legislation. The reciprocal principle was established in Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants’ case) (1906) 4 CLR 488, where a Commonwealth award established under the Conciliation and Arbitration Act 1904 (Cth) was held not to bind a New South Wales government instrumentality in its relations with its employees. The reasoning behind the doctrine of implied intergovernmental immunities was explained by the majority in the later case of Baxter v Commissioners of Taxation (1907) 4 CLR 1087 (at 1122): The purpose of the Constitution was the creation of a new state, the Commonwealth, intended to take its place amongst the free nations, with all such attributes of sovereignty consistent with its being still “under the Crown”. It is essential to the attribution of sovereignty to any government that it shall not be interfered with by any external power. The only interference, therefore, to be permitted is that prescribed by the Constitution itself. A similar consequence follows with respect to the constituent States. … Applying then the doctrine of quando lex aliquid concedit concedere videtur et illud sine quo res ipsa valere non potest [“when the law gives something, it also gives that without which the thing given would be valueless”], which is a maxim applied to the construction of all grants of power … it follows that a grant of sovereign powers includes a grant of a right to disregard and treat as inoperative any attempt by any other authority to control their exercise.

The early High Court thus felt that it was necessary in order to ensure the autonomy of each sovereign government within Australia that the Commonwealth and State governments be prohibited from legislatively interfering in each other’s affairs. While this doctrine possibly achieved its aim in strengthening the respective “sovereignty”

1 See Mason J in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 217-​218. See also Austin v Commonwealth (2003) 215 CLR 185, concerning legislation binding upon States judges at [8.55].

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of the Commonwealth and State governments, it also had the potential to greatly undermine the effectiveness of the laws of both governments.2 For example, Griffith CJ, an unabashed champion of the doctrine of implied immunities, conceded in Farey v Burvett (1916) 21 CLR 433 at 441 that States’ rights would have to give way if they conflicted with the Commonwealth’s power to make laws under s 51(vi) with respect to defence. Thus, a number of pragmatic exceptions to the doctrine appeared in the decade before its ultimate demise in 1920.3

THE ENGINEERS CASE: ABANDONMENT OF IMPLIED IMMUNITIES [8.20]  Up to 1920, a vocal minority within the High Court had evinced their disapproval of the implied immunities doctrine. The reasoning of this minority finally held sway in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129. The case concerned industrial proceedings by a trade union, the Amalgamated Society of Engineers, in the Commonwealth Arbitration Court against 843 employers, including three Western Australian government employers. Under the implied doctrine of intergovernmental immunities, those State government employers would have been immune from the jurisdiction of the Court, which had been established under a federal statute, the Conciliation and Arbitration Act 1904 (Cth). In Engineers, the Court adopted a new approach to the characterisation of the Commonwealth laws under the Constitution (see [2.15]). In particular, the Commonwealth heads of power were to be interpreted in accordance with the natural meaning of the words therein. Limitations on the scope of those heads of power would not be implied unless such implication followed necessarily or logically from the text. In this case it was not felt to be either necessary or logical for the Court to imply that the State instrumentalities were immune from laws enacted under the Commonwealth’s conciliation and arbitration power, s 51(xxxv). The majority stated (at 154-​155): Section 51(xxxv) is in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to industrial disputes in which States are concerned … The doctrine of “implied prohibition” finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. We therefore hold that the States, and persons natural and artificial representing States, when parties to industrial disputes in fact, are subject to Commonwealth legislation under pl xxxv of s 51 of the Constitution, if such legislation on its true construction applies to them.

The ratio of the Engineers case clearly authorised the Commonwealth to pass legislation which bound State government instrumentalities. Obiter statements authorised the exercise of reciprocal power by the States (see [8.60]). 2

See R v Sutton (1908) 5 CLR 789 at 814 per Isaacs J.

3 A Stone, P Gerangelos, S Murray, N Aroney, S Evans and P Emerton, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (4th ed, Thomson Reuters (Professional) Australia, Pyrmont, 2017), pp 964-​970. See also K Booker, A Glass and R Watt, Federal Constitutional Law: An Introduction (2nd ed, Butterworths, Chatswood, 1998), p 38.

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COMMONWEALTH LEGISLATIVE POWER OVER THE STATES [8.25]  The issue since Engineers has not been whether the Commonwealth can bind the States, but the extent to which it can do so. There are some clear limits to the Commonwealth’s power to bind the States. Of course the Commonwealth cannot bind States in areas where it has no head of power. Nor can it exercise such power in a way which breaches one of the express or implied prohibitions on the Commonwealth power, such as s 116 or the implied guarantee of political communication.4 There are also some implied limits on the Commonwealth power which arise from Australia’s federal nature, and the detrimental impact that some laws may have on the relationship between the Commonwealth and the States. These limits were extrapolated in the case of Melbourne Corporation v Commonwealth (State Banking case) (1947) 74 CLR 31.

The State Banking case [8.30]  In the State Banking case, the impugned law was s 48 of the Banking Act 1945 (Cth), which provided that a bank could not engage in business with a State government, or government authority, without the consent of the federal Treasurer. Melbourne Corporation was a local government authority which sought to bank with a private bank, the National Bank of Australasia. The Treasurer would not grant such permission, and urged Melbourne Corporation to switch its banking business to the federally-​owned Commonwealth Bank of Australia. Section 48 was a precursor to the Chifley Government’s plan to nationalise the banking industry; its purpose was to force State governments to conduct banking solely with the federally-​owned bank. Melbourne Corporation sought a declaration that s 48 was invalid. The High Court agreed. Latham CJ found that s 48 lacked a head of power. In particular, he stated that the law was not valid under the banking power, s 51(xiii), as it was essentially a law “with respect to State functions as such” (at 61). Latham CJ’s reasoning does not accord with the modern approach to characterisation, as he appeared to deny that a valid law could be capable of dual characterisation. In retrospect, his arguments seem flawed as, while the law certainly was about the States’ banking activities, it is difficult to deny the law’s character as a law “with respect to banking” under s 51(xiii).5 Dixon, Rich, Starke and Williams JJ made up the rest of the majority. All of these Justices found that the law could be characterised under s 51(xiii). However, they found that Commonwealth laws with an intergovernmental impact could be impliedly limited in two instances. Rich J explained (at 65-​66): The question then is, whether the provision being prima facie within power, it is obnoxious to the Constitution. The first point to be kept in mind is that the Constitution expressly provides for a federal form of government involving the existence of both Commonwealth

4 See, respectively, [12.70] and Chapter 13. 5 See, on dual characterisation, [2.20]. In Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353 at 372-​373, Barwick CJ was one of the few Justices to subsequently follow Latham CJ’s line of thinking. Section 51(xiii) excludes “State banking” from the ambit of the banking power. “State banking” refers to banking business carried on by a State as banker not customer (Melbourne Corporation at 86).

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and States, the Commonwealth having conferred upon it only certain limited and defined legislative powers, and the States, within the limits of their own Constitutions, retaining exclusive powers in the field which remains after all Commonwealth powers have been exercised to the full extent of their widest scope. It is unnecessary to trace in detail the authorities by which the relationship of Commonwealth and State powers have been defined. The view once prevailed that any legislative or executive act of the Commonwealth which would, if valid, interfere with the free exercise by a State or its instrumentalities of their legislative or executive powers was pro tanto invalid. At a very early stage, however, there were decisions inconsistent with this view, and it was finally exploded by the Engineers Case (1920) 28 CLR 129. There is no general implication in the framework of the Commonwealth Constitution that the Commonwealth is restricted from exercising its defined constitutional powers to their fullest extent by a supposed reservation to the States of an undefined field of reserved powers beyond the scope of Commonwealth interference. But this is always subject to the provisions of the Commonwealth Constitution itself. That Constitution expressly provides for the continued existence of the States. Any action on the part of the Commonwealth, in purported exercise of its constitutional powers, which would prevent a State from continuing to exist and function as such is necessarily invalid because inconsistent with the express provisions of the Constitution, and it is to be noted that all the powers conferred by s 51 are conferred “subject to this Constitution”. Such action on the part of the Commonwealth may be invalid in two classes of case, one, where the Commonwealth singles out the States or agencies to which they have delegated some of the normal and essential functions of government, and imposes on them restrictions which prevent them from performing those functions or impede them in doing so; another, where, although the States or their essential agencies are not singled out, they are subjected to some provision of general application, which, in its application to them, would so prevent or impede them. Action of the former type would be invalid because there is nothing in the Commonwealth Constitution to authorize such action by the Commonwealth.

Thus, the two specific limits identified in the State Banking case on the Commonwealth’s ability to bind States are that (a) the Commonwealth may not discriminate against the States, and (b) it may not pass laws of general application which fundamentally impede the States from carrying out essential governmental functions. These prohibitions are designed to preserve the autonomous existence of the States. The reasoning behind these implied prohibitions is similar to the reasoning which underlay the original comprehensive doctrine of intergovernmental immunities. However, it was recognised that limited rather than blanket immunity would suffice to preserve State autonomy. In the State Banking case, a majority supported the existence of the discrimination prohibition, while only three Justices specifically endorsed the second prohibition. The two suggested State immunities were endorsed by the majority in Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353, but were held not to apply on the facts of that case.

Discriminatory laws [8.35]  The majority in State Banking found that s 48 breached the restriction on discriminatory laws, as it clearly singled out the States for special disadvantage by restricting their banking activities. In contrast, the law had no effect on the banking activities of any other entity (for example, individuals, corporations) at all. As Dixon J explained (at 84):

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There is thus a law directly operating to deny to the States banking facilities open to others, and so to discriminate against the States or to impose a disability upon them. The circumstance that the primary prohibition is laid upon the banks and not upon the States does not appear to me to be a material distinction. It is just as effectual to deny to the States the use of the banks and that is its object. This I think is not justified by the power to make laws with respect to banking.

The “discrimination” prohibition was not applied again so as to invalidate Commonwealth legislation until the case of Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192. The Queensland Electricity Commission (QEC) was established in 1976 by a statute which declared that it represented the Crown in right of Queensland. The QEC generated 97 per cent of Queensland’s electricity which was then distributed via seven government-​controlled Electricity Boards. From 1984 to 1985, the Electrical Trades Union of Australia was engaged in a dispute with the QEC and the Boards, as well as electrical authorities in other States. However, the Queensland dispute was undoubtedly the most volatile, stoked by the passage of Queensland legislation in April 1985 which banned strikes by electrical workers, and reduced their working conditions. The dispute eventually made its way into the Commonwealth Conciliation and Arbitration Commission (CAC). The Commonwealth government subsequently passed the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth). Section 6(1) of the Act stated that the Act applied to the existing dispute between the Union and the QEC and other State authorities. Section 6(2) extended the Act’s application to future disputes between unions and electricity authorities in Queensland. The effect of the Act was to impose special rules regarding the resolution of the disputes identified in s 6(1) and (2) by the CAC. For example, provisions in the Act dictated that the CAC endeavour to settle the dispute as expeditiously as possible, that the disputes be heard by the Full Bench of the CAC, and limited the CAC’s power to refrain from hearing s 6 disputes. However, the special rules only applied insofar as they affected the dispute with the Queensland authorities. Hence, the special procedures did not have to be applied to that part of the ongoing s 6(1) dispute involving the electrical authorities of other States. The QEC and the Electricity Boards challenged the validity of the Act. The High Court majority found the Act wholly invalid, on the basis that it discriminated against a State government instrumentality. On the State’s implied immunity from discriminatory laws, Mason J represented the majority in stating (at 217-​218): First, the principle prohibits discrimination against a particular State as well as against the States generally. Discrimination against a particular State, at least so long as it involves the imposition of a special burden or disability on that State, by isolating it from the general law applicable to others, including other States, falls squarely within the principle. Secondly, notwithstanding its basis in a constitutional conception of a relationship between a central government and separate State governments and the emphasis given to its application to the exercise of executive power by the States, the principle, as Stephen J indicated in Koowarta, protects legislatures as well as executive governments. The prohibition against discrimination operates to strike down laws which apply to agencies of a State as well as to a State itself –​see, for example, Melbourne Corporation, at 78-​79. Although there has been no examination of what is meant by “agencies of a State” in this context, there is no reason for thinking that the expression is confined to authorities

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which represent the Crown in the sense that they are entitled to the shield of the Crown. The foundation for the implication is not the special character and privileges of the Crown in right of the States, but the constitutional conception of the Commonwealth and the States as constituent entities of the federal compact having a continuing existence reflected in a central government and separately organized State governments. To restrict the prohibition to a State and such of its agencies as represent the Crown in right of that State would significantly limit the protection given to the States which, as governments, are free to choose whether a function should be carried out by a department of government or by an authority brought into existence for that purpose. The object of the implied prohibition is to protect the State in the exercise of its functions from the operation of discriminatory laws whether the functions are discharged by the executive government or by an authority brought into existence by the State to carry out public functions even if the authority acts independently and is not subject to government direction and even if its assets and income are not property of the State. And it is significant that s 48 of the Banking Act, held to be invalid in Melbourne Corporation, was directed not only to a State but also to an “authority of a State, including a local governing authority”. Accordingly, it is of no moment whether the plaintiffs in the first action … represent the Crown in right of the State of Queensland. It is enough that they are agencies of the State, brought into existence for a public purpose.

Thus, the Melbourne Corporation anti-​discrimination principle was applied so as to prohibit discrimination against a single State (as opposed to all of the States), and also against statutory government instrumentalities (as opposed to central government organs). Mason J went on to characterise the Commonwealth Act as one which impermissibly discriminated against a Queensland government agency (at 219). There can be no objection to an exercise of the conciliation and arbitration power which establishes a particular tribunal or a particular procedure for the settlement of disputes in one industry, say the electricity industry. In relation to that industry Parliament might, if it saw fit, require that, in the interests of expedition, the jurisdiction of the Commission be exercised by a Full Bench. It might even provide that disputes in that industry be not referred to a State Industrial Authority but be determined by the Commission itself. Such a law would apply to all without differentiation. But when the Parliament singles out disputes in the electricity industry to which agencies of the State of Queensland are parties and subject them to special procedures which differ from those applying under the Principal Act to the prevention and settlement of industrial disputes generally, and of industrial disputes in the electricity industry in particular, it discriminates against the agencies of the State by subjecting them to a special disability in isolating them from the general law contained in the Principal Act.

As the law singled out a Queensland government agency for special disadvantage, it was found to be invalid. Indirect discrimination [8.40] The Queensland Electricity Commission case also clarified the meaning of “discrimination” for the purposes of State immunity. It had been argued on behalf of the Commonwealth that the law impacted on some private electricity suppliers (who generated the remaining 3 per cent of Queensland electricity) in Queensland, so it did not single out the QEC for special treatment. Mason J rejected the argument: (at 220-​221): A law may discriminate against a State even if it subjects some others (eg private employers) as well as agencies of the State to a special burden or disability. In such a situation the true

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effect of the law may be to isolate the State agency and the private employers from the general law. This, on the assumption that I am presently making, is the effect of the Act. It discriminates against the State of Queensland by singling out disputes to which employers in that State are parties, those employers being for the most part authorities brought into existence by the State to carry out public functions, and then subjecting those disputes to a regime of differential treatment.

Deane J added (at 248-​250): a general law may operate in the context of particular circumstances to single out the States for discriminatory treatment. The character of a law as a law of general application is ordinarily a factor, and sometimes a conclusive factor, militating against the conclusion that it discriminates against the States or a State in the relevant sense. The question whether a law does so discriminate against the States or a particular State is however, for the purposes of the law of the Constitution, a question of substance which is not susceptible of being resolved by the mere inquiry whether, as a matter of form, the law is a general or a special one. The point may be conveniently illustrated by reference to the Pay-​roll Tax Case. The decision in that case was that Commonwealth legislation imposing a general pay-​roll tax to be paid by employers on wages paid to their employees validly applied to the States and their agencies. The fact that the States’ pay-​rolls were particularly large no doubt meant that the effect of the legislation was particularly onerous in its application to them in the sense that they paid more tax than all or most other employers. That did not, however, mean that the legislation was discriminatory against the States in the sense that it singled them out to be made objects of special burdens or disabilities. On the other hand, if the legislation had been confined to the imposition upon all employers other than the Crown in right of the Commonwealth of liability to pay-​roll tax upon wages paid to “public servants”, it might still properly have been seen, as a matter of form, as a law of general application. Such confined legislation would, nonetheless, have discriminated against the States in the relevant sense for the reason that, as a matter of substance, its operation would have been, in circumstances where the States and State instrumentalities were the only non-​ Commonwealth employers of “public servants”, to single out the States for the imposition of a special burden. Nor is the question whether an impugned law relevantly discriminates against the States or a particular State susceptible of resolution merely by reference to whether the formal criterion of its operation satisfies the requirements of some formularized test. The fact that the formal operation of a law is to impose a burden or disability upon the States or State instrumentalities by reference to their character as such will ordinarily suffice to establish that, as a matter of substance, the law relevantly discriminates against the States. The failure of a law to operate by reference to such a formal criterion of liability will not, however, preclude a conclusion that, as a matter of substance, the law relevantly so discriminates. That question of substance must ultimately be resolved by reference to the actual operation of the law in the circumstances. If, as a matter of substance, the actual operation of the law is to discriminate against the States or a particular State in the relevant sense, it will be within the scope of the reservation regardless of how disguised the substance may be by ingenious expression or outward form.

In the above extracts, Mason and Deane JJ confirmed that prohibited discrimination in the immunities context encompasses both direct discrimination and the more modern notion of indirect discrimination. Direct discrimination arises when one (or in this context a State government entity) is treated differently than other persons (or entities). Direct discrimination can be described as “discrimination in application”

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or “form”. Indirect discrimination arises when a rule or law is applied neutrally, but impacts disproportionately and detrimentally on a certain group (or State government). Indirect discrimination is discrimination in substance or effect, rather than form. For example, presume the Act at issue in Queensland Electricity Commission applied its special dispute settlement regime to all disputes involving providers of electricity in Queensland, which would have included all disputes concerning the QEC, the Boards and the private suppliers.6 The law would have formally applied the same rules to the QEC and the private suppliers, but would have indirectly discriminated against the QEC. The law would have had a much greater impact on the QEC, who were by far the greatest suppliers of Queensland electricity, with the greatest number of employees, and the greatest potential therefore for engaging in industrial disputes. The prohibition on both direct and indirect discrimination has been confirmed in subsequent cases. For example, in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, the Court stated (at 240) that the existence of discrimination is “ascertained by reference to the substance and actual operation of the law in the circumstances to which it applies”. “Rational” discrimination [8.45]  In certain circumstances, the Commonwealth is constitutionally authorised to pass legislation which in form and/​or effect discriminates against the States or a State. In Queensland Electricity Commission, Deane J stated (at 250-​251): The decision in Melbourne Corporation establishes that the characterization of a law as a law with respect to a subject matter of Commonwealth legislative power will not, of itself, remove it from the reach of the overriding restriction precluding the use or exercise by the Commonwealth of its legislative powers to single out the States or their instrumentalities to place upon them special burdens or disabilities. That overriding restraint will be defeated only in the exceptional case where the relevant legislative power appears, “from its content, context or subject matter”, to be intended to authorize the discriminatory operation of the particular law (cf per Dixon J, Melbourne Corporation, at 83). Put differently, the singling out of the States for the imposition of some special burden or disability must itself have such a real and close connection with the subject matter of legislative power as to warrant the positive conclusion that the grant of legislative power was intended to authorize such discrimination against the States in the context of such a law. An example of such an exceptional case is where the nature of the subject matter of legislative power is such that the discriminatory operation of a law may do no more than reflect a necessary ingredient of what gives the law its character. Thus, to take the most obvious illustration, a law providing for the acquisition of property on just terms from a particular State (Constitution, s 51(xxxi)) will discriminate against that State if the acquisition is against its will. Another example of such a case is where a particular exercise of the relevant legislative power necessarily involves distinctions between different geographical areas: defence (s 51(vi)), quarantine (s 51(ix)) and medical services such as immunization (s 51(xxiiiA)) may provide illustrations. Yet another example of such a case is where the relevant legislative power authorizes the singling out of a particular identified object, activity or situation for special

6 It is not entirely clear whether this was the construction given to the statute in the case.

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legislative treatment and a State or State agency is affected by reason of its relationship with that object or involvement in that activity or situation. It is argued, on behalf of the Commonwealth, that the present case falls within this category.

Brennan J stated (at 240): Even when a head of Commonwealth power can support a discriminatory law the validity of such a law cannot be determined by reference to its terms divorced from the subject matter to which the law relates. It is of the essence of discrimination that like things are treated differently or that unlike things are treated in the same way. It is not possible to determine more than the existence of formal discrimination without reference to the subject matter to which the law applies. Of course, formal discrimination may spell invalidity. If a burden or disability is imposed discriminatorily on a State, the law will be invalid unless the discriminatory provision is calculated to provide for particular circumstances affecting that State alone. But if the law is calculated to provide for such circumstances, there may be no real (as distinct from formal) discrimination and the case may be within the exception stated by Williams J in [the Payroll Tax Case] that is, a case “where it (ie, discrimination against a State) can be seen to be justified”. Whether circumstances thus justifying the discriminatory law exist must be determined by the Court as best it can.

Deane and Brennan JJ went on to find, in dissent, that s 51(xxxv), the conciliation and arbitration power, did in fact authorise the Commonwealth to impose special dispute resolution provisions on particular existing disputes, such as the one identified in s 6(1), whether the dispute concerned a State government entity or not.7 Brennan J stated (at 239): The prescription of different procedures for the speedy settling of different disputes is wholly consistent with the promotion of the uninterrupted conduct of industrial activity throughout Australia. If the Parliament perceives that industrial peace is imperilled by delay in settling a particular interstate industrial dispute or a particular kind of interstate industrial dispute or a particular part of such a dispute, the prescription of a special procedure for speedy settlement of that dispute or of that kind of dispute or of that part of a dispute is wholly consistent with a valid exercise of the power.

Brennan J added (at 241): The matters which are presently governed by the Queensland Acts and which are in issue in the dispute mentioned in s 6(1) of the Act may reasonably be thought by the Parliament to have such a potential for interstate industrial disruption as to warrant the prescribing of a special procedure for speedy settlement of the interstate industrial dispute in which those issues fall for determination … There is nothing in s 6(1) to suggest that it is the governmental character of the electricity authorities of Queensland rather than the nature of the dispute mentioned in that sub-​section which is the criterion by reference to which the special settlement procedures are made applicable. One cannot infer that such discrimination as the Act effects with respect to this dispute is “aimed at the restriction or control of the State” or its authorities. An inference which can be drawn from the nature of the dispute is that the special settlement procedures are made applicable because of the exigencies of the dispute itself arising from the effect of the Queensland Acts on the issues in dispute. But that does not establish that the criterion of the discrimination is the character of the disputants. If the Parliament was entitled to regard the Queensland Acts as clothing some of the issues in the

7 Section 51(xxxv) gives the Commonwealth power with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

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dispute with the potential to cause interstate industrial disruption –​a view which it is not open to this Court to deny –​the Act in so far as it prescribes appropriate speedy settlement procedures applicable to that dispute is within the conciliation and arbitration power. The circumstance that the employing authorities who are subject to the Queensland Acts are authorities of the State is not a statutory criterion of the application of the Act to the dispute mentioned in s 6(1). On the available material, the Parliament was entitled to make a political assessment that there were distinguishing features of the dispute mentioned in 6(1) which made the dispute one which required speedy settlement. As the special procedures prescribed by the Act were appropriate means of achieving the speedy settlement of that dispute, the Act in its application to that dispute is a valid law with respect to conciliation and arbitration and it is supported by s 51(xxxv) of the Constitution.

However, in the view of Deane J, much of the rest of the Act’s substantive provisions failed as they applied special procedures to only part of the s 6(1) dispute, that which concerned the QEC. Furthermore, Deane J stated with regard to s 6(2) (with which Brennan J agreed): The discriminatory operation of s 6(2) of the Act cannot be justified as itself coming within the intended scope of the grant of legislative power contained in s 51(xxxv). The disputes mentioned in s 6(2) are not existing disputes. They could relate to a wide diversity of matters. The involvement of the electricity authorities in them could be central or peripheral. They could be centred or have their origins in Queensland or in some other State. There is nothing in their designated character which could warrant the conclusion that the discriminatory treatment of the electricity authorities in relation to them was a necessary or integral part of a coherent scheme of conciliation and arbitration for their settlement. There is nothing in the nature of that discriminatory treatment which could properly be seen as bringing it itself within what can be seen, from the content, context or subject matter of s 51(xxxv), to be the intended scope of that grant of legislative power.

Deane and Brennan JJ thus outlined an exception to the discrimination prohibition in Queensland Electricity Commission. Brennan J outlined a simple test: a law may discriminate against a State when it is justified, as in when it is reasonable, to do so. In his view, it was reasonable to prescribe a special law for the intransigent Queensland electricity dispute, but it was not reasonable to prescribe a special law for all future disputes involving the Queensland electrical authorities, as there was no reason to believe that those disputes would require special regimes. The “reasonableness” of a law’s discriminatory aspect helps to identify that law as one which is, in the words of Deane J, authorised by the relevant head of power. Professor Zines had explained that the exception permits laws which do not have an “anti-​federal” or discriminatory purpose.8 The reasonableness of a law will establish the existence of such a purpose (see also [14.50]). The majority in Queensland Electricity Commission did not disagree with the proposed exception: they disagreed with its application in this case. This demonstrates how judges may easily disagree on the reasonableness of a legislative measure as it is an inherently subjective decision. Indeed, McTiernan J had applied a similar exception in his dissenting judgment in State Banking (at 94):

8

J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), p 484.

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The contention is made that s 48 discriminates against the States or is aimed at the States. If discrimination is fatal to a federal law, it would be necessary to define its meaning and to examine the limits of the power under which it would be claimed that the law was passed. The contention misses the principle upon which the section is founded. Section 48 contains a complete category of banking business which is proper to a central bank, rather than a trading bank. Section 48 gives power to the Treasurer, if recourse is not had to State Banks, to secure that the banking business included in the category will be diverted to the central bank when it is expedient to do so. The selection of the banks and the banking business to which the section applies is founded upon banking considerations which are in accordance with views widely, if not universally, held as to the proper division of business between the central bank of a country and its trading banks. Section 48 introduces a control over the trading banks’ acceptance of government banking business which has the object of enabling the central bank to exercise its functions effectively. I am of opinion that s 48 is in substance a law with respect to the subject of banking and is within the legislative power contained in s 51(xiii) of the Constitution. [emphasis added] Section 48 does not infringe upon any right reserved to the States by any provision of the Constitution.

McTiernan J, unlike his fellow Justices, felt that the nationalisation of the banking business of the States was a “proper” use of the banking power, which equates with a finding that such centralisation was reasonable. The exception to the prohibition on discrimination has been applied in a number of cases since Queensland Electricity Commission. In Richardson v Forestry Commission (1988) 164 CLR 261, the challenged Commonwealth law prohibited certain activities, such as the felling of trees and excavations, in two forests in Tasmania. It was argued that this law discriminated against the Tasmanian Government, in freezing its use of 4.5 per cent of Tasmania’s land (most of which was Crown land). Only four Justices dealt with the issue, and they all rejected the contention. Mason CJ and Brennan J stated (at 293-​294): The defendants then submit that Pt III violates the implied prohibition upon discrimination against a State. The argument is that a law which singles out for protection a particular area of a particular State in purported pursuance of an international obligation applying to the whole of Australia, in the absence of any special threat to that particular area is a discrimination against that State. It is pointed out that no such regime as Pt III protects other parts of Australia which are said to be under threat, notably areas of rainforest in Queensland. The short answer to this submission is that the defendants have not established any foundation for a case of invalid discrimination in the sense of a differential treatment of Tasmania which is not occasioned by the subject to which the law relates. The obligation of protection necessarily falls to be discharged with respect to particular properties and a law which is calculated merely to discharge Australia’s treaty obligations with respect to a particular property does not invalidly discriminate against the State in whose territory the property is situated. In any event, there is no evidence to suggest that there are areas in other States which have equal or stronger claims to protection under the Convention.

According to these two Justices, the law did not have the anti-​federal, impermissible purpose of singling out Tasmania, but instead had the purpose of protecting potential heritage sites which happened to be within Tasmania. The latter purpose was a reasonable exercise of legislative authority under the external affairs power,

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s 51(xxix).9 A contrary decision may have been made if evidence had been presented of similar sites on Crown land in other States being treated in less restrictive manner. In Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, the impugned Commonwealth law prescribed a special regime for the resolution of certain types of industrial disputes. Under s 111(1)(g) of the Industrial Relations Act 1988 (Cth), the Commonwealth Industrial Relations Commission could refrain from hearing or dismiss a matter on the basis that further proceedings were unnecessary or undesirable in the public interest. However, s 111(1A) prohibited the Australian Industrial Relations Commission from exercising its power under s 111(1)(g) when dealing with disputes from States where the dispute could not be dealt with by a State arbitrator. At the time, Victoria was the only State where there were disputes that could not be dealt with by a State arbitrator, as the Kennett Government had overseen the abolition of the State conciliation and arbitration system. Counsel for Victoria argued that s 111(1A) discriminated against Victoria. Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ disagreed (at 239-​240): The prosecutor submitted that s 111(1A) discriminates against Victoria and employers and employees in that State by denying them recourse to s 111(1)(g). The new provision is said to discriminate against Victoria and any other State that enacts similar legislation; alternatively, it is said that the legislation is aimed at Victoria. No doubt the events which had recently taken place in Victoria, particularly the enactment of the Victorian legislation, were the occasion for the introduction of s 111(1A) but that is not enough to justify characterization of the provision as one which is aimed at Victoria. The provision is framed in general terms and is capable of applying to any State which introduces a system similar to the Victorian system. The fact that Victoria is the only State presently affected by s 111(1A) is not a compelling consideration, though it could conceivably be so in the absence of a rational and relevant connection between the basis on which that provision denies access, the application of s 111(1)(g) and the exercise of the powers conferred by the last-​mentioned provision. Whether s 111(1A) discriminates against Victoria, its employers and employees in the sense of being aimed at them is not a question to be determined by reference to the subjective motives of the legislators; rather, it is a question of determining what was the purpose of the enactment, a matter which is to be ascertained by reference to the substance and actual operation of the law in the circumstances to which it applies. That was the approach which the Court adopted in Queensland Electricity Commission where the members of the Court, as we understand the judgments, examined the substance and operation of the statutory provisions in reaching their conclusions with respect to the validity of the impugned provisions. The prosecutor contended that there is no logical connection between refusing to make an award in the public interest pursuant to s 111(1)(g) and the absence of a system of compulsory arbitration in a State. That argument cannot be accepted. If the view be taken, as it has been taken by the Commonwealth Parliament that, in the public interest, industrial disputes should be resolved by means of compulsory arbitration, it is logical for the Parliament to conclude that a power given to the Commission to refrain from proceeding where it is in the public interest to do so should only be exercisable when an alternative system of compulsory arbitration is available. Further, the introduction of s 111(1A) can be

9 See also [4.45] on the Richardson case.

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supported on the ground that it eliminated or alleviated problems that would arise once State compulsory arbitration was no longer available. Applications under s 111(1)(g) would involve delay, even if the Commission decided to proceed due to the absence of compulsory arbitration. And, if the Commission were to decline to proceed and leave the dispute to voluntary arbitration, interstate industrial disputes might not be resolved satisfactorily.

The “discrimination” argument in the Australian Education Union case should perhaps have been rejected for another reason. The discrimination did not seem to be against the Victorian government per se, but against parties to an industrial dispute in Victoria. The actual case concerned a number of disputes to which the Victorian Government was a party. However, the legislation in its ongoing operation could not be said to have had a disproportionate impact on the Victorian public sector as opposed to the Victorian private sector, unlike the legislation in Queensland Electricity Commission. On the other hand, the legislation could be said to discriminate against Victorian government bodies when compared to government bodies in other States, rather than Victorian private bodies. This analysis demonstrates the complexity of the notion of discrimination, as the existence of discrimination in a given context may depend on the comparator used. In any case, the Court in Australian Education Union should have taken the opportunity to reconfirm that discrimination in the intergovernmental immunities sense only concerns discrimination against government instrumentalities, rather than discrimination against the people of a State. The latter type of discrimination raises conceptually separate constitutional issues.10 In summary, a two-​step test is applied when deciding whether a law breaches the State Banking prohibition on discrimination: (1) Ask whether the Commonwealth law at issue discriminates against the governments or agencies of the States or a State, in form or effect. If it does, proceed to step 2. (2) Ask whether the law nevertheless fulfils a rational non-​discriminatory purpose. The law will not be valid unless the latter question is answered in the affirmative.

Prohibition on the impairment or curtailment of a State’s capacity to function as a government [8.50]  The second implied limit on Commonwealth power identified in Melbourne Corporation was the prohibition on laws which fundamentally impeded the States in their performance of essential government functions. The limitation applies to Commonwealth laws of general application. A number of justices have remarked on the inherent imprecision in this prohibition.11 The principle was endorsed (but not applied) in Queensland Electricity Commission, and was described in numerous ways by the justices. Gibbs CJ (at 206) spoke of an implied prohibition on Commonwealth

10 See also [14.40] onwards, on the different types of constitutionally relevant discrimination. See also Leeth v Commonwealth (1992) 174 CLR 455 at 484 per Deane and Toohey JJ. 11 See, for example, Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353 at 411 per Walsh J; at 424 per Gibbs J.

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laws that “would prevent a State from continuing to function and exist as such”. Mason J (at 217) spoke of a prohibition on laws which operated “to destroy or curtail the continued existence of the States or their capacity to function as governments”. Wilson J (at 226) described the prohibition as one which preserved the structural integrity of the States. Deane J (at 247) aptly described the prohibition’s purpose as preserving the continued capacity of the States to function as independent entities.12 In Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, the six-​Justice majority described the prohibition (at 228) as one which prohibits “an impairment or curtailment of the capacity of a State to function as a government”. The prohibition was endorsed by the majority in Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353. It was argued that the imposition by the Commonwealth of a 2.5 per cent payroll tax on all employers breached this prohibition insofar as it bound State governments. The Court disagreed. Gibbs J explained (at 425): Although in some cases it may be possible to show that the nature of a tax on a particular activity, such as the employment of servants, renders the continuance of that activity practically impossible, it has not been shown that the tax in the present case prevents the States from employing civil servants or operates as a substantial impediment to their employment. The tax has now been imposed upon and paid by the States for nearly thirty years, and it has not been shown to have prevented the States from discharging their functions or to have impeded them in so doing. They may have less money available for public purposes because they have to pay the tax, but that could be said in every case in which a tax is imposed on the States, and in itself it cannot amount to an impediment against State activity sufficient to invalidate the tax.

In Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373, the State of Western Australia challenged the validity of the Native Title Act 1993 (Cth). One argument was that the statute impermissibly hampered the capacity of States to govern, as it interfered with the States’ capacity to control the use of land by requiring the States to pay compensation for future diminutions or extinguishments of Aboriginal native title rights. The Court rejected the argument, and gave some clues to the sorts of laws that would breach this prohibition (at 481): The Act does not purport to affect the machinery of government of the State. The constitution of the three branches of government is unimpaired; the capacity of the State to engage the servants it needs is unaffected; the acquisition of goods and services is not impeded; nor is any impediment placed in the way of acquiring land needed for the discharge of the essential functions of the State save in one respect, namely, the payment of compensation.13

In Fortescue Metals Group v Commonwealth (2013) 250 CLR 548, the plaintiff alleged that the federal mining profits tax interfered impermissibly with the States’ control over their natural resources. The States are deemed to own the raw minerals buried in the ground within their borders. The impugned federal law (the MRRT legislation) 12 D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), p 643. 13

See also Fortescue Metals Group v Commonwealth (2013) 250 CLR 548, where the court found that the Minerals Resource Rent Tax Act 2012 (Cth) did not detract from, impair or curtail the capacities of the States to function. The legislation did not deny the capacity of any State to fix the rate of royalty for minerals extracted by miners, nor was there any burden upon a State attached to any decision by the State to raise or lower that rate.

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imposed a tax on mining profits after those profits reached a certain level. Mining companies could claim allowances, which reduced the assessable amount of profit, against State royalties paid (see [14.45]). This “immunities” argument was rejected. At [137], Hayne, Bell and Keane JJ stated: The MRRT Legislation does not impose any special burden or disability on the exercise of powers and fulfilment of functions of the States which curtails their capacity to function as governments. The MRRT Legislation does not deny the capacity of any State to fix the rate of royalty for minerals extracted by miners, and no burden upon a State attaches to any decision by the State to raise or lower that rate. If, as the plaintiffs asserted, the MRRT Legislation affects the States’ ability to use a reduction in royalty rate as an incentive to attract mining investment in the State, the MRRT Legislation does not impose any limit or burden on any State in the exercise of its constitutional functions.

The prohibition was not applied to invalidate a Commonwealth law until 1995 in Re Australian Education Union; Ex parte Victoria. This case, as noted earlier, concerned industrial proceedings before the Commonwealth Industrial Relations Commission between the Victorian government and a number of trade unions representing members of the Victorian public service, including teachers, police, health workers and administrative staff. The State of Victoria sought High Court orders to discontinue the proceedings before the Commonwealth Commission on the basis that any orders by the Commission would infringe the doctrine of implied State immunities. A number of other States as well as the Commonwealth intervened. As noted at [8.40], a “discrimination” argument was raised and rejected. A number of arguments were also raised with regard to the preservation of Victoria’s capacity to function as an independent government. First, counsel attempted to distinguish between a State’s “governmental” functions, which were said to be immune from any interference, and trading functions, which were not immune. Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ stated (at 230): We are unable to accept the distinction which the prosecutor drew between “governmental functions” and trading functions. The argument was that States function as a government when carrying out public functions for a public purpose. On this view, health, education and police functions are governmental functions. Indeed, it is difficult to see why, on this view, trading functions are not governmental, if they are undertaken by government in the public interest. The distinction is unsatisfactory for that reason.

Second, an attempt was made to draw a distinction between a State’s administrative staff and its other staff, with the former being immune from Commonwealth legislation.14 Again, the Court found the distinction too obscure to support, and that any such distinction was not sustainable on the basis of preserving a State’s capacity to function as a government. The Court went on to outline two areas of State immunity based on the preservation of independent governing capacity. First, the majority stated (at 232-​233): 14 The relevance of an “administrative services exception” had arguably been supported in obiter dicta in the earlier cases of R v Coldham; Ex parte Australian Social Welfare Union (1993) 153 CLR 297 at, for example, 313 and Re State Public Services Federation; Ex parte Attorney-​General (WA) (1993) 178 CLR 249 at 279 per Dawson J.

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It seems to us that critical to that capacity of a State is the government’s right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State’s rights in these respects would, in our view, constitute an infringement of the implied limitation. On this view, the prescription by a federal award of minimum wages and working conditions would not infringe the implied limitation, at least if it takes appropriate account of any special functions or responsibilities which attach to the employees in question. There may be a question, in some areas of employment, whether an award regulating promotion and transfer would amount to an infringement. That is a question which need not be considered. As with other provisions in a comprehensive award, the answer would turn on matters of degree, including the character and responsibilities of the employee.

Thus, the first specific immunity outlined in Australian Education Union is that the Commonwealth cannot interfere with a State’s right to choose who to hire, and a State’s right to fire someone on the grounds of redundancy. Therefore, an interim award which had been made by the Commonwealth Commission to prevent the Victorian Government’s termination of the employment of a number of health workers on the ground of redundancy was set aside. Under this immunity, it seems that the States are able to adopt socially regressive policies with regard to those that they hire and the term of an employee’s appointment, without, for example, breaching Commonwealth anti-​discrimination legislation.15 Dawson J in a separate opinion questioned the logic of the distinction drawn by the majority between hiring and firing practices and other working conditions of State employees (at 249-​250): If the determination of the number and identity of persons to be employed is critical to the functioning of a State, then so too will be the wages and conditions of employment, for the former cannot be determined in isolation from the latter, if only because of the budgetary considerations which constrain any government. It is obvious that if, for example, a State is required to pay a substantial increase in wages to its teachers (who are employed in significantly large numbers), it may have as much impact on the State’s budget and the implementation of its policies as an award prohibiting redundancies in that workforce.

A second area of immunity, relating to the employment conditions of people in the higher echelons of State government, was carved out by the majority in Australian Education Union (at 233): In our view, also critical to a State’s capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons shall be engaged. Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group. The implied limitation would protect the States from the exercise by the Commission of power to fix minimum wages and working conditions in respect of such persons and possibly others as well. [footnotes omitted]

15 Stone et al, n 3, pp 996-​997. See also Stellios, n 8, p 492.

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Dawson J also attacked the logic of the second identified area of immunity (at 250): It is similarly artificial to draw a line between those employed at the higher levels of government and those employed at the lower levels. To do so is merely to revive the distinction between industrial and non-​industrial functions which is of little relevance in the context of industrial disputes as they are now viewed. A State can function only through those whom it employs, whatever the level of employment, and the external regulation of the terms and conditions of employment of those employed at the lower levels may, if for no other reason than their numbers, be as destructive of the capacity of a State to function as an independent unit as the regulation of the terms and conditions of those employed at the higher levels.

The persuasiveness of Dawson J’s reasoning must be noted. However, Dawson J appeared to at least hint at a return to the wholesale immunity of State governments from the reach of the Commonwealth industrial relations power in s 51(xxxv), which would undermine the long-​standing ratio of Engineers. The identified areas of State immunity were unanimously upheld in Victoria v Commonwealth (ILO case) (1996) 187 CLR 416. In that case, Commonwealth laws regarding employment conditions were read down so as not to impact on the employment conditions of “higher level” State public servants, the hiring policies of States, the determination of the length of a State employee’s term of employment and the ability of States to sack people on the basis of redundancy.

Austin v Commonwealth: A reformulation of the test for State immunity? [8.55]  Austin v Commonwealth (2003) 215 CLR 185 concerned the constitutionality of 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), which had the effect of imposing a special superannuation regime on State judges, particularly New South Wales judges. The effect of the legislation was described thus by McHugh J (at 283-​284): Here the federal law discriminates against State judicial officers in a way that interferes in a significant respect with the States’ relationships with their judges. It interferes with the financial arrangements that govern the terms of their offices, not as an incidence of a general tax applicable to all but as a special measure designed to single them out and place a financial burden on them that no one else in the community incurs. The Commonwealth does not dispute that the relevant federal legislation treats the first plaintiff and other State judicial officers differently from the way federal laws concerned with the superannuation contributions surcharge deal with other “high income earners”. Private “high income earners” do not have the surcharge imposed on them. In their case, the surcharge is imposed on their superannuation provider. The federal legislation assumes –​no doubt with good reason –​that the surcharge will be passed on to the high income earner in his or her capacity as a member of the superannuation scheme in the form of reduced benefits. But in so far as the federal legislation deals with these private “high income earners”, it does not impose any surcharge on them personally. It does not make them liable to pay a debt of hundreds of thousands of dollars, as these federal laws make State judicial officers liable to pay. Similarly, federal judges –​as “high income earners” –​are treated differently by the federal legislation from State judicial officers. Federal judges incur no personal liability. When

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they leave office they do not have the burden of an accumulated debt arising from the imposition of the surcharge. Federal judges who are subjected to the surcharge merely have their pensions reduced at the time of each payment by a specified amount. Their position is very different from State judicial officers who are subjected to the surcharge.

The High Court majority found 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 in a joint judgment. They stated (at 248-​249): At some stages in the argument in the present case it was suggested to be sufficient to render the legislation invalid in its application to the first plaintiff and other State judicial officers that the legislation treated them differently to beneficiaries under the unfunded private sector schemes … and differently to Ch III judges, by imposing the taxation liability upon them rather than the provider of the benefits. This differential treatment was said, without more, to attract the Melbourne Corporation doctrine; the like was treated as the unalike and thereby the States were burdened in a “special way”. That would appear to give “discrimination” a standing on its own which in this field of discourse it does not have. There is, in our view, but one limitation, though the apparent expression of it varies with the form of the legislation under consideration. The question presented by the doctrine in any given case requires assessment of the impact of particular laws by such criteria as “special burden” and “curtailment” of “capacity” of the States “to function as governments”. These criteria are to be applied by consideration not only of the form but also “the substance and actual operation” of the federal law.

Later in their judgment, the Judges add (at 264): Though differential treatment may be indicative of infringement of the limitation upon legislative power with which the doctrine is concerned, it is not, of itself, sufficient to imperil validity. In its application to the first plaintiff, question 2(a) of the case stated asks whether either or both the Protected Funds Imposition Act and the Protected Funds Assessment Act are invalid on the ground that they so discriminate against New South Wales or so impose a particular disability or burden upon the operations and activity of that State as to be beyond the legislative power of the Commonwealth. That issue may be narrowed by asking whether that result comes about by a sufficiently significant impairment of the exercise by the State of its freedom to select the manner and method for discharge of its constitutional functions respecting the remuneration of the judges of the courts of the State. That requires consideration of the significance for the government of the State of its legislative choice for the making of provision for judicial remuneration. Having regard to what is said earlier in these reasons, particularly with reference to decisions of the Supreme Court of the United States and the Supreme Court of Canada, jurisdictions which share a common constitutional tradition with this country, that significance is to be taken as considerable.

Thus, these Judges indicated that there was only one true test of State immunity: does the law impair the capacity of the States or a State to function as a government? The law was found to breach that test. The test of “discrimination against the States or a State” was not, in itself, a separate test of immunity. Gleeson CJ agreed, stating (at 217 and 219): Discrimination is an aspect of a wider principle; and what constitutes relevant and impermissible discrimination is determined by that wider principle. In Queensland Electricity Commission, Mason J, in the course of explaining why the implied limitation on

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Commonwealth powers applies in relation to State agencies as well as States, said that the foundation for the implication is “the constitutional conception of the Commonwealth and the States as constituent entities of the federal compact having a continuing existence reflected in a central government and separately organized State governments”. Federal legislation that would be inconsistent with that conception includes, but is not limited to, legislation aimed at the destruction of the States or State agencies, or of one or more of their governmental attributes or capacity. Dawson J expressed the general proposition that arises by implication from the federal structure of the Constitution as being that “the Commonwealth Parliament cannot impair the capacity of the States … to function effectually as independent units”. He regarded discrimination, and the placing of a special burden on the States by a law of general application, as two examples of potential contravention of that limitation on power. A law which singles out a State or State agency may have as its object to restrict, burden or control State activity. Or a law of general application may so interfere with or impede State activity as to impose an impermissible burden on the exercise of its functions. It is not possible to state exhaustively every form of exercise of Commonwealth legislative power that might be contrary to the general proposition stated above. Just as the concept of discrimination needs to be understood in the light of the general principle, so also does the concept of burden. The adverse financial impact on the States of the pay-​ roll tax, or the fringe benefits tax, both of which were held valid, far exceeded the financial consequences of the laws held invalid in Melbourne Corporation or Queensland Electricity Commission. It was the disabling effect on State authority that was the essence of the invalidity in those cases. It is the impairment of constitutional status, and interference with capacity to function as a government, rather than the imposition of a financial burden, that is at the heart of the matter, although there may be cases where the imposition of a financial burden has a broader significance. It is plain, and was accepted in the Australian Education Union Case, that quite apart from the consideration that they are not employees, the conciliation and arbitration power does not extend to enable the Parliament directly or indirectly to dictate to the States the terms and conditions of engagement of judges. An attempt to do so would be an impermissible interference with the capacity of States to function as governments. For the same reason, the Parliament’s power to make laws with respect to taxation does not extend to enable it to legislate to single out State judges for the imposition of a special fiscal burden. Judges, like other citizens, are subject to general, non-​discriminatory taxation, and the mere fact that the incidence of taxation has a bearing upon the amount and form of remuneration they receive does not mean that federal taxation of State judges is an interference with State governmental functions. It is otherwise when, as here, a federal law with respect to taxation treats State judges differently from the general run of high income earners and federal judges, and to their practical disadvantage. That differential treatment is constitutionally impermissible, not because of any financial burden it imposes upon the States, but because of its interference with arrangements made by States for the remuneration of their judges. The practical manifestation of that interference is in its capacity to affect recruitment and retention of judges to perform an essential constitutional function of the State. Evidence of that capacity is to be found in the legislative response which the State of New South Wales was, in effect, forced to make. The Parliament could never have compelled the State of New South Wales to alter the design of its judicial pension scheme. Indeed, at the time of the Acts, the State judicial pension scheme was not materially different from the federal judicial pension scheme. But the State scheme was substantially altered as a result of the practical necessity that followed from the subjection of State judges to a discriminatory federal tax.

Kirby J dissented in the outcome (finding the legislation to be constitutional), but agreed regarding the reformulation of the tests of immunity. He stated (at 301):

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In so far as a difference has emerged in this case between the joint reasons and the reasons of McHugh J, I agree with the former that the two aspects of the implied limitation upon federal legislative power, noted in past decisions, are essentially manifestations of the one constitutional implication. Both are referable to the underlying conception concerning the nature of the Australian federation. I share the view that each identified defect is to be determined by reference to the effect of the impugned legislation on the continuing existence of the States, and whether there is an impermissible degree of impairment of the State’s constitutional functions. The presence of discrimination against a State may be an indication of an attempted impairment of its functions as the Constitution envisaged them. But any discrimination against States must be measured against that underlying criterion. It affords the touchstone of the implied limitation explained in the Court’s decision in Melbourne Corporation. It has been described as the “firm ground” upon which the reasoning in that case stands.

As with the joint judgment, Gleeson CJ and Kirby J indicate that there is only one essential test of State immunity, that of whether a law impairs a State’s ability to function as a government (or the ability of the States to so function). However, they both indicate that a law which invidiously discriminates against the States or a State is an example of such a law. A law which otherwise discriminates probably equates with a law which has a rational non-​discriminatory purpose. The joint judges also indicated, though less clearly, that most if not all laws that invidiously discriminate against a State will classify as a law that unduly impairs a State’s ability to function as a government. Such a conceptualisation of the two tests makes little practical difference. Under this conceptualisation, a law that impairs the States’ ability to function as a government (or a State’s ability to so function) is, as before, invalid insofar as it applies to the States or State. However, a law that impermissibly discriminates against the States or a State is also, as before, invalid to the extent that it applies to the State or a State. The reason for such invalidity is not because the law is per se discriminatory, but because it is classified as a law that impairs the States’ ability to function as a government. It seems as if the “discrimination” test has been relegated to become a “sub-​test” of the “government impairment” test. While the reasons for invalidity may have been reformulated, the constitutional outcome for a law that impermissibly discriminates against State governmental bodies is the same. McHugh J disagreed with the proposed reformulation of the tests of State immunity, though he pointed out that the reformulation may not result in any practical difference to the scope of federal power. He stated (at 281-​282): Given [the] long line of judicial exposition of the principle, I am unable to agree with that part of the reasons of the joint judgment that the Melbourne Corporation principle involves only “one limitation, though the apparent expression of it varies with the form of the legislation under consideration”. With respect, since Queensland Electricity Commission it has been settled doctrine that there are two rules arising from the necessary constitutional implication. It is true that the joint judgment of six members of this Court, including myself, in Re Australian Education Union; Ex parte Victoria said that it was unnecessary in that case to decide whether “there are two implied limitations, two elements or branches of one limitation, or simply one limitation”. But that statement provides no basis for rejecting the statement of Mason J in Queensland Electricity Commission that “the principle is now well established and that it consists of two elements”. Nor does it provide any basis for rejecting the statement of Gibbs CJ in the same case that “it is clear, however, that there are two

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distinct rules, each based on the same principle, but dealing separately with general and discriminatory laws”. Perhaps nothing of substance turns on the difference between holding that there are two rules and holding that there is one limitation that must be applied by reference to “such criteria” as “special burden” and “curtailment” of “capacity” of the States “to function as governments”. If there is a difference in content or application, it may lead to unforeseen problems in an area that is vague and difficult to apply. If there are no differences, no advantage is to be gained by jettisoning the formulation of Mason J in Queensland Electricity Commission.

McHugh J went on to find that the legislation was invalid in its application to State judges as it impermissibly singled them out for special burdens. The reformulation of the test for State immunity from Commonwealth laws in Austin was endorsed by the High Court in Clarke v Commissioner of Taxation [2009] HCA 33, which was essentially a sequel to Austin. The High Court found the same federal legislation as had been at issue in Austin to be constitutionally invalid in respect of its application to the superannuation entitlements of the members of State legislatures. As in Austin, the federal legislation imposed a special regime on the superannuation entitlements of higher level members of State governments, such as parliamentarians, compared to other superannuation entitlements. The discriminatory impact of the laws was not however decisive. In reasoning that strongly echoed that in Austin, the law was held to impermissibly curtail the capacities of the States to function because it deprived the States of their autonomy in making decisions about the remuneration of their parliamentarians. French CJ, in a concurring judgment, outlined six factors which he believed were relevant to the application of implied limitation (at [34]):

1. Whether the law in question singles out one or more of the States and imposes a special burden or disability on them which is not imposed on persons generally.



2. Whether the operation of a law of general application imposes a particular burden or disability on the States.

3. The effect of the law upon the capacity of the States to exercise their constitutional powers.

4. The effect of the law upon the exercise of their functions by the States.



5. The nature of the capacity or functions affected.



6. The subject matter of the law affecting the State or States and in particular the extent to which the constitutional head of power under which the law is made authorises its discriminatory application.

The Chief Justice added that none of those factors were decisive in determining whether the implied immunity applied. He stated, again at [34], that case law had indicated that the existence of discrimination (that is, point 1) was significant, “weighed together with the effects of such a law” on the “capacities and functions” of the State or States. He concluded in that paragraph: “[t]‌he fact that a law is of general application may make it more difficult to demonstrate, absent operational discrimination in its impact upon the States, that it transgresses the limitation”. The other judges neither accepted nor rejected the Chief Justice’s approach. However, the approach does not seem controversial: it seems to fairly represent the case law to date.

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STATE LEGISLATIVE POWER OVER THE COMMONWEALTH Reciprocity [8.60] The Engineers ratio established that Commonwealth legislation could bind State government instrumentalities. In obiter dicta, the majority stated (at 155): The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation fully operational within their respective areas and subject matters but, in case of conflict, giving to valid Commonwealth legislation the legislative supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of s 109.

This reciprocal principle was applied in Pirrie v McFarlane (1925) 36 CLR 170, where a Commonwealth soldier was found to be bound by State traffic legislation while driving on a State road in the exercise of his employment duties. In Uther v FCT (1947) 74 CLR 509, the Court held that ss 282 and 297 of the Companies Act 1936 (NSW) could diminish the Commonwealth’s prerogative right of priority as a creditor to be paid in full before the payment of other creditors.

The folly of Cigamatic: Reciprocity abandoned [8.65]  This neat reciprocity was abandoned by the Court in Commonwealth v Cigamatic Pty Ltd (in Liquidation) (1962) 108 CLR 372. Cigamatic was an insolvent corporation which owed money to the Commonwealth. Sections 282 and 297 of the Companies Act 1936 (NSW) dictated the order in which creditors would be paid off. The Commonwealth was entitled to priority only in respect of unpaid income tax. At common law, the Commonwealth would have been entitled to priority in respect of all of Cigamatic’s debts to the Commonwealth. The Commonwealth sought to have its common law prerogative priority respected, and claimed it was exempt from ss 282 and 297.16 Thus, the case concerned the same issues as Uther. As mentioned, the applicability of ss 282 and 297 to the Commonwealth was upheld in that case. However, Dixon J had issued a vigorous dissent in Uther, which was approved by the majority in Cigamatic. In Uther (where he explained his reasons more comprehensively than in Cigamatic), Dixon J stated (at 528): We are here concerned with nothing but the relation between the Crown in right of the Commonwealth as a creditor for public moneys and the subjects of the Crown as creditors for private moneys. There are no conflicting claims between State and Commonwealth. The conflict is between the Commonwealth and its own subjects. What title can the State have to legislate as to the rights which the Commonwealth shall have as against its own subjects? The fact that the priority claimed by the Commonwealth springs from one of the prerogatives of the Crown is an added reason, a reason perhaps conclusive in itself, for saying that it is a matter lying completely outside State power. But there is the antecedent consideration that to define or regulate the rights or privileges, duties or disabilities, of the Commonwealth in relation to the subjects of the Crown is not a matter for the States.

16 See, on prerogative rights, [5.45].

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Thus, Dixon J expressed the opinion that the States had no power to regulate the rights and duties of the Commonwealth. Indeed, he stated (at 529): A federal system is necessarily a dual system. In a dual political system you do not expect to find either government legislating for the other.

His Honour was not, however, returning to the pre-​ Engineers position of comprehensive intergovernmental immunity. The Commonwealth, in his view, indeed had power to regulate the States gained from the “affirmative grants of power” in the Constitution. The States, in contrast, were granted no express power over the Commonwealth, as Dixon J explained (at 530): It is a fundamental constitutional error to regard the question of the efficacy of s 282 of the Companies Act 1936 of New South Wales as if it were an exercise of an express grant, contained in the Constitution, to the States of a power to make laws with respect to the specific subject of the winding up of insolvent companies. It is a provision enacted in intended pursuance of a general legislative power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever. The content and strength of this power are diminished and controlled by the Commonwealth Constitution. It is of course a fallacy, in considering what a State may or may not do under this undefined residuary power, to reason from some general conception of the subjects which fall within it as if they were granted or reserved to the States as specific heads of power. But no fallacy in constitutional reasoning is so persistent or recurs in so many and such varied applications. In the present case the fallacious process of reasoning could not begin from s 107 as the error has so commonly done in the past. For it is not a question whether the power of the Parliament of a Colony becoming a State continues as at the establishment of the Commonwealth. The Colony of New South Wales could not be said at the establishment of the Commonwealth to have any power at all with reference to the Commonwealth. Like the goddess of wisdom the Commonwealth uno ictu sprang from the brain of its begetters armed and of full stature. At the same instant the Colonies became States; but whence did the States obtain the power to regulate the legal relations of this new polity with its subjects? It formed no part of the old colonial power. The Federal constitution does not give it.

Thus, the States had no power over the Commonwealth as their powers, according to s 107 of the Constitution, were those possessed by the Australian colonies before federation. Prior to federation, the Commonwealth did not exist so the States could not be said to have gained power over the Commonwealth under s 107. As no express power over the Commonwealth is granted to the States in the Constitution, Dixon J reasoned that no such power existed. However, such power is arguably implicitly conferred. After all, the States have undisputed legislative power over numerous entities, such as individuals and corporations, that did not exist at federation.17 Dixon J in Uther concluded (at 531): Such a prerogative right [of debt priority] of the Crown is exercisable by the Executive Government of the Commonwealth. It may be relinquished or modified by and with the consent of the Parliament of the Commonwealth. But from its very nature it must be outside the power of a State to detract from it.

17 See R P Meagher and W M C Gummow, “Sir Owen Dixon’s Heresy” (1980) 54 Australian Law Journal 25 at 28.

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Dixon J’s view in Uther on the inapplicability of ss 282 and 297 to the Commonwealth Crown was upheld by the majority in Cigamatic. The actual scope of Cigamatic has been the subject of vigorous academic debate,18 though the dominant view for many years was that the case authorised broad Commonwealth immunity from State laws.19 In particular, the States could not “control the rights and legal duties between the Commonwealth and its people” (Dixon CJ in Cigamatic at 377). The notion of broad Commonwealth immunity was justified by Dixon J in Uther as arising from Australia’s “dual system”. However, it is ironic that the result of Cigamatic was to create a lopsided system where the Commonwealth was largely immune from State laws while the States had little immunity.20 An alternate justification by Dixon J was that the Commonwealth was conferred supremacy by the Constitution under s 109. However, it may be persuasively argued against Commonwealth immunity that s 109 provides a mechanism for the Commonwealth to immunise itself if it so desires. In Australian Postal Commission v Dao (1985) 63 ALR 1, McHugh JA, then in the Court of Appeal of New South Wales, argued that broad Commonwealth immunity was justified on the basis of democratic principles. The Commonwealth represented all of the people in Australia, and therefore all of the people in the States. It was therefore democratic for the Commonwealth to legislate with regard to State governments. The reverse was not true, as McHugh JA stated (at 33): The people of the Commonwealth are not represented in the Parliament of an individual State. In uniting in a federal Commonwealth, the people of Australia cannot be taken as assenting to a Parliament of part of the people binding the Commonwealth, that is to say, “the people” of the whole of Australia. To permit the Parliament of a State to legislate for the Commonwealth is in effect to permit the part to diminish the sovereignty of the whole.

However, there are convincing policy arguments against broad Commonwealth immunity. First, the federal government is an influential actor in social and economic affairs, so its exclusion from the ambit of State legislation seriously undermines the effectiveness of that legislation.21 Second, broad immunity appears to undermine one of the planks of the rule of law, that government should be subjected to the same law as the people (see [1.20]). The “peace, order and good government” of the Commonwealth surely presupposes the peace, order and good government of the component States.22 Order cannot be easily maintained if the Commonwealth is immune from laws which seek to preserve that order. Third, the broad-​based immunity enunciated in Cigamatic generated unwieldy and confusing exceptions to that immunity. These exceptions are explored in the ensuing sections.

18 See, for example, Stellios, n 8, p 527. 19 See H P Lee, “Commonwealth Liability to State Law –​The Enigmatic Case of Pirrie v McFarlane” (1987) 17 Federal Law Review 132 at 136-​137. 20 See Stellios, n 8, p 531. 21

L Zines, The High Court and the Constitution (4th ed, Butterworths, Chatswood, 1997), p 364.

22 Lee, n 19, p 139.

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The “affected by” doctrine [8.70]  One exception to the broad immunity conferred on the Commonwealth is often referred to as the “affected by” doctrine. This term stems from the opening words of the following statement by Dixon J in FCT v Official Liquidator of E O Farley Ltd (1943) 63 CLR 278 (at 308): In many respects the executive government of the Commonwealth is affected by the condition of the general law. For instance, the general law of contract may regulate the formation, performance, and discharge of the contracts which the Commonwealth finds it necessary to make in the course of the ordinary administration of government. … There is, however, a clear distinction between the general law, the content or condition of which, though a matter for the legislatures of the States, may incidentally affect Commonwealth administrative action, and, on the other hand, the governmental rights and powers belonging to the Federal executive as such.

In Cigamatic, Dixon CJ distinguished ss 282 and 297 of the Companies Act 1936 (NSW) from the type of legislative power that the States could exercise over the Commonwealth (at 378):23 it is a question of State legislative power affecting to control or abolish a federal fiscal right. It is not a question of the authority of the power of a State to make some general law governing the rights and duties of those who enter into some description of transaction, such as the sale of goods, and of the Commonwealth in its executive arm choosing to enter into a transaction of that description.

Further judicial endorsement of the “affected by” doctrine came from Fullagar J in Commonwealth v Bogle (1953) 89 CLR 229. In that case, Bogle was a tenant in a migrant hostel. In 1952, Commonwealth Hostels Ltd took over the running of the hostel, and tried to raise Bogle’s rent. Bogle argued that the rent increase was illegal under Victorian legislation which imposed a price ceiling on the provision of board and lodging. The Court ultimately found that Commonwealth Hostels Ltd was not a Crown instrumentality, and was therefore bound by the Victorian legislation. In obiter however, the majority supported the notion of Commonwealth immunity from State laws regulating the rights of landlords and tenants. Fullagar J stated (at 260): the State Parliament has no power over the Commonwealth. The Commonwealth –​or the Crown in right of the Commonwealth, or whatever you choose to call it –​is, to all intents and purposes, a juristic person, but it is not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament.

Fullagar J went on to support the “affected by” exception to this immunity (at 260): The Commonwealth may, of course, become affected by State laws. If, for example, it makes a contract in Victoria, the terms and effect of that contract may have to be sought in the Goods Act 1928 (Vic) … But I should think it impossible to hold that the Parliament of Victoria could lawfully prescribe the uses which might be made by the Commonwealth of its own property, the terms upon which that property might be let to tenants, or the terms upon which the Commonwealth might provide accommodation for immigrants introduced into Australia.

23 See also Dixon J in Uther v FCT (1947) 74 CLR 509 at 528.

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The gist of the “affected by” exception is that State law will “affect” the Commonwealth executive when it chooses to enter into transactions governed by the “general law” of the State. However, numerous problems arise with this “affected by” doctrine. First, how does one identify the transactions to which it applies? The examples given in the above excerpts concern entry into contracts, such as contracts for the sale of goods. However, in Bogle, one might wonder why a contract between the Commonwealth as landlord and Bogle as tenant was not a relevant “transaction” for the purposes of the “affected by” test. Second, what is “the general law” of a State? It clearly does not include all of a State’s laws. In E O Farley, Dixon J distinguished a State’s general law from law which affected the Commonwealth’s “governmental rights and powers”. Dixon J appears to be saying that the State law may “affect” the Commonwealth when it acts like an ordinary citizen, but may not “affect” the Commonwealth when it is acting as a government. The cases suggest that the Commonwealth is not acting as a government when it enters contractual relations, but is acting as a government when it lets accommodation to immigrants. This distinction between governmental and other functions was rejected in the reciprocal immunities context by the Court in Australian Education Union.24 The “affected by” doctrine was never fully developed by the Courts, largely because a more precise exception was uncovered in the mid-​1970s.

Section 64 of the Judiciary Act [8.75]  Section 64 of the Judiciary Act 1903 (Cth) states: In any suit to which the Commonwealth or a State is a party, the rights of the parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

The bare words of s 64 indicate that the Commonwealth is bound by the ordinary law governing private individuals whenever it is engaged in a “suit”; this ordinary law includes federal law, common law and of course State law. Section 64 appears to amount to a legislative submission by the Commonwealth to State legislative authority.25 Such was the interpretation given to s 64 by the Court in Maguire v Simpson (1977) 139 CLR 362. In that case, the Commonwealth Trading Bank, which represented the Crown in right of the Commonwealth, commenced proceedings to recover a debt. Other creditors argued that the Commonwealth’s claim was barred under the Limitations Act 1969 (NSW). The Court accepted that the application of s 64 meant that the Bank’s procedural and substantive rights were governed by the same laws which governed a private litigant in the same situation. Thus, the Bank’s right to recover the debt had been extinguished by the New South Wales Act. Mason J distinguished Maguire from Cigamatic, and exposed another nail in the coffin of the logic of Cigamatic (at 402):26

24 See also Stellios, n 8, p 528. 25 J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (8th ed, Butterworths, Chatswood, 2009), p 659. 26 See also Jacobs J at 404.

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In the view I take of this case I have no occasion to consider the doctrine which was enunciated in The Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372. However, I should point out that no mention was made of s 64 in that case, although there seems to be no reason why it should not have had an application if it extended to substantive rights. None the less, as the section was not argued I do not regard the decision as constituting authority for the proposition that the section does not apply to substantive rights.

The Maguire interpretation of s 64 was confirmed in Commonwealth v Evans Deakin Industries (1986) 161 CLR 254, where the Commonwealth was held to be bound by statutory duties to subcontractors under the Subcontractors’ Charges Act 1974 (Qld). The Court confirmed that s 64 applied as soon as the Commonwealth became a party to any suit, whether it reached the point of actual litigation or not. Section 64 appears capable of removing much of the immunity apparently conferred upon the Commonwealth by the Cigamatic decision. There are, however, a number of limitations to its applicability. The meaning of the words “as far as possible” in s 64 has never been crucial in any case. Gibbs CJ, Mason, Wilson, Deane and Dawson JJ stated with regard to these words in Evans Deakin (at 264-​265): It is unnecessary to consider for present purposes whether in some cases at least it would be right to consider the special position of the Crown, but this is not a case of that kind. Here the Commonwealth, in entering into a building contract, was not performing a function peculiar to government; it was making a contract of a kind commonly entered into by ordinary members of the public and the determination of the rights and liabilities of the Commonwealth by reference to the Subcontractors’ Charges Act would not be incompatible with the position of the Commonwealth or detrimental to the public welfare.

The Court therefore does allude to the possibility that certain “governmental” functions of the Commonwealth might be exempted from the scope of s 64. The earlier case of Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 may provide an example. In that case, the Court found that no action for negligence could be brought against the Commonwealth for acts done in the course of naval and military operations against an enemy. This may be a scenario where the duties of the Commonwealth cannot be equated at all with those of its subjects, so s 64 would not apply.27 Section 64 was not raised in the Shaw Savill case, which was essentially decided on the basis of tort law. Section 64 is also contained in ordinary legislation, and can therefore be repealed by an ordinary Act of Parliament. An attempt to amend s 64 was thwarted in 1990 by Senate opposition. It may be queried how s 64, mere legislation, could override immunity conferred upon the Commonwealth by the Constitution. In Chaplin v Commissioner of State Taxation (1911) 12 CLR 375, the Court decided in the early days of comprehensive intergovernmental immunity that the Commonwealth Parliament could pass legislation to waive the constitutional immunities of the Commonwealth executive.28 In Bogle, one of Fullagar J’s justifications for Commonwealth immunity from the Victorian price-​ceiling legislation was (at 259) that the Commonwealth had

27 Stellios, n 8, p 546. 28 Stone et al, n 3, pp 996-​997.

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not “assented” to the application of the statute. Section 64 of the Judiciary Act 1903 could have constituted the relevant “assent”. A final obvious limitation to the efficacy of s 64 is that it does not apply in the context of the criminal law, as criminal matters are not “suits”.

The criminal law exception [8.80] In Pirrie v McFarlane (1925) 36 CLR 170, a State criminal law was held to bind a Commonwealth officer. In that case, a Commonwealth RAAF officer was held liable under Victorian law for driving on a road without a licence. Though no mention of Pirrie is made in Cigamatic, the cases appear to be incompatible. Therefore, it might be thought that Pirrie was overruled by Cigamatic. However, in A v Hayden (1984) 156 CLR 532, the ghost of Pirrie v McFarlane stirred. Hayden concerned the prosecution of various agents from the Australian Intelligence Security Services (ASIS) for the commission of offences during a training exercise at the Sheraton Hotel. The case strictly concerned an injunction sought by ASIS agents to restrain the Commonwealth from revealing their identities to the Victorian police. The Court refused to grant the injunction. At no stage in the Hayden decision does the Court entertain the prospect that the ASIS agents themselves were immune from Victorian criminal law, though Mason J did acknowledge (at 550) the immunity of the Commonwealth itself. Neither Pirrie nor Cigamatic were cited in the case. In a subsequent Royal Commission into the Sheraton Hotel incident, the Royal Commissioner declared unequivocal support for the continuing authority of Pirrie v McFarlane, and made no mention of Cigamatic.29 Hayden was followed by the Supreme Court of Queensland in Coco v Newnham (1990) 97 ALR 419. It is unlikely that Pirrie can somehow fall within the “affected by” doctrine. One can hardly describe an incident of unlicensed driving as a “transaction” freely entered into by a Commonwealth officer.30 Professors Howard and Zines had suggested that the Commonwealth is immune from State criminal laws, but its servants, such as McFarlane and the ASIS agents, are not.31 However, the distinction must be considered illusory. The Commonwealth can only act through its servants. There are very few occasions when a prosecutor would seek to pursue the Commonwealth rather than its servants. In civil cases, the Commonwealth might be pursued due to its deep pockets. In criminal law, the inability of a Commonwealth servant to pay a fine is offset by the possibility of incarcerating that servant (a possibility not available for the Commonwealth as a juristic entity). It may only make sense to pursue the Commonwealth if the relevant servants concerned in the alleged criminal conduct have left the jurisdiction, or are dead. As foreshadowed by H P Lee in 1987, the reconciliation between Pirrie and Cigamatic has arisen from a reinterpretation of the latter case, rather than the former.32 This 29

Royal Commission on Australia’s Security and Intelligence Agencies: Report on the Sheraton Hotel Incident (1984), p 57. See also Lee, n 19, p 132.

30 Lee, n 19, p 134; Stellios, n 8, pp 535-​537. However, cf Jacobsen v Rogers (1995) 182 CLR 572 at 591. 31

C Howard, Australian Federal Constitutional Law (3rd ed, Law Book Company, North Ryde, 1985), p 224; Stellios, n 8, p 537.

32 Lee, n 19, p 135.

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reinterpretation finally occurred in 1997 in the Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 (Residential Tenancies Tribunal case).

A reformulation of Cigamatic: The Residential Tenancies Tribunal case [8.85] In Residential Tenancies Tribunal, the Court took an opportunity to reconsider the scope and meaning of the Cigamatic decision. The result has in some ways clarified matters by reinterpreting Cigamatic so as to largely reinforce the existence of State legislative power to bind the Commonwealth. This in turn has reduced the need for exceptions such as the “affected by” doctrine or s 64. On the negative side, Residential Tenancies Tribunal has not clarified the actual extent of Commonwealth immunity, the outer edges of which remain decidedly fuzzy. The Defence Housing Authority (DHA) is a Commonwealth instrumentality established under the Defence Housing Authority Act 1987 (Cth). The landlord of a property leased to the DHA sought to inspect the premises under s 24 of the Residential Tenancies Act 1987 (NSW). The DHA refused, so the owner sought orders from the New South Wales Residential Tenancies Tribunal (RTT) to permit entry and inspection. The High Court had to consider whether the Tribunal, a New South Wales body created under New South Wales statute, could exercise jurisdiction over the DHA. Section 64 was inapplicable to proceedings before the RTT, as it was an administrative tribunal and not a court, and tribunal proceedings are not “suits”.33 The majority justices found that the DHA was in fact bound to submit to the jurisdiction of the RTT.34 The whole Court finally took the opportunity to reconsider the meaning of Cigamatic. A majority, consisting of the joint judgment of Dawson, Toohey and Gaudron JJ (at 438-​439), and the separate judgment of Brennan CJ (at 424), found that the State Parliaments could not legislate so as to affect the capacities and functions of the Commonwealth, but that they could bind the Commonwealth in the exercise of those capacities. It is stated in the joint judgment (at 439): The purpose in drawing a distinction between the capacities of the Crown and the exercise of them is to draw a further distinction between legislation which purports to modify the nature of the executive power vested in the Crown –​its capacities –​and legislation which assumes those capacities and merely seeks to regulate activities in which the Crown may choose to engage in the exercise of those capacities.

How does one distinguish a law which affects the Commonwealth’s capacities from one which affects the exercise of the capacities? The distinction is clearly crucial for the majority, as the State may pass laws of the latter type, but not the former. The joint justices traced the source of this distinction to Dixon J in Cigamatic and Uther at (442-​443): 33 See A Robertson SC, “Commentary” (1998) 17 Australian Bar Review 45 at 46, and M Gladman, “Re the Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410: States’ Power to Bind the Commonwealth” (1999) 27 Federal Law Review 151 at 154. 34 Kirby J dissented, but for a reason unrelated to implied Commonwealth immunity. He decided that the New South Wales Act was inconsistent with the Commonwealth Act insofar as it purported to bind the Defence Housing Authority.

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Both in Uther and Cigamatic a distinction is drawn between State laws affecting Commonwealth executive capacities and State laws of general application regulating activities carried on by the Crown in the exercise of those capacities in the same manner as its subjects. Thus in Uther Dixon J said: The fact that the priority claimed by the Commonwealth springs from one of the prerogatives of the Crown is an added reason, a reason perhaps conclusive in itself, for saying that it is a matter lying completely outside State power. But there is the antecedent consideration that to define or regulate the rights or privileges, duties or disabilities, of the Commonwealth in relation to the subjects of the Crown is not a matter for the States. General laws made by a State may affix legal consequences to given descriptions of transaction and the Commonwealth, if it enters into such a transaction, may be bound by the rule laid down. Similarly, in Cigamatic, Dixon CJ said: If, as in modern times I think it is more correct to do, you describe [the prerogative of the Crown to priority in the payment of debts] as a fiscal right belonging to the Commonwealth as a government and affecting its Treasury, it is a question of State legislative power affecting to control or abolish a federal fiscal right. It is not a question of the authority o[r]‌the power of a State to make some general law governing the rights and duties of those who enter into some description of transaction, such as the sale of goods, and of the Commonwealth in its executive arm choosing to enter into a transaction of that description. … In truth it imports a principle which if true would apply generally with respect to the legal rights of the Commonwealth in relation to its subjects. In that passage Dixon CJ spoke of the legal rights of the Commonwealth in relation to its subjects. Sometimes that relationship will be one of equality: for example, the capacity of the Crown to enter into contracts is no more or less than that of its subjects. Sometimes the relationship will be one of privilege or immunity on the part of the Crown alone: for example, the right to the payment of debts in priority to others. Where the relationship is one of privilege or immunity it is immediately apparent that any diminution of the privilege or immunity will alter the relationship of the Crown with its subjects. But it is equally so when the relationship is one of equality and the Crown is singled out and treated differently, for the relationship then ceases to be one of equality. When Dixon CJ spoke of general laws he meant laws of general application which bind the Crown and its subjects alike. Such laws are laws which do not have an impact upon any relationship of equality. But a State law which discriminates against the Commonwealth government and imposes a disability upon it will have an impact upon such a relationship and will constitute an interference with its executive capacities.

Thus, a purpose behind the protection of Commonwealth capacities is to preserve the pre-​existing legal relationship between the Commonwealth and its subjects. A “general” State law which affects the Commonwealth and its subjects equally is apparently a law which does not affect capacities. The joint justices gave two examples of laws which would fundamentally alter the Commonwealth’s relationship with its subjects. First, the States may not single out the Commonwealth, a rule which is analogous to the rule applied to the Commonwealth in the State Banking case and Queensland Electricity Commission. Second, the States may not affect the Commonwealth’s unique powers, privileges or immunities under s 61. Those powers are the Commonwealth’s exclusive prerogative powers or the executive powers conferred by statute. Alternatively, the joint justices indicate that alteration of other common law powers of the executive, such as the power to enter into contracts, is

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permitted, as that is a capacity shared equally with the Commonwealth’s subjects, so long as the relevant State law has a general rather than discriminatory application.35 Executive powers conferred by statute can be protected by s 109: any State statute which purported to alter power conferred by a Commonwealth statute on the Commonwealth executive would likely be inconsistent and thus inoperative to the extent of that inconsistency.36 Therefore, the issue of Commonwealth immunity is more likely to arise with respect to alteration of its prerogative powers or immunities. Alteration of a prerogative immunity enlivened both the Uther and Cigamatic cases. In Residential Tenancies Tribunal, the powers and functions of the DHA were conferred by a statute. As the Court, apart from Kirby J, found no inconsistency between the State and Commonwealth statutes, they found that the DHA could in fact be bound by State law. The result of the case, therefore, indicates that Commonwealth bodies will rarely be held immune from State laws in the exercise of their statutory powers in the absence of s 109 inconsistency.37 Brennan CJ’s definition of “capacities” may not have been exactly the same as that of the joint justices,38 so it is unclear whether there are other examples of laws which affect the Commonwealth’s capacities, as opposed to those that affect its exercise of capacities. This uncertainty unfortunately means that the scope of Commonwealth immunity from State law remains unclear, as the distinction between the Commonwealth’s capacities and their exercise is problematic. Indeed McHugh J, with whom Gummow J agreed on this point, rejected the distinction (at 454-​455): It follows from Cigamatic that, once the executive power of the Commonwealth arising from s 61 of the Constitution has authorised a relationship creating rights and duties, a State has no power to alter that relationship even by a law that operates generally within the State. I do not think that the validity of this proposition turns on any distinction between the capacities of the Commonwealth and the exercise of them. It is not a distinction which I find illuminating in this constitutional context. Nor can I see anything in the judgment of Dixon CJ in Cigamatic which supports such a distinction. The executive capacity of the Commonwealth can only mean its legal right or power to do or refrain from doing something. I cannot see any constitutional rationale for a doctrine that would hold, for example, that the States cannot prevent the Commonwealth from entering into a specific class of contract but can alter the legal rights and obligations of the Commonwealth and the subject once they have entered into a contract of that class. Moreover, the distinction between a capacity of the Commonwealth and its exercise is not easily drawn. If a State law prevents the Commonwealth from using its contractual right to forfeit a lease or terminate an employment, is the State law fettering a Commonwealth capacity or only the exercise of it?

However, the judgments of McHugh and Gummow JJ are even more problematic than that of the majority.39 They appear to endorse a broader doctrine of Commonwealth 35 See [5.45]-​[5.55], for discussion of the prerogative and other (non-​unique) common law powers of the executive. 36 See, for example, Dawson, Toohey and Gaudron JJ at 440, McHugh J at 455 and Gummow J at 470. 37 See Gladman, n 33, pp 159-​160. This was certainly the finding of McHugh J at 459, Gummow J at 470 and Kirby J at 504. 38 Gladman, n 33, p 158. 39 See also B Selway QC, “Commentary” (1998) 17 Australian Bar Review 42.

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immunity, which might, for example, protect the Commonwealth’s common law powers beyond its unique prerogative powers.40 They also, however, supported the “affected by” exception, which sufficed to bring the DHA within the jurisdiction of the RTT. In short, these two Justices maintained the confusing line of reasoning that had emerged with Dixon J in Uther and been approved by the majority in Cigamatic. Kirby J adopted the narrowest interpretation of Commonwealth immunity. First, he rejected (at 508) the correctness of Cigamatic, feeling it should be “reverently laid to rest”. Rather, his Honour said that the scope of Commonwealth immunity from State law was the same as State immunity in the reciprocal situation. The Commonwealth was only therefore immune from laws which discriminated against it, and laws which impaired the Commonwealth’s integrity or autonomy. Thus, for Kirby J, the “conceptual foundation” of Commonwealth immunity “lies in the principle underlying Melbourne Corporation, not Cigamatic” (at 509). In the opinion of these authors, Kirby J’s approach to Commonwealth immunity in Residential Tenancies Tribunal is to be preferred. First, its adoption would wipe out Cigamatic, the logic of which has never seemed tenable in either constitutional law or policy. Second, it is far easier to understand and to apply than the approaches of the other justices.41 Unfortunately, Kirby J was in a minority of one in choosing to overrule Cigamatic. However, it may be that the effect of the joint judgment, and possibly that of Brennan CJ, is very similar to that of Kirby J. The examples given by the joint justices of laws affecting “capacities” are very similar to the types of laws prohibited by Melbourne Corporation in the context of Commonwealth laws binding States. The prohibition on discriminatory laws appears to be exactly the same. The prohibition on laws affecting the Commonwealth’s prerogative powers does not provide such an exact analogy with the prohibition on Commonwealth laws which impede the capacity of the States to function. For example, while the Residential Tenancies Tribunal majority would prohibit laws which affect the Commonwealth’s prerogative right of priority, it is difficult to classify the States’ parallel prerogative right of priority as a right which must be preserved in order to maintain the States’ autonomy and integrity. Indeed, there is no doubt that the Commonwealth can legislate to alter at least some of the States’ prerogative rights.42 The majority justices in Residential Tenancies Tribunal rejected the long-​ favoured notion that Cigamatic established broad Commonwealth immunity from State laws. Rather, the majority recast the Cigamatic principle so as to confirm a much narrower zone of immunity upon the Commonwealth. Indeed, the joint justices went so far as to reject the accuracy of Fullagar J’s dictum in Bogle (see [8.70]), which seemed to unambiguously endorse broad immunity. The zone of Commonwealth immunity is now so narrow that the “affected by” doctrine probably serves no real purpose, as it was conceived as an exception to broad Commonwealth immunity. Alternatively,

40 See, for example, McHugh J at 455. See also [5.50]. 41 See I Mescher, “Wither Commonwealth Immunity” (1998) 17 Australian Bar Review 23 at 40-​41. 42

See Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 (see, for example, Mason J at 93).

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the principle that the Commonwealth may permissibly be “affected by” general State laws may have been recast as the principle that the State may “affect” the Commonwealth in the exercise of its capacities: the difference may be one of mere terminology. Certainly, the latter test may be no easier to apply than the former.43 The narrow reading of Cigamatic in Residential Tenancies Tribunal helps to explain why Pirrie v McFarlane survived Cigamatic: a law which required a Commonwealth defence officer to hold a valid licence did not affect the Commonwealth’s capacities. Brennan CJ expressly endorsed the continuing validity of Pirrie (at 428): It follows that, absent Commonwealth statutory authority, the Crown in right of the Commonwealth cannot authorise its servants or agents to perform their functions in contravention of the criminal laws of a State and cannot confer immunity upon them if, in performing those functions, they contravene those laws. For that reason, Pirrie v McFarlane was, in my respectful opinion, rightly decided.

Nonetheless, Brennan CJ appears to be confining Pirrie to the principle that State criminal laws can bind Commonwealth servants, rather than the Commonwealth itself. We await a case which finally decides whether State criminal laws can possibly bind the Commonwealth as a juristic entity. As noted at [8.80], such a prosecution would rarely be necessary. Finally, the relationship between Residential Tenancies Tribunal immunity and s 64 was not discussed. It is uncertain whether s 64 acts as a legislative submission by the Commonwealth to be bound in civil suits within the narrower zone of immunity. If laws which affect the “capacities” of the Commonwealth are confined to the examples given by the joint justices, the rights of the Commonwealth and its subjects under such laws in a relevant suit would be different, so the “as far as possible” qualification in s 64 might operate to exclude its applicability.

CONCLUSION [8.90]  The theoretical boundaries of State immunity from Commonwealth laws are reasonably clear, though there is certainly some ambiguity in the practical application of the two identified implied immunities. Regarding the prohibition on discriminatory laws, the test has been made more complex by the High Court’s recognition of the phenomenon of indirect discrimination, as well as its acceptance that some discrimination is indeed rational and permissible. Further, the parameters of the “States’ capacity” prohibition are yet to solidify to any real extent. Finally, the apparent conflation of the two Melbourne Corporation tests into one test in Austin may have few if any practical consequences for the constitutional scope of State immunities from federal laws. The law regarding Commonwealth immunity from State laws is in unfortunate disarray, caused largely by the disruptive jurisprudence of Cigamatic. The High Court missed a golden opportunity to clarify the law in Residential Tenancies Tribunal. While the doctrine in Cigamatic has been narrowed, the parameters of Commonwealth immunity, both theoretical and practical, unfortunately remain unclear.

43 Mescher, n 41, p 40.

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Chapter 9

Excise Duties [9.10] [9.15]

[9.45]

[9.75]

DEFINITION OF A “TAX”................................................................................................................. 350 THE BROAD AND NARROW DEFINITIONS OF “EXCISE”...................................................... 355 [9.20] The differing views regarding the purpose of s 90......................................................... 356 [9.25] History of the definition of “excise”: From Peterswald to Parton................................ 357 [9.30] Exceptions to the broad view............................................................................................. 359 [9.35] The “criterion of liability” approach................................................................. 359 [9.40] Consumption taxes.............................................................................................. 362 THE MODERN CASES....................................................................................................................... 366 [9.45] The demise of the criterion of liability and the triumph of the broad view............... 366 [9.50] Hematite Petroleum............................................................................................. 366 [9.55] Philip Morris......................................................................................................... 366 [9.60] Capital Duplicators.............................................................................................. 367 [9.65] Ngo Ngo Ha.......................................................................................................... 369 [9.70] The minority: Reviving the narrow view of excise......................................................... 372 CONCLUSIONS: THE FUTURE FOR SECTION 90?..................................................................... 374

[9.05]  The operative paragraph of s 90 reads: 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.

One of the primary aims of federation was the formation of a customs union, and consequently secure internal freedom of trade between the colonies.1 This aim is reflected in s 92, which specifically demands that trade and commerce between the States be “absolutely free”. Although free trade between the States was desirable from the point of consolidation of economic resources, there were considerable political differences as to how change to the revenue raising capacities of the new States should ensue. Ultimately the free trade arguments prevailed, and as such it was necessary for the colonies to divest their powers over customs and internal tariff collection to the new central government. This arrangement left the new States deprived of important sources of revenue, yet they retained the responsibility for administering expenditure for a range of public affairs, laying the seeds for a fiscal imbalance as the States were inhibited from raising sufficient revenue to meet their expenditure responsibilities.2

1

See Cole v Whitfield (1988) 165 CLR 360 at 386.

2 See C Saunders, “Federal Fiscal Reform and the GST” (2000) 11 Public Law Review 99 at 99-​101.

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The extent of the fiscal deprivation suffered by the States of course depends on the definition given to the prohibited sources of revenue cited in s 90: “customs”, “bounties on goods” and “excise duties”. The definition of customs duties is not problematic; these are taxes imposed on imported goods, or (less commonly) upon goods at the point of their export from Australia.3 “Bounties on goods” are subsidies or bonuses paid by the government on goods.4 The crux of s 90 jurisprudence has always been the definition of an “excise”. High Court Judges have split over its meaning, and have therefore differed over the scope of State revenue-​raising powers. The bulk of this chapter addresses those varying definitions but it is necessary to deal with one important preliminary point. Despite the numerous splits in the High Court regarding the definition of “excise”, all Judges have agreed that an excise is a type of tax. But what is a tax?

DEFINITION OF A “TAX” [9.10]  The classic definition of a tax was given by Latham CJ in Matthews v The Chicory Marketing Board (1938) 60 CLR 263 at 270: a tax … is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered.

Although Latham’s explanation is a useful guide to the characteristics of a tax it is not an exhaustive definition. The High Court in Air Caledonie International v Commonwealth (1988) 165 CLR 462 embraced a flexible approach towards the types of levies and duties that may be classified as taxes (at 467): there is no reason in principle a tax should not take a form other than the exaction of money or why the compulsory exaction of money under statutory powers could not properly be seen as taxation notwithstanding that it was by a non-​public authority or for purposes which could not properly be described as public.

In Air Caledonie the High Court characterised a federal “immigration clearance” fee for all incoming passengers, including Australian citizens, upon entry to Australia as a tax, even though the “fee” was to be collected by the airlines as opposed to the customs department or other public authority. The fee was eventually to be passed on to the government and placed in the Consolidated Revenue Fund. The impost was invalid because as a tax, it breached s 55 of the Constitution, which demands that Commonwealth laws imposing taxation deal only with the imposition of taxation. In Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480 a majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) found that a fee levied on vendors of blank tapes, which was paid to a “collecting society” and distributed to musical copyright owners, and not directed to the Consolidated Revenue Fund, was a tax. Regarding the collection of the levy by an arguably private authority, the majority observed (at 501) that while the “collecting society” could possibly be classified as a public authority, “the better view is that it is not essential to the concept of a tax that the exaction should be by a public authority”. As to the fact that the 3 The Commonwealth derives its legislative power over customs, and all other taxes, from s 51(ii). 4 The Commonwealth derives its legislative power over bounties from s 51(iii).

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levy was not to be paid into the Consolidated Revenue Fund, the majority found (at 503) that “neither principle nor Australian authority provides any support for the converse proposition that an exaction is not a tax if it is not to be paid into the Consolidated Revenue Fund”. They concluded (at 507) that the fee was a tax and was therefore invalid for contravention of s 55. Dawson, Toohey and McHugh JJ (in dissent) found that the levy was more akin to a royalty payment or licence fee rather than a tax and was thus valid (at 525 and 529). Luton v Lessels (2002) 210 CLR 333 concerned a scheme imposed upon persons who had been liable for child support payments but had defaulted in those obligations. Under this scheme, the equivalent amounts of child support payments were paid by the defaulter into the Consolidated Revenue Fund, and the same amount was then distributed to the child or her or his carer by the Commonwealth. It was contended that the payment scheme constituted a tax, and therefore that the scheme breached s 55. The High Court unanimously found that the payments were not taxes. At least half of the six-​person Court in Luton were inclined to reject the correctness of the Tape Manufacturers decision. For example, Gaudron (who had been in the Tape Manufacturers majority) and Hayne JJ stated (at 354-​355) that “every tax that is raised must be paid into the Consolidated Revenue Fund” (emphasis in original). McHugh J commented that the Tape Manufacturers was “wrongly decided” (at 361). Gleeson CJ, Kirby and Callinan JJ distinguished the Tape Manufacturers. Callinan J explained that distinction, as well as the judgment in Tape Manufacturers (at 383-​384): these observations can fairly be made about the scheme established by the two Acts [at issue in this case]. Their purpose is not to raise revenue for the Commonwealth. The scheme does not contemplate any net benefit to the Commonwealth. The scheme does not confer any direct benefit upon the general community. It does not seek to exact money from the community. It may apply to, and require deductions from a social security pension or benefit payable by the Government (s 72AA of the Collection Act), features which hardly give the scheme the appearance of one for the exaction of a tax. The beneficiaries of the scheme are of a limited class: children whose parent or parents would seek to avoid their moral and legal obligations owed to them. The Collection Act extinguishes the debt payable pursuant to the Assessment Act by a liable parent to an eligible carer: it creates a debt payable by a liable parent to the Commonwealth. And, it is important to note, s 76 of the Collection Act confers rights to payment upon an eligible carer of an equivalent amount by the Commonwealth. The result that the Collection Act is intended to achieve, and the means by which it is achieved, have some similarity to what happens when a creditor assigns a debt to another. As a result of the operation of the Acts, the Commonwealth becomes the substitute creditor, for and on behalf of the eligible carer, a situation no doubt very acceptable for the eligible carer and, accordingly of a kind to which a creditor (carer) would be likely to wish to assent. These aspects of the scheme would be immediately sufficient to put beyond doubt any question that it is not one for the exaction of a tax but for the recent decision of this Court in Australian Tape Manufacturers Association Ltd v The Commonwealth. There, amounts of royalties were paid in the first instance by purchasers of blank recording tapes to a collecting society, to be held in a fund for the benefit of copyright owners who were members of the society. The Court was narrowly divided as to the characterization of the legislative scheme there. It was held in that case that the royalty was imposed for a “public purpose”, namely the compensation of relevant copyright holders. If a purpose of compensating copyright holders is a public purpose, it is not immediately apparent why a purpose of ensuring that child carers receive maintenance for children, should not also be so regarded.

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The majority there (Mason CJ, Brennan, Deane and Gaudron JJ) regarded the relevant enactment as one for the exaction of money from one group for redistribution for the benefit of another group, with a view to bringing about what was seen to be an equitable outcome. There was no necessary correspondence between a copyright holder and the purchaser of a blank tape, who might not even use the tape to copy copyright material. By contrast, the amounts payable under this scheme are paid to the Commonwealth by a particular debtor in relation to a particular child or children, and an equivalent amount is paid to the particular person entitled to that amount of child support. It is this feature which makes Australian Tape Manufacturers Association distinguishable and it is unnecessary to consider the Commonwealth’s submission that it should be permitted to reopen that case to argue that the correct approach was the minority’s (Dawson, Toohey and McHugh JJ).

The gist of Luton seems to be stated by Kirby J (at 371-​372): the most significant feature that distinguishes a “law imposing taxation” from one that does not, is that such a law, with very few exceptions, has the purpose and effect of raising general revenue for the government. the weight of authority supports the proposition that the issue of revenue raising is a significant, if not determinative, feature of a law with respect to taxation.

The absence of any “nett increment … to the revenue for use on general government purposes” helped to convince Kirby J that the relevant exactions were not taxes. Gleeson CJ also pointed out the relevance of the fact that the impugned impost resulted in no “financial benefit to the Commonwealth” (at 344). Luton certainly challenges the continuing authority of the Tape Manufacturers decision, where a redistribution of benefits between groups without any financial gain to the Commonwealth was deemed to be a tax. Roy Morgan Research v FCT (2011) 244 CLR 97 concerned the characterisation of a federal fee imposed on employers. If an employer failed to provide a prescribed minimum level of superannuation to any employee, the amount of the shortfall, along with interest and an administrative cost, was levied on that employer under the Superannuation Guarantee Charge Act 1992 (Cth). The amount paid went into the Consolidated Revenue Fund. An equivalent amount was then transferred to the relevant employees who had been subjected to the shortfall. The appellant argued that the charge was not a tax, as it was not imposed for public purposes, but rather for the private benefit of the relevant employees. The argument was rejected as the Court simply found that any moneys placed into the Consolidated Revenue Fund have been collected for public purposes (at 113). While placement of the moneys in the Consolidated Revenue Fund does not per se establish that a fee is a tax, there was no other reason to characterise the fee as something other than a tax. Heydon J, in a separate concurring judgment, distinguished Luton v Lessels (at 118): The appellant contended that Luton v Lessels was indistinguishable from the present case. The legislative scheme under consideration in Luton v Lessels was directed to persons who had defaulted in their existing obligations to make payments of child maintenance. The legislation terminated those obligations. It substituted for them a new right in the person caring for the child to claim payment from the Commonwealth, and gave powers to an official to collect the relevant amounts from the defaulter, including a power to issue garnishee notices to the defaulter’s employer. This Court held that the legislation did not have to comply with s 55 of the Constitution because it did not provide for the imposition of a tax. Instead it created a new mechanism for the enforcement of an existing private

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obligation by substituting for the obligation of the defaulter to pay a carer for the child’s upkeep an obligation of the defaulter to pay the Commonwealth coupled with the creation of new rights in the carer against the Commonwealth. Luton v Lessels is distinguishable because there the obligation created in the Commonwealth was created in substitution for a former obligation of another person which was terminated. Here no particular obligations of employers to make payments into superannuation funds for the benefit of their employees are terminated, although compliance with those obligations will reduce the charge, and to the extent that payments are made into superannuation funds from the Consolidated Revenue Fund this will eliminate or destroy the quantum of damages which the employees can claim from their employers for breach of these obligations. The duty to pay the superannuation guarantee charge does not depend on the existence of any obligation to make payments into superannuation funds. And no duty is created on employers to make contributions into those superannuation funds. In Luton v Lessels the legislation created a new legal obligation to do something in substitution for an existing one. Here the legislation merely creates an incentive to do something, whether or not there was any obligation to do it.

Hence, the form of the relevant schemes were important in establishing that the charges in Luton were not taxes, while the charges in Roy Morgan were. In his renowned Matthews definition of “tax”, Latham CJ singled out “fees for services” as charges which resemble taxes and yet are not taxes. The Air Caledonie Court expanded upon this aspect of the definition (at 467): The third part of Latham CJ’s definition is that the negative attribute, “not a fee for services rendered” –​should be seen as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes mentioned by Latham CJ are all present. Thus, a charge for the acquisition or use of property, a fee for a privilege and a fine or penalty imposed for criminal conduct or breach of statutory obligation are other examples of special types of exactions of money which are unlikely to be properly characterized as a tax notwithstanding that they exhibit those positive attributes. On the other hand, a compulsory and enforceable exaction of public money by a public authority for public purposes will not necessarily be precluded from properly being seen as a “tax” merely because it has been described [for example, in legislation] as a “fee for services”. If the person required to pay the exaction is given no choice about whether or not he acquires a service and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.

Thus, a tax must be distinguished from a fee for a service,5 a fee for a privilege or a licence6 or a charge for the acquisition or the use of property.7 Taxes may be distinguished from such levies on the basis that there is no element of “quid pro quo” with a tax; one does not receive anything of comparable value in return for the payment of a tax.8 For example, in Air Caledonie, the immigration clearance charge was characterised as a tax because no discernible value was necessarily received

5

See Harper v Victoria (1966) 114 CLR 361.

6 The “licence” exception was endorsed by the Court in Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480 at 507. 7

Harper v Minister for Sea Fisheries (1989) 168 CLR 314, where the impugned fee regulated the taking of abalone, a finite natural resource, from Tasmanian waters.

8

See Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 325.

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by an incoming passenger in return for the five-​dollar charge. While it may have been possible for the fee to be characterised as “a charge for the privilege of entering Australia” (at 469) if it had been exclusively imposed on non-​citizens, no such privilege was accorded to Australian citizens who have a “right” to enter their own country.9 Furthermore, the Court noted that the money collected was to be directed to offset the general administrative costs of the relevant Commonwealth department, rather than to specifically fund the cost of administering immigration clearance procedures for incoming passengers. In the absence of a discernible relationship between the amount paid and the “service” or “privilege” received, the fee was deemed to be a tax. Therefore, a fee will not be a tax if there is a “discernible relationship” between the amount paid and the thing acquired by way of a service, privilege or property. Such levies are not taxes and so not excise duties, thus the States are permitted to utilise such devices. The “fee for services” exception arose again before the High Court in Airservices Australia v Canadian Airlines International (1999) 202 CLR 133. The case concerned charges levied against an Australian airline, Compass, which had leased aircraft from another company, Canadian Airlines. Canadian Airlines argued that fees charged by Airservices Australia, a public (statutory) authority with monopoly control over air traffic services (ATS) in Australia, to Compass for use of its ATS were in fact taxes in breach of s 55 as there was no discernible relationship between the amount paid to Airservices Australia and the value of the services received by Compass. The ATS fees were structured according to the “Ramsey pricing” method so that some ATS users paid more for the same services than other users. Expert economic evidence was introduced to explain that Ramsey pricing was the most efficient method for pricing monopoly services in order to ensure the recovery of costs by the provider.10 Nevertheless, it was quite apparent that Compass paid more for ATS than other users, so it was arguable that there was no discernible relationship between the amount paid and the value received. For example, Compass paid for terminal navigation charges, which were determined by reference to costs at 32 aerodromes, of which Compass only used six.11 Six High Court Judges (Callinan J not deciding) decided that the ATS charges were fees for services. Four of those six Judges (Gleeson CJ, Gaudron, Kirby and Hayne JJ)12 agreed that the charge was a fee for services as: (a) the charges were not imposed to raise revenue; (b) the charges were undoubtedly charges for the provision of services and facilities;

9 The High Court did not explain where this “right” of entry comes from. It is not expressly found in the Constitution, and statutory and common law rights can be amended by subsequent legislation. Perhaps it was arguable that the legislation in Air Caledonie simply converted the citizen’s “right” of entry into a privilege. 10 The intricacies of the pricing system in Monarch Airlines v Airservices Australia (1997) 72 FCR 534 are beyond the scope of this chapter. 11 This fact helped Branson J at first instance in the Federal Court identify the fees as taxes in Monarch Airlines v Airservices Australia (1997) 72 FCR 534 at 578. 12 McHugh and Gummow JJ essentially agreed, though they undertook a more complex analysis.

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(c) the charges were imposed to cover the cost of providing such services across the entire range of users (rather than to the specific user at issue); (d) the charges were reasonably related to the expenses incurred; and (e) discrimination between the amounts charged to users was on a rational basis.13 Thus, the Airservices case relaxes the notion of a “discernible relationship”: there does not have to strictly be a discernible relationship between the amount paid by an individual to a provider of services which are legally or practically compulsory (and Compass had no choice but to use the services if it wished to carry on business as a commercial airline), so long as the amount paid fairly reflects a bona fide attempt by that provider to recover costs across the whole spectrum of users, and the other elements identified above are present. Furthermore, a charge can constitute a fee for services if it bears a discernible relationship with either the value received by the payer or the costs incurred in providing the service.14 A financial penalty is not a tax.15 Penalties are imposed exclusively on unlawful actions, whereas taxes may be imposed with regard to both legal and illegal activity. It is conceded that the difference between a penalty and a tax is not always easy to discern, and may sometimes simply depend on the way in which the fee is prescribed in legislation.16 Finally, a tax cannot be an arbitrary exaction, in the sense that it must have a “sufficiently general application”, and not be aimed at specific persons, or imposed according to the general whim of an administrator.17 Ironically then, a State can presumably impose arbitrary exactions, despite the obvious policy reasons not to, as they are definitely not excises.

THE BROAD AND NARROW DEFINITIONS OF “EXCISE” [9.15]  When is a tax an “excise duty”? The High Court split over the definition of “excise” in the last in a series of cases, Ngo Ngo Ha v NSW (1997) 189 CLR 465. The prevailing majority (Brennan CJ, McHugh, Gummow and Kirby JJ) subscribed to a broad view that an excise is a tax that falls on any step in the production, manufacture, distribution or sale of goods (or “commodities”), before they reach the hands of the consumer. The minority (Dawson, Toohey and Gaudron JJ) subscribed to the narrow view that excises are taxes imposed on only those goods that are produced or manufactured locally. The Ha case reflected the historical disagreement among Judges regarding the meaning of “excise”.

13 The points are adapted from the joint judgment of Gleeson CJ and Kirby J at 414. 14 See, for example, McHugh J at 461-​464. 15

Re Dymond (1959) 101 CLR 11.

16 See, for example, J Glover, “Taxing the Proceeds of Corruption” in B Rider (ed), Corruption: The Enemy Within (Kluwer Law International, 1997), pp 205-​206. See also J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), pp 45-​46. 17

See MacCormick v FCT (1984) 158 CLR 622 at 639; DFCT v Truhold Benefit Pty Ltd (1985) 158 CLR 678 at 684.

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The differing views regarding the purpose of s 90 [9.20]  There are competing theories of the framers’ intentions regarding s 90 and the true “purpose” of the provision. A Judge’s view of the purpose of s 90 has dictated whether he or she adopts the broad or narrow definition of “excise duty”.18 The dilemma at federation over control of tariff policy was resolved by granting control to the Commonwealth, as witnessed by s 88’s requirement for the Commonwealth to impose “uniform duties of customs”. In light of that fiscal arrangement, the purpose of s 90 could readily be understood as ensuring the integrity of the Commonwealth’s tariff policies: the Commonwealth should set the levels of customs duties payable on goods imported into Australia, and the States should be prevented from imposing internal tariffs that undermined the Commonwealth’s policy objectives. For example, the Commonwealth may wish to protect local industry by increasing customs duties and thereby burdening imports. This policy would be undermined by the imposition of a similar tax burden by a State exclusively on locally produced goods. Alternatively, the Commonwealth may lower customs duties in order to increase competition for local industry. Such a policy would be undermined by States granting bounties on local production, which are duly prohibited by s 90. If this “tariff” purpose is accepted for s 90, the Commonwealth’s exclusivity over duties of excise can be limited to those duties which target locally produced goods and which would have the effect of distorting a nationwide tariff policy (the “narrow” view). The States would retain the power to tax goods, but only if such duties fell indiscriminately on both imported and locally produced goods, for this would not interfere with the Commonwealth control of tariffs.19 A State tax imposed on all goods of local and imported origin would maintain any competitive advantages or disadvantages generated by Commonwealth taxes for local goods as against imported goods, as the price of all goods would rise equally. The alternative view of the purpose of s 90 is that it was designed to facilitate general Commonwealth financial control, which necessitates a broader definition of excise. This approach treats the Commonwealth’s exclusivity over duties of excise as not only a mechanism for control over tariffs, but also as a means to make it possible for central control to be exercised over all goods taxes (or “commodities taxes”).20 Mason J explained the effects of these types of taxes in Hematite Petroleum v Victoria (1983) 151 CLR 559 at 631-​632: Excise duties, like customs duties, are significant instruments for raising revenue. What is more important is that Parliament, possessing exclusive power to impose both forms of duties, can protect and stimulate home production by fixing appropriate levels of customs and excise duties. And it can lower the level of domestic prices by lowering customs and excise duties. By lowering customs duties alone it can put pressure on Australian producers and manufacturers to become more competitive.

18 See R McMonnies, “Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law” (1999) 27 Federal Law Review 471. 19

See Ngo Ngo Ha v NSW (1997) 189 CLR 465 at 508 per Dawson, Toohey and Gaudron JJ.

20 As described by Dixon J in Parton v Milk Board (Victoria) (1949) 80 CLR 229 at 260.

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If the States had power to impose excise duties then the Commonwealth Parliament’s power to protect and stimulate home production and influence domestic price levels might be compromised. That s 90 confers on the Commonwealth Parliament an exclusive power to grant bounties on the production or export of goods reinforces the proposition that the grant of an exclusive power to impose duties of customs and excise was intended to give the Parliament a real control over the taxation of commodities. It could not have been intended that the States should have the power to burden home production by imposing taxes upon goods, when the Commonwealth was given exclusive power to stimulate production by granting bounties. That the object of the power was to secure a real control over the taxation of commodities provides strong support for a broad view of what is an excise, one which embraces all taxes upon or in respect of a step in the production, manufacture, sale or distribution of goods, for any such tax places a burden on production.

Thus the Commonwealth is granted “determinative control over the raising of government revenues, protecting domestic production, lowering domestic prices and the exposure of Australian producers to increased competition”.21 In harmony with such a wide-​ranging taxation power over goods, excise duties are defined as goods taxes at any point in distribution, thus prohibiting States from a wider range of taxes that might distort Commonwealth taxation policies. The attribution of the broader purpose to s 90, that is the facilitation of centralised control over commodities or goods taxes, underpins the broader definition of excise duties that now represents the prevailing judicial opinion on the issue, although a definite conclusion on the purpose of s 90 may indeed be “impossible to establish”.22

History of the definition of “excise”: From Peterswald to Parton [9.25]  In the first s 90 case before the High Court, Peterswald v Bartley (1904) 1 CLR 497, Griffith CJ defined an excise as follows (at 510): [The term “excise”] is used in connection with the words “on goods produced or manufactured in the States” … it is intended to mean a duty analogous to a customs duty imposed upon goods either in relation to quantity or value when produced or manufactured, and not in the sense of a direct or personal tax.

Thus, according to the Peterswald Court, excise duties complement customs duties. Whereas a customs duty is imposed on imported goods (goods which are produced outside Australia), an excise is a tax on goods which originate inside Australia.23 Griffith CJ’s definition had four elements: the tax must be on locally produced goods; it must be imposed at the point of manufacture or production; the tax must be imposed in proportion to the quantity or value of the goods in question; and it must

21 McMonnies, n 18, p 473. 22 McMonnies, n 18, p 480. 23 See also s 93 of the Constitution, which implicitly supports the Peterswald v Bartley (1904) 1 CLR 497 definition.

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be an indirect tax.24 The first two elements are related. If goods taxes are imposed at the point of production or manufacture, the point at which the goods are brought into being, that tax must be on locally produced goods. It is not feasible for the States to tax overseas goods at the point of their manufacture. Leaving aside problems regarding States’ extraterritorial power (see [4.10]), such a tax would be impossible to enforce. Such goods can only realistically be taxed at a later point in time, such as the point of distribution or sale within the State in question. Griffith CJ’s definition provides the prototype for the “narrow view”. The initial narrow interpretation of excise no doubt reflected the prevalence of the “reserved powers doctrine”, which dictated that constitutional interpretation preserve the States’ powers to the greatest extent permitted by the text of the Constitution (see [2.10]). This form of interpretation of the Constitution was abandoned by the High Court with Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129 (see [2.15]). The narrow definition of excise duties was subsequently eroded, and eventually abandoned. For example, in Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 the tax in question was imposed on chicory producers at the flat rate of £1 per half acre of chicory planted. The majority, made up of Rich, Starke and Dixon JJ, held the tax to be an excise, despite the tax being unrelated to the quantity or the value of the end product (each half acre could yield different amounts of chicory). This part of the excise definition was thus jettisoned, enabling a wider range of fees to be caught within the term “excise”. The development of the expanded definition of excise duties reached a high point in Parton v Milk Board (Vic) (1949) 80 CLR 229. In Parton the tax was imposed upon dairy distributors, as opposed to producers, and was calculated per gallon sold or distributed. The tax was imposed regardless of the origin of the dairy products. The majority nevertheless found the fee to be an excise. Dixon J stated (at 260): In making the power of the Parliament of the Commonwealth to impose duties of customs and of excise exclusive it may be assumed that it was intended to give the Parliament a real control of the taxation of commodities and to ensure that the execution of whatever policy it adopted should not be hampered or defeated by State action. A tax upon a commodity at any point in the course of distribution before it reaches the consumer produces the same effect as a tax upon its manufacture or production. If the exclusive power of the Commonwealth with respect to excise did not go past manufacture and production it would with respect to many commodities have only a formal significance.

This analysis treated an excise duty as a tax imposed on goods at any stage on its way to the consumer. The majority noted that a duty paid at any stage will ultimately be passed on to the purchaser, so it will affect the cost of the commodity in question, ultimately affecting the supply and demand for that commodity. The broad definition excludes small charges which would not raise the ultimate price of a commodity.

24 The distinction between direct and indirect taxes arose from JS Mill. Indirect taxes arise when the person taxed passes the tax burden along to another. Griffith CJ’s “excise” is an indirect tax because the person who ultimately pays the tax (the consumer) is not the person actually taxed (the producer).

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After Parton, a series of cases were decided in which High Court majorities upheld the Parton definition. However, there were often a number of minority Judges adhering to the narrow Peterswald definition.25

Exceptions to the broad view [9.30]  As mentioned at [9.25], the broad definition of excise gained continuous majority support after the decision in Parton v Milk Board. This meant that the States were denied a considerable proportion of their revenue raising capacity. Perhaps recognising the potentially devastating effect that Parton had on State revenue, the High Court developed two exceptions to the broad Parton principle. The major exception was the “criterion of liability” approach to questions of excise, and the second was the consumption tax exception, raised in Parton itself. The “criterion of liability” approach [9.35]  The “criterion of liability” exception emerged in the case of Dennis Hotels v Victoria (1960) 104 CLR 529. Using this approach, the Court analysed the “form” of State fees, rather than the substantive effects of the fees. Thus a payment demanded for a business licence could escape characterisation as an excise duty if the “criterion of liability” was the right to hold the licence to sell certain goods, rather than the value or quantity of the commodity sold. The case itself concerned a challenge to the Licensing Act 1958 (Vic), which imposed a fee for renewal of a victualler’s licence, calculated by reference to 6 per cent of the wholesale value of liquor purchased by the licensee. The licensing system separated the period of sales by which the licence fee was calculated from the date of the actual imposition of the licence fee. The 6 per cent fee, payable in January, was calculated on the liquor purchased during the 12 months ending on the previous 30 June. This “backdating” mechanism created a distance between the basis of the fee calculation (sales in the year prior to the licensing period) and the licence period, so the charge did not directly relate to the sale of goods during the currency of the licence. The minority in Dennis Hotels, Dixon, McTiernan and Windeyer JJ, found that the licence fee was an excise duty, and therefore invalid under s 90. They noted that this fee would ultimately be passed on to the consumers of liquor in hotels, so it was, in their view, effectively a 6 per cent tax on liquor before consumption. The majority found that the fee was not an excise, but for differing reasons. Kitto, Menzies and Taylor JJ supported the broad definition of excise, following Parton. However, they held that this law did not impose an excise duty, as these judges found the form of the law or “criterion of liability” to be crucial, rather than its substantive effect. Kitto J stated (at 560): a tax is not a duty of excise unless the criterion of liability is the taking of a step in a process of bringing goods into existence or to a consumable state, or passing them down the line [to] the consumer.

25

In Parton v Milk Board (Vic) (1949) 80 CLR 229 itself, Latham CJ and McTiernan J upheld the narrow view.

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To say so much is to exclude a tax which has no closer connexion with production or distribution than that it is exacted for the privilege of engaging in the process at all.

These Justices noted that the fee was calculated in accordance with past purchases of liquor and that it had no relationship to the liquor bought during the currency of the licence. Kitto J explained (at 564-​567): Take first the victualler’s licence fee. No part of such a fee becomes payable at the time of a purchase of liquor for the victualler’s premises, and no purchase of liquor for the premises necessarily results in any liability under the section on the part of the person making the purchase. If a particular licensed victualler buys liquor for his premises he does not, by doing so, make himself liable to pay one penny to the Crown. If he renews his licence after the ensuing 30th June, his doing so will involve him in a liability under the section, and past purchases, (which in the case supposed happen to have been his purchases) will be taken into account in working out the amount of his liability according to the statutory formula. But if he does not renew it, he will pay nothing under the section in respect of the purchases; and neither will anyone else who does not take a grant or renewal of a licence for the premises. If someone else does renew the licence, or gets a new licence for the premises, that person will pay the fee, and the fact that he had nothing to do with the purchases on which it is based will not matter. In these circumstances it seems to me very difficult indeed to say that the fee is, in the relevant sense, a tax on each purchase of a quantity of liquor, and therefore a tax on the liquor. Even taking one circumstance alone, the difficulty is, to my mind, insuperable; I mean the circumstance –​and under [the legislation] it is the only relevant circumstance –​ that the person making each individual purchase does not by doing so become liable for the fee or any part of it. In other words, the fees are taxes imposed not “in respect of commercial dealings” … but in respect of the acquisition of a right to engage in commercial dealings. They are imposed, not on goods, but on licences. Accordingly I would hold that the victuallers’ licence fees are not duties of excise.

On this analysis, the fee was not a tax on goods bought during the currency of the business licence. Therefore, according to three Justices, the criterion of liability was not goods, but the licence itself. This licence fee or “franchise fee” was not a tax on goods and therefore not an excise. Fullagar J’s reasoning was quite different from the other majority Justices. He simply followed the Peterswald approach, and adopted the narrow view of excise. Using that analysis the licence fee was not an excise, as it was imposed irrespective of the origin of the liquor, and was imposed on the retailer rather than the producer of the liquor. Although a majority allowed the fee, there was no majority position as to the how the court should analyse such backdated fees. Kitto J (with Taylor and Menzies JJ) applied a new “criterion of liability” approach, and found that the fee was imposed on persons or on licences for the right to engage in a certain business, and thus it was not a tax on goods. Fullagar J found the lack of distinction in the fee between locally produced goods and imported goods to be the crucial factor; such a fee could not amount to an excise. In the minority, Dixon CJ (McTiernan and Windeyer JJ agreeing) found the backdating mechanism “quite immaterial”; the law established a tax of 6 per cent on the wholesale price of supply of alcohol to Victorian consumers, so it was an excise.

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The lack of a clear majority in Dennis Hotels as to the test for excise duties suggests that the case might have been considered weak authority for any proposition. However, the “backdating device” took on a life of its own, as it was readily adopted by the States as a mechanism for undermining the breadth of the Parton definition of excise duties. It provided States with a relatively simple drafting device for evading the impact of s 90. Fees were constructed so that their formal impact was not to tax goods but activities, although the substantive effect was the same as a tax on goods. Judicial splits between the broad and narrow definitions of excise, and the “criterion of liability” approach dominated the cases on s 90 for a considerable time. A brief period of unanimity reigned in Bolton v Madsen (1963) 110 CLR 264. The High Court unanimously applied the broad definition of excise, combined with the formalistic approach to the interpretation of the legislation in question. In Bolton, the impugned legislation required owners of vehicles carrying goods to pay a licence fee. This fee was calculated by multiplying the vehicle’s carrying capacity by the distance over which the goods were carried. This was held to be a tax on transport services, rather than a tax on the transported goods themselves. It was therefore not an excise duty, even though the transport costs would have been incorporated into the price of the goods. The criterion of liability was the truck’s carrying capacity and the distance of the journey, and the tax was found to only indirectly affect goods per se. The tax was therefore not an excise. The united approach to excise duties was short lived. The new Chief Justice appointed in 1964, Garfield Barwick, took the view that the “criterion” approach was erroneous, and that it was essential to examine the practical effect of a law, rather than its form alone.26 The High Court then split between adherents of the “criterion” view, and adherents of the “substantial effects” approach.27 For a brief period of time, no Justice endorsed the narrow view. Barwick CJ’s substantive approach often prevailed in an evenly split High Court.28 In Dickenson’s Arcade v Tasmania (1974) 130 CLR 177, Pt III of the Tobacco Act 1972 (Tas) prohibited a person from carrying on a retail tobacco business without a licence. The fee for such a licence was calculated at 2.5 per cent of the retail value of tobacco handled by the retailer during the period of six months prior to the commencement of the period of the licence. Thus, the Dennis Hotels backdating device was utilised by the State in the hope that the court would again allow the fee. Gibbs, Menzies and Stephen JJ found that the licence fee was valid, by applying the “criterion of liability” interpretation to the regulations. Barwick CJ and Mason J also found the regulations to be valid, by applying the Dennis Hotels precedent. In this case the legislative scheme was so analogous to that in Dennis Hotels that these

26

See Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353.

27

See WA v Hamersley Iron Pty Ltd (1969) 120 CLR 42 and WA v Chamberlain Industries Pty Ltd (1970) 121 CLR 1.

28 A number of these cases were decided by six Judges, who split 3:3. In situations where the Court is evenly divided, the Chief Justice’s view prevails under s 23 of the Judiciary Act 1903 (Cth).

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two Justices, although clearly displeased by the “loophole”, felt bound by precedent to follow it. However, Barwick CJ and Mason JJ did not agree that the “criterion of liability” should always be applied. They confined the precedent of Dennis to analogous fact situations where the backdating device was utilised by the States. In the result, five Justices allowed the backdating device. McTiernan J was the only Justice to strike down the licence fee in Dickenson’s Arcade, adopting the substantive broad view, and thus defining the fee as an excise duty, as he had done as a minority judge in Dennis Hotels.29 The backdating scheme was approved again in HC Sleigh Ltd v SA (1977) 136 CLR 475. A licence fee calculated on the basis of the licensee’s turnover of petrol during a period preceding commencement of the licence was held not to be an excise duty. Once again Barwick CJ and Mason J reluctantly followed the precedent set in Dennis Hotels, pointing to the administrative problems that would ensue from overruling the alcohol and tobacco licence schemes that the States relied upon so heavily for revenue (Mason J at 501). Ultimately, despite the judicial divisions on the approach to the interpretation of the fees in question, these backdating schemes or “franchise fees” regarding tobacco, alcohol and petrol for a long time formed a major basis for State revenue, deriving their validity from the authority of Dennis Hotels.30 However, their demise was foreshadowed by the High Court’s eventual unanimous rejection of the “criterion of liability” approach in cases in the 1990s (discussed in [9.45]-​[9.70]), and they were finally delivered the last rites in the decision in Ngo Ngo Ha (see [9.65]). Consumption taxes [9.40] In Parton v Milk Board, Dixon, Rich and Williams JJ had suggested in obiter dicta that taxes on goods once in the hands of the consumer would not amount to excise duties for the purpose of s 90. This exception upholds the exemption of direct taxes from the definition of excise. The High Court directly addressed the issue of whether a tax imposed on the consumer of a commodity was an excise in Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177. Section 3 in Pt II of the Tobacco Act 1972 (Tas) imposed a tax on the “consumption” of tobacco, calculated at 7.5 per cent of value of the tobacco. Section 2(2) defined “consumption” as “the smoking or chewing of tobacco by any person”. The tax purported to apply to the actual consumption of the commodity, rather than to the

29 Throughout his long High Court career, McTiernan J managed to adopt each of the three views at one time or another. He adopted the narrow view in Parton v Milk Board (Vic) (1949) 80 CLR 229, the broad substantive view in both Dennis Hotels v Victoria (1960) 104 CLR 529 and Dickenson’s Arcade v Tasmania (1974) 130 CLR 177, two cases which bookended a flirtation with the criterion of liability view in WA v Hamersley Iron Pty Ltd (1969) 120 CLR 42 and WA v Chamberlain Industries Pty Ltd (1970) 121 CLR 1. 30 Not all such schemes were upheld. For example in MG Kailis v Western Australia (1974) 130 CLR 245 and Gosford Meats v NSW (1985) 155 CLR 368 the Court rejected backdating fees that depended upon values of past production activities, as opposed to past sales values. This signalled the progressive narrowing of Dennis Hotels v Victoria (1960) 104 CLR 529 exception in “the modern cases”, discussed in [9.45]-​[9.70].

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final sale of that tobacco. However, the relevant regulations required each tobacco retailer to act as the collector of the tax at the time of purchase. The majority of the Court accepted that a consumption tax was not an excise and is thus beyond the prohibition in s 90. For example, Gibbs J said (at 222) that “almost every member [of the court] who has occasion to discuss the matter has expressly affirmed the proposition that a tax imposed on consumption is not a duty of excise”. McTiernan J disagreed, finding that s 90 did extend to taxes on the consumption of goods, hence the fee at issue was an excise. Barwick CJ found that the fee was not in fact a consumption tax. He stated (at 187): Before going further in the matter, it is necessary, in my opinion to clarify the concept of a tax on consumption, as consumption is made a point of reference in defining the area within which a duty of excise may be found to be operating. In relation to foodstuffs and the like, consumption implies their destruction by use. Though an appropriation of goods for use may be regarded by the economist as an act of consumption, I do not regard it as such in relation to the description of a duty of excise. I intended to indicate so much when I emphasized in my reasons for judgment in Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 that the act of placing the goods in the possession of the purchaser was within the area in which a duty of excise could be found to exist. Thus the act of a vendor in making delivery of goods sold or of the purchaser in receiving the goods and reducing them into his possession are not in my opinion acts of consumption in the relevant sense. In relation to goods generally, consumption for present purposes involves, in my opinion, the act of the person in possession of the goods in using them or in destroying them by use, irrespective of the manner or means by which that possession was obtained.

The Chief Justice was seemingly captivated by the prospects of how to administer a tax upon the consumption of a commodity such as tobacco in a memorable passage (at 191-​193): Tobacco is not smoked or chewed in the precise amount which is purchased, unless the purchase be of a single cigarette or cigar. No doubt the latter is common enough amongst those given to the delights of cigar smoking but rarely, I should think, even in penurious circumstances, is a single cigarette purchased. Generally speaking, the tobacco is purchased in packets of cigarettes or in bulk quantities, ready rubbed, flaked or in block. The purchased quantity is smoked by the purchaser at intervals, their frequency depending on individual habit, inclination and opportunity. It is a casual habit in the sense that no current record is kept or likely to be kept or even a mental impression made or retained of the occasion on which something is smoked. Indeed, the habitual smoker may not be conscious of the fact as distinct from the experience of smoking. The smoker in general will not be conscious in particular of the time or occasion of the separate acts of “consumption” or be capable of recollection of them after the event. Nor is any identification made of the thing smoked with the time and circumstances of its acquisition, whether by purchase or by gift. Perhaps a part or, at times, the whole of what is purchased is given away, either on one occasion or over a period of time. Each act of smoking is said to attract an amount of tax equal to seven and one half per cent of the value of the amount of tobacco smoked at that time less, of course, the value of any “dregs”, ie unsmoked residues or butts, if the smoker within due time makes an appropriate application for a refund, see s 3(5). Nothing is said expressly in the Act about

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the consumption of tobacco given to the smoker though s 4(1) exempts from tax tobacco brought into the State by a traveller for disposal by gift provided it is consumed within twenty-​eight days of its being brought into the State. The donee of tobacco, eg a cigarette, may but does not necessarily identify its brand and, perhaps, in many situations, does not care. Whether or not the donor, or for that matter his donor, has paid an appropriate amount of tax in respect of the cigarette can scarcely be known. All this may equally be true of the friend or acquaintance who is given a “fill” of his pipe. Thus, a person who has been given tobacco may not have the means of knowing the value for the purposes of the Act of what he smokes. Bearing in mind the habits of mankind in offering cigarettes and tobacco not merely to friends but to the merest acquaintance on social occasions, the idea that the agreeable recipient of the convivial cigarette or pipe fill should come under an obligation to make a return or give a notification of having smoked the gift and within seven days of that event –​no doubt rarely remembered at the end of an evening of stimulating social intercourse –​to pay a tax of seven and a half per cent of the value of that cigarette or pipe fill upon pain of a criminal prosecution, is so ludicrous that it is to my mind inconceivable that a legislature should so intend. Examples of a like kind crowd in upon the mind. It could scarcely be conceived that the elderly gentleman, resting after a life-​time of labour, eking out his days in the sunshine on park bench or wall, quietly cutting a pipeful from a block of tobacco provided by friend or charity, and after rubbing it to a suitable tilth, smoking it in contentment, was intended to be required to notify his self-​ indulgence and pay within seven days, if he could but remember the occasion, a tax of seven and a half per cent of the value of the pipeful or perhaps of only so much of the pipeful as he smoked before dropping off to sleep in the sun. Of course, if he could but ascertain it, he might find, not by direct evidence but by inference, that someone had paid the tax at the point of purchase so that he was after all not liable to tax on his smoking in the sun. I cannot believe, however, that any such operation of the Act is intended. My incredulity of such a fanciful operation being intended by a legislature leads me to conclude in the absence of clear and unambiguous words that it was not intended to tax the consumption of tobacco in all circumstances, including the case of tobacco given to the smoker or chewer. That means, in my opinion, that it was intended only to tax the consumption of tobacco by or at the instance of a purchaser of tobacco purchased by or for him. I find nothing in the language of the Act to compel a contrary conclusion. … [Barwick CJ went on to find that the system established under the regulations whereby the tobacco vendor arranged for collection of the tax supported his construction of Pt II.] Thus, it is to my mind clear to demonstration that the intention of the Act is that what amounts of tax will be collected under the Act will be obtained by the addition by the retailer of tobacco to the purchase price of the tobacco sold of an amount which will be at least the amount of tax payable on consumption of the whole amount of tobacco purchased. In the unlikely event that the purchaser of the tobacco desires and chooses to pay later, the chances of recovery of the tax would appear to be nil. The administrative cost of any endeavour to recover it must certainly be disproportionate. Proof in a criminal proceeding of the time of smoking and the identification of what is smoked as tobacco in respect of which tax has not been paid would not only be difficult but, except in some most unusual circumstances, in my opinion, impossible. In any case, much more likely than not it would be completely uneconomic. Thus I conclude that, upon its proper construction, the Act imposes a tax not upon consumption of tobacco in any and all circumstances by any person, but only upon the consumption by or at the instance of a purchaser of tobacco purchased by retail. It intends that the tax will be paid by the purchaser and that payment will be made in anticipation of consumption at the time of purchase and as part of the purchase transaction. It is, in my opinion, a tax upon the movement of the tobacco into consumption.

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Thus, Barwick CJ, with whom Mason J ultimately agreed,31 found that Pt II and the regulations made thereunder were invalid, due to the plain absurdity in feasibly collecting a tax on the consumption of tobacco. The rest of the Court (Menzies, Gibbs and Stephen JJ) agreed with Barwick CJ’s definition of a consumption tax. However, they were prepared to construe the legislation as indeed imposing such a tax. As Gibbs J stated (at 224): It is now possible to consider the validity of the tax imposed by Pt II of the Act. The label given to it –​“Tax on the consumption of tobacco” –​is not of importance. However, in my opinion Pt II on its proper construction does impose a tax which is correctly described by that label, that is, a tax on consumption. It is true that the retailer can only lawfully carry on business if he makes arrangements to collect the tax and that for practical reasons a purchaser is likely to pay the tax to the retailer or his agent at the time when he buys his tobacco. However, the purchaser is not bound to make payment until he has in fact consumed the tobacco and the retailer is not liable for any tax which he does not collect. It is, in my opinion, impossible to say that Pt II, when properly construed, imposes a tax on the last retail sale of tobacco. It is immaterial, if in fact it is true, that the tax has substantially the same practical effect as a tax imposed on the last retail sale. The criterion of liability is consumption. The tax is not an excise. [emphasis added]

Thus, the collection system was valid for these three Justices as it was a convenient method of collecting the tax. However, the Justices stressed that the purchaser was under no duty to actually pay the tax prior to consumption, rendering the collection system ineffective. Few people will pay a tax before they are bound to do so, especially when the chances of the tax being recovered at a later stage are virtually nil. Ultimately, Barwick CJ, McTiernan J and Mason JJ found the consumption tax and the accompanying regulations invalid. Menzies, Gibbs and Stephens JJ found Pt II and the regulations to be valid. The Chief Justice had the casting vote in this 3:3 split (under s 23 of the Judiciary Act 1903 (Cth)) so the tax and the collection scheme failed. Thus the “consumption tax” exception refers only to those taxes that apply at the point of actual consumption. It is difficult to conceive of many commodities that can actually be taxed in this way. Examples might include food or drink served in a restaurant or pub (though Barwick CJ would possibly exclude food and drink not actually consumed), fuel dispensed at a pump and utilities such as gas, electricity and water. It is worth noting that in Ngo Ngo Ha’s case, the majority in obiter cast some doubt on the correctness of the consumption tax exemption. Given that the exemption might seem to allow States to distort Commonwealth commodity tax policy, one has to wonder whether the exemption is still a viable one. The only justification for the maintenance of this exception seems to be that consumption taxes are direct rather than indirect taxes.32 31 Mason J found that Pt II, when read in isolation, imposed a consumption tax, but that it imposed an excise when considered in light of the accompanying regulations regarding collection of the tax by the retailer. 32 See also D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), pp 492-​493.

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THE MODERN CASES The demise of the criterion of liability and the triumph of the broad view [9.45]  From the 1960s to the 1990s, the States increasingly relied on the backdating device that formed the core of the Dennis Hotels exception to raise necessary revenue. However, over that period, the High Court steadily moved away from the judicial technique of examining the strict criterion of liability, and increasingly examined the substantive effect the fees had upon the price of the commodities in issue to consumers. Hematite Petroleum [9.50] In Hematite Petroleum v Victoria (1983) 151 CLR 559 the criterion of liability approach was rejected by a majority of the Court (Mason, Murphy, Brennan and Deane JJ). The majority Justices examined the practical effects of the State impost, a pipeline licence fee of $10 million a year, and found it to be an excise on petroleum products transported through those pipelines. All the Justices except for Murphy J endorsed the definition of excise as “a tax directly related to goods imposed at some stage in their production or distribution before they reach the hands of the consumer” (Gibbs CJ at 615). Murphy J adopted a modified version of the Peterswald narrow view (see [9.70]). Gibbs CJ and Wilson J dissented and found that the “criterion of liability” of the fee was not the relevant commodity (petroleum) but rather the use of the pipeline, so the charge was not an excise. The Court in Hematite was thus split between three views: the Parton broad view, the broad view qualified by the Dennis Hotels “criterion of liability” exception and Murphy J’s revival of the Peterswald narrow view. Philip Morris [9.55] In Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399, five Justices endorsed the broad definition of excise. Brennan J said (at 445): If there be any rock in the sea of uncertain principle, it is that a tax on a step in the production or distribution of goods to the point of receipt by the consumer is a duty of excise.

The majority concluded that a wholesale tobacco licensing fee, calculated at $50 plus 30 per cent of the value of tobacco sold in the preceding month but one, was not an excise duty. Once again the State’s backdating device succeeded. However the warnings were clear; the availability of the exception was narrowing as the Court sought to reconcile the franchise fee cases with the broad definition of excise, and the practical effects analysis. Only Dawson J felt obliged to apply the “criterion of liability” approach. Mason and Deane JJ limited the exception to the licensing schemes regarding two particular commodities, tobacco and alcohol. In these “special fields” the backdating device, which would be readily recognised as an excise under a substantive effects analysis, would escape such characterisation. They said (at 439-​440): The basis upon which the decision in Dennis Hotels can be accepted is, we think, to be found in the circumstance that the impost took the form of a fee for a licence to sell liquor

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and that legislation providing for the issue of liquor licences has traditionally been of a regulatory character arising from the various public interest considerations relating to the sale and consumption of alcohol. The regulatory character of the legislation was a factor in the majority decision that the victualler’s licence fee under s 19(1)(a) was not an excise Liquor licensing has a unique history and it is not easy to imagine a range of commodities whose characteristics and history would lead to a similar outcome. However, in our opinion, a similar view may be taken of tobacco, though it lacks the long history of legislative regulation that has been a feature of the merchandising of liquor. Tobacco and tobacco products have like characteristics which invite regulatory control and that control is appropriate to sale and distribution of the commodities. In the case of neither is a tax imposed in relation to sale or distribution likely to be passed on as a significant component of the cost of different and dissimilar manufactured goods. It is on this footing that we would uphold the decision in Dickenson’s Arcade.

Toohey and Gaudron JJ followed the narrow definition of excise. As the fee was imposed on all tobacco, regardless of its origin, it was not an excise and was therefore valid. Their view is discussed in [9.70]. Brennan and McHugh JJ in dissent found the fee to be an excise duty by adopting an extremely narrow view of the precedent value of Dennis Hotels and Dickenson’s Arcade. Brennan J stated (at 460) that their authority should be confined to “legislation operating in indistinguishable terms”. These Justices pointed out a number of differences between the Philip Morris fee and the earlier fees: the proximity of the relevant period to the licence period (calculated according to sales in the second last month, as opposed to a period ending six months earlier in Dennis and Dickenson’s), the length of the licence period (one month as opposed to one year in the earlier cases) and the comparatively high rate of the fee (calculated at 30 per cent of tobacco sold compared with 6 per cent and 2.5 per cent in the earlier cases). Further, the tax was only paid once during the life of the tobacco product; a retailer was exempt from paying the 30 per cent retail fee on tobacco bought from a licensed wholesaler who had paid the 30 per cent variable fee.33 The “once-​only” nature of the fee also distinguished it from the earlier cases, and was a clear indication that the fee was not regulatory; there were no controls on retailers who bought from licensed wholesalers. The Justices concluded that the impost did not come within the Dennis Hotels exception; it was a tax on goods designed to raise revenue, rather than a regulatory fee. Capital Duplicators [9.60]  Following the Philip Morris case it was apparent that there was substantial divergence in the Court as to the viability of the franchise fee formula, and a resurgent controversy over the definition of “excise” itself. Further challenges to State and Territory taxing schemes ensued. In Capital Duplicators Pty Ltd v ACT (No 1) (1992) 177 CLR 248, the Court narrowly decided by 4:3 that s 90 restricts the power of the Territories, as it does with the States. That decision was followed by Capital Duplicators Pty Ltd v ACT (No 2) (1993) 178 CLR 561, where the Court considered 33 The retail fee was structured in the same way as the impugned wholesale fee. See [11.45] regarding the s 92 implications of the wholesale/​retail fee structure in the case of Bath v Alston Holdings (1988) 165 CLR 411.

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whether a licence fee imposed upon the wholesale or retail sales of X-​rated videos, which looked to conform to the Dennis Hotels formula, amounted to an excise. The monthly licence fee was calculated at $50 plus 40 per cent of the wholesale value of videos supplied in the last month but one. In Capital Duplicators (No 2), Brennan and McHugh JJ joined with Mason and Deane JJ to form a majority which again endorsed the wide definition of excise duties, along with the franchise fee exception. Once again the Court referred to the “considerations of certainty” and the administrative difficulties that would ensue from reopening Dennis Hotels and Dickenson’s Arcade. The majority stated (at 593): In refusing to reconsider the franchise decisions relating to liquor and tobacco, the Court has recognized the fact that the States (and the Territories) have relied upon the decisions in imposing licence fees upon vendors of liquor and tobacco in order to finance the operations of government. Financial arrangements of great importance to the governments of the States have been made for a long time on the faith of these decisions. … If the decisions were to be overruled, the States and the Territories would be confronted with claims by the vendors of liquor and tobacco for the recoupment of licence fees already paid. That would certainly be the case if the Court were to hold that such licence fees could not properly be characterized as no more than the imposition of a licence fee for the privilege of engaging in the relevant activity. Hence, considerations of certainty and the ability of legislatures and governments to make arrangements on the faith of the Court’s interpretation of the Constitution are formidable arguments against a reconsideration of Dennis Hotels and Dickenson’s Arcade.

However, the majority gave those franchise fees a very narrow precedent value. In the course of deciding that the impugned impost was in fact an excise, the majority appeared to take elements from the Brennan/​McHugh decisions and the Mason/​ Deane decisions in Philip Morris. This was hardly surprising considering the composition of the majority. First, the majority found that the legislation was not regulatory, and therefore lay outside the Mason/​Deane explanation of Dennis Hotels. The majority in Capital Duplicators (No 2) stated (at 596): The foregoing summary of the provisions of the Act reveals that the legislation cannot be described merely as a regulatory scheme in which the licensing fees are simply an element in an overall regime of controlling the distribution of “X” videos to the public. The principal elements of the legislation are directed to the raising of revenue rather than to the creation of a regulatory scheme designed to protect the public. There is no restriction whatsoever in the Act on the class of videos which can be sold; any video, no matter how violent or pornographic, may be sold. Nor is there any restriction on the class of purchasers; the Act does not preclude the sale of any video to children. Likewise, there is no restriction on advertising or display. And the conditions to be satisfied by an applicant for a licence under s 5 relate more obviously to the capacity of the applicant to pay the fees than to the protection of the public in connexion with the distribution of violent and pornographic videos. Accordingly, the Act falls outside the category of regulatory schemes affecting liquor and tobacco which Mason CJ and Deane J held in Philip Morris could support the exaction of a licence fee on the footing that it is not an excise.

Second, the scheme could be distinguished in a number of respects from those upheld in Dennis Hotels and Dickenson’s Arcade in an analysis similar to that conducted by Brennan and McHugh JJ in Philip Morris. The majority continued (at 596-​597):

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Furthermore, the size of the fee (40 per cent) is larger than the fee exacted in the other franchise cases and clearly exceeds the cost of implementing the scheme. No endeavour was made to justify the size of the fee on that score … Hence, the purpose of exacting the licensing fees is not simply regulatory but has a very substantial revenue purpose. In the view of Brennan J in Philip Morris, the fact that the legislative scheme is not regulatory and the substantial size of the fee are factors which are relevant in the characterization of the licence fee as an excise. In addition, the advance fee, being calculated by reference to sales made under the licence, plainly is an exaction made on a step in the process of distribution under the licence. And, though the franchise fee is calculated by reference to sales made in a past period, that period is no more than two months earlier than the licence period, each being for one month only. The proximity of the prior period to the period of the licence is a factor pointing in the direction of an excise because the transactions in the past period may well provide a reliable forecast of the transactions which will occur during the currency of the licence (Philip Morris (1989) 167 CLR at 458 per Brennan J). Thus, the exaction is imposed not merely on the taxpayer’s past dealings with the goods but in circumstances in which the magnitude of the past dealings with the goods is a likely indicator of the measure of the taxpayer’s dealings with the goods during the term of the licence. … In the result, in the light of the reasoning of the members of the Court in Philip Morris, the conclusion is inevitable that certain licence fees imposed by the Act are an excise.

As the fee before the court in Capital Duplicators (No 2) did not satisfy the standard set in the original franchise fee cases, nor could the legislation be described as a “regulatory scheme”, the licensing fee failed, as it was found to be an excise duty. The dissenting judgments of Toohey and Gaudron JJ reiterated the narrow interpretation of excise they adopted in Philip Morris. They were joined by Dawson J who was therefore the final Judge to turn his back on the “criterion of liability” view, which he had followed in Philip Morris. The minority view is discussed in [9.70]. Ngo Ngo Ha [9.65]  In light of the clear split between the proponents of the broad and narrow definitions of excise, and the appointment of two new members to the bench, yet another challenge ensued in Ngo Ngo Ha v NSW (1997) 189 CLR 465. This case was to have even more far-​reaching effects on all the States’ revenue raising capacities. The Ngo Ngo Ha concerned a challenge to the Business Franchise Licences (Tobacco) Act 1987 (NSW) and particularly the tobacco licence fee within that scheme. The 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 majority of Brennan CJ, McHugh, Gummow and Kirby JJ again forcefully endorsed the Parton definition of excise (at 499): In the present case, however, the States, fully appreciating that the attack on the doctrine based on Parton, if successful, would destroy the reasoning in the franchise cases and conscious of the factors on which the plaintiffs rely to limit the protection which the franchise cases give to the States’ tax base, chose to invite the Court to re-​examine the Parton doctrine which has been accepted for nearly half a century. Perhaps the States and Territories were conscious of the risk that the taxes in question in this case might be held to fall outside the protection offered by the franchise cases. However that might be, as the present case requires a declaration of the limits of the protection offered by

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the franchise cases so as to accord with the Parton doctrine, it seems right to accede to the defendants’ application to reopen the Parton line of cases. But the correctness of the doctrine they establish must now be affirmed. Therefore we reaffirm that 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.

Once again, the majority confined the two original franchise fee cases to their facts. The majority found that the fee in this case was an excise, and although Dennis Hotels and Dickenson’s Arcade were not overruled, they were “merely authorities for the validity of the imposts therein considered” (at 372). The Ngo Ngo Ha fee did not come within the narrow permitted exception. The majority Justices rejected the approach taken by Mason CJ and Deane J in Philip Morris that licence fees for tobacco and alcohol were somehow exceptional.34 They referred to the judgments of Brennan and McHugh JJ in that case, with approval (at 501-​502): Both Brennan J and McHugh J pointed to the proximity of the relevant period to the licence period, the shortness of the licence period, the size of the tax imposed ad valorem and the fact that it is to be borne only once in the course of distribution as indicia that were inconsistent with the tax being merely a licence fee having –​to use the test stated by Kitto J in Dennis Hotels –​“no closer connexion with production or distribution than that it is exacted for the privilege of engaging in the process at all”. Brennan J added a reference to “the revenue raising and non-​regulatory purpose of the scheme”. Those factors are present and relevant to the character of the licence fees and the amounts payable under the Act in this case. Moreover, an amount equal to 75 or 100 per cent of the value of tobacco sold during a relevant period is levied by the Act. That amount could not conceivably be regarded as a mere fee for a licence required as an element in a scheme for regulatory control of businesses selling tobacco. The Act contains minimal provisions controlling businesses selling tobacco, chiefly those … which authorise the refusal of a licence to a person who has been convicted of an offence under s 59 of the Public Health Act 1991 (NSW) or, pursuant to s 36(2AA), if the Chief Commissioner is satisfied that “the issue of a licence would be contrary to the public interest”. Subject to these provisions, renewal of a licence requires merely the due payment of the fees exacted. The licence fee is manifestly a revenue-​raising tax imposed on the sale of tobacco during the relevant period. The licensing system is but “an adjunct to a revenue statute”.

So in this scheme there was no regulatory element to the scheme except with regard to the exclusion of persons convicted of certain offences. Furthermore, the rate of the fee was extremely high as a proportion of the value of the tobacco, the period of the licence was extremely short being one month and the period in which the amount was to be calculated was proximate being only two months prior to the licence period. The majority duly found the fees to be an excise duty, and thus invalid. Although the majority judges acknowledged that their decision would put tobacco, alcohol and petrol fees at risk in all States, they felt compelled to find such taxes unconstitutional. The majority stated (at 371): 34 Mason CJ and Deane J had retired from the Court by the time of Ngo Ngo Ha v NSW (1997) 189 CLR 465 decision.

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We are conscious that this judgment has the most serious implications for the revenues of the States and Territories. But, in the light of the significantly increasing tax rates imposed by State and Territory laws under the insubstantial cloak of the Dennis Hotels formula, the Court is faced with stark alternatives: either to uphold the validity of a State tax on the sale of goods provided it is imposed in the form of licence fees or to hold invalid any such tax which, in operation and effect, is not merely a fee for the privilege of selling the goods. Section 90 of the Constitution, by prescribing the exclusivity of the Commonwealth’s power to impose duties of excise, resolves the question. So long as a State tax, albeit calculated on the value or quantity of goods sold, was properly to be characterised as a mere licence fee this Court upheld the legislative power of the States to impose it. But once a State tax imposed on the seller of goods and calculated on the value or quantity of goods sold cannot be characterised as a mere licence fee, the application of s 90 must result in a declaration of its invalidity.

The majority view in Ha can be summarised as follows. The broad view of excise from Parton has been endorsed: an excise is a tax on goods at any point before consumption. The criterion of liability exception has been narrowed to the point where only schemes in identical terms to those in Dennis Hotels (regarding alcohol) and Dickenson’s Arcade (regarding tobacco) are “saved” from classification as an excise. Alcohol and tobacco are not treated as commodities that by their nature are in a special category, but if a scheme was substantially identical to the original cases it would stand. The Court therefore found that Philip Morris, where the backdating fee was found valid, was wrongly decided. The status of the fee in H C Sleigh Ltd v SA (1977) 136 CLR 475 regarding petrol is unresolved, but would likely be treated the same as the alcohol and tobacco fees. In all other cases, the majority (the minority did not disagree) will examine the substantive effects of a fee in order to determine if it is an excise. The majority made it clear that a genuine licence fee was to be distinguished from an excise duty if it is imposed as part of a regulatory scheme, as distinct from a revenue raising device. Thus a low percentage ad valorem fee (as in Dennis Hotels) or a moderate flat fee (as distinct from the high fee in Hematite Petroleum) would be indicative of a genuine licence fee. Indeed, a regulatory fee can be classified as a fee for a licence, akin to a fee for a privilege (for example, the privilege of running a particular business) as defined in Air Caledonie, and thus not a tax at all (see [9.10]). This analysis conforms with the emphasis placed by the Capital Duplicators and Ngo Ngo Ha majorities on the size of the challenged impost. Thus the States’ schemes for revenue raising from franchise fees on tobacco, alcohol and petrol collapsed, as these fees by 1997 were very high, and tax revenue of some billions was denied.35 Although the result was “legally unsurprising” a degree of panic over State taxes ensued.36 As a result the Commonwealth agreed to step in and collect these taxes on behalf of the States, and return the revenue to the States through the use of s 96 grants.37 35 Criticism of judgments in this case was presented by D Rose in “Excise: Reflections on the NSW Cigarette Case” (1998) 1 Constitutional Law and Policy Review 15. 36 N Halliday, “Ha v NSW and Walter Hammond v NSW” (1998) 20 Sydney Law Review 158 at 167. 37 On the grants power, see Chapter 10. The majority took the view that at federation “the principle source of revenue would be withdrawn” from the States in Ngo Ngo Ha v NSW (1997) 189 CLR 465 (at 494), and that the main purpose of Ch IV was “to provide for the financial transition of the Colonies

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The minority: Reviving the narrow view of excise [9.70] In Peterswald v Bartley, Griffith CJ had originally defined an excise as a tax on articles produced or manufactured in Australia, treating an excise duty as a parallel tax to a customs duty. This view was rejected by the majority in Parton, and for a little while in the 1960s and 1970s had no support within the High Court. The view was partially revived by Murphy J in H C Sleigh Ltd v SA (1977) 136 CLR 475 and Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59. In the Hematite Petroleum case Murphy J stated (at 638): The group of sections, 90, 91 and 92 should be read narrowly, to avoid adverse consequences to the States which could not have been intended by the framers of the Constitution … State excise is a tax on production within the state … In general a tax on wholesale or retail sale which does not discriminate between goods on the basis of their production within or without the States is neither customs nor excise. In general a sales tax applied indiscriminately on all goods or on a class or classes of goods, wherever produced, would not contravene s 90 as an excise or a customs duty. I say in general, because a tax may in reality be a tax on production, even if expressed to be a sales tax. For example, a sales tax restricted to a particular commodity produced only or substantially only in the State, might be in substance, though not in form, a tax on the production of that commodity in the State.

From a policy perspective, Murphy J argued that the federal Parliament retained considerable power to manage the economy despite his narrow view of “excise” (at 639): If the concept of excise is narrow, so that the States have more freedom in the choice of taxing, this does not impair, but enhances, the capacity of the Australian Parliament to manage the economy. This is because the Parliament may allow the State tax to operate, or may legislate to exclude it by operation of s 109 of the Constitution. Such a federal law must however conform with the Constitution; it must not, for example, offend s 51(ii) by discriminating between States or parts of States, or offend s 99 by giving preference to one State or part over another State or part.

Interestingly, Murphy J found the pipeline fee in Hematite to be an excise, while Gibbs and Wilson JJ, who subscribed to the broad view, qualified by the “criterion of liability” exception, found the fee to be valid and not an excise. The fee was in substance a tax on locally produced goods, namely petroleum products produced in Victoria. This shows that a substantive approach to the narrow view can occasionally undercut a State’s revenue base more than the formalistic interpretation of the broad view. The judgments of Toohey and Gaudron JJ in Philip Morris, who were joined by Dawson J in Capital Duplicators (No 2) and Ngo Ngo Ha, drew upon Murphy J’s limited concept of excise duties, and rearticulated the narrow definition of excise duties. Their views were not identical to those of Murphy J. Murphy J had confined State excises to taxes on goods produced within the legislating State, while Toohey and Gaudron JJ confined them to taxes on goods produced within Australia.38

into the States of the Commonwealth and for the revenues required by the Commonwealth” (at 491). This implies that the severe impact of Ngo Ngo Ha v NSW (1997) 189 CLR 465 on the States’ revenue raising capacity was anticipated by the founders of the Constitution. As to the credibility of such a suggestion, see Meagher et al, n 32, pp 516-​518. 38

See Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399 at 480. Dawson J did not decide between these views.

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Dawson J in Capital Duplicators (No 2) suggested (in dissent) that the entire Court should undertake a thorough review of the s 90 case law, in light of the history of judicial disagreement (at 605): The divergence of opinion upon the scope of an excise duty for constitutional purposes would, I think, in itself justify a review of the authorities. But, having regard to the preparedness of the Court in Cole v Whitfield to undertake such a review in order to settle a far from unrelated issue, it seems to me that it cannot now reject the call for it to do so in relation to s 90.39 Not only is the issue a vexed one, but it is of high consequence to the States. As McHugh J pointed out [in Philip Morris at 489], “Any extension of the scope of an excise duty inevitably affects the distribution of public revenue within the Australian federation since it narrows the revenue base of the States and reduces their financial autonomy”. The effect of the decision in Parton v Milk Board (Vict) was to establish a conception of an excise duty which has the capacity to encompass all taxes on commodities. This potential for expansion was checked for a time by the application of the criterion of liability test. But that test no longer offers any practical constraint and even the franchise cases have been held by a majority to be artificially based and, on the view of some, to be at best justified as an historical anomaly.

After conducting his own review of the authorities on the definition of excise, and the evidence of the historical purpose of s 90, Dawson J concluded that the proper definition of “excise” was the narrow one (at 617): For constitutional purposes an excise duty is a tax which falls selectively upon the local production or manufacture of goods. Where the tax is imposed by reference to a step taken in the production or manufacture of goods, its character as an excise duty will ordinarily be clear even if the duty is not payable until after the step has been taken. But a tax may be expressed to be imposed upon a step subsequent to production or manufacture and yet in substance be a tax upon production or manufacture and so be an excise duty. For example, a tax upon sale by a producer or upon the first sale after production may be an excise duty if it selects only sales by the local producer or sales which are linked to local production so that the basis of the selection is local production. On the other hand, a tax upon all sales does not tax production or manufacture and for that reason is not an excise duty … It may be added that a tax on all sales of a particular class of goods cannot impair the tariff policy behind the imposition of customs duties upon articles within the class because, to the extent that it does have an effect upon the price to the consumer, it does so indiscriminately without regard to whether the articles were imported or produced locally.

In the view of the minority in Ngo Ngo Ha, the purpose of s 90 was to preserve Commonwealth tariff policies only, as opposed to the broader purpose of conferring control over taxes on goods in general. Further, they took the view that any sales taxes that fell equally upon goods produced within Australia and those goods that were imported, could not be invalidated as excise duties, as these did not distort the Commonwealth’s tariff policies.40 This proposition explains why the minority from Ngo Ngo Ha would find franchise fees using the Dennis Hotels device to be valid State taxes, as these fees fell on goods without any discrimination as to origin of production. 39 See [11.35] on Cole v Whitfield (1988) 165 CLR 360. 40 See Rose’s criticisms of this view, n 35, and also D Rose, “Excise III”, in M Coper and G Williams (eds), The Cauldron of Constitutional Change (Centre for International and Public Law, ANU, Canberra, 1997), pp  39-​46.

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The modern advocation of the narrow view is not necessarily a wholesale return to the position in Peterswald v Bartley. For instance, an excise may be found even where the levy is imposed after the point of production (so long as it is somehow imposed exclusively on locally produced goods), and may not have to be proportionate, relating to value or quantum of goods. For example, Murphy J in Hematite found that the fixed annual fee imposed regarding use of the pipeline was still an excise even though it was not assessed according to the quantity or value of the commodity at issue (petroleum). One of the criticisms of the minority view is that it would require the Court to undertake considerable economic analysis of the impact of impugned goods taxes upon the market. It is argued that this would be onerous and inappropriate for the Court, who are not, by and large, economic experts. It may not be so easy to determine whether a law singles out local goods for special discriminatory taxes. Is a tax on a “local” commodity, such as a type of car which is made in Australia, a “narrow view” excise if some of that car’s components are manufactured overseas? In response to this criticism, it may be noted that the Court already engages in examination of the economic effects of laws under the prevailing test for breach of s 92.41

CONCLUSIONS: THE FUTURE FOR SECTION 90? [9.75]  In light of the dominance of the broad definition of excise duties, and the demise of the availability of the Dennis Hotels device, the revenue raising capacity of the States has been greatly reduced. The outcome in Ngo Ngo Ha gives force to the view expressed by Dixon J in Parton v Milk Board (among others) that s 90 was intended to give the Commonwealth “a real control of the taxation of commodities”. Of course the States can still impose a variety of other taxes such as those on services, payroll, incorporation of companies, gambling and transfers of real estate. However, the control of goods taxes, as well as de facto control of income taxes,42 currently vests exclusively in the Commonwealth. Certainly the narrower definition of excise would enhance the States’ capacities to tax most goods, but that approach is yet to prevail, and is up against over 60 years of precedent. Irrespective of the dichotomy within the definitions of excise duties, the States’ practical capacities to raise goods taxes have been considerably modified by the changes to the federal tax system through the implementation of the Goods and Services Tax (GST) under the series of Acts relating to A New Tax System (Tax Administration) Act 1999 (Cth).43 The temporary taxation arrangements for tobacco, alcohol and petrol that were put in place by the Commonwealth after Ngo Ngo Ha ceased as of 1 July 2000. Similarly, Financial Assistance Grants to the States and Territories ceased; they now receive all of the revenue raised by the GST through s 96 grants. The disparity between the financial powers of the federal partners, or “vertical fiscal imbalance”, has tipped further in the Commonwealth’s favour as the States have been rendered

41 B Selway, “Excise I”, in M Coper and G Williams (eds), The Cauldron of Constitutional Change (Centre for International and Public Law, ANU, Canberra, 1997), pp 27-​31. See, for example, [11.55]. 42 See [10.30], on how the Commonwealth gained exclusive control over income taxes. 43 Saunders, n 2, at 104.

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more reliant on the Commonwealth for redistribution of revenue, and their legal entitlement to the GST revenues is not constitutionally secure.44 Indeed, political disputes arise periodically regarding the distribution of the GST: in 2005 the federal treasurer threatened to cut the amount of GST payable to States unless they agreed to reduce some of their local State taxes, such as certain business taxes.45 The impact of s 90 on the constitutional, financial and political arrangements for the States is considerable. The width of the current definition of excise duties, along with the political and economic effect of the scope of the grants power, has combined with the GST to perpetuate a strange feature of Australian federalism: the States’ financial independence is politically unreliable and constitutionally fragile.

44 Saunders, n 2, at 104. 45 See, for example, J Garnaut, “NSW Awaits Wrath of Costello on Tax”, Sydney Morning Herald (22 April 2005).

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Chapter 10

Spending Government Revenue –​The Grants and Appropriations Powers [10.10]

[10.45]

SECTION 96 GRANTS........................................................................................................................ 378 [10.15] Background to s 96.............................................................................................................. 378 [10.20] Types of grants..................................................................................................................... 379 [10.25] The scope of the grants power........................................................................................... 379 [10.30] The Uniform Tax cases........................................................................................ 381 [10.35] Are there any limits to s 96?............................................................................................... 386 [10.40] Conclusion on s 96............................................................................................................... 390 APPROPRIATION AND EXPENDITURE....................................................................................... 391 [10.50] Appropriations power........................................................................................................ 391 [10.55] Power to spend appropriated moneys............................................................................. 397 [10.60] Conclusion on appropriations and spending.................................................................. 401

[10.05]  One of the central concerns of the Commonwealth Constitution is the regulation of financial arrangements between the central and State governments, which are, of course, crucial to government administration. The Commonwealth Constitution divides the various aspects of fiscal power between the Commonwealth and the States, and purports to provide certain limits on the way government revenues may be distributed and spent. Earlier chapters examine how the States are prevented from imposing customs and excise duties under s 90, and the few limitations to the Commonwealth’s use of its taxing power in s 51(ii).1 It is clear that the Commonwealth enjoys considerable command over the raising of revenue in the Australian federation. The “vertical fiscal imbalance”, or disparity between the capacity to raise revenues, and the obligation to spend it, is a long-​standing source of grief for the States and consternation among constitutional commentators.2 The constitutional elements that contribute to this disparity include the largely unconstrained Commonwealth power to grant conditional funds to the States, and its powers to appropriate and spend revenue. The grants power in s 96 vests the 1 Section 51(ii) is discussed in [2.20], [2.35] and [9.10]. 2 H P Lee, N Aroney, S Murray, S Evans and P Emerton, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (3rd ed, Lawbook Co, Pyrmont, 2013), pp 740-​744; G Sawer, The Australian Constitution (AGPS, Canberra, 1988), pp 104-​106.

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Commonwealth with considerable capacity to dictate States’ policies, due to the States’ dependency on Commonwealth financial assistance. However, recent cases have reined in the Commonwealth’s powers to directly spend money on programs and projects without going through State intermediaries. This chapter addresses the issues related to the spending of government revenue, examining the scope of the Commonwealth Government’s power to give grants, to appropriate and to spend revenue.

SECTION 96 GRANTS [10.10]  Section 96 states: During a period of ten years after the establishment of the Commonwealth and thereafter until Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

Background to s 96 [10.15]  Section 96 was included in the Constitution relatively late in its drafting, in order to provide some safeguards against any State (particularly the smaller ones) going bankrupt and triggering a financial disaster, particularly in the first few years after Federation.3 Quick and Garran said, “[i]‌t is for use as a safety valve, not an open vent; and it does not contemplate financial difficulties any more than a safety valve contemplates explosions”.4 The wide scope accorded to s 96 today was not inevitable. The opening words of the section suggested it may only have been intended to operate for the first ten years of Federation. This temporal limitation was not however endorsed by the High Court; the Commonwealth now can influence all sorts of areas of State activity, and require complementary State spending, through the use of the grants power.5 For example, education at all levels, housing, health services, social security and welfare, urban development, conservation, industry assistance, road building and maintenance have all been areas where the Commonwealth has used the grants power to direct State activity and expenditure. Not only can the grants power be utilised to direct State activities according to the Commonwealth’s agenda, s 96 has been used to fundamentally alter the fiscal balance between the Commonwealth and the States. In 1942 the Commonwealth used the grants power to effectively remove the States’ ability to impose income taxes, which has never been resumed. The Commonwealth now uses the grants power on a wide scale to support the States’ finances. Through these uses of the grants power the

3 C Saunders, “The Hardest Nut to Crack: The Financial Settlement in the Commonwealth Constitution”, in G Craven (ed), The Convention Debates 1891-​1898: Commentaries Indices and Guide (Legal Books, 1986), pp 149, 171. 4 J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), p 871. 5 The 1988 Constitutional Commission recommended the deletion of the opening words of s 96, as they serve no purpose now: Final Report of the Constitutional Commission, Volume 2 (AGPS, Canberra, 1988), pp  835-​836.

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Commonwealth has increasingly centralised the fiscal power of the nation under its own control.

Types of grants [10.20]  Commonwealth grants have traditionally been divided into three broad groups.6 There are general revenue grants, which were provided to the States for their general budget, compensating for income tax revenues foregone by the States. Special assistance grants are occasionally made to adjust financial inequalities between the States. Finally, specific purpose grants, which designate the purpose for which the grant moneys are to be spent, are the primary mechanism for the implementation of Commonwealth policies that are beyond the scope of legislative powers. Through these tied grants the Commonwealth has used the States as its agents to carry out public expenditure activities which are in areas of State constitutional responsibility. A new Intergovernmental Agreement was implemented in 1999 after the introduction of the Goods and Services Tax (GST) under the A New Tax System (Tax Administration) Act 1999 (Cth) and related statutes. Under the Agreement, financial assistance grants to the States and Territories were replaced by the grant of all of the revenue raised by the Goods and Services Tax through s 96 “GST revenue grants”.7 From time to time, these intergovernmental arrangements are updated. Whether GST revenue grants are treated as a separate category of grants, or simply a reform of the formula for general revenue grants, is not of great constitutional significance.8 The specific purpose grants remain, and their use was affirmed in the 1999 Agreement.9

The scope of the grants power [10.25]  The main issue regarding s 96 has concerned the extent of the conditions that the Commonwealth can attach to grants. An early example of a specific purpose grant was examined in Victoria v Commonwealth (Federal Roads case) (1926) 38 CLR 399. The Commonwealth sought to implement a road building and maintenance scheme in order to encourage rural development and population distribution. The Federal Aid Roads Act 1926 (Cth) purported to make conditional grants to the States; the conditions in question required that the States used the grant funds to construct “Federal Aid Roads”, as directed by the Commonwealth government. Furthermore, the States had to also contribute funds to the Roads scheme. Some of the Federal Aid

6 The history of the use of these types of grants is fully explored in C Saunders, “Towards a Theory for Section 96 –​Part 2” (1988) 16 Melbourne University Law Review 699. 7

The Intergovernmental Agreement of the Reform to Commonwealth–​State Relations of 28 May 1999 (signed by the governments in June 1999) stated that “The Commonwealth will make GST revenue grants to the States and Territories equivalent to the revenue from the GST subject to the arrangements in this Agreement. GST revenue grants will be freely available for use by the States and Territories for any purpose. The Commonwealth will distribute GST revenue grants among the States and Territories in accordance with horizontal fiscal equalisation (HFE) principles subject to the transitional arrangements set out below and other relevant provisions of this Agreement”. The Agreement is scheduled to the A New Tax System (Commonwealth-​State Relations) Act 1999 (Cth).

8 C Saunders, “Federal Fiscal Reform and the GST” (2000) 11 Public Law Review 99 at 104. 9 Clause 5(v) of the Agreement, n 7.

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Roads were roads wholly within one State, thus potentially outside the scope of the Commonwealth’s interstate trade power in s 51(i). Robert Menzies, acting as Counsel for Victoria, submitted that the Parliament could not use s 96 with conditions attached, if the conditions amounted to an attempt to exercise legislative powers beyond the scope of s 51 of the Constitution. The High Court, in one of its briefest judgments, found (at 406) that the grants were valid as they were “plainly warranted by the provisions of s 96” and not limited by s 99 or any other provisions in the Constitution. No further reasoning was given. Dixon CJ considered the meaning of the judgment in the Federal Roads case in his judgment in a later case on s 96, Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575 (at 606): The first case decided under s 96 was Victoria v The Commonwealth (1926) 38 CLR 399. The enactment there in question, the Federal Aid Roads Act 1926 (No 46), did not express its reliance on s 96 either in terms or by reference to the grant of financial assistance. It authorised the execution by or on behalf of the Commonwealth of an agreement in a scheduled form with each of the States. It established a trust account in the books of the Treasury to be known as the Federal Aid Roads Trust Account and appropriated for payment into the fund such amount as was necessary for each agreement so executed. The scheduled form of agreement set out in detail a plan or scheme for the construction of roads at the combined expense of State and Commonwealth. … Very specific provisions were made by which what the State did in pursuance of the plan was made subject to the control or approval of the Commonwealth. The amounts contributed by a State were to be about three-​fourths of those contributed by the Commonwealth. The contributions of the Commonwealth were to extend over ten years. It was provided that payments would be made to the State out of the moneys for the time being in the trust account in such amounts and at such times and subject to such conditions as the Commonwealth Minister might determine. The form of agreement should perhaps be studied in detail to appreciate how much is implied by the decision of the Court, but for present purposes the foregoing outline may be enough. The validity of the legislation was upheld by this Court as authorised by s 96. This means that the power conferred by that provision is well exercised although (1) the State is bound to apply the money specifically to an object that has been defined, (2) the object is outside the powers of the Commonwealth, (3) the payments are left to the discretion of the Commonwealth Minister, (4) the money is provided as the Commonwealth’s contribution to an object for which the State is also to contribute funds. Road-​making no doubt may have been conceived as a function of the State so that to provide money for its performance must amount to financial assistance to the State. But only in this way was there “assistance”.

So from the earliest case it was clear that the Commonwealth had power to impose a wide variety of conditions in its grants Acts. These stipulations could be used to influence the means by which the States exercised their exclusive and concurrent legislative powers. Although in legal terms the grants are a mere financial incentive to the States, this presents an incomplete picture. As the States increasingly depend upon the Commonwealth for funds, and their revenue raising capacities have diminished, the stipulations attached to grants can become political and economic imperatives, resisted at the State government’s peril. This has meant the grants power has inevitably had a far reaching effect upon the traditional notions of federalism, as the Commonwealth has used s 96 to influence many areas within the constitutional domain of the States.

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In DFCT (NSW) v Moran (1939) 61 CLR 735, the Court determined that a grant could be bestowed upon a State even if the State was required to pass on all of the money to private individuals within the State. It had been argued that the State received no actual “financial assistance” under such a scheme, and was in fact acting as a mere conduit for the relevant moneys. The High Court rejected this argument, as it did in the later case of Attorney-​General (Vic) (Ex rel Black) v Commonwealth (DOGS case) (1981) 146 CLR 559 (or Defence Of Government Schools case). In the latter case, the grant money was channelled through the States to nominated private schools. Barwick CJ noted (at 535) that “the receipt and expenditure of the grant lessen[ed] the demands on the Treasury of the State”, so the State as a body politic certainly gained “financial assistance”. The Uniform Tax cases [10.30]  The Commonwealth most notoriously used its grants power to displace the States’ ability to raise revenue through income taxes. This profound shift in financial power within the federal system was endorsed in the two Uniform Tax cases of 1942 and 1957. Before 1942, the States and the Commonwealth each imposed income taxes. This led to some complexity, because taxpayers had to fill out separate tax returns for the Commonwealth and any State/​s in which they derived income; rates differed among the States as well. The Commonwealth wanted to increase income taxes in order to fund wartime expenses, and sought to centralise the raising of these taxes to the exclusion of the States. This was both in order to avoid the increased tax burdens falling inequitably on taxpayers in certain States, and to avoid the political ramifications of the dramatic increases needed to fund the war effort. If the Commonwealth became the exclusive collector of income tax, and compensated the States for the amounts forgone, then a uniform tax rate could be imposed without delay and the taxpayers’ rates would not rise unfairly. The Commonwealth repeatedly requested the States to vacate the field of income tax for the duration of the War, and to accept compensation for the lost revenue through financial assistance by way of grants. The States declined the invitations. In 1942 the Commonwealth imposed the Uniform Income Tax scheme despite the States’ objections. Section 51(2) allows the Commonwealth Parliament to make laws about taxation. However, it does not authorise the Commonwealth to directly regulate or prohibit State taxes.10 Nevertheless, the Commonwealth utilised a number of federal heads of power to implement a legislative scheme which effectively ejected the States from the arena of income tax collection. The scheme involved four Acts, which are described below. The Income Tax Act 1942 (Cth) raised the rate of Commonwealth income taxes to a level equal to existing State income taxes plus Commonwealth taxes. The tax was set at a level sufficient for the Commonwealth to compensate the States for an amount

10

See Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 at 232; Victoria v Commonwealth (1957) 99 CLR 575 at 614. Compare Murphy J in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 637.

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equivalent to what they would have received under their own income tax schemes, as well as to fund the war expenditures. This Act made it politically difficult for States to continue to impose their own income taxes, as taxpayers would then incur a very large net increase in their tax liabilities. The States Grants (Income Tax Reimbursement) Act 1942 (Cth) authorised each State to receive an annual grant on the condition that the State ceased to impose and collect income tax. The grant essentially matched what the State would have ordinarily collected in income tax. This Act added to the political difficulties for States that wished to impose income taxes, as it deprived the States of a financial need to do so. Section 221 of the Income Tax Assessment Act 1936 (Cth) required taxpayers to discharge their Commonwealth income tax debts before paying any State income tax debt. The Income Tax (Wartime Arrangements) Act 1942 (Cth) required that the States transfer to the Commonwealth all State staff, offices, furniture, equipment and records used to collect income taxes. The latter two statutes rendered it practically difficult for States to collect income taxes. By enacting these four Acts the Commonwealth did not directly prohibit the States from imposing income tax; it had no constitutional power to do so. However, the scheme made it politically and practically impossible for the States to collect income tax. Therefore, four States immediately challenged the scheme in the case of South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373. The States argued that the Court had to examine the four laws as an interdependent scheme, and that on that basis the combined laws operated to deprive the States of their powers to levy income taxes. The scheme amounted to a threat to the constitutional functions or capacities of the States11 or, alternatively, was a “colourable device” to discriminate between the States with regard to taxation, contrary to ss 51(ii) and 99. The Court refused to examine the scheme as a whole unit, preferring to analyse each Act on its own. As Latham CJ pointed out (at 411): The contention that an Act which does not refer to or incorporate any other Act, and which when considered by itself is not invalid, may be held to be invalid by reason of enactment of other Acts, whether valid or invalid, meets many difficulties. Parliament when it passes an Act, either has power to pass that Act or has not power to pass that Act. In the former case it is plain the enactment of other valid legislation cannot affect the validity of the first-​mentioned Act if that Act is left unchanged. The enactment of other legislation which is shown to be invalid equally cannot have any effect upon the first-​mentioned valid Act because the other legislative action is completely nugatory and the valid Act simply remains valid.

Considering each of the Acts in turn, all members of the Court found the Income Tax Act 1942 valid. Latham CJ said (at 411) that it was an “ordinary tax Act, … a law with respect to taxation”. The Court could not limit the rate of tax which Parliament proposed to impose, no matter how unreasonable that rate might seem. Similarly, s 221 of the Income Tax Assessment Act 1936, which gave priority to the Commonwealth in the payment of income taxation, was also a law with respect

11 See, on this argument, [8.50].

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to taxation, in the incidental scope of that power. A majority of the Court (Rich, McTiernan and Williams JJ, Latham CJ and Starke J dissenting) found the Income Tax (Wartime Arrangements) Act 1942 to be supported by the defence power, s 51(vi). The Grants Act was found valid by four Justices under s 96 (Starke J dissenting). Latham CJ made three important points about the grants power. First, he concluded that the Commonwealth can use the grants power to induce a State to exercise its powers, and to abstain from exercising its powers. He stated (at 417): the Grants Act offered an inducement not to exercise a power the continued existence of which is recognized –​the power to impose income tax. The states may or may not yield to this inducement, but there is no legal compulsion to yield.

Thus it was permissible for the Commonwealth to induce the States to cease collecting income taxes, as long as it did not legally compel or coerce them to abandon their legislative powers. But he warned against “coercion” being too readily found (at 417): But the position is radically different it is urged, if the so called inducement practically amounts to coercion. Admittedly the Commonwealth Parliament could not pass a law compelling a State to surrender the power to tax incomes or prohibiting the exercise of that power by a State. Equally it [has been argued], the Commonwealth cannot lawfully make an offer of money to a State which under the conditions which actually exist, the State cannot, on political or economic grounds, really refuse. The identification of a very attractive inducement with legal compulsion is not convincing. Action may be brought about by temptation –​by offering a reward –​or by compulsion. But temptation is not compulsion.

Second, it had been asserted that the Grants Act was an attack on the essential functions of the States, as revenue collection is essential to the States’ continued existence (see [8.50]). Latham CJ rejected this argument (at 423): it cannot be denied that Commonwealth legislation may be valid though it does in fact weaken or destroy, and even is intended to weaken or destroy, some State activity.

Thus the Grants Act could be valid even if it was intended to weaken or destroy some State activity. The Court examined only the legal operation of such an Act rather than its effect and apparent intended outcome. Here the Grants Act was not a law with respect to State functions, nor did it command or prohibit any action by the State. The States were not placed under any legal obligation to abandon income tax. The political and economic pressure generated by the Grants Act, particularly in conjunction with the other three statutes, was irrelevant for the majority. Finally it was argued that the Grants Act was invalid because it resulted in States being treated differently, and so it offended ss 51(ii) and 99 of the Constitution. The Chief Justice rejected this argument (at 429): while the Income Tax Act 1942 properly did not discriminate, nor give a preference to any State, there was no constitutional reason why the Grants Act should not distinguish between States. There never has been, and there cannot be uniformity in payments made by the Commonwealth in or to States or persons in States. Discrimination in expenditure between States is found in every Commonwealth budget and in many appropriation Acts. It has never been argued that such differentiation should be avoided or that it could be avoided.

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Starke J dissented, and was prepared to examine the “object and operation” of the Grants Act (at 443). This was not the analysis undertaken by the rest of the Court. They steadfastly ignored the objectives behind the Grants Act and the other Acts in the uniform tax scheme, and thus found each supported by an appropriate head of power. Aside from Starke J, and Evatt J’s dissent in Moran, all Justices called upon to examine the scope of s 96 have adopted a generous approach to the scope of the grants power. The First Uniform Tax case confirmed the substantial financial and political power over the States that could be wielded by the Commonwealth under s 96. The only major restriction cited by the Justices was that the Commonwealth could not legally compel the States to accept a grant with conditions attached. This was not a very significant restriction, given the States’ financial dependence on the Commonwealth. While some saw the decision as being of limited significance, and reflecting only a temporary war measure, others saw more far-​reaching impacts. Robert Menzies is attributed as suggesting it “marked the end of the federal era in Australia”.12 Hanks suggests that the First Uniform Tax case is the “high water mark of the doctrine from the Engineers case”, as it affirmed the dominance of the Commonwealth within the federal system. As a majority of Justices approached the issues before the Court as “strictly legal questions”, the plain meaning of s 96 should “not be modified by the invocation of any unstated (or implied) propositions”; the Court was apparently unconcerned with any political or economic ramifications flowing from the decision; those issues were to be resolved at a political level.13 The width of the grants power, as understood from the First Uniform Tax case was confirmed by the High Court in Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575. After the war ended, it was expected that the Commonwealth would give the States the opportunity to resume imposing income taxes. However, the Commonwealth informed the States that it intended to continue to collect high income taxes and to reimburse the States through s 96 grants. While some States were content for the Commonwealth to continue the uniform tax scheme and collect income taxes on their behalf, New South Wales and Victoria were not. These States eventually challenged the scheme once again, basing their attack on the prevailing grants Act, the States Grants (Tax Reimbursement) Act 1946 (Cth) and again on s 221 of the Income Tax Assessment Act 1936. Of the four original impugned Acts, it was now clear that the Income Tax Act 1942, maintaining a high level of Commonwealth income tax, was a valid exercise of power under s 51(ii). The Income Tax (Wartime Arrangements) Act 1942 (Cth) had been repealed after the war. The situation was described by Dixon CJ (at 601-​602): The States Grants (Income Tax Reimbursement) Act 1942 has been replaced by the States Grants (Tax Reimbursement) Act 1946-​1948, the duration of which is not limited, and for the last fifteen years there has been no State taxation of incomes, the only income tax being that of the Commonwealth. The whole plan of uniform taxation has thus become very much a recognised part of the Australian fiscal system. How far it really rests on the validity of the

12 K H Bailey, “The Uniform Tax Plan (1942)” (1944) Economic Record 170 at 185. 13 D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), p 527.

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condition which forms an integral part of the Tax Reimbursement Acts and of s 221(1)(a) of the Income Tax and Social Services Contribution Assessment Act is, I think, open to question. But on the footing that it does so, the Court is now invited to depart from the decision in South Australia v The Commonwealth (1942) 65 CLR 373, either by treating it as wrongly decided or by distinguishing it as a decision resting in an essential degree on the scope of the defence power in time of war. Having regard to the lapse of time in which no State has taken proceedings seeking judicial relief against the statutes, to overrule the decision or even so to distinguish it must involve a grave judicial responsibility.

The majority found s 221 of the Tax Act, which required taxpayers to pay Commonwealth income taxes before paying State income taxes, invalid, thus overturning the decision on this issue from the First Uniform Tax case.14 Of most importance for this chapter, however, is the Court’s finding regarding the validity of the Grants Act. The High Court once again found the Grants Act to be validly supported by s 96. Dixon CJ (at 609-​610) discussed whether s 96 conditions might be bound by the Melbourne Corporation doctrine that the Commonwealth cannot restrict or control the States in the exercise of their governmental powers (see [8.50]). In doing so, he hinted at potential constraints that could be put on the interpretation of s 96: In the present attack upon the validity of the Tax Reimbursement Act 1946-​1948 the two States that are plaintiffs naturally rest heavily upon the argument that the Act is a law for the restriction or control of the States in the exercise of their taxing powers, that on its face the purpose appears of compelling the States to abstain from imposing taxes upon income. If s 96 came before us for the first time for interpretation, the contention might be supported on the ground that the true scope and purpose of the power which s 96 confers upon the Parliament of granting money and imposing terms and conditions did not admit of any attempt to influence the direction of the exercise by the State of its legislative or executive powers. It may well be that s 96 was conceived by the framers as (1) a transitional power, (2) confined to supplementing the resources of the Treasury of a State by particular subventions when some special or particular need or occasion arose, and (3) imposing terms or conditions relevant to the situation which called for special relief or assistance from the Commonwealth. It seems a not improbable supposition that the framers had some such conception of the purpose of the power.

Nevertheless, Dixon CJ felt that the existing authorities compelled him to follow the prevailing broad interpretation (at 610): But the course of judicial decision has put any such limited interpretation of s 96 out of consideration. In any case it must be borne in mind that the power conferred by s 96 is confined to granting money and moreover to granting money to governments. It is not a power to make laws with respect to a general subject matter, which for reasons such as I gave in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, may be taken to fall short of authorising a special attempt to control the exercise of the constitutional powers of the States where there is a connexion with some part of the subject matter of the federal power. The very matter with which the power conferred by s 96 is concerned relates to State finance. Further there is nothing which would enable the making of a coercive law. By coercive law is meant one that demands obedience. As is illustrated by Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, the duty may be imposed, not on the State

14 See [2.35] and [14.75].

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or its servants, but on others and yet its intended operation may interfere unconstitutionally with the governmental functions of the State in such a way as to take the law outside federal power. But nothing of this sort could be done by a law which in other respects might amount to an exercise of the power conferred by s 96. For the essence of an exercise of that power must be a grant of money or its equivalent and beyond that the legislature can go no further than attaching conditions to the grant. Once it is certain that a law which is either valid under s 96 or not at all does contain a grant of financial assistance to the States, the further inquiry into its validity could not go beyond the admissibility of the terms and conditions that the law may have sought to impose. The grant of money may supply the inducement to comply with the term or condition. But beyond that no law passed under s 96 can go.

Dixon CJ continued (at 611): There has been what amounts to a course of decisions upon s 96 all amplifying the power and tending to a denial of any restriction upon the purpose of the appropriation or the character of the condition … The three decisions [Roads, Moran, First Uniform Tax case] certainly harmonise and they combine to give to s 96 a consistent and coherent interpretation and they each involve the entire exclusion of the limited operation which might have been assigned to the power as an alternative.

The Second Uniform Tax case reiterated the reasoning of the First Uniform Tax case. The Court unanimously upheld the Commonwealth’s power to make grants to States, conditional on the States not collecting income taxes. The Commonwealth could validly attach a condition to require the abstention of the use of a legitimate State power as long as any stipulations did not legally coerce the States, nor require them to abdicate power (as opposed to refraining from an exercise of power). The Commonwealth eventually ceased to make the grants conditional upon the States desisting from taxing income. The uniform income tax scheme, and the financial assistance grants nevertheless continued, because it was understood at an executive level that a State would cease to receive the grants if it reintroduced income tax. Thus, the uniform tax scheme is now more dependent upon political and economic imperatives, rather than the legal conditions attached to the grants. With the implementation of the Goods and Services Tax, and the changes to the financial agreements between the Commonwealth and the States and Territories, the financial assistance grants ceased, and were replaced by GST revenue grants (see [10.20]).

Are there any limits to s 96? [10.35]  Given the expansive breadth of s 96, we might ask whether there are any limits to the conditions which may be attached to a s 96 grant. In the Second Uniform Tax case, the Justices outlined one clear limit: the States have to be constitutionally capable of fulfilling the conditions. For example, the Commonwealth could not attach a condition that States impose customs and excise duties in breach of s 90 of the Constitution. The cases discussed at [10.25]-​[10.30] demonstrate that the grants power is certainly wide enough to allow the Commonwealth to overcome deficiencies in its legislative power. Can s 96 be used to evade specific prohibitions on Commonwealth power in the Commonwealth Constitution? In DFCT (NSW) v Moran (1939) 61 CLR 735, the High Court upheld a scheme of laws that was designed to assist the Australian wheat industry through the use of grants.

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Under a series of taxation statutes, the Commonwealth imposed taxes on flour millers. The Wheat Industry Assistance Act 1938 (Cth) returned these taxes to the States in the form of grants on the condition that the States pay the moneys over to wheat growers. Thus the flour industry was being used to subsidise the wheat industry. However, Tasmania did not have any wheat growers. A special arrangement was made for Tasmania, whereby the Commonwealth used the grants power to direct money to Tasmanian flour millers. The overall effect of the scheme was that the revenue gained from the tax on all flour millers around Australia was redistributed to wheat growers in the five States that grew wheat, and to flour millers in Tasmania, but not to any flour millers in the other States. The argument was put by Moran, a New South Wales flour miller, that the Commonwealth taxes were invalid, because the taxing Acts, when considered in combination with the Grants Act, had the effect of discriminating “between States and parts of States” contrary to the provisions in ss 51(ii) and 99. Section 51(ii) prohibits the Commonwealth from discriminating between States and parts of States with regard to taxation, while s 99 prohibits the Commonwealth from giving preferences to one State or part thereof over another State or part thereof “by any law or regulation of trade, commerce, or revenue”. In considering the question of the operation of the scheme, Latham CJ examined each of the Acts separately, as was to occur again later in the First Uniform Tax case. He found that the Tax Act did not discriminate, as it levied taxes equally on all flour millers. There was, therefore, no breach of s 51(ii). He examined the Grants Act, which returned funds to Tasmanian growers, and concluded there was no constitutional impediment to a grant discriminating between States. He said (at 763): Section 96 is a means of evening such inequalities [between States] in accordance with the judgement of Parliament. That section is not limited by any prohibition on discrimination. There is no general prohibition in the Constitution of some vague thing called “discrimination”.

And (at 775): The Commonwealth does not by any law or regulations of revenue give any preference to the State of Tasmania that is forbidden by the Constitution, for … grants of financial assistance are unaffected by s 99.

On s 99, Starke J stated (at 775) that “[a]‌grant of financial assistance to a State under s 96 is not … a law or regulation of trade commerce or revenue which gives preference to one State over another State”. Thus, it appears that s 96 is immune from the requirement in s 99, as grants laws are simply outside the scope of the operation of the latter prohibition.15 In Moran, the wheat assistance scheme was valid, as the tax Acts did not relevantly discriminate, and the Grants Act, which did treat the States differently, was constitutionally capable of doing so. Notably, Evatt J dissented, analysing the scheme as a composite one designed to evade the constraints of s 51(ii). Thus he found that s 96 could not be used to evade the constitutional limitations on the Commonwealth found elsewhere in the Constitution.

15 See [14.40] onwards on s 99.

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The judgment of the High Court was upheld by the Privy Council on appeal in W R Moran Pty Ltd v DFCT (NSW) (1940) 63 CLR 338. The Privy Council noted that (at 346-​347): [Section 51 is] expressly made “subject to this Constitution”, a qualification which must include the power under s 96 … So far from s 96 being subordinate to s 51(ii) … it would be more plausible to contend that powers conferred by s 51 are subordinate to s 96, and that the power of the Parliament under that section can be exercised even so as to effect a plain discrimination.

However, the Privy Council warned that s 96 could not be used as a “colourable” device to evade the constraints of the taxation power (at 349-​350): In coming to this conclusion their Lordships wish to make it clear that, as at present advised, they do not take the view that the Commonwealth Parliament can exercise its powers under s 96 with a complete disregard of the prohibition contained in s 51(ii), or so as altogether to nullify that constitutional safeguard. The prohibition is of considerable importance; and the Constitution should be construed bearing in mind that it is the result of an agreement between six high contracting parties with in some respects very different needs and interests. Cases may be imagined in which a purported exercise of the power to grant financial assistance under s 96 would be merely colourable. Under the guise or pretence of assisting a State with money, the real substance and purpose of the Act might simply be to effect discrimination in regard to taxation. Such an Act might well be ultra vires the Commonwealth Parliament. Their Lordships are using the language of caution because such a case may never arise, and also because it is their usual practice in a case dealing with constitutional matters to decide no more than their duty requires.

Although there was no suggestion that the funds paid to Tasmania amounted to anything but genuine financial assistance, the Privy Council was careful to warn that some “legislative expedients” would be ultra vires. It is worth pausing to consider how evidence of such a colourable device for circumventing the limited prohibition on discrimination could be exposed. Given the judgments in the Uniform Tax cases, as well as the cases of Fairfax v FCT (1965) 114 CLR 1 and Leask v Commonwealth (1996) 187 CLR 579 on characterisation, it is clear that the High Court rarely looks at the Parliament’s underlying motivation in passing an Act in order to determine an Act’s validity.16 In two cases, PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 and Pye v Renshaw (1951) 84 CLR 58, the High Court again considered the use of s 96 and its relationship with another constitutional prohibition on Commonwealth power. The context for the cases was that the Commonwealth sought to sidestep its obligation to provide “just terms” when acquiring property under s 51(xxxi) for the settlement of military personnel after the Second World War. By forming an agreement with New South Wales, the Commonwealth hoped to fund the State’s acquisition of lands at less than fair market value, thus avoiding the limits imposed in s 51(xxxi) which only constrains the Commonwealth. The agreement was expressly captured in State and federal legislation. The majority of the High Court in Magennis’ case struck out the Commonwealth Act for failure to provide just terms when effecting an acquisition of property. The majority characterised the Commonwealth statute as an Act with

16 See generally, Chapter 2.

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respect to the acquisition of property under s 51(xxxi), rather than as a grants statute under s 96. In that view, the Commonwealth was clearly bound to follow the just terms proviso in s 51(xxxi). However, Latham CJ also stated (at 398) that the proviso in s 51(xxxi) applied regardless of the possible alternative characterisation of the Act under s 96 or the defence power, s 51(vi). The impugned legislation was immediately recast, so that no express mention of the Commonwealth/​ New South Wales administrative arrangements for the acquisition of lands were made in the new Acts. However, the agreement between the Commonwealth and State executive governments, that the Commonwealth moneys would be used by New South Wales to compulsorily acquire land at below-​ market value, remained afoot so there was no doubt as to the purpose for which the money would be used. This new arrangement was unsuccessfully challenged in Pye v Renshaw (1951) 84 CLR 58. The Court stated (at 80): [T]‌he legislative power of the State is not affected by s 51(xxxi) of the Constitution. If a State Act provides for the resumption of land on terms which are thought not to be just, that is of no consequence legally: it cannot affect in any way the validity of the Act or of what is done under the Act. And the effect of Act No 14 of 1950 is to make it perfectly clear that all relevant legislation of the Parliament of New South Wales is intended to take effect unconditioned by any Commonwealth legislation and irrespective of the existence of any agreement between the Commonwealth and the State of New South Wales. To adopt the language of Webb J, already quoted, it cannot now be correct to say that, properly construed, the State Acts contemplate the existence of a valid agreement or of any agreement or scheme. There is no possible ground of attack on the validity of this legislation, there is no ground whatever for saying that it is inoperative, and all courts are bound to give effect to it according to its tenor.

The grants statute in Pye v Renshaw made no express mention of any land acquisition; it could thus not be characterised as a law with respect to land acquisition under s 51(xxxi), so the Commonwealth was able to escape the proviso of just terms therein.17 This case arguably discouraged the Commonwealth from formalising grants arrangements with the States. After all, a handshake agreement or administrative memo, combined with the political and economic pressure of a simple grant under s 96, may often be enough to achieve federal political aims.18 In any case, in Pye v Renshaw the Court dismissed any argument that s 51(xxxi) posed a limit to s 96 itself (at 83): The argument really comes to this. The Commonwealth cannot itself acquire land except upon just terms. A State can resume land on any terms, just or unjust, authorized by its Parliament. But the Commonwealth is not authorized by s 96 or any other provision of the Constitution to provide money for a State in order that the State may resume land otherwise than on just terms. This is the very argument which was rejected in Victoria v The Commonwealth (1926) 38 CLR 399: see also South Australia v The Commonwealth (1942) 65 CLR 373 at 417, where Latham CJ said: –​“The Commonwealth may properly induce a State to exercise its powers … by offering a money grant”.

17 See generally on s 51(xxxi), [12.10]-​[12.60]. 18 See D K Singh, “Legislative Schemes in Australia” (1964) 4 Melbourne University Law Review 355 at 361-​368.

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ICM Agriculture v Commonwealth (2009) 240 CLR 140 concerned the alteration of groundwater licences pursuant to New South Wales legislation, which implemented an intergovernmental water management agreement co-​funded by the New South Wales and Commonwealth governments, the latter by way of a s 96 grant. The agreement set out as a funding condition the reduction in groundwater entitlement for persons such as the plaintiffs. The plaintiffs claimed that the reduction in their groundwater entitlements breached s 51(xxxi). Their claim could not succeed unless Magennis was upheld.19 In ICM, Pye v Renshaw was distinguished and Magennis was confirmed. French CJ, Gummow and Crennan JJ, with whom Heydon J agreed,20 stated at 170: the legislative power of the Commonwealth conferred by s 96 … does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms.

Therefore, it seems that the Court has rejected the proposition that limitations on Commonwealth power in s 51 can be overridden by s 96 grants. Section 96 grants are subject to the requirement of just terms for compulsory acquisitions of property in s 51(xxxi). Similar reasoning may now apply to the prohibition on discrimination in s 51(ii), despite the decision in Moran’s case. In Attorney-​General (Vic) (Ex rel Black) v Commonwealth (DOGS case) (1981) 146 CLR 559, the High Court had to consider a challenge to s 96 grants that were made to States on the condition that the funds were distributed to certain non-​government schools. Some of the schools were owned and managed by religious institutions, such as the Catholic Church. One of the bases of challenge was that the conferral of the grants was in conflict with s 116, which prohibits, inter alia, the “establishment of any religion”. This challenge failed (see [12.80]). Had s 116 however been applicable, it was suggested that s 96 could not be used to evade its requirements. For example, Barwick CJ, with whom Gibbs and Aickin JJ agreed on this point, stated in obiter (at 576): Section 116 in terms applies to all laws, in my opinion, without exception. The Parliament “shall not make any law for establishing any religion”. I can find no acceptable reason for excluding from this universality an Appropriation Act or an Act granting money to a State pursuant to s 96.

Therefore, it seems that s 116, like s 51(xxxi), would trump a s 96 grant that placed conditions on a State which attempted to circumvent the guarantees therein.21

Conclusion on s 96 [10.40]  The decided cases confirm that the Commonwealth can utilise s 96 to wield enormous political power in areas outside its legislative control under the Constitution. The Commonwealth may attach a vast variety of conditions to its grants

19 Ultimately, no breach was found as no acquisition of property was found to have taken place (see [12.15]). 20 Hayne, Kiefel and Bell JJ at 199 did not decide the matter. 21 The limited protection of religion offered by s 116 is canvassed in [12.70]-​[12.90].

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to the States under s 96. States are not legally compelled to accept grants of financial assistance, but of course, they may be politically and economically compelled to do so. Having accepted a grant, a State must endure any applicable stipulations. The conditions must not be coercive and must be of a kind with which the States are constitutionally capable of complying. Beyond that, the limits to the grants power are uncertain. Cases have suggested that the grant may not be a “colourable device” to avoid constitutional limitations, though it is questionable how such “colourability” might be ascertained by a court. In any case, the Commonwealth cannot use s 96 to overcome prohibitions on its own power, such as those in s 51(xxxi) and s 116. According to Moran, s 99 has no application to s 96 grants. However, the reasoning in that case regarding s 51(ii) may no longer be regarded as sound, after the decision in ICM. The inexorable increase in the States’ financial dependence and the increasing centralisation of federal revenue raising capacity, combined with the breadth of political and economic power conferred by s 96, had made the use of tied grants a fundamental feature of federal financial arrangements. With the advent of the GST revenue grants, the States were promised more financial autonomy, but are not guaranteed of such and the fiscal balance remains unequal. GST revenue grants of course are not constitutionally secure.22 Furthermore, the GST reforms have not removed the possibility of future tied grants.

APPROPRIATION AND EXPENDITURE [10.45] The commentary at [10.10]-​ [10.40] addresses the breadth of the Commonwealth power to give grants to States, on such conditions as it thinks fit. It is possible, as evinced from the Moran and DOGS cases, that grant money can be given to the States on the basis that all of it is passed on to other non-​governmental entities within the State. In such a situation, the State is effectively a mere conduit for the money. However, it may not always be possible for the Commonwealth to depend on a State to facilitate its spending plans. A State is always legally able, if not always politically able, to refuse a grant. This section examines the extent of the power of the Commonwealth to appropriate and spend money on its own behalf, without the need to filter funds through the medium of the State.

Appropriations power [10.50]  Section 81 states: 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.

22 Indeed, political disputes arose regarding the distribution of the GST in 2005, with the Federal Treasurer threatening to cut the amount of GST payable to States unless they agreed to reduce some of their local State taxes, such as certain business taxes. See, for example, J Garnaut, “NSW Awaits Wrath of Costello on Tax”, Sydney Morning Herald, 22 April 2005.

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

Section 81 thus guarantees that all moneys collected by the government are stored in Consolidated Revenue. Section 83 ensures that money cannot be drawn from Consolidated Revenue except by an appropriation, authorised “by law”, that is legislation. Together, ss 81 and 83 ensure parliamentary control of the purse strings of government, one of the pillars upon which the system of responsible government is based (see [1.45]).23 Section 81 states that the Commonwealth may appropriate for “the purposes of the Commonwealth”. This appears to be narrower language than that used in s 96. It does not indicate, for example, that the Commonwealth can appropriate for any purpose. The breadth of s 81 arose in A-​G for Victoria (Ex rel Dale) v Commonwealth (Pharmaceutical Benefits case) (1945) 71 CLR 237. In that case, a majority found that the impugned statute, the Pharmaceutical Benefits Act 1945 (Cth), was not in fact authorised by s 81. Indeed, the statute plainly did far more than appropriate moneys; it regulated chemists and medical practitioners with regard to the prescription and supply of medicine, and also provided for the supply of certain medicines to the public by chemists without charge (for which money was appropriated to cover the costs). The majority found that the regulatory aspects of the statute could not be deemed incidental to the power of appropriation. Of importance here are the various views put by the Justices on the meaning of “purposes of the Commonwealth” within s 81. Latham CJ and McTiernan J took a broad view, holding that “the purposes of the Commonwealth” were the purposes as determined by the Commonwealth. Plainly, under this view, the words therefore authorise appropriation for any purpose. Williams J held that the federal division of powers limited the purposes for which the Commonwealth could appropriate money: all of the purposes had to be found “within the four corners of the Constitution” (at 282). Thus, the heads of legislative power found in ss 51 and 52, of executive power in s 61, and of judicial power in Chapter III largely determined the extent of the Commonwealth’s power to appropriate. According to Williams J, the Commonwealth could not appropriate for the purpose of providing free medicine, as such a purpose had no connection with any matter within its heads of power. Dixon, Starke and Rich JJ adopted a middle position. They agreed that the Commonwealth’s power to appropriate was limited. However, the Commonwealth could appropriate moneys for purposes which were “incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government” (per Dixon J at 269). Thus, by virtue of its status as the national as opposed to regional government, extra purposes had accrued for the Commonwealth for which it could

23 See J Waugh, “Evading Parliamentary Control of Government Spending: Some Early Case Studies” (1998) 9 Public Law Review 28, for pre-​federation and State examples of executive expenditure without legislative authority.

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appropriate money. These judgments are referring to the “nationhood power” (see [5.65]-​[5.85]). Whatever the scope of this power, it did not authorise the provisions at issue in the case. In response to the Pharmaceutical Benefits case, a referendum was held whereby s 51(xxiiiA) was added to the Constitution to give the Commonwealth explicit power over various welfare benefits, including pharmaceutical entitlements. The case also indicated that the Commonwealth’s s 81 powers were narrow compared to its powers under s 96. The Commonwealth therefore used the s 96 mechanism to facilitate its spending plans for the next few decades. Section 81 did not return to the High Court until Victoria v Commonwealth and Hayden (AAP case) (1975) 134 CLR 338. The Australian Assistance Plan (AAP) was an ambitious spending program of the Whitlam Government. It was designed to bypass the States and fund 35 Regional Councils throughout Australia to carry out work in various areas of social development, some of which were clearly outside the Commonwealth’s enumerated legislative powers. To this end, the Commonwealth appropriated $5.97 million. The State of Victoria sought a declaration that the appropriation was invalid, and sought to restrain any expenditure thereof for the purposes of the AAP. A majority found that the appropriation was valid, though for a variety of reasons. McTiernan, Mason and Murphy JJ followed the broad view of s 81, and determined that “purposes of the Commonwealth” referred to such purposes as determined by the Parliament to be Commonwealth purposes. That definition essentially gives the Commonwealth Parliament power to appropriate for any purpose. Stephen J found that the Act was valid as the State of Victoria and its Attorney-​ General had no standing to challenge the relevant appropriations statute. The statute itself conferred no rights or duties on any person, including Victoria. For example, no person could make a claim on the money, even after its explicit allocation within the government’s budget. It is difficult to imagine, under Stephen J’s view, who might have standing to challenge an appropriations statute. Thus, it appears that most, if not all, appropriations statutes were valid by default according to Stephen J. In contrast, Barwick CJ found (at 366) that the States’ interest in surplus Commonwealth revenue under s 94 of the Constitution ensured Victoria’s standing in the case. Other Justices justified Victoria’s standing on the basis of the States’ general interest in ensuring the integrity of the federal constitutional arrangements. Jacobs J went further than Stephen J in finding that s 81 appropriations were non-​ justiciable as they concerned “matters internal to government” (at 410) and that they merely earmarked money for certain purposes. Under Jacobs J’s view, appropriations statutes are de facto valid as they are beyond legal challenge. Barwick CJ and Gibbs J dissented, adopting a narrower view of the meaning of “purposes of the Commonwealth”. The Commonwealth could only appropriate for purposes within Commonwealth power. Like Dixon, Starke and Rich JJ before him, Barwick CJ conceded that special “national” projects might implicitly be within power. However, the AAP did not come within this nationhood power, according to the Chief Justice. The status quo regarding appropriations after AAP was that appropriations statutes were valid because either: (a) the Commonwealth was free to determine the purposes

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for which it could appropriate money; or (b) the appropriations Act could not be legally challenged. In Davis v Commonwealth (1988) 166 CLR 79, Mason CJ, Deane and Gaudron JJ stated (at 95) that the AAP case stood as “authority for the proposition that the validity of an appropriation act is not ordinarily susceptible to effective legal challenge”. Section 81 returned to the Court in Pape v Commissioner for Taxation (2009) 238 CLR 1. In that case, Gummow, Crennan and Bell JJ stated (at 75): There is no support in the text or structure of the Constitution for the construction for which the plaintiff contends in his second submission, treating the phrase in s 81 “for the purposes of the Commonwealth” as containing words of limitation of legislative power.

In Pape, Hayne and Kiefel JJ considered whether “the purposes of the Commonwealth” were words which limited the power of appropriation. They decided at 108 that the issue did not need to be decided. They also noted the following (at 111-​112): In Victoria v The Commonwealth and Hayden (“the AAP case”), McTiernan J concluded that the question of what is a purpose of the Commonwealth was “non-​justiciable”. In Attorney-​General (Vict) v The Commonwealth (“the Pharmaceutical Benefits case”), Latham CJ described the question as a “political matter”. It is not necessary to adopt either of those paths of reasoning to conclude that asking whether a particular appropriation can be described as being for a purpose of the Commonwealth will seldom if ever yield an answer determinative of constitutional litigation in this Court. There are at least two reasons why that is so. First, the generality with which appropriations are ordinarily expressed will not readily permit examination of whether the purposes thus identified are purposes of the Commonwealth. Secondly, if there is a plaintiff (other than a State Attorney-​General) who has standing to challenge a particular expenditure, the question at issue will be about a particular application of money to a particular purpose. That is an inquiry that will turn upon the ambit of the power (legislative or executive) that is said to be engaged if the expenditure is made.

The majority in Pape thus indicated that it remains unlikely that an appropriation will be challengeable.24 However, all members of the Court confirmed that ss 81 and 83 did no more than constitutionally enshrine the principle that executive expenditure must be authorised by a valid appropriation by the legislature, that is provide for the bare earmarking of money and separation of that money from the Consolidated Revenue Fund by the legislature. Sections 81 and 83 did not confer a power to spend appropriated moneys on the federal government.25 Williams v Commonwealth (2012) 248 CLR 156 confirmed this interpretation of ss 81 and 83. The Commonwealth’s powers of expenditure are discussed at [10.55]. Nevertheless, appropriations have been challenged in the following cases. Brown v West (1990) 169 CLR 195 concerned a challenge by a member of the federal parliament to a government decision to raise the postal allowance for parliamentarians. The standing of the plaintiff was not expressly mentioned in the case, but it may be assumed that he had an interest in knowing the extent of his postal allowance. The High Court found that there had not been a relevant appropriation authorised 24 Heydon J did not decide the issue at 199. French CJ dissented on this point in finding (at 45) that “the purposes of the Commonwealth” were in fact “words of constraint”. 25 See, for example, French CJ at 55.

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by law. It stated (at 208) that “an appropriation … must designate the purpose or purposes for which the moneys appropriated might be expended”. In other words, the Court endorsed Latham CJ, who had stated (at 253) in Pharmaceutical Benefits that “[t]‌here cannot be appropriations in blank for no designated purposes, merely authorising expenditure with no reference to purpose”. Thus, it appears that the determination of the purposes of an appropriation cannot be delegated to a Minister, as such a delegation would undermine effective parliamentary control of executive expenditure. In Combet v Commonwealth (2005) 224 CLR 494, the appropriation of moneys by the Howard Government to fund advertisements promoting its planned reform of industrial relations laws, the “Work Choices” policy, was challenged. The plaintiffs, a trade union official and the Shadow Attorney General, claimed that the appropriation was not authorised by any Act of Parliament and was thus ultra vires. The case turned on the construction of the relevant appropriation legislation, Appropriation Act (No 1) 2005-​06 (Cth) rather than on constitutional doctrine. The majority found that the appropriation was authorised by that Act and therefore valid. Gummow, Hayne, Callinan and Heydon JJ interpreted the Act (at 576) as requiring that the expenditure merely be classified as “departmental expenditure”, that is expenditure by a Commonwealth government department. Of course, the expenditure satisfied that criterion. As noted by the dissenters, McHugh (at 553-​554) and Kirby JJ (at 650-​651), the joint judgment seemed to come close to authorising the appropriation of money for no purpose, contrary to Brown v West. Wilkie v Cormann (2017) 91 ALJR 1035; 349 ALR 1 concerned a challenge to government’s power to appropriate funds to hold a national postal survey on the views of Australians on same sex marriage. The government had appropriated money in its May 2017 budget to hold a plebiscite on whether to change existing law to permit same sex marriage, but the relevant legislation for the plebiscite was blocked in the Senate.26 The government then decided to hold a national postal survey on same sex marriage to be conducted by the Australian Bureau of Statistics (ABS). Importantly, the expenditure was authorised under s 9 of the Census and Statistics Act 1905 (Cth).27 However, a further $122 million was needed to fund the survey, beyond what had been specifically awarded to the ABS in the annual budget. Section 10 of the Appropriation Act (No 1) 2017-​2018 (Cth) allowed advances of up to $295 million to be made to the Finance Minister where the Minister was satisfied there was an “urgent need” for expenditure that was “unforeseen”. The Minister accordingly made the required statement in August 2017 that he believed the appropriation for the survey was “urgent” and “unforeseen”, in order to appropriate $122 million for the survey. A case was brought to challenge the appropriation by supporters of same sex marriage, including an independent Member of Parliament, 26 The main reason for the blocking of the plebiscite was that advocates of same sex marriage wanted the Parliament to simply pass legislation to recognise such marriages, rather than to first hold a plebiscite which would be accompanied by divisive and potentially hurtful political debate about the lifestyles of gays and lesbians. 27 As noted at [10.55], expenditure must be authorised by an Act of Parliament beyond the Appropriations statutes.

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Andrew Wilkie.28 Ultimately, the High Court rejected the challenge in a unanimous decision and therefore did not ultimately decide if the plaintiffs had standing (at 1047). One of their submissions was that s 10 was invalid as it purported to confer a power on the executive to appropriate moneys for any purpose outside constraints imposed by Parliament under a proper Appropriation Act. The High Court rejected that argument. First, it noted that provisions like s 10 had long been included in Appropriations Acts. Secondly, it explained that s 10 did not itself appropriate moneys. Rather, s 12 of the Appropriation Act (No 1) 2017-​2018 (Cth) acted to ensure that an amount of $295 million was available under s10, if called upon by the Minister. Section 12 simply stated that “[T]‌he Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act”, including s 10. At 1052: The power of the Finance Minister to make a determination under s 10(2) of Appropriation Act No 1 2017-​2018 is not a power to supplement the total amount that has otherwise been appropriated by Parliament. The power is rather a power to allocate the whole or some part of the amount of $295 million that is already appropriated by s 12 Nor is the power of the Finance Minister to make a determination under s 10(2) of Appropriation Act No 1 2017-​2018 at large if the precondition to the exercise of that power set out in s 10(1) is met.

To recap, the “precondition” was that the expenditure was deemed by the Finance Minister to be urgent and unforeseen. The High Court went on to address the fact that s 10 does not spell out a particularly specific purpose for any appropriation thereunder. At 1052: Passing scepticism has from time to time been expressed academically, in the Senate and in this Court as to how the Advance to the Finance Minister or the Treasurer in the form in which it existed in the century before enactment of Appropriation Act No 1 1999-​2000 could be reconciled with the constitutional requirement for an appropriation to be for a legislatively determined purpose. The reconciliation lies in recalling that the degree of specificity of the purpose of an appropriation is for Parliament to determine. The constitutional requirement for Parliament to determine the purpose of an appropriation cannot be so constraining of legislative options as to ignore “practical necessity”. The Joint Committee of Public Accounts observed in a report on the Advance to the Finance Minister published in 1988 that the Advance is “necessary for the smooth running of the Government”. The Joint Committee went on to explain: In the normal course of events detailed specific appropriations for expenditure are passed by the Parliament in the Appropriation Acts prior to actual expenditure. However, there will always be cases where, due to various reasons particularly in urgent and unforeseen circumstances, moneys will be required for expenditure before the next Appropriation Bills are passed by the Parliament. The restrictions legislatively imposed on the application of the Advance to the Finance Minister have been no less stringent in the nearly two decades since the enactment of

28 While the plaintiffs supported same sex marriage, they did not want the postal survey to go ahead for fear of a divisive, hurtful, public debate surrounding that survey.

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Appropriation Act No 1 1999-​2000 than they were in the century before. Neither in this century nor the last has the standard legislative provision for the Advance to the Finance Minister contravened the constitutional requirement that an appropriation be for a legislatively determined purpose. The constitutional challenge of the plaintiffs in the Wilkie proceeding, for those reasons, failed.

The plaintiffs also argued that the Minister had not actually complied with the conditions of s 10. They disputed that the Minister could have been “satisfied” that there was “an urgent need” for expenditure which was “unforeseen” at the date the budget was introduced in Parliament in May 2017. The “need” for a survey was only driven by the failure of the Senate to approve the government’s preferred option of a plebiscite. Furthermore, expenditure on a similar process, the proposed plebiscite, had clearly been foreseen. The Court rejected these arguments. It concluded that a “need” is something “which ought to occur” –​not something that is “critical or imperative” (at 111).  “Urgency” was a “relative concept”. If the Minister was satisfied that the expenditure should be made before the next Appropriation Act was due to be passed, “urgency” was made out (at 113). Finally, the interpretation of “unforeseen” was simply “expenditure [that was] unforeseen by the Executive Government” (at 1056). The foreseeability of “other expenditure directed to achieving the same or a similar result” (at 1056), such as the intended expenditure on a plebiscite, was not relevant. These interpretations indicate that the preconditions for s 10 advances have little substantive effect, or that the High Court will not subject s 10 advances to significant scrutiny as to whether its preconditions have been satisfied. Hence, Wilkie follows Combet in permitting the purposes of appropriations to be only minimally specific, despite Brown v West. Indeed, as noted in both cases, “the degree of specificity of the purpose of an appropriation is for Parliament to determine”. Arguably, these decisions undermine the basic constitutional principal of responsible government that appropriations must be made by and their purposes constrained by, Parliament.29

Power to spend appropriated moneys [10.55]  A clear understanding of the Commonwealth’s power to spend appropriated moneys is impossible without an understanding of the executive’s constitutional spending power (see [5.55]), including spending under its “nationhood power” (see [5.70]). The following commentary must therefore be read in conjunction with that other material. The power to appropriate money is clearly very broad. However, the utility of this power is limited if the Commonwealth has no corresponding power to spend appropriated money, or to authorise such expenditure by the executive (given that the administration of expenditure will normally be delegated to the executive).

29 A Twomey, “Constitutional Law: A Tale of Two Cases: Case Note –​Wilkie v Commonwealth and Re Canavan” (2018) 92(1) Australian Law Journal 17.

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A 4:3 majority in AAP confirmed the validity of the executive’s power to spend the appropriated money on the AAP, compared with the 5:2 majority regarding the legislative power to appropriate per se. Murphy and McTiernan JJ linked the power to spend moneys with the legislative power to appropriate. As they found that the Commonwealth could appropriate money for such purposes as it saw fit, they consequently found that the Commonwealth had a similarly broad power to authorise expenditure of that money for those purposes. Barwick CJ and Gibbs J also linked the two powers. As, in their minority view, the Commonwealth could not appropriate the money, it plainly could not authorise expenditure on the AAP. Stephen J did not comment on the power to spend money, as he found that the plaintiffs lacked standing. Mason and Jacobs JJ split up the issues of appropriation and expenditure. The validity of the former did not necessarily imply the validity of the latter. Mason J, we may recall, found that the Commonwealth could appropriate for any purpose. However, he then stated (at 396): But this is not to say that the Commonwealth has an unlimited executive power or that a statutory appropriation provides lawful authority for the engagement by the Commonwealth in particular activities. An appropriation, as I have explained, has a limited effect. It may provide the necessary parliamentary sanction for the withdrawal of money from Consolidated Revenue and the payment or subscription of money to a particular recipient or for a particular purpose but it does not supply legal authority for the Commonwealth’s engagement in the activities in connexion with which the moneys are to be spent. Whether the Commonwealth can engage in any specific activities depends upon the extent of the Commonwealth’s legislative, executive and judicial powers.

In Mason J’s view, the executive’s power to administer the expenditure of that money was circumscribed by the Commonwealth’s legislative powers, including the nationhood power. His Honour found that the planned AAP expenditure was outside those powers, and would thus be invalid. Jacobs J, having found appropriations non-​justiciable, nevertheless discussed the validity of the planned AAP expenditure. Unlike Mason J, he gave a very broad interpretation to the content of the nationhood power, seeming to incorporate within it the power of the Commonwealth to spend on any purpose. He also found that the executive had an inherent power to spend appropriated moneys (see [5.70]). Therefore, he found that the planned AAP expenditure would be valid. Thus, it appeared after AAP that the Commonwealth had a broad power to authorise the expenditure of appropriated moneys on such purposes as the legislature saw fit. However, as with the Pharmaceutical Benefits case, the AAP case lacked a coherent majority on the scope of the federal government’s power to spend.30 The AAP case also generated an assumption that expenditure was itself authorised under the appropriations power in s 81.

30 C Saunders, “The Development of the Commonwealth Spending Power” (1978) 11 Melbourne University Law Review 369 at 372-​373, 401 and 403.

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The federal power of expenditure arose again in Pape v Commissioner of Taxation (2009) 238 CLR 1. Pape was a taxpayer who challenged certain aspects of a federal government stimulus package adopted to combat the effects of the global financial crisis in 2008-​2009. Under the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) and the Tax Bonus for Working Australians (Consequential Amendments) Act 2009 (Cth), the government was authorised to pay out means-​tested bonuses to taxpayers who earned less than $100,000 in taxable income in fiscal year 2007-​2008. The payments ranged from $250 (for the highest earners) up to $900 per person. Pape himself was entitled to the $250 bonus. He claimed the payment of his bonus, as well as all bonuses under the Act, were invalid. The Commonwealth conceded that Pape had standing to challenge his own payment. The Court consequently found that if Pape’s payment was found to be invalid, that finding would logically extend to all payments. It was not possible to confine the finding to Pape’s own entitlement.31 Thus, Pape had the requisite standing to challenge the entire bonus scheme. No member of the Court agreed that ss 81 and/​or 83 conferred a power to spend appropriated moneys upon the executive. Thus, the views of McTiernan and Murphy JJ from AAP were rejected. For example, French CJ stated (at 55): Substantive power to spend the public moneys of the Commonwealth is not to be found in s 81 or s 83, but elsewhere in the Constitution or statutes made under it. That substantive power may be conferred by the exercise of the legislative powers of the Commonwealth. It may also be an element or incident of the executive power of the Commonwealth derived from s 61, subject to the appropriation requirement and supportable by legislation made under the incidental power in s 51(xxxix).

Gummow, Crennan and Bell JJ stated (at 73): Once the nature of the process of parliamentary appropriation is appreciated, the sections of the Constitution which provide for it do not serve as sources of a “spending power” by the width of which is determined the validity of laws which create rights and impose obligations or otherwise utilise the supply approved by an appropriation.

Heydon J stated (at 212-​213): [A]‌ n appropriation of money is simply the earmarking or segregating of it from the Consolidated Revenue Fund. Hence, at most, s 81 could confer a power so to earmark or segregate. Section 81 does not create a “legislative power” to confer on the Executive the power to spend what is appropriated.

Therefore, valid government expenditure must be preceded by a valid appropriation by the legislature. However, the power of expenditure per se is not found in s 81 and therefore must be located within the heads of power in, for example, ss 51, 52 or 122. Section 51 includes s 51(xxxix), the express incidental power of the legislature to legislate for matters incidental to federal judicial power and, importantly in this case, federal executive power in s 61.

31 See, for example, French CJ at 34; Gummow, Crennan and Bell JJ at 69; Hayne and Kiefel JJ at 99; Heydon J at 138.

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In the result in Pape, six out of the seven judges (Heydon J dissenting) found that there was an appropriation to cover the actual bonuses. However, such a finding was not enough to validate the expenditure, that is the paying out of the bonuses, as s 81 does not encompass a power of expenditure. The finding regarding the appropriation merely satisfied a constitutional precondition for expenditure. A majority of French CJ, Gummow, Crennan and Bell JJ found that the expenditure was authorised by the legislature under s 51(xxxix) as an incident to the executive’s implied nationhood power in s 61 (see [5.70]). The minority found that the expenditure was not so authorised, though Hayne and Kiefel JJ found that the payment of most of the bonuses could be supported as refunds under the tax power in s 51(ii).32 Heydon J in dissent found (at 211-​212) that the relevant legislation was outside all constitutional heads of power, so it was invalid. The full ramifications of Pape were exposed in Williams v Commonwealth (2012) 248 CLR 156, which confirmed significant and hitherto unanticipated restrictions on the federal government’s power to spend money. Williams involved a challenge to the Commonwealth’s funding of school chaplains in public schools. The majority found that the plaintiff had standing to challenge the funding, given he was the parent of children attending a school which received such funding,33 and given the intervention of Victoria and Western Australia in support of the challenge.34 The funding was not authorised by any statute. The Commonwealth made two arguments regarding the validity of its expenditure –​a broad basis and a narrow basis. The broad basis was that the Commonwealth executive has unlimited power to spend money, just like any other juristic person. The Court (Heydon J not deciding) denied that contention, as explained at [5.55]. One of the many concerns raised against the broad argument was that such a power would render s 96 superfluous:35 the Commonwealth executive could spend money directly on projects rather than go through the comparatively onerous process of obtaining State consent to a legislatively conferred grant. The narrower basis was that the Commonwealth executive could spend money within the subject matters of the heads of federal legislative power (for example, ss 51, 52 and 122) without statutory authorisation. That is, it could expend money when the federal Parliament could authorise such expenditure by statute. This contention was also rejected by the majority, as again explained at [5.55]. Heydon J accepted the narrower proposition (for example, at 296) and duly found the expenditure to be valid as he felt it concerned a matter within s 51(xxiiiA) (at 333). Hayne (at 281) and Kiefel (at 366) JJ ultimately found that the spending came within the subject matter of no head of power, so there was no need to decide whether 32 The payments were supported to the extent that they were smaller than or equal to the amount of tax paid by a taxpayer in the relevant fiscal year. Under this judgment, the lowest earners, who paid minimal tax, would have received a significantly smaller bonus. 33 Heydon J at 293 stated that the special interest required for standing was “not limited to material interests” but could “include points of conscience”. 34 See Gummow and Bell JJ at 223-​224, with whom French CJ (at 181-​182) and Hayne J (at 240) agreed. 35 See Hayne J at 269 and 270-​271.

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the narrower proposition was correct. The majority found that spending by the executive must generally be authorised by federal legislation under a federal head of power. The spending on school chaplains, without any statutory basis, was found unconstitutional. Importantly, it was confirmed that an appropriations statute under s 81 does not of itself authorise the expenditure of appropriated money: another statute under another head of power is needed. The Parliament responded to the Williams decision by inserting a new s 32B into the Financial Management and Accountability Act 1997 (Cth), which purported to retrospectively validate numerous government spending schemes, including the school chaplaincy program. In Williams v Commonwealth (No 2) (2014) 252 CLR 416 the plaintiff again challenged the federal government’s expenditure on the school chaplaincy program. That expenditure was unanimously found to be unconstitutional. All judges followed the earlier Williams decision in finding that legislation beyond the appropriations statutes is needed to authorise federal expenditure. It found that neither the payments nor the funding agreement were validly authorised by s 32B, as payments for the program could not be supported by any of the legislative powers of the Commonwealth Parliament. Hence, they supported the findings of Hayne and Kiefel JJ in Williams, to the effect that the Parliament simply lacks legislative power over the provision of chaplains to schools, and rejected that of Heydon J, who had found that such power was located within s 51(xxiiiA).36 Hence, the power of the Commonwealth to spend appropriated moneys is not grounded in ss 81 or 83 but must be found in legislation authorised under another head of power. However, as noted at [5.30] and [5.55], the executive has autonomous powers to spend money under s 64 of the Constitution, as well as, possibly, the nationhood power.

Conclusion on appropriations and spending [10.60]  Prior to Pape, the status quo appeared to be that the Commonwealth Parliament could appropriate and authorise expenditure of those appropriated moneys for virtually any purpose. However, Pape and especially the Williams cases have significantly restricted Commonwealth powers of expenditure. It is now clear that legislative authorisation beyond a s 81 appropriations statute is needed in most instances. Indeed, many instances of federal expenditure may in fact be invalid. The Williams cases signal a need for the increased use of s 96 as a means to carry out federal funded programs. However, the power to appropriate moneys remains broad, with Combet and Wilkie confirming that very little specificity is needed in delineating the “purposes” for which money has been allocated. As demonstrated in Wilkie, this can mean that the executive retains significant discretion in conducting spending program, even post-​Williams.

36 See also [3.75] regarding Williams.

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Chapter 11

Freedom of Interstate Trade, Commerce and Intercourse [11.10]

[11.30]

[11.75] [11.80]

A BRIEF HISTORY OF SECTION 92................................................................................................. 404 [11.15] “Trade and commerce”....................................................................................................... 405 [11.20] Early interpretations of s 92............................................................................................... 405 [11.25] The “individual rights” approach and consequent confusion...................................... 406 A FRESH START FOR SECTION 92.................................................................................................. 407 [11.35] The triumph of the “free trade” theory............................................................................ 408 [11.40] What is “discrimination”?.................................................................................................. 411 [11.45] What is “protectionism”?................................................................................................... 411 [11.50] Export restrictions and s 92................................................................................................ 416 [11.55] Proportionate regulation as an exception........................................................................ 418 [11.60] A new direction for s 92? Betfair 1.................................................................................... 423 [11.65] Betfair 2: Discrimination against who or what?.............................................................. 426 [11.70] Conclusion............................................................................................................................ 429 FREEDOM OF INTERSTATE INTERCOURSE................................................................................ 430 SECTION 92 AND THE TERRITORIES............................................................................................ 433

[11.05]  The operative paragraph of s 92 of the Constitution states: 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.

For almost 90 years the section presented a considerable obstruction to government control or regulation of commercial activity within Australia; consequently it has been the most litigated section of the Constitution, giving rise to some 140 cases.1 These ongoing challenges were indicative of the difficulty the Court had in giving any agreed precise meaning to the words in the provision. What is “trade and commerce among the States”? What is interstate “intercourse”? What are they “free” from? What does “absolutely” mean?

1 D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), pp 1035-​1036. See also G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), p 1263.

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Federal Constitutional Law: A Contemporary View

There are many ambiguities apparent in the open language of s 92. It has been said that s 92 expressed a slogan, rather than any constitutional principle.2 Indeed, in 1958, Sir Robert Garran lamented that:3 More than fifty years ago in Australia we issued clean from the press a beautiful constitution. A choice bit was section 92 –​and look what a mess we have made of it! I have been musing over the judgments upon it, and frankly, I want to burn the lot!

It was not until the High Court adopted a unanimous interpretation in Cole v Whitfield (1988) 165 CLR 360 that the interpretation of s 92 became stable and governments could draft regulatory standards for trade and commerce with some degree of confidence. Section 92 prohibits measures that place discriminatory protectionist burdens upon interstate trade and commerce. Despite the apparent simplicity of the Cole test, new complications have arisen in the post-​Cole cases.

A BRIEF HISTORY OF SECTION 92 [11.10]  At the end of the 19th century, the question of protection of local industries was a source of great political debate. Victoria, South Australia, Tasmania and Queensland adopted high levels of protection for their industries, but New South Wales remained committed to free trade, and sought an unrestricted market for its agricultural and manufactured products. In fact, the resolution of the question of protection of local production and manufacture was one of the major motives for the formation of the Federation. The protectionist colonies adopted laws and tariffs which treated local and intercolonial products or commodities differently by reason of their origin: duties would be imposed on the imported product, but not on the home-​produced product. These discriminatory burdens were “protectionist”, as they were designed to protect the businesses of local industries from those of intercolonial competitors, which had to carry the extra tariffs or burdens. There were also non-​fiscal barriers to intercolonial free trade, such as the imposition of quotas for goods of non-​local origin, and the setting of more onerous standards and specifications for goods imported from other Australian colonies as compared to local goods. In Cole v Whitfield, the High Court looked back at the history of the creation of s 92, and concluded that the purpose of the section was to eliminate these protective tariffs and non-​fiscal barriers to free trade. Section 92 was designed to ensure that the Australian States would become a free trade area, in which governmental discrimination against interstate trade and commerce would be prohibited. To use the language of the Court (at 391): The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny the Commonwealth and States alike the power to prevent or obstruct the free movement of people, goods and communications across State boundaries. 2 G A Moens and J Trone, Lumb, Moens and Trone’s The Constitution of the Commonwealth of Australia Annotated (9th ed, LexisNexis Butterworths, Chatswood, 2016), p 401. 3

R Garran, Prosper the Commonwealth (Angus & Robertson, Sydney, 1958), p 413. Six years earlier, Latham CJ, in a speech upon his retirement, from “Retirement of Chief Justice” (1952) 85 CLR ix, stated: “When I die, s 92 will be found written on my heart.”

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The High Court has always drawn a distinction between the “trade and commerce” part of s 92, and the “freedom of interstate intercourse” that is also guaranteed within the section. The first and greater part of this chapter examines the trade and commerce aspect, which has attracted the bulk of judicial attention, while the latter part of the chapter examines interstate intercourse.

“Trade and commerce” [11.15]  The definition of “trade and commerce” was established in W & A McArthur Ltd v Queensland (1920) 28 CLR 530. In that case the High Court accepted that the ordinary meaning of the term was applicable, and it should be interpreted by reference to commercial usage, as understood by traders and commercial people, rather than be subjected to a legalistic interpretation by lawyers and judges. More specifically the Court held (at 547): The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport, and the delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls “trade and commerce”.

This liberal treatment of the term “trade and commerce” would encompass more than just the trade in goods. Intangibles such as transmission of money, or even the “pursuit of a calling or handicraft”, will be a part of trade and commerce, according to Dixon J in Bank of NSW v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1 at 381. The greatest interpretative difficulties arising from s 92 have not arisen with regard to the definition of “trade and commerce”, but rather with regard to the notion that “interstate” trade and commerce should be “absolutely free”.

Early interpretations of s 92 [11.20]  The earliest decisions on s 92 followed the “free trade” conception of the section. In Fox v Robbins (1909) 8 CLR 115 the High Court held that Western Australia could not discriminate against interstate trade by fixing the fee for liquor licences at different rates dependent on whether alcohol made within or outside the State was sold. In that case a Western Australian shop proprietor sold wine produced locally, for which he had to pay a licence fee of two pounds. He also sold wine produced in Victoria, but to sell that wine he had to pay a licence fee of 50 pounds. The Court decided that that the licence fee contravened s 92, as it discriminated against the sale of wine produced outside of Western Australia. The Court found the scheme was aimed at shielding the local industry against interstate competition. In the s 92 cases that followed Fox, judicial divisions soon emerged. Some justices followed the free trade approach, and tested whether the law in question discriminated against interstate trade, in order to find a breach of s 92. But others started applying an alternative test, focusing on the wide language of s 92, and particularly the word “absolutely”, as explained at [11.25].4 4 See, for instance, the divergent opinions in Ex parte Nelson (No 1) (1928) 42 CLR 209, James v Cowan (1930) 43 CLR 386 at 399 and before the Privy Council in James v Cowan (1932) 47 CLR 386, and Peanut Board v Rockhampton Harbour Board (1933) 48 CLR 266.

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Federal Constitutional Law: A Contemporary View

The “individual rights” approach and consequent confusion [11.25]  The 19th century “laissez-​faire” approach to economic regulation asserted that the individual should be free to trade without governmental regulatory constraint. Laissez-​ faire philosophy took freedom of the individual as its pre-​ supposition; the term is used to describe a liberal economy where the activities and regulation by the government are kept to an absolute minimum.5 Any constraints upon a person’s freedom were to be justified on the grounds of “social necessity”. Such a theory, based on the writings of John Stuart Mill, permitted one to do as one pleased unless one interfered with the freedom of another. The word “absolutely” in s 92, in combination with this laissez-​faire philosophy, amounted to an invitation to the justices to treat s 92 as a guarantee of individual trading rights. The “individual rights” interpretation was broader than the “free trade” approach in that the latter targeted only discriminatory burdens on interstate trade, rather than all burdens. For example, in McArthur’s case Isaacs J said: the words “absolutely free” in s 92 cannot be confined to pecuniary exactions or customs laws … in order to have any substantial effect [they must] have their natural meaning of absolute freedom from every sort of impediment or control by the states with respect to trade commerce and intercourse between them.

Isaacs J was referring to the open language of s 92. This analysis made it possible for High Court judges, including the highly influential Dixon CJ, to develop an interpretation of s 92 which gave rise to an individual right to trade, free from regulatory control or regulatory interference. As a result of the judicial shift amongst some justices from the free trade theory to the individual rights theory, the decisions on s 92 became marked by what were well described as “sharp differences in opinion, shifts in approach, conceptual inconsistencies and general confusion”.6 After much vacillation between the approaches to s 92, the High Court endorsed the individual rights theory in Bank Nationalisation case. In 1947 the federal Labor government oversaw the enactment of the Banking Act 1947 which purported to bring all private banks in Australia under the control of the Commonwealth; the private banking industry was to be nationalised. Most of the Commonwealth’s scheme was found invalid because it contravened s 51(xxxi) in amounting to an acquisition of property by the Commonwealth without the provision of just terms (see [12.25]). A majority of the Court also found that the Banking Act 1947 (Cth) violated s 92. There was no discrimination between interstate and intrastate trade and commerce evident in the Banking Act 1947 (Cth). Thus, under the free trade analysis of s 92, there would have been no violation of s 92. However, analysing the Act in light of the individual rights theory the High Court found that the Banking Act 1947 (Cth) prohibited private banks from carrying on the 5 See, for example, the series of United States’ cases which guaranteed “liberty” for employers to exploit employees without the constraints of labour protection laws, such as Lockner v New York 198 US 45 (1905). 6

P Hanks, Constitutional Law in Australia (2nd ed, Butterworths, Chatswood, 1996), p 519. For more detail on the interpretations of the High Court during this period, see J Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), Chapters 6-​7.

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interstate business of banking. Interstate private banking was therefore not absolutely free, so the law was held to violate s 92. The Privy Council endorsed this aspect of the High Court’s decision on appeal in Commonwealth v Bank of New South Wales (1949) 79 CLR 497. Any governmental controls which directly restricted interstate trade would offend s 92, even if the burden of the controls fell equally upon interstate and intrastate trade. The strong endorsement of the individual rights theory in the Bank Nationalisation case placed a wide range of governmental controls in peril: any regulation of trade and commerce that amounted to a restriction or impediment on interstate trade and commerce potentially would be struck down. Given the enormous prohibitive effect of the individual rights interpretation of s 92 on governmental power, it is not surprising that the High Court (and Privy Council) in the Bank Nationalisation case endorsed two qualifications or reservations to s 92. First, some reasonable regulation of interstate trade was permissible and compatible with the absolute freedom concept. This assessment was based on political or policy considerations; the distinctions between impermissible restrictions and permissible regulation formed the basis for further judicial division within the Court.7 Second, s 92 would strike down direct or immediate restrictions on interstate trade and commerce, rather than indirect or consequential impediments.8 The Court would identify whether the precise fact or circumstance that attracted the legal operation of the statute (as opposed to its substantive effect) was part of interstate trade and commerce. If the restriction did not directly restrict trade and commerce in its legal operation, it did not contravene s 92. This “criterion of operation” approach to interpreting laws was excessively formalistic, concentrating on the exact words of the law at the expense of the factual context of the law’s operation.9 These exceptions to s 92 led to increasing uncertainty over the types of regulation or control of trade and commerce that would breach s 92, and seemingly inconsistent High Court decisions. Furthermore, some justices, such as Murphy and Mason JJ, resurrected the prospects of a narrower interpretation. It is fair to say that by the mid-​1980s the law regarding s 92 was an unpredictable mess, which unduly frustrated attempts by both the Commonwealth and State governments to regulate trade and commerce effectively. Indeed, “[s]‌omewhere along the line, things [had] gone wrong”, warned Deane J in Miller v TCN Channel Nine (1986) 161 CLR 556 at 618.

A FRESH START FOR SECTION 92 [11.30] In Miller’s case Mason J observed that (at 571): The judgments [on s 92] demonstrate in convincing fashion that there is now no inter­ pretation of s 92 that commands the acceptance of the majority of the Court. … the Court has a responsibility to undertake a fundamental re-​examination of the section. 7 See, for example, Permewan Wright v Trewhitt (1979) 145 CLR 1 and Uebergang v Australian Wheat Board (1980) 145 CLR 266. 8

See Wragg v New South Wales (1953) 88 CLR 353 and Bartter’s Enterprises v Todd (1978) 139 CLR 499.

9 The “criterion of operation” approach mirrored the “criterion of liability” approach taken to s 90. See [9.35].

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Federal Constitutional Law: A Contemporary View

The following year, in 1987, Mason J was appointed Chief Justice of the High Court. He immediately led the re-​examination of s 92 when Cole v Whitfield came before the Court in June of that year.

The triumph of the “free trade” theory [11.35]  The facts of Cole v Whitfield were as follows: Whitfield, a crayfish trader, was charged with unlawful possession of undersized crayfish. This was prohibited by the Sea Fisheries Regulations 1962 (Tas), enacted under the Fisheries Act 1959 (Tas). The crayfish had been imported into Tasmania from South Australia with the intention to sell them. There was no dispute that the crayfish that were the subject of the unlawful possession charge were above South Australian “minimum size” specifications, but were “undersized” according to Tasmanian law. Whitfield argued that the Tasmanian regulations amounted to a burden on his interstate trade in the commodity, and thus violated s 92. The High Court discussed the historical merits of the “free trade” theory (at 392-​393): Attention to the history … may help to reduce the confusion that has surrounded the interpretation of s 92. That history demonstrates that the principal goals of the movement towards the federation of the Australian colonies included the elimination of intercolonial border duties and discriminatory burdens and preferences in intercolonial trade and the achievement of intercolonial free trade. As we have seen, apart from ss 99 and 102, that goal was enshrined in the various draft clauses which preceded s 92 and ultimately in the section itself. The expression “free trade” commonly signified in the nineteenth century, as it does today, an absence of protectionism, that is, the protection of domestic industries against foreign competition. Such protection may be achieved by a variety of different measures –​eg, tariffs that increase the price of foreign goods, non-​tariff barriers such as quotas on imports, differential railway rates, subsidies on goods produced and discriminatory burdens on dealings with imports –​which, alone or in combination, make importing and dealings with imports difficult or impossible. Sections 92, 99 and 102 were apt to eliminate these measures and thereby to ensure that the Australian States should be a free trade area in which legislative or executive discrimination against inter-​ State trade and commerce should be prohibited. Section 92 precluded the imposition of protectionist burdens: not only inter-​State border customs duties but also burdens, whether fiscal or non-​fiscal, which discriminated against inter-​State trade and commerce. That was the historical object of s 92 and the emphasis of the text of s 92 ensured that it was appropriate to attain it.

In Cole, the Court took the unusual step of examining the Convention Debates of the 1890s to elucidate the historical meaning and purpose of s 92, as the prevailing judicial authorities (which lacked clear majorities on the issue) obfuscated rather than clarified the matter. Notably, the individual rights theory created “protectionism in reverse” as it created a source of privileged and preferential treatment for interstate trade to the detriment of the local trade (at 402-​403). This outcome was clearly contradictory to the original intent of the section in the opinion of the Cole Court. The Court went on to reject the individual rights theory (at 394): Implicit in the rejection of the notion that the words “absolutely free” are to be read in the abstract as a guarantee of anarchy is recognition of the need to identify the kinds or classes of legal burdens, restrictions, controls or standards from which the section guarantees the absolute freedom of inter-​State trade and commerce. … [T]‌he failure of the section to define

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expressly what inter-​State trade and commerce was to be immune from is to be explained by reference to the dictates of political expediency, not by reference to a purpose of prohibiting all legal burdens, restrictions, controls or standards. In that context, to construe s 92 as requiring that inter-​State trade and commerce be immune only from discriminatory burdens of a protectionist kind does not involve inconsistency with the words “absolutely free”: it is simply to identify the kinds or classes of burdens, restrictions, controls and standards from which the section guarantees absolute freedom.

The Court enunciated the triumph of the free trade view (at 394-​395): The history of s 92 points to the elimination of protection as the object of s 92 in its application to trade and commerce. The means by which that object is achieved is the prohibition of measures which burden inter-​State trade and commerce and which also have the effect of conferring protection on intra-​State trade and commerce of the same kind. The general hallmark of measures which contravene s 92 in this way is their effect as discriminatory against inter-​State trade and commerce in that protectionist sense. In relation to both fiscal and non-​fiscal measures, history and context alike favour the approach that the freedom guaranteed to inter-​State trade and commerce under s 92 is freedom from discriminatory burdens in the protectionist sense already mentioned.

Thus, the Cole Court confirmed that s 92 prohibits measures which place discriminatory burdens on interstate trade and commerce, and which also have the effect of conferring protection on intrastate trade and commerce. As to the meaning of “discrimination”, the Court stated (at 399): The concept of discrimination in its application to inter-​State trade and commerce necessarily embraces factual discrimination as well as legal operation. A law will discriminate against inter-​State trade or commerce if the law on its face subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result.

The Court was thus accepting that both direct and indirect discrimination against interstate trade in favour of intrastate were covered by s 92. A law, which is neutral on its face, could still breach s 92 by having a discriminatory impact on interstate trade.10 The Court then applied this test to the facts before it (at 409): The question which we must now determine is whether reg 31(1)(d) of the Sea Fisheries Regulations [which prescribed the minimum size for crayfish within Tasmania] which reveals no discriminatory purpose on its face is impermissibly discriminatory in effect. In other words, whether the burden which the regulation imposes on inter-​State trade in crayfish goes beyond the prescription of a reasonable standard to be observed in all crayfish trading and, if so, whether the substantial effect of that regulation is to impose a burden which so disadvantages inter-​State trade in crayfish as to raise a protective barrier around Tasmanian trade in crayfish. The latter questions are questions of fact and degree on which minds might legitimately differ. The regulation neither operates at the border or frontier nor distinguishes between local and inter-​State trade or produce. However, the limitation on the size of crayfish that may be sold or possessed in Tasmania is unquestionably a burden on the inter-​State trade and commerce in crayfish caught in South Australian waters and sold in Tasmania. But does it

10 See also [14.40] onwards on constitutionally prohibited discrimination.

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bear the character of being discriminatory against that inter-​State trade and commerce? The prohibitions against the sale and possession of undersized crayfish apply alike to crayfish caught in Tasmanian waters and to those that are imported. In that respect no discriminatory protectionist purpose appears on the face of the law.

If evidence had been brought that Tasmanian crayfish were generally bigger than interstate crayfish, the law would have been discriminatory and protectionist in fact, as the “minimum size” law would have impacted disproportionately on the interstate crayfish market. However, the law may still have been valid in such a case, as the Court went on to outline an exception which saved certain protectionist laws from breaching s 92 (at 409-​410): Furthermore, the object of the prohibitions, in conjunction with the prohibition against catching undersized crayfish, is to assist in the protection and conservation of an important and valuable natural resource, the stock of Tasmanian crayfish. Although the legislation operates in this way to protect the Tasmanian crayfish industry, it is not a form of protection that gives Tasmanian crayfish production or intra-​State trade and commerce a competitive or market advantage over imported crayfish or the trade in such crayfish. And, even if the legislation were to give an advantage to the local trade by improving the competitive qualities of mature Tasmanian crayfish by eliminating undersized imported crayfish from the local market, the agreed facts make it clear that the extension of the prohibitions against sale and possession to imported crayfish is a necessary means of enforcing the prohibition against the catching of undersized crayfish in Tasmanian waters. The State cannot undertake inspections other than random inspections and the local crayfish are indistinguishable from those imported from South Australia. On the materials before the Court, the legislation and the burden which it imposes on inter-​State trade and commerce are not properly to be described as relevantly discriminatory and protectionist.

Thus, the law was valid for two reasons. First, it appeared as though the law did not discriminate against the interstate crayfish. Second, the law was valid in any case as it evinced a legitimate, non-​protectionist purpose of preserving stocks of a valuable ecological resource in Tasmania. This “proportionate regulation” exception was not extensively explored in Cole, but was dissected in the latter case of Castlemaine Tooheys v South Australia (1990) 169 CLR 436 (see [11.55]). In conclusion, the Court found that the Tasmanian regulations were not discriminatory or protectionist, and did not offend s 92. The Court had adopted a new construction of s 92 (or rather revived the original Fox construction with a few modifications) which appeared to remove most of the earlier divisions and confusion. The High Court essentially adopted a four-​step test for identifying breaches of s 92.11 ( 1) Establish that there is a burden on interstate trade. If there is a burden: (2) establish if the burden is discriminatory on its face or in its practical effect. If there is discrimination: (3) establish if that discrimination has a protectionist effect. If so, the law is prima facie invalid. Lastly:

11 The complexities of the test, especially the separation of step 3 from step 2, became clearer in latter cases, discussed at [11.65].

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(4) ascertain if that protectionist effect is pursuant to or incidental to some non-​ protectionist purpose. If the law is appropriate and adapted to achieving that purpose, it is valid. In Cole, the High Court confirmed that s 92 acted as a fetter on both State and Commonwealth power, but agreed that the latter was far less likely than the States to pass laws which protected intrastate trade against interstate trade. The uniformity of treatment demanded by s 99 and the implied intergovernmental immunities as considered in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 19212 also prevent Commonwealth laws imposing a discriminatory protectionist burden on interstate trade (at 407-​408).

What is “discrimination”? [11.40] In Cole, the High Court established that the States should be “a free trade area in which legislative or executive discrimination against inter-​State trade and commerce should be prohibited”, and that “[s]‌ection 92 precluded the imposition of protectionist burdens: not only inter-​State border customs duties but also burdens, whether fiscal or non-​ fiscal, which discriminated against inter-​ State trade and commerce” (at 393). Not every form of different treatment between local and interstate trade will offend s 92. Discrimination arises when one party is treated relevantly differently, or placed at a disadvantage, compared to another party. In this context it means considering whether the burden imposed on interstate trade is “worse” or “heavier” than the burden placed in local, or intrastate trade. Furthermore, as noted at [11.35], s 92 prohibits formal direct discrimination against interstate trade, as well as measures which discriminate in substance and effect, even if neutral on their face. The Court in Cole emphasised that any impugned burden had to discriminate in a protectionist manner, suggesting that the concepts of “discrimination” and “protectionism” were entwined. Indeed, in early post-​Cole cases such as Bath v Alston Holdings (1988) 165 CLR 411, the justices seemed to focus more on the compound concept of discriminatory protectionism rather than on discrimination itself. The most extensive discussion of “discrimination”, as opposed to “discriminatory protectionism”, has in fact come in the recent case of Betfair v Racing NSW (Betfair 2) (2012) 249 CLR 217. The discussion of Betfair 2 lacks context without the discussion of earlier cases. Hence, this case, and its ramifications for the concept of “discrimination”, is discussed at [11.65].

What is “protectionism”? [11.45]  There was general relief at the apparent certainty in s 92 after Cole was handed down. The unanimity of the approach the High Court had adopted gave the decision a great deal of authority and ostensible stability. However, this relief was fleeting: a few weeks later the Court handed down the decision in Bath v Alston

12 See respectively, [8.35]-​[8.45] and [14.45].

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Holdings (1988) 165 CLR 411. The Court all agreed on what the test for breach of s 92 was, but split 4:3 on how that test was to be applied. The Business Franchise (Tobacco) Act 1974 (Vic) prohibited all sales of tobacco without a licence. Section 10(1)(c) and (d) dictated that a retail licence would cost a small flat fee plus 25 per cent of the value of tobacco sold during a previous 12-​month period.13 However, tobacco bought in Victoria from a trader with a wholesale tobacco licence was exempted from the calculation of the 25 per cent variable fee. The retail licence scheme, when viewed in isolation, clearly seemed to encourage retailers to stock Victorian rather than interstate tobacco. Alternatively, the fee would encourage Victorian retailers to raise the price of interstate sourced tobacco by 25 per cent, which would confer a comparative price advantage on Victorian tobacco. Alston Holdings, a tobacco retailer, accordingly argued that the scheme breached s 92. However, the Act also provided for Victorian tobacco wholesalers to pay a 25 per cent fee on tobacco at the wholesale level. Thus, the Act ensured that a 25 per cent fee was paid at some stage on all tobacco products before they reached the consumer in Victoria. If the tobacco was produced in Victoria, the wholesaler would pay the 25 per cent. If the tobacco came from interstate, the retailer would pay the 25 per cent. It was thus arguable that the retail fee merely “levelled out the playing field” between Victorian tobacco, which was subjected by Victorian law to a 25 per cent wholesale fee, and other tobacco, which was not (although arguably the amount would differ slightly because of the different cost base used to determine the value of the assessable tobacco product). The majority (Mason CJ, Brennan, Deane and Gaudron JJ) found that the retail fee breached s 92 (at 425): [T]‌he retailer who sells only tobacco products purchased by him from a Victorian wholesaler will pay the appropriate flat fee for his licence, while a retailer who sells only tobacco products purchased from an inter-​State wholesaler will pay that flat fee plus 25 per centum of the value of tobacco sold in the preceding relevant period. It follows that, if they be viewed in isolation, the provisions of the Act imposing the obligation to pay a retail tobacconist’s licence fee of [a low flat rate of either $50 or $10] plus an amount calculated by reference to the value of tobacco sold which has not been purchased in Victoria from a licensed wholesaler, discriminate against inter-​State purchases of tobacco in favour of purchases in Victoria. If it be viewed in isolation, that discrimination is undeniably protectionist both in form and substance.

The majority therefore pointed out the obvious fact that the retail fee was discriminatory and protectionist in its form. However, they also found that the fee substantively discriminated against interstate trade, even when read in light of the wholesale fee (at 425-​427): Even when the provisions of the Act imposing the liability to pay the retail tobacconist’s licence fee are read in the context of the Act as a whole, they retain their discriminatory and protectionist character. Such a reading reveals the explanation for the exclusion from the basis of calculation of the retailer’s licence fee of tobacco products purchased within

13 The licence structure utilised a “backdating device” to avoid the constraints of s 90. See discussion of Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399 at [9.55].

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Victoria from a licensed wholesaler. That explanation is that the licence fee which the Act requires Victorian wholesalers to pay to the Victorian Government will not have been paid to the Victorian Government by an out of State wholesaler who does not carry on business in Victoria and therefore does not require a licence in that State. The explanation tends, however, to underline, rather than remove, the protectionist character of the discrimination at the retail level effected by the provisions imposing the tax. If wholesalers of tobacco products in another State already pay taxes and bear other costs which are reflected in wholesale prices equal to or higher than those charged by Victorian wholesalers, the practical effects of the discrimination involved in the calculation of the retailer’s licence fee would be likely to be that the out of State wholesalers would be excluded from selling into Victoria and that the products which they would otherwise sell in inter-​State trade would be effectively excluded from the Victorian market. On the other hand, if out of State wholesalers pay less taxes and other costs than their Victorian counterparts, and in particular if they pay no (or a lower) wholesale licence fee, the effect of the discriminatory tax upon retailers will be to protect the Victorian wholesalers and the Victorian products from the competition of the wholesalers operating in the State with the lower cost structure. Either way, the operation and effect of the provisions of the Act imposing the retail tobacconist’s licence fee are discriminatory against inter-​State trade in a protectionist sense. For practical purposes, their operation is to impose on Victorian retailers who, during the relevant earlier period, purchased tobacco products both locally and in the markets of another State, an obligation to pay to Victorian consolidated revenue an ad valorem tax calculated by reference to the sale value of so much of those products as came from inter-​State. Ignoring the flat fee of $50 or $10, the effect of s 10(1)(c) and (d) is to discriminate against tobacco products sold by wholesalers in the markets of another State and to protect both Victorian wholesalers and the products which they sell from the competition of out of State wholesalers and their products. The wholesaler’s licence fee, imposed on local wholesalers by reference to all their local sales, does not infringe s 92 in that it does not discriminate against goods coming from another State. The ad valorem content of the retailer’s licence fee does infringe s 92 in that it discriminates against inter-​State trade and commerce in a protectionist sense by taxing a retailer only because of, and by reference to the value of, his actual or imputed purchases of products in any State other than Victoria.

Thus, the majority appeared to define protectionist laws as being of two types. Protectionism would arise when (a) a State law conferred a competitive advantage on local industry; or (b) a State law removed a competitive advantage from interstate industry. Depending on the prevailing facts, the majority felt that one of these two consequences would always ensue under the impugned Victorian retail fee structure. The exclusive imposition of the retail fee on interstate tobacco would deprive that tobacco of its competitive advantage if it had not been subjected to an interstate wholesale fee. It would confer a competitive advantage on local tobacco if the interstate tobacco had been subjected to an interstate wholesale fee. The majority confirmed its rejection of the “level playing field” argument (at 428-​429): It provides no answer to the question whether, for the purposes of s 92, a particular tax is properly to be characterized as discriminatory in a protectionist sense to say that it is but one method of collecting a “tax on goods” which is imposed in an equal amount in respect of all local and imported goods of that kind. If a tax is challenged on the ground that it offends s 92, it is necessary first to identify what is the transaction or thing which attracts liability. If the tax is imposed, whether directly or indirectly, on a transaction in the chain of distribution of goods, the relevant inquiry is whether the tax is imposed only on transactions where the goods involved have come from or are going to another State or whether the

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tax is imposed on all transactions of the relevant kind without differentiation based on the source or destination of the goods involved. If the tax is imposed on transactions in a particular market –​in this case, the Victorian retail tobacco market –​it is the effect of the tax on transactions in that market which is material. In this case, the effect is on the supply of goods to that market. The effect of an equivalent tax on transactions at another stage in the chain of distribution of the same goods or goods of the same kind is immaterial.

Thus, the majority argued that any burdens imposed upon interstate goods after their entry into a State must be equally imposed upon local industry. Therefore, the imported product must retain any competitive advantage held at the time of its entry.14 The minority was made up of Wilson, Dawson and Toohey JJ, who stated (at 431-​432): [The defendant’s] argument has a superficial plausibility in that tobacco purchased from another State is purchased from a person who is not the holder of a wholesale licence under the Act and the purchaser in Victoria, when he sells that tobacco, is therefore subject to the ad valorem component of the fee in relation to it. But to put the matter thus is to present an incomplete picture of the practical operation of the Act and, as was observed in Cole v Whitfield, it is the practical operation of the legislation which will largely determine whether there is discrimination upon protectionist grounds. What the argument put in that way leaves out of account is the fact that an interstate wholesaler is not subject to any franchise fee under the legislation and is able to sell tobacco to the Victorian retailer at a price which will reflect the absence of this expense. This advantage which the interstate wholesaler has is, however, balanced by the fact that the Victorian retailer who imports the tobacco will bear a fee calculated by reference to its value when it is sold in Victoria and this fee will be reflected in the price of the product to the ultimate consumer. The legislation does not seek to operate to the advantage or disadvantage of the retailer according to whether he obtains his tobacco within or outside the State. All trade in tobacco in Victoria is subjected to the expense of the franchise fee at one point or another and the economic effect of the tax is the same, whether the tobacco is acquired by the retailer from within or outside the State.

Further, the minority explained the policy reasons behind the complex structure of the tobacco licence fees: It is obvious that the reason why the legislation imposes the fee at the wholesale level where it is possible to do so is because there is only a small number of wholesalers but many retailers and it is easier for that reason to collect the tax from the former rather than from the latter.

The minority’s view seems more logical. Consider its comments (at 433-​434): If the argument were to be accepted that the manner in which licence fees are calculated and imposed under the Act discriminates against interstate trade in a protectionist manner, two alternatives would exist to cure the defect. On the one hand the legislation might be amended to exclude the value of tobacco purchased in the course of interstate trade from the calculation of the ad valorem component of the retail tobacconist’s licence fee. This would, however, result in a preference being given to interstate trade and s 92 can scarcely be read as requiring such a result. On the other hand, the collection of the fee could be restricted to the retail level and be calculated upon the value of all sales of tobacco. The practical result

14 Stellios, n 6, p 187.

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produced by the second alternative is no different in economic terms from that produced by the Act in its present form, save that the tax would be a great deal more difficult to collect. Consideration of these alternatives serves to demonstrate the danger of restricted analysis in any attempt to ascertain whether the legislation gives rise to discrimination of a protectionist kind.

The minority clearly focused more on the substantive effects of the law than the majority, and their decision is more in line with the emphasis placed upon substantive economic effects in Cole.15 As the minority stated, the imposition of a uniform retail fee of 25 per cent would have the same economic impact as the imposition of 25 per cent fees on all tobacco, albeit at different stages in the supply chain, under the impugned scheme. Any competitive advantages or disadvantages conferred on interstate tobacco by the tobacco licence structures of other States (a clear concern of the majority) would be maintained in either scenario, as, in either case, the price of all tobacco would go up by 25 per cent. However, the former arrangement would be more difficult to administer than the latter, as it would necessitate collection from a larger number of people. Nevertheless, in the view of the majority, the former arrangement, but not the latter, was constitutionally valid. The Bath majority defined protectionist laws as ones which would result in one of two consequences: either (a) the conferral of a competitive advantage on local industry; or (b) the removal of a competitive advantage from interstate industries, as explained above. A law will not, however, breach s 92 if it is protectionist according to the Bath definition, but not relevantly discriminatory. For example, it is probably constitutional for a State to offer certain commercial benefits to entice commercial enterprises to set up within the State, such as infrastructure guarantees (for example, promises to build roads within the vicinity of a company’s factory), or greater industry deregulation. Perhaps it is arguable that such measures are protectionist, as their effect may be to confer competitive advantages on local industries, or deprive interstate industries of their competitive advantages. For example, a State law which removes environmental regulations could reduce a local trader’s environmental compliance costs so as to confer a competitive advantage on that trader vis-​ à-​ vis interstate competitors. However, such measures do not discriminate against interstate industries, as the legislating State is simply not in a position to offer similar advantages to industries located interstate.16 Thus, a potentially “protectionist” law which is not discriminatory does not breach s 92. Conversely, a discriminatory law will not breach s 92 if it does not have a protectionist effect. In Betfair v Racing NSW (“Betfair 2”) (2012) 249 CLR 217, the appellant company, an online gambling business, challenged the validity of the licence fees imposed by New South Wales racing authorities under cl 16(2) of the Racing Administration Regulation 2005, which required wagering services to pay up to 1.5 per cent of their “wagering turnover” in licence fees. Betfair, an interstate trader, conducted its business with low 15 Stellios, n 6, p 187. 16 See also M Coper, “Section 92 of the Australian Constitution Since Cole v Whitfield”, in H P Lee and G Winterton (eds), Australian Constitutional Principles (Law Book Company, North Ryde, 1992), pp  141-​142.

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profit margins, compared to other traders, including local New South Wales traders, who operated with much higher margins. Betfair claimed that the effect of the law was to discriminate against it, because the licence fee claimed a disproportionate share of its profits compared to those of intrastate traders. “It is upon the differing business models with respect to profit margins that Betfair [laid] a foundation of its case.”17 Betfair lost the case for a number of reasons, one of which was that it failed to establish any relevant protectionist effect. While the law may have disproportionately reduced its profits and therefore had an adverse and even discriminatory effect on the company, there was no evidence that the law operated so as to reduce its competitiveness or share in the New South Wales gambling market.18 As Kiefel J put it (in explaining the lower court decision against Betfair, which was upheld) at 285-​286, “Betfair had not shown it to be likely that punters would be deterred from placing bets with it or that it would lose any market share to [an intrastate trader]”. Betfair failed, in part, because it had not demonstrated “some likely effect on its ability to compete as an interstate trader” (Kiefel J at [119]). Hence, Betfair 2 reinforces that a discriminatory impact must be a protectionist impact in order for a breach of s 92 to arise. A protectionist impact is one which reduces or is likely to reduce the competitiveness of interstate trade. Not all discriminatory impacts are, therefore, relevant impacts. Any adverse impact on low margin operators like Betfair, compared to higher margin operators, was not a relevant adverse impact.19 As noted at [11.65], Betfair’s argument also failed because it had not established discrimination against interstate trade as opposed to (possible) discrimination against it as one interstate trader. Indeed, the High Court dwelt on this point more than on the one highlighted directly above. Perhaps Betfair might have won the case had there been evidence that interstate traders generally ran as low margin operators while intrastate traders did not. Nevertheless, Betfair 2 indicates that the regulation would have survived, because a discriminatory impact on interstate profits would not necessarily translate into an impact on interstate competitiveness. The latter is a protectionist effect but the former is not.

Export restrictions and s 92 [11.50]  Interstate trade comes in two forms: importation and exportation. At first glance, a discriminatory burden imposed solely on exports appears to hurt local industries, as their entry into external markets is restricted while external industries remain free to enter the local market. In that sense, export restrictions appear to be anathema to the notion of protectionism. Can export restrictions ever breach s 92? Export restrictions may arise under marketing schemes. Compulsory marketing or pooling schemes, whereby agricultural products have to be sold through a central 17

Betfair v Racing NSW (2012) 249 CLR 217, 261.

18 See French CJ, Gummow, Hayne, Crennan and Bell JJ at 270-​271. 19 See French CJ, Gummow, Hayne, Crennan and Bell JJ at 269 and 270. That is not to say that Betfair managed to establish discrimination had occurred at all. There was no need to decide if it had, as such discrimination was ultimately irrelevant to the question of constitutionality under s 92.

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board, have been a popular method of regulating and stabilising agricultural costs and prices in Australia, particularly for grains such as wheat. Such statutorily mandated marketing boards often arranged marketing, established grades, classes or descriptions, and fixed the terms and conditions of payment for the particular commodity, including prohibition on private sales of the commodity. The legislation regulating such marketing regimes was often challenged, pre-​Cole, for breach of s 92. The potential for that breach arose whenever a marketing scheme touched upon interstate trade and commerce, particularly under the individual rights test, where the existence of protectionist effects was irrelevant.20 In Barley Marketing Board v Norman (1990) 171 CLR 182, the Marketing of Primary Products Act 1983 (NSW) came under scrutiny. It operated so as to vest all the barley grown in New South Wales in that State’s Barley Marketing Board. The Board had power to market, grade and sell all of the State’s barley, and maximise returns to the New South Wales growers. The scheme dictated that any contracts for sale of barley that were made directly with a New South Wales grower would be void, so all sales of the commodity were prohibited except through the Marketing Board regime. Norman, a New South Wales barley grower, sought to sell barley direct to a Victorian maltster. The Board sought to have the contracts voided, pursuant to the legislation. Norman claimed that the legislation breached s 92 due to the consequent burden on interstate (export) trade of New South Wales barley. The High Court held, in a unanimous judgment, that the scheme did not infringe s 92, as the Act treated all purchasers of barley the same. The Act did not impose any greater burden on interstate buyers as opposed to New South Wales buyers: all had to purchase New South Wales barley from the Board. The Court did go on, however, to state that laws which discriminate against exports can, depending on the facts, create protectionist effects. The Court stated (at 204): If a State having a scarce resource or the most inexpensive supplies of a raw material needed for a manufacturing operation prohibited the export of material from that resource or those supplies in order to confer a benefit on its domestic manufacturers as against their out-​of-​state competitors, that prohibition would discriminate against interstate trade and commerce in a protectionist sense.

So, for instance, where one State has a rare or especially cheap commodity and prohibits or restricts its export to other States, without imposing similarly detrimental restrictions on sales of the commodity within that State, a breach of s 92 will be found. The protectionism would arise with regard to industries that were dependent on that restricted commodity, rather than with regard to the trade in the restricted commodity. As the Court stated in obiter (at 204-​205): Plainly enough, the mischief at which the section [92] is directed embraces discrimination against out-​of-​State producers and traders achieved by restrictions upon commodities or services upon which those producers and traders rely in competing with in-​State producers and traders in trade or commerce of the same kind. But [Cole v Whitfield] should not be understood as holding that such discrimination cannot occur where the commodities or services upon which a restriction is imposed are not the particular commodities or services 20 See, for example, Clarke King v Australian Wheat Board (1978) 140 CLR 120 and Uebergang v Australian Wheat Board (1980) 145 CLR 266.

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which are affected by discrimination. In such a case, the relevant discrimination is to be found by comparison between in-​ State trade or commerce and out-​ of-​ State trade or commerce of the same kind, the restrictions imposed on commodities or services which result in differential treatment of in-​State and out-​of-​State trade or commerce being the means by which that discrimination is created.

The principle can be illustrated by way of a hypothetical example. Suppose the marketing scheme in Norman had discriminated against the export of barley compared to the intrastate trade in Barley. Suppose also that New South Wales was the only barley-​producing State. The export restriction would not have the effect of protecting the New South Wales barley industry from interstate competition. First, on these hypothetical facts there is no interstate competition. Second, the markets for the New South Wales barley industry are being restricted, which is not a protectionist effect. However, the barley export restrictions would protect New South Wales industries that were dependent on barley, such as maltsters, as interstate maltsters would be deprived of an essential ingredient for their products. Thus, the law would breach s 92. The analytical process regarding s 92 is more complex when the interstate restrictions at issue concern exports rather than imports. Discriminatory export restrictions have not yet been directly examined by the High Court in the post-​Cole era, although the impact of the Betfair v Western Australia (Betfair 1) (2008) 234 CLR 418 case should be considered (see [11.60]).

Proportionate regulation as an exception [11.55] In Cole, the Court recognised that sometimes protectionist burdens can be legitimate and not violate s 92. That can be the case where the purpose of the legislation is to secure some legitimate non-​ protectionist objective and any discriminatory burdens on interstate trade are incidental and not disproportionate to achieving that legitimate objective. Castlemaine Tooheys v South Australia (1990) 169 CLR 436 illustrates this proposition. The plaintiffs were part of the Bond Brewing group, which produced packaged beer in Queensland, New South Wales and Western Australia, and sold it throughout Australia. Bond claimed that the substantive effect of the Beverage Container Act 1975 (SA) constituted discrimination against its trade and commerce in favour of South Australian manufacturers of packaged beer, contrary to s 92. Bond sold beer in non-​refillable bottles, while the South Australian-​produced beer was sold mostly in refillable bottles. At a time when the Bond group set out to increase its market share, amendments were made to the Act. First, retailers were obliged to refund 15 cents to consumers on each non-​refillable bottle. They were only obliged to refund four cents on each refillable bottle. Second, the amendments required that retailers who sold beer in non-​refillable bottles had to accept returns of any of those bottles from anyone, even if the person was not the consumer or purchaser of the beer. Meanwhile, retailers of beer in refillable bottles were exempted from accepting returns and providing refunds. The refillable bottles could be taken to designated collection points, where refunds were provided. The collection depots did not accept returns of non-​refillable bottles, and gave no refunds for those types of bottles.

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Bond asserted that the Act rendered their product less competitive in the South Australian market. The sale of beer in non-​refillable bottles became disadvantageous to South Australian beer retailers. This was because the non-​refillable bottled beer was more expensive (because the larger compulsory refund was built into the price) than the refillable bottled beer, and because the returns system for non-​refillable bottles imposed logistical burdens on retailers. Bond submitted that the commercial result of the refund and returns systems was to discourage retailers from stocking beer in non-​ refillable bottles. Therefore, the practical effect of the amendments to the Beverage Container Act 1975 was to prevent Bond from obtaining a natural market share of the packaged beer market so long as it used non-​refillable bottles. It was further shown that it was uneconomical for Bond to alter its existing interstate bottling plants to use refillable bottles. So, Bond argued, the law discriminated against its interstate trade in beer, and conferred a protectionist advantage on the South Australian packaged beer market. South Australia conceded that its system treated some traders differently from others, but submitted that the difference was based upon the type of bottles they used, not on whether they were an interstate trader or not. They further argued that the real purpose of the Act and regulations was to promote litter control, and to conserve the State’s finite energy resources. Non-​refillable bottles necessitated the consumption of more energy as the bottles had to be melted down and remoulded in order to be reused, unlike refillable bottles. So the defendant argued that the objective of the Act was not to protect the South Australian market in packaged beer but the legitimate, non-​protectionist objective of protecting the environment and conserving resources. The law did not on its face discriminate between South Australian and interstate beer manufacturers. Indeed, another interstate trader from Victoria, CUB, suffered no disadvantage under the Act as it sold its beer in South Australia in refillable bottles. Nevertheless, the High Court found that the practical effect of the law was to give South Australian brewers a competitive or market advantage over Bond, so there was a prima facie breach of s 92. This issue is discussed further at [11.65]. The Court then turned to whether the discriminatory protectionist effect of the law was “saved”, in that it constituted proportionate regulation. The majority (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) explained this exception (at 472-​ 473, Gaudron and McHugh JJ did not disagree): In determining what is relevantly discriminatory in the context of s 92, we must take account of the fundamental consideration that, subject to the Constitution, the legislature of a State has power to enact legislation for the well-​being of the people of that State. In that context, the freedom from discriminatory burdens of a protectionist kind postulated by s 92 does not deny to the legislature of a State power to enact legislation for the well-​being of the people of that State unless the legislation is relevantly discriminatory. Accordingly, interstate trade, as well as intrastate trade, must submit to such regulation as may be necessary or appropriate and adapted either to the protection of the community from a real danger or threat to its welfare or to the enhancement of its welfare. It would extend the immunity conferred by s 92 beyond all reason if the Court were to hold that the section invalidated any burden on interstate trade which disadvantaged that trade in competition with intrastate trade, notwithstanding that the imposition of the burden was necessary or appropriate and adapted to the protection of the people of the State from a real danger or threat to its well-​being. And it would place the Court in an

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invidious position if the Court were to hold that only such regulation of interstate trade as is in fact necessary for the protection of the community is consistent with the freedom ordained by s 92. The question whether a particular legislative enactment is a necessary or even a desirable solution to a particular problem is in large measure a political question best left for resolution to the political process. The resolution of that problem by the Court would require it to sit in judgment on the legislative decision, without having access to all the political considerations that played a part in the making of that decision, thereby giving a new and unacceptable dimension to the relationship between the Court and the legislature of the State. An analogous field is the legislative implementation of treaty obligations under s 51(xxix) of the Constitution. The true object of the law in such a case is critical to its validity. The Court has upheld the validity of legislative provisions if they are appropriate and adapted to the implementation of the provisions of the treaty … But if the means which the law adopts are disproportionate to the object to be achieved, the law has not been considered to be appropriate to the achievement of the object … There is a compelling case for taking a similar approach to the problem now under consideration. If we accept, as we must, that the legislature had rational and legitimate grounds for apprehending that the sale of beer in non-​refillable bottles generates or contributes to the litter problem and decreases the State’s finite energy resources, legislative measures which are appropriate and adapted to the resolution of those problems would be consistent with s 92 so long as any burden imposed on interstate trade was incidental and not disproportionate to their achievement. Accordingly, the validity of the 1986 legislation rests on the proposition that the legislative regime is appropriate and adapted to the protection of the environment in South Australia from the litter problem and to the conservation of the State’s finite energy resources and that its impact on interstate trade is incidental and not disproportionate to the achievement of those objects.

The majority here is outlining a test of proportionality for establishing whether a protectionist law is “saved” from breaching s 92. The judges inquire as to whether the law’s protectionist effect is proportionate to the law’s success in addressing a particular concern. The application of the test is an inherently political activity, as it will involve the balancing of competing economic and social interests. The majority’s denial of the political aspects of the s 92 proportionality test was a futile attempt to maintain the traditional common law fiction that the judiciary somehow remains quarantined from political questions. Gaudron and McHugh JJ, in a separate concurring judgment, outlined a stricter test: The questions posed in the joint judgment of Mason CJ, Brennan, Deane, Dawson and Toohey JJ, namely, whether a law is appropriate and adapted to an objective and whether any burden imposed on interstate trade is incidental and not disproportionate to the achievement of that objective, will often sufficiently reveal that the law is discriminatory in a protectionist sense. However, the essence of the legal notion of discrimination lies in the unequal treatment of equals, and, conversely, in the equal treatment of unequals. Thus, if there is no inequality or relevant difference between the subject matter of interstate trade and the subject matter of intrastate trade, a law which is appropriate and adapted to an objective and burdens interstate trade only incidentally and not disproportionately to that objective will, in our view, offend against s 92 if its practical effect is protectionist –​particularly if there exist alternative means involving no or a lesser burden on interstate trade.

The Court went on to examine whether the South Australian law was appropriate and adapted to the non-​protectionist purposes of combating the litter problem, and conserving South Australian energy. They found that the law’s discriminatory effect

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did not appropriately support either end. First, regarding the litter problem, there was no need to discriminate between different types of bottle. The law, by encouraging the return of non-​refillable bottles, may have had some effect in ameliorating South Australia’s litter problem. However, that amelioration could have been better achieved by a non-​ discriminatory law which equally encouraged the return of refillable bottles. The existence of a non-​discriminatory alternative for achieving the same end indicated that the law as drafted was not proportionate regulation. Second, regarding the preservation of South Australian resources, the Court found that the law was disproportionate to its aim (at 476-​477): If all beer bottles manufactured in South Australia were non-​refillable bottles, the extra energy consumption in the State would be between 0.06 per cent and 0.12 per cent of the total energy consumption in the State. If all beer bottles manufactured in South Australia were non-​refillable bottles, then natural gas consumption in the State would increase by about 0.24 per cent. However, as the Bond brewing companies use bottles manufactured outside the State, any increase in their market share in South Australia would reduce the use of the State’s resources, including natural gas, in the manufacture of bottles. If, in the light of these facts, the legislature reasonably apprehended that the sale of beer in non-​refillable bottles manufactured in South Australia constituted a threat to the State’s reserves of natural gas, one might have expected the legislature to introduce legislation prohibiting the sale in the State of beer in non-​refillable bottles produced in the State. Alternatively, and more directly, the legislature might have legislated to prohibit the manufacture in South Australia of such bottles with the use of natural gas, or at all. But none of these means was adopted. Instead a regime was introduced which subjected the Bond brewing companies’ interstate trade to serious competitive disadvantages by reason of their selling beer in non-​refillable bottles, even though those bottles are manufactured outside the State and do not, as far as we know, involve the use of South Australian natural gas. It may be that the result is that local trade and commerce may need to be harmed if State gas reserves are to be protected. But if that is the case, it should not be surprising, because local businesses are likely to be significant users of those reserves.

In their concurring judgment, Gaudron and McHugh JJ stated (at 479): Even if the facts … are accepted as establishing that non-​refillable beer bottles, in some way that is different from refillable beer bottles, add to the general problem of energy conservation in the State of South Australia, the conclusion is inevitable that the different treatment of refillable and non-​refillable containers in a law which deals only with beverage containers and which is not part of a general legislative scheme directed to the conservation of the State’s energy resources is unlikely to result in an amelioration of that general problem other than to a trifling extent. If, on the other hand, it be suggested that the focus of consideration is the general problem of energy conservation viewed from a national or a global perspective, the legislative regime for beverage containers must be viewed as likely to have an even less significant impact.

The Court found that the law’s minuscule impact on the preservation of South Australia’s energy resources did not justify its discriminatory impact on Bond’s interstate trade. In this instance, the interest in combating protectionism outweighed the small positive impact that the law would have on energy conservation so a breach of s 92 was found. In Betfair 1, six judges queried (at 474) the emphasis in Castlemaine Tooheys of the “fundamental consideration” of the power of a State to protect “the well-​being of the

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people of that State”. Most State laws of course apply directly or indirectly to State residents, but also to any person present in the State from time to time. Therefore, the joint judges noted (at 474): Thus, the “fundamental consideration” identified in Castlemaine Tooheys of a condition of localised well-​being will not encompass much modern State regulatory legislation in the “new economy”.

Earlier, the joint judges had noted (at 474) the non-​textual basis for the Castlemaine proportionality exception, perhaps querying its source. The Court thus signalled its apparent scepticism over significant aspects of Castlemaine Tooheys. It did not expand upon that scepticism as it conceded (at 476) that the parties had not challenged the existence of such a “fundamental consideration” or the correctness of Castlemaine Tooheys. One can only wonder, however, at the motive of the joint judges in raising the issue at all. The joint judges in Betfair 1 confirmed (at 477) that the test of whether a law survived under s 92 despite having a protectionist effect was one of “reasonable necessity”. However, they then go on to apply a test of whether there was an “acceptable explanation or justification” for the impugned laws. Finally, in deciding that the impugned laws were not saved by the proportionality test, the joint judges stated (at 479) that they were neither necessary nor “appropriate and adapted to the propounded legislative object”. It is submitted that the Betfair 1 court did not significantly change the test from Castlemaine, though it seemed to invite a thorough reconsideration of the Castlemaine exception to s 92 in a future case. However, in Rowe v Electoral Commissioner (2010) 243 CLR 1, Kiefel J suggested (at 135) that the test applied in Betfair 1 “was that of the availability of alternative, practicable and less restrictive measures”. At the least, Betfair 1 indicated that successful invocations of the exception are likely to be rare. In Betfair 1, Western Australia had argued that a ban on “betting exchanges”, which was found to be discriminatory and protectionist, was justified and proportionate. In a “betting exchange” system, people place bets against each other. This system differs from the ordinary commercial modes of gambling, whereby punters take odds determined by a bookmaker, or by an agency such as the TAB.21 Western Australia claimed that betting exchanges made no contribution to the Australian racing industry. The Court rejected that contention by noting that Betfair might be persuaded to make some sort of contribution, as had, for example, occurred in Victoria. Western Australia also argued that its local industry made significant contributions to the Australian racing industry, so it was important to protect their revenue stream. It is not surprising that that argument failed: a purported need for a protectionist effect surely cannot be used as a justification for a prima facie breach of the prohibition on protectionism in s 92.22 More promisingly, Western Australia argued that betting exchanges, in permitting punters to bet on losers, threatened the integrity of the racing industry. This argument, however, failed due to a lack of evidence of any increase in dishonest practices brought about by Betfair’s entry 21 These different types of gambling are discussed in the joint judgment at 465. 22

See  Betfair 1 at 479.

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into the Australian market. Heydon J added (at 484) that the ban extended beyond horseracing in Western Australia to cover sporting events of any sort anywhere. Therefore, the ban was ill-​suited to the alleged aim. Tests of proportionality arise with regard to other limitations on legislative power, notably the implied freedom of political communication, as discussed at [13.15]. In McCloy v NSW (2015) 257 CLR 178, a majority in the High Court adopted a “structured” approach to the assessment of proportionality in the context of that implied freedom. That approach was further discussed in Brown v Tasmania (2017) 349 ALR 398. At the time of writing, it was not clear the extent to which this approach to proportionality might affect assessments under s 92.23

A new direction for s 92? Betfair 1 [11.60]  Betfair 1 involved a challenge to Western Australian legislation which restricted betting exchanges.24 Betfair was a company which gained a licence to operate in Tasmania in 2005, and ran an online betting exchange. In 2006, Western Australia amended its betting legislation to ban gambling through a betting exchange. Section 24(1aa) of the Betting Control Act 1954 (WA) rendered it an offence for a person to place a bet through a betting exchange. Section 27D(1) made it an offence to publish, without government approval, the details of a racing field in Western Australia. Betfair challenged the constitutionality of those provisions. The High Court unanimously found that both provisions breached s 92. As noted at [11.55], Western Australia’s arguments regarding proportionality were rejected. The High Court confirmed that s 92 applied to restrictions on internet trade within Australia as well as traditional trade. Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ stated some of the consequences of this extension, brought about by modern commercial realities (at 452-​453): To focus upon the geographic dimension given by State boundaries, when considering competition in a market in internet commerce, presents practical and conceptual difficulties. Yet, Western Australia and supporting State interveners emphasised that s 92 permanently mandates that each State retain its own “economic centre”. That proposition … is overbroad. The references in [Cole v Whitfield] to “domestic industry” highlight the practical and conceptual perplexity that arises in accommodating internet commerce to the notion of protectionism in intrastate trade and commerce. Further, subsequent references in Castlemaine Tooheys to “the people of” the State and to “its” well-​being, rather than to those persons who from time to time are placed on the supply side or the demand side of commerce and who are present in a given State at any particular time, have their own difficulties. They appear to discount the significance of movement of persons across Australia, and of instantaneous commercial communication, and to look back to a time of physically distinct communities located within colonial borders and separated by the tyranny of distance.

Thus, the reality of internet commerce, and the demise of the commercial relevance of geographical borders within Australia, meant that s 92 had evolved to do more 23 See also [14.60]. 24 Betting exchanges allow people to bet against each other, as opposed to taking odds from a bookmaker or the TAB.

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than facilitate a level playing field for interstate traders within a particular State’s economy. Section 92 also ensures that State legislation does not protect local traders from competition from interstate traders in a particular market, whether that market be national-​or State-​based.25 As noted below, this refocusing on s 92 as a provision to protect freedom within the national economy may signal a deviation from Cole v Whitfield. The ban on the publication of Western Australian racing fields without government permission under s 27D(1) of the Betting Control Act 1954 (WA) was found to infringe s 92. Betfair was extremely unlikely to obtain such permission, given the Western Australian government’s stated disapproval of betting exchanges. Western Australian wagering operators were given such permission. The operation of the provision discriminated against Betfair and in favour of its Western Australian competitors. Whereas s 24(1aa) (discussed below) inhibited Betfair’s operations within the Western Australian market, s 27D(1) inhibited its operations in the national market as it was enforceable outside Western Australia. The latter provision deprived Betfair, on a discriminatory basis, of its ability to publish information that was needed to facilitate betting on Western Australian race meetings, regardless of where punters might be based. Section 24(1aa) placed a burden on interstate trade and commerce as it inhibited the ability of potential customers in Western Australia to place online bets with Betfair, the Tasmanian-​based trader. Was s 24(1aa) discriminatory in a protectionist sense? It prohibited punters from placing bets with any betting exchange, regardless of where it operated. It did not exempt Western Australian betting exchanges, so it did not protect Western Australian betting exchanges compared to interstate betting exchanges like Betfair. However, the Court found that the law discriminated against Betfair, an interstate betting exchange, and protected the business of Western Australia’s established wagering operators, which did not operate betting exchanges. Gleeson CJ, Gummow, Kirby, Hayne, Crennan, and Kiefel JJ stated (at 480): [T]‌here is a developed market throughout Australia for the provision by means of the telephone and the internet of wagering services on racing and sporting events. Indeed, the evidence shows that such a market may be international. Within the Commonwealth the events may take place in one State, the customer be in another and the licensed bookmaker or TAB be in a third. Before the commencement of the legislation of Western Australia which is under challenge, this market included the services supplied by the betting exchange which Betfair had established under licence in Tasmania. In the other States this remains the case. The inhibition to competition presented by geographic separation between rival suppliers and between supplier and customer is reduced by the omnipresence of the internet and the ease of its use. The apprehension expressed in [a government report] as to the operations of betting exchanges, with lower commission rates, upon the revenue streams derived by TABs and licensed bookmakers, is indicative of cross-​elasticity of demand and thus of close substitutability between the various methods of wagering. The effect of the legislation of Western Australia is to restrict what otherwise is the operation of competition in the stated national market by means dependent upon the geographical

25

See also  Betfair 1 at 477.

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reach of its legislative power within and beyond the State borders. This engages s 92 of the Constitution.

At 481-​482, the joint judges stated: It is true that this particular form of fixed odds betting also is denied to in-​State wagering operators and their customers. But that does not deny to s 24(1AA) its character of a discriminatory burden on interstate trade of a protectionist kind. The sub-​section operates to protect the established wagering operators in Western Australia … from the competition Betfair otherwise would present. What has been said above respecting cross-​elasticity of demand is relevant here. The intrastate trade and interstate trade are of “the same kind”, whether the subject matter be different species of fixed odds betting or the general field of wagering upon racing and sporting events. That view of the matter proceeds from the evidence indicating cross-​elasticity of demand. Some analogy is provided by the situation in Castlemaine Tooheys. There the discrimination was between bottles having different characteristics; here it is between different but competing forms of wagering on racing and sporting events. The effect of s 24(1aa) is to prohibit Betfair, an out-​of-​State wagering operator, from providing a betting exchange for registered players in Western Australia, leaving the in-​State operators able to supply customers with their services without the competition to their revenue which Betfair would present. This is another discriminatory burden of a protectionist kind.

Heydon J, in a separate concurring opinion, explained (at 483): Section 24(1aa) … prevented Western Australian traders from employing a betting exchange in their trade as much as it prevented non-​Western Australian traders from doing so. However, the prohibitions on trading activity created by s 24(1aa) do burden inter-​State trade to a significantly greater extent than they burden intra-​State trade. This is because they protect the Western Australian traders who offer gamblers the facility of betting from the rivalry they would otherwise face from inter-​State traders employing the prohibited forms of trading activity. The trading activity prohibited and the trading activity protected are not identical, but they are each part of the same overall trading activity –​offering facilities to gamblers to bet.

However, it may also perhaps be argued that the law did not discriminate against interstate traders in favour of intrastate traders. On first view, s 24(1aa) did not, at the time of its passage, impact on the gambling modes actually being offered by Western Australian traders, and it did prohibit the mode utilised by Betfair, the Tasmanian trader. However, s 24(1aa) also prevented the development of local betting exchanges by the Western Australian traders, which is not insignificant. Absent s 24(1aa), Western Australian wagering operators may have been tempted to provide for “betting exchange” betting to compete on equal terms with Betfair, and challenge its position as the market leader in that area. Betfair 1 seems to limit the ability of a State to control the entry of new variations of existing industries into its market. Take the following hypothetical example. Suppose a car manufacturer in Victoria created a commercially available car that could drive at 500 km per hour. No such car is currently manufactured in Western Australia. If Western Australia, in that situation, was to ban the sale of cars that could run at such speeds, Betfair 1 indicates that such a law is discriminatory against the interstate car industry in favour of the Western Australian car industry in a protectionist sense, and thus in prima facie breach of s 92. Western Australia would be on safer ground

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if it waited until a local manufacturer could manufacture a similarly fast car before imposing a ban. Unfortunately, by that time, numerous people might have been killed or injured in high-​speed accidents. Even then, the law might still be held to be discriminatory as it would still favour intrastate manufacturers of slower cars. Of course, the “superfast car” law might be saved by the proportionality exception. Nevertheless, Betfair 1 arguably indicates that there is little difference between the free trade view and the individual rights view, despite the rejection of the latter view in Cole v Whitfield, when States attempt to regulate new forms of existing industries prior to those new forms taking hold within the State.26 This arguable departure from Cole v Whitfield makes sense when one considers that Betfair 1 altered the focus from regulation within a State marketplace to regulation within a national marketplace. The latter focus seems to leave less room for State legislation which diverges from a national norm, and therefore interferes with the smooth functioning of the national economy.27 State-​based regulations, if not replicated in other States, might, for example, force industries (including the hypothetical “superfast car” industry) to set up separate production lines to satisfy that State’s requirements for pursuing its business. Such inefficiency is arguably undesirable for the 21st century national economy. Betfair 1 may have signalled that such inefficiency is not tolerated under s 92. In the latter case of Betfair 2, the High Court explicitly noted that no consideration was made in that case of “markets conducted without reference to State boundaries” (French CJ, Gummow, Hayne, Crennan and Bell JJ at 271).28 Hence, it seems that the High Court will have more to say on this matter when the case is appropriate.

Betfair 2: Discrimination against who or what? [11.65]  Discrimination denotes that one party is being disadvantaged when compared to another party. For the purposes of s 92, the relevant discrimination must be against interstate trade (the disadvantaged “party”) in favour of intrastate trade (“the advantaged party”). As just noted, the finding in Betfair 1 regarding s 24(1aa) arguably reduced the importance of actual discrimination in the s 92 analysis. Indeed, Castlemaine Tooheys had already restricted the ability of States to impose local standards on interstate industries operating within their territory. To recap, South Australia enacted legislation which discriminated in favour of manufacturers who used refillable bottles compared to those who used non-​refillable bottles. A major interstate brewer, but not all interstate brewers, was disadvantaged, so relevant discrimination was said to arise. However, it is arguable that South Australia was simply seeking to promote the adoption of higher environmental standards within its territory by all industries, interstate or intrastate (or international). Local traders 26 This impact in Betfair v Western Australia (2008) 234 CLR 418 may also be implied by the joint judges’ consideration of the issue of proportionality before the issue of discrimination and protectionism, when logically the question of proportionality does not arise unless discrimination and protectionism exist. 27 See P Tate, “The High Court on Constitutional Law: The 2008 Term”, Gilbert and Tobin Constitutional Law Conference 2009, available at http://​www.gtcentre.unsw.edu.au/​sites/​gtcentre.unsw.edu.au/​ files/​mdocs/​469_​PamelaTate.pdf (13  July  2009). 28 See also Kiefel J at 291.

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are more likely to reflect local values and thus be in compliance with local standards at the time such legislation is introduced. However, over time, the discrimination would likely disappear as all traders would comply with those standards, rather than choose to suffer the consequences. It was not, after all, inherently impossible for Bond to comply. Castlemaine Tooheys arguably stands for the proposition that new State regulations for the operation of industry will only survive if they pass the proportionality test, even if those new standards apply equally to intrastate and interstate traders. This is due to the likelihood that the new standards will have a more detrimental impact on interstate traders, at least at the time of their introduction. If so, that proposition seems to conflate the individual rights view and the free trade view by devaluing the importance of the “discrimination” limb of the Cole test. Having said that, the agreed facts in Castlemaine Tooheys indicated that Bond would be unable to attain a market share in South Australia of packaged beer greater than 1 per cent had it actually switched to refillable bottles, due to the increased prices it would need to charge to cover the costs of that switch.29 Therefore, the apparent detriment to Bond’s competitiveness entailed in the impugned law was very severe indeed. Another aspect of Betfair 1 and Castlemaine Tooheys is that both cases concerned instances of discrimination against one major interstate trader, Betfair and Bond respectively. In Castlemaine, Bond was detrimentally affected by the “bottles” law, whereas another interstate trader, CUB, was not.30 On this matter, Mason CJ, Brennan, Deane, Dawson and Toohey JJ said at [45]: [T]‌he impact of the provision on CUB might tend to suggest that the intended legislative object was not to discriminate against interstate brewers. However, it is not a conclusive consideration. It does not negate the purpose of discriminating against interstate trade consisting, in the main, of the trade of the Bond brewing companies … After all, it was the growing market share of those companies, not CUB, that threatened the market share of the domestic brewers. Discrimination in the relevant sense against interstate trade is inconsistent with s 92, regardless of whether the discrimination is directed at, or sustained by, all, some or only one of the relevant interstate traders.

Therefore, these judges indicated that a breach of s 92 might lie if a law discriminated in form and/​or effect against a major interstate trader if not all interstate traders. This decision is arguably challenged by Betfair 2. In Betfair 2, as described at [11.45], Betfair argued that the impugned licence fee structure discriminated against it, an interstate trader, as it was a low margin operator. At best, all it managed to establish in the case was that the fee structure discriminated against it, a single trader, compared to New South Wales TAB, an intrastate trader. French CJ, Gummow, Hayne, Crennan and Bell JJ stated (at 267):

29

See Betfair v Racing NSW (2012) 249 CLR 217 at 270.

30

Perhaps Castlemaine Tooheys v South Australia (1990) 169 CLR 436 indicated that legislation which detrimentally affects a major interstate trader will be more constitutionally suspect than one which detrimentally affects a minor interstate trader, even though the former may have more resources to facilitate compliance with the relevant standard.

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[O]‌ne trader may be a surrogate or representative of a particular class of activity. Here Betfair conducts the only betting exchange based in Australia. In the joint reasons in Castlemaine Tooheys their Honours observed that discrimination in the relevant sense against interstate trade is inconsistent with s 92, regardless of whether it is sustained by all, some or only one of the relevant traders. But that does not mandate an outcome driven by the particular business methods adopted by any particular trader.

Those judges went on (at 267) to quote with approval the Full Court of the Federal Court,31 which had decided against Betfair: The differential burden must be imposed by the law or executive measure in the common circumstances of the milieu in which the trade occurs: the inquiry is as to whether there is a denial by the law or measure of a competitive advantage in trade, not whether an individual trader’s particular circumstances are such that its trade may be adversely affected by a law of general application to all traders.

Heydon J added (at 272): [A]‌law cannot be characterised as protectionist merely because its practical operation imposes a burden on a single interstate trader. It depends on the facts. The law may adversely affect only a few interstate traders. The law may benefit other interstate traders. The law may positively affect some interstate and intrastate traders and adversely affect others. The law may impose a heavier burden on local traders than interstate traders. The effect of the law on interstate trade or commerce may be very minor. In short, a measure cannot contravene s 92 unless it involves the unequal treatment of interstate trade and intrastate trade to the serious trading advantage of intrastate trade when compared with interstate trade.

His Honour added (at 274): A comparison between the position of one interstate trader and one local trader does not establish a burden on interstate trade. Many traders other than the appellant may participate in that interstate trade. What matters is not the individual position of any one interstate trader, but the position of the interstate trade in which they participate when compared to intrastate trade.

Hence, the Court emphasised that the subject of protection in s 92 was interstate trade, not interstate traders as such.32 However, this conclusion seems to contradict, in part, the decisions in Castlemaine Tooheys and Betfair 1. Heydon J attempted to reconcile Castlemaine Tooheys (at 276): The focus of the appellant [in Betfair 2] was on its own position. That approach might have been legitimate if the appellant’s position were typical of the relevant interstate trade or, as the appellant put it, “the lens through which one looks at the effect on interstate trade”. But the singular position of the appellant [as Australia’s only betting exchange] negated that possibility. The appellant’s approach might also be legitimate if it occupied so dominant a position in interstate trade that an impact on its position was sufficiently substantial to burden interstate trade to an extent significantly greater than the burden on intrastate trade. In that regard, the appellant drew an analogy between itself and the Bond brewing companies in Castlemaine Tooheys Ltd v South Australia. It sought to portray itself in the

31

See Betfair v Racing NSW (2010) 189 FCR 356 at 388.

32

See also  Betfair 2 at 268.

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manner that the Bond brewing companies portrayed themselves in that case, namely as a new challenger with a small share of sales that was vigorously shaking up a stagnant trade. But the evidence did not bear out the analogy.

With respect to the High Court, Betfair 2 does seem to depart from Betfair 1 and Castlemaine Tooheys. Castlemaine Tooheys can be distinguished on the basis that the law had an adverse impact on Bond’s market share, something which Betfair failed to prove in Betfair 2.33 Betfair 1 can be distinguished on the basis that the impugned Western Australian laws kept the company out of the market in wagers on the West Australian horseracing.34 However, it is submitted that neither case can be significantly distinguished from Betfair 2 when it comes to the bare point that the “discrimination” suffered was by only one interstate trader. Yet breaches of s 92 were found in both of the earlier cases. The reinforced focus on the protection of interstate trade rather than individual traders in Betfair 2 was supported in a judgment issued on the same day, Sportsbet v NSW (2012) 249 CLR 298. Sportsbet attempted, and failed, to characterise a particular fee imposed by New South Wales racing authorities as having a discriminatory impact on its business compared to that of an intrastate trader, the New South Wales TAB.35 At 319, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated: Both in this case and [Betfair 2] the appellant fixes upon the practical operation of the fee structure in the State licensing systems upon its business operations as an interstate … trader and contrasts this with the position of what it categorises as one or more competitors who are intrastate traders. But the minute analysis of business models, as applied from time to time, which this approach invites distracts attention from the concern of s 92 with effect upon trade, not prejudice to particular traders.

Clearly, a focus on single interstate traders risks the re-​emergence of the individual rights view of s 92, and places many State economic regulations at risk. As noted by the joint judges in Sportsbet, it also invites presentation of evidence in the form of “minute analysis of business models”. Ultimately, vast amounts of “minute analysis” might prove that any economic law harms a single trader compared to another single trader. This was a danger in the approaches arguably taken in Castlemaine Tooheys and Betfair 1, and wisely rejected in Betfair 2 and Sportsbet.

Conclusion [11.70]  Cole established that s 92 prohibits laws which discriminate against interstate trade in favour of intrastate trade in a protectionist sense. The concept of “discrimination in a protectionist sense” is a matter of substance rather than only form, as was made clear on the facts in Castlemaine Tooheys. Betfair 2 reinforces that the focus in s 92 is upon “interstate trade not interstate traders”. In this it differs from the focus in earlier cases on particular individual traders. Not every instance of discrimination between competitors in a given market will offend

33 See [11.45] and Betfair 2 at 270. 34

See Betfair 2 at 255-​256.

35

Sportsbet v NSW (2012) 249 CLR 298 failed to establish any discriminatory impact at all, let alone a protectionist one.

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s 92. The Court will examine the practical operation of the impugned regulation or burden, rather than only the formal operation of the law. Even if a measure is found to be discriminatory, the discriminatory burden must also be protectionist in order to offend s 92. Protectionist laws are of two types according to Bath v Alston Holdings: laws which confer a competitive advantage on local industry, and laws which deprive an interstate industry of its competitive advantages. Whereas most, if not all, laws which discriminate against imports will have a protectionist effect, the same conclusion cannot be automatically drawn with regard to laws which discriminate against exports,36 where a more complex analysis must ensue before the law will be found to be in breach. Betfair 1 drew the focus of the analysis of protectionism away from State-​based economies towards the effect of State laws on the national economy. Protectionism arises, according to Betfair 1, when a State law inhibits competition for its traders in any market (State or national) for goods and services from interstate traders. Protectionist laws may be “saved” if they are found to be appropriate and adapted, or reasonably necessary to achieving a non-​protectionist purpose. In the application of the proportionality test, the Court weighs up the detrimental protectionist effect of the law on interstate trade against the alleged positive effect of the law in addressing a countervailing social concern. Application of this test will doubtlessly on occasion prove controversial, because the test demands consideration of the object of the law, not only its operation and effect.37 Furthermore, Betfair 1 indicated that the exception will rarely be satisfied, and signalled a possible willingness by the Court to reconsider the exception in a future case.

FREEDOM OF INTERSTATE INTERCOURSE [11.75]  The propositions from Cole v Whitfield at [11.25]-​[11.70] concern the “trade and commerce” part of s 92. However, the Court made an important delineation between the freedom guaranteed to interstate trade and commerce, and the freedom guaranteed to interstate intercourse. To use the language of the High Court (at 388): The notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of the clause nor the ordinary meaning of its words require that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse.

And further (at 393-​394): A constitutional guarantee of freedom of inter-​State intercourse, if it is to have substantial content, extends to a guarantee of personal freedom “to pass to and fro among the States without burden, hindrance or restriction”. (Gratwick v Johnson (1945) 70 CLR 1 at 17) … That is not to suggest that every form of intercourse must be left without any restriction or regulation in order to satisfy the guarantee of freedom. For example, although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict 36 See also discussion by Coper, n 16, p 141. 37 See D Sonter, “Intention or Effect? Commonwealth and State Legislation after Cole v Whitfield” (1995) 65 Australian Law Journal 332 at 339-​341. See also [14.50].

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a pedestrian’s use of a highway for the purpose of his crossing or to authorize the arrest of a fugitive offender from one State at the moment of his departure into another State. It is not necessary now to consider the content of the guarantee of freedom of various forms of inter-​State intercourse. Much will depend on the form and circumstance of the intercourse involved. But it is clear that some forms of intercourse are so immune from legislative or executive interference that, if a like immunity were accorded to trade and commerce, anarchy would result. However, it has always been accepted that s 92 does not guarantee freedom in this sense, that is, in the sense of anarchy. … Once this is accepted, as it must be, there is no reason in logic or commonsense for insisting on a strict correspondence between the freedom guaranteed to inter-​State trade and commerce and that guaranteed to inter-​ State intercourse.

The High Court has given guidance on the meaning of “interstate intercourse” in Nationwide News v Wills (1992) 177 CLR 1 and Cunliffe v Commonwealth (1994) 182 CLR 272. In Nationwide News it was alleged that an article published in The Australian newspaper used words calculated to bring the Industrial Commission into disrepute, contrary to s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth). The newspaper argued, inter alia, that s 299(1)(d)(ii) contravened s 92 on the basis that the article was disseminated in print from New South Wales to the other States. Nationwide News claimed it was involved in interstate communication that constituted a form of interstate intercourse. Only three justices found it necessary to deal with the argument, as the rest found the law invalid for other reasons.38 Of these justices, only Brennan J considered whether an actual breach of s 92 had occurred. Deane and Toohey JJ offered the following comments on the definition of “interstate intercourse” (at 83): the guarantee of freedom of interstate intercourse is not confined to the physical movement or carriage of goods or things among the States. It encompasses all of the modern forms of interstate communication.

Brennan J offered a more comprehensive definition (at 55-​56): The protection of s 92 is given to the movement of people, the transport of goods, the transmission of communications, the passage of signals of any kind and any other means by which “interchange, converse and dealings between States in the affairs of life” are carried on across State boundaries. The protection is given to the movement of persons and things across the border or, in the case of intangibles, to the means by which their movement is effected. The means of movement will vary with what is moved; it is not essential that the means of movement be physically perceptible. But it is essential that something (or some person) be moved. Ideas cannot be moved. They have no geographical location. The expression of ideas, whether in literary or other form, can be moved and a movement of that kind across State borders is capable of attracting the operation of s 92.

Brennan J then outlined how the guarantee of free intercourse might be breached (at 57): While the freedom of interstate trade and commerce predicates an absence of discrimination between interstate and intrastate trade and commerce, discrimination is not an essential feature of an impermissible burden imposed on interstate intercourse. Of course, the

38 See Chapter 13 on the implied rights aspect of this case.

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appearance of discrimination against interstate intercourse of a particular kind and in favour of intrastate intercourse of a like kind would be a badge of invalidity. But discrimination in that sense is not an indicium of invalidity of a law burdening interstate intercourse. The general criterion of invalidity of a law which places a burden on interstate intercourse is that the law is enacted for the purpose of burdening interstate intercourse. If the law is enacted for some other purpose then, provided the law is appropriate and adapted to the fulfilment of that other purpose, an incidental burdening of interstate intercourse may not be held to invalidate the law. A law may be found to be enacted for the prohibited purpose by reference to its meaning or by reference to its effect. If a law imposes a burden by reason of the crossing of the border, as in R v Smithers; Ex parte Benson ((1912) 16 CLR 99, where Higgins J observed at 118 that the law was “pointed directly at the act of coming into New South Wales”) and in Gratwick v Johnson (1945) 70 CLR 1 … the law offends s 92 unless it falls into one of the exceptional categories presently to be mentioned. Similarly, a law which has the effect of preventing or impeding the crossing of the border will be held invalid if the circumstances are such as to show that that is its only or chief purpose. There are exceptions to these propositions.

As noted by the Court in Cole, the guarantee of free interstate intercourse is not absolute. Brennan J in Nationwide News went on to outline examples of exceptions to this guarantee: protection against the introduction into the State of animal or plant diseases, noxious drugs, gambling materials and pornography. Later, Brennan J outlined a test for “saving” a law that impedes interstate intercourse (at 59): Section 92 does not invalidate laws that do not select a movement across a State border as a criterion of the imposition of the burden but do have the effect of burdening interstate intercourse provided (1) the law is enacted chiefly for a purpose other than preventing or impeding a crossing of a State border, (2) the imposition of the burden is appropriate and adapted to the fulfilment of the other purpose … and (3) the prevention or impediment to border crossing is an incidental and necessary consequence of the law’s operation (R v Connare; Ex parte Wawn (1939) 61 CLR 596 at 616).

Brennan J is outlining a classic test of proportionality: the law’s effect on interstate intercourse is balanced against its effect in achieving another purpose. Upon application of this test, Brennan J found the law at issue in Nationwide News to be valid under s 92 (at 60): In this case, s 299(1)(d)(ii) imposes no discriminatory burden on any interstate communication. Therefore it does not infringe the freedom of interstate trade and commerce. … The purpose of s 299(1)(d)(ii) is wholly unrelated to the placing of any burden on any movement across State boundaries. Section 92 thus has no application to s 299(1)(d)(ii) of the Act and is therefore immaterial to the effect of that provision on the dissemination of the article or the lawfulness of its publication.

Dawson J took the same approach in Australian Capital Television v Commonwealth (1992) 177 CLR 106 when he stated (at 195): If the real object of the law is not the restriction of movement across State borders, the fact that such restrictions occur incidentally will not offend s 92, provided that the means adopted to achieve the object are neither inappropriate nor disproportionate.

In Cunliffe v Commonwealth (1994) 182 CLR 272, two lawyers brought an action based on, inter alia, s 92 interstate intercourse. Amendments to the Migration Act 1958 (Cth) required that lawyers who gave migration advice had to be registered. Was such a restriction on the communication of ideas a hindrance to interstate intercourse

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contrary to s 92? The Court decided that the law did not offend s 92. Mason CJ, whose decision was typical of the Court, stated (at 308): a law which imposes an incidental burden or restriction on interstate inter-​course in the course of regulating a subject-​matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests.

Thus, the test for breach of the guarantee of free interstate intercourse may be summarised as follows: ( 1) Ask whether there is a burden on interstate intercourse. (2) If so, ask if that is the purpose of the law. If the purpose of the law is to prevent interstate intercourse, it is invalid. If there is another possible purpose to the law: (3) ascertain whether the burden on interstate intercourse is appropriate and adapted to achievement of that other purpose. If the law fails this test of proportionality, it is invalid. The latter test of proportionality is essentially applied in the same way as the Castlemaine Tooheys test regarding freedom of interstate trade and commerce. It is unclear if the scepticism over the proportionality exception in s 92 in Betfair 1 has any relevance for the freedom of interstate intercourse.

SECTION 92 AND THE TERRITORIES [11.80]  Section 92 does not apply to protect trade or intercourse crossing from a Territory into another part of Australia. The appellant company in Sportsbet was in fact based in the Northern Territory rather than a State. The High Court explained at 315: [Section] 92 of the Constitution, which speaks of trade and commerce “among the States”, cannot be directly engaged in this appeal.

However, s 49 of the Northern Territory (Self-​Government) Act 1978 (Cth) states: Trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

Section 49 effectively reproduces the language of s 92, and the same tests apply to its interpretation. That is, the free trade test applies instead of the individual rights test. Section 49 clearly prevents the Northern Territory legislature from hindering free trade and intercourse between itself and the States. As s 49 is in a federal statute, it prevails over State laws due to s 109 of the Constitution,39 hence it also acts to prevent States from hindering such trade and intercourse. A similar provision to s 49 is found in the Australian Capital Territory (Self Government) Act 1988 in s 69.

39

See AMS v AIF (1999) 199 CLR 160 at 176. See also Sportsbet v NSW (2012) 249 CLR 298 at 315-​317.

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Chapter 12

Express Rights [12.10]

ACQUISITION OF PROPERTY ON JUST TERMS –​SECTION 51(XXXI) .................................. 436 [12.15] “Property” for the purposes of s 51(xxxi)........................................................................ 437 [12.20] “Acquisition of property”: A compound conception..................................................... 439 [12.25] Acquisition vs deprivation: What needs to be acquired?.............................. 440 [12.30] Common law choses in action............................................................................ 444 [12.35] Statutory proprietary rights................................................................................ 445 [12.40] Exceptions to s 51(xxxi)....................................................................................................... 451 [12.45] “Just terms”.......................................................................................................................... 457 [12.50] Acquisition for the purposes of the Commonwealth..................................................... 460 [12.55] Application of s 51(xxxi) within the Territories.............................................................. 461 [12.60] Conclusion on s 51(xxxi)..................................................................................................... 462 [12.65] THE RIGHT TO TRIAL BY JURY –​SECTION 80 ........................................................................... 462 [12.70] FREEDOM OF RELIGION –​SECTION 116 .................................................................................... 468 [12.75] Definition of “religion”....................................................................................................... 469 [12.80] Establishment of a religion................................................................................................. 470 [12.85] Laws “for” prohibiting the free exercise of any religion................................................ 471 [12.90] Requirement of religious tests a qualification for any office or public trust under the Commonwealth................................................................................................. 474 [12.95] DISCRIMINATION ON THE BASIS OF INTERSTATE RESIDENCE –​SECTION 117 ............ 474 [12.100] Exceptions to s 117............................................................................................................... 478 [12.105] NO EXPRESS RIGHT TO VOTE ....................................................................................................... 480 [12.110] CONCLUSION  .................................................................................................................................... 483

[12.05]  The Commonwealth Constitution contains a few express guarantees of individual rights: a right to just compensation if one’s property is compulsorily acquired (s 51(xxxi)); a limited right to trial by jury (s 80); freedom of religion (s 116); and freedom from discrimination on the basis of State residence (s 117). Section 92 was once interpreted as a right of interstate traders to be free from regulation. However, the “individual rights” interpretation of s 92 has been abandoned in more recent cases (see [11.35]). Attempts have also been made to claim express voting rights within the Constitution, though these attempts have failed. The short list of express rights hardly resembles any comprehensive attempt by the drafters to protect the human rights of individuals from government encroachment. This accords with the characteristic caution regarding constitutional rights of the Anglo-​Australian legal tradition (see [1.15]). That caution has also been exhibited by the High Court in its interpretation of the civil rights in ss 80, 116, and, until 1988, s 117. The judicial interpretation given to ss 80 and 116 has severely limited their scope. Section 117 too was interpreted very

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narrowly until the landmark case of Street v Queensland Bar Association (1989) 168 CLR 461, which signalled the adoption of a broad substantive interpretation of the provision. In contrast, the High Court has recently interpreted the economic rights in s 51(xxxi) and, until recently, s 92, very broadly. Even the modern interpretation of s 92 imposes substantial restrictions on the legislative power of governments (see Chapter 11). A change in the High Court’s approach to rights occurred in the early 1990s, when the High Court uncovered an implied freedom of political communication. Despite the High Court’s retreat from its radicalism of the early 1990s, the advent of implied rights has increased the protection offered to the rights of individuals by the Constitution. These rights are reviewed in Chapter 6 (see [6.135]-​[6.170]) and particularly Chapter 13, while the scope of the Constitution’s express rights is examined in this chapter.

ACQUISITION OF PROPERTY ON JUST TERMS –​SECTION 51(XXXI) [12.10]  Section 51(xxxi) reads: The Parliament shall, subject to this Constitution, have power to make laws … 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.

Section 51(xxxi) serves a dual purpose. First of all, it is an enabling provision as it confers legislative power on the Commonwealth Parliament to compulsorily acquire property for certain purposes. However, it also contains an important prohibition on Commonwealth power; such property can only be acquired “on just terms”. Section 51(xxxi) therefore confers certain property rights. Whilst one’s property may be compulsorily acquired,1 one is entitled to just terms as compensation for that acquisition. Section 51(xxxi) however has no application where one’s property is acquired by agreement rather than compulsion (John Cooke v Commonwealth (1924) 34 CLR 269 at 282): one is not constitutionally entitled to just terms if one agrees to sell one’s property for a poor price. As with most of the express constitutional rights, s 51(xxxi) only binds the Commonwealth.2 However, unlike those other rights, s 51(xxxi) has a history of broad interpretation, which prompts speculation that the High Court has historically been more interested in protecting economic rights than civil rights.3 The importance of s 51(xxxi) was reiterated by Callinan J in Smith v ANL Ltd (2000) 204 CLR 493 at 541-​542:

1 An argument by New South Wales in Commonwealth v NSW (1923) 33 CLR 1 that its prerogative proprietary rights over royal metals could not be compulsorily acquired under Commonwealth legislation was rejected, though of course just terms had to be paid. 2

In Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399 the High Court rejected an argument that the States are impliedly prohibited from compulsorily acquiring property without the payment of just terms.

3 Section 92, another economic right, also has a history of broad interpretation. See [11.25] and see G Williams and D Hume, Human Rights Under the Australian Constitution (2nd ed, OUP, Melbourne, 2013), p 284.

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It is unthinkable that in a democratic society, particularly in normal and peaceful times that those who elect a government would regard with equanimity the expropriation of their or other private property without proper compensation. What the public enjoys should be at the public, and not a private expense. The authors of the Constitution must have been of that opinion when they inserted s 51(xxxi) into the Constitution.

There was an increase in the number and complexity of s 51(xxxi) cases in the 1990s and renewed attention in the mid-​2000s. There has also arguably been an attempted “windback” of its effect, considering the High Court’s acceptance of “exceptions” to the principle, discussed at [12.40].

“Property” for the purposes of s 51(xxxi) [12.15]  “Property” for the purposes of s 51(xxxi) has been interpreted broadly. In Minister for the Army v Dalziel (1944) 68 CLR 261, Dalziel was the lessee of vacant land in Sydney which he utilised as a commercial carpark. In 1942, the Minister of the Army took possession of the land for defence purposes under the National Security (General) Regulations (Cth). Dalziel claimed compensation to cover his rental payments and lost profits. The Minister refused to compensate him for lost profits, so Dalziel claimed a breach of s 51(xxxi). It was argued that Dalziel did not have a sufficient interest in the land to benefit from the protection of s 51(xxxi). The High Court disagreed, holding that “property” for the purposes of s 51(xxxi) includes all property interests recognised under general property law. Starke J stated (at 290) that property included “every species of valuable right and interest including real and personal property, incorporeal hereditaments, such as rents and services, rights of way, rights of profit or use in land of another, and choses in action”. Dalziel was interpreted by Dixon J in Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1 (at 349): I take Minister of State for the Army v Dalziel … to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.

More recently, controversy has emerged over whether statutory and common law choses in action, which are recognised as “property” under general property law, are “property” for the purposes of s 51(xxxi). This issue is discussed at [12.30]-​[12.35], in tandem with the issue of “acquisition”. ICM Agriculture v Commonwealth (2009) 240 CLR 140 concerned the alteration of statutory licences to access groundwater. These licences were found to be “property”. The court also discussed the status of water itself. French CJ, Gummow and Crennan JJ stated (at 173-​174): [At common law], water, like light and air, is common property not especially amenable to private ownership and best vested in a sovereign state. The common law position in relation to flowing water, which adapted Roman law doctrine is that no-​one has “property in the water itself, but a simple usufruct while it passes along”. This reflected Blackstone’s classification of water as a “moveable, wandering thing” which was “common” property. As such it is “beyond individual appropriation and alienation”. Riparian rights did not

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depend on ownership of the soil of a stream; they attached to land in either lateral or vertical contact with a stream. This can be contrasted with the common law position in relation to groundwater settled in England in Chasemore v Richards [1859] EngR 894. Lord Chelmsford distinguished between “water flowing in a definite channel, and water whether above or underground not flowing in a stream at all, but either draining off the surface of the land, or oozing through the underground soil in varying quantities”. Such water could be intercepted by a landowner. The proposition that water in general cannot form the subject matter of property had the consequence that the grant by a landowner to another of a watercourse did not mean the grant of the water itself.

Hayne, Kiefel and Bell JJ (at 200-​201) also doubted that water could be the subject of property, at least prior to its extraction from the ground. Wurridjal v Commonwealth (2009) 237 CLR 309 concerned the validity of a series of legislative provisions which put in place the “Northern Territory Intervention” (NTI) from 2007. The Commonwealth government was extremely concerned over reports of alcohol and drug abuse, pornography, gambling, and most disturbingly, abuse of children in some Aboriginal communities in the Northern Territory.4 The legislation (the Emergency Response Act 2007 (Cth)) facilitated the exercise of significant coercive powers by the Commonwealth, and impacted on Indigenous property rights which had been granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The NTI legislation granted a five-​year statutory lease to the Commonwealth over property granted in fee simple to the Land Trust under the Land Rights Act. Those leases also abolished a permit system in respect of those lands under which the Land Trust and traditional Aboriginal owners of land could refuse access to those without a permit. These measures were found by the majority to constitute acquisitions of property rights. The majority, however, went on to find that just terms were provided for those acquisitions (see [12.45]). The plaintiffs in Wurridjal had also claimed that the NTI legislation acquired their property by curtailing rights under s 71 of the Land Rights Act. Section 71 created an entitlement for Aboriginal people to enter, use or occupy Aboriginal land in accordance with Aboriginal traditions governing the use of that land. The majority found that the NTI legislation did not alter those rights, so no acquisition had taken place. There was therefore no need to decide if s 71 had created property rights that could be acquired for the purposes of s 51(xxxi). Kirby J went further than the other members of the Court in identifying proprietary rights that might have been acquired under the NTI legislation. We note here that the case was dismissed by the majority pursuant to a demurrer, that is a decision on whether pleadings reveal an actionable claim if one assumes all of the pleadings

4 Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Makarle “Little Children Are Sacred”, Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Darwin, Northern Territory Government (2007).

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are correct. It does not equate with a full evidential hearing. Kirby J stated that a full hearing was needed in order to identify the full extent of the property potentially acquired (at 423): As indicated by the short title of the Emergency Response Act, the federal intervention in question in these proceedings involves an extensive series of initiatives that envisage intense personal and community or group intrusions into the lives of Aboriginal Australians. It would be extremely naïve of this Court to assume that the impact of the Commonwealth’s statutory leases upon Aboriginal traditional rights on the Maningrida land would be trivial or inconsequential. The very purpose of securing the five-​year statutory leasehold interests for the Commonwealth was to permit federal initiatives of an avowedly intrusive character to be undertaken on such land impinging on the property rights of the Aboriginal peoples affected. This Court cannot properly resolve the issues presented in the statement of claim on the basis only of the pleading of the causes of action. That pleading includes the cause of action based upon what the first and second plaintiffs correctly contend is the “acquisition of property” of the Land Trust. Against the background of this Court’s broad understandings of s 51(xxxi) of the Constitution, the first and second plaintiffs have adequately pleaded claims cognisable to the law. Subject to what follows, the ultimate proof as to their entitlement to relief would depend upon the evidence adduced at trial and the legal arguments addressed to that evidence. Demurrer is not, therefore, a remedy that is available to the Commonwealth in this case.

Kirby J could not agree that the case could be dismissed by way of demurrer without a full hearing to identify the extent of property acquired, and whether the NTI scheme provided for just terms in respect of that property. The majority did not seem to acknowledge the same extent of potential acquired property, and found in any case that just terms were provided for (see [12.45]).

“Acquisition of property”: A compound conception [12.20]  The concept of “property” has usually been considered as part of the compound conception of “acquisition of property”.5 In particular, recent cases have linked the definition of “property” for the purposes of s 51(xxxi) with an analysis of whether the property can be relevantly “acquired”. An important preliminary point to note is that the relevant “acquisition” does not have to be by the Commonwealth directly, though it must be effected by a law of the Commonwealth. For example, s 51(xxxi) was held to apply on the facts in PJ Magennis v Commonwealth (1949) 80 CLR 382, where the relevant acquisition was made by the State of New South Wales under a Commonwealth law (a grants Act enacted under s 96) (see [10.35]). This principle was confirmed in Smith v ANL Ltd (2000) 204 CLR 493 where argument had been devoted to whether the beneficiary of the alleged acquisition, ANL Ltd, was “the Commonwealth or an emanation of it”: the Court did not decide this issue as s 51(xxxi) “is not confined in its operation to acquisitions by the Commonwealth itself” (Callinan J at 556-​557).

5 Dixon J coined the phrase “compound conception” in Grace Brothers v Commonwealth (1946) 72 CLR 269 at 290.

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Acquisition vs deprivation: What needs to be acquired? [12.25] The Bank Nationalisation case (1948) 76 CLR 1 demonstrates that the issue of “acquisition” is a matter of substance rather than form. The case concerned the validity of the Banking Act 1947 (Cth). Division 3 of Pt IV provided that the management of private banks was to be transferred to directors appointed by the Commonwealth. These new directors would have full management powers to control the private banks, including the power to dispose of the business of the bank. The objective of the Act was to facilitate the transfer of the entire private banking business to the Commonwealth Bank and “nationalise” the industry. The validity of Div 3 was challenged. The High Court unanimously found that Div 3 breached s 51(xxxi) as it amounted to the compulsory transfer of “effective” if not legal control over property. Dixon J explained (at 348-​349): It places all the property and the activities of the company under the supreme control of the nominees of the Treasurer and the Bank and leaves them in entire control indefinitely with complete powers of disposition and complete power to bind the company as to the recompense it will receive for its assets. The corporate entity of the company remains and in it the legal property in the assets continues to reside. Shareholders are entitled to dividends if the nominees see fit to declare any. In a winding up, if there be one, shareholders remain entitled to participate as contributories. But in all other respects the beneficial enjoyment and control of the undertaking has been placed in the hands of agents of the Commonwealth, or of the Commonwealth Bank if the distinction is insisted on … The company and its shareholders are in a real sense, although not formally, stripped of the possession and control of the entire undertaking. … It must be remembered that complete dispositive power accompanies the control of the assets which passes to the nominees. Upon consideration I have reached the conclusion that this is but a circuitous device to acquire indirectly the substance of a proprietary interest without at once providing the just terms guaranteed by s 51(xxxi) of the Constitution when that is done.

As an example of the way in which the scheme breached s 51(xxxi), it may be noted that the Commonwealth-​appointed directors had the power to sell the banking business, and were indeed likely to sell to the Commonwealth Bank. Although the proceeds of such sale would have had to go to the banks’ shareholders, there was no requirement in Div 3 that the sale itself be on just terms. Division 3 permitted the nominated directors to sell the businesses at a below-​market price, so it contravened s 51(xxxi). In Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, the Commonwealth legislation at issue prohibited certain activities on “identified property” without the consent of a Commonwealth Minister. Crown land on the Gordon-​below-​Franklin River, the site chosen for a new dam, was declared to be “identified property”. Thus, it was argued, inter alia, that the Commonwealth legislation restricted the State’s use of its own land without the Commonwealth consent to such an extent that it effected an acquisition of that land by the Commonwealth. The facts were therefore somewhat analogous to the Bank Nationalisation case, where the transfer of “effective control” over property was found to activate s 51(xxxi). Only four Justices considered this argument in Tasmanian Dam, of which three found no breach of s 51(xxxi). Mason J, with whom Murphy and Brennan JJ agreed, stated (at 145-​146):

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The emphasis in s 51(xxxi) is not on a “taking” of private property but on the acquisition of property for purposes of the Commonwealth. To bring the Constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-​existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be. The effect of [the impugned legislation] is to prevent any development of the property in question, subject to the Minister’s consent, so as to preserve its character as a wilderness area. … In terms of its potential for use, the property is sterilized. … However, what is important in the present context is that neither the Commonwealth nor anyone else acquires by virtue of the legislation a proprietary interest of any kind in the property. The power of the Minister to refuse consent under the section is merely a power of veto. He cannot positively authorize the doing of acts on the property. As the State remains in all respects the owner the consent of the Minister does not overcome or override an absence of consent by the State in its capacity as owner. The fact that the Minister has a power of veto of any development of or activity on the property does not amount to a vesting of possession in the Commonwealth. Significantly, the Act contains no provision dealing with possession. [emphasis added]

These three Justices confirmed that the mere deprivation or “taking” of property rights from somebody does not activate the “just terms” requirement; there must also be a relevant “acquisition of property” by another party. To take an example, if one was compelled by the Commonwealth law to exterminate one’s livestock (which could, for example, take place if a virus was detected in one’s pigs or birds), there would appear to be compulsory deprivation of property but not compulsory acquisition, and thus no constitutional requirement of just terms for the owners of the livestock. Deane J agreed (at 283) that “[t]‌he mere extinguishment or deprivation of rights in relation to property does not involve acquisition”. In Deane J’s view, this rule sufficed to explain the compatibility of most regulatory legislation with s 51(xxxi): whilst laws might regulate and therefore limit the use of property, no concomitant acquisition occurs.6 Mason, Murphy and Brennan JJ required that there not only be acquisition but also the acquisition of some sort of “proprietary interest”. In contrast, Deane J found that a relevant acquisition had occurred on the Tasmanian Dam facts (at 283 and 286-​287): Difficult questions can arise when one passes from the area of mere prohibition or regulation into the area where one can identify some benefit flowing to the Commonwealth or elsewhere as a result of the prohibition or regulation. Where the benefit involved represents no more than the adjustment of competing claims between citizens in a field which needs to be regulated in the common interest, such as zoning under a local government statute, it will be apparent that no question of acquisition of property for a purpose of the Commonwealth is involved. Where, however, the effect of prohibition or regulation is to confer upon the Commonwealth or another an identifiable and measurable advantage or is akin to applying the property, either totally or partially, for a purpose of the Commonwealth, it is possible that an acquisition for the purposes of s 51(xxxi) is involved. The benefit of land

6

See also Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, especially per Stephen J.

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can, in certain circumstances, be enjoyed without any active right in relation to the land being acquired or exercised … [emphasis added] The Commonwealth has, by the Wilderness Regulations, brought about a position where the HEC land [the dam site] is effectively frozen unless the Minister consents to development of it. … The benefit of a restrictive covenant, which prohibits the doing of certain acts without consent and which ensures that the burdened land remains in a state which the person entitled to enforce the covenant desires to have preserved for purposes of his own, can constitute a valuable asset. It is incorporeal but it is nonetheless property. There is no reason in principle why, if “property” is used in a wide sense to include “innominate and anomalous” interests, a corresponding benefit under a legislative scheme cannot, in an appropriate case, be regarded as property. In the present case, the Commonwealth has, under Commonwealth Act and Regulations, obtained the benefit of a prohibition, which the Commonwealth alone can lift, of the doing of the specified acts upon the HEC land. The range of the prohibited acts is such that the practical effect of the benefit obtained by the Commonwealth is that the Commonwealth can ensure, by proceedings for penalties and injunctive relief if necessary, that the land remains in the condition which the Commonwealth, for its own purposes, desires to have conserved. In these circumstances, the obtaining by the Commonwealth of the benefit acquired under the Regulations is properly to be seen as a purported acquisition of property for a purpose in respect of which the Parliament has power to make laws. The “property” purportedly acquired consists of the benefit of the prohibition of the exercise of the rights of use and development of the land which would be involved in the doing of any of the specified acts.

Deane J differed from the other three Justices in that he was willing to interpret the acquisition by the Commonwealth of the benefit of substantial control over the relevant property as amounting to a “proprietary interest”. Indeed, it is arguable that Deane J was indicating that the acquisition of any benefit, whether proprietary or non-​proprietary, as a result of another’s proprietary deprivation, will suffice to constitute an “acquisition of property” for the purposes of s 51(xxxi). The characterisation of “control of property” arose again in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513. Under the Mining Ordinance 1939 (NT), 25 mining tenements were created at Coronation Hill in the Northern Territory. These mining tenements were sold to Newcrest Mining in 1987. Commonwealth Proclamations in 1989 and 1991 extended the area known as Kakadu National Park so as to cover the 25 mining sites, which meant that those sites were subjected to the National Parks and Wildlife Conservation Act 1975 (Cth). Section 10(1) of that Act prohibited mining in Kakadu National Park. The result of the Kakadu extension was therefore to prohibit Newcrest from exploiting its mining sites. A majority in Newcrest found that an acquisition of property on unjust terms had taken place contrary to s 51(xxxi). Newcrest had lost its proprietary rights to mine the tenements, so there was deprivation of property. The consequent assignment of the free use of the tenement land for conservation purposes by the Director of National Parks and Wildlife constituted a relevant “acquisition”. Furthermore, the Commonwealth, as the prerogative “owner” of minerals at the Coronation Hill sites, acquired a proprietary benefit as its title to those minerals was no longer subject to Newcrest’s rights to mine them. Gummow J confirmed (at 634) that the proprietary advantage acquired does not have to correspond to the proprietary right lost. For example, Newcrest Mining in this case lost its rights to mine, but nobody else acquired those rights. Nevertheless,

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a breach of s 51(xxxi) was found. Newcrest Mining clearly exhibited a liberal attitude to the definition of “acquisition”.7 The broader definition of acquisition, whereby the Court has appeared to accept acquisitions of benefits rather than insisting on acquisitions of actual proprietary interests as constituting s 51(xxxi) acquisitions, is also evident in cases concerning common law choses in action, discussed at [12.30].8 In Smith v ANL Ltd (2000) 204 CLR 493, Kirby J summarised up the law by stating (at 527): This Court has repeatedly held that exact equivalence between the “modification” of property rights and the “benefits” gained by those deemed to have “acquired” those rights need not be shown. It is sufficient that the beneficiary gains “some identifiable and measurable countervailing benefit or advantage”.

JT International v Commonwealth (2012) 250 CLR 1 concerned a challenge to federal legislation, the Tobacco Plain Packaging Act 2011 (Cth), mandating the plain packaging of tobacco products. The legislation severely restricted the use that tobacco manufacturers could make of their intellectual property rights in dictating that their (main) products be sold in plain olive green packages without trademarks and with large warnings and (largely lurid) photographs of the harm caused by tobacco to consumers. The action failed because the (severe) restriction on the use of intellectual property did not entail the acquisition of any proprietary rights by the Commonwealth or any other entity.9 The Court staunchly insisted that the relevant acquisition had to be of a “proprietary right”, even if the right acquired was not the exact equivalent of the right lost.10 While some judges conceded that property had been “taken” from the tobacco companies, as their rights to exploit their intellectual property were so substantially reduced,11 Crennan J disagreed, as she felt that the continued ability of the companies to exclusively use their brand names (eg “Winfield”, “Dunhill”) distinguished their products sufficiently so as to preclude a finding that their intellectual property had been taken.12 The tobacco company plaintiffs had tried to argue that a variety of benefits flowed away from them to other entities so as to activate s 51(xxxi): these arguments all failed. The Commonwealth government’s consequent fulfilment of international treaty obligations relating to tobacco control was “insufficient to provide an ‘acquisition’ by the Commonwealth”,13 and arguments relating to a reduced health budget (if the measure reduced smoking) were purely speculative.14 The increase in “goodwill” 7 See also Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480 at 509. See also discussion of the notion of “acquisition” by Brennan CJ in Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 20. 8 See also T Allen, “The Acquisition of Property on Just Terms” (2000) 22 Sydney Law Review 351 at 355-​357. 9 See for example, French CJ at 34. 10 See French CJ at 34, Gummow J at 62, Hayne and Bell JJ at 68 Crennan J at 110. 11 See for example, French CJ at 34, Gummow J at 60. 12 See Crennan J at 105. 13 Gummow J at 62. 14 See Gummow J at 62.

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brought about the prominence on cigarette products for the “Quitline” service, which facilitates smokers to quit smoking, was also speculative.15 Of most importance, the large measure of control given to the Commonwealth over the design of tobacco product packaging was not “proprietary in nature”16 so it did not generate a s 51(xxxi) claim.17 In contrast, Heydon J in dissent found that the Commonwealth acquired substantial control, a right which he characterised as “proprietary”, over the property of the plaintiffs, in breach of s 51(xxxi) as no just terms were provided.18 JT International suggested a narrower view of s 51(xxxi) with a more rigorous adherence to the notion that a proprietary right rather than a mere benefit must be acquired. Common law choses in action [12.30]  A chose in action is an intangible right of property enforceable in a court of law.19 Are such property rights subject to the effect of s 51(xxxi)? In Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, the validity of s 44 of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) was challenged. Prior to commencement of the Act, Georgiadis had been injured during the course of his employment with the defendant, Telecom, so he consequently accrued, assuming negligence, a common law right to sue for damages. He failed to pursue this cause of action until after the Act came into force. Section 44 purported to extinguish certain common law rights in respect of work injuries, including Georgiadis’ rights, and replace those rights with statutory rights of compensation. Counsel for Georgiadis argued that s 44 breached s 51(xxxi) as it extinguished Georgiadis’ property in his common law chose in action, his right to sue at common law for damages, without providing for just terms. The High Court split 4:3 in favour of Georgiadis. The entire Court characterised Georgiadis’ pre-​ existing common law rights as “property”. Indeed, a right to proceed in a Court of law to procure the payment of a sum of money (a chose in action) has long been held to constitute property under general property law. Mason CJ, Brennan, Deane and Gaudron JJ found that there was on the facts a relevant “acquisition of property” entailed in the distinct financial benefit which accrued to Georgiadis’ employer: the effect of the Act was to reduce Telecom’s financial liability to Georgiadis. Dawson J dissented on the basis that Telecom only acquired a financial benefit, which did not answer the description of “property” (at 251). He therefore

15 See Gummow J at 62. 16 See French CJ at 33-​34, Gummow J at 63, Hayne and Bell JJ at 71, 72. 17 Hayne and Bell JJ disputed the level of control “gained” by the Commonwealth, who could not, for example, “use the packaging as advertising space” (72). 18 See, for example, Heydon J at 82. 19 J Tooher and B Dwyer, Introduction to Property Law (5th ed, LexisNexis Butterworths, Chatswood, 2008), p 146.

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adopted a strict or narrow definition of “acquisition” in contrast to the liberal approach of the majority. Whatever Telecom acquired, it was not the same as that which Georgiadis had lost, and it was not, strictly speaking, “property”. However, there is no doubt that Telecom did acquire an identifiable and real benefit, which satisfied the majority’s test for “acquisition”. Toohey and McHugh JJ agreed that a common law chose in action was property which could be relevantly acquired for the purposes of s 51(xxxi). However, they found that Georgiadis’ lost property was in fact a statutory chose in action, and not subject to s 51(xxxi).20 Statutory choses in action are discussed at [12.35]. The decision in Georgiadis was unanimously upheld in Commonwealth v Mewett (1997) 191 CLR 471 and again Smith v ANL Ltd in 2000. In Mewett, the Court found that the extinguishment of a common law chose in action which was statute barred could constitute an “acquisition of property”. In Smith, it had been argued that the impugned legislation was relevantly distinguishable from that in Georgiadis, as it extinguished the relevant common law cause of action six months after its entry into force, whereas the Georgiadis legislation effected an immediate extinguishment. The High Court unanimously rejected the argument, and found that the delayed extinguishment of a common law cause of action was an “acquisition of property” under s 51(xxxi). Therefore, the extinguishment or diminution of a common law chose in action will attract the “just terms” requirement of s 51(xxxi). As noted, in JT International, the majority confirmed that a “proprietary right” must be acquired in order for s 51(xxxi) to apply. Gummow J simply explained (at 59) that Georgiadis demonstrated “that the modification or deprivation of the proprietary rights of one party may yield to another party a countervailing benefit or advantage of a proprietary nature”. Hence, he simply classified Telstra’s corresponding benefit has being somehow “proprietary” in order to divine consistency between Georgiadis and JT International.21 Statutory proprietary rights [12.35]  The case law indicates that proprietary rights which arise from Commonwealth statutes are treated differently from common law property rights for the purposes of s 51(xxxi). Health Insurance Commission v Peverill (1994) 179 CLR 226 was decided on the same day as Georgiadis. Under the Health Insurance Act 1973 (Cth), medical patients were entitled to government reimbursement of moneys paid for certain medical treatments. Patients were entitled to enter into an agreement with their doctors to assign the right

20 Toohey and McHugh JJ found that “the right to sue the Commonwealth”, including its agents such as Telecom, was not derived from the common law but from statute. At common law, the Commonwealth executive is immune from suit (see [5.90]). This immunity has been removed by Judiciary Act 1903 (Cth), ss 57 and 58. Toohey and McHugh JJ therefore identified the source of Georgiadis’ rights as a statute, the Judiciary Act 1903 (Cth), rather than the common law. The majority on the other hand drew a distinction between the right to proceed and the underlying cause of action, finding that the latter was rooted in the common law. 21 See also Gummow J at 64; see also Hayne and Bell JJ at 69.

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to payment of public health reimbursements (“Medicare” payments) as payment for the medical treatment rendered; this is known as the “bulkbilling” system. Dr Peverill performed certain pathologist tests on patients between 1984 and 1989. His patients assigned to him their right of recompense for these tests. He subsequently claimed the right of recompense from the Health Insurance Commission (HIC). Peverill and the HIC differed as to the proper classification of the relevant tests under the Schedule to the Act, and thus differed over the amount owing to Peverill. Peverill claimed that under the Schedule the tests were worth $34.50 each. HIC claimed they were only worth $4.60, so that was all it paid Peverill for each test. The dispute went to the Federal Court, where Burchett J found that Peverill’s classification was correct. Peverill then sued the HIC for recovery of the outstanding moneys. While Peverill’s action was pending, the Commonwealth amended the 1973 Act by passing the Health Insurance (Pathology Services) Amendment Act 1991 (Cth) which had the effect of retrospectively changing the classification of Peverill’s tests so that Peverill was only entitled to $4.60 for each test, the amount already paid by the HIC. Peverill duly challenged the constitutionality of the 1991 amendment, claiming that it effected an acquisition of his entitlements to Medicare payments at a higher rate, which had already crystallised. The relevant property therefore was a chose in action. Unlike Georgiadis, the relevant chose in action was here sourced in a statute, the 1973 Act, rather than the common law. Peverill’s claim succeeded before the Federal Court, but was reversed on appeal unanimously by the High Court. However, no unanimity existed in the Justices’ reasoning. Brennan J characterised Medicare payments as statutory gratuities, essentially bestowed at the largesse of the Commonwealth. A “right” to a gratuity was not in his view “property” (at 243-​244): The right so conferred on assignee practitioners is not property: not only because the right is not assignable (though that is indicative of the incapacity of a third party to assume the right) but, more fundamentally, because a right to receive a benefit to be paid by a statutory authority in discharge of a statutory duty is not susceptible of any form of repetitive or continuing enjoyment and cannot be exchanged for or converted into any kind of property. On analysis, such a right is susceptible of enjoyment only at the moment when the duty to pay is discharged. It does not have any degree of permanence or stability.

The other six Justices agreed that Peverill’s right was a chose in action and was “property”. However, they all found that no relevant “acquisition” had arisen. Mason CJ, Deane and Gaudron JJ explained (at 237): It is significant that the rights that have been terminated or diminished are statutory entitlements to receive payments from consolidated revenue which were not based on antecedent proprietary rights recognized by the general law. Rights of that kind are rights which, as a general rule, are inherently susceptible of variation. That is particularly so in the case of both the nature and quantum of welfare benefits, such as the provision of medicare benefits in respect of medical services. … In [case of variation] what is involved is a variation of a right which is inherently susceptible of variation and the mere fact that a particular variation involves a reduction in entitlement and is retrospective does not convert it into an acquisition of property. More importantly, any incidental diminution in an individual’s entitlement to payment in such a case does not suffice to invest the law adjusting entitlements under the relevant statutory scheme with the distinct character of a law with respect to the acquisition of property for the purposes of s 51(xxxi) of the Constitution. [emphasis added]

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Thus, these three Justices characterised Peverill’s Medicare entitlements as rights which the Commonwealth had an intrinsic right to vary, diminish and even extinguish. “Susceptibility to variation by the Commonwealth” was an intrinsic characteristic of the property at issue, so any such variation was not an acquisition. Thus, for the joint justices, Medicare entitlements were not property that could be relevantly acquired, at least not by the Commonwealth or its agent, the HIC, for the purposes of s 51(xxxi). This was despite the fact that the HIC undoubtedly gained a benefit which was analogous to that obtained by Telecom in the Georgiadis case. The essential difference between the cases was the source (that is, common law as opposed to federal statute), which affected the inherent characteristics, of the plaintiff’s proprietary rights. The joint justices limited the effect of their judgment to Medicare benefits. McHugh J essentially agreed with the reasoning of the joint justices, but he went further in stating that all rights created by Commonwealth statute were inherently susceptible to variation. Therefore, according to four Justices (including Brennan J) in Peverill, certain statutory choses in action are inherently susceptible to variation by the Commonwealth, and thus cannot be relevantly “acquired” by the Commonwealth law. McHugh went one step further, applying this reasoning to all statutory choses in action. In Newcrest Mining, a majority found a breach of s 51(xxxi) entailed in the removal of mining rights which had been originally created by federal statute. However, the argument in that case focused more on the issue of whether s 51(xxxi) applies in the Territories (see [12.55]) and whether an “acquisition” had taken place (see [12.25]). No real argument was apparently raised regarding the source of the proprietary rights at issue. The relevance of s 51(xxxi) to the diminution or extinguishment of rights conferred by federal statute was expressly considered in Commonwealth v WMC Resources Ltd (1998) 194 CLR 1. WMC had been granted rights to explore for petroleum in the continental shelf between Australia and East Timor in 1983 under the Petroleum (Submerged Lands) Act 1963 (Cth) (the PSL Act). Sovereignty over this continental shelf was disputed between Australia and Indonesia, then the de facto sovereign in East Timor. The dispute was partially resolved by the Timor Gap Treaty of 1991.22 The Treaty was incorporated into Australian domestic law by a pair of Acts, one of which was the Petroleum (Australia-​Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 (Cth) (the CPA Act). The CPA Act reduced the zone in which WMC had a right to explore. WMC consequently claimed that the CPA Act effected an acquisition of its property, its proprietary right to explore the continental shelf, which had been granted under the PSL Act. A majority of four (Brennan CJ, Gaudron, McHugh and Gummow JJ) to two (Toohey and Kirby JJ) found that s 51(xxxi) did not apply on the facts. However, the reasoning within the majority differed markedly. Gummow J, with whom Gaudron J agreed, based his decision very much on the wording of the relevant statutes, which enabled 22 Treaty between Australia and the Republic of Indonesia on the Zone of Co-​operation in an Area between the Indonesian Province of East Timor and Northern Australia 1991, ATS 1991 No 9.

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him to find on the specific facts of the case that no breach of s 51(xxxi) had occurred. Brennan CJ, with whom Gaudron J also agreed, found that no acquisition had occurred, as the Commonwealth had not acquired any benefit. Brennan CJ explained (at 20): Although, by our municipal law the Commonwealth has the power to legislate in respect of the exploration of and the exploitation of the resources of the continental shelf, it has no property in the continental shelf at common law. It is not necessary to consider what the effect might be of a law of the Commonwealth (if the Commonwealth were ever to enact such a law) that purported to declare its property in the continental shelf. The PSL Act does not purport to do so. The statutory modification or extinguishment of a permit or an interest in a permit is not an acquisition of property by the Commonwealth, for the Commonwealth was under no liability reciprocal to the permit or interest and acquires no benefit by the modification or extinguishment. It follows that the Consequential Provisions Act is not a law for the acquisition of property and is therefore not a law falling within s 51(xxxi).

The case was distinguishable from Newcrest Mining, as in that case the Commonwealth undoubtedly “owned” the relevant minerals, and therefore gained a benefit from the extinguishment of the mining tenements. In WMC, Brennan CJ and Gaudron J found that the Commonwealth did not “own” any interest in the continental shelf, either at common law or under statute, so it gained no benefit from the diminution of WMC’s rights in that continental shelf. A difficulty with the decisions of Brennan CJ and Gaudron J is that they focus exclusively on whether the Commonwealth itself acquired a benefit. Bearing in mind that it has been held that s 51(xxxi) applies wherever Commonwealth legislation effects an compulsory “acquisition of property” by third parties, it was incumbent upon these Justices to explore the possibility that a benefit accrued to a third party, such as the Republic of Indonesia. McHugh J joined the majority in finding no breach of s 51(xxxi), though for a different reason. He extended his Peverill view by asserting that all proprietary rights created by federal statute were inherently susceptible to variation, and thus could not be relevantly acquired by Commonwealth legislation so as to attract the “just terms” requirement in s 51(xxxi). McHugh J explained (at 51-​52): The power to make laws with respect to a subject described in s 51 carries with it the power to amend or repeal a law made on that subject. A property interest that is created by federal legislation, where no property interest previously existed, is necessarily of an inherently determinable character and is always liable to modification or extinguishment by a subsequent federal enactment. Section 51(xxxi) therefore does not ordinarily withdraw from the Parliament the authority to use another s 51 power to revoke or amend legislation that has been passed under that power, even when the legislation has created a property right. The fact that the Commonwealth or some other person might be viewed as benefiting from that alteration or revocation is irrelevant.23

Kirby J, with whom Toohey J agreed, dissented in finding a breach of s 51(xxxi). The minority found that the Commonwealth and Indonesia acquired a benefit in that they were now free to grant further exploration permits to other parties. More importantly, 23 Similar reasoning was applied by a number of Justices in Kartinyeri v Commonwealth (1998) 195 CLR 337, discussed at [14.30].

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Kirby J found that federal statutory proprietary rights could be “acquired” for the purposes of the “just terms” requirement. He stated (at 93-​94): Much authority of this Court stands against the proposition that the mere fact that property rights are created by federal legislation necessarily implies that they may be extinguished or varied by later legislation without the provision of just terms. As the analysis of the provisions of PSLA demonstrate, far from stating, or implying, that the rights of permittees under that Act were defeasible, the clear object of the Act was to afford permittees the kind of stable “title” to property rights which the Minister, introducing the Bill, acknowledged would be necessary if investors were to be attracted to risk substantial venture capital. Unlike other cases where defeasibility of rights is expressly stated or implied, this was legislation which went to a great deal of trouble to assure permit holders that their property rights would be guaranteed against arbitrary or discretionary loss. The rights of permittees in the permit area are virtually exclusive. The term is substantial. There is provision for renewal. An exploration permit is the logical first step to the exercise of rights under PSLA to secure a production licence upon the discovery of petroleum reserves. Were a risk of arbitrary or discretionary loss stated or implied in the Act, it is unthinkable that permittees would assume the extremely heavy obligations, involving long-​term investment and commitment, associated with such permits. … What must be ascertained are the characteristics and obligations of the Permit as contemplated by the legislative scheme. A moment’s reflection on that scheme confirms that any suggestion that these were defeasible rights which could be granted and cancelled at will, without the provision of just terms, is completely incompatible with the nature of those rights and the valuable investments depending upon them.

Thus, for Kirby J, the fact that a proprietary interest was created by Commonwealth statute does not per se immunise the diminution of that interest from the requirements of s 51(xxxi). Rather, it was necessary to examine the nature of the statutory property and the legislative intent evinced in the relevant statute to decide if the property was “inherently defeasible”. Kirby J explained further (at 99): Some interests, of their nature, are much more likely to be catalogued as protected by the guarantee [in s 51(xxxi)] than others. If the interests are ephemeral, prone to ready variation or dependent upon benefits paid out of the consolidated revenue [as in Peverill], they will much more readily be classified as falling outside the constitutional protection than where they are exclusive, transferable, require substantial investment, impose significant obligations and partake, by analogy, of the familiar features of stable and valuable property interests long recognised by the common law. The creation of new property interests by federal legislation can scarcely be a consideration which, of itself, puts such interests beyond the protection of s 51(xxxi). After all, the Commonwealth can ordinarily create property interests only by legislation. Several interests created by federal legislation have been held to attract the protection of s 51(xxxi). Newcrest is but the latest case to deny the proposition that all legislative rights are inherently provisional and of their nature liable to repeal without the provision of just terms. When the rights conferred by the permit in question here are considered, they can, on no account, be described as defeasible according to their nature.

Though Kirby J was in the minority in the result, it appears that a majority of the Justices agreed with him that certain federal statutory proprietary rights could be acquired for the purposes of s 51(xxxi). Kirby J’s interpretation of s 51(xxxi) was confirmed in Attorney General for Northern Territory v Chaffey (2007) 231 CLR 651. The case concerned the alleged acquisition

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of statutory compensation rights by the Northern Territory government in enacting relevant new legislation.24 Gleeson CJ, Gummow, Hayne and Crennan JJ stated (at 664): The term “property” is used in various settings to describe a range of legal and equitable estates and interests, corporeal and incorporeal. In its use in s 51(xxxi) the term readily accommodates concepts of the general law. Where the asserted “property” has no existence apart from statute further analysis is imperative. It is too broad a proposition, and one which neither party contended for in these appeals, that the contingency of subsequent legislative modification or extinguishment removes all statutory rights and interests from the scope of s 51(xxxi). Newcrest Mining (WA) Ltd v The Commonwealth is an example to the contrary.

Kirby J repeated his view from WMC, stating (at 668) that “particular types of legislation will be outside the ambit of the guarantee to provide ‘just terms’ for an ‘acquisition’ because the statutory rights acquired may be seen as inherently susceptible to variation”. The Court unanimously found the relevant rights in Chaffey to be inherently impermanent and variable, so s 51(xxxi) was not engaged by their variation.25 In Wurridjal, the majority seemed to accept that the source of the relevant proprietary rights was the Land Rights Act (rather than, for example, traditional Aboriginal law), thus indicating that the rights in question could ground a s 51(xxxi) claim despite their statutory base. In JT International SA v Commonwealth (2012) 250 CLR 1, all judges found that intellectual property rights in the form of registered trademarks, designs, patents and copyright were property for the purposes of s 51(xxxi) even though such rights are created by statute.26 As Gummow J stated (at 48): it would be an error to proceed on the footing that because some valuable rights conferred by statute … have been held to fall outside the constitutional criterion of “property”, no right sourced in federal law may fall within it.

In Cunningham v Commonwealth (2016) 259 CLR 536 the Court again addressed rights arising from a statute, when they considered a challenge changes to the benefits enjoyed by retired parliamentarians, namely certain superannuation and domestic travel entitlements. Regarding the former, retirement allowances were (and are) calculated in relation to the current base salaries of parliamentarians. A legislative change in 2011 to the calculation of that base salary had the potential to reduce the superannuation amounts that the retired plaintiffs would be entitled to, even though no such reduction had taken place by the time of the constitutional challenge. All judges agreed that statutory entitlements could give rise to s 51(xxxi) claims if varied, depending on the nature of the entitlements at issue. However, no s 51(xxxi) claim 24 Section 50 of the Northern Territory (Self-​ Government) Act 1978 (Cth) provided that the law on acquisitions of property by the Northern Territory Government was to be construed as if s 51(xxxi) applied to fetter the Territory government. It was therefore unnecessary to decide if s 51(xxxi) bound the Territory Government. 25

See also Telstra Corporation v Commonwealth (2008) 234 CLR 210 at 221.

26 See, for example, French CJ at 30, Crennan J at 99.

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was made out in respect of the parliamentary allowances, as the rights were such that they were inherently susceptible to legislative variation. For example, Gordon J stated (at 611-​612): The [retirement allowance] is a “right” created by statute that was and remains inherently liable to variation. Not only did the “right” remain inherently liable to variation; its content depended on the will, from time to time, of the legislature that created the “right”. It was, at best, a right to receive whatever level of benefit was provided from time to time. That “right” was not property protected from acquisition by s 51(xxxi) and there was no acquisition of property within the meaning of s 51(xxxi).27

Two of the plaintiffs also challenged variation made to their Life Gold Passes, that is, rights to undertake domestic airline travel in retirement at the Commonwealth’s expense. The unlimited numbers of domestic trips which retired parliamentarians were once afforded were limited to 25 trips by legislation in 2002, and to ten by legislation in 2012. The two plaintiffs challenged the reduction in the number of flights that they were entitled to in relation to the Life Gold Passes. The majority found that the entitlement to Life Gold Passes was also inherently susceptible to variation, so no breach of s 51(xxxi) had arisen.28 If the Commonwealth was to acquire property which had been created by State statutes, it is likely such property would be treated as analogous to common law property. It is difficult to see why such property would be “inherently defeasible” by Commonwealth statute, or “inherently susceptible” to variation by the Commonwealth.

Exceptions to s 51(xxxi) [12.40]  Despite s 51(xxxi), there are a number of instances where the Commonwealth can, in fact, effect a compulsory acquisition of property without providing for just terms. For example, it would be absurd if one could claim “just terms” compensation for the payment of a tax imposed under s 51(ii). The whole notion of taxation is anathema to the payment of just terms: indeed, the receipt of a quid pro quo in return for the payment of a fee is evidence that the fee is not, in fact, a tax.29 Therefore, taxes must be outside the requirement of just terms, and outside the scope of s 51(xxxi).30 Similarly, a Commonwealth law ordering the sequestration of a bankrupt’s property under s 51(xvii) is not required to provide for just terms to the bankrupt.31 In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270, the confiscation of a boat involved in offences against Commonwealth fisheries laws was found to be valid under the fisheries power, s 51(x), and was found not to attract the just terms requirement. The confiscation was valid even though it prejudiced the proprietary

27 Keane J (at 583) doubted that any relevant “property” lay in “an entitlement to be paid superannuation payments on a particular basis”. 28 Gageler J dissented on that point and found that the reduction in flights attached to Life Gold Passes did breach s 51(xxxi). 29 See [9.10], on the definition of a “tax”. 30

MacCormick v FCT (1984) 158 CLR 622 at 638, 649.

31

See Attorney-​General (Cth) v Schmidt (1961) 105 CLR 361 at 372-​373.

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rights of an innocent third party in the boat. Plainly, confiscation would not serve its purpose if just terms had to be provided. In Theophanous v Commonwealth (2006) 225 CLR 101, the forfeiture of the superannuation contributions of the federal government by a federal employee convicted of a corruption offence (an offence involving the abuse of a person’s position as a federal employee) did not attract the guarantee of s 51(xxxi). The law was supported by s 51(xxxvi) in conjunction with s 48 of the Constitution. As noted by Gummow, Kirby, Hayne, Heydon and Crennan JJ, with whom Gleeson CJ agreed (at 127): The provision of benefits to legislators, whether by salary, allowance or retirement benefit, has long been regarded as made to lessen the risk of and temptation to corruption and abuse of office. Legislation such as [the challenged laws] in its application to the situation of the plaintiff, vindicates the public interest in denying to those who succumbed to that temptation the benefits provided to encourage probity in legislators. To require the provision of “just terms” in such circumstances would indeed, in the sense of the authorities, be incongruous.

In Attorney-​General for Northern Territory v Emmerson (2014) 253 CLR 393, the High Court considered whether a Northern Territory forfeiture law was exempt from a just terms requirement in s 50(1) of the Northern Territory (Self-​Government) Act 1978 (Cth), which operates in a similar manner to s 51(xxxi) with regard to laws enacted by the Northern Territory Parliament. Under s 36A of the Misuse of Drugs Act 1999 (NT), persons would be declared to be “drug dealers” by the Supreme Court of the Northern Territory if such a declaration was sought by the Director of Public Prosecutions, and if the relevant person had been convicted of three or more prescribed offences within a ten-​year period. Under s 94(1) of the Criminal Property Forfeiture Act 2002 (NT), the property of a declared drug dealer was liable to forfeiture to the Territory if it was subjected to a restraining order under the Act (see [6.112]). The majority found that the forfeiture provisions were “imposed as punishment for crime” and thus did not constitute an acquisition of property for the purposes of s 50(1). Gageler J dissented on this point. In Nintendo v Centronic (1994) 181 CLR 134, the Court considered the s 51(xxxi) compatibility of the Circuit Layouts Act 1989 (Cth). The Act created intellectual property rights, in particular copyright rights, in integrated circuits. No copyright in these circuits existed before 1989, as copyright law lagged behind technological developments. The Act came into force on 1 October 1990. Before that date Centronic had imported several video game machines from Taiwan, which contained integrated circuits that had been copied from Nintendo’s original design. Before 1 October 1990, Centronic could sell the video game machines without Nintendo’s permission. On 1 October, the Act vested copyright ownership in the integrated circuits within the machines in Nintendo, so the sale of the machines could not take place without Nintendo’s permission. Centronic argued that the Act effected a compulsory acquisition of its property in the machines (which it “owned” fully before 1 October) by Nintendo, contrary to s 51(xxxi). The Court unanimously found that the Act was outside the reach of s 51(xxxi). Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ stated in a joint judgment (at 160): That operation of s 51(xxxi) to confine the content of other grants of legislative power [so as to require the payment of just terms for the acquisition of property] is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the

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other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms. Where that is so, the other grant of legislative power manifests a contrary intention which precludes the abstraction from it of the legislative power to make such a law.

Thus, some heads of power clearly envisage and therefore authorise the compulsory acquisition of property on unjust terms. The High Court found that the relevant head of power in Nintendo, s 51(xviii) which confers power with regard to intellectual property rights, was such a head of power. The joint Justices explained (at 160-​161): It is of the essence of that grant of legislative power that it authorises the making of laws which create, confer, and provide for the enforcement of, intellectual property rights in original compositions, inventions, designs, trade marks and other products of intellectual effort. It is of the nature of such laws that they confer such rights on authors, inventors and designers, other originators and assignees and that they conversely limit and detract from the proprietary rights which would otherwise be enjoyed by the owners of affected property. Inevitably, such laws may, at their commencement, impact upon existing proprietary rights. To the extent that such laws involve an acquisition of property from those adversely affected by the intellectual property rights which they create and confer, the grant of legislative power contained in s 51(xviii) manifests a contrary intention which precludes the operation of s 51(xxxi).

Thus, the Court attempted to explain how to identify acquisitions of property which are outside s 51(xxxi). The solution in Nintendo was that certain heads of power manifest an intention to authorise such acquisitions on unjust terms. Here, the Court found that s 51(xviii) clearly authorised the transfer of property rights from one to another via the creation of new intellectual property rights. The case, however, gave few clues as to how the Court determines that an acquisition of property on unjust terms is inherently authorised by another head of power and thus outside s 51(xxxi). An “exception” also arose in Airservices Australia v Canadian Airlines International (1999) 202 CLR 133.32 The case concerned the validity of provisions in the Civil Aviation Act 1988 (Cth), which permitted the Civil Aviation Authority (CAA) to invoke statutory liens over aircraft in order to secure the payment of charges due in respect of air traffic services. The charges in the case had been incurred by Compass Airlines, which went into liquidation while still owing money to CAA. CAA invoked a lien over Compass’ aircraft, which had been leased from the respondents. The respondent companies paid the amounts owing in order to secure the return of their aircraft. They brought proceedings to recover the amounts owed, claiming, inter alia, that the lien provisions breached s 51(xxxi). The respondents succeeded before the Federal Court (though on a different issue), but that verdict was overturned on appeal to the High Court.33 A majority in the High Court of 5:2 (Gaudron and Callinan JJ dissenting) found that the lien provisions stood outside s 51(xxxi). Within the majority, a number of different yet overlapping reasons were invoked to justify this outcome.

32 See also S Evans, “When is an Acquisition of Property Not an Acquisition of Property? The Search for a Principled Approach to Section 51(xxxi)” (2000) 11 Public Law Review 183. Many of Evans’ compelling arguments are reflected in the ensuing text. 33 See [9.10] on other aspects of this case.

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Hayne J adopted the “characterisation” approach from Nintendo, and found that the law was properly characterised outside s 51(xxxi) and within s 51(i) as a law concerning international and interstate trade and commerce. Gummow J found that the law represented a regulatory scheme to reasonably adjust the competing interests of various parties (for example, CAA, Compass, the respondent companies, other air traffic users) with respect to the relevant property and its use. Similar reasoning was used as additional support for the Court’s judgment in Nintendo: the Circuit Layouts Act 1989 represented a reasonable and genuine readjustment of the competing rights of Centronic and Nintendo. McHugh J decided (at 474) that the notion of “fair compensation” was “incongruous and irrelevant” when one had regard to the purpose of the lien, which was to enforce the payment of fees for services. How did Hayne J determine the “true characterisation” of the law? How did Gummow J determine that the law was one for adjusting competing interests? Surely all such laws could not stand outside s 51(xxxi) as any transfer of property will result in such an adjustment. Further, one may note that the notion of “just terms” cannot always be incongruous with regard to liens imposed with respect to fees for services, especially those imposed on non-​recipients of those services.34 How did McHugh J determine that just terms were incongruous and irrelevant to the fees for services provided in the case? All of the majority judgments, and indeed the minority judgments, were possibly influenced by the notion of proportionality, which arose most explicitly in the decision of Gleeson CJ and Kirby J, who stated (at 415): [Section] 51(xxxi) does not abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed.

They found that the lien provisions were an appropriate and adapted method of ensuring payment of air traffic service charges, which was valid under s 51(i) (power regarding international and interstate trade and commerce) and/​ or s 51(xxix) (the external affairs power). The Justices were influenced in their judgment by the fact that the respondent companies, as Compass’ lessors, were not total strangers to the relationship between Compass and the CAA. The companies would have known about the lien provisions, which are a common feature of civil aviation laws worldwide. Enforcement of the lien was a risk the companies undertook in entering into a lease agreement, from which they hoped to reap commercial benefits, with Compass. The laws authorising acquisition of property on unjust terms in Airservices were found either expressly or impliedly by each majority Justice to be a reasonable or “appropriate and adapted” means of attaining a legitimate purpose within s 51(i). Indeed, Gaudron J in the minority found that the companies were too far removed from the benefit of the air traffic services to be reasonably subjected to the lien. Thus, 34 Evans, n 32, p 198.

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her decision was also influenced by perceptions of the law’s reasonableness. So too did Callinan J, in dissent, find it unreasonable for the lien provisions to apply to innocent third parties. Thus, perhaps the appropriate test for deciding whether an acquisition of property is subjected to s 51(xxxi) or not is to ask whether an impugned acquisition of property on unjust terms is an appropriate and adapted, or proportionate, method of achieving a purpose necessarily envisaged by another head of power.35 In Attorney-​General for Northern Territory v Emmerson (2014) 253 CLR 393 Gageler J utilised a test of proportionality in deciding that the impugned forfeiture provisions constituted an acquisition of property subject to the just terms requirement of s 50(1) of the the Northern Territory (Self-​Government) Act 1978 (Cth). He stated (at 449-​450): To conclude that a law which acquires property and which is otherwise within legislative power is one in respect of which the condition of just terms would be inconsistent, irrelevant or incongruous is necessarily to conclude that the dominant character of the law is informed by those characteristics. A law forfeiting property which has as its primary purpose imposing a penalty or sanction for breach of a norm of conduct will ordinarily have the first of those characteristics: it will ordinarily have an objective that is within power. The law will not necessarily have the other characteristics. That will depend on whether the particular forfeiture is a necessary or characteristic feature of the means the law selects to achieve that objective and on whether those means are appropriate and adapted to achieving that objective. The applicable test is more stringent than that which will sometimes apply to determine whether the law is otherwise within power. As befits the application of a constitutional guarantee, the inquiry is not as to “whether the law is capable of being reasonably considered to be appropriate and adapted to the end sought to be achieved” but rather as to “whether the burden or restriction [that is to say, the acquisition of property] is reasonably appropriate and adapted, in the court's judgment, to the legitimate end in view”.

Gageler J went on to distinguish the relevant forfeiture laws in Emmerson from others that had been found to escape the just terms requirement in s 51(xxxi), such as in Lawler. For example, the law provided for the forfeiture of property even when that property had no connection to any criminal activity. Gageler J stated (at 451-​452): The sole legislatively declared purpose of the forfeiture, it will be recalled, is “to compensate the Territory community for the costs of deterring, detecting and dealing with the [person’s] criminal activities”. That legislative purpose cannot explain the extent of the forfeiture consonantly with the constitutional purpose of the just terms condition to prevent arbitrary acquisition. That is because the means chosen by the law are not appropriate and adapted to achieve it. No attempt has been made in the legislative scheme to link the value of the property forfeited to the amount of the costs identified.

Furthermore, the possibility of forfeiture lay within the discretion of the Director of Public Prosecutions. On that point, Gageler J stated (at 453):

35 Evans, n 32, pp 198-​204.

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[C]‌onferral of executive discretion of that nature is not a necessary or characteristic feature of penal forfeiture, and to conclude that forfeiture by means which involve the conferral of such an executive discretion is not appropriate and adapted to achieving an objective of imposing a penalty or sanction for breach of the identified criminal norm.

Gageler J therefore found (at 453): Sections 44(1)(a) and 94 of the Forfeiture Act and s 36A of the Misuse Act, in imposing forfeiture on those terms, do not have the characteristic of laws which acquire property for a purpose and by means consistent with the underlying purpose of the just terms condition to prevent arbitrary acquisitions. Their dominant character is that of laws with respect to the acquisition of property within the meaning of s 51(xxxi). Within the meaning of s 50(1) of the Self-​Government Act, they are laws with respect to the acquisition of property otherwise than on just terms.

In contrast, the majority of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ found that the forfeiture laws were exempt from s 50(1). They denied any relevance of proportionality.36 At 435: It is irrelevant (and wrong) for the courts to attempt to determine whether any forfeiture which may be worked by the Forfeiture Act (or which is worked in this particular case) is proportionate to the stated objectives.

At 437: It was never explained how or why the concept of “proportionality”, which may not be applicable to non-​purposive heads of legislative power enumerated in s 51 of the Constitution, confines the scope of the legislative powers granted to the Territory legislature. These arguments, raising issues of substance and form in relation to “property” that are familiar in the established doctrine concerning s 51(xxxi) of the Constitution, invite a speculative inquiry as to the topics which were the main preoccupation of the Territory’s legislature in enacting the legislation. The proper inquiry, however, is the subject matter of the statutory scheme. The question is whether the statutory scheme can be properly characterised as a law with respect to forfeiture, that is, a law which exacts or imposes a penalty or sanction for breach of provisions which prescribe a rule of conduct. That inquiry must be answered positively, which precludes any inquiry into the proportionality, justice or wisdom of the legislature's chosen measures. The provisions comprising the statutory scheme in respect of declared drug traffickers do not cease to be laws with respect to the punishment of crime because some may hold a view that civil forfeiture of legally acquired assets is a harsh or draconian punishment.

Finally, in deciding that s 50(1) had no application on the facts, the majority stated (at 438): The Territory legislature has determined that a person who is proven to have committed at least three qualifying drug offences within a specified period is liable to have his or her property forfeited or confiscated. Characterising those provisions as an acquisition of property without provision of just terms is erroneous. The requirement of just terms is “incompatible with the very nature of the exaction”, being a punishment for crime.

Hence, the High Court majority has eschewed the use of a proportionality test in deciding whether a law which in fact authorises the acquisition of property can 36

See also JT International SA v Commonwealth (2012) 250 CLR 1 at 86 per Heydon J, and at 122-​123 per Kiefel J.

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nevertheless fall outside the requirement of just terms in s 51(xxxi), due to its essential characterisation under another head of power.

“Just terms” [12.45]  The High Court has evinced a flexible and perhaps unpredictable approach to the definition of “just terms”. A starting point for the evaluation of just terms is the market value of the property lost:37 “the price which a willing purchaser would give a not unwilling vendor of the property in question, neither being under any compulsion, the price to be assessed at the value to the owner”.38 “Market value” may on occasion be too little to justly compensate a former owner. For example, just terms may be required to take into account the special or sentimental value of property to an owner. In Johnston Fear & Kingham & The Offset Printing Company v Commonwealth (1943) 67 CLR 314, the Commonwealth was directed to pay market price for the acquisition of a printing press, plus compensation for loss of future profits. In Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495, Dixon J stated (at 569): [“Just terms”] appears to refer to what is fair and just between the community and the owner of the thing taken. … Unlike “compensation”, which connotes full money equivalence, “just terms” are concerned with fairness.

“Market value”, when considered against the interests of the community, may occasionally be too high to be considered “fair” or “just”. For example, as in Nelungaloo, the value of the acquired product may be artificially inflated due to extenuating circumstances such as war. However, Gleeson CJ in Smith (at 500) endorsed the following statement from Brennan J in Georgiadis (at 310-​311), which seems to reject Dixon J’s Nelungaloo dicta: In determining the issue of just terms, the Court does not attempt a balancing of the interests of the dispossessed owner against the interests of the community at large. The purpose of the guarantee of just terms is to ensure that the owners 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.

Thus, it may be that the Court has turned more towards the “full compensation” model rather than the “balancing all interests” approach.39 Indeed, the issue of “balancing” seems to arise at an earlier stage of the analysis, in determining whether an “acquisition of property” within the meaning of s 51(xxxi) has taken place. This issue is discussed at [12.40]. In Wurridjal, the majority (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) found that the relevant acquisitions of property were constitutional as just terms were

37

P Keyzer, Principles of Australian Constitutional Law (4th ed, LexisNexis Butterworths, Chatswood, 2013), pp 229-​230.

38

Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 540 per Latham CJ.

39 See also Allen, n 8, pp 373-​375.

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provided. Section 60(2) of the Northern Territory National Emergency Response Act 2007 (Cth) provided for the provision of “a reasonable amount of compensation” if it was established that the Act effected an acquisition of property for the purposes of s 51(xxxi). Gummow and Hayne JJ stated (at 389): The plaintiffs stigmatise s 60 as creating what are but “contingent” rights. That is not so. The section is in the well-​recognised and preferable form whereby if the necessary constitutional fact exists (the operation of s 51(xxxi)) a liability is imposed by s 60(2) and jurisdiction is conferred by s 60(3).40 Section 60 is an example of prudent anticipation by the Parliament that its law may be held to attract the operation of s 51(xxxi) and of the inclusion of provision for compensation in that event, thereby avoiding the pitfall of invalidity. Moreover, the right to compensation is absolute if it transpires that s 51(xxxi) is engaged.

Heydon J explained further (at 429-​430): [I]‌t is a misuse of language to call the right to compensation “contingent” by reason of any delay involved, or by reason of the possible need to go to court. The need to vindicate rights in court does not make those rights “contingent”, and the process of doing so is not unfair. It should not take long to establish that the Commonwealth will not agree with the amount of compensation claimed by the person seeking it. Thereafter the controversy is committed to the court of competent jurisdiction, and in modern conditions such a court will endeavour to give a speedy remedy to a claimant who is not tardy in using the court’s procedures. Finally, neither the exposure of the person claiming compensation to adverse costs orders, nor the lack of entitlement of that person to any form of legal aid, prevents the legislation from conferring just terms. For better or worse, many claimants to legal remedies are exposed to adverse costs orders if their claims fail, and without assistance from the public purse in prosecuting those claims. Those circumstances do not detract from the conclusion that successful claimants to those legal remedies may be said to have “rights” of a non-​contingent kind.

At 390, Gummow and Hayne JJ noted the plaintiffs’ argument that sometimes just terms could not be satisfied by monetary terms. That issue “could be left for another day”. Kiefel J went further and stated (at 471) that “[s]‌uch a proposition should not be readily accepted”. Kirby J dissented and found that just terms were not necessarily provided by the legislation. At 424, Kirby J agreed with the majority that monetary compensation would normally be sufficient in respect of “most property interests of a commercial, financial or economic kind”. He continued (at 425): At least arguably, “just terms” imports a wider inquiry into fairness than the provision of “just compensation” alone. The latter, measured in monetary value, is objectively ascertainable in most cases. Identifying the “terms” required for an acquisition of property to be “just” invites a broader inquiry. It is one that could cut both ways. Take, for example, acquisition of property during wartime. The acquisition of an interest in property might be essential, temporary and involve very limited federal interference. Such property interests might be controlled by the Commonwealth briefly, for the defence of the nation. So long as proper procedures were instituted and observed and the property owners duly informed

40 Section 60(3) provided for the resolution of the amount of compensation in the courts if the parties failed to agree on an amount of compensation.

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and quickly restored to full rights once the danger had passed, “just terms” might require little or no monetary compensation. By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary, is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional “property” interests in a way that conventional “property” is rarely if ever cherished in the general Australian community. This might oblige a much more careful consultation and participation procedure, far beyond what appears to have occurred here. As stated by Dixon J, the “terms” which s 51(xxxi) guarantees are “concerned with fairness” and potentially the inquiry is a wide one. It is enlivened by the type of Aboriginal “property” affected in consequence of the impugned legislation. As such, the “just terms” requirement of the Constitution arises for consideration. Its application would depend upon evidence, including evidence as to the way the Commonwealth went about the process of “acquisition”. Such evidence could only be considered at trial. It is not met by a statutory obligation to pay monetary compensation. Demurrer is not a procedure apt to resolving the resulting question.

Kirby J was willing to recognise that important cultural differences might dictate that just terms in circumstances involving the acquisition of Aboriginal proprietary rights cannot be satisfied by money alone. Indeed, the same type of consideration might arise when property of sentimental or spiritual value is acquired from any person. Heydon J in the majority, with whom French CJ agreed, framed the argument (at 426-​427): [T]‌he plaintiffs submitted that “[t]raditional Aboriginal rights and interests in land cannot be readily replaced, nor readily compensated for by the payment of money”. This submission would prima facie have considerable force where the relevant rights and interests were related to spiritual matters, for example use of sacred sites. It may also be thought prima facie to have some force in relation to matters which are not strictly spiritual. The submission appeared to constitute a platform for the contention that since the impugned legislation did not replace the rights and interests allegedly affected with comparable rights and interests, and since money did not adequately compensate their owners, the legislation was invalid without further analysis of the just terms question.

However, Heydon J dismissed the argument for three reasons. First, the plaintiffs had conceded that there were no Aboriginal proprietary rights which were completely non-​compensable. Heydon J added (at 434-​435): [I]‌t is novel to suggest that s 51(xxxi) can narrow the power to acquire particular items, as distinct from invalidating the legislation which acquires those items if just terms are not provided. The novelty of the suggestion would require a closeness of examination it did not receive in argument.

With respect, Heydon J may be exhibiting a lack of imagination here in assuming that if “just terms” cannot be provided in monetary terms, they cannot be provided at all. In contrast, Kirby J’s judgment provides suggestions of potential alternative forms of compensation. Heydon J’s second reason for rejecting the submission was that the statement of claim included no specific allegation that “what was acquired could not be readily replaced

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or readily compensated for by the payment of money”.41 Finally, the NTI legislation did not in Heydon’s view impact on the existing legislative protection of Aboriginal sacred sites. Later, at 433, his Honour noted that “law can provide compensation for money losses even though there is no market for the thing lost or even though the attraction of the thing lost to the person who lost it rests on non-​financial considerations”. For example, it was assumed by the Court in Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 that native title rights, which have a limited market and significant non-​financial aspects, can be acquired for the purposes of s 51(xxxi). It is permissible for acquisition legislation not to specify particular formulae for the determination of the amount of “just terms”, but rather to specify that the amount will be determined by an impartial tribunal. Judicial review of an administrative tribunal’s decision must be available.42

Acquisition for the purposes of the Commonwealth [12.50]  Under s 51(xxxi), the Commonwealth is granted power to compulsorily acquire property “for any purpose in respect of which the Parliament has power to make laws”. The meaning of the last phrase of s 51(xxxi) has unfortunately been the subject of relatively little judicial attention. One view is that the Commonwealth can only acquire property under s 51(xxxi) in respect of a purpose authorised by another head of power. Such an interpretation may indicate that the only real constitutional effect of s 51(xxxi) is to impose the just terms requirement: the Commonwealth is not actually granted any power to compulsorily acquire property that it would not have had under other heads of power.43 On the other hand, s 51(xxxi) may extend the Commonwealth’s acquisition powers; it “possibly” permits the Commonwealth to acquire property for purposes related to other heads of power in circumstances where the acquisition could not be characterised as coming within the incidental scope of that other head of power, due to a lack of “sufficient connection” between the acquisition and the other head of power.44 A different definition of this phrase is that it only authorises acquisitions of property for uses or applications of the property which are within power.45 On that view, s 51(xxxi) does not authorise acquisitions where the property is put to no “use” at all. However, the “use” view does not seem to be borne out by the results of some of the recent cases. A strict “use” approach is difficult to apply if the acquisition is not of property but of a benefit. What was the application or end use of the “property”

41

See  Attorney-General v Emmerson at 427.

42

Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77; see also Keyzer, n 37, pp 231-​232, and G A Moens and J Trone, Lumb, Moens and Trone’s The Constitution of the Commonwealth of Australia Annotated (8th ed, LexisNexis Butterworths, Chatswood, 2012), pp 188-​191.

43 The framers of the Constitution probably inserted the express provision to assuage any doubts that the Commonwealth did in fact have powers of compulsory acquisition under its heads of power: see Allen, n 8, pp 352-​353. 44 See [2.25] on incidental power. 45

See Nintendo v Centronic (1994) 181 CLR 134 at 165 per Dawson J.

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or “benefit” acquired in Georgiadis? This aspect of s 51(xxxi) was not discussed in that case.46 Furthermore, the majority in Newcrest Mining appeared to either adopt the heads of power approach or adopt a very liberal version of the “use” approach, so that a “use” could simply amount to the achievement of a purpose within power, rather than an actual use of the acquired property. This liberal version of the “use” test virtually equates with the “heads of power” test. The prevailing “heads of power” approach is to be preferred as it avoids pedantic examinations of the “use” made of the property, and leads to a broader scope for s 51(xxxi) and therefore a broader scope for the “just terms” guarantee. A hypothetical example suffices to demonstrate how the “heads of power” approach facilitates a broader definition of s 51(xxxi). Let us assume that under the aliens power, s 51(xix), the Commonwealth can confiscate the property of an alien and apply that property to no use at all. Under the “heads of power” approach, such an acquisition is authorised by s 51(xxxi) and the Commonwealth would have to pay just terms. Under a strict application of the “use” approach, s 51(xxxi) would not apply in the example, and the alien would therefore not benefit from the “just terms” proviso.47 Clearly, the first outcome is more desirable than the second.

Application of s 51(xxxi) within the Territories [12.55] In Teori Tau v Commonwealth (1969) 119 CLR 564, the Court found that s 51(xxxi) does not apply with respect to property acquired in the Territories under s 122 because of the plenary nature of that latter head of power. In Newcrest Mining, s 51(xxxi) was held by four Justices to be breached in respect of property acquired in the Northern Territory. Three of the majority Justices (Gaudron, Gummow and Kirby JJ) were prepared to overrule Teori Tau and apply s 51(xxxi) with its full force in the Territories. The three minority Justices, Brennan CJ, Dawson and McHugh JJ, followed Teori Tau. Toohey J, in the majority in the result, did not overrule Teori Tau. Toohey J found that the law at issue in the case could be characterised under both s 122 (as a law in the Northern Territory) and s 51(xxix) (as a law implementing an environmental treaty). On the basis that laws enacted under another head of power in s 51 are subject to s 51(xxxi), Toohey J found that s 51(xxxi) applied. In Wurridjal v Commonwealth (2009) 237 CLR 309, the majority of French CJ, Gummow, Kirby and Hayne JJ overturned Teori Tau, and found that laws enacted under s 122 had to comply with s 51(xxxi). The other judges did not disagree.48 French CJ pointed out that covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (Imp) and the preamble to s 51 refer to laws throughout the “Commonwealth”, which presumably included internal territories like the Northern Territory. He stated (at 354) that those “considerations indicate that an integrated approach to the availability of legislative powers and limits on them throughout the Commonwealth is to be preferred where

46

F Dalziel, The High Court and s 51(xxxi):  A Consideration of When the Guarantee of “Just Terms” will Operate (Unpublished Monash LLB Honours thesis, 1997), p 39.

47 Dalziel, n 46, p 40. 48 The other judges found it unnecessary to decide the point. See, for example, Crennan J at 437, Kiefel J at 469.

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the language of the Constitution so permits”. The Chief Justice was further swayed (at 357) by the fact that s 51(xxxi) conferred rights on people, and was thus not solely concerned with the federal balance of powers. Finally, French CJ found (at 359) that Teori Tau was isolated from “the stream of prior and subsequent jurisprudence”, and its overturning would not effect a “significant disruption to the law as it stands”. Gummow and Hayne JJ described Teori Tau (at 388) as “an error in basic constitutional principle” which “should be overruled”. Kirby J also overruled Teori Tau (at 419).49 As noted in [12.40], a requirement of just terms applies to legislation enacted by the Northern Territory Parliament under s 50(1) of the Northern Territory (Self-​Government) Act 1978 (Cth): that provision was at issue in Attorney-​General for Northern Territory v Emmerson (2014) 253 CLR 393.

Conclusion on s 51(xxxi) [12.60]  Section 51(xxxi) has generated a complex jurisprudence. Its interpretation has incorporated a wide definition of “property”. There must be an acquisition, whether by the Commonwealth or a third party, rather than simple deprivation of property. The relevant “acquisition” can be of a different right than that which has been lost. JT International reaffirmed that the acquired right must be a proprietary right rather than a non-​proprietary benefit. Many of the more recent cases have focused on the relevance of the source of the relevant proprietary rights lost. The High Court has now held that common law choses in action are protected by s 51(xxxi). Federal statutory proprietary rights may or may not be protected, depending on the type of property at issue and the words of the statute which creates the property. The definition of “just terms” appears to have swung in favour of the “full compensation” model, as opposed to the “fair” model, which takes into account the countervailing rights of others. The Court has also upheld as valid safeguard clauses in federal legislation such as that found in the Wurridjal case, whereby a provision is inserted into legislation to provide for the payment of reasonable compensation in case it should ultimately be found that the legislation in fact effects an acquisition of property. The purposes for which the Commonwealth may acquire property under s 51(xxxi) have been interpreted so as to only permit acquisitions for purposes under other heads of power. There are numerous occasions where an acquisition of property may be effected by a Commonwealth law without the payment of just terms. Though such acquisitions have been justified in numerous ways by various High Court Justices, it is apparent that the general test adopted to identify such acquisitions is one of proportionality.

THE RIGHT TO TRIAL BY JURY –​SECTION 80 [12.65]  Section 80 reads: 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 49 See also [1.135].

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the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Section 80 guarantees trial by jury for indictable Commonwealth offences. It does not guarantee trial by jury for indictable State offences. This is a significant limit to its efficacy, as the bulk of crimes within Australia are prescribed by State laws. Further, in R v Bernasconi (1915) 19 CLR 629, the High Court determined that s 80 did not apply to Commonwealth indictable offences in the Territories. Section 80 did not impinge on the Commonwealth’s plenary powers regarding the Territories under s 122. The Court was influenced by the potential practical difficulty in requiring jury trials in territories which Australia might acquire after the First World War; it would have been inappropriate to impose the common law jury system on German or Polynesian populations (Isaacs J at 638). It is uncertain whether Bernasconi would be followed today.50 It can be said that two distinct types of cases are raised under s 80. The first concerns the application of s 80, that is when does it apply? The second concerns its scope, that is what are the requirements of s 80 when it does apply? Section 80 only applies to indictable offences. The meaning of this term in the context of s 80 was considered in R v Archdall and Roskruge (1928) 41 CLR 128. The accused was tried summarily for an offence which attracted one year’s imprisonment. The High Court held that s 80 only applied to offences which the Commonwealth chose to make triable by indictment. Higgins J stated (at 139-​140): “if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment”. This narrow interpretation potentially allows the Commonwealth to completely undermine the guarantee by simply directing that all Commonwealth offences be tried summarily. In Kingswell v The Queen (1985) 159 CLR 264, Deane J in the minority argued that s 80 should apply to trial of all “serious” offences, offences which should be indictable. A serious offence, in his Honour’s view, was one which attracted a potential sentence of at least one year’s jail. However, the High Court majority upheld the Archdall interpretation. Gibbs CJ, Wilson and Dawson JJ in the majority stated (at 276-​277): It has been held that s 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticized, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled: R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v Attorney-​General (Cth) (1954) 94 CLR 86 at p 88; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182.

Re Colina; Ex parte Torney (1999) 200 CLR 386 concerned a charge of contempt by scandalising the court, an offence under s 35 of the Family Law Act 1975 (Cth) and s 24 of the Judiciary Act 1903 (Cth). Summary proceedings had been initiated; the accused

50 Half of the Court questioned its continuing authority in obiter dicta in Kruger v Commonwealth (1997) 190 CLR 1. The Court chose not to decide the issue in Fittock v The Queen (2003) 217 CLR 508, a case concerning a s 80 challenge to a Northern Territory law, as the facts did not give rise to a breach of s 80.

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challenged the proceedings as a breach of s 80. The majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) found that contempt is not an offence against any law of the Commonwealth. They reasoned that the power to punish for contempt is a necessary and inherent part of judicial power.51 As such, the power to punish for contempt flows from Chapter III of the Constitution and the common law. Thus, ss 35 and 24 of the relevant Acts were merely declaratory of the common law. McHugh J, whilst in the majority, came to his result by different reasoning. Whilst he concluded that the provisions in question were indeed laws of the Commonwealth, he nevertheless concluded that s 80 had no application, as there was no “indictment” (at 404).52 Kirby J agreed with McHugh J that the relevant act of contempt constituted an “offence against the Commonwealth”. He went on to discuss at length the prevailing “procedural” interpretation of s 80, whereby s 80 only applies if the Commonwealth chose to proceed against a person by way of indictment. He discussed the argument in favour of that interpretation in some detail (at 420-​422). Ultimately, he favoured a broader interpretation of s 80 (at 422-​427). Therefore, Kirby J was in the minority in Re Colina in finding a breach of s 80 entailed in the absence of a jury trial for the relevant charges of contempt. Kingswell was again upheld by a majority in Cheng, Cheng and Chan v The Queen (2000) 203 CLR 248. Gleeson CJ, Hayne, and Gummow JJ were not convinced that Kingswell was relevant to the determination of the case, but nevertheless indicated that they would be unlikely to overturn it. McHugh J and, more cautiously, Callinan J, upheld the authority of Kingswell. In the minority, Kirby J was prepared to overrule Kingswell, while Gaudron J indicated that she would have done so had she found it relevant on the facts (at 357). McHugh J in the majority gave a sobering explanation of the prevailing interpretation of s 80 (at 370): Whether one looks at text, history or purpose, the answer is the same: the approach to the construction of s 80 accepted by the majority in Kingswell and by this Court in earlier cases is correct. Section 80 is not a great guarantee of trial by jury for serious matters. It guarantees trial by jury only when the trial is on indictment. Whether the offence is tried or triable on indictment depends in the first instance on Parliament’s classification of the offence. Such a conclusion is unlikely to be acceptable to many civil libertarians or those who believe that serious criminal offences should be tried by juries. But it is what our Constitution mandates. A contrary result can only be reached, in my respectful opinion, by disregarding the plain meaning of s 80, its drafting, history and its purpose.

Section 80 has no role at all when it comes to sentencing, according to the High Court in Cheung v The Queen (2001) 209 CLR 1. In that case the jury returned a guilty verdict that left open the question of the exact facts upon which they based their verdict. The judge, in passing sentence, had to decide the factual issue of the defendant’s level of involvement. The question before the High Court was whether this circumstance amounted to an infringement of the right to trial by jury. All Judges concurred that sentencing was a separate function of the judge, and might necessarily involve the making of factual decisions.

51 See for example, Gleeson CJ and Gummow J at 395. 52 Callinan J agreed at 439.

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The prevailing interpretation of s 80 indicates that it may be, as described by Barwick CJ in Spratt v Hermes (1965) 114 CLR 226 at 344, “a mere procedural provision” rather than a substantive human right. Not only is s 80 a weak right, Brown v The Queen (1986) 160 CLR 171 indicates that it might not be a “right” at all. A High Court majority ruled that an accused cannot waive her or his “rights” under s 80 and opt for trial without jury. Brennan J explained (at 201) that s 80 was a guarantee for the benefit of the community, rather than the individual accused. The pitfalls in the majority decision were noted by Gibbs CJ in dissent (at 182): It would give a most capricious operation to s 80 if it were held that that section requires the trial to be by jury only when the prosecution in fact proceeds on indictment but nevertheless forces the accused person to accept trial by jury, notwithstanding that there exists an alternative procedure which the accused would prefer to adopt.

Again, in Alqudsi v The Queen (2016) 256 CLR 203, the High Court found that where s 80 applies, it is mandatory. In this case, the accused sought a trial by judge alone on indictment for federal terrorism offences. However, an accused cannot elect to be tried by a judge without a jury, even where such an election was permitted under the relevant state’s law. The majority again followed Brown. Kiefel, Bell and Keane JJ stated (at 250-​251): The command that the trial on indictment of any offence against any law of the Commonwealth “shall be by jury” admits of no other mode of trial on indictment for a Commonwealth offence. This is a sufficient reason for rejecting the invitation to re-​open and to overrule Brown.

French CJ delivered a strong dissent asserting that Brown should be revisited.53 He questioned why s 80 should be so “inexplicably inflexible relative to other constitutional guarantees or prohibitions” (at 221). It seems therefore that the Commonwealth, acting as prosecutor, is able to circumvent s 80 by proceeding against an accused by way of a summary procedure, but the accused cannot circumvent s 80 by opting for trial by judge alone. There is an unfortunate asymmetry in the current interpretation of s 80 which favours the Commonwealth at the expense of the accused. What then of the scope of s 80? What features of a jury trial are essential such that their absence or modification will result in a breach of s 80? Cheatle v The Queen (1993) 177 CLR 541 established that the words “trial by jury” in s 80 presupposed that guilt be determined by unanimous verdict. Therefore, a South Australian statute which provided for majority 10:2 verdict could not apply to persons indicted on Commonwealth crimes. It had been argued that the Court should not adopt a historical interpretation of “jury”, given the various undesirable aspects of juries in 1900, such as the exclusion of women and the imposition of minimum property requirements. The Court denied that these latter characteristics of juries in 1900 were immutable, unlike the requirement of unanimous verdicts. Therefore,

53 Kirby J also explicitly disagreed with Brown in Brownlee v The Queen (2001) 207 CLR 278 at 319.

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the restrictions and qualifications of jurors could vary according to contemporary standards and perceptions, whereas the means of determining verdicts could not.54 In Katsuno v The Queen (1999) 199 CLR 40, the High Court majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) found that the practice of “jury vetting” did not breach s 80. It had been argued that the practice undermined the representativeness of the jury, and the principle that jurors be randomly selected, both of which were said to be “inherent” qualities of juries, much like verdict unanimity. The majority found that jury vetting was constitutional and consistent with the principle of randomness and representativeness, as the jurors were chosen from a pool of randomly selected people. The minority in Katsuno did not consider the constitutional issue. In Brownlee v The Queen (2001) 207 CLR 278, it was argued that s 80 guarantees a jury composed of 12 jurors. Brownlee had been convicted of conspiracy to defraud the Commonwealth. In the course of his trial, two members of the jury were discharged, so the final jury was composed of ten people. During deliberations, the judge also permitted the jury to disperse at the end of each day. These circumstances were argued to give rise to a breach of s 80. On the issue of jury reduction the majority adopted a historical approach as taken in Cheatle. Prior to 1900, juries were allowed to be reduced in some States, such as Victoria and Queensland, under statutes that were passed prior to 1900. Reference was also made to New Zealand, the United Kingdom and all the other States, where similar legislation was enacted shortly after 1901. There was therefore no historical basis for asserting that 12 people were necessarily required to constitute a jury. That said, the court did recognise, that prior to the 19th century, trials were sometimes abandoned when a juror died or fell ill. Adopting a functional approach, the court inquired into the purpose of having 12 on a jury. The answer was to ensure a representative cross-​ section of the people and a group size that promotes discussion. The court felt that this goal was just as possible with ten people, especially because trials always commenced with a full complement of 12. The requirement of unanimity also acted as a safeguard against unfair verdicts. Gummow, Gaudron and Hayne JJ, as well as Kirby J in a separate judgment, noted that any number fewer than ten might be constitutionally suspect. Callinan J questioned why a jury of 12 was more representative than that of ten or 14 (at 341). As such, there was no historical, functional or principled basis for not permitting the reduction. On the issue of the jury separating at the end of the day, the argument was made that s 80 was breached because the jurors were exposed to the potential of improper influence. This argument was not accepted by the court, as there was no evidence that such separation impairs the jury’s functioning. In 1901, there was already evidence that jury separation occurred, and Gleeson CJ and McHugh J noted that sequestration has never been a complete bar to interference.55 Kirby J agreed, finding that a requirement of absolute sequestration would effectively exclude those with dependents from jury service and thus make juries less representative of the community at large (at 332). 54 For a critique on the reasoning in this case, see J Goldsworthy, “Originalism in Constitutional Interpretation” (1997) 25 Federal Law Review 1. See also [1.200]. 55 These two justices noted the case of R v Young [1995] QB 324, where a verdict was set aside when a sequestrated jury used a ouija board to assist in making its decision in a murder trial.

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In R v Ng (2003) 217 CLR 521 the issue of increased jury numbers was examined. Ng was convicted of the importation of heroin. Fifteen jurors were empanelled at the beginning of the trial. At the conclusion of evidence, but before retiring, three members of jury were balloted out under s 48A of the Juries Act 1967 (Vic). The foreperson was not eligible to be balloted out. Again, these circumstances were argued to give rise to a breach of s 80. The Court rejected the applicant’s objections to the reduction of the original 15-​ member jury to 12. If a jury of fewer than 12 is acceptable (as per Brownlee), it was difficult to accept that a jury of 12 could be objectionable for not being of 15. Jury reduction legislation was permitted in Brownlee, so jury increasing legislation was not perceived to be a problem. It was also argued that all 15 jurors were required for a unanimous verdict, a requirement confirmed in Cheatle. The court rejected this argument for a number of reasons. First, there is no “right” for a juror to deliberate. Second, in Cheatle it was said that unanimity only applied to those jurors remaining at the time the verdict was pronounced. As such, there was no problem with the removal of the additional three. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said (at 12): Brownlee establishes that, whilst the requirement in s 80 of a trial “by jury” is referable to that institution as understood at common law at the time of federation, it is the essential features of that institution which have what might be called a constitutionally entrenched status. Further, Brownlee also indicates that those essential features are to be discerned with regard to the purpose which s 80 was intended to serve and to the constant evolution, before and since federation, of the characteristics and incidents of jury trial. Accordingly, the circumstance that provisions such as those in ss 14A and 48A of the Juries Act respecting additional jurors were not found in pre-​federation legislation is not determinative.

Kirby J agreed in the result but once again took the opportunity to argue over the interpretation of s 80. He reiterated the position that s 80 is a substantive rather than a procedural right. Kirby J also criticised originalism as a method of interpretation, as purportedly practised by the High Court majority, for being intellectually incoherent.56 Of note is Kirby J’s list of the inessential characteristics of trial by jury, as garnered from extant case law (at 18-​19): (1) Juries no longer need to be constituted exclusively by men [Cheatle at 560]; (2) Jurors no longer have to qualify for service by having minimum property holdings [Cheatle at 560]; (3) Jurors no longer need to be segregated in every case during the trial or from the moment when they are charged to consider their verdict [Brownlee]; (4) When a juror dies or is discharged the trial need no longer be abandoned [Brownlee]; (5) A juror in waiting may be removed from the jury upon a prosecution challenge based upon the supply to the prosecution alone of information concerning a non-​disqualifying criminal conviction [Katsuno at 65]; (6) It is not every serious offence against federal law resulting in imprisonment that attracts s 80; and (7) A preliminary determination, at first instance and on appeal, of questions of law or issues governing the admissibility of evidence before the jury are empanelled is not incompatible with trial by jury complying with the Constitution.

56 See also at [1.200].

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Kirby J also lists the following as essential characteristics (at 19): (1) The jury must deliver a unanimous verdict [Cheatle]. The verdict of guilty must be reached by the agreement of all persons constituting the jury at the time the verdict is pronounced [Cheatle and now Ng]. (The requirement of unanimity may also extend to a jury verdict of not guilty [R v Glynn (2002) 82 SASR 426]); (2) Where jury numbers have been reduced before the verdict is given, the trial can still be accepted as a trial by jury. The jury must still be of a sufficient number to be representative of the community and capable of performing the group deliberation inherent in jury trial [Brownlee]; (3) The jury must be randomly and impartially selected, not chosen by the prosecution or the state; and (4) The jury must be comprised of lay decision-​makers who are impartial as to the issues in contest.

Accused persons have rarely won claims of breaches of s 80. The decisions regarding the essential requirements of “a jury” seem to have had reasonable outcomes, which do not genuinely prejudice an accused’s rights. On the other hand, the High Court’s continued adherence to “the procedural” interpretation of “indictable offence”, as opposed to the substantive interpretation advocated by miscellaneous minority judges such as Deane and Kirby JJ, significantly dilutes the strength of this right.

FREEDOM OF RELIGION –​SECTION 116 [12.70]  Section 116 states: 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.

Section 116 contains four separate religious guarantees or four separate restrictions on Commonwealth (but not State) power. The Commonwealth shall not make any law for: ( 1) establishing any religion; (2) imposing any religious observance; and (3) prohibiting the free exercise of any religion. Finally, the Commonwealth must not: (4) require a religious test as a qualification for any office or public trust under the Commonwealth. The case law before the High Court has concerned guarantees (1) and (4), and especially (3). One may note, with regard to guarantees (2) and (4) that they protect not only people with religious beliefs, but also people with no religious beliefs, such as atheists and agnostics.57

57 See Latham CJ in Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116 at 123. See generally, L Beck, Religious Freedom and the Australian Constitution: Origins and Future (1st ed, Routledge, London, 2018).

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Definition of “religion” [12.75]  Obviously, a crucial aspect of s 116 is the meaning of “religion”.58 In Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116, Latham CJ stated (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 statements of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all of these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance. What is religion to one is superstition to another.

The High Court considered the meaning of “religion” in Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120. The case did not concern s 116; it concerned the eligibility of the Church of the New Faith as a “religious institution” for the purpose of tax exemptions under Victorian law. The Court unanimously decided that the Church’s religion, Scientology, was a “religion” for the purposes of tax exemption. In defining a “religion”, Mason ACJ and Brennan J stated (at 136) that there were two criteria for a religion: “belief in a supernatural Being, Thing or Principle” and “the acceptance of canons of conduct in order to give effect to that belief”. Wilson and Deane JJ identified four indicia of religion: belief in the supernatural, ideas relating to an individual’s nature and place in the universe and relation to things supernatural, the existence of codes of conduct with supernatural significance, and the fact that the adherents constitute an identifiable group. Murphy J appeared to adopt the broadest definition (at 150), stressing that the truth or falsity of beliefs were irrelevant, as were the number of adherents and financial motivations of those adherents. For Murphy J (at 151), “any body which claimed to be religious and offered a way to find meaning and purpose in life was religious”. The tests enunciated by most justices in Church of the New Faith would be hard to apply in practice, considering the range of beliefs adopted by contemporary religious groups. Nevertheless, the various tests put forward by the justices evince a very broad interpretation of “religion”,59 which could be expected to apply in the context of s 116. It appears that most groups who claim to be religious, despite the inherently unsavoury nature of some religious cults, could fall within the various High Court’s definition. The breadth of the meaning of “religion” however does not mean that

58 See generally, W Sadurski, “On Legal Definitions of Religion” (1989) 63 Australian Law Journal 834. 59 It may be noted in comparison that Scientologists are denied the status of a religion for the purposes of tax exemption in the United Kingdom; see P Cumper, “Freedom of Thought, Conscience and Religion”, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, Oxford, 1995), p 365.

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s 116 is a particularly broad guarantee, as the rights therein have been interpreted narrowly.

Establishment of a religion [12.80]  The “establishment” of a religion is a very vague concept. The Church of England is the established religion in England. Its supreme position is evidenced by the Monarch’s position as head of State as well as head of the Church, and the various legislative privileges conferred on the Church of England. In contrast, Catholicism is arguably not the “established” religion in Ireland, even though Catholicism probably exercises a greater influence on Irish society than does the Church of England in England. There is no established religion in Australia. In Attorney-​General (Vic) (Ex rel Black) v Commonwealth (DOGS case) (1981) 146 CLR 559 (or Defence of Government Schools case), the DOGS group challenged the validity of a series of Commonwealth grant statutes.60 Money was granted to each State under s 96 on the basis that that money was passed on to nominated private schools. The DOGS group sought a declaration that the grants were invalid insofar as they were earmarked for religious non-​government schools, as that would amount to the establishment of a religion. Clearly, the DOGS group were arguing that the anti-​ establishment clause dictated a very strict separation between the Commonwealth and any religion. A High Court majority disagreed. Murphy J dissented, and read the anti-​establishment clause as prohibiting any Commonwealth sponsorship of or support for any religion. Barwick CJ in the majority defined “establishment of a religion” (at 582): [E]‌stablishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion. In other words, establishing a religion involves its adoption as an institution of the Commonwealth, part of the Commonwealth “establishment”.

Gibbs J agreed, but conceded (at 604) that the question may be one of degree. Stephen J (at 610) explained that the establishment of a religion would entail “the setting up of a national church and the favouring of one church over another”. It did not encompass the non-​discriminatory grant of financial aid to churches or church schools. Stephen J’s reference to non-​discrimination may mean that the grants could have breached s 116 had there been evidence that a disproportionate amount of the money was being directed to schools run by a particular religion. Mason and Wilson JJ adopted a stricter interpretation, indicating that any advantages conferred had to be “of so special a kind [so as to enable one] to say that by virtue of the concessions the religion has become established as a national institution, as, for example, by becoming the official religion of the State” (Mason J at 612). Thus, the prohibition on “the establishment of any religion” applies to only a narrow range of laws. The Commonwealth is essentially prohibited from blatantly favouring

60 See [10.35] for a discussion of the s 96 aspects of this case.

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one religion over all others to an extent where people might perceive that that religion has become the official religion of Australia.

Laws “for” prohibiting the free exercise of any religion [12.85]  Most of the cases have concerned the third clause within s 116. Clause (c) was initially tested in Krygger v Williams (1912) 15 CLR 366. The Commonwealth’s conscription laws, which essentially prohibited Krygger from manifesting his anti-​ militarist beliefs by requiring his compulsory participation in military training, were unsuccessfully challenged. Griffith CJ for the majority explained (at 369): To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of s 116.

Thus, the Krygger court felt that s 116 only prohibited laws which directly prohibited the “doing of acts which are done in the practice of religion” (Griffith CJ at 369). It did not prohibit laws which compelled people to act in a manner contrary to their religion. Surely the prohibition of a religious act and the enforced compulsion to act contrary to one’s religion are two sides of the same coin, both of which inhibit “the free exercise” of one’s religion. However, this pedantic early interpretation of s 116 has never been overruled. Nor has it been specifically upheld. It was criticised by Gaudron J in Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1 (at 131-​132).61 Clause (c) returned to the Court in Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116. Under the National Security (Subversive Associations) Regulations (Cth), made under the National Security Act 1939 (Cth), the Governor-​ General was empowered to declare the existence of an association to be prejudicial to the war effort. The effect of such a declaration was to dissolve the association and permit the Commonwealth’s seizure of its property. The Governor-​General made such a declaration with regard to the Adelaide Company of Jehovah’s Witnesses (ACJW) on the basis of their dissemination of pacifist beliefs. For example, the sect claimed that all organised political bodies were the agents of Satan, and prohibited their members from playing any part in political affairs or in international wars. Their dissemination of these beliefs was evidently felt to impact detrimentally on the morale of people during the Second World War. The ACJW duly challenged the “declaration on the basis that it infringed s 116, as it prohibited its members” free exercise of their religion. The regulation ultimately failed as it was found to lack a head of power, not because it infringed s 116. The Court, in its decision, focused on the word “for” in s 116. A prohibited law had to be one “for” the prohibition of religious practices. According to Latham CJ (at 132), “[t]‌he word ‘for’ shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character”. In the opinion of the Court, “the law’s purpose was not to prohibit the

61 See also Higgins J in Judd v McKeon (1926) 38 CLR 380 at 387.

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free exercise of the ACJW’s members” religion; it was to protect the internal security of Australians during wartime. The Court in Jehovah’s Witnesses at times used language which denoted the use of a test of proportionality.62 Latham CJ noted (at 131) that the protection of the free exercise of religion was not absolute: only “undue infringement[s]‌of religious freedom” were prohibited. “Undue” restrictions are unreasonable or disproportionate restrictions. Starke J stated that (at 155): the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations … And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order. [emphasis added]

Starke J’s test enunciates a classic test of proportionality: one’s freedom of religion may be limited by “reasonable” or proportionate laws designed to protect a legitimate public interest.63 Indeed, considering the proliferation of “religions”, there are probably many religious practices which can be validly subjected to Commonwealth regulation. Such was made clear in the judgment of Williams J (at 159): Just as the meaning and scope of the powers conferred upon the Parliament of the Commonwealth by the Constitution, however absolute their terms, must be ascertained, as in any other document, in the context of the whole of the Constitution, so the meaning and scope of s 116 must be determined, not as an isolated enactment, but as one of a number of sections intended to provide in their inter-​relation a practical instrument of government, within the framework of which laws can be passed for organizing the citizens of the Commonwealth in national affairs into a civilized community, not only enjoying religious tolerance, but also possessing adequate laws relating to those subjects upon which the Constitution recognizes that the Commonwealth Parliament should be empowered to legislate in order to regulate its internal and external affairs. The determination of the meaning of an ordinary English phrase or word in a statute is a question of fact, the problem being to ascertain what the phrase or word meant in its ordinary popular acceptation at the date the statute was passed. At the date of the Constitution it would not have been considered in a popular sense to have been an interference with the free exercise of religion for the legislation of the States to have included laws (as in fact it did) making polygamy or murder a crime, although it was still a tenet of some religious beliefs to practice polygamy or human sacrifice. Such laws would be classified as ordinary secular laws relating to the worldly organization of the community, even if their indirect effect might be to prevent some religious sects indulging in practices which in the ordinary popular acceptation would be regarded as crimes and as having no connection with any observance which an enlightened British community would consider to be an exercise of religion. The right to the free exercise of religion conferred by the Constitution postulates a continuous right to such freedom in a Commonwealth which will survive the ordeal of war. When, therefore, the safety of the nation is in jeopardy, so that the right to such free exercise can only survive if the enemy is defeated, laws which become necessary to preserve its existence would not be laws for prohibiting the free exercise of religion. There are many conceivable circumstances in war-​time in which it might be necessary for the military authorities to take physical possession even of churches and other buildings where religion is practised, and a law enabling the military authorities to do so would not be a law prohibiting the free exercise

62 See generally on proportionality, [14.60] onwards. 63 See also R McLeish, “Making Sense of Religion and the Constitution: A Fresh Start for s 116” (1992) 18 Monash Law Review 207.

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of religion. It is impossible, in my opinion, to impute to the framers of the Constitution an intention that the phrase “the free exercise of religion” should confer an absolute right to propagate a belief that the system of government created by the Constitution was of a satanic nature, the functioning of which, in spheres which the common sense of the community generally would regard as entirely secular, was not to be judged on its merits or demerits as worldly legislation, but to be condemned in every instance as an emanation of Satan. The easy toleration of a British community often permits bodies with such beliefs to flourish in its midst in times of peace, although it is the usual practice of such bodies to accept the benefits but refuse to shoulder the responsibilities incidental to citizenship in such a community. But the activities of such bodies can be subversive of good government even in peacetime, and in war-​time can become a serious menace.64 If the Regulations only conferred such powers as were reasonably required to prevent bodies disseminating principles and doctrines prejudicial to the defence of the Commonwealth during the war, they could not be impeached under s 116, even if they interfered incidentally with activities that some persons in the community considered to be the free exercise of religion, because in its popular sense such principles and doctrines would not be considered to be religion, but subversive activities carried on under the cloak of religion. The attack on the Regulations as an infringement of s 116 therefore fails.

Section 116 arose in Stolen Generation case (1997) 190 CLR 1. The case concerned a belated challenge to a Northern Territory Ordinance (repealed in 1953) which authorised the compulsory removal of Aboriginal children from their families, and the compulsory detention of Aboriginal people on reserves. One claim in the case was that the enforced separation of people from their culture effectively prohibited the free exercise of Aboriginal religions. The majority adopted the “purpose” test from Jehovah’s Witnesses. The law, in their view, did not on its face have a noxious anti-​religious purpose. Therefore, no breach of s 116 was made out. The majority’s view in Kruger diminishes the potential effectiveness of s 116 as a guarantee of freedom of religion. A law must evince an ostensible purpose of inhibiting religious practice, rather than have the effect of inhibiting religious freedom, before it can be found to have breached s 116.65 The Kruger majority does not necessarily deny the relevance of proportionality to s 116. Proportionality might still be an indicator of a law’s purpose when the purpose of a law is less ascertainable on its face. Gaudron J adopted a broad version of the Jehovah’s Witnesses purpose test. A law could breach s 116 if one of its purposes (as opposed to the purpose) was to prohibit religion. Her application of the test indicated that it might be very easy to assume that a law, which has the effect of inhibiting religious practices, could well have an anti-​religious purpose. However, a law can nevertheless be saved if it satisfies a test of proportionality. As Gaudron J described (at 133-​134): [A]‌law will not be a law for “prohibiting the free exercise of any religion” notwithstanding that, in terms, it does just that or that it operates directly with that consequence, if it is necessary to attain some overriding public purpose or to satisfy some pressing social need.

64

See also Australian Communist Party v Commonwealth (1951) 83 CLR 1, discussed in [13.10].

65 S Joseph, “Kruger v Commonwealth: Constitutional Rights and the Stolen Generations” (1998) 24 Monash Law Review 486 at 496–497.

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Nor will it have that purpose if it is a law for some specific purpose unconnected with the freedom of religion and only incidentally affects that freedom.

Gaudron J, therefore, seems to replace the strict purpose test with a broader purpose test, easily satisfied, coupled with a test of proportionality, as the method for determining the compatibility of the relevant law with s 116. Gaudron J’s interpretation of s 116 is to be preferred to that of the Kruger majority, and offers more effective protection to religious practices.66

Requirement of religious tests a qualification for any office or public trust under the Commonwealth [12.90]  Williams v Commonwealth (2012) 248 CLR 156 concerned a challenge to the Commonwealth’s provision funding of school chaplains at public schools. One of the grounds of challenge concerned an alleged breach of the fourth limb of s 116. This argument failed. The Court found that the Commonwealth simply provided funding for Christian school chaplains, who were hired by the relevant schools. The particular funding agreement challenged by the plaintiff, the parent of school aged children, was between the federal government and Scripture Union Queensland (“SUQ”) to provide chaplaincy services at the Darling Heights State Primary School. Gummow and Bell JJ explained (at 223), with whom the rest of the Court agreed: The chaplains engaged by SUQ hold no office under the Commonwealth. The chaplain at the Darling Heights State Primary School is engaged by SUQ to provide services under the control and direction of the school principal. The chaplain does not enter into any contractual or other arrangement with the Commonwealth. That the Commonwealth is a source of funding to SUQ is insufficient to render a chaplain engaged by SUQ the holder of an office under the Commonwealth.

Heydon J added (at 335): The Commonwealth has no legal relationship with the “chaplains”. It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals. This is not the occasion on which to attempt an exhaustive definition of “office … under the Commonwealth”. It is sufficient to say that whatever its outer limits, the “chaplains” are beyond them.

DISCRIMINATION ON THE BASIS OF INTERSTATE RESIDENCE –​SECTION 117 [12.95]  Section 117 reads: 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.

66 Gaudron J made no specific finding in Kruger as to the validity of the law under s 116, as more evidence was needed to determine that question.

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Section 117 guarantees freedom from discrimination on the basis of interstate residence. A State should not discriminate against a person because he or she lives in another State. Section 117 may not be a “human right” at all: discrimination on the basis of residence is not a social evil to be compared, for example, with discrimination on the basis of race, gender or religion. The purpose behind s 117 was essentially to help foster national unity, rather than to protect individuals.67 Unlike the rights discussed at [12.05]-​[12.90], s 117 binds the States. Indeed, it is uncertain whether it binds the Commonwealth.68 In any case, a State law is far more likely to discriminate on the basis of interstate residence.69 The leading case on s 117 is Street v Queensland Bar Association (1989) 168 CLR 461, discussed in detail below. In that case, the Court confirmed a rather unique feature of s 117. It does not operate to invalidate laws. Rather, it confers immunity from laws on persons who would otherwise be suffering from interstate residence discrimination. The law would still operate to affect other persons, such as in-​state residents. Section 117, like ss 80 and 116, was originally subjected to a very narrow interpretation. In Davies and Jones v Western Australia (1904) 2 CLR 29, the plaintiffs challenged a law which provided that death duties on property passed on to persons domiciled and bona fide resident in Western Australia should be half the tax otherwise payable. In a remarkably pedantic judgment, the Court found that the law discriminated on the basis of “domicile” rather than “residence”. “Domicile” is a slightly different concept from residence. “Residence” refers to where a person lives, while “domicile” takes into account residence plus intention to remain resident. In Henry v Boehm (1973) 128 CLR 482, the impugned rules of the South Australian Supreme Court required legal practitioners admitted in other States to reside in South Australia for three months before they could be admitted to the South Australian bar. The High Court majority found that the rule did not discriminate on the basis of interstate residence, as it in fact applied the same conditions to all persons registered at an interstate bar, regardless of where they lived. A South Australian resident was bound by the residence requirements just as much as a non-​resident. With respect to the majority, its reasoning displayed a grave misunderstanding of the notion of discrimination. For example, its rationale might support a contention that a restriction on pregnancy during employment is non-​discriminatory as it applies to both men and women. Stephen J dissented in Henry. Whereas the majority focused purely on the application of the rule, Stephen J focused on the substantive effect of the rule, and came up with a broader definition of discrimination for the purposes of s 117. Stephen J outlined his test for breach of s 117 (at 501-​502):

67

See Street v Queensland Bar Association (1989) 168 CLR 461 per Deane J at 522. See also H P Lee and J Paterson, “Australian Nationhood and the Constitutional Interpretation of Section 117” (2000) 8 Asia-​ Pacific Law Review 169.

68 The Court was undecided on this point in Leeth v Commonwealth (1992) 174 CLR 455, discussed in [6.165]. 69 A similar phenomenon exists in relation to the prevailing interpretation of s 92: see [11.35].

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[T]‌he plaintiff’s actual situation must be contrasted with a hypothetical one which differs from actuality only because it assumes the plaintiff to be a resident of South Australia; in making the comparison called for by s 117 no departure from actuality is to be made other than this one, relating to the plaintiff’s residence. Being thus resident in South Australia but having previously been admitted to practice in Victoria, his position when wishing to use that qualification in order to gain admission to practice in South Australia is to be contrasted with his position as it is in fact.

Of course, when Stephen J compared the effect of the rule on a South Australian resident with the effect of the rule on the plaintiff, a Victorian resident, it was clear that the effect on the South Australian was far less onerous. It is not of course particularly difficult for a South Australian resident to reside in South Australia, compared to the difficulties faced by a Victorian who would have had to move house, at least temporarily. On this analysis, it was clear that the Victorian resident suffered “disability or discrimination” contrary to s 117. Another way of describing the difference between Stephen J and the rest of the court is the following. The majority were only concerned with whether the law discriminated in its application. Seeing as the same rules were applied to all, there was no discrimination. The majority would thus only find discrimination where the Act directly discriminated against interstate residents. On the other hand, Stephen J examined the effect of the apparently neutral law70 and found that it had a discriminatory impact on interstate residents: such an inquiry involves consideration of indirect discrimination.71 Street v Queensland Bar Association (1989) 168 CLR 461 concerned Rules regulating admission to the Queensland Bar. Street was a resident of New South Wales who practised in New South Wales. He sought admission to the Queensland Bar. In order to practise at the Queensland Bar, a person had to (a) cease practice in another State, and (b) had to have “arrived” in Queensland (the Court interpreted this to mean that persons had to move to Queensland). Street challenged these Rules as being contrary to s 117. Whilst the litigation was pending, the Queensland Rules were amended to require that a person (c) had to practice principally in Queensland. The High Court unanimously rejected the prevailing authorities on s 117, and adopted the approach of Stephen J in Henry, preferring to focus on substance rather than form. Mason CJ endorsed the following test for breach of s 117 (at 488): It seems to me that for s 117 to apply it must appear that, were the person a resident of the legislating State, that different circumstance would of itself either effectively remove the disability or discrimination or, for practical purposes in all the circumstances, mitigate its effect to the point where it would be rendered illusory.

At 489, the Chief Justice went on: [Section] 117 renders a disability or discrimination invalid if the notional fact of residence within the legislating State would effectively remove the disability or discrimination or substantially deprive it of its onerous nature.

70 The actual neutrality of the law is, however, questionable. A “residency” requirement seems to inherently discriminate on the basis of residency. 71 See [14.45] for a discussion of the notions of direct and indirect discrimination.

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Thus, the Court compared the effect of the Queensland Bar Rules on Street as a resident of New South Wales with the hypothetical effect the Rules would have had on Street if he had resided in Queensland. All three of the Rules were found to contravene s 117. Rule 2 clearly favoured Queensland residents, in imposing a requirement of Queensland residency. Rules 1 and 3 had a more onerous effect on a New South Wales resident than a Queensland resident. Under Rule 1, Street as a New South Wales resident would be prohibited from practising in the State in which he resided. If Street had been a Queenslander, he would have had to surrender any interstate business, so some detriment would have accrued. However, at least he could have practised in the State in which he lived. The Court duly found that the impact of the law was worse on interstate residents and thus there was a prima facie breach of s 117. Similar considerations applied to the new rule, Rule 3, which was a more lenient version of Rule 1. Sweedman v Transport Accident Commission (2006) 226 CLR 362 arguably manifests a departure from the Street test, and a return to the Henry v Boehm form of analysis. The facts concerned a car accident in New South Wales, between a Victorian registered car driven by Victorian resident Mr Sutton (whose wife was a passenger in the car), and a New South Wales registered car driven by Mrs Sweedman, a New South Wales resident. The Suttons claimed compensation from the Transport Accident Commission of Victoria (TAC) under a legislative no fault scheme, which was funded by compulsory payments from all owners of Victorian registered cars. The TAC sought indemnity from Mrs Sweedman. Under the Victorian legislation, the TAC could only seek indemnity from those who were not entitled to be indemnified by it. The practical effect of the legislation was that the TAC could only seek indemnity from people who were not the owners or drivers of Victorian registered cars. Sweedman argued that the legislation was inapplicable to her, due to a breach of s 117. Applying the Street test, one asks whether Sweedman would have been in a better position if she was a Victorian resident rather than a New South Wales resident. It seems likely that she would have been, as she would likely have owned a Victorian registered car rather than a New South Wales registered car. However, the Court found that s 117 did not apply, as the legislation did not grant rights or obligations according to a person’s residence, but according to whether a car was registered in Victoria. A majority of the Court (the minority not disagreeing) noted (at 408-​409) that a New South Wales resident could register a car in Victoria, and vice versa. This reasoning seems to reflect the formalistic reasoning of Henry v Boehm. The High Court failed to grasp that Victorian residents were far more likely than New South Wales residents to have cars registered in Victoria. The majority did not, however, explicitly depart from or even cite Street. Therefore, it cannot be stated with any confidence that Street has been overruled: it seems more likely that the High Court inadvertently misapplied the test.72

72 See also J Stellios, Zines’ The High Court and the Constitution (6th ed, Federation Press, Annandale, 2015), pp 619-​620.

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Exceptions to s 117 [12.100] In Street, the Court agreed that there were exceptions to s 117. For example, Deane, Dawson and Toohey JJ in obiter dicta indicated that the words “subject of the Queen” may refer only to Australian citizens, rather than all subjects worldwide of the British Queen. Brennan J indicated that the provision might not protect artificial persons like corporations.73 Mason CJ explained a more general limit to the operation of s 117 (at 491-​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 recognized 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 doubt that such an exclusion would amount to a disability or discrimination 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 would 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 out-​of-​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. [emphasis added]

Brennan J outlined a similar test for exceptions to s 117 (at 513-​514): Nothing less than the need to preserve the institutions of [a State’s] government and their ability to function can justify the erection by a government of a barrier to the legal and social unity of the Australian people. The exception of necessity is narrowly confined: indeed, it may not amount to discrimination at all. When it is necessary to treat a protected person differently on the ground of out-​of-​ State residence (as in the case of voting in an election of senators for another State), that ground reflects the fact that the protected person is in a position which is relevantly and necessarily different from the position she or he would be in if she or he were an in-​State resident. It is precisely because she or he is not an in-​State resident that the Constitution requires her or him to be differently treated. Such different treatment is not truly discriminatory. However, as s 117 comprehends disabilities as well as discriminations, an exception of necessity must be recognized. [emphasis added]

McHugh J described the limits to s 117 in the following way (at 583-​584): [T]‌he “structural logic” of the Constitution indicates that there are some subject-​matters in respect of which an interstate resident is not entitled to equality of treatment with State residents in identical circumstances. The object of s 117 was to make federation fully effective by ensuring that subjects of the Queen who were residents of Australia and in comparable circumstances received equality of treatment within the boundaries of any State. But the existence of a federal system of government, composed of a union of independent States each continuing to govern its own people, necessarily requires the conclusion that some subject-​matters are the concern only of the people of each State. And since the residents of a State and its people are basically interchangeable concepts, it follows that laws dealing

73 D Meagher, A Simpson, J Stellios and F Wheeler, Hanks’ Australian Constitutional Law: Materials and Commentary (10th ed, LexisNexis Butterworths, Chatswood, 2016), p 1164.

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with these particular subject-​matters may exclude interstate residents from participation either generally or subject to conditions. The exclusion of these subject-​matters from the scope of s 117 is the necessary consequence of a federal system in which each State exercises independent powers and functions within its territory for the peace, order and good government of that territory. Matters which are the concern only of a State and its people and are not within the scope of s 117 would seem to include the franchise, the qualifications and conditions for holding public office in the State, and conduct which threatens the safety of the State or its people. No doubt there are other subject-​matters which are also outside the reach of s 117. But since all exceptions to the terms of that section arise by necessary implication from the assumptions and structure of the Constitution, they must be confined to the extent of the need for them. The question is not whether a particular subject-​matter serves the object of s 117; it is whether, by necessary implication, the matter is so exclusively the concern of the State and its people that an interstate resident is not entitled to equality of treatment in respect of it. [emphasis added]

No High Court Justice considered that the Queensland Bar Rules fell within the exceptions to s 117. As Mason CJ explained (at 493): But there is in my view no compelling justification for the disability or discrimination imposed upon Mr Street which would suffice to deny s 117 its effect. The United States Supreme Court has consistently rejected arguments invoked in support of bar residence requirements similar to those in the present case; see … It was found in Piper [(1985) 470 US at 285-​287)] that there was no evidence that non-​resident attorneys would lack familiarity with local rules and procedures, would be less likely to behave in an ethical manner, would be unlikely to perform their share of voluntary work or would be unable to perform their professional duties as satisfactorily as resident attorneys. Greater difficulty in physically attending proceedings was acknowledged, but was not viewed as a sufficient ground for denying admission. These conclusions apply with equal force to the position in Queensland. I am reinforced in that view by the fact that States other than Queensland do not see the need for special treatment of residents of their home States in order to ensure that proper professional and ethical standards are maintained. No peculiar characteristic of the Queensland legal profession or of Queensland law or practice has been suggested that would call for unique treatment.

The limits of s 117 arose again in Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463. Section 20 of the Motor Vehicles Insurance Act 1936 (Qld) governed the amount of damages that could be granted by Queensland courts in respect of out-​of-​State motor vehicle accidents. Section 20 prescribed that the amount of damages available to non-​Queensland residents was restricted to the amount available in the State in which they resided at time of the accident. No such cap was placed on the amount of damages available to Queensland residents in respect of the same types of accidents. Section 20 clearly discriminated on the basis of interstate residence when the damages recoverable in the claimant’s own State were less than those available in Queensland, as occurred to the plaintiff in Goryl. The crucial issue therefore was whether the discrimination could be somehow characterised as concerning a right exclusively associated with the State of Queensland. The justification for the discrepancy was that the law regulated the funds payable out of a government-​run insurance fund, which was largely funded by Queensland residents. It was argued that it was “reasonable” to discriminate between Queensland residents and non-​residents regarding access to the fund.

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The High Court unanimously found that Ms Goryl was immune from the operation of s 20. McHugh J stated (at 493-​494): Apart from these necessary exceptions to s 117, which are derived from the assumptions and structure of the Constitution itself, no reason exists for narrowing the scope of that section. In particular, there is no ground for reading into the provision a requirement that the disability or discrimination must be “unjustifiable”, “unreasonable” or “disproportionate to a legitimate State objective”. With respect, the “rational and proportionate connection” test is not justified by the language of s 117 or the structure or assumptions of the Constitution. No doubt the judgments of Brennan J and Gaudron J in Street provide support for that test. In one form or another, however, other members of the Court adopted a necessary implication exception. The relevant question in determining whether a subject-​matter is outside s 117, therefore, is “whether, by necessary implication, the matter is so exclusively the concern of the State and its people that an interstate resident is not entitled to equality of treatment in respect of it”.

Thus, McHugh J argued that “reasonable” discrimination would still contravene s 117. The only permitted interstate residence discrimination was that which concerned a very narrow range of subject matters, those “exclusively the concern of the State and its people”. Access to State government insurance funds was not such a matter. In other contexts, constitutionally prohibited discrimination is “saved” if it is reasonably designed to fulfil a rational objective (see [14.50]). The permissibility of “reasonable” justifications is also a common feature of the interpretation of human rights treaty guarantees of non-​discrimination,74 and municipal guarantees of non-​ discrimination. McHugh J argued that s 117 is an extraordinarily strong guarantee of non-​discrimination, albeit on a narrow basis (interstate residence). If he is correct, s 117 has come full circle, and has evolved from one of the weakest individual rights in the Constitution to one of the strongest.75

NO EXPRESS RIGHT TO VOTE [12.105]  Sections 7 and 24 require that the Senate and the House of Representatives be chosen by the people. However, those provisions say nothing about the number and identity of the people who have the right to choose. Other provisions refer more explicitly to the actual people who may vote in Commonwealth elections (see also [13.70] on the implied right to vote). Section 8 prescribes that the people with a right to vote for the House of Representatives will be entitled to vote for the Senate. Section 30 sets out provisions for the right to vote for the House of Representatives; persons with a right to vote for the more numerous House of Parliament in their State (always the Lower House) would have a right to vote for the Commonwealth Lower House “until Parliament otherwise 74 See for example, on the guarantees of non-​discrimination in the International Covenant on Civil and Political Rights, S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd ed, OUP, Oxford, 2013), pp 759-​831. 75 See also M Matthieson, “Section 117 of the Constitution: the Unfinished Business” (1999) 27 Federal Law Reivew 393.

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provided”. The Commonwealth did “otherwise provide” in 1902 with the passage of the Commonwealth Franchise Act 1902 (Cth).76 Thus, ss 8 and 30 are transitional provisions, and do not of themselves constrain the Commonwealth in its power (in s 51(xxxvi)) to set voting qualifications. The only part of those provisions which appears to bind the Commonwealth is the proviso in both sections that “each voter shall vote only once”. Section 41 reads: No adult person who has or acquires a right to vote at elections for the more numerous House of 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 Parliament of the Commonwealth.

The words of s 41 arguably indicate that anybody with a right to vote for the lower house of Parliament in their State must have a right to vote for the Commonwealth. In King v Jones (1972) 128 CLR 221, the meaning of s 41 was tested before the High Court. Under the Commonwealth law at the time, only people over 21 had a right to vote. However, South Australia conferred a right to vote on 18-​year-​olds. Susan King, who was 18 years of age at the time, sought a declaration that she had a right to vote in Commonwealth elections seeing as she had a right to vote for the lower house in South Australia. The Court refused the declaration on the basis that s 41, whatever it guaranteed, only applied to “adult” persons. That term was interpreted in accordance with its original meaning in 1901 (see [1.200]), which unequivocally meant persons over 21 years of age. King v Jones did not therefore illuminate the types of rights guaranteed in s 41. Section 41 returned to the Court in R v Pearson; Ex parte Sipka (1983) 152 CLR 254. On 4 February 1983, Prime Minister Fraser advised the Governor-​General to call a general election. The electoral rolls for the election were closed at 6 pm on the same day. The applicants in Sipka had failed to register on the electoral roll in time, and were thus precluded from voting under the Commonwealth Electoral Act 1918 (Cth). The applicants promptly registered to vote for New South Wales elections, and sought an order, based on s 41, that the Chief Australian Electoral Officer place their names on the Commonwealth electoral roll in time to vote in the 1983 election. A majority of 6:1 found that s 41 did not in fact guarantee all persons with a right to vote in the States a right to vote in Commonwealth elections. The provision was held to preserve a constitutional right to vote, rather than grant such a right to vote. In the majority, Brennan, Deane and Dawson JJ explained (at 278-​279): the exercise of an existing right to vote, at elections of the Commonwealth Parliament cannot “be prevented by any law of the Commonwealth”. But s 41 does not in terms confer a right to vote. If a right to vote is claimed by an elector in reliance upon the statutory franchise now prescribed by the laws of the Commonwealth, those laws are definitive of the right and s 41 has no work to do. But if and so long as a right to vote was claimed by an elector in reliance upon the constitutional franchise –​whether existing at the establishment of the 76 The Act which currently governs voting qualifications is the Commonwealth Electoral Act 1918 (Cth), as amended.

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Commonwealth or the result of a later modification before the prescription of a statutory franchise by the Commonwealth Parliament –​s 41 precluded any law of the Commonwealth from preventing the exercise of that voting right. In other words, those who, by State laws, were able to acquire a right to vote at elections of the more numerous House of the State and who, by reason of ss 30 and 8, thereby acquired the right to vote at elections of the Parliament of the Commonwealth, were entitled to continue voting at the latter elections so long as they continued to be entitled to vote at elections of the more numerous House of the State Parliament. They could not be prevented by any law of the Commonwealth from doing so. It is impermissible to construe a provision relating to the prevention of the exercise of a right to vote as the source of the right itself.

Thus, s 41 protects those with a right to vote conferred by another provision in the Constitution. The only constitutional rights to vote were those conferred by ss 8 and 30 upon persons who had a right to vote for the “more numerous House of Parliament” in their State “until Parliament otherwise provide[d]‌ ”. Section 41 essentially prevented the Commonwealth from reducing the constitutional franchise when it “otherwise provided” thus for example protecting the voting rights of women in South Australia and Western Australia.77 However, s 41 only protected the “constitutional” right to vote, which only existed between 1 January 1901 and 12 June 1902, when the Commonwealth Franchise Act 1902 (Cth) became the source of federal voting rights. So s 41 was interpreted as a transitional provision, and there is no doubt that its utility has been exhausted. Brennan, Deane and Dawson JJ admitted (at 280) that the practical effect of s 41 was largely “spent”, as it only protects those who were at least 21 years old in 1902. Certainly, it is arguable that Murphy J adopted a more orthodox textual interpretation of s 41 in his dissent in favour of the applicants. For example, the majority’s interpretation of s 41 as a transitional provision seems to be defeated by contextual arguments; s 41 did not contain words which expressly flagged a transitional character, unlike for example ss 8 and 30. Furthermore, Murphy J argued that the right to vote was an important political right which should be interpreted broadly, rather than pedantically. Why did the majority resort to such a tortuously narrow reading of s 41? The majority was influenced by policy considerations which told against a “plain meaning” interpretation of s 41. If s 41 was interpreted as having a continuing operation, thus forever linking the State and Commonwealth franchises, it would permit the States to undermine the uniformity of the Commonwealth franchise. Brennan, Deane and Dawson JJ stated (at 279): If s 41 were given [the alternative interpretation], the power conferred upon the Parliament to legislate for a uniform franchise would be destroyed. A Parliament of a State would be empowered to give the federal franchise to those whom the Commonwealth Parliament has excluded or disqualified, for example, property owners who do not live in the State, aliens, prohibited immigrants or convicts under sentence for more serious offences.

77 At federation, only women in those two States were permitted to vote for State lower houses.

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If that operation were accorded to s 41, the Parliament of a State would be empowered to increase the number of its electors for the purposes of s 128 beyond the number entitled under the uniform franchise.

Furthermore, on the Sipka facts, an expansive interpretation of s 41 may have undermined the Commonwealth system of voter registration and caused administrative chaos; a cut-​off day for registration on the electoral roll had to be prescribed in order to permit preparation of the electoral rolls for polling day.78 It thus appears that little is guaranteed with regard to the right to vote by the express words of the Constitution. Arguments have been more successful with regard to an implied constitutional right to vote. Developments regarding this implied right are considered at [13.65].

CONCLUSION [12.110]  Apart from s 51(xxxi), the express constitutional rights have a history of narrow, even pedantic, interpretation. Narrow interpretations have persisted with regard to ss 80, 116 and 41. Apart from s 117, the rights impose no restrictions on State legislative power. A proposed constitutional amendment to extend the effect of ss 51(xxxi), 80 and 116 so as to bind the States was comprehensively defeated at referendum in 1988. At the time of writing, Australia and Israel are the only two Western liberal democracies without bills of rights. That is not to say that all other such democracies have entrenched constitutional bills of rights, but comprehensive rights legislation is evident in all other Western democracies. It is unlikely that Australia will gain a constitutional bill of rights in the foreseeable future, or even an increased number of express constitutional rights, given the history of Australian resistance to constitutional change. The ACT enacted the Human Rights Act 2004 in 2004, while Victoria enacted its Charter of Human Rights and Responsibilities Act 2006 in 2006. In October 2009, a National Human Rights Consultation Committee recommended that Australia adopt a federal Human Rights Charter. A Human Rights Act is anticipated for Queensland. However, the Federal Government chose not to follow that recommendation, and instead adopted a “Human Rights Framework”. This framework involves a set of pragmatic commitments regarding human rights education and engagement. The key commitment is to provide for the scrutiny of legislation with regard to human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The framework is, however, subject to the vagaries of political developments and budgetary allocations. It falls far short of the human rights protection that would have been provided if the Consultation Committee’s recommendation had been adopted.79

78 Meagher et al, n 73, pp 117-​118. 79 See generally, A Fletcher, Australia’s Human Rights Scrutinty Regime –​Democratic Masterstone Or Mere Window Dressing? (1st ed, Melbourne University Press, Parkville, 2018).

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Chapter 13

Implied Political Rights and Freedoms [13.10] [13.15]

THE COMMUNIST PARTY CASE ................................................................................................... 486 FREEDOM OF POLITICAL COMMUNICATION ......................................................................... 490 [13.20] The source of the freedom.................................................................................................. 490 [13.25] The scope of the freedom................................................................................................... 496 [13.30] The first stage of the Lange test: What is “political communication”?........ 496 [13.35] The second stage of the Lange test: Limits to the implied freedom............. 504 [13.40] Revisiting the second stage of Lange; the cases of McCloy and Brown...................... 514 [13.45] Operation of the freedom................................................................................................... 521 [13.50] The nature of the freedom.................................................................................................. 523 [13.55] FREEDOMS OF MOVEMENT, ASSOCIATION AND PARTICIPATION .................................. 525 [13.60] VOTING EQUALITY AND VOTING RIGHTS .............................................................................. 527 [13.65] Voting equality..................................................................................................................... 527 [13.70] Voting rights......................................................................................................................... 531 [13.75] CONCLUSION  .................................................................................................................................... 538

[13.05]  In addition to the rights expressly guaranteed in the Constitution (see Chapter 12), the High Court has recognised that rights may also be implied from the text of the Constitution. While Australian constitutional law has long recognised a number of important implied constitutional requirements –​such as the doctrine of separation of judicial power (see Chapter 6) –​the recognition of implied rights has been particularly controversial. In part this controversy stems from a sense that the judicial role of ensuring that the exercise of governmental powers conforms to constitutional requirements such as federalism and the separation of powers differs in kind from the judicial role of ensuring compliance with individual rights and freedoms. Similarly, it is argued that any extension of the degree to which the Australian judiciary performs the latter role must come through constitutional amendment rather than judicial interpretation. Nevertheless, implied rights do presently have a place in Australian constitutional law, which can be simplified by the following. The legislative (and executive) powers of the Commonwealth are in general subject to, and limited by, the constitutional provisions establishing the system of representative democracy, including what is necessarily implied by those provisions. Freedom of political communication as well as the right to vote are necessarily implied by those provisions. Freedom of movement and association, and some degree of voting equality may also be implied. The freedoms are not absolute; they can be overridden by laws that are reasonably appropriate and adapted to legitimate objectives.

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In this chapter, each of these implied entitlements and, more specifically, what the High Court has determined as to the source, nature, operation, scope, content and limits of each, is considered in turn. However, prior to such consideration, the famous Communist Party case will be revisited. This case demonstrates that human rights may be indirectly protected using more traditional and orthodox constitutional principles than those utilised in the implied rights cases.

THE COMMUNIST PARTY CASE [13.10]  The case of Australian Communist Party v Commonwealth (1951) 83 CLR 1 is probably the most famous example, notwithstanding the “implied rights” revolution of the 1990s, of a case in which governmental abuse of power, and the consequent breach of human rights, was thwarted by a High Court constitutional decision. The High Court used the orthodox principles of characterisation to achieve this outcome. The case concerned the validity of the Communist Party Dissolution Act 1950 (Cth). The salient provisions of that Act were described by McTiernan J thus (at 209): The substantial effects of the Communist Party Dissolution Act are produced by s 4, then by ss 5 and 6 and finally by ss 9 and 10. Section 4 singles out the Australian Communist Party by name. The section applies solely to the Party, declares it to be an unlawful association, breaks up the association of persons who form it and provides for the forfeiture, upon dissolution, of all its property to the Commonwealth. The effect of the section is to deprive the members of the Party of their right of association, their interest in the property of the Party and other civil rights. Sections 5 and 6 are directed against bodies, other than trade unions, which are supposedly allied in a fashion to the Australian Communist Party or who have communist connections. These sections authorize the Government of the Commonwealth to take action against any body in these selected categories if it is satisfied that “the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth”. This action has the same effect on the body against which it is taken and its members as s 4 has on the Australian Communist Party and its members. Sections 9 and 10 authorize the Government of the Commonwealth to disqualify Communists from holding trade union office in certain industrial spheres and all Commonwealth positions. The Government is authorized to take this action against any communist to whom s 9 applies where it is satisfied that he “is engaged or likely to be engaged in activities”, described as “prejudicial” to the above-​mentioned interests of the Commonwealth. The effect of these sections is to deprive the persons and the trade unions affected by their operation of a contractual capacity and of civil rights in respect of employment. The criterion adopted by the legislature for the application of s 4 is that the persons to whom it applies are collectively known as the Australian Communist Party. The application of the section does not depend upon anything that the association might do. The same thing is primarily true of ss 5 and 6 and ss 9 and 10.

The Menzies Government was clearly aware of the oppressive nature of the Act. Unusually, the provisions of the Act were further vindicated by the preamble to the Act, which amounted to a legislative assertion of the danger directly posed to the Australian community and system of government by the global spread of communism. Therefore, the Act directly dissolved the Australian Communist Party (ACP), and authorised the dissolution of affiliated organisations if they were deemed by the

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Executive to be prejudicial to the security and defence of the Commonwealth. The Act clearly threatened the right to freedom of association, and other civil rights, of communists (and others labelled as “communist”) in Australia. The purported heads of power for the Act were the defence power in s 51(vi) and/​or the nationhood power.1 The High Court, by a majority of 6:1, found that the law fell outside the Commonwealth’s heads of power, and was therefore invalid. McTiernan J reflected the majority in stating (at 207): It is implicit in the Act that Parliament is of opinion that the persons to whom it applies are indiscriminately per se a danger to the Commonwealth. This opinion is insufficient to connect the Act with any subject matter of legislative power and to justify the restriction of their civil liberties. In a period of grave emergency the opinion of Parliament that any person or body of persons is a danger to the safety of the Commonwealth would be sufficient to bring his or their civil liberties under the control of the Commonwealth; but in time of peace or when there is no immediate or present danger of war, the position is otherwise because the Constitution has not specifically given the Parliament power to make laws for the general control of civil liberties and it cannot be regarded as incidental to the purpose of defence to impose such a control in peace time. To decide that the present Act is good under the defence power would radically disturb the grant of legislative power made by the Constitution to the Commonwealth Parliament. Indeed the general control of civil liberty which the Commonwealth may be entitled to exercise in war time under the defence power is among the first of war-​time powers that would be denied to it when the transition from war to peace sets in, because then there is no emergency to support the constitutional power to maintain a control of that nature. It is, of course, for Parliament to measure the emergency confronting the Commonwealth and to take the legislative measures which are required to meet it. The only question for the Court is whether the measures have a reasonable relation to the emergency, and on that question the Court naturally gives very great weight to the opinion of Parliament; but it could not allow the opinion of Parliament to be the decisive factor, that is to determine the matter finally and conclusively, without deserting its own duty under the Constitution.

Similarly, Fullagar J stated (at 258): The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-​maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses [s 51(vii)] does not authorise the making of a law with respect to anything which is, in the opinion of the law-​maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-​General is a lighthouse is another thing.

Thus, the expressed legislative opinion in the preamble regarding the “danger” of the ACP, and the conferral of discretion to act upon the Governor-​General when he perceived a threat to the nation, did not suffice to establish a link between the Act and the relevant heads of power. The Parliament could not conclusively “recite itself into power” (McTiernan J at 205-​206) by legislatively declaring the ACP a danger to the 1 This power is discussed from [5.65]. In the Communist Party case, the power was not referred to as a nationhood power: that term reflects the terminology of more recent case law on the matter.

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defence of the nation and therefore establishing its own power to enact the Act under s 51(vi) or the nationhood power. McTiernan J went on to find that the true subject matter of the Act was simply too remote from federal power to be valid (at 210): The connection of the Act with legislative power depends upon the aims and objects which communism implies, rather than upon the actions of the Party, or of its allies, or of individual communists. The scope and operation of the principal sections of the Act determine that it is merely a law with respect to communists of the Lenin-​Marx school. The Court may take judicial notice of the fact that persons of this class manifest strong sympathy with the Soviet and sharp antagonism to the existing social and political orders and are desirous of overthrowing them. But their mere aims as communists, apart from their actions, are not sufficiently substantial to give the Commonwealth Parliament a foot-​hold on which to enact laws to deprive all the members of the class of civil liberties which in peace time are immune from Commonwealth control.

Williams J added (at 227): In my opinion legislation to wind up bodies corporate or unincorporate and to dispose of their assets or to deprive individuals of their civil rights or liberties on the mere assertion of Parliament or the Executive that they are conducting themselves in a manner prejudicial to security and defence, is not authorized by the defence power or the incidental power in peace time.

Therefore, the Communist Party Dissolution Act 1950 (Cth) was struck down because the Commonwealth simply lacked power to achieve that goal. The Menzies Government failed subsequently to effect a constitutional amendment by inserting a new federal power over communism; the initiative was defeated at referendum. The case is clearly a landmark regarding the legal protection of rights in Australia.2 However, its status as a “human rights case” is almost accidental. As noted by Fullagar J (at 262): [N]‌othing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all. Such a law as the Communist Party Dissolution Act could clearly be passed by the Parliament of the United Kingdom or of any of the Australian States. It is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that it arises in the case of the Commonwealth Parliament.

Rights were defended by the Communist Party case because the federal government lacked the power to dissolve the Communist Party and affiliated institutions under the constitutional distribution of powers between the federal and State governments.3 The States, therefore, had that power, so the case did not dictate that freedom of association was constitutionally safeguarded throughout Australia. As noted in [13.50], such a right may now have been constructed in the implied rights cases. In more recent times, the Commonwealth enacted amendments to the Criminal Code 1995 (Cth) allowing for the non-​judicial proscription of “terrorist organisation”. In many respects, the legislation is similar to the Communist Party Dissolution Act 1950. 2 See G Winterton, “The Communist Party Case”, in H P Lee and G Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, Cambridge, 2003), pp 129-​130. 3 Winterton, n 2, p 132.

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However, the States have referred powers regarding the matter of terrorist acts to the Commonwealth under s 51(xxxvii), which may fill any constitutional gap that existed in the Commonwealth government’s heads of powers with regard to the Criminal Code 1995 amendments.4 The Criminal Code amendments concerning the issue of control orders were challenged unsuccessfully in Thomas v Mowbray (2007) 233 CLR 307 where the High Court majority was prepared to find that the restriction on the liberty of certain people on the basis that such restrictions might help to protect the public from a terrorist attack was a proportionate law for the purposes of the defence power.5 The majority readily accepted the danger entailed in modern terrorism compared to the danger entailed in the 1950s in communism. Some of the majority in Thomas indicated that the Court in the Communist Party case had adopted too narrow a characterisation of the defence power. Callinan J seemed quite dismissive of the Communist Party case (at 486): The timing of the enactment of the CPA is a point of departure from the timing of the legislation here. The Communist Party was part of an international political movement, but one which was not merely dominated, but almost entirely controlled by the Communist Party of the Soviet Union. Only five years before, the Soviet Union had been an important ally of Australia, and the other western democracies. There had certainly been manifestations of Soviet communist imperialism, but it is probably right to say that it was only after the collapse of the Iron Curtain nearly forty years later, that all of the designs of the communist state upon the rest of the world, and the ruthlessness with which it was prepared to pursue them, were fully realized and acknowledged. In short, much of what is now known and undoubted was not apparent in 1951, such that judicial notice Communist Party Case would universally be taken of it. It may also be that some residual tenderness for a recent ally, and a naïveté about Soviet grand imperial designs affected the thinking of the Court in the Communist Party Case.

Kirby J, in dissent in Thomas, passionately defended the standing of the Communist Party case (at 442-​443): In the past, lawyers and citizens in Australia have looked back with appreciation and gratitude to this Court’s enlightened majority decision in the Communist Party Case. Truly, it was a judicial outcome worthy of a “free and confident society” which does not bow the head at every law that diminishes liberty beyond the constitutional design. I did not expect that, during my service, I would see the Communist Party Case sidelined, minimised, doubted and even criticised and denigrated in this Court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing.

4 Joo-​Cheong Tam explores alternative constitutional objections to the proscription regime, largely based on the implied freedoms discussed in this chapter, in “Possible Constitutional Objections to the Powers to Ban ‘Terrorist’ Organisations” (2004) 27 University of New South Wales Law Journal 482. 5 See also [2.50].

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Whereas, until now, Australians, including in this Court, have generally accepted the foresight, prudence and wisdom of this Court, and of Dixon J in particular, in the Communist Party Case (and in other constitutional decisions of the same era), they will look back with regret and embarrassment at this decision when similar qualities of constitutional wisdom were demanded but were not forthcoming. In the face of contemporary dangers from terrorism, it is essential that this Court should insist on the steady observance of settled constitutional principles. It should demand adherence to the established rules governing the validity of federal laws and the deployment of federal courts in applying such laws. It should reject legal and constitutional exceptionalism. Unless this Court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia. The wellspring of constitutional wisdom lies in legal principle. Its source is found in the lessons of constitutional history. When these elements are forgotten or neglected by a court such as this, under the passing pressures of a given time, the result is serious error. The consequences for the constitutional design, as for individual liberty, can be grave. It must then be left to a future time to return to that wisdom and to rediscover its source when the mistakes of the present eventually send this Court back to the wise perceptions of the past.

FREEDOM OF POLITICAL COMMUNICATION [13.15]  When the High Court introduced an implied freedom of political communication in Australian Capital Television v Commonwealth (1992) 177 CLR 106 and Nationwide News v Wills (1992) 177 CLR 1 (decided on the same day), there were evident differences of opinion as to the precise source of the freedom and, in ACTV at least, as to its application.6 These differences became more pronounced in subsequent cases, including the companion cases of Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers (1994) 182 CLR 211, which considered the application of the freedom to defamation law. Eventually, in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, a unanimous court affirmed the recognition of an implied freedom of political communication, identified the appropriate line of reasoning as to its source and clarified its nature, scope of operation, content and limits.

The source of the freedom [13.20]  The reasoning by which an implied freedom of political communication was recognised in ACTV and Nationwide News extended across both cases and so they are here considered together. In ACTV a number of broadcasting corporations as well as the State of New South Wales challenged Commonwealth legislation regulating political advertising. The legislation was enacted after a Commonwealth parliamentary inquiry expressed concern that the high cost and low quality of modern political advertising were detrimental to the Australian

6 The possibility of an implied freedom relating to communication had been endorsed by Murphy J in some earlier cases. See G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), pp  1328-​1333.

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political process. Under Pt IIID of the Broadcasting and Television Act 1942 (Cth), all political advertising on radio and television in all elections (Commonwealth, State, Territory and local government elections and referenda) was prohibited. Instead, free broadcasting time was accorded to political parties under Pt IIID. Ninety per cent of free-​time broadcasting spots on television and radio was to be allocated to political parties already represented in the relevant legislature. Parties without sitting members and independents would enjoy a share of the small amount of time not allocated in this way. No provision was apparently made for any advertising by groups not standing for election, such as unions, corporations or non-​governmental organisations. News broadcasts and talkback radio comments on political candidates were not affected. Nor were advertisements in the print media, such as newspapers or pamphlets. The legislation was challenged, inter alia, for impeding freedom of political communication.7 All members of the Court held that the Constitution protected freedom of political communication and a majority of 5:2 (Brennan and Dawson JJ dissenting) held that the legislation unjustifiably overrode that protection. In Nationwide News, provisions in the Industrial Relations Act 1988 (Cth), which created an offence of bringing the Industrial Relations Commission or one its members into disrepute, were challenged. A newspaper’s publisher was prosecuted under the provisions when one of the newspaper’s columnists accused the Commissioners of being corrupt and compliant and characterised them as occupying a Soviet-​style fascistic position over the Australian workforce. The provisions were challenged for being beyond the Commonwealth’s legislative power with respect to conciliation and arbitration (s 51(xxxv)) and for infringing freedom of political communication. After interpreting the provisions as not permitting any exceptions for “fair comment” or “honest and reasonable mistake”, the High Court unanimously struck them down. Mason CJ, McHugh and Dawson JJ held that the provisions were outside the scope of s 51(xxxv). Brennan, Deane, Toohey and Gaudron JJ held that the provisions were within the scope of the legislative head of power but that they breached an implied freedom of political communication. The judgments of the Court in these cases manifested a spectrum of opinion on the source of the implied freedom of political communication. Towards one end of the spectrum were Mason CJ, Brennan, Deane, Toohey and Gaudron JJ whose judgments were connected by the view that the text and structure of the Constitution established a system of representative government or representative democracy and thus incorporated, by implication, the degree of freedom of communication necessary to sustain that system. As Brennan J puts it in Nationwide News (at 48-​49): where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.

7 Other complaints related to alleged breaches of s 51(xxxi) in respect of the compulsory provision of free air-​time by broadcasters, and the doctrine of implied intergovernmental immunities in respect of the legislation’s effect on State elections.

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A further similarity between the judgments of these members of the Court was their concern to confirm the ultimate sovereignty of the Australian people. For example, Mason CJ in ACTV (at 138): The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives are accountable to the people for what they do and have the responsibility to take account of the views of the people on whose behalf they act. Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion.

Deane and Toohey JJ stated in Nationwide News (at 70): The implication of the Constitution which is of central importance in the resolution of the present case flows from the third of those general doctrines of government which underlie the Constitution and form part of its structure.8 That doctrine can conveniently be described as the doctrine of representative government, that is to say, of government by representatives directly or indirectly elected or appointed by, and ultimately responsible to, the people of the Commonwealth. The rational basis of that doctrine is the thesis that all powers of government ultimately belong to, and are derived from, the governed.

Most controversially, Deane and Toohey JJ had previously stated in Nationwide News (at 69): [Commonwealth heads of power] must be read and construed in the context of, and as “subject to”, the Constitution as a whole including the fundamental implications of the doctrines of government upon which the Constitution as a whole is structured and which form part of its fabric. They must also be read and construed in the context of other more particular implications which either are to be discerned in particular provisions of the Constitution or which flow from the fundamental rights and principles recognized by the common law at the time the Constitution was adopted as the compact of the Federation.

Their Honours implied that more rights, such as those apparently recognised in the common law, could be uncovered in underlying concepts, or “the fabric”, of the Constitution. Clearly, the source of the implied freedom, for these two Judges, was not the constitutional text itself. At the other end of the spectrum of opinion as to the source of the implied freedom of political communication was Dawson J who argued that reliance upon notions of popular sovereignty in interpreting the Constitution belied the document’s origins in a legislative act of the Imperial Parliament. Given those origins, Dawson J explained in ACTV (at 181): “[i]‌f implications are to be drawn [from the Constitution], they must appear from the terms of the instrument itself and not from extrinsic circumstances”. Dawson J thus closely tied his recognition of the freedom to the words used in ss 7 and 24 of the Constitution which required that members of the Commonwealth Parliament be “directly chosen by the people”. With these words, he stated (at 187): the Constitution provides for a choice and that must mean a true choice. It may be said –​at all events in the context of an election –​that a choice is not a true choice when it is made without an appreciation of the available alternatives or, at least, without an opportunity to 8 The first two “general doctrines” discussed were federalism and the separation of powers.

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gain an appreciation of the available alternatives. … Thus an election in which the electors are denied access to the information necessary for the exercise of a true choice is not the kind of election envisaged by the Constitution.

Dawson J therefore adopted a relatively narrow conception of the content of the implied right. As the Broadcasting and Television Act 1942 did not deprive voters of access to all relevant electoral information (for example, print media ads were still accessible), no breach of the implied freedom arose in his opinion in the ACTV case. The next two cases, both decided on the same day in 1994, Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 raised the question of whether the implied freedom of political communication affected the scope or content of the common law protection against defamation. The plaintiff in Theophanous, a member of the Commonwealth House of Representatives and Chair of an inquiry on immigration, sued the Herald & Weekly Times over a letter it published, as well as the author of the letter, Bruce Ruxton (then president of the Returned and Services League). In the letter, Ruxton accused Theophanous of standing for things Australians were against, of being biased towards Greeks and of conducting “idiotic antics”. The defendants argued that the letter was protected by the implied freedom of political communication which constituted a sufficient defence to a common law action in defamation. A majority of Mason CJ, Deane, Toohey and Gaudron JJ held that the freedom applied to the common law of defamation and that certain aspects of the common law of defamation in Victoria were inconsistent with the freedom. Brennan J dissented on the basis that the common law of defamation adequately accounted for the freedom, though he doubted whether the constitutional freedom impacted on common law rights at all. McHugh and Dawson JJ, also dissenting, held that the implied freedom of political communication had no application to the common law of defamation. The relationship between the constitutional freedom and the common law are discussed at [13.45]. Here we are concerned with the various positions taken with respect to the source of the freedom. While no member of the Court in Theophanous doubted the existence of the implied freedom of political communication, a number of Justices felt the need to revisit the reasoning by which the freedom had been established in the 1992 cases. McHugh and Dawson JJ were concerned that the reasoning in the judgments of their colleagues had strayed too far from the text of the Constitution. For instance, McHugh J argued (at 204) that while it was necessary to appreciate that ss 7 and 24 of the Constitution gave effect to the institutions of representative government and responsible government, and appropriate to use those concepts as “tools for interpreting the full meaning” of those sections, the reasoning in the judgments of his majority colleagues in ACTV had gone further. As he puts it (at 202-​203): Those judgments hold that, because the makers of the Constitution intended that the Commonwealth should have a representative government and that certain sections of the Constitution give effect to that intention, the institution itself is part of the Constitution. From that premise the conclusion is reached that the rights of the people inherent in that institution are constitutionally entrenched and extend to all tiers of government in Australia. The majority judgments seek to imply a general concept of representative government with a wide meaning from the terms of the Constitution –​ss 7 and 24 in particular. But those

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sections do not support that implication. … Those sections deal with elections, not general politics. To give them the efficacy that their purpose requires, it is legitimate to imply other freedoms during the course of elections, as I sought to show in [ACTV]. But with great respect, I do not see how there can be implied into the Constitution from the terms of those sections –​whether by necessity or otherwise –​the whole apparatus of representative government in the sense in the majority judgments … It does not follow either logically or as a matter of necessary implication that, because some provisions of the Constitution give effect to an aspect of a particular institution, that institution itself is part of the Constitution.

In McHugh J’s view, “representative democracy” was a broader concept than “representative government”. While the former entailed popular election-​ based control of representatives, political equality, political freedoms and majority rule, the latter only entailed “a political system where the people in free elections elect their representatives to the political chamber which occupies the most powerful position in the political system” (at 200). Further, McHugh J noted that, at the time the Constitution was made, “representative government” was a narrow concept which could not be mistaken for government by the people. Consequently, McHugh J argued that while the makers of the Constitution intended to give effect to representative government, a notion which simply required the election of the Parliament, they had no such intention with respect to representative democracy, a broader notion which impacted upon how governments worked between elections. Thus, for McHugh J the implied freedom was not relevant in the Theophanous case. Nor was it relevant in Dawson J’s view, who adhered to the narrow view of the freedom which he had enunciated in ACTV. In contrast, Deane J emphatically defended the notion of popular sovereignty and interpretative reliance upon “fundamental doctrines” which, in his view, underlay the terms of the Constitution. In his words (at 171): There is absolutely nothing in the provisions of the Constitution which suggests an intention on the part of the people either that the ordinary rules of construction should be ignored or that the failure to include a detailed list of their constitutional “rights” should be treated as somehow precluding or impeding the implication of rights, privileges and immunities from either the Constitution’s express terms or the fundamental doctrines upon which it was structured and which it incorporated as part of its very fabric. That being so, even if it could be established that it was the unexpressed intention of the framers of the Constitution that the failure to follow the United States model should preclude or impede the implication of constitutional rights, their intention in that regard would be simply irrelevant to the construction of provisions whose legitimacy lay in their acceptance by the people. Moreover, to construe the Constitution on the basis that the dead hands of those who framed it reached from their graves to negate or constrict the natural implications of its express provisions or fundamental doctrines would deprive what was intended to be a living instrument of its vitality and its adaptability to serve succeeding generations.

Continuing this line of argument later (at 173), Deane J suggested that the “Constitution must be construed as a ‘living force’ representing the will and intention of all contemporary Australians”. While this suggestion, and Deane J’s general approach, would enable constitutional interpretation to liberate itself from the narrow understanding of the Constitution’s underlying concepts urged by McHugh J, it would also seem to confirm McHugh J’s worst fears about the subordination of the Constitution’s terms to those concepts. At the least, it is difficult to see how the Court

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could divine “the will and intention of all contemporary Australians”, even if there was such a thing.9 At the same time, it can hardly be any easier to divine the original intention of the Constitution’s framers, if such a thing as that existed.10 Further, it can scarcely be doubted that constitutional interpretation, however originalist in orientation, is necessarily informed by the social context within which it takes place. It was evident in Theophanous (and in the very similar decision in Stephens) that the various members of the Court perceived important differences between their approaches to constitutional implications in general and to identifying the source of the implied freedom of political communication in particular. These perceptions persisted, and the differences seemed to become more pronounced, in the subsequent case of McGinty v Western Australia (1996) 186 CLR 140, in which the possibility of an implied constitutional entitlement to voting equality was raised (see [13.60]). It therefore seemed that the spectrum of opinion as to the sources of implied constitutional entitlements evident in ACTV and Nationwide News had polarised. Yet unanimity was reached only a year later in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, after the retirements of Mason CJ and Deane J from the bench. Lange again concerned the relationship between the implied freedom of political communication and the common law of defamation. David Lange, a former Prime Minister of New Zealand, sued the Australian Broadcasting Corporation (ABC) for defamation. The ABC, relying upon Theophanous and Stephens, claimed, in part, that it was protected by the implied freedom of political communication. The Court reached unanimity on the source of the freedom. The Court said (at 566-​567): the Constitution gives effect to the institution of “representative government” only to the extent that the text and structure of the Constitution establish it. 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?” 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 to what is inherent in the text and structure of the Constitution.

Earlier in its judgment the Court gave fuller expression to the appropriate line of reasoning for drawing out an implied freedom of political communication from the terms and structure of the Constitution (at 556-​559): 9 See J Goldsworthy, “The High Court, Implied Rights, and Constitutional Change” (March 1995) 39 Quadrant 46 at 51. 10 P Brest, “The Misconceived Quest for the Original Understanding” (1980) 60 Boston University Law Review 204. But see the debate between Goldsworthy and Emerton: J Goldsworthy, “Originalism in Constitutional Interpretation” (1997) 25 Federal Law Review 1; P Emerton, “Political Freedoms and Entitlements in the Australian Constitution: An Example of Referential Intentions Yielding Unintended Legal Consequences” (2010) 38 Federal Law Review 169; and J Goldsworthy, “Constitutional Implications Revisited” (2011) 30 University of Queensland Law Journal 9.

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Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect. That the Constitution intended to provide for the institutions of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall “be directly chosen by the people” of the Commonwealth and the States, respectively.

The unanimous judgment in Lange thus settled both the existence of an implied freedom of political communication as well as the source of that freedom and the method by which such freedoms were to be derived from the Constitution. The position taken by the Court in Lange as to the source of the freedom, with its emphasis on the text of the Constitution, seemed closest to the more conservative opinions in the earlier cases. However, as is noted below, the consequent narrow scope of the freedom which had been advocated by the minorities in those earlier cases was not adopted in Lange. Indeed, the scope of the freedom has ultimately proven to be fairly similar to that adopted by the majority in Theophanous. The significance of the “source” of the implied freedom of political communication has therefore not proven so crucial to the parameters of that freedom. Its significance lies in the rejection in Lange of underlying constitutional concepts or principles as legitimate foundations for implied constitutional rights, which has acted as a brake on the development of more implied constitutional rights.

The scope of the freedom [13.25] In Lange the Court was able to cohere the approaches taken in previous cases into a two-​stage test for determining whether a law infringed the implied freedom of political communication. In the first stage of this test the focus is upon determining whether an impugned law places a burden on the freedom of political communication. Therefore, the meaning of “political communication” must be determined. If such a burden is found, the focus in the second stage is upon determining whether that burden is valid or, in other words, upon determining the extent to which the freedom of political communication can be legitimately limited. The first stage of the Lange test: What is “political communication”? [13.30]  According to the first stage of the test in Lange the question to be determined is, as set out by the Court (at 567): [D]‌oes the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

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What is the definition of the “political communication” that must be subjected to a burden in order for the freedom to be enlivened? A very broad definition of such communication was offered by Mason CJ, Toohey and Gaudron JJ (with whom Deane J agreed on this point) in Theophanous where their Honours defined “political discussion” to include (at 124): discussion of the conduct, policies, fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, 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. Barendt [an influential commentator] states that … “ ‘political speech’ refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”.

The Justices then went on to remark that while the freedom would not generally offer protection for purely commercial speech or other private speech, this would ultimately depend upon the content, emphasis and context of such speech. Based as it is in the Commonwealth Constitution, a crucial issue is whether the freedom protects only communication about the federal government or federal issues, or whether it also protects communication about State, Territory and local (that is, non-​federal) governments or political matters. In Theophanous, Mason CJ, Toohey and Gaudron JJ stated (at 142): The concept of freedom to communicate with respect to public affairs and political discussion does not lend itself to subdivision. Public affairs and political discussion are indivisible and cannot be subdivided into compartments that correspond with, or relate to, the various tiers of government in Australia. Unlike the legislative powers of the Commonwealth Parliament, there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. 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 connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Further, there is a continuing interrelationship between the various tiers of government.

In Lange the Court seemed to adopt a narrower view of political communication than that adopted by the majority in Theophanous. The Court stated that the following constitutes political communication for the purposes of the implied freedom (at 571): [the ability of] “the people” to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of [federal] Ministers of State and the conduct of the executive branch of government. [emphasis added]

The Lange definition of protected expression did not necessarily assume that all political speech, particularly speech about the States, is protected. There is less evidence of an assumption that speech about all political matters is “indivisible”, as had been evident in the majority judgments in Theophanous. For example, the Court stated in Lange (at 571-​572):

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the discussion of matters at State, Territory or local government level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. [emphasis added]

Nevertheless, the Court found on the facts in Lange (at 576) that “[b]‌y reasons of matters of geography, history and constitutional and trading arrangements, … the discussion of matters concerning New Zealand may often affect, or throw light on [federal] government matters in Australia”,11 thus indicating that the scope of the definition of “political communication” remained broad.12 This perception of the breadth of the definition has been confirmed in later cases. In Coleman v Power (2004) 220 CLR 1, the relevant “communication” consisted of an insult aimed by Patrick John Coleman at Constable Brendan Power of the Queensland police, in which Coleman said loudly in a public place: “This is Constable Brendan Power, a corrupt police officer”. Coleman was arrested by Power, and convicted of the offence of using insulting words against Power under s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). In the proceedings in the High Court, the Attorney-​General of Queensland conceded that the relevant speech was “political speech” under the Lange definition. This concession meant that the Court did not have to decide that question.13 Nevertheless, in obiter dicta, McHugh, Gummow, Hayne and Kirby JJ felt that the concession was correctly made. For example, McHugh J stated (at 45):14 the concessions made by the respondents were properly made. For the purposes of ss 7, 24, 64 and 128 of the Constitution –​the sections that give rise to the constitutional implication –​ the relevant subjects of political and governmental communication include the activities of the executive arm of government. For that purpose, the Executive includes Ministers, public servants and “statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature”. The conduct of State police officers is relevant to the system of representative and responsible government set up by the Constitution. State police officers are involved in the administration and enforcement of federal as well as State criminal law. Members of the police forces of the States and Territories are included in the definitions of “constable” and “law enforcement officer” in the Crimes Act 1914 (Cth). That Act empowers State police officers to execute search warrants and to make searches and arrests without warrant. Similarly, State and Territory police officers are included in the definition of “investigating official” for the purposes of

11 In Monis v The Queen (2013) 249 CLR 92, Heydon J bitterly criticised this aspect of Lange. He stated at 184: For the most part, Australians know nothing of New Zealand affairs. The information which the Australian public does possess of New Zealand affairs is more likely to generate great public boredom, not interest. And what light can matters in a non-​federal unicameral country throw on matters in a federal union of politics many of which are bicameral? 12 The Court did not ultimately decide whether the alleged defamation of David Lange was speech capable of constitutional protection, as “further and better particulars” were required to make such a decision. The case was remitted to the Supreme Court of New South Wales. 13 Kirby J disputed that concessions could “foreclose constitutional decision-​making” at 89. 14 See also Gummow and Hayne JJ at 64-​65 and Kirby J at 89.

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investigation of Commonwealth offences, including detention for questioning. Moreover, persons convicted of offences –​State or federal –​punishable by imprisonment for a year or more are disqualified from sitting in the federal Parliament by s 44(ii) of the Constitution. Public evaluation of the performance of Federal Ministers, such as the Attorney-​General, the Minister for Justice and the Minister for Customs, may be influenced, therefore, by the manner in which State police officers enforce federal law and investigate federal offences. Allegations that members of the Queensland police force are corrupt may reflect on federal Ministers as well as the responsible State Ministers. Such allegations may undermine public confidence in the administration of the federal, as well as the State, criminal justice system.

In Wotton v Queensland (2012) 246 CLR 1, the plaintiff was a parolee who challenged the Corrective Services Act 2006 (Qld) to the extent that it authorised certain parole conditions imposed upon him. Wotton had been convicted of riot offences on Palm Island: the relevant riots arose after an Aboriginal man died in police custody. The conditions restricted Wotton’s ability to attend public meetings as well as his ability to be paid for any media interviews. The majority stated at 15, on whether the case concerned “political speech” for the purposes of the constitutional freedom:15 The public discussion of matters relating to Aboriginal and Indigenous affairs, including perceived or alleged injustices, involves communication at a national rather than purely State level about government and political matters, in the sense of the first Lange question. Further, in Australia, law enforcement and policing depends both practically and structurally … upon close co-​operation of federal, State and Territory police services. The interaction between those services and Aboriginal persons is a matter of national rather than purely local political concern.

Unions NSW v NSW (Unions NSW [No 1]) (2013) 252 CLR 530 concerned the validity of NSW provisions purportedly designed to enhance the integrity of New South Wales elections and politics. French CJ, Hayne, Crennan, Kiefel and Bell JJ stated (at 550-​551): The complex interrelationship between levels of government, issues common to State and federal government and the levels at which political parties operate necessitate that a wide view be taken of the operation of the freedom of political communication. generally speaking, political communication cannot be compartmentalised to either that respecting State or that respecting federal issues.

Hence, Unions NSW [No 1] comes very close to returning us to the Theophanous idea that it is very difficult, maybe even impossible, to divide speech into federal and State components. Generally, High Court Judges have found that the freedom has been burdened. Few cases have turned on the lack of a burden, and therefore the lack of “political communication” in a case. Cunliffe v Commonwealth (1994) 182 CLR 272, which was decided prior to Lange, involved a challenge to legislation which established a system of registration for “migration agents” and imposed restrictions on the advice and assistance which people other than registered agents could provide. One ground of challenge was 15 Heydon J found that the freedom was not burdened, as Wotton could speak outside of public meetings, and could still speak to the media, only without payment.

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that the restrictions infringed the implied freedom of political communication. By a majority of 4:3 this ground of challenge was rejected. All three members of the minority, Mason CJ, Deane and Gaudron JJ, held that the relevant advice fell within the ambit of the freedom. Three members of the majority, Brennan, Dawson and McHugh JJ, disagreed on the basis that immigration advice was not “political communication” for the purposes of the constitutional freedom. The fourth member of the majority, Toohey J, agreed with the minority view that the freedom had been burdened, but also held that the burden imposed was proportionate and therefore permissible (see [13.35]). APLA v Legal Services Commissioner (2005) 224 CLR 332 concerned the validity of New South Wales legislation which restricted advertising by lawyers in respect of personal injury services. The law was designed to reduce litigation, in light of spiralling insurance costs. In APLA, the High Court decided that such commercial advertising was not “political speech” under the Lange definition. However McHugh and Kirby JJ, in the minority, found that a relevant constitutional freedom of communication did apply in the case. They found that Chapter III of the Constitution gave rise to an implication that New South Wales could not legislate so as to reduce federal litigation (some of the litigation averted by the law would have been in the federal sphere), or to restrict a person’s capacity to receive offers of legal assistance.16 The law was invalid because, according to McHugh (at 367): the provision of legal advice and information concerning federal law should be seen as indispensable to the exercise of the judicial power of the Commonwealth.17

The majority in APLA found that Chapter III was not infringed by the law. However, the case did flag the possibility that some form of freedom of communication regarding judicial and legal matters may be independently protected under Chapter III. If so, it does not extend to freedom for lawyers to advertise their services. A further question is whether there is any limit to the type of conduct that can be characterised as “communication”. For instance, are both verbal and non-​verbal forms of communication protected? This issue was addressed in Levy v Victoria (1997) 189 CLR 579. Laurie Levy, a prominent anti-​duck-​shooting activist, was charged with violating Victorian regulations which prohibited people without valid game licences from entering hunting areas at certain times. Levy had violated the law as he wanted to communicate a political message through media broadcast of images of dead and injured birds he found in the hunting areas. Five members of the court (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ) stated that the freedom protected non-​ verbal forms of communication, including the images that Levy was hoping would be broadcast. For instance, McHugh J stated (at 622-​623): For the purpose of the Constitution, freedom of communication is not limited to verbal utterances. Signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it. 16 See McHugh J at 365-​366. 17 See also Kirby J at 440 and 444.

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In addition, McHugh J remarked (at 623) that the freedom protects not only “rational argument and peaceful conduct” but also “false, unreasoned and emotional communications”. Further, it was indicated that the protection extended to the conduct of entering the hunting area and gathering killed and injured birds (see, for instance, Brennan CJ at 595). In Coleman v Power, as noted above, a majority of the Court confirmed that insults could constitute political speech for the purposes of the implied freedom.18 The same was confirmed in Monis v The Queen (2013) 249 CLR 92. In Unions NSW v NSW (Unions NSW [No 1]) (2013) 252 CLR 530, the Court confirmed that “the free flow of communication between all interested persons is necessary to the maintenance of representative government”.19 The case concerned the validity of 2012 amendments to the Election Funding, Expenditures and Disclosures Act 1981 (NSW) (EFED Act). That Act imposes caps on political donations to as well as election expenditure by political parties. Those caps were not at issue in the case.20 Section 96D prohibited political donations by persons who are not on the New South Wales electoral role. Hence donors could not be corporations or trade unions, or foreigners (or children). Section 95G(6), known as an “aggregation” provision, changed the way that the cap on election spending was calculated. Absent that provision, the cap applies only to spending by a political party. Section 95G(6) factored into a political party’s cap any election spending by organisations affiliated with that party. Unions NSW [No 1] challenged both provisions. On the issue of whether donations and expenditure were a form of political communication, the High Court sidestepped the issue (at 554): [T]‌he question whether s 96D limits the freedom is simply resolved. That section effects a restriction upon the funds available to political parties and candidates to meet the costs of political communication by restricting the source of those funds. The public funding provided by the EFED Act is not equivalent to the amount which may be paid by way of electoral communication expenditure under the Act. It is not suggested that a party or candidate is likely to spend less than the maximum allowed. The party or the candidate will therefore need to fund the gap. It follows that the freedom is effectively burdened.

Keane J in a concurring opinion added (at 572): [T]‌he relevant question is whether the flow of pertinent information to and from them might be diminished by a restriction upon the making of political donations. How that question is to be answered does not depend on the proposition that a political donation is a form of political expression by the donor.

And at 574, Keane J concluded: Campaigning is an essential aspect of political communication. … No doubt some political communication occurs without the need for payment; but, equally, there can be no doubt

18 See, for example, McHugh J at 45-​46. 19 French CJ, Hayne, Crennan, Kiefel and Bell JJ at 551. 20 In any case, the High Court suggested that they are in fact constitutional and valid. See, for example, Keane J at 575-​576.

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that a restriction on the availability of donations will substantially diminish the extent of political communication.

Therefore, the High Court did not focus on whether money could equate with communication, but rather on the impact of the restriction of the flow of money on the flow of political communication. In McCloy v NSW (2015) 257 CLR 178, an unsuccessful challenge to other NSW laws regarding political donations (see [13.40]), the High Court majority confirmed that “the act of donation is not itself a political communication” (at 201). Nevertheless, restrictions on donations clearly burdened the freedom, as they had in Unions NSW [No 1]. An interesting argument with regard to the requisite “burden” arose in Brown v Tasmania (2017) 261 CLR 328, which involved a challenge to the application of a Tasmanian law which prohibited certain types of protest activity in the vicinity of business premises, in forestry areas (see [13.40]). In defence of the Workplaces (Protection from Protesters) Act 2014 (Tas) (“the Protesters Act”), Tasmania had argued that the relevant protests were only prohibited on land to which the protesters were already prohibited access under another unchallenged statute, the Forestry Management Act 2013 (Tas). If so, the burden on communication posed by the new law was slight or non-​existent, as the relevant communication was already significantly burdened. Kiefel CJ, Bell and Keane JJ (at 367) interpreted the two statutes as covering different areas of land, and thus rejected the premise of the argument. Gageler J (at 385-​386) rejected the relevance of Tasmania’s argument to the question of “burden”: The considerations identified in Lange which support the implication of freedom of political communication cannot justify confining its protection to political communications in which persons seeking to communicate have a legally enforceable right to engage. Political communication, on which electoral accountability for the exercise of legislative and executive power within our constitutionally prescribed system of representative and responsible government has always depended, has never in practice been so confined. Political communication has rather in practice occurred through a range of media which have varied through time and space according to their practical availability and technological feasibility. Political communication has also occurred within a system of laws which have imposed any number of constraints on the making and content of communications. Some of those constraints have been imposed as a means of rationing limited public resources which have from time to time provided platforms for political communication, ranging from physical spaces to the electromagnetic spectrum. Others have been imposed to protect compatible yet competing public interests, including but not limited to the protection of property, of safety, of reputation, of amenity and of privacy. Accepting that some other laws … might themselves need to be adjusted to accommodate to the implied freedom, the impact of any given law on political communication (and in turn on electoral accountability for the exercise of legislative and executive power) lies in the incremental effect of that law on the real-​world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice. Therein lies its relevant burden. Nothing therefore turns on whether or not a protester has a legally enforceable right to enter or remain on Crown land declared to be permanent timber production zone land.

Gordon J agreed that there was a burden on the implied freedom (at 455-​456). However, she went on to find that the burden was very small due to existing prohibitions on

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the targeted conduct (at 460). That finding influenced her subsequent inquiry into the appropriateness of the impugned law (see [13.40]). Nettle J stated, on the same point (at 409-​410): Laws which make it more difficult to engage in political communication, as for instance by imposing requirements of permission or the payment of fees, may in some circumstances impose a burden on the implied freedom of political communication. But the implied freedom bestows no affirmative right of individual expression. The law relating to the implied freedom of political communication thus knows nothing of the United States constitutional doctrine of “chilling effects” on free speech. Generally speaking, where the legislature has seen fit to prohibit certain forms of communication, and there is no challenge to that existing prohibition, the implied freedom is not to be regarded as restraining legislative power to do again what has already been done, by doubly prohibiting certain acts of communication or by imposing greater penalties than already apply.

He went on to find a burden as he interpreted the impugned provisions as imposing in their practical operation “a substantial restriction on otherwise lawful protest activities” (at 412-​413). Edelman J in dissent found that the Protesters Act imposed no burden on the freedom. He interpreted the statute as applying only to “independently unlawful activity” (at 472). In consequence (at 503): The Constitution does not create spheres of immunity from unlawful activity. Put another way, if there is no freedom then there cannot be any burden upon that freedom.

Edelman J went on to qualify his position (at 504-​506): There are three clarifications to the principle that the implied freedom of political communication does not apply to unlawful conduct. The first clarification applies where the conduct is unlawful due to a law which is, itself, invalid because it contravenes the implied freedom. No party or intervener in this case suggested that any provision of the Forest Management Act was contrary to the implied freedom. There is a second clarification to the principle that the implied freedom of political communication does not apply to unlawful conduct. The second clarification arises where the subsequent legislation which is challenged operates as part of a single scheme, together with the initial legislation which made the conduct unlawful. … No party, and no intervener, suggested that the Forest Management Act and the Protesters Act were to be considered as part of a single scheme with a wider common purpose in this sense. The third clarification to the principle that the implied freedom of political communication does not apply to unlawful conduct is the recognition in Lange that the common law, including common law rules that make acts unlawful, must develop consistently with the Constitution.

Edelman J’s judgment, if adopted by a majority, would have significant implications for the application of the freedom to acts of civil disobedience, which are often prohibited by law but which have been shown throughout history to be important means of highlighting political issues and forcing political change. His Honour was influenced by the characterisation as the freedom as a fetter on legislative power rather than as a personal right, an issue we discuss at [13.45]. So too were Nettle and Gordon JJ.

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Hence, a significant minority within the High Court seems to find that a burden on behaviour that is otherwise unlawful is either an irrelevant burden for the purposes of the freedom, or one that is so small that it can easily be justified under proceedings stages of the Lange test. Furthermore, it is not clear what view Kiefel CJ, Bell and Keane JJ took on the issue, as their interpretation of the relevant Act meant that they did not have to consider the matter in detail. Only Gageler J clearly rejected the relevance of the lawfulness of the burdened communication to the determination of a constitutionally relevant “burden”. The second stage of the Lange test: Limits to the implied freedom [13.35]  If in the first stage of the Lange test it is determined that a law burdens political communication then, by the second stage of that test, it must be determined whether that burden is a justifiable limit upon the freedom of political communication. The recognition in Lange that there were limits to the protection offered by the Constitution to political communication confirmed the position adopted by all members of the Court in earlier cases. For example, in ACTV, Mason CJ had stated (at 142) that: the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public.

In Lange the Court arrived at a unanimous formulation as to the question to be determined in the second stage of the test (at 567): is the law reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people?

In Coleman v Power (2004) 220 CLR 1, McHugh J proposed a minor rewording of this aspect of the Lange test (at 50): In the two-​limb test formulated in Lange, the adjectival phrase “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” does not merely qualify the expression “legitimate end”. It qualifies the compound conception of the fulfilment of such an end, and the emphasis of the qualification is on the term “fulfilment” rather than “end”. That is to say, it is the manner of achieving the end as much as the end itself that must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Of course, the end itself may be incompatible with the system of representative and responsible government. It will be incompatible, for example, if it is designed to undermine that system. No doubt the Court would have made the meaning of the second limb in Lange clearer if it had used the phrase “in a manner” instead of the phrase “the fulfilment of” in that limb. The second limb would then have read “is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?”. However, it is clear that the Court did intend the second limb to be read in a way that requires that both the end and the

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manner of its achievement be compatible with the system of representative and responsible government. [emphasis added]

The proposed rewording of the Lange test (in italics directly above) was supported by Gummow and Hayne JJ (at 77-​79) and Kirby J (at 82). Gleeson CJ also used the new wording in his application of this part of the test (at 31-​32). Therefore, a majority in Coleman rephrased the second stage of the Lange test. The rewording of the second stage of the Lange test in Coleman does not appear to have made a significant difference to the application of the test. This test can essentially be split into two questions. First, is the law designed to achieve an end which is compatible with the maintenance of representative and responsible government? The answer to this question involves consideration of the merits in the objectives of the government in limiting political communication. Second, are the means adopted appropriate and adapted to achieving that end? This involves a consideration of the proportionality or reasonableness of the methods by which the law seeks to achieve its ends. In the cases in which the implied freedom of political communication has been considered, a number of objectives have been identified as legitimate justifications for the impugned restrictions, namely: improving the quality of political debate, reducing the cost of election campaigning and reducing the dependence of political parties upon fund-​raising (ACTV); the protection of the authority of the Industrial Relations Commission (Nationwide News); quality control of migration advice (Cunliffe); public safety (Levy); and protection and facilitation of the voting system (Langer v Commonwealth (1996) 186 CLR 302, Mulholland v Australian Electoral Commission (2004) 220 CLR 181), the protection of public order (Coleman v Power (2004) 220 CLR 1), fulfilment of penal policies (Hogan v Hinch (2011) 243 CLR 506, Wotton v Queensland (2012) 246 CLR 1), preventing the obstruction of roads (Attorney-​General (SA) v City of Adelaide (2013) 249 CLR 1), guarding against corruption (McCloy v NSW (2015) 257 CLR 178) and protecting against harm and obstruction to businesses (Brown v Tasmania (2017) 261 CLR 328). In Theophanous, Stephens and Lange the objective of the burden that the law of defamation placed upon freedom of political communication was the protection of reputations from false and defamatory statements. Indeed, in almost all cases a majority has accepted that the ends of the impugned law are permissible, whereas greater controversy has arisen over the means used to achieve an end. However, as seen at [13.35], Monis v The Queen manifested disagreement over the legitimacy of some of the impugned law’s ends. In Unions NSW [No 1], a lack of connection between the laws and the alleged objectives led to the striking down of the laws. The cases on political communication have largely turned on the second stage of the Lange test. We explain the application of the limits to the freedom in key cases, assessed chronologically. In ACTV, crucial issues were whether the allocation of a maximum of 10 per cent of available free political broadcasting time to new and independent candidates and the exclusion of third-​party advertising (that is, advertising by unions, corporations and so on) from electronic media were reasonably appropriate and adapted to the legislative objectives of improving the quality of political debate and reducing party

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reliance on external funding. In defending these arrangements, the government argued that it was not possible to achieve absolute equality in the allocation of free time and noted that new and independent candidates and third parties were free to use all other modes of communication and could receive coverage in news broadcasts and in radio talkback. In rejecting these arguments, Mason CJ stated (at 146): The replacement regime, which rests substantially on the provisions relating to the grant of free time, is weighed in favour of the established political parties represented in the legislature immediately before the election and the candidates of those parties; it discriminates against new and independent candidates. By limiting their access to a maximum of 10 per cent of the free time available for allocation, Pt IIID denies them meaningful access on a non-​ discriminatory basis. As for persons, bodies and groups who are not candidates, they are excluded from radio and television broadcasting during election periods. The consequence is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction. The replacement regime, though it reduces the expenses of political campaigning and the risks of trivialisation of political debate, does not introduce a “level playing field”. It is discriminatory in the respects already mentioned. In this respect I do not accept that, because absolute equality in the sharing of free time is unattainable, the inequalities inherent in the regime introduced by Pt IIID are justified or legitimate.

In contrast, Brennan J, in his minority opinion in favour of the validity of the legislation, drew attention to the government’s assessment that electronic advertising, while powerful, was “directed more to the emotions than the intellect” (at 160) and contributed little by way of valuable information. He then stated (at 161): No doubt it is true to say that the formation of political judgment is not solely an intellectual exercise. Aspirations and ideals are the stuff of statesmanship. But the articulation of aspirations and ideals and the conveying of information can be distinguished from many forms of political advertising. It was open to the Parliament to make a low assessment of the contribution made by electronic advertising to the formation of political judgments. It was open to the Parliament to conclude, as the experience of the majority of liberal democracies has demonstrated, that representative government can survive and flourish without paid political advertising on the electronic media during election periods. The restrictions imposed by s 95B are comfortably proportionate to the important objects which it seeks to obtain. The obtaining of those objects would go far to ensuring an open and equal democracy. The openness of political discussion and the equality of the participants in the democratic process makes governments responsive to the popular will. The restrictions on advertising do little to inhibit the democratic process.

Further, Brennan J emphasised the continued availability of alternative modes of communication, including written communications, personal contact through public meetings and door knocking. Coleman v Power also generated divisions regarding application of the proportionality test in determining the constitutional validity of s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). That provision prohibited the use of, inter alia, “insulting words to any person”. As noted at [13.30], the relevant insult was a loud imputation in a public place that a certain police officer was corrupt, within earshot of that officer. In the result, Gummow, Hayne and Kirby JJ read down s 7(1)(d) so that it only applies where the words are so hurtful that they are either intended to, or reasonably likely “to

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provoke unlawful physical retaliation” (Gummow and Hayne JJ at 76-​77, Kirby J at 87). That interpretation meant that the section fell within the limits of the constitutional freedom, as the law was reasonably appropriate and adapted to preserving the peace and public order. These Judges indicated that a broader interpretation of s 7(1)(d), extending it so far as to include insulting words that hurt feelings but are unlikely to generate violence, would have breached the constitutional freedom. Their Honours’ limited interpretation of s 7(1)(d) meant that Coleman’s conviction under s 7(1)(d) was set aside, as his words were deemed to fall outside the preferred definition of “insulting words” in the Act. However, the original arrest was valid, as these Judges found that Power could have reasonably suspected Coleman of having committed the “read-​down” offence under s 7(1)(d). McHugh J refused to read the provision down so as to only apply to conduct likely to generate unlawful physical reactions. In those circumstances, he found that the unqualified prohibition on “insulting words” was not appropriate and adapted to a legitimate end, as it went too far in purportedly protecting public order or preventing intimidation in public debate. He therefore found that the word “insulting” had to be excised from the text of the law in order to preserve its constitutional validity. Hence, the conviction was set aside. Furthermore, Coleman’s arrest was also unlawful in McHugh J’s view, as Power could not have reasonably suspected Coleman of any offence, given the severance of the word “insulting” from s 7(1)(d). Gleeson CJ, Callinan and Heydon JJ agreed with McHugh J’s broad interpretation of the Queensland statute; that is s 7(1)(d) prohibited insulting words, even if those words fell short of words likely to cause a breach of the peace. However, unlike McHugh J, they found that the law so interpreted was nevertheless proportionate and did not contravene the Constitution. Therefore, in the view of these Judges, both the arrest and the conviction were upheld. For example, Heydon J stated in the minority on this issue (at 122-​123): The goals of s 7(1)(d) are directed to “the preservation of an ordered and democratic society” and “the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society”. Insulting words are inconsistent with that society and those claims because they are inconsistent with civilised standards.

In contrast, Kirby J in the majority stated (at 91): If “insulting” were given the interpretation most clearly favoured in this appeal by Gleeson CJ and Heydon J [and Callinan J], the potential operation on political discourse of an unqualified offence of expressing insulting language in any public place would be intolerably over-​wide. It would be difficult or impossible to characterise such a law as one achieving its ends in a manner that is consistent with the system of representative government envisioned by the Constitution. Reading the description of civilised interchange about governmental and political matters in the reasons of Heydon J, I had difficulty in recognising the Australian political system as I know it. His Honour’s chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action. One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and

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emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas.

In Hogan v Hinch (2011) 243 CLR 506, the Court found that relevant State law, which authorised suppression orders which prohibited the revelation of certain details of sex offenders released into the community, was valid. The relevant order prohibited revelations of an offender’s identity and whereabouts, to prevent vigilantism. French CJ explained at 544: Properly construed, the [relevant] section is, in my opinion, reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution. Its objects are the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-​offending after they have completed their sentences.

In Wotton v Queensland (2012) 246 CLR 1, French CJ, Gummow, Hayne, Crennan and Bell JJ stated (at 16): In answering the second Lange question, there is a distinction, recently affirmed in Hogan v Hinch,21 between laws which, as they arise in the present case, incidentally restrict political communication, and laws which prohibit or regulate communications which are inherently political or a necessary ingredient of political communication. The burden upon communication is more readily seen to satisfy the second Lange question if the law is of the former rather than the latter description.

Of course, a law which “directly” burdens political communication will have a more severe impact on political communication than a law which affects it only incidentally. Therefore, it follows logically that the former law will be more difficult to justify within the proportionality test than the latter law. Beyond that obvious point, it seems that the distinction between direct and incidental burdens is not especially helpful or enlightening. The High Court essenssstially agreed in Tajjour v NSW (2014) 254 CLR 508. The relevant “law” challenged in Wotton was the Corrective Services Act 2006 (Qld), which authorised the imposition of parole conditions to preserve community safety and to facilitate monitoring, rehabilitation and humane treatment of parolees. Ultimately, the Court found that the Queensland law was valid due to the legitimacy of its means and ends. It may also be noted that the law only “incidentally” imposed a burden on free political communication. It is not directly focused on political issues, though an incidental burden could arise if parole conditions were imposed, as occurred in this case (see [13.30]), which hindered political communications. The Court did not go on to decide whether the conditions themselves were invalid. In any such challenge,22 the plaintiff would have to proceed at first instance in a judicial review action before the Supreme Court of Queensland, perhaps claiming that the conditions were ultra vires as they went beyond what was authorised by the Queensland Act. In any such action, the Supreme Court would have to read the Act so that it conformed to the constitutional freedom.

21

See Hogan v Hinch (2011) 243 CLR 506 at 555-​556.

22 We are unaware of any subsequent legal action of this sort by Lex Wotton.

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Attorney-​General (SA) v City of Adelaide (2013) 249 CLR 1 concerned a challenge by a number of “street preachers” to a by-​law, which provided that they needed permits to preach, canvass or distribute printed matter in Rundle Mall in the City of Adelaide. They claimed, inter alia, that the by-​law breached the implied freedom of political communication. The by-​law was, however, found to be valid as it adopted reasonable means to prevent the obstruction of roads.23 This decision confirmed that local councils may impose significant restrictions on speech within public places, even pedestrianised streets which are quite different from other “roads”, despite the existence of the constitutional freedom. Monis v The Queen (2013) 249 CLR 92 generated an interesting split in the High Court on the second part of the Lange test. The case concerned a challenge to the validity of criminal charges laid against the two appellants. They had written letters to the families of Australian soldiers who had been killed in Afghanistan, viciously criticising the role that the deceased soldiers had played in that country. For example, one communication called one of the deceased a murderer and compared him to a pig. They were charged under s 471.12 of the Criminal Code 1995 (Cth) for using the postal service in a way that a reasonable person would find to be “offensive”. They challenged the validity of s 471.12. The six-​person High Court split 3:3 on the validity of the provision. The provision was upheld as s 23(2)(a) of the Judiciary Act 1903 (Cth) dictated that the lower court judgment against the appellants stood. French CJ, Hayne and Heydon JJ found the law invalid as in their view it served no legitimate end in terms of the Lange test. Here, the decision of Hayne J is most instructive on the issue. Hayne J remarked upon the previous propensity of the Court to accept the ends of a law as legitimate in stating (at 149): These [previous] examples must not be taken as suggesting that any end conducive to the public interest will do.

Hayne J proceeded to examine the validity of the ends proposed by the respondent for the law. First, he felt the law could not be justified by promoting the “civility of discourse” due to the precedent in Coleman v Power (at 164). Second, the law did not protect the “integrity of the post” (at 166): Concern for the “integrity of the post” must focus upon its safety and reliability as a means of carriage for postal articles. The nature or content of the articles a postal service carries has a connection with that concern only if a postal article (or its contents) might damage or destroy another article or delay its delivery. But apart from the case where something written on the outside of a postal article might cause a delay in delivery of that or other articles –​as might be the case if a package was said to contain a dangerous substance –​ what is written in or on any postal article can have no effect on the reliability or safety of the postal system. If some extended meaning were to be given to the “integrity of the post” which would direct attention to the content of the articles carried, the use of the expression “integrity of the post” would depend upon a premise that the post should be used for only some kinds of messages or communications. That is, the “integrity of the post” would be defined in a way that directs attention to the nature or content of what is communicated by post

23 See, for example, Hayne J at 64, Crennan and Kiefel JJ at 86.

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and requires that those communications meet some standard (whether described as a standard of decency, politeness, integrity or otherwise). … There is no foundation for that proposition. It is bare assertion.

At 167, Hayne J dealt with another submission regarding the integrity of the post: The assertion was that, if really offensive communications can be made by post, recipients would be “fearful” (presumably fearful of receiving a communication that would offend them). … The Commonwealth identified [the] consequences as persons being “discouraged from willing receipt of mail” with a consequent “adverse effect upon the willingness of senders … to use postal services as a means of communication”. No basis for this assertion was provided. It is not an assertion that is self-​evidently likely to be true.

Hayne J also rejected the idea that the law prevented violence, given that the law focused on private communications, which are much less likely to cause violence than public communications, such as, for example, the relevant utterance in Coleman v Power. At 169: [N]‌either an intention to provoke violence nor a likelihood of violent response forms any part of the offence created by s 471.12. Typically, if offence is felt, it will be experienced in private. And seldom if ever will the user of the postal or similar service whose conduct is offensive be close at hand when a person who is offended experiences the feelings described. Indeed, it may well be that the person who experiences those feelings does not know and cannot readily find the person who used the postal or similar service.

Finally, Hayne J addressed whether the law was justified due to providing protection for the recipients of mail. Regarding protecting their privacy, he stated (at 170-​171): Delivery of mail, whether at home or at work, or by leaving an article in a post office box, is no intrusion upon the privacy of the recipient. It is an unremarkable feature of everyday life tolerated, if not always welcomed, by all. What was described as an “offensive” intrusion was the disturbance to the equanimity of the recipient that might be caused by the offensive character of what was received. But that disturbance (which might occur anywhere) is in no sense any intrusion upon the recipient’s privacy.

On the issue of whether the law protected against the “infliction of physical or psychiatric injury” (at 171), Hayne J drew a comparison with the civil wrong of defamation. At 171-​172: If a statement is defamatory it may very well move reasonable persons to significant anger, significant resentment, outrage, disgust or hatred. Indeed that may be the strength of reaction which the person making such a communication in relation to government or political matters wants and intends to cause. And if the sender of the communication acted reasonably, Lange may provide the sender with a defence to an action for defamation. But s 471.12 would make the sender’s conduct a crime.

At 172-​173: To hold that a person publishing defamatory matter could be guilty of an offence under s 471.12 but have a defence to an action for defamation is not and cannot be right. The resulting incoherence in the law demonstrates either that the object or end pursued by s 471.12 is not legitimate, or that the section is not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government and the freedom of communication that is its indispensable incident.

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The better view is that the object or end pursued by s 471.12 is not a legitimate object or end.

In light of the above analysis, Hayne J concluded (at 174): It follows from Lange and Coleman v Power that s 471.12 is not directed to a legitimate object or end. The elimination of communications giving offence, even serious offence, without more is not a legitimate object or end. Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. Neither the giving nor the consequent taking of offence can be eliminated without radically altering the way in which political debate and discourse is and must be continued if “the people” referred to in ss 7 and 24 of the Constitution are to play their proper part in the constitutionally prescribed system of government. On its own, regulating the giving of offence is not a legitimate object or end. And for the reasons that have been given, s 471.12 pursues no other object or end.

Crennan, Kiefel and Bell JJ delivered a joint judgment, and comprised the statutory majority in this case. They found that the law served the legitimate end of protecting the privacy of the recipient of offensive mail. At 205: Section 471.12 seeks to deter a particular use of a postal service. It may be taken to recognise a citizen’s desire to be free, if not the expectation that they will be free, from the intrusion into their personal domain of unsolicited material which is seriously offensive.

They referred to precedents in this regard (at 205-​206): In the eighteenth century, postal services were made a sovereign function in many nations, because they were considered a necessity. It was not possible to have government without communication. This underscores the importance of the implied freedom in the context of the regulation of postal services. Yet around the same time, an English judge made the social observation that “[e]‌very man’s house is his castle” when discussing the conditions for the execution of search warrants. That a warrant to search premises might not identify the object of the search was described as “totally subversive of the liberty of the subject”. Such a requirement is commonplace in Australian statutes today. In Rowan v United States Post Office Department 397 US 728 at 738 (1970), Burger CJ referred to the continuing “vitality” of the concept of the home as castle when considering whether there was a “right to communicate offensively with another”. In that case, it was observed that people are often “captives” outside the sanctuary of the home, but that this does not mean that they must be captives everywhere. It has been said that “a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions”. More recently, in R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185, it was said, in connection with a possible television broadcast of images of aborted foetuses, that members of the public may be outraged to be confronted, in the privacy of their homes, with gratuitously offensive material. A citizen “has a right not to be shocked or affronted by inappropriate material transmitted into the privacy of his home”.

After this survey of precedents they concluded (at 206-​207): The Code, by s 471.12, seeks to protect people from the intrusion of offensive material into their personal domain. … It may do so according to Lange, and relevantly, so long as it does not go too far.

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As they found the ends of the law to be legitimate, these Judges had to consider whether the law used reasonable means to achieve those ends. They concluded (at 216): It has earlier been observed that the effect of s 471.12 upon political communication is incidental. Further, communications of the kind which are prohibited by s 471.12 are limited to those which are of a seriously offensive nature.24 This does not suggest an effect upon the freedom which could be regarded as extensive. It does not prevent communications of a political nature which do not convey such offensive matter. Section 471.12 does not impermissibly burden the implied freedom. The Lange test is satisfied. Section 471.12 is valid.

In Monis, the female judges, who formed the statutory majority, were prepared to recognise the letters as an extreme invasion of the private sphere of the recipients. The male judges contrasted the law with that which was read down in Coleman, and found that the Monis law could not be saved as, unlike the read-​down Coleman law, it did not protect public order. The private nature of the harm, for Crennan J et al, was crucial in their finding of validity. It was also crucial in the finding of invalidity by Hayne J et al. In Unions NSW [No 1], s 96D of the EFED Act prohibited donations to New South Wales political parties by non-​ voters. Section 95G(6) of the EFED Act imposed restrictions on election spending by organisations that were affiliated with political parties, by aggregating them within the relevant party’s election expenditure cap. Both provisions failed, as the Court found that they pursued no conceivable legitimate end. Certainly, the Court agreed that caps on donations and spending, provided generally by the EFED and which were not at issue in this case, reduced “the possibility of undue or corrupt influence”.25 However, the selective impact of s 96D could not be explained. At 558-​559 the Court stated: In argument, the identification by the defendant of a relevant purpose for the nature and scope of s 96D’s prohibition proved elusive. The defendant pointed to the general purposes of the EFED Act, but was not able to explain how the prohibitions effected by s 96D were connected to them, let alone how the prohibitions could be said to further them. The defendant could point only to corporations as a justifiable target of s 96D. In its defence it pleads that, by reason of their character and size, corporations are more likely to represent a threat to integrity. It alleges that corporations are more likely to pursue self-​interest and that their boards are obliged to act in that way. Further, a corporation may do so in a manner inconsistent with the views of its members. But clearly the purpose of s 96D cannot lie in regulating corporate activities. The terms of s 96D are not directed to corporations alone. It is not evident, even by a process approaching speculation, what s 96D seeks to achieve by effectively preventing all persons not enrolled as electors, and all corporations and other entities, from making political donations. It might be assumed that many of them will have

24 Their Honours had earlier read down the provision in this regard, similar to some of the majority judges in Coleman v Power. 25 French CJ, Hayne, Crennan, Kiefel and Bell JJ at 557.

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a legitimate interest in political matters … Why then was it considered necessary to prohibit donations from these sources, but not from electors? More importantly, how does it further the anti-​corruption purposes of the EFED Act?

Keane J, in concurrence, added (at 575): [T]‌here is no reason to think that concerns as to the purchase of secret or undue influence by donations vary depending on whether the donor is an enrolled voter or not.

Keane J added another concern, the discriminatory nature of the provision, which is relevant to the means rather than the ends of the law. At 578: In contrast, s 96D proscribes donations from certain sources but not others. In proscribing some sources of funding for political communication, it thereby favours other sources in terms of the flow of political communication. This discrimination is apt to distort the flow of political communication within the federation.

Regarding s 95G(6), it may be noted that that provision particularly affected industrial organisations, many of which are historically affiliated with the Australian Labor Party. Again, the Court could discern no legitimate purpose for the rule. It did not accept that it rendered the caps on election expenditure by political parties effective, as affiliated organisations could not be simply equated with the political party they were affiliated with. They are not the same organisation nor do they have exactly the same objectives.26 Again, there was no evidence to support a general contention that the aggregation provision somehow reduced corruption.27 Keane J pointed out (at 585) the “chilling effect” on incurring election expenditure of s 95G(6). It might be easy to monitor whether a spending cap is reached if the only entity being monitored is the political party itself: it is not so easy when separate entities are involved, who may only discover the extent of each other’s spending or planned spending after the fact. Finally, Keane J noted the discriminatory impact of the law, which had no justification (at 586): The effect of sub-​ss (6) and (7) of s 95G is that certain sources of political communication are treated differently from others. For example, third-​party campaigners are not subject to the aggregation provisions. The effect of this differential treatment is to distort the free flow of political communication by favouring entities, such as third-​party campaigners, who may support a political party, but whose ties are not such as to make them affiliates under the rules of that party even though they may promulgate precisely the same political messages. Political communication generated by electoral communication expenditure by organisations affiliated with a party is disfavoured relative to political communication by entities which, though actively supportive of, and indeed entirely ad idem with, a given party, are not affiliated with it. To discriminate between sources of political communication in this way … is to distort the flow of political communication.

Therefore, the High Court unanimously found both impugned laws in Unions NSW [No 1], to be invalid.

26 See French CJ, Hayne, Crennan, Kiefel and Bell JJ at 560-​561. 27 See French CJ, Hayne, Crennan, Kiefel and Bell JJ at 561.

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Revisiting the second stage of Lange; the cases of McCloy and Brown [13.40]  Majorities in the two most recent High Court cases on the implied freedom, at the time of writing, both used a new methodology with regard to the second stage of the Lange test. McCloy v NSW (2015) 257 CLR 178 concerned another challenge to NSW laws regarding political donations. Section 95A(1) in Div 2A of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) imposed caps on political donations of $50,000 in a financial year. Section 96GA in Div 4A imposed a total ban on political donations from property developers. All impugned provisions were found to be valid, though Nettle J dissented regarding the ban on property developers. The case is particularly important given the adoption by a majority (French CJ, Kiefel, Bell and Keane JJ) of a structured approach to the proportionality test. They applied the test as follows. The first stage was the same as the first question from Lange –​an inquiry into whether an impugned law burdened the freedom of political communication. Regarding the second stage of the Lange test, it was split into four distinct steps, all described at 193-​195. The first step was referred to as “compatibility testing”, and entailed an inquiry into whether an impugned law’s purpose was compatible with the constitutionally prescribed system of representative government. If the law was incompatible, it was invalid. As noted, cases have not tended to turn on this issue. If the objective of the challenged law was compatible, the next steps focused on the suitability, necessity and balance of the law. In particular, was the law was “suitable” in terms of having a rational connection to its purpose? Was it necessary, or were there “obvious and compelling” alternatives which constituted “reasonably practicable means of achieving the same purpose which [had] a less restrictive effect on the freedom”. Regarding necessity, it is important to emphasise that the alternative means must be obvious. The analytical step does not entail a broad-​ranging judicial inquiry into all possible alternatives in order to possibly uncover a “better” alternative. The final inquiry was into the adequacy of the balance in the law, which was explained as (at 218-​219): The inquiry must be whether the burden is undue, not only by reference to the extent of the effect on the freedom, but also having regard to the public importance of the purpose sought to be achieved. This is the balance which necessarily, and logically, inheres in the Lange test. It compares the positive effect of realizing the law’s proper purpose with the negative effect of the limits on constitutional rights and freedoms. … Logically, the greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate.

At 219-​220, the majority concede that: The balance struck between the importance of the purpose and the importance of the purpose and the extent of the restriction on the freedom necessarily involves a value judgment. The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-​maker.

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The majority justified this structured proportionality approach (at 215-​216): Proportionality provides a uniform analytical framework for evaluating legislation which effects a restriction on a right or freedom. It is not suggested that it is the only criterion by which legislation that restricts a freedom can be tested. It has the advantage of transparency. So far as concerns the courts, the question whether a legislative measure which restricts the freedom can be said to be justified is not to be approached as a matter of impression. It should not be pronounced as a conclusion, absent reasoning. It is not to be inferred that, in stating the test in Lange, it was intended that the test was to be answered by reference to a value judgment as to what is reasonable, made without reference to any generally applicable criteria. To the contrary, as earlier explained, Lange identifies the structure for and, to an extent, the content of proportionality testing. Accepting that value judgments cannot be avoided altogether, their subjectivity is lessened and a more objective analysis encouraged by this process.

Hence, the majority justifies its approach by the fact that it adds much-​needed transparency and guidance on the application of the second stage of the Lange test, which they concede to otherwise be a largely subjective exercise. Their concession on the value judgments which are unavoidable in the Lange test is candid and refreshing. In applying the structured proportionality test to the case at hand, the majority found that the objective of both measures (caps and bans on donations from property developers) was to lessen the opportunity for corruption of the political process, a purpose which satisfied the compatibility test. Furthermore, both measures were suitable, as they were found to be rationally connected to their objectives. For example, regarding property developers, it was noted that their business was extraordinarily dependent upon the decisions of governments regarding zoning and planning permits (at 208).28 No obvious alternatives were identified, so the tests of necessity were satisfied. For example, the plaintiffs had argued that caps on donations could be limited to those “intended as corrupting” (at 211). The majority explained why such an alternative was not compelling or obvious (at 211): Limiting restrictions on political donations to acts of bribery would undoubtedly reduce the efficacy of the statutory scheme. The difficulties inherent in detecting and proving bribery in the context of political donations do not suggest that it can be considered a reasonable alternative to capping. Further, it is not the subjective intention of the donor so much as the objective tendency of large payments of money to corrupt both government and the electoral system which is the justification for the restriction.

On the issue of balance, the majority concluded (at 220-​221): In this case, the third stage of the test presents no difficulty for the validity of the impugned provisions. The provisions do not affect the ability of any person to communicate with another about matters of politics and government nor to seek access to or to influence politicians in ways other than those involving the payment of substantial sums of money. The effect on the freedom is indirect. By reducing the funds available to election campaigns there may be some restriction on communication by political parties and candidates to

28 Strangely, the majority included this point in their discussion of compatibility rather than their discussion of suitability. The latter, it is submitted, is the more suitable place to discuss such a matter.

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the public. On the other hand, the public interest in removing the risk and perception of corruption is evident. These are provisions which support and enhance equality of access to government, and the system of representative government which the freedom protects. The restriction on the freedom is more than balanced by the benefits sought to be achieved.

Gageler J agreed with the majority on the outcome, but by applying the standard Lange test, rather than “through the template of standardised proportionality analysis” (at 222). He expressed reservations about the majority approach. First, he was not convinced structured proportionality would always be an appropriate test: he did not believe that “one size fits all” (at 235). Second, he found that the reference to balancing was controversial and possibly too abstract (at 236-237). Gageler J went on to split the second stage of the Lange test into two. At 231-232: The first stage is concerned to identify the end –​the object or purpose –​of the law. To be legitimate, a legislative end must itself be compatible with the system of representative and responsible government established by the Constitution. The first stage requires that the imposition of the restriction on political communication is explained by the law’s pursuit of an end which is consistent with preservation of the integrity of the system of representative and responsible government. Explanation precedes justification. [emphasis added] The second stage is concerned to examine whether the law imposing the restriction on political communication pursues that end in a manner which is consistent with preservation of the integrity of the system of representative and responsible government. The second stage requires that the restriction on political communication that is imposed by the law be justified by the law’s reasonable pursuit of the identified legitimate end [emphasis added].

On the validity of the challenged measures, Gageler J explained regarding the caps on donations (at [184]): the elimination of preferential access to government which results from the making of political donations is a legitimate legislative objective. More than that, the elimination of that form of influence on government is properly characterised as a compelling legislative objective.

Regarding the ban on donations from property developers, Gageler J explained (at 250): What it is that relevantly differentiates corporate property developers from the mainstream of political donors is the nature of the business in which they are engaged. By definition, it is a profit-​making business which is dependent on the exercise of statutory discretions by public officials. It is the nature of their business that gives corporate property developers a particular incentive to exploit such avenues of influence as are available to them, irrespective of how limited those avenues of influence might be.

Gordon J, like Gageler J, found no reason to depart from the standard Lange analysis of proportionality, rather than use the majority methodology. At 282: The questions stated for the opinion of the Court in this case are able to be answered by reference to the known questions and tools. This is not one of those cases where the Court is required to address a question which cannot be answered applying accepted methods of reasoning and analysis. The method or structure of reasoning to which the plurality refers does not yield in this case an answer any different from that reached by the accepted modes of reasoning. It does not avoid the judgments that the two questions require and, as always, it is necessary to explain how and why those judgments are formed.

Her Honour agreed with Gageler J and the plurality that all impugned provisions were valid.

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Nettle J dissented regarding the ban on donations from property developers. He did not follow the majority methodology, and stated (at 259): it should now be accepted that the standard of appropriateness and adaptedness does vary according to the nature and extent of the burden. A law which imposes a discriminatory burden will require a strong justification. And the availability of alternative means is a relevant but not determinative consideration. For present purposes, however, it is unnecessary to delve into strict proportionality.

His Honour concluded that those provisions were invalid (at 272): the discriminatory nature of the prohibition is objectionable. Although there might be a solid basis for inferring that property developers are prone to engage in corruption and undue influence, it would be unrealistic to suppose that there is not also a broad spread of political donors apart from property developers and other prohibited political donors who make political donations with a view to obtaining political favours, exerting political influence or otherwise advancing their self-​interest. Hence, by focussing on property developers, the prohibited donor provisions arbitrarily discriminate against property developers in a manner which deprives them as a section of the electorate of an ability enjoyed by other sections of the electorate of making political donations and so participating in the political system.

Thus, the majority in McCloy adopted a structured methodology in applying the second stage of Lange. This was not a rejection of Lange, but rather a way of applying it. That methodology was not applied by the minority. A similar split, but with different judges after the retirement of French CJ, arose in the following case of Brown. Brown v Tasmania (2017) 261 CLR 328 concerned a challenge to Tasmanian legislation, the Workplaces (Protection from Protesters) Act 2014 (Tas) (“the Protesters Act”), which was enacted for the purported purpose of protecting businesses and business assets from certain activities by protesters. “Business premises” for the purposes of the Protesters Act included “forestry land” where “forest operations were being carried out” (ss 3 and 5). A “protester” was a person carrying out “protest activity” designed to convey support for a “particular political, environmental, social, cultural or economic issue”. Section 6 prescribed the relevant offences by prohibiting protesters from intentionally or recklessly performing actions which prevented, hindered or obstructed business activity. Section 6 did not give rise to an offence unless a person was acting in breach of a direction given by a police officer under s 11. Under s 11, a police officer could direct a person to leave business premises or a business access area if they reasonably believed the person had committed, was committing or was about to commit a section 6 offence. Under s 11(7) and (8), such orders could be delivered to groups of protesters. The relevant “business area” in Brown was “an area of land on which forestry operations are being carried out” (s 3). A “business access area” was an area outside the business premises “as is reasonably necessary to enable access to an entrance to, or an exit from, the business premises” (s 3). Under s 11(6), a relevant police direction could include a requirement that a person not commit a s 6 offence for a period of three months. Under s 8, a person committed an offence if they remained in a business access area after being directed to leave either that area or the relevant business premises by a police officer (s 8(1)(a)), and if they returned to that area within four days of having been directed to leave by a police officer (s 8(1)(b)).

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The penalties for breach included fines of up to $10,000 and terms of imprisonment for as long as 12 months. Of relevance in this case also was the Forestry Management Act 2013 (Tas) (FMA), which provided police officers as well as Forestry Tasmania with powers to ensure that forestry management and operations were not impeded by any person. The constitutionality of the FMA was not challenged. The two plaintiffs were arrested under s 8(1) of the Protesters Act after protesting in a forestry area to raise awareness against logging, though their charges were later withdrawn. They nevertheless challenged the Act as it applied to forestry land and protests concerning forestry operations. The majority found that the legislation in that respect breached the implied freedom of political communication. In the majority, Kiefel, Bell and Keane JJ were concerned that the definition of “business premises” with respect to forestry land was very vague: “it will often not be possible to determine the boundaries of ‘business premises’ or a ‘business access area’ “ (at 354). This was because forestry operations moved progressively through a forest and were often not on distinct premises or even enclosed (at 354). While the FMA made provision for the identification of relevant areas for the purposes of that Act by way of signs and physical barriers, the Protesters Act prescribed no such thing. These Judges found that the area covered by the Protesters Act extended beyond that covered by the FMA (at 367). Furthermore, these three Judges noted the importance of the power of police direction in the scheme (at 356): In its practical operation, the Protesters Act may bring protest activity to an end upon the mistaken, albeit reasonable, belief of a police officer, unless the protesters are disposed to resist a direction, and thereby risk a breach of the peace, in order to test the issue.

On the facts of the case, it was clear that the police had in fact found it difficult to determine the relevant area of forestry land to which the Protesters Act applied. Indeed, this was largely why the charges were withdrawn, as it was not clear that the plaintiffs had been in a relevant business premise or business access area. In summarising the impact of the provisions, their Honours concluded (at 358-​359):  In summary, an exercise of the powers given under [the Protesters Act] … are likely to have significant deterrent effects on protesters. Their effects will extend to protesters undertaking protest activities of a kind and in a place which would not affect forest operations and whose presence would not be excluded by the FMA. Their effects will extend beyond individual protesters to entire groups. Protesters of this kind will be deterred from being present in the vicinity of forest operations for fear that they may be subject to a direction to leave, with all the consequences which flow from such a direction. They will be deterred from protesting even though the direction may be based upon an erroneous view of where they are situated. The combined effect of the provisions referred to above is immediate. It can bring the protest of an entire group of persons to a halt and its effect will extend over time. Protesters will be deterred from returning to areas around forest operations for days and even months. During this time the operations about which they seek to protest will continue but their voices will not be heard.

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The possibility that a protester might be liable to a substantial penalty should not be overlooked, but it may not loom so largely as a deterrent. This may be because no charge under the Protesters Act has been successfully prosecuted. There has been no successful prosecution for the reason that mistakes have been made about whether the Protesters Act applied. However, from the point of view of protesters, there is nothing to suggest that mistakes will not continue to be made. That circumstance will operate as a significant deterrent.

Their Honours then went on to apply the McCloy methodology to conclude that implied freedom was breached. On compatibility, they found that the purpose of the law, which was to protect businesses from damage and disruption, was compatible with the freedom (at 363). On suitability, the joint judges found that certain provisions failed the test, namely the four-​day exclusion of persons under s 8(1)(b) from a business access zone upon being given a s 11 direction by a police officer, as well as the powers of police to direct whole groups to leave a relevant area under s 11(7) and (8). Other provisions failed the test of necessity (at 373): The concern of the Court is the extent to which the Protesters Act restricts protests more generally. It is likely to deter protest of all kinds and that is too high a cost to the freedom given the limited purpose of the Protesters Act [which is only to prevent certain protests]. The purpose of the Protesters Act is not significantly different from that of the FMA. In the measures it adopts to deter protesters the Protesters Act goes far beyond those reasonably necessary for its purpose. The validity of the FMA’s measures was not questioned in these proceedings. However, it is sufficient to observe that those measures, by contrast, are substantially less restrictive of the freedom.

Nettle J joined with the joint judges in endorsing the McCloy methodology. Hence, he replaced French CJ from the original McCloy majority. First, he agreed with the joint judges that the law’s purpose was compatible with the freedom (at 414-​415). Having approved of the law’s ends, he turned to the means (at 416): Consideration of legislative means is better understood through a process of analysis that is not binary. Consequently, I agree with Kiefel CJ, Bell and Keane JJ that the stages of analysis proposed in McCloy should be restated in the terms that their Honours propose.

While Nettle J found that the law satisfied the tests of suitability and necessity, it failed the final McCloy step of being adequate in its balance in relying too much on the proper exercise of discretion by police officers (at 425). Gageler J joined the majority in striking down the Protesters Act in its application to forestry land. He did not follow the McCloy methodology, stating (at 376) that it was a “tool”, and that he did not consider “it to be a particularly useful tool”. At 377, he added that Australian constitutional analysis could not “be reduced to the application of some pre-​determined all-​encompassing algorithm”. Gageler J instead used his framework of “explanation” and “justification” that he had outlined in McCloy. On the explanation of the law, which correlates with its purpose, Gageler J found that the purpose of the law was compatible with the freedom, though he placed importance on the purpose being the prevention of serious interference with business rather than interference per se (at 392).

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In going on to find that the law was unjustified, he found it both went too far, and that it did not go far enough. Its “underinclusiveness” for Gageler J was “stark” (at 394) in that it targeted only protesters rather than others who might seriously interfere with the conduct of business. At 395: Underinclusiveness need not be fatal to the validity of a law which burdens political communication. The upholding in McCloy of the prohibition on political donations by property developers illustrates that the implied freedom does not operate to produce the result that a legislature addressing a mischief needs always to find a solution to the whole of that mischief. Underinclusiveness which results in a legislative burden falling unevenly on political communication is nevertheless a factor which weighs against the conclusion that a law is reasonably necessary to achieve its postulated purpose, for the same reason that discrimination against political communication warrants heightened scrutiny.

The law’s underinclusiveness was exacerbated by its overreach in terms of breadth, and the severity of consequences for protesters. As with the joint judges, he found that too many criminal consequences flowed from police directions which might be wrong. There was no justification for the exclusion of three months under s 11(6). Furthermore, the Protesters Act was too broad in its geographical coverage (at 396). Accordingly he found the Act to be invalid in relation to forestry land and associated access areas. Gordon J rejected the McCloy methodology and found that it invited the court to intrude too much into the legislative process (at 467). Later, she dismissed its precedent value: The method of analysis adopted by the plurality in McCloy is a tool of analysis, not constitutional doctrine. It is not a “precedent-​mandated analysis”. And, if only for that reason, it is not necessary or appropriate to apply all aspects of that approach in every case.

In her findings, she also found the purpose of the law to be compatible with the freedom (at 461). She dissented by finding the majority of the law to be valid, and was influenced in this regard by her view that the burden imposed on the freedom by the law was minimal (see [13.30]). Furthermore, she rejected the relevance of the reliance on the correct use of police discretion, and the arguable vagueness in the law in its application to forestry land. At 471: Once it is accepted, as it must be, that Australia knows no doctrine of statutory uncertainty, there is no legal basis for importing a doctrine of vagueness by speaking of a law having “that quality”.

However, she found s 8(1)(b) to be invalid as there was no rational connection between that law and the law’s objective. At 468, her Honour stated: Section 8(1)(b) provides that a person must not enter a business access area in relation to business premises within four days after having been directed by a police officer under s 11 to leave the business premises or a business access area in relation to the business premises. Section 8(1)(b), in its terms, does not prohibit conduct for a legitimate purpose other than the suppression of political communication. Section 8(1)(b) cannot be said to be directed to regulating effects of conduct beyond the communication of ideas or information –​it does not have an object compatible with the maintenance of the constitutionally prescribed system of government. Why four days? Why prohibit a person from entering a business access area in relation to business premises irrespective of what that person intends to do by way of conduct in that area?

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Section 8(1)(b) goes beyond penalising what was unlawful before the enactment of the relevant provisions. The resulting burden on communication is beyond what is reasonably appropriate and adapted to serve the legitimate object of the Protesters Act.

As noted above, Edelman J dissented in finding the entire law valid as he found that it imposed no burden on the implied freedom of political communication. Hence, a majority in Brown followed the McCloy methodology, while two Judges rejected it. It is not yet clear the view taken of the methodology by Edelman J. The methodology is just that –​a tool of analysis, rather than a framework that must be used in all cases. Indeed, it is clear that the methodology does not apply in all cases of tests of proportionality, as it was explicitly not used in the context of implied voting rights in Murphy v Electoral Commissioner (2016) 261 CLR 28, discussed at [13.70].

Operation of the freedom [13.45]  The freedom operates as a fetter on Commonwealth legislative power. For example, ACTV and Nationwide News concerned successful challenges to Commonwealth legislation. The possibility of the freedom fettering State legislatures was confirmed in Stephens and Coleman. In the latter case, Queensland legislation was read down by the majority so as to conform to the freedom, while one Judge (McHugh J) struck down the relevant provision. Numerous cases have concerned challenges grounded on the implied freedom to State legislation, or to orders made under State legislation, as in Hogan v Hinch, Wotton v Queensland and Attorney-​General (SA) v City of Adelaide. Though those challenges failed, in no case was that failure due to the targeted laws being contained in State legislation. And, of course, in Unions NSW [No 1] and Brown, State legislation was actually struck down due to incompatibility with the freedom. Thus, the implied right operates to limit the legislative power of all Australian legislatures: Commonwealth and State. Logically, it should also bind Territory legislatures, though this has not been confirmed in any High Court case. In Lange, the Court explained the relationship between the implied freedom of political communication and the common law (at 566): Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives. The common law and the requirements of the Constitution cannot be at odds. The common law of libel and slander could not be developed inconsistently with the Constitution, for the common law’s protection of personal reputation must admit as an exception that qualified freedom to discuss government and politics which is required by the Constitution.

Therefore, the implied right, if necessary, shapes the common law. On the facts, the Court determined that the common law in fact had developed appropriate defences to defamation in accordance with the implied freedom. The Lange Court went on to describe the effect of the implied right in protecting the modified common law from statutory diminution (at 566): In any particular case, the question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question has a different significance from the answer to the constitutional law question. The answer to the common law question

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prima facie defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of those Territories whose residents are entitled to exercise the federal franchise. That is because the requirement of freedom of communication operates as a restriction on legislative power. Statutory regimes cannot trespass upon the constitutionally required freedom.

The constitutional freedom was used by the majority in Aid/​Watch v Commissioner of Taxation (2010) 241 CLR 539 to shape the law of trusts. Under Australian law, “charitable institutions” benefit from certain tax concessions. The case concerned the designation of Aid/​Watch as a “charitable institution” for the purposes of tax law. Aid/​Watch is an organisation which promotes effective Australian and international aid to developing countries. In doing so, it engaged in political activities by criticising government policies and lobbying for change. The Commissioner of Taxation determined it was not a charitable trust due to its aim of influencing government. Aid/​Watch challenged that designation. The Court found that the term, “charitable”, was to be interpreted in accordance with the general law of trusts (at [24]). A charitable institution was set up for the public benefit. UK law and Australian law indicated that charitable institutions could not be set up to attain political objectives.29 Dixon J had explained in Royal North Shore Hospital of Sydney v Attorney-​General (NSW) (1938) 60 CLR 396 at 426: Thus, when the main purpose of a trust is agitation for legislative or political changes, it is difficult for the law to find the necessary tendency to the public welfare, notwithstanding that the subject of the change may be religion, poor relief, or education.

However, the majority of French CJ, Gummow, Hayne, Crennan and Bell JJ stated (at 556) in Aid/​Watch: The provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is “an indispensable incident” of that constitutional system. … [T]‌he Constitution informs the development of the common law. Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government. The system of law which applies in Australia thus postulates for its operation the very “agitation” for legislative and political changes of which Dixon J spoke in Royal North Shore Hospital. … Rather, it is the operation of these constitutional processes which contributes to the public welfare. A court administering a charitable trust for that purpose is not called upon to adjudicate the merits of any particular course of legislative or executive action or inaction which is the subject of advocacy or disputation within those processes.

They went on to uphold Aid/​Watch’s appeal. It was a “charitable institution” because (at 557): 29

See Bowman v Secular Society [1917] AC 406.

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the generation by lawful means of public debate, in the sense described earlier in these reasons, concerning the efficiency of foreign aid directed to the relief of poverty, itself is a purpose beneficial to the community

Hence, the constitutional freedom was crucial for the majority to decide (at 557) that “in Australia there is no general doctrine which excludes from charitable purposes ‘political objects’ “.30

The nature of the freedom [13.50]  The “nature” of the implied freedom of political communication concerns the issue of whether the freedom confers particular rights on individuals, or whether the freedom operates as a limit upon governmental power. In Lange the Court unanimously stated (at 560): [Sections] 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 individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are “a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ‘right’ in the strict sense”.

The consequences of the characterisation of the freedom as not being a right became clearer in Mulholland v Australian Electoral Commission (2004) 220 CLR 181. This case concerned a challenge to provisions of the Commonwealth Electoral Act 1918 (Cth), which dealt with the registration of political parties for the purposes of identification of parties on ballot papers for Commonwealth general elections. Registered political parties needed to have 500 members, or at least one member in the relevant parliament, in order to be identified as a party on Senate ballot papers. Furthermore a “no overlap” rule prescribed that no two or more parties could rely on the same member for the purposes of calculating the number of party members. Party identification carried considerable benefits, most notably the ability to benefit from “above the line” voting in Senate elections.31 The appellant, John Mulholland, was an officer of the Democratic Labor Party (DLP). He challenged the proposed deregistration of the DLP due to its failure to provide the Australian Electoral Commission (AEC) with a list of 500 members. Mulholland claimed, inter alia, that the “500 rule” and the “no overlap” rule infringed the implied freedom of political communication by burdening his party’s ability to be identified on a Senate ballot paper.

30

The Aid/​Watch case and other developments led to an expansion in the definition of “charitable purposes” under domestic law: see Charities Act 2013 (Cth) and Australian Charities and Not-​for-​profits Commission (Consequential and Transitional) Act 2012 (Cth).

31 In Senate election, voters may vote “below the line”, meaning that each candidate for the Senate in a State must be numbered consecutively. This method of voting is burdensome, as there are normally dozens of Senate candidates. The preferred voting method for most voters (95 per cent of voters according to McHugh J in Mulholland at 216) is “above the line”, whereby a single vote is given to one party, and preferences are then automatically allocated by that party. It is not possible to vote “above the line” for a non-​registered party.

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Five members of the Court found that the law imposed no “burden” on any right of political communication. Callinan J stated (at 298): The appellant has no constitutional right to have his party affiliation included on the ballot paper. Nor does any other candidate. The rights are entirely statutory. The Act could be repealed or amended so as to allow no right of inclusion of a party on the ballot paper at all. The appellant has no relevant rights other than such rights as may be conferred on him by the Act. In argument, McHugh J drew an analogy: protestors cannot complain about an interference with, or the prevention of their doing what they have no right to do anyway, for example, to communicate a protest on land on which their presence is a trespass. As the appellant has no relevant right to the imposition of an obligation upon another, to communicate a particular matter, he has no right which is capable of being burdened. The appellant is seeking a privilege, not to vindicate or avail himself of a right. He can communicate his affiliation with the DLP as a candidate in any way and at any time that he wishes. What he cannot do is compel the respondent to do so in a way which would effectively discriminate in his favour, and would be tantamount to treatment of him as having a relevant right. [emphasis in original]

Similarly, McHugh, Gummow, Hayne, and Heydon JJ found that no pre-​existing right of communication was burdened by the impugned provisions. Prior to the passage of the relevant amendments in 1983, no party had a “right” to be identified on the official ballot papers. The creation of such rights by statute could not preclude the imposition of statutory conditions such as “the 500 rule” and “no overlap” rule. Therefore, the Mulholland majority characterised the claimed “right” to DLP party identification on the ballot papers as a positive obligation for the AEC to publish certain information, which was outside the scope of the constitutional freedom. In those circumstances, the constitutional freedom was not brought into play. In contrast, Gleeson CJ and Kirby J found that the freedom was burdened, though both went on to state that the law passed the test of proportionality. In Mulholland, the characterisation of the freedom as a limit on government power than as a right seemed to limit its impact. In Aid/​Watch, it arguably increased its impact. The freedom was used by the majority to “mould” the common law relating to the definition of a “charitable” institution. It is difficult to say that the denial of that characterisation to Aid/​Watch breached anybody’s “right”. For a start, there is an issue as to whether an artificial person can have rights. Secondly, Aid/​Watch and its members could continue to pursue political goals whether the organisation was characterised as a “charitable institution” or not. Even though such a characterisation was beneficial for its tax status, it is difficult to claim that any entity has a “right” to a certain tax exempt status. However, as the freedom is not a personal right, it was able to be used to mould the common law so as to accommodate the pursuit of political goals within the definition of “charitable” purposes.32 The characterisation of the freedom as a fetter on power rather than a personal right permitted the High Court in Unions NSW [No 1] to avoid the interesting philosophical question of whether artificial persons like trade unions and

32 We thank our colleague Dr Patrick Emerton for sharing his thoughts with us on this issue.

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corporations have personal constitutional rights to free political communication. Yet the decision undoubtedly delivered a boost to the rights and interests of artificial persons. The court’s methodology essentially treats human rights and corporate rights as equals. Neither are directly relevant to the implied freedom, but both are indirectly relevant. Indeed, the methodology, in focusing on “the flow” of political speech, might even elevate certain corporate rights, as impacts on powerful entities might disrupt and distort that flow more than more impacts on less powerful individuals. It may therefore be no coincidence that artificial persons have been the most successful litigants in the area of constitutional free speech freedoms. As explained above, an argument was raised in Brown v Tasmania (2017) 261 CLR 328 over the extent to which the challenged law imposed an actual burden on the implied freedom, as Tasmania had argued that the behaviour by protesters targeted by the law was already independently illegal. Edelman J in dissent agreed with that interpretation of the law. He then went on to find that there was no burden as: “if there is no freedom then there cannot be any burden upon that freedom” (at 503). Similar sentiments were delivered in the same case by Nettle and Gordon JJ, though they interpreted the Act differently to Edelman J. In contrast, Gageler J staunchly rejected such reasoning (see [13.30]). Such reasoning could not apply if the freedom was cast as a personal right rather than a freedom.

FREEDOMS OF MOVEMENT, ASSOCIATION AND PARTICIPATION [13.55]  Following the High Court’s recognition of an implied freedom of political communication in ACTV and Nationwide News, there was much speculation as to whether the Court might be willing to recognise other implied rights or freedoms associated with the concepts and institutions of representative democracy and government. As express constitutional rights instruments in other representative democracies, such as Canada and South Africa, often guarantee freedom of association along with freedom of expression, an implied freedom of association was an obvious candidate for speculation. The possibility that the Commonwealth Constitution might protect rights derived from the freedom of political communication, in particular freedom of movement and association, was considered by the High Court in Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1. The plaintiffs in Kruger argued that the Aboriginals Ordinance 1918 (NT) was invalid to the extent that it authorised the forced removal of Aboriginal children from their parents, families and communities, and the detention of Aboriginal people on reserves. One ground upon which this argument was based was that the Ordinance infringed implied constitutional freedoms of movement and association. The High Court had to determine not only whether to recognise such implied freedoms but also whether they would apply to law-​making in respect of the Territories under s 122 (see also [1.135]). Gaudron, Toohey and McHugh JJ affirmed that there exists an implied freedom of movement and association accompanying the freedom of political communication. As Gaudron J stated (at 115):

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Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others. And freedom of association necessarily entails freedom of movement.

However, McHugh J took a narrower view of these freedoms than his colleagues in that he did not regard them as applicable to the Territories because, in his view, representative government was not a requirement in the Territories. Consequently, McHugh J’s affirmation of these freedoms had no application to the case at hand. Both Toohey and Gaudron JJ held that the freedoms did apply to the Territories. They also confirmed that the freedom was limited by a similar notion of proportionality as that which limited freedom of political expression. In the result, Toohey J could not determine whether the Ordinance unjustifiably burdened the freedoms because, in his view, that determination needed to take into account the standards prevailing at the time and, given the stage of the proceedings, the evidentiary record was not sufficient to enable such a determination. Gaudron J undertook a proportionality inquiry similar to that required by the Lange test, and held that the Ordinance burdened both freedom of movement and association. Further, she held that since the Commonwealth had not suggested, and could not succeed in suggesting, that the burden furthered any overriding public purpose such as protection of Aboriginal peoples. Therefore, the burden could not be justified so, in her view, it breached the Constitution. Brennan CJ and Dawson J took the view that the freedoms of movement or association, if they existed, did not apply in the Territories. Further, Brennan CJ and Gummow J stated that such freedoms, if they existed, only existed as a corollary of the implied freedom of political communication. On their view, then, only political associations, rather than familial associations, were protected and so the freedoms did not protect the associations affected by the Ordinance. These judgments exhibit a narrow interpretation of the political sphere in their failure to recognise that political communication can take place in many contexts.33 The decisions of Brennan CJ and Gummow J implicitly deny the independent existence of freedoms of movement and association. Consequently, in Kruger, regarding implied freedoms of movement or association, three Justices recognised the freedoms (though not in the Territories according to McHugh J), and three Justices were sceptical. Wainohu v NSW (2011) 243 CLR 181 concerned the validity of legislation designed to “crack down” on criminal organisation, particularly “bikie” gangs. One issue in the case concerned the potential scope of “control orders” issued by courts, which could severely limit freedom of association by, for example, prohibiting members of certain organisations from associating with each other. The relevant scheme was struck down on grounds related to separation of powers in the States (see [6.105]-​[6.115]). Arguments had also been made about an implied freedom of association. In Wainohu (at 230), Gummow, Hayne, Crennan and Bell JJ stated that “any freedom of association” in the Constitution “would exist only as a corollary to the implied

33 See S Joseph, “Kruger v Commonwealth: Constitutional Rights and the Stolen Generation” (1998) 24 Monash Law Review 486 at 493.

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freedom of political communication and the same test of infringement and validity would apply”. They went on to find that limits on freedom of association could only be imposed under the relevant legislation in circumstances which conformed to the freedom. That is, the legislation did not authorise restrictions that could be construed as breaching the freedom. It does not seem that these Judges went so far as to confirm the existence of the freedom. Rather, they found it would not have been breached if it in fact did exist. French CJ and Kiefel J explicitly agreed at 220 while Heydon J also agreed on this point at 251-​252. Wainohu was supported in Tajjour v NSW (2014) 254 CLR 508 with regard to the rejection of a free-​standing implied right to freedom of association. Hence, it seems that any such right exists only as a necessary corollary to the implied freedom of political communication.

VOTING EQUALITY AND VOTING RIGHTS [13.60]  With the emphasis placed in ACTV upon the efficacy of elections and the requirement that members of Parliament be “directly chosen by the people” there was speculation as to whether rights or freedoms relating to voting and the electoral system would also be recognised. The existence of an implied constitutional right to vote was finally confirmed in Roach v Electoral Commissioner (2007) 233 CLR 162. Before addressing substantive voting rights and Roach, it is convenient to address the issue of the equality of voting rights, the predominant issue in voting cases decided before Roach.

Voting equality [13.65]  To what extent if at all does the Constitution guarantee voting equality, or the principle of “one vote one value”? Prior to its decision in ACTV the High Court, in Attorney-​General (Cth) (Ex rel McKinlay) v Commonwealth (1975) 135 CLR 1, considered an argument that the Commonwealth Constitution impliedly required that electoral districts used for federal elections contain, so far as is practicable, equal numbers of voters. This will be referred to as an argument for strict quantitative voting equality. At the time of the McKinlay litigation, the Commonwealth Electoral Act 1918 (Cth) purported to provide for the distribution and redistribution of electorates within States in accordance with the general principle of strict quantitative equality.34 However, redistribution only occurred upon approval of both Houses of the Commonwealth Parliament. The motivation for the claim in McKinlay lay in the significant quantitative voting inequalities that had arisen as a result of the federal Parliament’s failure to approve electoral redistributions for Commonwealth electorates since, in most cases, 1968. For instance, in Queensland, the electorate with the largest number of voters contained twice as many voters as the electorate with the smallest number of voters. The plaintiffs argued that such disparities breached the requirement in s 24 that members of the House of Representatives be “directly chosen by the people”. Further, since the failure to approve redistributions had also led to a failure to re-​allocate seats among the States, some plaintiffs argued 34 A 10% deviation was permissible “when necessary”.

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that the later paragraphs of s 24, which determine how seats are to be so allocated, had been breached. A majority of 6:1, with Murphy J in dissent, rejected the argument for a constitutional guarantee of strict quantitative equality. Five members of the majority (Barwick CJ, McTiernan, Jacobs, Stephen and Mason JJ) suggested that there might be some degree of quantitative disproportion in the numbers of electors per electoral district (or, in other words, some degree of quantitative voting inequality) that would breach the constitutional requirement of a choice by the people. Barwick CJ also argued that it was entirely appropriate to temper quantitative voting equality with qualitative considerations (such as ensuring that the preferences of rural voters were not overwhelmed by those of their urban counterparts). In other words, Barwick CJ suggested that what the Constitution required, if anything, was not quantitative voting equality so much as qualitative voting equality. In dissent, Murphy J argued that s 24 required strict quantitative equality. He did not address the issue of whether qualitative considerations were relevant. Thus, the suggestions of the majority that some measure of quantitative and indeed qualitative voting equality was constitutionally required were of little assistance to the plaintiffs in the case at hand because the majority did not think such requirements had been breached in this case. However, the plaintiffs did in effect prevail because a majority of the Court forced an equality-​enhancing redistribution by invalidating the provision making redistributions dependent upon Parliamentary approval. This provision was invalidated because of its (evident) potential to undermine the express constitutional requirement in the later paragraphs of s 24 that the number of seats in each State be in proportion to the number of voters in the State. Thus, electoral redistribution had to occur automatically at reasonable intervals to take into account inevitable population shifts, and to ensure that each State was accorded the number of Commonwealth electorates as required by the Constitution. As the relevant legislation required redistributions within States to occur along with redistributions between States, the practical effect of the decision in McKinlay was to enhance voting equality for federal elections. However, it must be stressed that the resultant quantitative equality between electorates within States arose and continues to stem from federal legislation. The Constitution expressly requires quantitative equality as between States, rather than as between voters within electorates within States. When the High Court reconsidered arguments concerning an implied right to strict quantitative voting equality in McGinty v Western Australia (1996) 186 CLR 140 they were again rejected, but there were further obiter suggestions that some degree of quantitative and qualitative voting equality was required. McGinty concerned the constitutional validity of the electoral map relevant to elections to the WA Parliament. For the purpose of drawing the electoral map for those elections the State was divided into a “metropolitan” and an “other” (rural) zone. An over-​proportion of Parliamentary seats was allocated to the “other” zone. The electors in each zone were then divided into electorates according to a formula that allowed a maximum 15 per cent deviation from strict quantitative equality to take account of qualitative factors. In the result, the largest metropolitan electorate had 26,580 voters, the smallest “other” electorate had just 9,135 voters. Based on the decision in ACTV, the plaintiffs argued that an implied requirement of strict quantitative equality arose from the words

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“directly chosen by the people” in s 24 of the Commonwealth Constitution, and that requirement applied to State elections. Further, they argued that a like requirement arose from the same words in s 73(2)(c) of the Western Australian Constitution. All members of the Court held that whatever the Commonwealth Constitution might impliedly require in terms of voting equality, no such requirement applied to State elections. As Toohey J explained (at 210): Any guarantee of voting equality in Commonwealth elections will not be affected by State electoral laws permitting inequality in State elections. In this respect there is no necessary inconsistency between voting inequality at the State level and voting equality at the Commonwealth level. The conduct of State elections will not undermine Commonwealth elections. The implication of freedom of political communication can be distinguished, for it is the nature of such communication that State restrictions may undermine the Commonwealth guarantee.

The position taken by the Court on this issue made it unnecessary to consider whether the Commonwealth Constitution impliedly required some degree of voting equality. Nevertheless, all Justices except Brennan CJ –​who was prepared to assume, without deciding, that some degree of voting equality was impliedly required –​gave some consideration to this issue. McHugh J emphatically rejected the argument that the Commonwealth Constitution imposed any such requirement. In part, his position was based upon his view that “[e]‌quality of voting power is not a fundamental feature of the Constitution. On the contrary, inequality of individual voting power is one of its striking features”. For instance, with respect to the design of the Senate, he noted (at 237): Part II of Ch 1 of the Constitution, which deals with the Senate, is also a powerful indicator that equality of individual voting power is not a feature, let alone a fundamental feature, of the Constitution. Section 7 provides for the equal representation of the States and declares “that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators”. Thus the Senate vote of an elector in Tasmania is 10 times more valuable than the Senate vote of an elector in Victoria. At the Sydney session of the Constitutional Convention in 1897, New South Wales suggested that proportional instead of equal representation for a State should be the rule, but the New South Wales proposal attracted only five supporters.

In contrast, Toohey and Gaudron JJ found that the Commonwealth Constitution was founded upon a principle of voting equality. In doing so, they met many of the arguments made by McHugh J head-​on. For instance, Toohey J stated (at 204): Equality of voting power is an underlying general requirement in the Constitution. To a limited extent it has given way to the requirements for a minimum of five members of the House of Representatives for each State and for equal numbers of senators for each State. The defendant argues that these provisions tell against the principle claimed by the plaintiffs. This argument can be rejected in relation to the Senate. The Senate is “the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented” and “(t)hat the States, and not the people, are actually represented in the Senate is shown by the requirement that the equal representation of the several Original States shall be maintained”.35 35 The quotations in this passage are from J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), p 414.

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The general requirements of the principle of voting equality, as captured by the words used in s 24, and in particular its qualitative dimension, were elaborated by Gaudron J (at 222): It does not follow from what has been said that s 24 requires complete or even practical equality of electorate size. A distinction which is reasonably capable of being viewed as an appropriate and adapted means of taking account of geographic boundaries, community or minority interests or some other matter which bears on effective parliamentary representation, such as the dispersed nature of the population in remote areas, would not, in my view, prevent it being said that members of the House of Representatives were “chosen by the people”. However, subject to that consideration and the requirements of the Constitution which necessitate or which may necessitate inequality by reason of population differences between the States, persons elected under a system involving significant disparity in voting value, could not, in my view, now be described as “chosen by the people”.

Dawson and Gummow JJ occupied positions somewhere between these opposing interpretations. While these Judges rejected the approach of Toohey and Gaudron JJ, they nevertheless acknowledged the view expressed in McKinlay that there may be some point at which an electoral distribution might be so quantitatively disproportionate as to violate the Commonwealth Constitution. Turning to the decisive question of whether the Western Australian Constitution imposed any implied requirements, the Court was unanimous in holding that no requirement of strict quantitative equality could be implied. While McHugh J accepted that the Western Australia electoral map defied rational explanation, he did not hold it in breach of the Western Australian Constitution because he rejected the argument that any implied requirements with respect to voting were imposed by that Constitution. Brennan CJ and Gummow J, in separate judgments, agreed that the Western Australian Constitution imposed no requirements with respect to voting equality. Although Dawson J expressed his agreement with Brennan CJ on this point, he then indicated that he would give the words used in s 73(2)(c) the same meaning as their meaning in s 24. Because Dawson J accepted the suggestions in McKinlay that s 24 might prohibit some extreme instances of inequality, it seems his position may actually differ slightly from that of Brennan CJ. In any case, Dawson J did not believe the “extreme” point had been reached in this case. In contrast, Toohey and Gaudron JJ, in the minority, held that the words “directly chosen by the people” in s 73(2)(c) of the Western Australian Constitution imposed an implied requirement of qualitative voting equality similar to that imposed by s 24. They also held that this requirement was unjustifiably infringed by the circumstances in Western Australia. In particular, they found the distinction between the metropolitan and other zones of the State to be both arbitrary and too inflexible. As Toohey J explained (at 214-​215): The aim of facilitating the representation of those who live in the thinly populated and remote areas of the State is clearly a legitimate one. But while the aim is legitimate, it cannot be said that the legislative means chosen are proportionate to the aim. The impugned legislative scheme arbitrarily distinguishes between metropolitan and non-​metropolitan areas. It does not tailor electoral divisions to take

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account of the difficulties faced by the voters in particularly remote areas. The strength of the plaintiffs’ argument lies in the fact that the system mandated by the challenged legislative provisions inevitably produces a serious malapportionment between metropolitan and non-​metropolitan electors. That malapportionment results in large part from the absence of flexibility in the system which would allow for a movement in population from rural areas to urban centres and otherwise ensure a more fair representation of urban voters. The vice lies in the absence of flexibility, rather than the need to have regard to particular problems of representation affecting non-​metropolitan electors.

After McGinty it is therefore difficult to say precisely what degree if any of voting equality might be impliedly required by the Commonwealth Constitution. While McHugh J rejected the possibility that the Commonwealth Constitution imposed implied voting equality requirements, his colleagues expressed varying degrees of support for varying degrees of requirements arising from the words common to the Commonwealth and Western Australian Constitutions. There remains a possibility, therefore, that in a future case the High Court could recognise an implied requirement to some degree of quantitative and qualitative voting equality at the Commonwealth level. However, considering the degree of disproportion at issue in McGinty (3:1 at its worst), it seems that only extreme inequality of voting power would breach either Constitution. It appears therefore that the recognition of implied rights and freedoms associated with representative democracy has not significantly affected the McKinlay precedent. Finally, it must be noted that a proposal for a constitutional amendment to guarantee reasonable quantitative voter equality (electoral numbers to be within 10 per cent) in Commonwealth elections was rejected at referendum in 1988.

Voting rights [13.70]  Before considering whether there are constitutional rights to vote, it may first be noted that it is in fact compulsory for registered voters to vote in federal elections in Australia.36 Furthermore, as discussed below, it is compulsory to register to vote when one is eligible. Therefore, there is a duty to vote in Australia. The constitutional validity of compulsory voting was confirmed in Judd v McKeon (1926) 38 CLR 380. Does the Constitution in any way guarantee a right to vote?37 Obiter comments from some Judges from McKinlay, McGinty and Langer indicated that some sort of minimum franchise was guaranteed in the Constitution. The right was finally confirmed in the case of Roach. Roach v Electoral Commissioner (2007) 233 CLR 162 concerned a challenge by a prisoner, one Vickie Roach, to the 2006 amendments to the Commonwealth Electoral Act 1918, which removed the right to vote from all convicted persons serving time in prison. The majority confirmed that ss 7 and 24 of the Constitution can now be interpreted as entrenching a right to vote, albeit subject to exceptions.

36 Compulsory voting is dictated by s 245 of the Commonwealth Electoral Act 1918 (Cth). 37 For a comprehensive discussion of this issue pre-​Roach, see A Twomey, “The Federal Constitutional Right to Vote in Australia” (2000) 28 Federal Law Review 125. See also [12.105].

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Gummow, Kirby and Crennan JJ confirmed that the Lange reasoning, justifying the existence of an implied freedom of political communication, applied to entrench rights to vote (at 198): [F]‌reedom of communication on matters of government and politics … was identified in Lange as “an indispensable incident” of the system of representative government established and maintained by the Constitution. …[D]isqualification from exercise of the franchise is, if anything, a subject even closer to the central conceptions of representative government. Voting in elections for the Parliament lies at the very heart of government for which the Constitution provides.

Thus, voting rights can be extracted from the Constitution in the same way as the implied freedom of political communication. The joint judgment confirmed that limits on voting rights were subjected to a similar exception: voting restrictions were permitted if (at 199) “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”. Gleeson CJ agreed that ss 7 and 24 now grounded constitutional protection of the right to vote, and found (at 174) that voting exclusions had to be based on a “substantial reason”. At 174-​175, he stated: There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice. Citizenship, itself, could be a basis for discriminating between those who will and those who will not be permitted to vote. Citizens, being people who have been recognised as formal members of the community, would, if deprived temporarily of the right to vote, be excluded from the right to participate in the political life of the community in a most basic way. The rational connection between such exclusion and the identification of community membership for the purpose of the franchise might be found in conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right.

On the actual restriction at issue in Roach, he stated (at 179): It is consistent with our constitutional concept of choice by the people for Parliament to treat those who have been imprisoned for serious criminal offences as having suffered a temporary suspension of their connection with the community, reflected at the physical level in incarceration, and reflected also in temporary deprivation of the right to participate by voting in the political life of the community.

However, not all convicted prisoners are convicted of serious offences. Convicted persons might be subjected to short-​term incarceration for offences such as minor assaults and traffic violations. Moreover, in such circumstances, the fact of incarceration might be dictated by a lack of available alternative modes of punishment such as fines or home detention. For example, indigent and homeless offenders, as well as those who live in remote rural areas, are more likely to be imprisoned for a minor offence than others. Therefore, Gleeson CJ found that the criterion of imprisonment per se was not an appropriate means of identifying serious offenders, especially when (at 182) “a not insubstantial number of people” might be imprisoned because they did not qualify for non-​custodial options due to personal adverse circumstances. His Honour therefore found the ban on voting for all prisoners to be invalid. The joint

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judges agreed. They also noted the “disharmony” between the blanket restrictions on voting for all prisoners, compared with the more limited restriction on prisoners representing people in Parliament in s 44(ii) of the Constitution.38 The majority agreed that those convicted of serious offences could be excluded from voting. They found that the pre-​2006 legislation, which excluded only prisoners serving sentences of three years or more, was a rational means of identifying serious offenders, and was therefore valid. Hayne and Heydon JJ in dissent refused to locate an implied right to vote in the Constitution. Hayne J (at 218) quoted McTiernan and Jacobs JJ from McKinlay, in particular their notion that constitutional protection of the franchise could change over time according to contemporary common understandings on voting eligibility. He dismissed (at 219) the notion of a “common understanding” as a test that should determine constitutionality: “[p]‌olitical acceptance and political acceptability find no footing in accepted doctrines of constitutional interpretation”. Heydon J agreed, and implied (at 224) that even voting restrictions based on race, gender, religion, education standards or political beliefs might be constitutional. While narrowing the franchise in such ways would clearly be undesirable, his Honour stated that it did not follow that such narrowing would be unconstitutional. Roach concerned the right of a person to vote. Another aspect of voting rights is the right to have an opportunity to be elected. In Mulholland, the appellant argued that the rules which precluded placement of his party on the Senate ballot paper (see [13.45] for details) breached s 7 of the Constitution, as it impeded the ability of voters to make an informed choice in voting for the Senate. The entire court rejected this argument. Heydon J addressed the appellant’s contention that the discrimination entailed in the impugned provisions against small parties breached s 7 (at 302-​303): Even if there is a “necessary implication from the text of ss 7 and 24” forbidding unreasonable discrimination, it is not infringed here. … Here, there is no equality between parties that have some real level of community support and parties that do not, and the requirement of a minimum of 500 members is not an irrational way of distinguishing between those two classes. … Here, the difference exists in order to fulfil the objective of the 500 rule by informing voters about whether a particular candidate is endorsed by a “party” commanding some community support, and in order to fulfil the objective of the no-​overlap rule by preventing “front” parties which might otherwise mislead voters. The 500 rule and the no-​overlap rule assist an informed choice by electors. The difference in treatment that they effect is rationally based and is not unreasonable.

Gummow and Hayne JJ felt that electoral laws were only restrained by ss 7 and 24 in the most extreme situations, such as where voter choice was limited to candidates from one party (at 237). McHugh J went further, suggesting that ss 7 and 24 may now require the identification of “genuine” or major political parties on ballot papers. Therefore, as in McGinty, there were hints of electoral rights hidden within ss 7 and 24, but they were not clearly enunciated in Mulholland nor were they enlivened on the facts. 38 See Gummow, Kirby and Crennan JJ at 200-​201.

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Roach concerned the constitutionality of substantive restrictions on a person’s eligibility to vote. Rowe v Electoral Commissioner (2010) 243 CLR 1 concerned the constitutionality of procedural restrictions on persons who are otherwise eligible to vote. Only those registered on the Commonwealth electoral role can vote in a federal election. Indeed, it is an offence to fail to register within 21 days of becoming eligible to vote in federal elections, though no proceedings in respect of such an offence will arise once the person in fact enrols.39 Nevertheless, numerous people fail to register due to ignorance, apathy and forgetfulness. Each time the writs for a general election are issued, there is a short window of opportunity for people to register in time to vote in that election. If people fail to comply with that deadline, they are not able to vote in that election. This general scheme was not called into question in Rowe. From the 1930s until 2006, the grace period for enrolment, as well as transfer of one’s enrolment to a new address, after the issuing of the writs for an election was seven days.40 In 2006, the Commonwealth Electoral Act 1918 (Cth) was amended by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) so as to significantly shorten the grace period: people had to enrol by 8 pm on the day that the writs were issued in order to be eligible to vote in the upcoming election. That shortened grace period was challenged. It was estimated that the shortened grace period resulted in 100,000 people being excluded from eligibility for voting in the subsequent election in 2007.41 The challenge was successful, such that the shortened period was ruled to be invalid and the previous seven-​day period applied in the 2010 general election. The majority confirmed that the implied right to vote is at issue any time a law detrimentally affects a person’s entitlement to vote, whether the law be procedural or substantive. As explained by French CJ (at 20-​21): While “common understanding” of the constitutional concept of “the people” has changed as the franchise has evolved, “the people” is not a term the content of which is shaped by laws creating procedures for enrolment and for the conduct of elections. If such a law denies the right to vote to any class of person entitled to be an elector, it denies it to that class of “the people”. Such a law may be valid. But the logic of the constitutional scheme for a representative democracy requires that the validity of such a law be tested by reference to the constitutional mandate of direct choice by “the people”. Where, as in the present case, the law removes a legally sanctioned opportunity for enrolment, it is the change effected by the law that must be considered. It is not necessary first to determine some baseline of validity. Within the normative framework of a representative democracy based on direct choice by the people, a law effecting such a change causes a detriment. Its justification must be that it is nevertheless, on balance, beneficial because it contributes to the fulfilment of the mandate. If the detriment, in legal effect or practical operation, is disproportionate to that benefit, then the law will be invalid as inconsistent with that mandate, for its net effect will be antagonistic to it. Applying the terminology adopted in Roach, such a law would lack a substantial reason for the detriment it inflicts upon the exercise of the franchise. It is therefore not sufficient for the validity of such a law that an election conducted under

39

See Commonwealth Electoral Act 1918 (Cth), s 101(4) and (7).

40 The grace period was not enshrined in statute until 1983. 41 See Gummow and Bell JJ at 40.

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its provisions nevertheless results in members of Parliament being “directly chosen by the people”.

The Commonwealth had tried to justify the laws by claiming that they diminished the opportunities for voter fraud, enhanced the accuracy of the electoral roles and preserved the resources of the Australian Electoral Commission. For the majority, those reasons did not suffice to render the law valid. Indeed, there was no evidence of significant voter fraud prior to 2006, nor evidence of any inability of the Australian Electoral Commission to process the roles in time for the upcoming election if the seven day grace period was in place. Gummow and Bell JJ explained (at 61): 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 the electoral process from a hazard which so far has not materialised to any significant degree.

Crennan J stated (at 120-​121): [T]‌he impugned provisions have not been shown to be necessary or appropriate for the protection of the integrity of the Rolls, as that object was advanced by the Commonwealth. First, this is because the Australian Electoral Commission had no difficulty in processing the volume of late enrolments which occurred with the previous seven day cut-​off period. Secondly, to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise to a citizen’s participation in the political life of the community. Thirdly, the main reason put forward by the Commonwealth as the justification for the impugned provisions –​namely, that they will operate to protect the Rolls from the risk of, or potential for, systematic electoral fraud –​is to protect the Rolls from a risk or potential which has not been substantiated to date. Accordingly, the justification put forward to support the impugned provisions does not constitute a substantial reason, that is, a reason of real significance, for disentitling a significant number of electors from exercising their right to vote for parliamentary representatives in the State and Subdivision in which they reside. The impugned provisions cannot be reconciled with the constitutional imperative of choice by the people of those representatives.

Hayne, Heydon and Kiefel JJ dissented in separate judgments. They were all influenced by the fact that the people adversely affected by the shorter grace period were people who had failed to abide by their statutory duty to promptly enrol, or transfer their enrolment. Hayne J stated (at 85): The complaint which the plaintiffs make about the so-​called “practical operation” of the impugned provisions depends upon other, related provisions of the Act having been disobeyed by the plaintiffs. If the plaintiffs had performed their obligations under the Act when they were bound to do so, the impugned provisions would not be engaged. Thus the “practical operation” of the law to which the plaintiffs point is an operation that depends upon the extent to which other provisions of the law of which the impugned provisions form a part have been disobeyed. This asserted understanding of the “practical operation” of a law is entirely novel and should not be adopted. The constitutional validity of the impugned provisions cannot turn upon the extent to which related statutory obligations have been disobeyed.

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Kiefel J found that encouragement of compliance with enrolment obligations was a valid objective (at 146-​147). On whether the means used to achieve that end were proportionate, she concluded (at 147): No issue is taken by the plaintiffs with the aspect of the scheme of the Electoral Act which obliges enrolment and renders it an offence to fail to do so. The provisions in question do not themselves operate to render a person unable to vote. What is necessary to bring about that result is the failure of a person to fulfil his or her obligations within a specified period, when fulfilment is not attended by any obvious difficulty. It would be a curious application of a test of proportionality if a law, otherwise valid, was invalid because Parliament should recognise that people will not fulfil their statutory obligations. The denial of enrolment and voting for an election, for a legitimate reason, does not intrude too far upon the system of voting. It is, and has always been, a part of that system. It reinforces the requirement that persons qualified to vote enrol in a timely way, which is conducive to the effective working of the system. No denial of the franchise is involved. It is not possible, logically, for the plaintiffs to suggest that these provisions are incompatible, but those allowing for a few more days for enrolment are not.

Hayne J also denied (at 85) that there could be any “constitutional requirement that last minute enrolment be permitted”.42 Heydon J too felt that it was illogical to hold the 2006 amendments to be invalid, while conceding, as the plaintiffs did, the validity of the seven-​day grace period.43 In contrast, Gummow and Bell JJ in the majority dismissed the relevance of the fact that the people affected by the shorter grace period had disobeyed the law. At 58-​59: It is no sufficient answer … that [the test in] Roach is not reached because the disqualification does not apply to those who have promptly enrolled or claimed transfer of enrolment and only applies to those who have failed to do so, and this state of affairs is the product of permissible legislative choice. Rather, the relevant starting point is to ask whether, at the time when the choice is to be made by the people, persons otherwise eligible and wishing to make their choice are effectively disqualified from doing so. [emphasis in original]

Both Roach and Rowe concerned legislation which restricted voting rights. In Murphy v Electoral Commissioner (2016) 261 CLR 28, the plaintiffs challenged the long-​standing closure of the electoral rolls, in respect of a particular federal election, seven days after the issuance of writs for the relevant election. The closure of the rolls prior to the actual election had long enabled time for the Electoral Commission to ensure that the rolls were accurate. Hence, no new legislation had been passed which reduced, either formally or in substance, the franchise. Rather, the measure was challenged as the Commonwealth had failed to maximise the franchise by extending the time at which one could enroll for an imminent election, especially as such an extension of time was feasible given modern technological developments. The High Court unanimously rejected the claim. The plaintiffs had tried, unsuccessfully, to use the McCloy approach to structured proportionality to bolster their claim. In particular, they claimed that obvious alternative measures were available to increase the franchise for a particular election

42 See also Hayne J at 86. 43 See Heydon J at 92.

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in the form of an extension to the time in which people could enroll to vote in an imminent election. French CJ and Bell J stated (at 53): The plaintiffs in the present case were concerned with provisions reflecting long-​standing limits on the times at which a qualified person could be registered on the Roll. Theirs was not a case about a law reducing the extent of the realisation of the constitutional mandate. It was ultimately a complaint that the legislation did not go far enough in the provision of opportunities for enrolment. The difficulty confronting their case was demonstrated by their attempt to apply the necessity consideration in McCloy by reference to what were said to be obvious and compelling legislative alternatives. One was enrolment up to and including polling day, said to be demonstrated by the electoral systems of three Australian States. Another was a reduction of the suspension period by making it a fixed number of days counted back from polling day. These arguments invited the Court to undertake an hypothetical exercise of improved legislative design by showing how such alternatives could work. In so doing, they invited the Court to depart from the borderlands of the judicial power and enter into the realm of the legislature. The McCloy analysis was inapposite in this case.

Their Honours decided that the plaintiffs had failed to identify a “burden” on the right to vote, which was “fatal” to their claim (at 54-​55): It may be that in the light of modern technology, with appropriate electronic infrastructure and human and financial resources, a system could be devised which would allow enrolments to occur and alterations to be made to the Rolls up to and including polling day. … The existence of such possibilities does not support a characterisation of the design limits of the existing Act as a “burden” upon the realisation of the constitutional mandate of popular choice. The impugned provisions do not become invalid because it is possible to identify alternative measures that may extend opportunities for enrolment. That would allow a court to pull the constitutional rug from under a valid legislative scheme upon the court’s judgment of the feasibility of alternative arrangements. The plaintiffs’ premise that the suspension period reflects a burden on the constitutional mandate of popular choice was not made out. The failure of that premise was fatal to the plaintiffs’ attempts to generalise Roach and Rowe in support of their argument.

Keane J agreed that no relevant burden on voting rights had been identified (at 87-​88), as did Gordon J (at 125). Keane J was also concerned at the implications, if the plaintiffs’ arguments were upheld, that technological advances could render provisions invalid that had once been valid (at 90-​91). The other judges (Kiefel, Gageler and Nettle JJ) found, in separate judgments, that the challenge failed as the law was in fact appropriate and adapted to the end of ensuring the orderly conduct of elections. For example, Kiefel J clarified that neither Roach nor Rowe was “authority for the proposition that it is a constitutional imperative that the maximum number of persons entitled to be enrolled have the opportunity to be enrolled and vote” (at 60). Her Honour went on to find that the plaintiffs were demanding too much of an intrusion into the legislative space by the High Court, given the potential budgetary implications of the requested relief: “[p]‌roportionality analysis does not involve determining policy and fiscal choices” (at 61-​62).44 44 See also Keane J at 91-​92.

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Historically, voting rights for people in the Territories have been much less than those for people in the States. People in the Australian Capital Territory and the Northern Territory did not gain full representation in the House of Representatives until, respectively, 1966 and 1968. Senate representation, albeit less than that granted to the States,45 was granted under the Senate (Representation of Territories) Act 1973 (Cth). Indeed, the constitutionality of Territorian representation in the Senate was itself challenged in the Territorial Senators cases.46 The Court confirmed in Snowdon v Dondas (No 2) (1996) 188 CLR 48 that Territorians have no constitutional voting rights (at 71): Authority makes it clear that the Parliament is empowered to determine, not only the extent of representation of the Northern Territory in the Parliament, but also the terms of representation including matters germane to the franchise, enrolment and the adoption of District boundaries for the purposes of enrolment on the Roll for the Division of the Northern Territory. In this respect, it is enough to mention [the Territorial Senators’ cases].

In Bennett v Commonwealth (2007) 231 CLR 91, the restriction of voting rights in 2004 to Australian citizens for the Legislative Assembly of Norfolk Island was challenged. The requirement was controversial as it disenfranchised a substantial percentage of Norfolk Island’s tiny population who were citizens of New Zealand or the United Kingdom.47 The Court unanimously found the restriction to be authorised under s 122. Gleeson CJ, Gummow, Hayne, Heydon, and Crennan JJ stated (at 110): [T]‌he [Commonwealth] Parliament, if it decides to establish institutions of representative government within a territory, is not bound to conform to any particular model of representative government. There is nothing in the Constitution, and there is nothing inherent in the concept of representative government, that requires the Parliament, if it chooses to legislate for self-​government, to enfranchise residents of Norfolk Island who are not Australian citizens.

Thus, it seems that the High Court still accepts that voting rights can be completely denied to the people of the Territories. It also seemed to find that the Commonwealth, if it chooses to establish a local government in a Territory, is not constrained as to the type of government established. Therefore, Kirby J might be wrong when he stated (at 129) in his concurring opinion in Bennett that it was doubtful that an all-​male franchise in Norfolk Island (which once existed) would be upheld as constitutional today.48

CONCLUSION [13.75]  Leaving aside earlier developments attempted by Murphy J, which failed to gain broader support, the recognition of an implied freedom of political communication in ACTV and Nationwide News stands as the first wave in the 45 Each State currently has 12 Senators, while the Territories only have two each. Territorian Senators only serve for the same period as the House of Representatives, whereas State Senators serve for six years barring a double dissolution. 46 See [1.190] onwards for consideration of the first Territorial Senators case. 47 See Kirby J at 130. 48 See also [1.135].

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interpretative development of implied constitutional rights guarantees. Not only did the High Court in these cases introduce the implied freedom of political communication, and rely upon it to strike down legislation, but also they suggested further freedoms relating to movement, association and participation. The second wave of development then took place when the High Court confirmed the implied freedom of political communication in Theophanous, Stephens and Cunliffe and gave it an operation not only upon legislation, but also on the common law. This second wave was, however, characterised by an intensification of the disagreements within the Court, evident in the first wave of cases, over the source, scope and content of the implied freedom and led to something of a turning in the tide. The third wave of development, constituted by the decisions in McGinty, Lange and Kruger, marked a retreat from the high water mark of the second wave. Although the unanimous decision in Lange firmly established the place of the implied freedom of political communication in Australian constitutional law, it also seemed to confirm that the court would be slow to recognise other implied constitutional requirements. The following cases on the implied freedom of political communication, namely Coleman, Mulholland, Hinch, Wotton and City of Adelaide, represented a holding pattern. They refined the pre-​existing law on implied rights but did not significantly develop that law. Monis seemed to signal that some Judges (French CJ and Hayne J) were taking a more robust approach to the freedom, becoming less inclined to find laws that burdened the freedom valid. Finally, after a period of 21 years, laws were actually struck down as breaching the freedom in Unions NSW [No 1]. The same outcome arose in Brown in 2017. Furthermore, the Lange test of proportionality seems to have been refined in McCloy and Brown. The constitutional system of representative government has also given rise to an implied right to vote, as seen in Roach and Rowe, with limits on clear display in the more recent case of Murphy. On the other hand, the idea of a free-​standing freedom of association has been rejected in Wainohu and Tajjour, though such a right does exist as a part of the implied freedom of political communication. Given the importance the Court has attached to adequate communication between the represented and their representatives, it might be persuaded by an argument that freedom of political communication requires a significant degree of access to government information which, in turn, may have implications for freedom of information legislation.49 Further, a sufficient degree of freedom of assembly would also seem essential for political communication.

49 See R Jolly, “The Implied Freedom of Political Communication and Disclosure of Government Information” (2000) 28 Federal Law Review 41.

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Chapter 14

General Themes in Federal Constitutional Law [14.10]

INDIGENOUS PEOPLE AND THE CONSTITUTION.................................................................. 541 [14.15] Sovereignty issues............................................................................................................... 542 [14.20] Constitutional provisions regarding Indigenous people at Federation...................... 545 [14.25] The 1967 referendum.......................................................................................................... 547 [14.30] The race power today......................................................................................................... 548 [14.35] Future directions for reconciliation................................................................................... 558 [14.40] CONSTITUTIONAL PROHIBITIONS ON DISCRIMINATION................................................... 562 [14.45] Direct and indirect discrimination.................................................................................... 563 [14.50] “Reasonable” discrimination............................................................................................. 569 [14.55] The limited nature of constitutional prohibitions on discrimination.......................... 572 [14.60] PROPORTIONALITY.......................................................................................................................... 575 [14.65] Parsing the proportionality inquiry.................................................................................. 577 [14.70] Proportionality in the High Court.................................................................................... 577 [14.75] Proportionality and characterisation................................................................. 578 [14.80] Proportionality and constitutional guarantees................................................ 579 [14.85] Judicial deference to the legislature.................................................................. 581 [14.90] Conclusion on proportionality.......................................................................................... 582 [14.95] CONCLUSION..................................................................................................................................... 583

[14.05]  In this final chapter, we discuss a number of themes which cut across constitutional law issues. First, we address the constitutional issues regarding the recognition and rights of those whose legal system first applied to the land, the Indigenous peoples of Australia. Second, there are a number of areas where the notions of discrimination and proportionality have become relevant in constitutional law. The material on discrimination and proportionality is discussed in varying degrees of detail in other chapters. However, we believe it is helpful to consolidate some of that material in this chapter.

INDIGENOUS PEOPLE AND THE CONSTITUTION [14.10]  The Constitutional framework for Australia’s legal system has been conspicuously silent on the recognition and rights of its first peoples. The absence of Indigenous participation in the formation of the constitutional system speaks as much to what the distinctive new nation of Australia was to be, as did the role of free trade, defence and the new States, at the time of Federation and beyond.

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This section examines some of the constitutional issues that are central to the issues of “reconciliation” and “recognition” and the need for the Indigenous and the broader Australian communities to come to agreement on issues of land, government and law.1

Sovereignty issues [14.15]  The Indigenous peoples of Australia never ceded sovereignty to the British. At the time of colonisation (and indeed at and since Federation), no treaties or negotiated agreements were made between the Indigenous peoples and the English.2 Although Captain Cook was issued with instructions to take possession of the territory “with the consent of the natives”, he neither sought nor obtained the consent of Australia’s Indigenous people before he claimed possession of the east coast in 1770. Governor Phillip’s instructions to establish a settlement at Botany Bay in 1788 provided no stipulation that the rights of the Indigenous people be upheld, and indicated that the new colony was unequivocally the sovereign domain of the British Crown. On the basis of the assumption of terra nullius, and the “discovery” of “uninhabited” lands, English law washed across the continent, and no applicable Indigenous law or sovereign rights were recognised (see also [1.65]). In Mabo v Queensland (No 2) (1992) 175 CLR 1 Brennan J explained the acquisition of the Australian colony (at 36): In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally. Thus the theory which underpins the application of English law to the Colony of New South Wales is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though New South Wales were “an uninhabited country … discovered and planted by English subjects”. The common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. As the subjects of a conquered territory and of a ceded territory became British subjects, a fortiori the subjects of a settled territory must have acquired that status. Its introduction to New South Wales was confirmed by s 24 of the Australian Courts Act 1828 (Imp) (56) 9 GEO IV c 83.

The perception that there was no applicable legal system or sovereign ruler over the territory of Australia prior to European settlement was purportedly validated by Anglo-​Australian common law in the case of Cooper v Stuart (1889) 14 App Cas 286 at 291, when the Privy Council said that New South Wales was, upon settlement, a territory “practically unoccupied, without settled inhabitants or settled law”. Thus the enlarged concept of terra nullius became a foundation upon which the development of Australia’s settler law was built. As Brennan J went on to explain in Mabo (at 39-​40): 1 See further Council for Aboriginal Reconciliation, Final Report (2000) at http://​www5.austlii.edu.au/​ au/​orgs/​car/​finalreport/​contents.htm 2 John Batman signed two treaties with Victorian Koories in 1835, although Governor Burke did not accept them as binding on the colonial authorities. See generally A Campbell, John Batman and the Aborigines (Kibble, Melbourne, 1987).

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As the indigenous inhabitants of a settled colony were regarded as “low in the scale of social organization”, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen CJ said, there was “no other proprietor of such lands”. Thus, a Select Committee on Aborigines reported in 1837 to the House of Commons that the state of Australian Aborigines was “barbarous” and “so entirely destitute … of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded”. The theory that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher “in the scale of social organization” than the Australian Aborigines whose claims were “utterly disregarded” by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.

After examining the International Court of Justice’s rejection of the legitimacy of the theory of terra nullius in the Advisory Opinion on Western Sahara (1975) ICJ Rep 39, Brennan J continued (at 41-​42): If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be “so low in the scale of social organization” that it is “idle to impute to such people some shadow of the rights known to our law” [In re Southern Rhodesia (1919) AC, at 233-​234] can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-​existent was justified by a policy which has no place in the contemporary law of this country. … Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.

The High Court majority agreed with Brennan J in Mabo (No 2), and rejected the fiction that the territory was unoccupied, thus recognising that the Indigenous people of Australia had a pre-​existing legal system, and consequently had certain rights under that system which remained in force until the new sovereign power modified those rights. This formed the basis for the capacity of Australia’s common law to recognise a form of Indigenous property law known as “Native Title”. However, it is evident that in displacing the doctrine known as terra nullius, the court left an ambiguity regarding the issue of whether the colony was settled or conquered.3 Toohey J noted (at 182) that the plaintiffs had accepted that the Murray Islands “were settled by the British rather than conquered or ceded”, but it should be recognised that this was a compromise by the parties, who were seeking to argue an issue of property title, rather than the issue of where sovereignty ultimately might lie. 3 See further G Simpson, “Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence” (1993) 19 Melbourne University Law Review 195.

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It might have been thought that the partial recognition of Indigenous law in the Mabo (No 2) case potentially paved the way for a reassessment of Indigenous sovereignty. In the following cases Mason CJ, sitting alone, dismissed any possibility of such an argument. In Coe v Commonwealth (No 2) (1993) 118 ALR 193 the plaintiff sought to argue, on behalf of the Wiradjuri people, that the Wiradjuri were a sovereign nation of people, and alternatively that they were a “domestic dependent nation”4 entitled to self-​government and full rights to their traditional lands. Mason CJ responded (at 200): Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-​government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognized by the laws of the Commonwealth, the State of New South Wales and the common law. Mabo (No 2) denied that the Crown’s acquisition of sovereignty over Australia can be challenged in the municipal courts of this country ((1992) 175 CLR, at 15, 31-​32, 69, 78-​79, 122, 179-​180). Mabo (No 2) recognized that land in the Murray Islands was held by means of native title under the paramount sovereignty of the Crown. The principles of law which led to that result apply to the Australian mainland as the judgments make clear. The consequence is that pars 6, 7 and 8 which are the core of the plaintiff’s claim do not disclose a reasonable ground for relief.

In Walker v New South Wales (1994) 182 CLR 45 the Chief Justice again reiterated his view of the sovereignty argument (at 47-​49): The defendant’s case is that the statement of claim does not plead a reasonable cause of action. By that statement of claim, the plaintiff accepts that he has been charged with an offence against the laws of New South Wales which allegedly occurred at Nimbin, a place said to be within the area of the Bandjalung “nation” of Aboriginal people. The plaintiff himself is said to be a member of the Noonuccal “nation” of Aboriginal people. The statement of claim alleges that the common law is only valid in its application to Aboriginal people to the extent to which it has been accepted by them. Concerning statute law, the statement of claim then alleges: 10. The Parliaments of the Commonwealth of Australia and of the States lack the power to legislate in a manner affecting aboriginal people without the request and consent of the aboriginal people. 11. Further and in the alternative, if the Parliament of the Commonwealth or of a State legislates in a manner affecting aboriginal people the law in so far as it relates to aboriginal people is of no effect until it is adopted by the aboriginal people whom, or whose land, it purports to effect [sic]. Couched as they are in terms of the legislative incapacity of the Commonwealth and State Parliaments, those pleadings are untenable. The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever (Constitution Act 1902 (NSW)). The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be

4 This argument invoked an expression applicable to certain Indigenous American peoples, raised in the case of Cherokee Nation v State of Georgia 30 US (5 Pet) 1 (1831).

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rejected. … There is nothing in the recent decision in Mabo v Queensland (No 2) to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo (No 2) rejected that suggestion. In so far as it is based on the proposition that the legislatures lacked power to legislate over Aboriginal peoples, the statement of claim discloses no reasonable cause of action.

The Chief Justice’s judgments in these post-​Mabo cases suggested that any recognition of independent or concurrent sovereignty of Indigenous Australians is not likely to be successfully argued before the Australian High Court.5 Rather, political processes might be the source of some level of recognition for the self-​determination and sovereign rights which are applicable to Indigenous people. This directly raises the reconciliation issues surrounding a “treaty”, discussed at [14.35].

Constitutional provisions regarding Indigenous people at Federation [14.20]  Australia’s federation is often heralded as being founded by democratic processes. Indeed, the Preamble refers to the people of the various States having “agreed to unite in one indissoluble Federal Commonwealth … under the Constitution”. However, not all of the people were invited to vote on the formation of the Federation, nor were they considered to be a part of it. The drafters of the Constitution operated at a time of explicit and ingrained racism. The Anglo-​Australians had clear assumptions of their racial superiority, and this was backed up by a wide array of pseudo scientific theories that gave purported credibility to those views. In this environment Indigenous peoples were perceived to be a “dying race”6 so the drafters did not turn much attention to them. They were considered “marginal”, particularly for purposes of calculating public expenditures.7 At Federation, there were only two references to the Indigenous people in the Constitution. Section 51(xxvi) provided that the Commonwealth had 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. [emphasis added]

5 See also A Lokan’s conclusion in “From Recognition to Reconciliation: The Functions of Aboriginal Rights Law” (1999) 23 Melbourne University Law Review 65 at 120. See also Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 443-​444 who said “what the assertion of sovereignty by the British Crown necessarily entailed was that there could be thereafter be no parallel law-​making system in the territory”; thus reiterating the rejection of any construction of divisible sovereignty or pluralist legal frameworks in Australia. 6 G Sawer, “The Australian Constitution and the Australian Aborigine” (1966) 2 Federal Law Review 17 at 18. 7 J Chesterman and B Galligan, Citizens Without Rights: Aborigines and Australian Citizenship (Cambridge University Press, Melbourne, 1997), p 71.

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This head of power was designed to allow the Commonwealth to make laws about racial minorities, such as the Melanesian field labourers (then described as “Kanakas”) and the Chinese migrants on the goldfields. The States were very guarded of the power they were granting to the Commonwealth, and only assigned those topics that were perceived to be of federal concern, such as interstate trade and commerce, defence and external affairs. The Indigenous peoples were not considered to be of federal concern.8 Thus, the States retained control over Indigenous peoples within their borders.9 The second provision was s 127, which stated: In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

The main purpose behind this clause related to funding arrangements whereby the Commonwealth guaranteed certain government funds on the basis of State populations, and the distribution of federal parliamentary constituencies between States, which is proportionate to each State’s population under s 24. Section 127 thus seemed based on the assumption that the Indigenous people were so inferior that they were not to expect the same level of government expenditure or political participatory rights as non-​Indigenous Australians. In addition it is worth noting s 25 which reads: 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 that race resident in that State shall not be counted.

Section 25 was designed to discourage States from discriminating against people on the grounds of race with regard to the right to vote, as such discrimination would result in a reduction in that State’s parliamentary representation in the federal Parliament under s 24. Nevertheless, the section seems to contemplate the exclusion of a racial group from the franchise, including Aborigines and Torres Strait Islanders, which suggests s 25 is an inappropriate and objectionable provision.10 Thus the Constitution did not formally exclude Indigenous people from citizenship or the vote, nor did it mandate lower levels of government expenditure or social services. However, the Constitution did not protect Indigenous people from such discrimination, leaving such issues to State legislatures. Those Constitutional provisions which addressed Indigenous Australians involved an exclusionary proposition: Indigenous people are not to be counted as Australians.

8 Kirby J in Kartinyeri v Commonwealth (1998) 195 CLR 337 traces the history of the formulation of the section at 404-​409. 9 The Commonwealth could exercise power over Indigenous people in the Territories under s 122 of the Constitution. 10

Final Report of the Constitutional Commission (AGPS, 1988), pp 156-​157.

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The 1967 referendum [14.25]  For most of the period from 1901 to 1967, the majority of Indigenous people could not vote,11 receive social welfare, move freely from place to place, choose their place of residence, own property, receive wages, or have guaranteed rights to keep their own children.12 This was due not only to legislation, but also to the way in which legislation concerning Indigenous people was administered by executive governments, and a failure by all governments to significantly redress the historical and ongoing damage caused by entrenched racism against Indigenous Australians. In 1958, the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) was formed with the aim of campaigning for repeal of discriminatory legislation, and to “amend the federal Constitution to give the Commonwealth Government power to legislate for aborigines as for other citizens”.13 The campaign did not bear fruit until 1967, by which time an expectation had grown that only the federal government could undertake uniform, comprehensive responsibility for remedying the dire disadvantage suffered by Indigenous Australians. The call for a referendum came to assume a powerful symbolic and virtual mythical significance. It seemed that a successful referendum had the potential to effect fundamental change in the social, political and economic reality for Indigenous Australians.14 It was assumed that the alteration to the Commonwealth’s powers would lead to the displacement of discriminatory State laws, and the availability of increased financial resources to redress the material disadvantage of Indigenous Australians. Kirby J described the circumstances of the 1967 referendum in his judgment in Kartinyeri v Commonwealth (1998) 195 CLR 337 at 408-​409: the leaders of all of the major Australian political parties issued statements supporting the amendment to par (xxvi) and the repeal of s 127. The Prime Minister (Mr Holt), in his statement said that it was not acceptable to the Australian people that the national Parliament “should not have power to make special laws for the people of the Aboriginal race, where that is in their best interests”. For the Federal Opposition, Mr Whitlam stated that the then provisions of the Constitution were “discriminatory”. He pointed out the need to assist Aboriginal communities in the realms of housing, education and health, and stated that the Commonwealth must “accept that responsibility on behalf of Aboriginals”. It was also vital, he argued, to remove the excuse “for Australia’s failure to adopt many international conventions affecting the welfare of Aborigines”. For the Australian Country Party, its Deputy Leader, Mr Anthony, explained that the amendment to the Constitution “would give the Commonwealth Government, for the first time, power to make special laws for the benefit of the Aboriginal people throughout Australia”. The Australian Democratic Labor 11 See generally, Chesterman and Galligan, n 7, Chapter 6, on the history of the Indigenous franchise. 12 See generally, Chesterman and Galligan, n 7, Chapter 6; Human Rights and Equal Opportunity Commission (HREOC), Bringing Them Home, National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997); Q Beresford and P Omaji, Our State of Mind: Racial Planning and the Stolen Generation (Fremantle Arts Centre Press, 1998). 13 See B Attwood, A Markus, D Edwards and K Schilling, The 1967 Referendum or When Aborigines Didn’t Get the Vote (Aboriginal Studies Press, Canberra, 1997), p 24. 14 B Attwood et al, n 13, p 59. See also P Kelly, “Unfinished Business”, The Australian (14 March 2001), p 11.

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Party, Senator Gair titled his statement “End Discrimination –​Vote ‘Yes’ ” and explained that his Party had “adopted the slogan ‘Vote Yes for Aboriginal Rights’ ”. There was not the slightest hint whatsoever in any of the substantial referendum materials placed before this Court that what was proposed to the Australian electors was an amendment to the Constitution to empower the Parliament to enact laws detrimental to, or discriminatory against, the people of any race, still less the people of the Aboriginal race. The referendum was put on 27 May 1967. It was overwhelmingly approved. In the history of Australian constitutional referenda, no other such vote has come close to the unique political and popular consensus demonstrated in the 1967 referendum on Aborigines.

The referendum campaign was based on an appeal to liberal principles, emphasising the beneficial nature of the alteration. Despite some variation between the rural and urban “yes” vote, the referendum result was the strongest endorsement of constitutional reform in Australia’s history.15 It is arguable that the referendum was not so much a vote in favour of the Commonwealth gaining power and control over Indigenous issues, but an expression of support for general unspecified beneficial outcomes for the Indigenous people. Thus the referendum acquired great symbolic meaning and it was believed that the Commonwealth would assume control of Indigenous affairs, sweep away racial discrimination, grant citizen rights and achieve equality for Indigenous Australians. However, despite the apparent intentions of voters to guarantee “equal rights” for Indigenous people, the reality of the result of the 1967 referendum was more prosaic. The amendment simply empowered the Commonwealth to enact “special laws” for Indigenous people, but it did not require the Commonwealth to pass those laws. The States retained concurrent power over Indigenous people. Similarly the amendment, by deleting s 127, provided that Indigenous people could be counted in the national census, but it introduced no explicit reference to citizenship per se. The changes to the census count, and the expansion of the federal Parliament’s powers represented an important symbolic shift in the wider electorate’s recognition of the multiple breaches of the human rights of Indigenous people, yet there was little practical change to the laws or the administration of the law as an immediate result of this symbolic change.

The race power today [14.30]  What is the meaning of the Commonwealth’s power under s 51(xxvi), the race power? Interestingly, there is little contemporary discussion of the appropriateness of having a Commonwealth power based on the concept of “race”, even though it is difficult to find any objective standard of what constitutes a “race” today (although it might have seemed clear to the drafters of the Constitution).16 The contemporary issue regarding the race power is whether the Commonwealth has plenary power over the people of any race, so as to make laws for the people of any race, whether those laws are beneficial or detrimental, wholly or partially. The alternative proposition is that the race power is restricted, permitting only laws 15 See E Campbell, “Changing the Constitution: Past and Future” (1989) 17 Melbourne University Law Review 1 at 21. 16 See the discussion in J Malbon, “The Race Power under the Australian Constitution: Altered Meanings” (1999) Sydney Law Review 80, especially at 81-​85.

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which benefit the people of the particular race, excluding detrimental laws from the ambit of s 51(xxvi). Limitations to Parliament’s race power may be construed from the requirement within the placitum that “special” laws for “the people of any race” be necessary, and from consideration of the underlying benevolent voter intentions in 1967 (at least with regard to laws affecting Indigenous Australians).17 There are few cases on the scope of the race power, and none clearly resolve the issue over whether the amended s 51(xxvi) allows laws which discriminate against Indigenous Australians. In Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, a number of Justices addressed the issue regarding the scope of s 51(xxvi) in obiter dicta. Murphy, Brennan and Deane JJ indicated that the power could only support the enactment of laws which benefited a particular race, while Gibbs CJ indicated that the race power was plenary, and could therefore support beneficial and detrimental laws. In Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373 all of the Justices agreed that the Native Title Act 1993 (Cth) had been validly enacted under s 51(xxvi). They also found that the Act was for the benefit of Indigenous Australians. In comparison to the pre-​existing common law, the Act clarified the rights of native title holders, and provided protection against future inconsistent State laws.18 As the Court found that the law was in fact beneficial for Indigenous Australians, there was no need to consider whether s 51(xxvi) authorised the enactment of detrimental laws. The majority (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) did indicate however (at 460) that, while it was for the Parliament to essentially decide whether a special law for a race was “necessary”, the Court may retain supervisory jurisdiction over the question of “necessity” in order to guard against “manifest abuse” of the power. The scope of the race power was considered again in Kartinyeri v Commonwealth (Hindmarsh Island case) (1998) 195 CLR 337. The background to this case is complex. The South Australian Government approved a proposal for a tourist facility and a bridge from the South Australian mainland to Hindmarsh Island in 1994. A group of local Indigenous women sought a declaration under s 9 or s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Heritage Protection Act) to halt the bridge construction, claiming that it would desecrate sacred sites. Under ss 9 and 10, the responsible Minister was empowered to make emergency and other declarations containing “provisions for and in relation to the protection and preservation” of areas which are “significant Aboriginal area[s]‌”. The Commonwealth Minister commissioned a report from an independent reporter as to the nature of the claimed threat of injury, as required by the Act. Upon receipt of the report the

17

In Koowarta v Bjelke-​Petersen (1982) 153 CLR 168 it was held that the Racial Discrimination Act 1975 which applied to protect people of all races from discrimination, was not a “special law” for the people of any one race, and was therefore not enacted under s 51(xxvi); see Gibbs CJ at 187 and Stephen J at 207. The law was validly enacted under the external affairs power, s 51(xxix) (see [4.35]).

18 Arguments may, however, be made that certain parts of the Act did detrimentally affect native title owners by confirming the validity of past State and Territory Acts which diminished native title; those past acts may otherwise have been rendered invalid by the Racial Discrimination Act 1975 (Cth). See [7.30].

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Minister made a declaration protecting the site, and preventing the bridge from being built. A number of legal challenges were brought against the declaration, and the Federal Court found that the reporting process was defective.19 A new report was commissioned. In the meantime the South Australian Government appointed a Royal Commission, which found that the original claims for protection were not genuine.20 Subsequently the second independent reporter (Matthews J of the Federal Court) had her appointment invalidated, for breach of separation of powers in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 (see [6.100]). A change of federal government occurred in 1996; the new Parliament passed the Hindmarsh Island Bridge Act 1997 (Cth) (the Bridge Act), exempting the Hindmarsh Bridge project from the ministerial approval processes, effectively allowing the project to go ahead. The Kartinyeri case itself concerned a challenge to the validity of the Bridge Act. The only substantive provision of the Bridge Act is s 4:

4 (1) The Heritage Protection Act does not authorise the making of a declaration in relation to the preservation or protection of an area or object from any of the following activities: (a) the construction of a bridge, and associated works (including approaches to the bridge), in the Hindmarsh Island bridge area; (b) work or other activities in that area preparatory to, or associated with, that construction; (c) maintenance on, or repairs to, the bridge and associated works; (d) use of the bridge and associated works; (e) the removal of materials from, or dumping of materials in, the pit area in connection with any of the activities mentioned in paragraphs (a), (b) and (c). (2) The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) that relates (wholly or partly) to activity [associated with the construction of the Hindmarsh Island bridge].

The effect of the Act was thus to remove the bridge construction site from the potential protection of the Heritage Protection Act, thus ensuring the construction of the bridge despite any consequent harm to Indigenous heritage within the area. The question before the High Court was whether the Bridge Act was validly enacted pursuant to s 51(xxvi) of the Constitution. The plaintiffs were Indigenous women belonging to the Ngarrindjeri people, whose heritage they claimed was threatened by the bridge construction. Counsel for the plaintiffs argued first that s 51(xxvi) did not authorise laws that distinguished or discriminated between members of a racial group. The Act here did distinguish within a racial group as the Act’s detriment was felt by only one Indigenous group, the Ngarrindjeri. Second, it was argued that any law enacted under the race power had to be for the benefit or advancement of people of any race, or at least not detrimental to these people. The Bridge Act was detrimental because it 19

See Chapman v Tickner (1995) 55 FCR 316 and Tickner v Chapman (1995) 57 FCR 451.

20 For the outcome of the Royal Commission see South Australia, Report of the Hindmarsh Island Bridge Royal Commission (1995) but cf D Bell, Ngarrindjeri Wurrurarrin: A World That Is, Was, and Will Be (Spinifex Press, Melbourne, 1998), especially Chapter 7, and M Tehan, “To Be or Not To Be (Property): Anglo-​Australian Law and the Search for Protection of Indigenous Cultural Heritage” (1996) 15 University of Tasmania Law Journal 267 at 298-​301.

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deprived the plaintiffs of rights they might otherwise have been able to enjoy under the Heritage Protection Act. In the alternative, it was argued that s 51(xxvi) did not authorise laws which were detrimental to Indigenous Australians, considering the goodwill associated with the 1967 constitutional alteration. Five Justices rejected the challenge, with Kirby J dissenting.21 No majority, however, emerged with regard to the scope of the race power. Three Justices interpreted the Bridge Act as constituting a partial repeal of the Heritage Protection Act, as its effect was to partially roll back the scope of the 1984 Act. As the Heritage Protection Act was undoubtedly a law validly enacted under s 51(xxvi), the same head of power could support its whole or partial repeal. Brennan CJ and McHugh J stated (at 356): Once the true scope of the legislative powers conferred by s 51 are perceived, it is clear that the power which supports a valid Act supports an Act repealing it.

Thus, three of the majority (Brennan CJ, Gaudron and McHugh JJ) decided the case on the basis that what Parliament can enact it may repeal, in whole or in part.22 This decision meant that these three Justices did not need to consider the scope of s 51(xxvi). Gaudron J, however, did deliver some obiter views on that issue. Gummow and Hayne JJ, also in the majority, did not accept the “repeal” argument, but went on to find the law validly enacted under s 51(xxvi).23 Kirby J did not agree that the Bridge Act was a simple repeal of the Heritage Protection Act, and went on to find it invalid. Thus, Gaudron, Gummow, Kirby and Hayne JJ all delivered statements on the scope of s 51(xxvi). Gaudron, Gummow, Hayne and Kirby JJ rejected the first argument, that s 51(xxvi) does not authorise laws which distinguish or discriminate between members of a racial group, finding that s 51(xxvi) can support a law with respect to a sub-​group of a particular race. The four Justices, however, split on the issue of whether s 51(xxvi) only authorises laws for the benefit of the people of a race or, in the alternative, for the benefit of the people of the Indigenous race. Gummow and Hayne JJ suggested that the power could be used to impose a disadvantage on Indigenous people, while Gaudron and Kirby JJ disagreed. Gummow and Hayne JJ said (at 378-​380): It is true that “unlike the aliens power or the corporations power”, s 51(xxvi) “is not expressed to be a power to make laws simply with respect to persons of a designated

21 Only six Justices sat, with Callinan J excusing himself, having given advice as a QC to the government on the validity of the Hindmarsh Island Bridge Bill 1997. 22 See P Johnston and J Edelman, “Beyond Kartinyeri: Drawing the Flame Close to Wik” (1998) 1 Constitutional Law and Policy Review 41 at 42. See also the judgment of McHugh J in Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 51-​ 52, excerpted at [12.35], regarding the scope of Commonwealth power under s 51(xxxi). 23 Gummow and Hayne JJ found that only laws which expressly repeal certain provisions of a prior Act can be presumed valid on the basis of the “repeal” argument. The Bridge Act did not effect a textual repeal, and therefore needed to be independently characterised under s 51(xxvi).

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character”. A law will only answer the constitutional description in s 51(xxvi) if it (i) is “deemed necessary” (ii) that “special laws” (iii) be made for “the people of any race”. The term “deem” may mean “to judge or reach a conclusion about something”. Here, the judgment as to what is “deemed necessary” is that of the Parliament. Nevertheless, it may be that the character of a law purportedly based upon s 51(xxvi) will be denied to a law enacted in “manifest abuse” of that power of judgment. Even if such a restraint (in addition to those stated or implied elsewhere in the Constitution, such as in s 51(xxxi)) exists there is no occasion for its application to the Bridge Act. The scope of the Heritage Protection Act was such that, if the various conditions required by that law were satisfied, the Minister might, upon application, have made declarations under ss 10 and 12 with respect to the Hindmarsh Island bridge area and the pit area. Such a declaration would have been subject to disallowance by either legislative chamber, as s 15 contemplated. There is no “manifest abuse” of its power of legislative judgment for the Parliament to accelerate matters by determining that, in respect of particular areas, the Ministerial power of declaration was withdrawn. It was for the Parliament to make its assessment of the circumstances which led it to deem it necessary to enact the Bridge Act. As just indicated, “differential operation” is that which gives to any law based upon s 51(xxvi) its character as a “special” law. Once it is accepted, as it has been, that a law may make provision for some only of a particular race, it follows that a valid law may operate differentially between members of that race. That is the situation with the Bridge Act. Moreover, as was said in the joint judgment in the Native Title Act Case [183 CLR at 461]: A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. Here, the Bridge Act imposes a disadvantage, of the nature identified above, with respect to areas and objects within the Hindmarsh Island bridge area and the pit area. The disadvantage is in the contraction of the field of operation of the Heritage Protection Act, itself a law which is to be taken as supported by s 51(xxvi). The differential operation of the one law may, upon its obverse and reverse, withdraw or create benefits. That which is to the advantage of some members of a race may be to the disadvantage of other members of that race or of another race. Extreme examples, given particularly the lessons of history (including that of this country), may be imagined. But such apprehensions cannot, in accordance with received doctrine, control what otherwise is the meaning to be given today to heads of federal legislative power.

Gummow and Hayne JJ added that the 1967 constitutional amendment did not act to introduce an implied limit to legislative power under s 51(xxvi). Gummow and Hayne JJ thus found that the power was not restricted to only beneficial laws for Aboriginal and Torres Strait Islander peoples. They did concede that the power might not support a law enacted in “manifest abuse” of parliament’s power, but the Bridge Act was not in their view such a “manifest abuse”, so the law was valid. Gummow and Hayne JJ therefore found that s 51(xxvi) permits all laws which single out a specific race, apart, perhaps, from laws which are so prejudicial and irrational as to amount to a “manifest abuse” of public trust. Gaudron J agreed that the 1967 referendum did not alter the character of s 51(xxvi) so as to restrict Parliament’s power. She nevertheless went on to identify, in her view, important limits to the power. She stated (at 365-​367):

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The criterion for the exercise of power under s 51(xxvi) is that it be deemed necessary –​ not expedient or appropriate –​to make a law which provides differently for the people of a particular race or, if it is a law of general application, one which deals with something of “special significance or importance to the people of [that] particular race”. Clearly, it is for the Parliament to deem it necessary to make a law of that kind. To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind. Were it otherwise, the words “for whom it is deemed necessary to make special laws” would have no operation and s 51(xxvi) would simply be a power to make laws for the people of any race. Once it is accepted that the power conferred by s 51(xxvi) may only be exercised if there is some material upon which the Parliament might reasonably form a judgment that there is a difference necessitating some special legislative measure, two things follow. The first is that s 51(xxvi) does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races. A simple example will suffice. Rights deriving from citizenship inhere in the individual by reason of his or her membership of the Australian body politic and not by reason of any other consideration, including race. To put the matter in terms which reflect the jurisprudence that has developed with respect to anti-​discrimination law, race is simply irrelevant to the existence or exercise of rights associated with citizenship. So, too, it is irrelevant to the question of continued membership of the Australian body politic. Consequently, s 51(xxvi) will not support a law depriving people of a particular racial group of their citizenship or their rights as citizens. And race is equally irrelevant to the enjoyment of those rights which are generally described as human rights and which are taken to inhere in each and every person by reason of his or her membership of the human race. The second matter which flows from the requirement that there be some matter or circumstance upon which the Parliament might reasonably form the judgment that there is some difference pertaining to the people of a particular race which necessitates some special law is that the law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted. A similar view was expressed by Deane and Toohey JJ in Leeth v Commonwealth [(1992) 174 CLR 455 at 489], it being said by their Honours that s 51(xxvi) authorises “discriminatory treatment of members of [a particular race] to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership”. Although they did not explain why that was so, the requirement flows, in my view, from the need for there to be some material or circumstance from which it might reasonably be concluded by the Parliament that there is some difference necessitating a special law. Unless the law in question is reasonably capable of being viewed as appropriate and adapted to the difference which is claimed, it could not be concluded that the Parliament formed the view that there was such a difference. Because the power conferred by s 51(xxvi) of the Constitution is premised on there being some matter or circumstance pertaining to the people of a particular race upon which the Parliament might reasonably conclude that there is a real and relevant difference necessitating the making of a special law, its scope necessarily varies according to circumstances as they exist from time to time. In this respect the power conferred by par (xxvi) is not unlike the power conferred by s 51(vi) to legislate with respect to defence. And as with the defence power, a law that is authorised by reference to circumstances existing at one time may lose its constitutional support if circumstances change.24 24 See [2.50] on the defence power.

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In summary (at 367-​ 368), Gaudron J found that only laws directed towards remedying disadvantage were likely to be authorised by s 51(xxvi): Although the power conferred by s 51(xxvi) is, in terms, wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid. It is even more difficult to conceive of a present circumstance pertaining to Aboriginal Australians which could support a law operating to their disadvantage. To put the matter another way, prima facie, at least, the circumstances which presently pertain to Aboriginal Australians are circumstances of serious disadvantage, which disadvantages include their material circumstances and the vulnerability of their culture. And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances. Notwithstanding that it is difficult to envisage circumstances in which a law which operated to the disadvantage of the people of a racial minority might validly be enacted under s 51(xxvi) of the Constitution, the test of constitutional validity is not whether it is a beneficial law. Rather, the test is whether the law in question is reasonably capable of being viewed as appropriate and adapted to a real and relevant difference which the Parliament might reasonably judge to exist. It is the application of that test to today’s circumstances, so far as they are known, that leads to the conclusion that prima facie, at least, s 51(xxvi) presently only authorises laws which operate to the benefit of Aboriginal Australians.

In short, Gaudron J accepted the simple repeal argument regarding the validity of the Bridge Act. However, her views, expressed in obiter, on the actual scope of s 51(xxvi) were more complex. She felt that the words “deemed necessary” and “special” in s 51(xxvi) incorporated a test of proportionality into the head of power; a law could not be validly enacted under s 51(xxvi) unless it could reasonably be seen as necessary to enact such a special law for a race. A law must be “appropriate and adapted” to the accommodation of a real difference between the race affected by the law, and other races.25 In those circumstances, it seemed impossible or at least extremely unlikely that a law which operated to the detriment of a racial minority, particularly Indigenous Australians considering their socio-​economic disadvantages, could be authorised under s 51(xxvi). Interestingly, Gaudron J equated her proportionality test with the “manifest abuse” test mentioned in obiter in the Native Title Act case and possibly endorsed by Gummow and Hayne JJ. She stated (at 366-​367): I have attempted to explain the need for a law to be reasonably capable of being viewed as appropriate and adapted to some difference which the Parliament might reasonably judge to exist by reference to the language of s 51(xxvi). However, the matter may also be expressed in terms used in the Native Title Act case. A law which deals differently with the people of a particular race and which is not reasonably capable of being viewed as appropriate and adapted to a difference of the kind indicated has no rational basis and is, thus, a “manifest abuse of the races power” [183 CLR at 460]. So, too, it would be irrational and, thus, a manifest abuse of the races power if Parliament were to enact a law requiring or providing for the different treatment of the people of a particular race

25 See further [14.60] onwards, on proportionality.

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if it could not reasonably form the view that there was some difference requiring their different treatment.

Gaudron J likened “manifestly abusive” laws with “disproportionate” laws, a much broader interpretation than was given to that term by Gummow and Hayne JJ. Kirby J in dissent found the law to be beyond the scope of the race power because it was detrimental to Indigenous people by reference to their race. He wrote a compelling judgment (at 411-​413): I have concluded that the race power in para (xxvi) of s 51 of the Constitution does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race No authority of this Court requires the rejection of the plaintiffs’ submission about the meaning of para (xxvi). It is therefore necessary to start the elucidation of its requirements with the text, viewed in its context. First, the power is not simply to make laws with respect to “[t]‌he people of any race”. In this regard para (xxvi) is to be contrasted with para (xix) which affords such a plenary power, relevantly, with respect to “aliens”. In para (xxvi), words have been added which must have work to do. They are intended to send signals of meaning to the reader of the paragraph. The requirement that laws made under para (xxvi) by reference to race should be “deemed necessary” and should be “special” cannot be dismissed as mere surplusage. In a constitutional text noted for its brevity, the additional words must clearly have the purpose of putting a limitation on what would otherwise be an unbridled race power. It may be assumed that the drafters of para (xxvi) would have been aware of the sharply divided opinions which were evident in the Conventions: some of the delegates viewing detrimental or adversely discriminatory laws by the new Parliament as “disgraceful”. On the face of things, therefore, the stated pre-​conditions to the use of the race power were intended to indicate a brake on legislation with respect to “the people of any race”. All people in the Commonwealth were people of a “race”. Most of the settlers would probably, in 1901, have regarded themselves as people of the British race or, perhaps, Caucasians. Clearly, a race power for “special” laws was not intended to have application to them. Secondly, the words of qualification in para (xxvi) must be read as a composite idea. The parts combine to impose a control on the laws which may be made under the paragraph. As a matter of language, the words are consistent with an operation that is non-​detrimental and has no adverse discrimination about it. This is particularly so if the structure, purpose and other features of the Constitution support that meaning. The word “for” is ambiguous. It could mean “for the benefit of”. Or it could mean “in respect of”. The history of the power in its original form tends to favour the latter meaning. However, a textual argument against that meaning is that, where the framers of the Constitution intended that idea, it was so expressed. Thus it was done in paras (xxxi), (xxxvi) (“in respect of”); in para (xxii) (“in relation thereto”); and in para (xxxii) (“with respect to”). The test of necessity in para (xxvi) is a strong one. It is to be distinguished from advisability, expedience or advantage. Its presence in para (xxvi) indicates that a particular need might enliven the necessity to make a special law. It has been held by this Court, and was conceded by the Commonwealth, that ultimately and in “extreme cases” the existence of such necessity was justiciable. Various formulae were urged to emphasise the severe limits of the jurisdiction to review the posited necessity. But in my view, the legislation contested here is subject to judicial review. There appears nothing in the agreed facts about the Ngarrindjeri, or the section of them constituted by the plaintiffs, which calls forth the power in para (xxvi) on the ground of necessity by reference to the race of such people. The only necessity evident in the facts (and stated in the long title to the Bridge Act) is the necessity “to facilitate the construction of the

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[bridge]”. The fact that any law made under the race power must be deemed “necessary” and must answer to the description of “special” marks such a law out from all other laws that may be made by the Parliament. It tenders to the Parliament, and ultimately to this Court, criteria of limitation which must be given meaning according to the understanding of the Constitution read today. Other paragraphs of s 51 contain concepts, the content of which has varied during the history of the Commonwealth because they are read with different eyes at different times in the light of different necessities. The clearest example is para (vi) which relates to the defence of the Commonwealth. Quite apart from the fact that the words “naval” and “military” have been enlarged to embrace the airforce, the reach of the power has expanded and contracted as changing times of war and peace have necessitated. It is therefore unsurprising that we, who look at para (xxvi) in 1998, read the adjectival clause which qualifies the power of the Parliament to make laws with respect to “the people of any race” informed by the experience of a century of federal government. In that century the concept of what it is, in the nature of law, that may be deemed “necessary” and in a “special” form for the people of a race, by reference to race, cannot, and should not, be understood as it might have been in 1901. Such a static notion of constitutional interpretation completely misunderstands the function which is being performed. Thirdly, a crucial element in the history of the constitutional text is the amendment of para (xxvi) in 1967. Because there have been so few amendments to the Australian Constitution, it has not hitherto been necessary to develop a theory of the approach to be taken to the meaning of the text where a provision is altered. In deriving the meaning of the altered provision, conventional rules of statutory construction permit a court to take into account the legislative change. But this is much more important in elucidating a constitutional text. This is especially so in Australia because of the necessity, exceptionally, to involve the electors of the Commonwealth in the law-​making process. That step requires that this Court, to understand the amendment, should appreciate, and give weight to, the purpose of the change. The stated purpose here was to remove two provisions in the Constitution which, it had ultimately been concluded, discriminated against Australian Aboriginals. Whatever the initial object of the original exception to para (xxvi), by the time that the words were removed, the amendment did not simply lump the Aboriginal people of Australia in with other races as potential targets for detrimental or adversely discriminatory laws. It was the will of the Australian Parliament and people that the race power should be significantly altered. If the Constitution were not to be changed to provide the power to make laws with respect to the advancement of Aboriginal people and to forbid discrimination on racial grounds …, it was to be altered, at least, to remove their exclusion from the Parliament’s law-​making power in order that the Parliament might have the power to make special laws with respect to them. To construe the resulting power in para (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to para (xxvi). It would amount to a refusal to acknowledge the unprecedented support for the change, evident in the vote of the electors of Australia. This Court should take notice of the history of the amendment and the circumstances surrounding it in giving meaning to the amended paragraph.

Kirby J also issued a passionate rejection of the “manifest abuse” test (at 414-​417): In order to explain why the Australian Parliament could not, under the Constitution, enact racist laws such as those made in Germany during the Third Reich and in South Africa during apartheid –​a result by inference accepted as totally alien to the character and meaning of our Constitution –​counsel for the Commonwealth argued that it was enough that this Court retained a supervisory jurisdiction although one limited to invalidity of laws

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in cases where the Parliament’s reliance upon para (xxvi) was a “manifest abuse” of that power. Such a test has found favour with some of the Justices in this case. As I understand the test of “manifest abuse”, it is to be confined to legislation which the Court considers to be “extreme”, “outrageous” or “completely unacceptable”. In evaluating whether such a test is a legally viable, and therefore an acceptable, one, it is instructive to examine how, in practice, a law that has an adverse discriminatory effect may not at first appear, on its face, to constitute a “manifest abuse” or an “outrageous” exercise of the enabling power. The criterion of “manifest abuse” is inherently unstable. The experience of racist laws in Germany under the Third Reich and South Africa under apartheid was that of gradually escalating discrimination. Such has also been the experience of other places where adverse racial discrimination has been achieved with the help of the law. By the time a stage of “manifest abuse” and “outrage” is reached, courts have generally lost the capacity to influence or check such laws. A more stable and effective criterion is required for validity under para (xxvi). It should be one apt to the words and character of the Australian Constitution; but also to the shared experience of the Australian people that lay behind the amendment of para (xxvi) in 1967. The laws of Germany and South Africa to which I have referred provide part of the context in which para (xxvi) is now understood by Australians and should be construed by this Court. I do not accept that in late twentieth century Australia that paragraph supports detrimental and adversely discriminatory laws when the provision is read against the history of racism during this century and the 1967 referendum in Australia intended to address that history. When they voted in that referendum, the electors of this country were generally aware of that history. They knew the defects in past Australian laws and policies. And they would have known that the offensive legal regimes in Germany during the Third Reich and South Africa under apartheid were not the laws of uncivilised countries. Both in Germany and in South Africa the special laws enacted would probably have been regarded as unthinkable but a decade before they were made. They stand as a warning to us in the elaboration of our Constitution. The purpose of the race power in the Australian Constitution, as I read it, is therefore quite different from that urged for the Commonwealth. It permits special laws for people on the grounds of their race. But not so as adversely and detrimentally to discriminate against such people on that ground.

Kirby J further supported his conclusion by referring to human rights norms in comparative and international law (see also [1.230]). Indeed it seems appropriate that the acknowledged ambiguity within s 51(xxvi) could be resolved in favour of protecting rather than diminishing rights. However, no clear majority on this issue emerged in the case. Although in earlier cases, such as Mabo (No 2), and Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1, the Justices had discussed and dismissed the possibility of contemporary racially discriminatory laws being acceptable, these were not issues that involved discussion of the race power. Ultimately, when required to rule on the validity of a contemporary detrimental law based on distinctions of race, the Court failed to interpret the Constitution in a manner that protected Indigenous people from racial discrimination.26 26 See also M Davis “Competing Notions of Constitutional ‘Recognition’: Truth and Justice or Living ‘off the Crumbs that Fall off the White Australian Tables’?” (2014) Papers on Parliament No 62.

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Kartinyeri did not clarify whether the Commonwealth can enact laws which are detrimental to the people of one race under s 51(xxvi). Gummow and Hayne JJ would permit such an exercise of power, while Gaudron and Kirby JJ would not. Notably, in his final judgment prior to constitutionally mandated retirement, Kirby J expressed his enduring frustration at the position adopted by the High Court on Kartinyeri, and the treatment of Indigenous people by the Court generally, in Wurridjal v Commonwealth (2009) 237 CLR 309 at 393: History, and not only ancient 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 reference to that criterion [here, his Honour cites Kartinyeri]. The history of Australian law, including earlier decisions of this Court, stands as a warning about how such matters should be decided. Even great judges of the past were not immune from error in such cases. Wrongs to people of a particular race have also occurred in other courts and legal systems. In his dissenting opinion in Falbo v United States, Murphy J observed, in famous words, that the “law knows no finer hour” than when it 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.27

A challenge to the Native Title Amendment Act 1998 (Cth), which diminished native title property rights in comparison with other property rights (thus acting to the detriment of Indigenous Australians), and which cannot be characterised as a partial repeal (as opposed to an amendment) of the Native Title Act 1993 (Cth), might have obliged the Courts to finally make a clear decision on the scope of s 51(xxvi).28 However, no challenge has yet been raised.29

Future directions for reconciliation [14.35]  At a fundamental level, the Constitution represents the primary law of the nation. It establishes our system of government and assumes participatory democracy as its elementary principle. Constitutional reform has proven to be historically difficult, but that should not prevent attempts to alter it so as to reflect the reality of prior Indigenous ownership and first discovery of Australia, as well as the imperatives of equality and difference, in order to come to terms with our past and to shape the future.30

27 Kirby J’s frustration appears to be as a result of the decision of the majority to reject “the claimants’ challenge to the constitutional validity of the federal legislation that is incontestably less favourable to them upon the basis of their race and does so in a ruling on a demurrer” (at 395). Kirby J’s criticism was met with stern rebuke by French J’s at 337. For discussion of Wurridjal, see [12.45]. 28 See, for speculation regarding the constitutional validity of the Native Title Amendment Act 1998 (Cth), Johnston and Edelman, n 22, pp 47-​48. 29 The scope of s 51(xxvi) did not arise in Wurridjal, which was concerned with the scope of ss 51(xxxi) and 122. 30 Further matters of substantive economic and social inequality, such as standards of health, education, housing and employment must of course be addressed, and programs to meet these needs are still

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The change of government in 2007 brought some reinvigoration to the attempt to resolve the “unfinished business” of reconciliation. Upon the opening of the 42nd federal Parliament on 13 February 2008, Kevin Rudd, the new Prime Minister, made a formal apology to the stolen generations, in a widely acclaimed speech.31 As with the 1967 referendum, the aspirations for the impacts of the Apology far outweighed the reality of what the federal government could or would do in the short term. The Apology did not represent any change to the constitutional or legislative deficiencies identified in this chapter. Recently there have been further developments towards constitutional recognition of Indigenous Australians.32 The recommendations of the Prime Minister’s Expert Panel in 2012,33 and the subsequent enactment of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth), indicated a renewed political impetus for constitutional reform. Key recommendations of the Expert Panel included the removal of ss 25 and 51(xxvi), the insertion of a new s 51A to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Commonwealth’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples, the insertion of a new s 116A, banning racial discrimination by government and the recognition of Indigenous languages (while confirming English as Australia’s national language) in a new s 127.34 These recommendations emerged from a detailed and wide-​ ranging consultative process across Australia, incorporating the views of Indigenous community members, representative organisations, individuals, constitutional experts, political representatives and the general public.35 However, at the time of writing it seems as if these recommendations will not move forward towards a referendum. More recently, a national deliberative dialogue process for Aboriginal and Torres Strait Islander peoples took place in 2016-​2017, with regional conferences supported by an advisory body, the Referendum Council.36 These dialogues culminated in the

critical. See M Castan, “Reconciliation, Law, and the Constitution”, in M Grattan (ed), Reconciliation (Bookman Press, Melbourne, 2000), pp 202, 206. 31 See “The Apology” at Australia, House of Representatives, Parliamentary Debates (Hansard), 13 February 2008 at pp 167-​173 (the Hon K M Rudd MP, Prime Minister). See also the comment by Kirby J that the Apology is not “legally irrelevant” in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 at 70. 32 Further matters of substantive economic and social inequality, such as standards of health, education, housing and employment still must be addressed, and programs to meet these needs are still of course critical. M Castan, “Reconciliation, Law, and the Constitution”, in M Grattan (ed), Reconciliation (Bookman Press, Melbourne, 2000), pp 202, 206. 33 Prime Minister’s Expert Panel, The Report of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2012) (Expert Panel). 34 Expert Panel, n 33. 35 See M Castan, “Closing the Gap on the Constitutional Referendum” (2013) 8 Indigenous Law Bulletin 13. 36 See further M Davis and M Langton (eds), It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform (Melbourne University Press, Melbourne, 2016) and N Pearson, Quarterly Essay –​A Rightful Place: Race, Recognition and a More Complete Commonwealth (Black Inc, Carlton, 2014).

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presentation of The Uluru Statement from the Heart in central Australia, in mid-​2017.37 This Statement called for two substantive reforms. The first was for constitutional amendment to incorporate a Voice to Parliament, that is an advisory First Nations representative body that would influence and participate in the development of Commonwealth law and policy regarding Indigenous matters. Entrenchment is considered necessary in order to protect the body against dissolution due to changes in political support for such a body, as well and to engender popular support for guaranteed political advocacy by Indigenous representatives. The second reform is the establishment through legislation of a Makarrata Commission with responsibilities for developing treaty making processes, and to support a national truth-​telling process about past abuses, among other matters. Together these reforms are understood as delivering structural and substantive reform to the legal and political processes that have until now excluded Indigenous sovereignty and self-​ determination from Anglo-​Australian public law. The Uluru Statement also asserts the authority of Aboriginal and Torres Strait Islander Australians to sovereignty and self-​determination, both well-​known concepts of political autonomy and authority in international law. The Statement makes these assertions on the basis of spiritual connection to, and as first possessors of, the land of Australia, and it represents a pluralistic expression of law, a concept that is common in countries that are former colonies where a traditional (or customary) legal system sits alongside the laws of the former colonial authority. As Australian constitutional law, and federal, state and territory laws have generally been dismissive, derogatory and often destructive of Indigenous laws and governance structures, there are strong arguments for Constitutional reform to address the Uluru Statement. It is not yet known when, or whether, these calls for substantive reform will form the basis of a referendum. Any referendum process itself may have wider effects on Australian society at large, much as the 1967 referendum and the national Apology each represented a nation-​wide shift in attitudes.38 There remain strong arguments for the Constitution to include acknowledgment of the first occupancy, ownership and sovereignty of Australia by Indigenous peoples, and the Uluru Statement, as an expression of Indigenous engagement within the constitutional law, offers added weight to those arguments, and may itself be the catalyst for reforms.39 Further, the Constitution currently fails to protect the basic human rights standards that contemporary Australians might (wrongly) assume are recognised, protected and enforced. As explained in Chapters 12 and 13, the federal Constitution guarantees few fundamental rights and freedoms. The consequences of the absence

37

The Uluru Statement from the Heart (2017); Referendum Council, Final Report of the Referendum Council (Commonwealth of Australia, 2017).

38 See Castan, n 30, p 206. A proposal to alter the preamble, which did not adequately acknowledge prior Indigenous custodianship, was rejected at referendum in 1999. 39 We note that specific constitutional protection of Indigenous rights, like that adopted by Canada, are often raised as a possibility, see s 35(1) of the Constitution Act 1982 (Canada) which recognises and affirms “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”. There is not scope in this text to pursue those suggestions.

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of a constitutional bill of rights were manifested in the capacity of the Parliament to enact the Northern Territory National Emergency Response Act 2007 (Cth), which was explicitly contrary to the Racial Discrimination Act 1975 (Cth).40 An earlier example of the lack of rights protection arose in Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1. The plaintiffs contested the constitutionality of a Northern Territory Ordinance which had authorised the compulsory removal of Indigenous children from their parents, as well as the compulsory detention of Indigenous people on reserves. Arguments were submitted that the Ordinance violated a number of alleged Constitutional rights: namely freedom from arbitrary detention,41 rights of equality (see [14.55]), freedom of religion (see [12.85]), freedom of movement and association (see [13.50]) and freedom from genocide. All of these claims failed, and the legal justifications for most of those rejections are discussed elsewhere in this book. Here we will briefly examine the finding regarding genocide. The plaintiffs alleged that the law, by authorising the compulsory transfer of the children of one racial group to the people of another racial group, constituted genocide. Such a practice is identified as genocide under Art II of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 when such is carried out with the intention of destroying, in whole or in part, the former racial group. Indeed, the Human Rights and Equal Opportunity Commission found that the “removals policy” was genocidal, in a report published after a comprehensive investigation in 1997.42 The High Court, however, found that the Northern Territory Ordinance did not authorise removals for genocidal purposes, but only for “welfare” purposes.43 The Justices’ interpretation of the Ordinance meant that they did not have to decide whether the Constitution in fact prohibits genocide, yet three Justices considered the matter anyway. One Justice, Gaudron J, found that the Constitution impliedly prohibits genocide, while two Justices (Dawson and Gummow JJ) found that the Constitution did not. Dawson J stated (at 72): whatever the form of genocide which the plaintiffs assert was authorised by the 1918 Ordinance, it cannot be said that the provisions of the 1918 Ordinance were beyond the sovereign power of the Parliament to enact laws under s 122 for the government of the territories.

If Dawson and Gummow JJ are correct, the federal Constitution fails to guarantee one of the most fundamental human rights and one of the most fundamental norms of customary international law.44 40 See s 132. See also M Langton, “Trapped in the Aboriginal Reality Show” (2008) 19 Griffith Review: Re-​ imagining Australia 143, and cf J Altman and M Hinkson, Coercive Reconciliation: Stabilise, Normalise, Exit Aboriginal Australia (Arena, 2007). 41 This argument was considered as an argument regarding separation of judicial power. See [6.165]. 42 HREOC, n 12. 43 That is not to deny that genocidal removals may have taken place: see S Joseph, “Kruger v Commonwealth: Constitutional Rights and the Stolen Generations” (1998) 24 Monash Law Review 486 at 495. See also Cubillo and Gunner v Commonwealth (2000) 103 FCR 1. 44

See also Nulyarimma v Thompson (1999) 96 FCR 153; Re Thompson; Ex parte Nulyarimma (1998) 148 FLR 285.

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Indigenous Australians, by virtue of past and continuing disadvantage and discrimination, would be among the greatest beneficiaries of the incorporation of a bill of rights into the Constitution, or at least into ordinary federal legislation (which would still override inconsistent State and Territory laws). In the past there have been calls for “treaty”, agreement or instrument which recognises the distinct rights of Indigenous people, and sets in place national standards.45 With the Uluru Statement representing the will of Indigenous peoples, it is now evident that substantive constitutional reforms are possible and necessary.46 Recognition of Indigenous rights (whether they be cultural, political or economic) need not be put to one side as “too contentious” or “divisive”. The inclusion of specific Indigenous rights, beyond general rights of non-​discrimination and equality, would be appropriate and would redress the constitutional omissions of our forefathers.47 The Constitution and laws of Australia have characteristically reflected the denial of Indigenous identity, presence, laws and rights. Past examples include protection laws associated with policies of dispossession, assimilation and child removals, and laws that denied basic civil and political rights, such as voting, political participation, citizenship and freedom of movement and association. Current examples include laws regarding the administration of criminal justice that superficially appear unbiased yet are applied in a manner that reflects entrenched racism.48 The resolution and recognition of the role that law and the Anglo-​Australian legal system have played in the discrimination against Aboriginal and Torres Straits Islander peoples, as well as protection from continuing oppression, is as essential now as it was in 1967. Comprehensive resolution of these issues, including constitutional reform, is well overdue.

CONSTITUTIONAL PROHIBITIONS ON DISCRIMINATION [14.40]  “Discrimination” arises when any distinction between things (for example, persons, other entities) is made. This section addresses the instances where discrimination is prohibited under the Constitution. The Constitution expressly prohibits discrimination on specific grounds in a number of situations. For example, s 51(ii) prohibits discrimination between States or parts 45

The  Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) is Australia’s first treaty law. For more on the contemporary Victorian Treaty process, see https://​www.vic.gov.au/​aboriginalvictoria/​ treaty.html. Treaty proposals can be found in documents such as M Langton, “A Treaty between our Nations”, Inaugural Professorial Lecture (University of Melbourne, November 2000); P Dodson, “Beyond the Mourning Gate: Dealing with Unfinished Business”, Wentworth Lecture (Australian and Torres Strait Islander Institute of Studies, Canberra, 12 May 2000). Issues regarding a national treaty are explored at length in S Brennan, L Behrendt, L Strelein and G Williams, Treaty (Federation Press, Annandale, 2005).

46 For greater detail on how such an advisory body might be constituted, and how the constitution might be amended see A Twomey, “An Indigenous Advisory Body: Addressing the Concerns about Justiciability and Parliamentary Sovereignty” (2015) 8(1) Indigenous Law Bulletin 6, the work of the Cape York Institute (https://​ capeyorkpartnership.org.au/​ ) and of the Uphold and Recognise organisation (http://​www.upholdandrecognise.com/​). 47 It would also be consistent with the United Nations General Assembly, Declaration on the Rights of Indigenous Peoples, adopted in 2007, which Australia endorsed in 2009. 48 Castan, n 30, p 209.

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of States with regard to taxation laws. Similarly, s 51(iii) has been interpreted so as to prohibit the Commonwealth from discriminating between States or parts of States with regard to bounties on goods.49 Section 99 prohibits the Commonwealth from conferring preferences on States or parts of States with regard to laws of trade, commerce or revenue. Section 117 prohibits discrimination on the basis of interstate residence (see [12.95]). There are also a number of implied prohibitions on discrimination. For example, the States are immune from Commonwealth legislation which discriminates against the States (as a whole) or the government of a particular State (see [8.35]). Furthermore, the modern interpretation of the protection for interstate trade granted by s 92 is that it prohibits only discriminatory burdens, rather than all burdens on such trade (see [11.35]). Thus, the definition of “discrimination” is important with regard to determinations under s 92. The following commentary traces the development of the High Court’s interpretation of “discrimination” in the constitutional context from its early formalistic and overly simplistic approach to the contemporary interpretation, which recognises the inherent complexities within the notion of “discrimination”. The High Court’s modern interpretation of constitutionally relevant discrimination has been clearly influenced by international and comparative developments regarding discrimination, which have largely concerned discrimination in the context of human rights guarantees, which prohibit discrimination on the basis of grounds such as race, gender or religion. However, despite the sources of the Court’s greater understanding of “discrimination”, the Court has refrained from expanding its interpretation of the Constitution so as to provide for a general constitutional freedom for individuals from arbitrary or unreasonable forms of discrimination. The door to such a broader interpretation, which had been left ajar after the Court’s decision in Leeth v Commonwealth (1992) 174 CLR 455, was slammed shut in the subsequent decision in Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1.

Direct and indirect discrimination [14.45]  Direct discrimination arises when a law, rule, requirement or condition expressly treats people or entities differently on the basis of a certain characteristic. For example, a law which expressly prohibited women from becoming police officers would directly discriminate on the basis of sex: a different rule is being applied to women as opposed to men. Indirect discrimination arises when a law, rule, requirement or condition is neutral on its face, but impacts disproportionately in its effect on a group of people with a certain characteristic.50 For example, suppose a law imposed a height requirement that police officers be at least six feet tall. Such a law would indirectly discriminate on the basis of sex as women are generally shorter than men, and are as a group less likely to satisfy the law’s height criterion. Indirect

49

See R v Barger (1908) 6 CLR 41 at 70.

50 See Lord Lester of Herne Hill and S Joseph, “Obligations of Non-​Discrimination”, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, Oxford, 1995), p 575.

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discrimination involves consideration of the substantive impact of law, rather than merely its formal application. For a long period of time the High Court defined “discrimination” in the constitutional context, and in other contexts, purely in terms of “direct discrimination”. This early interpretation manifested an overt concern with the form of a law as opposed to its substance. This stance was not surprising, as it was not until the seminal United States Supreme Court case of Griggs v Duke Power Co 401 US 424 (1971) that indirect discrimination first emerged as a recognised legal concept. In that case, a requirement of a high school diploma for a job erecting power poles was found to indirectly discriminate against “Negroes”, who were less likely to have a diploma than “whites”. Therefore, it was not until the 1970s that the terms “direct” and “indirect” discrimination made their way into the legal vernacular.51 James v Commonwealth (1928) 41 CLR 442 demonstrates the Court’s early exclusive focus on direct discrimination. In James, the Dried Fruits Act 1928 (Cth) was challenged for supposed incompatibility with s 99. The law prohibited the delivery of dried fruit for interstate carriage without a licence. Licensing authorities were set up in only four States: New South Wales, South Australia, Victoria and Western Australia. The High Court found that the law, clearly a trade law within s 99, discriminated against growers in Queensland and Tasmania, who could not obtain a licence. However, on the facts at hand, no commercial growers existed in those States, which contained no commercial dried fruit industry. The Court, however, found a breach of s 99 due to the existence of direct discrimination on the face of the law. The fact that no grower actually suffered discrimination was irrelevant. Disregard for the notion of indirect discrimination, then of course an unknown term, was made clear by Higgins J (at 462): Where the rule laid down is general, applicable to all States alike, but is found to operate unequally in the several States not from anything done by the Commonwealth Parliament, but from the inequality in the conditions existing in … the States themselves … the Commonwealth Parliament has not been guilty of discrimination or preference between States.

In Colonial Sugar Refining Co v Irving [1906] AC 369, the Excise Tariff Act 1902 (Cth) was challenged for breach of s 51(ii). Section 5 exempted from duties of excise goods on which customs or excise duties had been paid under State legislation before 8 October 1901.52 The law therefore imposed the same rule with respect to all States, and did not discriminate on its face against any State. However, the law undoubtedly had a different effect on the goods in the various States, depending upon the pre-​existing tax legislation in the various States. The law in its effect would have discriminated between States with regard to taxation, the very thing prohibited by s 51(ii). However, as the discrimination was indirect and not direct, no breach was found. 51 B Gaze and M Jones, Law, Liberty and Australian Democracy (Law Book Company, North Ryde, 1990), pp 416-​417; see also N O’Neill and R Handley, Retreat from Injustice: Human Rights in Australian Law (Federation Press, Annandale, 1994), pp 371ff. 52 The power to impose customs and excise duties was taken away from the States upon the passage by the Commonwealth Parliament of uniform customs duties under s 90. See generally, Chapter 9.

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The emphasis on direct discrimination and the form rather than the effect of a law probably influenced the development of the prevailing interpretation of the prohibition on discrimination between “parts of States” in ss 51(ii) and 99. In Elliott v Commonwealth (1935) 54 CLR 657, the Court split over whether a law which set out a regime for the registration of waterside workers to be applied in specified ports, namely Sydney, Melbourne, Brisbane and Port Adelaide, contravened s 99. First of all, the majority of 4:2 found that the law conferred no relevant “preference” on those ports compared to other areas of Australia. The law certainly applied different treatment to those ports, but it did not confer any particular advantage on those ports according to the majority. More importantly for our purposes, the Court split 3:3 over whether the law discriminated between “parts of States”. The statutory majority took the view that such discrimination only arose when a Commonwealth law distinguished between two locations on the basis that they were in different States, as opposed to a law which discriminated between two localities which happened to be in different States. For example Latham CJ stated (at 675): [Previous case] authorities make, in my opinion, proper to hold that the discrimen which s 99 forbids the Commonwealth to select is not merely locality as such, but localities which for the purpose of applying the discrimen are taken as States or parts of States. In the regulations in question [in Elliott] the application of the regulations depends upon the selection of ports as ports and not of States or parts of States as such. In my opinion s 99 does not prohibit such differentiation.

The narrow approach to the definition of “parts of States” means that the Commonwealth can circumvent this part of the s 99 prohibition through shrewd legislative drafting. For example, a trade law which expressly distinguished between “the capital of Victoria” and “the capital of New South Wales” would breach s 99. However, a trade law which expressly distinguished between “Melbourne” and “Sydney” would not. Conroy v Carter (1968) 118 CLR 90 concerned the validity of the Poultry Industry Levy Collection Act 1965 (Cth), which provided for the collection of a tax from poultry farmers. Section 5(1) provided that the Commonwealth could make an arrangement with a State for that State’s Egg Board to collect the tax in that State on the Commonwealth’s behalf. Section 6(1) provided that the State Egg Board could deduct the amount of the tax from any money that it owed to a poultry farmer, if a collection arrangement had been made under s 5(1). The Court split 3:3 as to whether constitutional discrimination had occurred. The statutory majority, consisting of Barwick CJ, McTiernan and Menzies JJ found that the discrimination was direct, as the Act distinguished between different States, namely between those with a collection arrangement and those without. Taylor, Kitto and Windeyer JJ, however, found that the Act did not directly discriminate against States with regard to taxation; it simply applied the same rule to all States though the effect of the rule would vary according to whether a State adopted the collection arrangement. The Court essentially split over whether the discrimination arose directly from the application of the Commonwealth Act, or from circumstances outside the control of the Act.53 53 As noted in J Clarke, P Keyzer and J Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (9th ed, LexisNexis Butterworths, Chatswood, 2013), pp 592-​593. The minority decision appears to accord more with the earlier decision in Colonial Sugar Refining Co v Irving [1906] AC 369.

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A similar formalistic approach was taken to early cases on s 117. For example, in Davies and Jones v Western Australia (1904) 2 CLR 29, the plaintiffs challenged s 86 of the Administration Act 1903 (WA), which provided that property inherited by persons domiciled in Western Australia paid half of the “death duties” payable by other persons. The Court found that the law did not contravene s 117, as it discriminated on the basis of “domicile” rather than “residence”. “Residence” refers to where a person lives, while “domicile” takes into account residence plus intention to remain resident. The law in its effect undoubtedly discriminated against interstate residents. However, the Court focused on the strict application of the law, which was to discriminate on the basis of domicile rather than residence per se, and thus found it to be valid. In Henry v Boehm (1973) 128 CLR 482, r 27 of the Rules of the South Australian Supreme Court was challenged under s 117. The rule required legal practitioners admitted in other States to reside in South Australia for three months before they could be admitted to the South Australian bar. The High Court majority found that the law did not discriminate on the basis of interstate residence, as it applied the same conditions to all persons registered at an interstate bar, regardless of where they lived. A South Australian resident was bound by the residence requirements just as much as a non-​resident. Stephen J dissented in finding a breach of s 117 in Henry. He compared the effect of the law on the plaintiff as a Victorian resident with the hypothetical effect the law would have had on the plaintiff as a resident of the legislating State, South Australia. It was clear that the effect on the plaintiff as a South Australian resident would normally be negligible (in effect a requirement to stay put for three months) compared to the actual effect on the plaintiff as a resident of Victoria (a requirement to move for three months). In comparing the substantive effects of the law on intrastate and interstate residents, Stephen J was essentially extending the reach of s 117 so as to cover “indirect discrimination”. He did not, however, use that term, as it was virtually unknown in Australia in the early 1970s. The High Court unanimously endorsed Stephen J’s interpretation of s 117 in Street v Queensland Bar Association (1989) 168 CLR 461. The maturation of the Court’s understanding of the concept of discrimination is evident in the Justices’ references to the notion of “indirect discrimination” and to the Griggs decision and other comparative precedents. On the other hand, it is arguable that the Court departed from the Street interpretation of s 117 in Sweedman v Transport Accident Commission (2006) 226 CLR 362 (see [12.95]). Such departure, however, was not explicit and was possibly accidental. Indirect discrimination has also been accepted as being relevant to the issue of intergovernmental immunities. Under the doctrine of implied intergovernmental immunities, the Commonwealth may not discriminate against the governments of the States, or the government of a State. In Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, the Court found that a Commonwealth law could not discriminate against a State in either substance or form. The Court clearly recognised that laws of general application could breach the prohibition on discrimination by having a disproportionate impact on the States or a State (see [8.40]). The Queensland Electricity interpretation has been endorsed in subsequent cases, such as Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 240.

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While the Court in Austin v Commonwealth (2003) 215 CLR 185 may have decreased the significance of discrimination in the context of intergovernmental immunities, discrimination, whether direct or indirect, remains a highly relevant consideration (see [8.55]). Similarly the Court has found that s 92 prohibits both direct and indirect discrimination against interstate trade in favour of intrastate trade. For example, in Castlemaine Tooheys v South Australia (1990) 169 CLR 436, the Court unanimously found that a South Australian law breached s 92 as it discriminated against Bond Brewing’s interstate trade in packaged beer in favour of local South Australian packaged beer traders. The law did not single out interstate packaged beer traders for disadvantageous treatment so there was no direct discrimination. However, on the facts in Castlemaine Tooheys, the substantive effect of the law was to disadvantage Bond while conferring a corresponding preference on local South Australian manufacturers. A breach of s 92 was entailed in this indirect discrimination (see [11.50]). Section 99 was finally reconsidered in Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388. The case concerned the validity of the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), a law enacted under the Commonwealth’s exclusive head of power, s 52(i). That Act dealt with an issue arising from the Court’s earlier decision in Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630. In Allders, the Court had decided that State stamp duties could not be directly applied to Commonwealth places as the Commonwealth had exclusive legislative power over such places under s 52(i). The Mirror Taxes Act provided for the payment of State taxes, including stamp duties, by Commonwealth places at the rates imposed by the various States: those amounts were collected by the Commonwealth and transferred to the States. The result was that Commonwealth places paid different amounts of taxes under the Mirror Taxes Act according to the State in which they were located, as States have different rates of stamp duty. Hence, the appellant argued that there was a breach of s 99. Interestingly, s 51(ii) did not apply in Permanent Trustee as Allders had decided that s 51(ii) did not apply to laws enacted by the Commonwealth under s 52(i). As noted at [14.50], the majority applied the modern approach to discrimination and found no breach of s 99. The discrimination aspect of s 51(ii) finally returned to the High Court in Fortescue Metals v Commonwealth (2013) 250 CLR 548. The case concerned a challenge to the validity of the Minerals Resource Rent Tax (MRRT), a tax imposed on companies that mined iron ore once they reached a certain level of profits. The tax was set at 22.5 per cent on all profits above a certain level. Companies could claim various “allowances” to reduce the assessable amount of profit. Of relevance, allowances could be claimed for any royalties paid under State law. The effect of those allowances was that the amount of MRRT actually paid would vary between States according to the royalty rates imposed by State governments. Hence, it was claimed that the tax varied between States in breach of s 51(ii). The claim was unanimously rejected regarding s 51(ii). All judges found that any differential application was caused by different State laws (in the form of royalty rates) rather than the federal law. For example, Crennan J stated that differences caused by “differential or unequal State mining royalties … are part of the business conditions under which taxpaying miners operate” (at 623), and hence did not enliven s 51(ii) (at

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623). Kiefel J said that there was no discrimination “where the difference results from the provisions of a State law” (at 630). After all, no breach would arise if all States had identical royalty rates (Hayne, Bell and Keane JJ at 606). Hayne, Bell and Keane JJ rejected the idea that s 51(ii) be interpreted to forbid tax laws which have “different economic or other consequences in different States” (at 602), based on previous authorities (at 603). Of course all of those authorities (for example, Colonial Sugar Refining, Conroy v Carter) were decided prior to the revolution in High Court thinking wrought in Street v Queensland Bar Association. Nevertheless, they conceded that the question of discrimination was not resolved by “only by the form of the law”, as its “legal and practical operation” was relevant (at 605). It is not clear, therefore, where the joint judges stood on the question of whether substantive discrimination can breach the prohibition in s 51(ii). They were clearly influenced by the fact that the differential impact of the law in Fortescue was caused by the existence of different royalty regimes prescribed by each of the States. Kiefel J indicated that it was crucial that the State royalty payments were used to ameliorate the amount of profit assessed, rather than to ameliorate the tax rate of MRRT paid: the latter would breach s 51(ii) (at 635). Therefore, the form of the law remains crucial in s 51(ii), as the economic and practical impact of that hypothetical invalid law would probably be very similar to the actual valid law. Hence, Kiefel J seemed to adopt the narrow approach. Indeed, only French CJ clearly adopted the broader approach to discrimination in interpreting s 51(ii) in Fortescue Metals. It was not clear which approach Crennan J adopted. The Court did not explicitly follow the trend of interpretation which had been extended to s 99 in Permanent Trustee. Indeed, s 99 was not extensively discussed in Fortescue Metals, as the plaintiffs had conceded that s 99 could not apply if s 51(ii) did not. Hayne, Bell and Keane JJ seemed to justify the differing interpretations now applying to the two provisions on the basis that s 99 does not use the word, “discrimination” (at 600-​601). However, while “preference” does not bear the same meaning as “discrimination”, it entails a form of discrimination. Furthermore, the broader definition has been used for s 117, which does use the word “discriminate”. Section 99 returned to the Court in Queensland Nickel v Commonwealth (2015) 255 CLR 252. A Queensland company, which produced nickel products, claimed a breach of s 99 entailed in the practical operation of the Jobs and Competitiveness Program (JCP), a scheme stablished under Clean Energy Act 2011(Cth). That Act imposed taxes on entities with regard to the emission of greenhouse gases above a specified threshold volumes of such emissions. The JCP set up a scheme for the issuance of carbon credit units, which could be used to offset the volume of emissions upon which tax was charged. The plaintiff claimed (at 265): More particularly, it was said that, as between the plaintiff [and three producers of nickel products based in Western Australia], there were differences in inputs, production processes and outputs; those differences were at least to some extent caused by differences in natural, business or other circumstances as between the places and thus States in which each of the producers carried on its processing operations; and, because the JCP classified each of the four categories of the "production of nickel" in a manner which made no allowance for those differences, the JCP in effect treated as alike activities which were not alike and thereby mandated a different or unequal taxation outcome for nickel producers according to

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whether their processing operations were located in Queensland or Western Australia. This was said to result in a "preference" being given to Western Australia within the meaning of s 99 of the Constitution.

Nettle J, with whom all other members of the Court agreed, dismissed the claim. His Honour treated Fortescue as a relevant precedent, which indicates that the meaning of preference for the purposes of s 99 is governed by similar principles to the meaning of discrimination for the purposes of s 51(ii). Fortescue was taken to be a precedent which indicated that no breach of ss 51(ii) or 99 would lie where the discriminatory effect was essentially caused by differing State legislation. The argument in Queensland Nickel was different, as the alleged discriminatory impact was said to be caused by the application of a facially neutral law without regard for the “differences between States in natural, business or other circumstances” (at 267). Ultimately, the Court did not have to decide on such matters, as the plaintiff failed to establish that any differential impact of the federal law was caused by differences in circumstances between States. Such differences may, for example, have been caused by other factors unrelated to the geographical location of the businesses (at 269). Hence, it seems that the High Court accepts that direct and indirect discrimination, or discrimination in form and substance, apply in all constitutional contexts concerning discrimination. There may have remained a question mark over the relevance of indirect discrimination in the context of s 51(ii) after Fortescue, but Queensland Nickel indicates that the same principles apply with regard to s 51(ii) as apply in the context of s 99.

“Reasonable” discrimination [14.50]  “Discrimination”, even on sensitive and ostensibly repugnant grounds such as race or sex, is occasionally desirable and even necessary. For example, when one is casting for a theatrical performance, it is normally justifiable to discriminate on the basis of sex. A “leading man” would normally require a male actor. Discrimination is often socially and legally permissible where the relevant distinction is reasonable and objective and designed to achieve a legitimate purpose.54 In Griggs v Duke Power Co 401 US 424 (1971), the impugned high school diploma requirement, which indirectly discriminated against “Negroes”, was not justified, as it could not be shown that such a level of education was necessary to perform the relevant job of erecting power poles. The High Court, in its early interpretations of discrimination, took an unforgiving approach when discrimination was actually found to exist. The Court did not recognise that discrimination was occasionally logical and reasonable. For example, in James v Commonwealth (1928) 41 CLR 442, it was certainly arguable that the relevant discrimination was logical on the facts. To recap, the impugned statute established dried fruit licensing authorities in four States only, thereby discriminating against the two omitted States, Queensland and Tasmania. However, such discrimination

54 The test for permissible discrimination outlined here is derived from international human rights law. See S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials (3rd ed, Oxford University Press, Oxford, 2013), pp 781-​808. Similar tests are contained in domestic and comparative statutory prohibitions on discrimination.

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was surely reasonable considering there were no relevant dried fruit growers in Queensland and Tasmania, so it would have been a patent waste of resources to set up licensing authorities in those States. This consideration was irrelevant according to the Court’s reasoning. Similarly, the possible “reasonableness” of s 6(1) of the Poultry Industry Levy Collection Act 1965 (Cth) in Conroy v Carter was not considered by the statutory majority in its finding of invalidity. Yet it seems quite reasonable for taxes paid by a State Egg Board on behalf of a poultry farmer to be deducted from any amount owed by that Egg Board to that farmer. The simplistic approach in James and Conroy has now been largely rejected. Indeed, the adoption by the High Court of the broader concept of indirect discrimination has been coupled with an acceptance that “reasonable” discrimination is permissible. Hence, the possible devastating effect that the broader indirect approach might have on the scope of federal legislative power, by extending the scope of constitutionally prohibited discrimination, has been tempered by the acceptance of the permissibility of “reasonable” discrimination. Regarding intergovernmental immunities, the Court has confirmed on numerous occasions that the Commonwealth may discriminate against a State where such discrimination has a rational non-​discriminatory purpose (see [8.45]). Regarding s 92, discrimination against interstate trade in favour of intrastate trade is permissible if the discriminatory measures are reasonably necessary to effect a legitimate regulatory purpose (see [11.55]). Regarding s 99, the majority in the Permanent Trustee case applied the modern approach to discrimination in finding that the Mirror Taxes Act did not breach s 99, even though different rates of taxes were imposed according to the State in which a Commonwealth place was located (see [14.45]). At 424, the majority stated: Where then in the Mirror Taxes Act is there to be found the necessary element of discrimination between one State or any part thereof and another State or any part thereof? The scheme of the Mirror Taxes Act is to treat as relevantly of the same character the whole of the geographic area of each State, including those portions which are Commonwealth places; the taxation laws applying in the Commonwealth places are assimilated with those laws in the surrounding State. The scheme of the Mirror Taxes Act may produce differences in revenue outcomes between States, but that mirrors the differences that exist between the different taxation regimes from State to State. The differential treatment and unequal outcome that is involved here is the product of distinctions that are appropriate and adapted to a proper objective. There is no benefit or advantage enjoyed in or in relation to a Commonwealth place that is not shared by the remainder of the State in which it is located.

Hence, the majority found that the discrimination was not unconstitutional as it was justifiable: Commonwealth places paid different rates of State tax under federal law because the States themselves imposed such different rates. In contrast, the minority of McHugh J and Kirby J, in separate judgments, applied the more traditional test of discrimination. McHugh J stated (at 447): The correct meaning and application of s 99 is not informed by the jurisprudence that has developed in respect of discrimination in equal opportunity law in the last 50 years. In s 99,

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“give preference” means no more than give advantage or priority. It is not concerned with the objective or motive of the giver. The differential treatment of States or parts of States cannot be justified by saying that the difference is the product of a distinction which is appropriate and adapted to the attainment of some proper objective of the Parliament of the Commonwealth. The mischief to which s 99 is directed is not the fairness or unfairness of the effect of any preference given in a particular case. The section is contravened by the mere giving of a preference referable to the State or part of a State to which the law applies. Under the Mirror Taxes Act, two identical transactions, occurring in Commonwealth places, may be assessed for different amounts of stamp duty, solely by reference to the State in which the Commonwealth place is located. The relevant “equals” to compare for the purpose of identifying a preference in this case are those transacting in Commonwealth places, not those transacting in each State. That is because s 99 is concerned with preferences given by the federal Parliament. The federal law cannot prefer one Commonwealth place over another by reference to the State in which it is located. And yet that is what the Mirror Taxes Act purports to do.

Regarding s 117, the Court may have taken a stricter approach (see [12.100]). Certainly all Justices have recognised that there are occasions when a State can discriminate against interstate residents. An obvious example concerns the right to vote in State elections: all State franchises have residency requirements which are presumably constitutionally permissible. However, in Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463, the Court refused to permit a State law to discriminate in favour of in-​State residents with regard to access to State government insurance funds, even though State residents are more likely to have contributed to that fund. McHugh J stressed that reasonable, rational or proportionate discrimination was not permitted under s 117. He outlined a stricter test for permissible discrimination under s 117 (at 494): The relevant question in determining whether a subject-​matter is outside s 117, therefore, is “whether, by necessary implication, the matter is so exclusively the concern of the State and its people that an interstate resident is not entitled to equality of treatment in respect of it”.

It is uncertain whether McHugh J’s strict approach represents the majority in the High Court. If so, s 117 is a very strong guarantee of freedom from interstate discrimination (see also [12.100]).55 Thus, the High Court has taken the approach that discrimination which is prima facie prohibited by the Constitution is allowed when “there is a difference which might justify different treatment and, if so, whether the treatment is reasonably capable of being seen as appropriate and adapted to that difference”.56 The test for s 117 may be stricter, with different treatment on the basis of residence only being justified when the discrimination concerns a matter which is exclusively the concern of that State. Finally, we do not yet know whether “reasonable” discrimination is permitted at all under s 51(ii). The issue was raised by the joint judges (at 604-​605) of Fortescue, but

55 See also M Matthieson, “Section 117 of the Constitution: The Unfinished Business” (1999) 27 Federal Law Review 393. 56

Waters v Public Transport Corporation (1991) 173 CLR 349 at 364 per Mason CJ and Gaudron J.

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they decided that they did not have to resolve the matter as no relevant discrimination arose in the case.57

The limited nature of constitutional prohibitions on discrimination [14.55]  The Constitution prohibits discrimination in a number of contexts. In many comparative constitutions, prohibitions on discrimination are designed to preserve the human rights of historically oppressed groups, such as women and vulnerable minorities. However, the constitutional prohibitions on discrimination in Australia are not designed to further human rights, but to preserve federalism and national unity. Sections 51(ii) and 99 prevent the Commonwealth from abusing its financial and commercial powers by discriminating against States. Section 92 is designed to create a free trade area within Australia, abolishing discriminatory trade barriers between States. The doctrine of intergovernmental immunities protects State governments rather than people. In contrast, s 117 does protect individuals from discrimination, but only on the very narrow basis of interstate residence. Certainly, there are many types of discrimination far more heinous than residence discrimination, so the section is of limited value as a “human” right. Section 117 seems more designed to foster national unity rather than to protect the human rights of Australians.58 In Leeth v Commonwealth (1992) 174 CLR 455, a majority in the High Court found that the Constitution guarantees an implied right of equality (see [6.165]). For example, Deane and Toohey JJ stated (at 484-​487): The parties to the compact which is the Constitution were the people of the federating Colonies. … It is the people who, in a basic sense, now constitute the individual States just as, in the aggregate and with the people of the Territories, they constitute the Commonwealth. The implied confinement or restriction of Commonwealth legislative powers to preclude the singling out of the States and their instrumentalities for discriminatory treatment has, however, been uniformly defined in terms which protect only the artificial entities or organs of government rather than the constituent people. Any constitutional protection of the people themselves from arbitrary or discriminatory treatment must be found, if at all, in other express or implied doctrines or provisions. Nonetheless, the implication which protects the States and their instrumentalities is relevant for present purposes for two reasons. First, it would be somewhat surprising if the Constitution, which is concerned with matters of substance, embodied a general principle which protected the States and their instrumentalities from being singled out by Commonwealth laws for discriminatory treatment but provided no similar protection of the people who constitute the Commonwealth and the States. Second, the Constitution’s adoption, by implication rather than express statement, of the general principle protecting the States and their instrumentalities from discriminatory treatment illustrates the general approach of the framers of the Constitution to the underlying doctrines or principles upon which it is structured. That approach was to incorporate underlying doctrines or principles by implication drawn both from the nature

57 French CJ applied the “appropriate and adapted” test (at [49]) in finding the impugned legislation to be valid in Fortescue, but he was the only judge who clearly applied the broader approach to discrimination in that case. 58 See H P Lee and J Paterson, “Australian Nationhood and the Constitutional Interpretation of Section 117” (2000) 8 Asia-​Pacific Law Review 169 at 179-​180. Compare G Ebbeck, “Section 117: The Obscure Provision” (1991) 13 Adelaide Law Review 23 at 33-​34.

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of the Federation and from any particular express provisions of the Constitution which reflect or implement those doctrines or principles. In The Commonwealth v Kreglinger and Fernau Ltd and Bardsley (1926) 37 CLR 393 at 411-​ 412, Isaacs J pointed out “that it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed”. The doctrine of legal equality is in the forefront of those doctrines. It has two distinct but related aspects. The first is the subjection of all persons to the law: “every man, whatever be his rank or condition, is subject to the ordinary law … and amenable to the jurisdiction of the ordinary tribunals”. … The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts. … The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalizes. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. Conformably with its ordinary approach to fundamental principles, the Constitution does not spell out that general doctrine of legal equality in express words. The question arises whether it adopts it as a matter of necessary implication. In our view, several considerations combine to dictate an affirmative answer to that question. For one thing, there is the conceptual basis of the Constitution. As the preamble and s 3 of the Commonwealth of Australia Constitution Act 1900 (Imp) make plain, that conceptual basis was the free agreement of “the people” –​all the people –​of the federating Colonies to unite in the Commonwealth under the Constitution. Implicit in that free agreement was the notion of the inherent equality of the people as the parties to the compact. Indeed, covering cl 5 s 5 expressly enacted the first aspect of the common law doctrine of legal equality, namely, that “(t)his Act” –​which included the actual terms of the Constitution (59) s 9 –​“and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people … of every part of the Commonwealth”. For another thing, the doctrine of legal equality is, to a significant extent, implicit in the Constitution’s separation of judicial power from legislative and executive powers and the vesting of judicial power in designated “courts”. … Thus, in Ch III’s exclusive vesting of the judicial power of the Commonwealth in the “courts” which it designates, there is implicit a requirement that those “courts” exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially. At the heart of that obligation is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds. Finally, once it is appreciated that it is the ordinary approach of the Constitution not to spell out the fundamental common law principles upon which it is structured, the existence of a number of specific provisions which reflect the doctrine of legal equality serves to make manifest rather than undermine the status of that doctrine as an underlying principle of the Constitution as a whole. Among those specific provisions are … [Deane and Toohey JJ go on to cite a number of constitutional provisions such as ss 51(ii), 92, 99 and 117].

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The equality guarantee was not, however, absolute. Deane and Toohey JJ outlined a test for permissible discrimination (at 488): The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment.

Deane and Toohey JJ clearly endorsed the existence of an implied guarantee of substantive equality, applying to both the application of laws and laws themselves. Such a guarantee would be a strong human right, guaranteeing freedom from unreasonable discrimination on numerous grounds, such as race, sex, religion, sexuality and disability. Brennan and Gaudron JJ agreed that an implied right of equality existed in the Constitution, but it was uncertain whether they were endorsing a substantive or a procedural right. In Leeth, Deane, Toohey and Gaudron JJ found that the impugned federal law breached the guarantee of equality by effectively prescribing different non-​parole periods according to the location of a sentencing Court for offenders convicted of the same crime. Brennan J joined in the majority in finding the law valid; he found that the site of the place of conviction was a relevant difference which could justify the imposition of different non-​parole periods. The rest of the majority, Mason CJ, Dawson and McHugh JJ, found the law valid as they rejected the idea that the Constitution generally guaranteed equality. In Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1, it was argued that a Northern Territory law (passed by the Commonwealth Parliament) which had authorised the compulsory removal of Indigenous children from their parents, as well as the compulsory detention of Indigenous people on reserves, breached an implied constitutional right of equality. Only Toohey J found that a right of substantive equality exists in the Constitution. Dawson J in contrast issued a scathing attack on the idea, pointing out the numerous ways in which discrimination is permitted under the Constitution (at 64-​66): Section 51(xxvi), as Deane J recognised in The Tasmanian Dam Case, “remains a general power to pass laws discriminating against or benefiting the people of any race”. Similarly, s 51(xix) enables the Commonwealth Parliament to make laws which discriminate in favour of or against aliens. Discrimination in relation to the qualification to vote in federal elections is clearly envisaged by the Constitution and equality of voting power is not guaranteed [see [13.60]]. And until 1967 (which is after the last alleged act of detention ended), ss 51(xxvi) and 127 excluded Aboriginals for specified purposes. It is unnecessary to provide an exhaustive list of those respects in which the Constitution does not support the suggested doctrine of equality, for Deane and Toohey JJ recognised in Leeth that “the nature of the particular grant of legislative power may be such as to rebut the assumption that such discrimination was unauthorised by the relevant provision of the Constitution” or may need to be “adjusted to the extent necessary to accommodate discriminatory treatment which other provisions of the Constitution clearly contemplate”. To recognise as much is surely to undermine any basis for asserting that the Constitution assumes a doctrine of equality. Not only that, but where the Constitution requires equality it does not leave it to implication. It makes provision for it by prohibiting discrimination, preference or lack of uniformity in specific instances. For example, the power of the Commonwealth Parliament to make laws with respect to taxation conferred by s 51(ii) must not be exercised so as to discriminate between States or parts of States. Section 88 provides for uniform customs duties and s 51(iii)

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provides for uniform bounties. Section 92, in requiring trade, commerce and intercourse among the States to be absolutely free, prohibits discrimination of a protectionist kind. Section 99 forbids the Parliament to give preference to one State or any part thereof over another State or any part thereof by any law or regulation of trade, commerce or revenue. And s 117 provides that 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. In Leeth, Deane and Toohey JJ said that the existence of these specific provisions “which reflect the doctrine of legal equality serves to make manifest rather than undermine the status of that doctrine as an underlying principle of the Constitution as a whole”. That statement not only denies the accepted canon of construction expressed in the maxim expressio unius, exclusio alterius; it turns it on its head. The ultimate source of the doctrine was said to lie in the common law. … However, whilst the rule of law requires the law to be applied to all without reference to rank or status, the plain matter of fact is that the common law has never required as a necessary outcome the equal, or non-​discriminatory, operation of laws. It is not possible, in my view, to dismiss the discriminatory treatment of women at common law or such matters as the attainder of felons as “past anomalies”. To do so is to treat the doctrines of the common law with selectivity. Moreover, the supremacy of parliament, which is itself a principle of the common law, necessarily leaves the common law subject to alteration without reference to notions of equality. The common law thus provides no foundation for a doctrine of equality, at all events substantive equality as opposed to the kind of procedural equality envisaged by the rule of law. But even if a doctrine of substantive equality were discernible in the common law, it would not appear that it was a doctrine which was adopted in the drafting of the Constitution. Apart from anything else, it is clear that the Commonwealth Parliament was intended to have the capacity, in the exercise of its legislative powers, to alter the common law.

The balance of the Court supported Dawson J in denying the existence of a constitutional doctrine of substantive equality. However, a majority (including Dawson J) did appear to endorse the idea of a right of procedural equality, which requires judges to apply the law in a fair manner in accordance with the judicial process (see [6.135]). Such a guarantee does not limit the Parliament’s powers to make discriminatory laws. It does, however, constrain the directions which can be given to and the powers which can be conferred upon Judges, and the discretion of Judges in their exercise of judicial power. A right of procedural equality helps to ensure that individuals receive fair trials. It is the one aspect of constitutional equality which is truly designed to protect a human right.

PROPORTIONALITY [14.60]  Proportionality is a legal concept well known to European civil law systems, as well as the European Court of Justice. It is also a common interpretative tool for domestic and international human rights tribunals, such as the Supreme Court of Canada, the European Court of Human Rights and the United Nations Human Rights Committee. Since its express introduction in the judgment of Deane J in Commonwealth v Tasmania (1983) 158 CLR 1 at 259-​260,59 it is a concept which has

59 B Fitzgerald, “Proportionality and Australian Constitutionalism” (1993) 12 University of Tasmania Law Review 263 at 277; J Kirk, “Constitutional Guarantees, Characterisation and the Concept of Proportionality” (1997) 21 Melbourne University Law Review 1 at 2.

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become increasingly important in Australian constitutional jurisprudence. However, proportionality played an important if non-​ explicit role in earlier High Court decisions, such as Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116 regarding freedom of religion under s 116 (see [12.85]), Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1 regarding the defence power (see [2.50]) and Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575 regarding the scope of the incidental power under s 51(ii), the tax power (see also [2.35] and [14.75]). Put simply, proportionality involves the idea that a law’s objective must be legitimate, and the means used to achieve that objective should be appropriate.60 Normally, the objective of the law must itself be legitimate. The essence of the concept is captured in the maxim, “one should not use a sledgehammer to crack a nut”.61 Decisions regarding proportionality therefore involve social, political, economic and essentially policy decisions by Australian judges. Such decision-​making is a marked departure from the traditional strict legalism of the common law judicial tradition. Hence, its use and application by Australian judges has occasionally been controversial. Why has proportionality become a common feature of the Australian constitutional landscape in the last two decades? A detailed answer is beyond the scope of this book, but two observations may be made. First, modern lawyers and Judges are undoubtedly more aware of civil law and international law precedents, including those concerning human rights, where proportionality is a common feature. Second, faith in the ability of traditional common law safeguards to protect the citizen from arbitrary exercises of government power may be eroding. For example, strict party discipline within the legislature means that parliaments are essentially the servants of executive governments, rather than vice versa, thus undermining one of the justifications for the doctrine of parliamentary sovereignty. The principle of responsible government, whereby the executive is controlled by the legislature, has rather morphed into “elective dictatorship”.62 Therefore, the High Court may perceive that a greater degree of judicial scrutiny of government legislation is necessary to safeguard the interests of the governed.63 Proportionality is now relevant in a number of areas of constitutional law.64 Most obviously, it is used to determine whether a law has breached certain constitutional guarantees, such as the implied freedom of political communication (see [13.35]) or the s 92 guarantee of free interstate trade (see [11.55]). Proportionality is also relevant in determining whether a law can be characterised within the direct scope of certain heads of power, namely “purposive” heads of power. Finally, 60

See also Rowe v Electoral Commissioner (2010) 243 CLR 1 per Kiefel J at 131 and 133-​134.

61 Kirk, n 59, p 2. 62 The term was famously coined by Lord Hailsham in The Dilemma of Democracy: Diagnosis and Prescription (Collins, London, 1978), Ch 10. 63 See P Loftus, “Proportionality, Australian Constitutionalism and Governmental Theory: Changing the Grundnorm” (1999) 3 Southern Cross University Law Review 30, especially at 50-​62. See also Fitzgerald, n 59, especially pp 262-​266 and 269. 64 See generally, H P Lee, “Proportionality in Australian Constitutional Adjudication”, in G Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, Annandale, 1994), pp 126-​149.

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proportionality is a factor to be taken into account in determining whether a law has a sufficient enough connection to a head of power so as to fall within that power’s incidental scope.65

Parsing the proportionality inquiry [14.65]  Proportionality is in fact a very complex concept with multiple facets. In 1997, Kirk argued that an inquiry into proportionality occurs at three levels: the higher the level of the inquiry, the greater the inquiry into the perceived value or merit of the law.66 The lower the level of inquiry, the greater the degree of judicial deference to the legislature. The lowest level, “suitability”, involves an inquiry into whether the law is appropriate and adapted to achieving its ends. If the law will not achieve its ends, it is plainly not a proportionate law. Furthermore, if the law is a plainly inappropriate method of achieving its purported goal, it will fail the “suitability” test. The “suitability” inquiry essentially involves a judgment on whether a law will achieve its objective purpose, rather than a judgment on the actual desirability of the law. The second level, “necessity”, involves an inquiry into whether there are other, less extreme, means available for achieving the same end. Necessity can involve differing levels of scrutiny. For example, it may be that the alternative means have to be obvious, or it may be that they simply have to exist. The final level, “balancing” or “reasonableness”, involves a weighing up of the importance in achieving the end sought by the law and the significance of the detriment caused by the law to other interests. “Balancing” therefore clearly involves assessment of the merits of the ends sought by the law, in comparison with those of the countervailing interests detrimentally affected by the law. Depending on the rigour of the proportionality inquiry, a law’s validity may ultimately depend on a judicial assessment of whether the law is “good” or “bad”. Kirk’s three-​step test reflects the classical tests of proportionality used, for example, in Germany and the European Union. As discussed at [14.80], High Court majorities have started to adopt this test, at least in the context of the limits to the implied freedom of political communication.

Proportionality in the High Court [14.70]  A brief overview of the use of proportionality by the High Court ensues. More details can be found in the specific chapters dealing with the relevant heads of power or constitutional guarantees (prohibitions on government power). There has been a distinct lack of clarity over the level of proportionality test applied by the Justices in the various instances where proportionality is constitutionally relevant. For example, numerous factors are relevant in conducting such an inquiry, and judges may differ over the weight they attach to each factor. As noted by Kiefel J in her long discussion of proportionality in Rowe v Electoral Commissioner (2010) 243 CLR 1 at 139: 65 See generally on proportionality and characterisation, [2.45]. 66 See, respectively, [2.50], [4.55] and [5.75].

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It may be said, by reference to these cases, that assessments of proportionality in Australian law involve a range of discernible tests and the identification of various factors which are relevant to the relationship of the legislation in question to its purposes or to interests the subject of constitutional protection.

Proportionality and characterisation [14.75]  Proportionality is relevant in determining when a law is validly enacted under so-​called “purposive” heads of power, which have so far been defined as the defence power, the treaty implementation aspect of s 51(xxix) (the external affairs power) and the implied nationhood power. Gaudron J has indicated that it is also relevant in determining whether a law can be characterised under the race power, s 51(xxvi) (see [14.30]).67 Fitzgerald has argued that proportionality should be used to determine characterisation under all heads of power, whether purposive or not.68 No High Court judge apart from Kirby J (see [2.50]) has adopted his suggestion.69 However, proportionality is recognised as a factor, of varying degrees of importance, in determining whether a law falls within the incidental scope of any head of power (see [2.55]). Confusion in the High Court over the meaning of “proportionality” has probably been most apparent when it is used as a touchstone for determining whether a law falls within a head of power. For example, in the Communist Party case, Fullagar J, in determining whether the Commonwealth Parliament was authorised by the defence power to ban the Communist party, implicitly rejected “balancing” as a valid court exercise when he stated (at 262) that “nothing depend[ed] on the justice or injustice of the law in question”. In 1967 Professor Sawer agreed that, regarding the defence power, the courts generally do not make inquiries into alternative means of attaining a valid objective, thus indicating that the “necessity” of a law is not relevant for characterisation under s 51(vi).70 On the other hand, Williams J (at 226-​227) and Webb J (at 242) were overtly concerned about the “rights and liberties” adversely affected by the impugned law in the Communist Party case, and accordingly took those interests into account, balancing their worth against the perceived advantage to Australian security entailed in the law, in finding the ban invalid. The Communist Party case is therefore a good example of disagreement within the Court over the precise application of tests of proportionality. Similar divisions were evident in Nationwide News v Wills (1992) 177 CLR 1. Mason CJ and McHugh J, in determining whether a law fell within the incidental scope of the conciliation and arbitration power, s 51(xxxv), seemed to utilise an inquiry involving all three levels of proportionality.71 Dawson J, however, purported to rely purely on

67 Gaudron J also suggested that proportionality was relevant in determining characterisation under the aliens power, s 51(xix), in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 57. See on this, Fitzgerald, n 59, pp 297-​298. 68 See generally Fitzgerald, n 59, pp 299-​302. 69 The Court maintained the distinction in this regard between purposive and non-​purposive powers in Leask v Commonwealth (1996) 187 CLR 579. See [2.50]. 70

G Sawer, Australian Federalism in the Courts (Melbourne University Press, Melbourne, 1967), p 104.

71 Kirk, n 59, p 33.

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first level proportionality, and asked whether the law was appropriate and adapted to the reasonable fulfilment of a purpose within the industrial relations power. All three Justices found that the law fell outside the scope of s 51(xxxv). In Australian law, the test of proportionality, at least when used in the context of characterisation, has been confused with an “objective” test of purpose.72 While some Justices have found the “appropriate and adapted” (or suitability) test of a law’s purpose to be synonymous with a test of proportionality,73 other Justices deny this on the grounds that such an inquiry involves no real qualitative assessment of the law.74 However, the argument that a purpose test is purely objective cannot be sustained. For example, consider Dixon CJ’s judgment regarding s 221(1)(a) of the Income Tax Assessment Act 1936 (Cth) in Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575. Section 221(1)(a) prohibited the payment of State income taxes prior to the full payment of Commonwealth income taxes.75 It was argued that s 221(1)(a) came within the incidental scope of s 51(ii), the tax power. Dixon CJ stated (at 615): “is it not sufficiently obvious that the incidental power cannot extend to authorising laws postponing the payment of civil debts”. However, only Dixon CJ’s express words assure us of the objective and value-​free premise of his judgment. It is contended that it is not possible to objectively find s 221(1)(a) to be an inappropriate method of ensuring tax collection. Such a decision involves some subjective consideration of the reasonableness and merits of the law.76 In this respect, note that the very same law had earlier been unanimously found to be valid in South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373.77 Proportionality and constitutional guarantees [14.80]  Constitutional guarantees act as prohibitions on government power. Certain guarantees bind either the Commonwealth (for example, ss 51(xxxi) and 116) or the States (s 117), while some bind both governments (for example, the implied guarantee of free political communication). Few constitutional guarantees are absolute. In many instances, a test of proportionality is applied to determine whether a law survives constitutional challenge despite its prima facie incompatibility with a constitutional guarantee. The use of proportionality as a test for assessing the constitutionality of laws in the context of constitutional limitations is less controversial than its use in the characterisation context.78 In Leask v Commonwealth (1996) 187 CLR 579, which entailed 72 Kirk, n 59, p 24. 73

Leask v Commonwealth (1996) 187 CLR 579 at 593 per Brennan CJ; see also G Williams, S Brennan and A Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (7th ed, Federation Press, Annandale, 2018), pp 876-​881.

74 See, for example, Leask v Commonwealth (1996) 187 CLR 579 at 605 per Dawson J and at 614-​615 per Toohey J. See also Kirk, n 59, pp 24-​26. 75 See, for more details of this case, [10.30]. 76 See also L Zines, The High Court and the Constitution (5th ed, LexisNexis, Chatswood, 2008), pp 55-​56. 77 See also, for a critique of the purpose test, the commentary on Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116, at [12.85]. 78 Williams et al, n 73, pp 793-​801.

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a comprehensive consideration by the High Court of proportionality, the Justices were generally anxious to limit the role that proportionality plays with regard to characterisation. In contrast, the Justices were clearly more willing to acknowledge its importance in determining whether a law has infringed a constitutional guarantee. For example, Dawson J compared the role of proportionality in characterisation to its role in the application of constitutional prohibitions thus (at 606): The situation is … different where a law is said to fall foul of a constitutional limitation on legislative power. … [I]‌t may be within power to legislate in a way that affects an immunity conferred by a limitation on power where to do so is merely incidental to the achievement of a legitimate end. In such a situation one is concerned with the resolution of a tension between two principles and notions of proportionality may be relevant.

Toohey J, with whom Gaudron J agreed, stated (at 614): I remain of the view that the place of reasonable proportionality in the characterisation of a law is where there is a tension between two operative principles. This is mostly likely to arise as between an express grant of power under s 51 of the Constitution and some implied freedom, for instance an implied freedom of communication.

The Court has been most explicit in applying proportionality when considering the limits to the constitutional guarantees of implied free communication (see [13.35]) and free interstate trade (see [11.50]). However, it is arguable that proportionality has become a general touchstone used by the Court in determining whether Commonwealth and State laws comply with most other constitutional prohibitions. For example, it is arguable that a type of proportionality test determines the compatibility of laws which prohibit the free exercise of religion with the guarantee of freedom of religion in s 116 (see [12.85]),79 and whether a law effecting an acquisition of property on unjust terms nevertheless falls outside the proviso in s 51(xxxi) (see [12.40]).80 The prohibition of Commonwealth discrimination against State government polities is not breached by laws which are reasonably designed to serve an ulterior rational purpose: applicability of this exception involves the consideration of the proportionality of the law (see [8.45]). In McCloy v NSW (2015) 257 CLR 178, a High Court majority of French CJ, Kiefel, Bell and Keane JJ adopted the tripartite structured approach to proportionality advocated nearly 20 years earlier by Kirk in testing whether a law which burdened the freedom of political communication could nevertheless be valid (see [13.40]). They first inquired as to whether the objectives of the impugned law were compatible with the freedom. If so, they went on to inquire into suitability, necessity and the final step of balancing. With refreshing candour, the majority conceded that the process involved value judgments, particularly the last step of balancing.81 They justified their use of the methodology by saying that it “had the advantage of transparency” (at 216). French CJ retired from the court in early 2017, but another majority endorsed the

79 See also Kirk, n 59, p 11. 80 See also S Evans, “When Is an Acquisition of Property Not an Acquisition of Property? The Search for a Principled Approach to Section 51(xxxi)” (2000) 11 Public Law Review 183 at 201-​204. 81 See, for example, at 220.

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methodology later that year in Brown v Tasmania (2017) 261 CLR 328. Kiefel CJ, Bell and Keane JJ endorsed it again, as did Nettle J in a separate judgment. Gageler and Gordon JJ expressed scepticism over the utility of the structured proportionality test in both McCloy and Brown, preferring the standard “appropriate and adapted” formula. Both Judges were influenced by the fact that the test had generally been developed in foreign jurisdictions in regard to testing laws against guarantees of personal rights: “[t]‌ he structure it imposes is not tailored to the constitutional freedom of political communication, which is not concerned with rights” (see [13.40]).82 All Justices in both McCloy and Brown agreed that it was a mere methodology, rather than a precedent for the application of proportionality in all cases involving the implied freedom. Beyond the implied freedom of political communication, the use of the McCloy methodology was rejected as inappropriate on the facts in Murphy v Electoral Commissioner (2016) 261 CLR 28, a case concerning the implied right to vote (see [13.40]). It is uncertain whether the McCloy methodology might be employed with regard to proportionality in other contexts, such as with regard to s 92. Judicial deference to the legislature [14.85]  Further flexibility and unpredictability is introduced into the test of proportionality by judges potentially adopting differing levels of deference to the will of the legislature.83 For example, the European Court of Human Rights often utilises the device of the “margin of appreciation” in deciding whether a State party to the European Convention on Human Rights has breached that Convention. The “margin” is akin to a “benefit of the doubt” or a measure of latitude granted to the State. The greater the margin of appreciation, the more likely it is that impugned laws will “pass” a test of proportionality. In Unions NSW v NSW (2013) 252 CLR 530, French CJ, Hayne, Crennan, Kiefel and Bell JJ rejected the notion that a “margin of appreciation” applied in the consideration of the application of the implied freedom of political communication at 553 and 556. Another comparative doctrine is that from the United States regarding strict scrutiny or intermediate scrutiny. Basically, the US courts will examine restrictions on constitutional rights with differing levels of scrutiny. Obviously, a lesser level of scrutiny leads to a greater level of deference to the legislature. In Tajjour v NSW (2014) 254 CLR 508, French CJ denied any application of such a doctrine in the context of the implied freedom of political communication (at 551): “[different] categories of laws do not attract different levels of scrutiny in the application of the criteria of validity”. Crennan, Kiefel and Bell JJ agreed (at 575): The tests of proportionality [adopted in Australia] are not to be confused with the categories of scrutiny which have been employed by the Supreme Court of the United States of

82 Per Gageler J in Brown at 377. 83 Kirk, n 59, p 54.

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America, and which range from minimal scrutiny, requiring only a rational connection between the legislation and a legitimate object, to strict scrutiny, which is applied to fundamental rights and which requires there to be a compelling state interest. Whilst an aspect of strict scrutiny –​that there be no other means available which would be less restrictive of the right –​may bear some resemblance to the test of reasonable necessity employed in proportionality analysis, it has been doubted that a true comparison can be drawn between strict scrutiny and proportionality analysis. The test in Lange [regarding the implied freedom] does not involve differing levels of scrutiny. In attempting to resolve differences of view expressed in preceding cases about the appropriate method of testing legislation which burdened the freedom, the Court in Lange adopted aspects of proportionality analysis. American jurisprudence, respecting strict scrutiny, has not been accepted by this Court as relevant to the Lange test.

Gageler J, however, acknowledged the practical application of differing levels of scrutiny in determining the validity of limitations to the implied freedom (at 580): This Court has … recognised it to be in the nature of the requirement for a law which effectively burdens communication on governmental or political matter to be justified in terms of pursuing a legitimate end by means compatible with the system of representative and responsible government established by the Constitution, that the sufficiency of the justification will be calibrated to the nature and intensity of the burden which those means impose on communication on governmental or political matter. So, it has repeatedly been accepted that “a law whose character is that of a law with respect to the prohibition or restriction of [political] communications … will be much more difficult to justify … than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications”. At one end of the spectrum, establishment of a sufficient justification may require “close scrutiny, congruent with a search for ‘compelling justification’”, constituted by establishing that the law pursues an end identified in terms of the protection of a public interest which is itself so pressing and substantial as properly to be labelled compelling and that the law does so by means which restrict communication on governmental or political matter no more than is reasonably necessary to achieve that protection. At the other end of the spectrum, establishment of a sufficient justification may require nothing more than demonstration that the means adopted by the law are rationally related to the pursuit of the end of the law, which has already been identified as legitimate.

Similarly, in Brown v Tasmania (2017) 261 CLR 328, Gageler J stated (at 378) that: not every law which effectively burdens freedom of political communication needs to be subjected to the same intensity of judicial scrutiny. The measure of the justification needs to be “calibrated to the nature and intensity of the burden”.

In McCloy v NSW (2015) 257 CLR 178, Nettle J indicated that higher levels of scrutiny were applied in the context of the implied freedom of political communication in the context of discriminatory burdens, that is where the burden on the flow of political communication fell disproportionately on certain segments of the community (at 267-​268).

Conclusion on proportionality [14.90]  Dependent on the type of proportionality inquiry undertaken, such an inquiry may involve considerations of the appropriateness, reasonableness,

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harshness, justness and desirability of a law. These are all ultimately subjective considerations, so decisions on proportionality may easily vary according to a judge’s personal values. Hence, application of a test of proportionality may often be unpredictable. This unpredictability is exacerbated by the fact that judges may adopt differing degrees of deference to the legislature in different fact situations. The role of proportionality in Australian law has been further confused by disagreement over the actual meaning of the term, and by the general failure by judges, until McCloy, to clarify the “level” of proportionality inquiry that they were applying in a certain case. The greater attention to methodology in recent years, in Tajjour and Murphy, and particularly McCloy and Brown, is to be applauded. Judges must endeavour to clearly articulate and justify the type of test applied in each case. However, a clearer extrapolation of the proportionality test will not necessarily lead to greater predictability in the application of the test. Indeed, it may be that the true difference between the various levels of a proportionality inquiry lies only in a judge’s willingness to admit that he or she is engaging in a qualitative assessment of a law. Nevertheless, while a judge might convey that he or she is “merely” assessing the objective purpose of a law, it is possible and even likely that sub-​conscious considerations of necessity and balancing influence the decision regarding the law’s suitability in achieving its purported purpose. It may be noted that Heydon J was singularly unimpressed with the test of proportionality, at least in the context of the implied freedom of political communication, in Monis v The Queen (2013) 249 CLR 92 (at 182): The “reasonably appropriate and adapted test” is mysterious. The words “appropriate” and “adapted” mean the same thing. Something is “appropriate” if it is “[s]‌pecially fitted or suitable”. Something is “adapted” if it is “[f]itted; fit, suitable.” If an enactment is reasonably appropriate, why is it not reasonably adapted? If it is reasonably adapted, why is it not reasonably appropriate? What is the force of “reasonably”? It appears to point to a distinction between what is “unreasonably appropriate and adapted” and what is “reasonably appropriate and adapted” –​but to call something unreasonably appropriate and adapted is to speak in self-​contradictory terms. How does the application of so amorphous a test avoid the dangers of judicial legislation? Is the “reasonably appropriate and adapted” test an adequate explanation for all the exceptions to the implied constitutional limitation –​ the crime of perjury, the tort of deceit, the crimes of inciting or threatening violence, the crime of sedition and the tort of defamation?

It seems that Heydon J simply equated the proportionality test with “judicial legislation”, regardless of the amount of purported deference given to the legislature in its application.

CONCLUSION [14.95]  The commentary in this chapter details areas of present importance in Australian constitutional law. Developments, and certainly individual judgments, in all three areas have been influenced by developments in comparative and international human rights law, which has grown exponentially in the last 50 years.

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The traditional common law antagonism towards human rights legal protection, so evident in Dicey’s 19th century works (see [1.15]), has steadily eroded to the extent that Australia is now the only common law country without a national charter of rights.84 In retrospect, it is hardly surprising that Australian law, and especially Australian public law including constitutional law, has not remained impervious to the exponential growth in international and comparative human rights law.

84 The Australian Capital Territory adopted its Human Rights Act 2004 in 2004, while Victoria adopted its Charter of Human Rights and Responsibilities Act 2006 in 2006. A Human Rights Act is anticipated for Queensland in 2019.

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Appendix

Commonwealth of Australia Constitution 1 Short title.....................................................................................................................................  588 2 Act to extend to the Queen’s successors....................................................................................  588 3 Proclamation of Commonwealth..................................................................................................  588 4 Commencement of Act................................................................................................................  588 5 Operation of the Constitution and laws........................................................................................  588 6 Definitions....................................................................................................................................  589 7 Repeal of Federal Council Act.....................................................................................................  589 8 Application of Colonial Boundaries Act.......................................................................................  589 9 Constitution.................................................................................................................................  589

CHAPTER I - THE PARLIAMENT Part I - General....................................................................................................................   590 1 2 3 4 5 6

Legislative power.........................................................................................................................  590 Governor-​General........................................................................................................................  590 Salary of Governor-​General........................................................................................................  590 Provisions relating to Governor-​General.....................................................................................  590 Sessions of Parliament. Prorogation and dissolution..................................................................  590 Yearly session of Parliament.......................................................................................................  591 Part II - The Senate.............................................................................................................   591 7 The Senate..................................................................................................................................  591 8 Qualification of electors...............................................................................................................  591 9 Method of election of senators....................................................................................................  591 10 Application of State laws.............................................................................................................  592 11 Failure to choose senators..........................................................................................................  592 12 Issue of writs...............................................................................................................................  592 13 Rotation of senators....................................................................................................................  592 14 Further provision for rotation.......................................................................................................  592 15 Casual vacancies........................................................................................................................  593 16 Qualifications of senator..............................................................................................................  595 17 Election of President...................................................................................................................  595 18 Absence of President..................................................................................................................  595 19 Resignation of senator................................................................................................................  595 20 Vacancy by absence....................................................................................................................  595 21 Vacancy to be notified.................................................................................................................  595 22 Quorum.......................................................................................................................................  596 23 Voting in the Senate....................................................................................................................  596 Part III - The House of Representatives............................................................................   596 24 Constitution of House of Representatives...................................................................................  596 25 Provision as to races disqualified from voting.............................................................................  596 26 Representatives in first Parliament..............................................................................................  596 27 Alteration of number of members................................................................................................  597 28 Duration of House of Representatives.........................................................................................  597 29 Electoral divisions........................................................................................................................  597 30 Qualification of electors...............................................................................................................  597 31 Application of State laws.............................................................................................................  597 32 Writs for general election.............................................................................................................  598 33 Writs for vacancies......................................................................................................................  598 34 Qualifications of members...........................................................................................................  598 35 Election of Speaker.....................................................................................................................  598 36 Absence of Speaker....................................................................................................................  598

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37 Resignation of member...............................................................................................................  599 38 Vacancy by absence....................................................................................................................  599 39 Quorum.......................................................................................................................................  599 40 Voting in House of Representatives............................................................................................  599 Part IV - Both Houses of the Parliament...........................................................................   599 41 Right of electors of States...........................................................................................................  599 42 Oath or affirmation of allegiance.................................................................................................  599 43 Member of one House ineligible for other....................................................................................  599 44 Disqualification............................................................................................................................  599 45 Vacancy on happening of disqualification....................................................................................  600 46 Penalty for sitting when disqualified.............................................................................................  600 47 Disputed elections.......................................................................................................................  600 48 Allowance to members................................................................................................................  601 49 Privileges etc of Houses..............................................................................................................  601 50 Rules and orders.........................................................................................................................  601 Part V - Powers of the Parliament......................................................................................   601 51 Legislative powers of the Parliament...........................................................................................  601 52 Exclusive powers of the Parliament.............................................................................................  603 53 Powers of the Houses in respect of legislation............................................................................  604 54 Appropriation Bills.......................................................................................................................  604 55 Tax Bill.........................................................................................................................................  604 56 Recommendation of money votes...............................................................................................  604 57 Disagreement between the Houses............................................................................................  604 58 Royal assent to Bills....................................................................................................................  605 59 Disallowance by the Queen.........................................................................................................  605 60 Signification of Queen’s pleasure on Bills reserved....................................................................  606

CHAPTER II - THE EXECUTIVE GOVERNMENT 61 62 63 64 65 66 67 68 69 70

Executive power..........................................................................................................................  606 Federal Executive Council...........................................................................................................  606 Provisions referring to Governor-​General....................................................................................  606 Ministers of State.........................................................................................................................  606 Number of Ministers....................................................................................................................  607 Salaries of Ministers....................................................................................................................  607 Appointment of civil servants.......................................................................................................  607 Command of naval and military forces........................................................................................  607 Transfer of certain departments...................................................................................................  607 Certain powers of Governors to vest in Governor-​General.........................................................  607

CHAPTER III - THE JUDICATURE

71 Judicial power and Courts...........................................................................................................  608 72 Judges’ appointment, tenure, and remuneration.........................................................................  608 73 Appellate jurisdiction of High Court.............................................................................................  609 74 Appeal to Queen in Council.........................................................................................................  609 75 Original jurisdiction of High Court................................................................................................  610 76 Additional original jurisdiction......................................................................................................  610 77 Power to define jurisdiction..........................................................................................................  610 78 Proceedings against Commonwealth or State............................................................................  611 79 Number of judges........................................................................................................................  611 80 Trial by jury..................................................................................................................................  611

CHAPTER IV - FINANCE AND TRADE 81 82 83 84 85 86 87 88

Consolidated Revenue Fund.......................................................................................................  611 Expenditure charged thereon......................................................................................................  611 Money to be appropriated by law................................................................................................  611 Transfer of officers.......................................................................................................................  611 Transfer of property of State........................................................................................................  612 Customs, excise, and bounties....................................................................................................  613 Revenue from customs and excise duties...................................................................................  613 Uniform duties of customs...........................................................................................................  613

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Appendix - Commonwealth of Australia Constitution

587

89 Payment to States before uniform duties.....................................................................................  613 90 Exclusive power over customs, excise, and bounties..................................................................  613 91 Exceptions as to bounties...........................................................................................................  614 92 Trade within the Commonwealth to be free.................................................................................  614 93 Payment to States for five years after uniform tariffs...................................................................  614 94 Distribution of surplus..................................................................................................................  614 95 Customs duties of Western Australia...........................................................................................  614 96 Financial assistance to States.....................................................................................................  615 97 Audit............................................................................................................................................  615 98 Trade and commerce includes navigation and State railways.....................................................  615 99 Commonwealth not to give preference........................................................................................  615 100 Nor abridge right to use water.....................................................................................................  615 101 Inter-​State Commission...............................................................................................................  616 102 Parliament may forbid preferences by State................................................................................  616 103 Commissioners’ appointment, tenure, and remuneration............................................................  616 104 Saving of certain rates.................................................................................................................  616 105 Taking over public debts of States...............................................................................................  616 105A Agreements with respect to State debts......................................................................................  617

CHAPTER V - THE STATES 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120

Saving of Constitutions................................................................................................................  617 Saving of Power of State Parliaments.........................................................................................  618 Saving of State laws....................................................................................................................  618 Inconsistency of laws...................................................................................................................  618 Provisions referring to Governor..................................................................................................  618 States may surrender territory.....................................................................................................  618 States may levy charges for inspection laws...............................................................................  618 Intoxicating liquids.......................................................................................................................  618 States may not raise forces. Taxation of property of Commonwealth or State............................  619 States not to coin money.............................................................................................................  619 Commonwealth not to legislate in respect of religion..................................................................  619 Rights of residents in States........................................................................................................  619 Recognition of laws etc of States................................................................................................  619 Protection of States from invasion and violence..........................................................................  619 Custody of offenders against laws of the Commonwealth...........................................................  619

CHAPTER VI - NEW STATES 121 122 123 124

New States may be admitted or established...............................................................................  619 Government of territories.............................................................................................................  620 Alteration of limits of States.........................................................................................................  620 Formation of new States..............................................................................................................  620

CHAPTER VII - MISCELLANEOUS 125 126 127

Seat of Government....................................................................................................................  620 Power to Her Majesty to authorise Governor-​General to appoint deputies.................................  620 Aborigines not to be counted in reckoning population [Repealed]..............................................  621

CHAPTER VIII - ALTERATION OF THE CONSTITUTION 128

Mode of altering the Constitution.................................................................................................  621

SCHEDULE..............................................................................................................622

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PREAMBLE AN ACT TO CONSTITUTE THE COMMONWEALTH OF AUSTRALIA WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the 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: 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:

1  Short title This Act may be cited as the Commonwealth of Australia Constitution  Act. 2  Act to extend to the Queen’s successors 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  Proclamation of Commonwealth 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 appointed, not being later than 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 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 Commonwealth. 4  Commencement of Act 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 colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act. 5  Operation of the Constitution and laws This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and

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people of every State and of every part of the Commonwealth, 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 Definitions The Commonwealth shall mean the Commonwealth of Australia as established under this Act. The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State. Original States shall mean such States as are parts of the Commonwealth at its establishment. 7  Repeal of Federal Council Act The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth. Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof. 8  Application of Colonial Boundaries Act After the passing of this Act the Colonial Boundaries Act 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-​governing colony for the purposes of that Act. 9 Constitution The Constitution of the Commonwealth shall be as follows: The Constitution This Constitution is divided as follows: Chapter I –​The Parliament Part I –​General Part II –​The Senate Part III –​The House of Representatives Part IV –​Both Houses of the Parliament Part V –​Powers of the Parliament Chapter II –​The Executive Government

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Chapter III –​The Judicature Chapter IV –​Finance and Trade Chapter V –​The States Chapter VI –​New States Chapter VII –​Miscellaneous Chapter VIII –​Alteration of the Constitution The Schedule

CHAPTER I –​THE PARLIAMENT Part I –​General 1  Legislative power The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. 2 

Governor-​General

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. 3  Salary of Governor-​General 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 otherwise provides, shall be ten thousand pounds. The salary of a Governor-​ General shall not be altered during his continuance in office. 4  Provisions relating to Governor-​General The provisions of this Constitution relating to the Governor-​General extend and apply to the Governor-​General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth. 5  Sessions of Parliament. Prorogation and dissolution The Governor-​ General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

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Summoning Parliament

After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs. First session

The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth. 6  Yearly session of Parliament 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 its first sitting in the next session.

Part II –​The Senate 7  The Senate The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-​General. 8  Qualification of electors 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. 9  Method of election of senators 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.

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Times and places

The Parliament of a State may make laws for determining the times and places of elections of senators for the State. 10  Application of State laws 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. 11  Failure to choose senators The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate. 12  Issue of writs 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  Rotation of senators [Altered by No 1, 1907, s 2] 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 shall become vacant at the expiration of the third year three years, and the places of those of the second class at the expiration of the sixth year six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service. The election to fill vacant places shall be made in the year at the expiration of which within one year before the places are to become vacant. For the purposes of this section the term of service of a senator shall be taken to begin on the first day of January 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 January July preceding the day of his election. 14  Further provision for rotation 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.

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15  Casual vacancies If the place of a senator becomes vacant before the expiration of his term of service, the House of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time 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 after the beginning of the next session of the Parliament of the State, or until the election of a successor, whichever first happens. At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term. The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-​General. 15  Casual vacancies 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 recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a 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. Where: (a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and

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(b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist); he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-​ one of this Constitution. The name of any 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 the 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, shall 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 place of the senator chosen by the people of the State had occurred after that commencement. Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who 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 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 “Constitution Alteration (Simultaneous Elections) 1977” came into operation, a senator holding office at the commencement of that law who 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 shall be deemed to have been chosen to hold office:

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(a) if the senator elected by the people of the State had a term of service expiring on the thirtieth 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 thirtieth day of June, One thousand nine hundred and eighty-​ one –​until the expiration or dissolution of the second 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. 16  Qualifications of senator The qualifications of a senator shall be the same as those of a member of the House of Representatives. 17  Election of President The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the 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. 18  Absence of President Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence. 19  Resignation of senator 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  Vacancy by absence The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate. 21  Vacancy to be notified 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.

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22 Quorum 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  Voting in the Senate 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.

Part III –​The House of Representatives 24  Constitution of House of Representatives The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:



(i) 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 the senators; (ii) the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-​half of the quota, 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. 25  Provision as to races disqualified from voting 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 that race resident in that State shall not be counted. 26  Representatives in first Parliament Notwithstanding anything in section twenty-​ four, the number of members to be chosen in each State at the first election shall be as follows:

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Appendix - Commonwealth of Australia Constitution

New South Wales …………………………………………………..

twenty-​three;

Victoria …………………………………………………………….

twenty;

Queensland ………………………………………………………..

eight;

South Australia ……………………………………………………

six;

Tasmania ……………………………………….............................

five;

597

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.

27  Alteration of number of members Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives. 28  Duration of House of Representatives Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-​General. 29  Electoral divisions 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. In the absence of other provision, each State shall be one electorate. 30  Qualification of electors Until the Parliament otherwise provides, the qualification of electors 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 numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once. 31  Application of State laws 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

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Federal Constitutional Law: A Contemporary View

shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives. 32  Writs for general election 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  Writs for vacancies Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-​ General in Council may issue the writ. 34  Qualifications of members Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall 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 qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen; (ii) he must be a subject of the Queen, either natural-​born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

35  Election of Speaker The House of Representatives shall, before proceeding to the despatch of any other business, 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  Absence of Speaker Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

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37  Resignation of member A member may by writing addressed 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 thereupon shall become vacant. 38  Vacancy by absence The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House. 39 Quorum Until the Parliament otherwise provides, the presence of at least one-​ third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers. 40  Voting in House of Representatives 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  Right of electors of States 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. 42  Oath or affirmation of allegiance 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  Member of one House ineligible for other A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. 44 Disqualification Any person who:

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(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

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(ii) is attainted 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 (v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-​ five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of 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. 45  Vacancy on happening of disqualification 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  Penalty for sitting when disqualified 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 shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction. 47  Disputed elections Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives,

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or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. 48  Allowance to members Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat. 49  Privileges etc of Houses The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. 50  Rules and orders Each House of the Parliament may make rules and orders with respect to:

(i) the mode in which its powers, privileges, 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.

Part V –​Powers of the Parliament 51  Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:



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(i) trade and commerce with other countries, and among the States; (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 like 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 Commonwealth; (vii) lighthouses, lightships, beacons and buoys; (viii) astronomical and meteorological observations;

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Federal Constitutional Law: A Contemporary View

(ix) quarantine; (x) fisheries in Australian waters beyond territorial 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 the issue of paper money; (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) weights and measures; (xvi) bills of exchange and promissory notes; (xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks; (xix) naturalization and aliens; (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) invalid and old-​age pensions; [Altered by No 81, 1946, s 2] (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 authorize any form of civil conscription), benefits to students and family allowances; (xxiv) 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; [Altered by No 55, 1967, s 2] (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws; (xxvii) immigration and emigration; (xxviii) the influx of criminals; (xxix) external affairs; (xxx) the relations of the Commonwealth with the islands of the Pacific;

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(xxxi) 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; (xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) the acquisition, with the consent of a State, of any railways 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) conciliation 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) 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. 52  Exclusive powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:



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(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; (ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.

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53  Powers of the Houses in respect of legislation Proposed laws appropriating revenue or moneys, or imposing 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 containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, 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 burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws. 54  Appropriation Bills The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. 55  Tax Bill Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only. 56  Recommendation of money votes A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-​ General to the House in which the proposal originated. 57  Disagreement between the Houses If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which

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the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, 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 fails to pass it, or passes it with 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 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 fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-​General may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed 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 affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed 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 duly passed by both Houses of the Parliament, and shall be presented to the Governor-​ General for the Queen’s assent. 58  Royal assent to Bills When a proposed law passed by both Houses of the Parliament is presented to the Governor-​General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure. Recommendations by Governor-​General

The Governor-​General 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. 59  Disallowance by the Queen The Queen may disallow any law within one year from the Governor-​ General’s assent, and such disallowance on being made known by the Governor-​General by speech or message to each of the Houses of the

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Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known. 60  Signification of Queen’s pleasure on Bills reserved A proposed law reserved for the Queen’s pleasure shall not have any force unless and until within two years from the 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.

CHAPTER II –​THE EXECUTIVE GOVERNMENT 61  Executive power The executive power of the Commonwealth is vested in the 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. 62  Federal Executive Council There shall be a Federal Executive Council to advise the Governor-​ General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-​General and sworn as Executive Councillors, and shall hold office during his pleasure. 63  Provisions referring to Governor-​General The provisions of this Constitution referring to the Governor-​ General in Council shall be construed as referring to the Governor-​ General acting with the advice of the Federal Executive Council. 64  Ministers of State The Governor-​ General may appoint officers to administer such departments of State of the Commonwealth as the Governor-​General in Council may establish. Such officers shall hold office during the pleasure of the Governor-​ General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth. Ministers to sit in Parliament

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.

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65  Number of Ministers Until the Parliament otherwise provides, the Ministers of 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-​ General directs. 66  Salaries of Ministers There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year. 67  Appointment of civil servants Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-​General in Council, unless the appointment is delegated by the Governor-​ General in Council or by a law of the Commonwealth to some other authority. 68  Command of naval and military forces The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-​ General as the Queen’s representative. 69  Transfer of certain departments On a date or dates to be proclaimed by the Governor-​General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth: posts, telegraphs, and telephones; naval and military defence; lighthouses, lightships, beacons, and buoys; quarantine. But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment. 70  Certain powers of Governors to vest in Governor-​General In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-​General, or in the Governor-​General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.

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CHAPTER III –​THE JUDICATURE 71  Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. 72  Judges’ appointment, tenure, and remuneration 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 in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

[Altered by No 83, 1977, s 2] The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than seventy 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.

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Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office 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 High 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. 73  Appellate jurisdiction of High Court 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, orders, and sentences:



(i) of any Justice or Justices exercising the original jurisdiction of the High Court; (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 which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-​State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court. 74  Appeal to Queen in Council 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.

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The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-​ General for Her Majesty’s pleasure. 75  Original jurisdiction of High Court 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 behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.

76  Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

(i) (ii) (iii) (iv)

arising under this Constitution, or involving its interpretation; arising under any laws made by the Parliament; of Admiralty and maritime jurisdiction; relating to the same subject-​matter claimed under the laws of different States.

77  Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws:



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(i) defining the jurisdiction of any federal court other than the High Court; (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; (iii) investing any court of a State with federal jurisdiction.

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78  Proceedings against Commonwealth or State 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  Number of judges The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes. 80  Trial by jury 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.

CHAPTER IV –​FINANCE AND TRADE 81  Consolidated Revenue Fund 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. 82  Expenditure charged thereon The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall 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  Money to be appropriated by law No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. 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. 84  Transfer of officers 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.

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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 service 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 service of the Commonwealth, shall have the 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. 85  Transfer of property of State When any department of the public service of a State is transferred to the Commonwealth:







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(i) all property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, 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 connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth; (iii) the Commonwealth shall 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 Parliament; (iv) the Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred.

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86  Customs, excise, and bounties On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth. 87  Revenue from customs and excise duties During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, 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 accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth. 88  Uniform duties of customs Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. 89  Payment to States before uniform duties Until the imposition of uniform duties of customs:



(i) the Commonwealth shall credit to each State the revenues collected therein by the Commonwealth; (ii) the Commonwealth shall debit to each State: (a) the expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth; (b) the proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth; (iii) the Commonwealth shall pay to each State month by month the balance (if any) in favour of the State.

90  Exclusive power over customs, excise, and bounties 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.

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91  Exceptions as to bounties Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, 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  Trade within the Commonwealth to be free 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. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing 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. 93  Payment to States for five years after uniform tariffs 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 on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State; (ii) subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period preceding the imposition of uniform duties of customs.

94  Distribution of surplus After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth. 95  Customs duties of Western Australia Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be 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 imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth.

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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, three-​fifths, two-​fifths, and one-​fifth of such latter duty, and all 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. 96  Financial assistance to States During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. 97 Audit Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned. 98  Trade and commerce includes navigation and State railways The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. 99  Commonwealth not to give preference 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. 100  Nor abridge right to use water 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.

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101  Inter-​State Commission There shall be an Inter-​State Commission, 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 of all laws made thereunder. 102  Parliament may forbid preferences by State 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 discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-​State Commission. 103  Commissioners’ appointment, tenure, and remuneration The members of the Inter-​State Commission:



(i) shall be appointed by the Governor-​General in Council; (ii) shall 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 praying for such removal on the ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.

104  Saving of certain rates 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. 105  Taking over public debts of States [Altered by No 3, 1910, s 2] The Parliament may take over from the States their public debts as existing at the establishment of the Commonwealth, 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; and the States shall indemnify the Commonwealth in respect of the debts taken

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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 to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. 105A Agreements with respect to State debts [Inserted by No 1, 1929, s 2] (1) The Commonwealth may make agreements with the States with respect to the public debts of the States, including: (a) the taking over of such debts by the Commonwealth; (b) the management of such debts; (c) the payment of interest and the provision and management of sinking funds in respect of such debts; (d) the consolidation, renewal, conversion, and redemption of such debts; (e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and (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 thereto of any such agreement. (4) Any such agreement may be varied or rescinded by the parties thereto. (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 Parliament 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 provisions of section one hundred and five of this Constitution.

CHAPTER V –​THE STATES 106  Saving of Constitutions 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 or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

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107  Saving of Power of State Parliaments 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. 108  Saving of State laws 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 Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until 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 repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. 109  Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 110  Provisions referring to Governor The provisions of this Constitution relating 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 administrator of the government of the State. 111  States may surrender territory The Parliament 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 Commonwealth. 112  States may levy charges for inspection laws After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth. 113  Intoxicating liquids All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

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114  States may not raise forces. Taxation of property of Commonwealth or State 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 belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State. 115  States not to coin money A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts. 116  Commonwealth not to legislate in respect of religion 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. 117  Rights of residents in 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. 118  Recognition of laws etc of States Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. 119  Protection of States from invasion and violence The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. 120  Custody of offenders against laws of the Commonwealth Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

CHAPTER VI –​NEW STATES 121  New States may be admitted or established The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose

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such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. 122  Government of territories The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired 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. 123  Alteration of limits of States 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. 124  Formation of new States A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, 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.

CHAPTER VII –​MISCELLANEOUS 125  Seat of Government 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 meet at the seat of Government. 126  Power to Her Majesty to authorise Governor-​General to appoint deputies The Queen may authorise the Governor-​ General 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

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Appendix - Commonwealth of Australia Constitution

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to exercise during the pleasure of the Governor-​General such powers and functions 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. [Section 127 repealed by No 55, 1967, s 3] 127  Aborigines not to be counted in reckoning population In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

CHAPTER VIII –​ALTERATION OF THE CONSTITUTION 128  Mode of altering the Constitution [Altered by No 84, 1977, s 2] This Constitution shall not be altered except in the following 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 amendment 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 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 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.

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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 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 Representatives, or 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.

SCHEDULE Oath

I, AB, do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD! Affirmation

I, AB, 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.)

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Index A Aborigines —​ see Indigenous people Acquisition of property on just terms (s 51(xxxi)) acquisition of property compound conception ....................... [12.20] deprivation distinguished ................ [12.25] meaning .................... [12.20]–​[12.25], [12.60] purposes of the Commonwealth, for ..................... [12.50] aircraft, liens over ..................................... [12.40] aliens power, confiscation under ........... [12.50] balancing all interests approach ............. [12.45] bank nationalisation scheme contravening ..........................[11.25], [12.25] bankruptcy power, sequestration under .................................................... [12.40] binding only on Commonwealth ........... [12.10] choses in action as property ......[12.30]–​[12.35] content of s 51(xxxi) ................................. [12.10] control of property ................................... [12.25] discriminatory Commonwealth law ....... [8.45] exceptions .....................................[12.40], [12.60] express right .............................................. [12.05] fisheries power, confiscation under ....... [12.40] full compensation model ........................ [12.45] grants power used to avoid .................... [10.35] head of power authorising acquisition ... [12.50] importance of s 51(xxxi) .......................... [12.10] intellectual property, exception .............. [12.40] interpretation of s 51(xxxi) ................. [12.05]–​[12.10], [12.110] just terms, meaning .....................[12.45], [12.60] market value ............................................. [12.45] Medicare entitlements ............................. [12.35] mining rights ............................................ [12.35] mining sites ............................................... [12.25] property chose in action as ...................[12.30]–​[12.35] common law rights ............................ [12.30] control of .............................................. [12.25] definition ................................[12.15]–​[12.20] proportionality test .................................. [14.80] proprietary interest .................................. [12.25] purpose of s 51(xxxi) ................................ [12.10] purposes of the Commonwealth ............ [12.50] royal metals, proprietary rights over .... [12.10] statutory proprietary rights .................... [12.35] Tasmanian Dam case .................................. [12.25]

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tax distinguished ...................................... [12.40] Territories, application in ........................ [12.55] third parties, acquisition by .................... [12.60] use test ....................................................... [12.50] Administrative tribunals non-​judicial role of judges ...................... [6.100] Admiralty jurisdiction �����������������������������������[6.50] Aircraft airlines and tax ........................................... [9.10] just terms not required ............................ [12.40] licensing, trade and commerce power .... [2.30] statutory liens over .................................. [12.40] trade and commerce power .................... [12.40] Airlines and tax �����������������������������������������������[9.10] Aliens power (s 51(xix)) confiscation of property under ............... [12.50] constitutional interpretation ......[1.170], [1.200] deportation under .................................... [1.170] race power compared .............................. [14.30] Amendment of Constitution —​see Constitution Appropriation and expenditure...................[10.45] Appropriations power (s 81) Australian Assistance Plan (AAP) .......................... [5.70], [10.50]–​[10.55] Commonwealth legislative authority............................................... [10.45] Consolidated Revenue Fund .................. [10.50] content of s 81 ........................................... [10.50] expenditure of appropriated moneys (s 83) ............. [5.70], [10.55]–​[10.60] grants power (s 96) compared ................ [10.50] limits to ...................................................... [10.50] nationhood power and ..... [5.70], [5.85], [10.55] parliamentary control over expenditure ......................................... [1.125] “purposes of the Commonwealth” ........ [10.50] scope of ...................................................... [10.50] welfare benefits ........................................ [10.50] Asylum seekers detention .................................................... [6.150] overview ...................................................... [5.60]

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Australia Australia Act 1986.........................[1.165], [1.205] constitutional monarchy ........................... [5.10] republic in waiting ................................... [1.170] Australian Assistance Plan (AAP) AAP case ............................................[5.70]–​[5.75] validity of appropriation .......................... [5.70], [10.50]–​[10.55] Australian Bicentennial Authority nationhood power ...................................... [5.75] power to prohibit use of words and symbols .......................................... [5.75] Australian Film Commission nationhood power, establishment under ...................................................... [5.70] Australian Institute of Sport nationhood power, establishment under ...................................................... [5.70] Australian National Gallery nationhood power, establishment under ...................................................... [5.70] Australian Securities and Investments Commission (ASIC) ����������������������[3.70]

Bicameralism Australian parliaments .............................. [1.30] UK parliament ............................................ [1.30] Bikies freedom of association .... [1.55], [6.110], [13.55] limits .................................................... [13.55] Bill of Attainder ad hominem ..................... [6.10], [6.145], [6.165] definition ................................................... [6.145] usurpation of judicial power .................. [6.145] Bills process for passing ................................... [1.105] Bills of rights Australian arguments for ........[1.230], [12.110], [14.95] Human Rights Act 2004 (ACT) ....[12.110], [14.95] mistrust of ................................................... [1.20] UK .....................................................[1.15]–​[1.20] US ....................................................[1.15], [1.150] Western-​style democracies without ................................................[12.110] Boat people —​see also Asylum seekers detention by legislature ........................... [6.150] Bounties on goods —​see Customs, excise and bounties

Australian Security Intelligence Organisation (ASIO) establishment .............................................. [5.35] statutory control ......................................... [5.35]

Boycotts secondary and corporations power .............................. [2.40], [3.50], [3.65]

Australian Security Intelligence Services (ASIS) immunities of .............................................. [8.80] statutory control ......................................... [5.35]

Builders’ Labourers’ Federation (BLF) legislative usurpation of judicial power ................................................... [6.120]

B

C

Bank Nationalisation case acquisition of property on just terms .................................................... [12.25] freedom of interstate trade ......................[11.25]

Cabinet Constitution, not mentioned in ..............................[1.115], [5.10] executive power ......................................... [5.10] Governor-​General to act on advice of ................................................ [5.10] High Court justices, selection of ............ [1.180] persons within ............................................ [5.10]

Bankruptcy and insolvency power (s 51(xvii)) just terms not required ............................ [12.40] sequestration of bankrupt’s property ............................................... [12.40] Bias actual or apprehended ............................ [6.170] impartiality of judiciary .......................... [6.170]

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Census indigenous people, inclusion of ..............................................[1.140], [14.25] 1967 referendum ....................................... [14.25]

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Index Chapter III courts —​see also Federal courts; Judicial power; Separation of judicial power criminal laws, retrospective .................... [6.160] definition ..........................................[6.05], [6.55] delegation of judicial power ..................... [6.80] exceptions to separation of judicial power ..........................[6.75]–​[6.100] fair trial, right to ....................................... [6.170] federal courts vested with State jurisdiction ............................................ [6.70] incidental powers ....................................... [6.95] incompatibility doctrine ............[6.100], [6.115], [6.140] individual rights, source of ........[6.110]–​[6.170] judicial power only to be exercised by ................................[6.05], [6.60] legal equality, implied right .................... [6.165] legislative usurpation of judicial power ..................................... [6.145] non-​judicial power not to be exercised by ................................[6.05], [6.65] persona designata exception .....[6.100], [6.140] powers to detain ....................................... [6.150] separation of judicial powers, exceptions .................................[6.75]–​[6.100] State courts vested with federal jurisdiction ............................................ [6.70] Child support Registrar, non-​judicial powers ......[6.20], [6.40] tax payments ............................................... [9.10] Chose in action acquisition on just terms ............[12.30]–​[12.35] common law ............................................. [12.30] property, as ................................................ [12.30] statutory proprietary rights .................... [12.35] Civil servants appointment of ........................................... [5.30] Coal industry tribunal for settlement of interstate disputes ................................ [5.80] Coercive powers nationhood power ...................................... [5.75] prerogative power ...................................... [5.55] Collective responsibility doctrine of ................................................... [1.40] Colonial parliaments constitutions ................................................ [1.70] limits on powers ......................................... [1.75] validity, preserve ...................................... [1.130]

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Colonies dictatorship to responsible government ........................................... [1.70] first settlements .......................................... [1.65] freedom from Imperial control .....................................[1.155]–​[1.170] historical progression to Federation ..................................[1.60]–​[1.80] transformation into States ....................... [1.130] Commerce —​ see Trade and commerce Commonwealth government Australian Capital Territory as seat of .............................................. [1.140] constitutional constraints on .................... [1.15] functions of arms of ................................... [1.05] good faith attitude to federalism ............. [1.55] judicial decisions, interference in ........... [6.100] legislative power —​see Legislative power –​Commonwealth location of seat of ..................................... [1.140] party to proceedings .................................. [8.75] powers under Constitution ...................... [1.15] separation of Commonwealth/ State powers .......................................... [1.55] Commonwealth laws characterisation of ...........................[2.05]–​[2.60] delegated legislation .................................. [5.25] direct characterisation, test of ........[2.20], [2.60] execution by executive .............................. [5.25] High Court jurisdiction ............................. [6.50] implied prohibition doctrine .................... [2.15] incidental power .............................[2.25]–​[2.40] inconsistent State laws —​see Inconsistency of State and federal laws judicial review, power of ......................... [1.175] maintenance by executive ......................... [5.25] proportionality in characterisation ........... [2.45]–​[2.55], [14.75] purpose behind law ................................... [2.20] purposive powers ............. [2.50], [5.75], [14.75] R v Barger ..................................................... [2.10] regulation-​making power ......................... [5.25] reserved powers doctrine ......................... [2.10] strict test ...................................................... [2.55] taxation and proportionality .................... [2.35] territorial limits ........................................... [4.10] trade and commerce .................................. [2.30] Commonwealth Parliament constitutional provisions ........................... [1.90] contempt, power to punish ....................... [6.85] definition ..................................................... [1.90] dissolution, reserve powers of Governor-​General ................................ [5.15]

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Commonwealth Scientific and Industrial Research Organisation (CSIRO) nationhood power, establishment under ...........................................[5.70], [5.75]

entrenchment ............................................ [1.145] execution by executive .............................. [5.30] federal nature .............................................. [1.55] historical progression .....................[1.60]–​[1.80] indigenous Australians, absence of ............................................ [1.150] interpretation  —​ see Constitutional interpretation maintenance by executive ......................... [5.35] overview .........................................[1.85]–​[1.150] Prime Minister not mentioned in ................................................[1.115], [5.10] public power, source and authority for ..... [1.05] republic ...................................................... [1.170] territorial limits inherent in ...................... [4.10] women, exclusion of ................................ [1.150]

Commonwealth/​State co-​operation corporate regulation .................................. [5.75] distribution of powers ............................... [1.55] interstate coal disputes .............................. [5.80] nationhood power ...........................[5.75]–​[5.80] prosecution of State offences by DPP (Cth) ......................................... [5.75]

Constitutional conventions constitutional crisis 1975 ........................... [1.25] executive, governing ......... [1.115], [5.05]–​[5.15] inherent uncertainty/ unenforceability .................................... [1.25] role in constitutional law .......................... [1.25] supply bills .................................................. [1.25]

Communist Party case defence power .................................[2.50], [5.70] implied rights ..............................[13.05]–​[13.10] nationhood power .........................[5.70], [13.10] proportionality in characterising law .... [14.75]

Constitutional corporations ��������������������������[3.15]

Commonwealth Parliament — cont double dissolution ........................[1.105], [5.15] House of Representatives —​see House of Representatives legislative power —​see Legislative power –​Commonwealth powers of ....................................................[1.110] Senate  —​ see Senate Statute of Westminster ............................. [1.160] United Kingdom, becoming free of control by ........................................ [1.155]

Compatibility testing �����������������������������������[13.40] Compulsory acquisition —​see Acquisition of property on just terms (s 51(xxxi)) Conciliation and arbitration power —​see Industrial relations power (s 51(xxxv)) Concrete Pipes case —​see Corporations power (s 51(xx)) Consolidated Revenue Fund appropriated moneys to be paid into .... [10.50] payments and tax ....................................... [9.10] withdrawal of moneys from ................... [10.50] Constitution adoption ...................................................... [1.80] amendment ............................................... [1.145] appraisal .................................................... [1.150] Cabinet not mentioned in ............[1.115], [5.10] Commonwealth powers under ................ [1.55] contemporary attitudes of drafters ........ [1.150] demarcation of Commonwealth/ State power ........................................... [1.55] drafting ........................................................ [1.80]

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Constitutional interpretation ambiguity .................................................. [1.230] comparative arguments .......................... [1.205] contemporary standards ......................... [1.200] contextualism ............................................ [1.195] Convention Debates, use of .................... [1.200] due process, implied right to .....[1.180], [6.165] express rights ............................................ [12.05] extrinsic evidence of legislative intent .........................................[1.200], [2.50] flexibility, scope for .................................. [1.185] freedom of political communication ..... [1.180] golden rule ................................................ [1.195] High Court, role of .......... [1.175]–​[1.180],  [6.50] human rights protection .......................... [1.180] implication ................................................ [1.225] implied rights ..............................[1.180], [12.05] intention of lawmaker ............................. [1.200] international law ...................................... [1.230] literalism .......................................[1.195]–​[1.200] originalism ................................................ [1.200] policy arguments ...................................... [1.210] political preferences of justices ............... [1.180] precedent ................................................... [1.220] principles ................................................... [1.185] proportionality  —​ see Proportionality stare decisis ................................................. [1.220] techniques ....................................[1.185]–​[1.230] Territorial Senators case .................[1.190]–​[1.220] text and context ........................................ [1.195] trends in ..................................................... [1.180]

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Index Constitutional law British legal tradition ................................. [1.10] definition ..................................................... [1.05] fundamental concepts ....................[1.10]–​[1.55] Constitutional monarchy��������������������������������[5.10] Consumption taxes excise distinguished ................................... [9.40] goods and services tax ............................... [9.75] Contempt Parliament, contempt of ............................ [6.85] power to punish ....................................... [12.65] trial by jury, right to ................................. [12.65] Control orders criteria in issuing ........................................ [6.30] future rather than past conduct ............... [6.40] overview ............................ [2.50], [6.10], [6.110], [6.150], [13.10], [13.55] reasonably necessary restrictions ............. [6.30] rights and duties created under ............... [6.35] Convention debates constitutional interpretation, use in ...... [1.200] women, exclusion of ................................ [1.150] Copyright acquisition on just terms ......................... [12.40] fees paid to collecting society, whether tax ........................................... [9.10] Corporations power (s 51(xx)) Australian Securities and Investments Commission .......................................... [3.70] broad view ........................... [3.45]–​[3.55],  [3.80] Concrete Pipes case ................ [3.05]–​[3.10],  [3.45] constitutional corporations ...........[3.15]–​[3.40], [3.55], [3.80] financial corporations .....................[3.30]–​[3.40] foreign corporations .................................. [3.20] formation of corporations ......................... [3.70] Huddart Parker case ............. [3.05]–​[3.10],[3.55], [3.70], [3.80] inactive corporations ................................. [3.35] incidental power ........................................ [2.40] incidental scope .......................................... [3.60] incorporation, regulation of ...................... [3.70] internal management of corporations ..... [3.10] invalidity, test for ....................................... [3.60] judicial interpretation .....................[3.05]–​[3.10] local government corporation .......[3.25], [3.40] misleading or deceptive conduct ............. [3.60] narrow view .....................................[3.45]–​[3.50] natural persons ........................................... [3.65] overview ...........................................[3.05]–​[3.80]

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payments to corporations ......................... [3.75] public bodies ............................................... [3.40] regulation .................................................... [3.70] scope of ..................... [3.05]–​[3.10], [3.45]–​[3.80] secondary boycotts prohibited under ............................... [2.40], [3.50], [3.65] shelf companies .......................................... [3.35] State co-​operation ....................................... [3.80] subject matter .............................................. [3.05] sufficiency of connection between law and subject ..........................[3.45], [3.60] trading corporations ......................[3.10], [3.25], [3.40]–​[3.45] types of corporations ......................[3.15]–​[3.40] uniform corporations law ..............[3.70]–​[3.80] validity of laws ........ [3.10], [3.55]–​[3.60], [3.70] Work Choices case ...... [3.05], [3.45], [3.55]–​[3.80] Corruption State politics ................................................ [1.55] Courts martial judicial power ............................................. [6.85] Criminal laws due process ................................................ [6.165] fair trial ...................................................... [6.170] implied right of legal equality ................ [6.165] inconsistency of State and federal laws .................. [6.165], [7.60]–​[7.65] judicial power, legislative usurpation of ....................................... [6.145] jury trial ..................................................... [12.65] retrospective laws .................................... [6.160] separation of judicial power ................... [6.105] State judicial power ................................. [6.105] State laws binding Commonwealth ........ [8.80] trial by jury ................................................ [12.65] war crimes ................................................. [6.160] Cross-​vesting  scheme��������������������������������������[6.70] Crown appointment of Ministers of ........[1.115], [5.10] coercive ........................................................ [5.55] common law ........ [5.55], [5.90], [5.100], [12.30] executive government vested in .............. [5.10] Governor-​General representing  —​ see Governor-​General immunity ............................ [5.90], [5.100], [8.10] intergovernmental immunity distinguished ........................................ [8.10] Judiciary Act 1903 and immunity ............ [5.90], [5.100], [8.75], [12.30] legal status ................................................... [5.10] Ministers, acting on advice of .................. [1.40] personal rights ............................................ [5.50]

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Crown — cont prerogative powers .........................[5.45], [5.55] rebuttal of presumption of immunity ............................................... [8.10] relationship between s 61 and common law ......................................... [5.60] statutes binding .......................................... [5.90] Currency and coinage power (s 51(xii)) ������������������������������������������[2.45] Customary international law Australia’s obligations under ................... [4.70] external affairs power ................................ [4.70] Customs, excise and bounties bounties on goods .........................[9.05], [14.40] consumption taxes ..................................... [9.40] customs duties definition ............................................... [9.05] excise duty parallel to .......................... [9.70] power to impose (s 90) .............[9.05]–​[9.75] purpose of s 90 ...................................... [9.20] uniform duties (s 88) ............................ [9.20] discrimination prohibition .........[14.40]–​[14.45] excise definition of ................................[9.05]–​[9.75] broad view ..................... [9.15]–​[9.20],  [9.45] consumption taxes excluded .......................................... [9.40] criterion of liability ..................[9.30]–​[9.35], [9.50], [9.60] exceptions to broad view .......................................[9.30]–​[9.40] history .................................................... [9.25] modern cases .............................[9.45]–​[9.70] narrow view ................... [9.15], [9.25], [9.70] purpose of s 90 ...................................... [9.20] tax ........................................................... [9.10] franchise fees ....................................[9.55]–​[9.60] grants power (s 96), limits ....................... [10.35] harmonisation of policies ........................ [1.125] immigration clearance fee ......................... [9.10] liquor licence fee .................. [9.35], [9.55]–​[9.60] pipeline licence fee ..................................... [9.50] power to collect and control (s 86) .......................................... [5.30] power to impose (s 90) ...................[9.05]–​[9.75] purpose of s 90 ............................................ [9.20] reserved powers doctrine ..............[2.10]–​[2.15] s 51(ii) tax power .............................[1.55], [9.05] States prevented from imposing ................................................ [9.05] tax, definition .............................................. [9.10] tobacco and licence fees .................[9.55]–​[9.65] uniform customs duties (s 88) .................. [9.20] victualler’s licence fee ....................[9.35], [9.55]

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D Debts prerogative power regarding ........[5.45], [8.65] Defamation common law defences ............................. [13.45] freedom of political communication, and ...........................................[13.15]–​[13.55] Defence abuse of “national security” powers ................................................... [5.35] Defence Signals Directorate (DSD) ...................................................... [5.35] federation, reason for ................................. [1.80] Defence power (s 51(vi)) characterisation .......................................... [2.50] Communist Party case .................................. [2.50] discriminatory Commonwealth law .......................................................... [8.45] purposive power ........................................ [2.50] reading in light of changing times ..................................................... [14.30] Thomas v Mowbray ..........................[6.10], [6.30], [6.40], [6.150], [13.10] constitutional validity ......................... [2.50] terrorism .....................................[4.15], [4.50] wartime tax arrangements ...................... [10.30] Defence Signals Directorate (DSD) statutory control ......................................... [5.35] Delegated legislation ��������������������������������������[5.25] Department of Public Prosecutions ����������������������� [5.75]–​[5.80] Detention boat people/​asylum seekers .................. [6.150] continuing detention orders ................... [6.215] control orders —​see Control orders federal migration legislation .................. [6.150] judicial and non-​judicial powers ................................................. [6.125] punitive/​non-​punitive purpose ...................................[6.125], [6.150] right to challenge legality ....................... [6.125] Director of Public Prosecutions (Cth) co-​operative scheme, validity of .............. [5.75] State offences, prosecution of ................... [5.75] Disciplinary tribunals�������������������������������������[6.85]

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Index Discrimination Commonwealth laws, against States ...........................................[8.35]–​[8.55] concept of ....................... [11.35], [14.40]–​[14.45] constitutional prohibitions ...................... [14.55] direct .......................................................... [14.45] human rights ............................................. [14.55] impairment of State’s government functions ................................................ [8.50] implied prohibitions ................................ [14.40] indirect ................................ [8.40], [8.90], [14.45] interstate residence —​see Interstate residence, freedom from discrimination (s 117) interstate trade restrictions ....... [11.35]–​[11.45], [14.40]–​[14.45] protectionism ............................... [11.35]–​[11.70] racial  —​ see Racial discrimination rational discrimination .............................. [8.45] reasonable .................................................. [14.50] taxation laws ............................................. [14.40] Double dissolution���������������������������� [1.105], [5.15] Drug offences decriminalisation ........................................ [4.50] harm minimisation ..................................... [4.50] Due process implied constitutional right to .......[1.180], [6.135]

E Engineers case characterisation .......................................... [2.20] comparative arguments .......................... [1.205] implied immunity doctrine ...........[8.05], [8.20] interpretation of text ..................[1.195], [1.225], [2.60], [9.25] reserved powers doctrine .............[2.15], [3.10], [4.35], [7.25]–​[7.30], [8.25], [8.50], [8.60]–​[8.65], [10.30] Environmental protection treaty implementation ....................[4.35], [4.75] Equality before the law concept of .................................................... [1.20] legal equality —​see Legal equality Excise

............................................................[9.15]

Excise duties —​see Customs, excise and bounties Executive administration of laws ....................[1.05], [5.05] arm of government .........................[1.05], [5.05]

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629

blurred distinction between legislature and ...........................[1.50], [5.25] constitutional law regulating ................... [1.05] constitutional provisions ..............[1.115], [5.05] convention, governed by ...............[5.05]–​[5.15] Crown, personified by —​see Crown discretion delegated to ...................[1.20], [5.25] domination of legislature by .................... [1.40] expenditure, control over .............[1.125], [5.70] Federal Executive Council ...........[1.115], [5.10] function .............................................[1.05], [5.05] legislative power delegated to ................. [5.25] persons within ............................................ [5.10] prerogative powers .................................... [5.45] responsible government doctrine ............ [1.40] responsible to legislature .......................... [1.40] separation of powers ................................. [1.50] Executive power coercive powers ...............................[5.55], [5.75] common law ....................................[5.40]–​[5.60] Commonwealth laws ......................[5.25]–​[5.35] Constitution ............. [5.05], [5.30]–​[5.35], [5.95] conventions, role of .......................[1.115], [5.05] Crown, vested in ........................................ [5.10] delegated legislative power ...................... [5.25] demarcation with legislative power ..................................................... [5.25] Governor-​General, vested in ...................................[1.115], [5.10] inherent ........................................................ [5.40] maintenance and execution of the Constitution ...............................[5.30]–​[5.35] nationhood power —​see Nationhood power (s 51(xxxix)) no autonomous powers to detain ............ [5.63] personal rights of Crown .......................... [5.50] prerogative power ...................................... [5.45] privatisation and ........................................ [5.95] regulation-​making ..................................... [5.25] relationship with s 61 ................................. [5.60] reserve powers ............................................ [5.15] scope .................................... [5.20]–​[5.80], [5.100] spending  —​ see Expenditure Expenditure appropriated moneys, of .................................. [5.70], [10.55]–​[10.60] parliamentary control over executive, by ...........................[1.125], [5.70], [10.55]–​[10.60] Export regulations and restrictions freedom of interstate trade ......................[11.50] inconsistency of State and federal laws ........................................... [7.40] marketing schemes ...................................[11.50]

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630

Federal Constitutional Law: A Contemporary View

Express rights acquisition on just terms —​see Acquisition of property on just terms (s 51(xxxi)) freedom of religion —​see Freedom of religion (s 116) narrow interpretation .............................[12.110] overview .................................................... [12.05] trial by jury ................................................ [12.65] External affairs power (s 51(xxix)) child sex tourism ........................................ [4.15] Commonwealth legislative authority ..... [1.55] criminal laws, retrospective .................... [6.160] customary international law ..................... [4.70] extraterritorial power ................................ [4.10] importance .................................................. [4.05] matters of international concern ........................................[4.35], [4.65] overview ...........................................[4.05]–​[4.75] proportionality in characterising law ........................................................ [14.75] purposive element ..................................... [2.50] relations with other nations ...................... [4.15] retrospective laws .................................... [6.160] sedition ........................................................ [4.15] territorial sea ............................................... [4.10] treaty implementation —​see Treaties war crimes ................................................... [4.10] Extraterritorial power�������������������������� [1.75], [4.10]

F Fair trial right to ....................................................... [6.170] Family Court delegation of judicial power to registrars ................................................ [6.80] Federal Court .............................................. [6.60] Federal courts —​see also Chapter III courts appointment of judges .............................. [5.30] courts operational in 2014 ......................... [6.60] cross-​vesting scheme ................................. [6.70] delegation of judicial power ..................... [6.80] High Court —​see High Court of Australia industrial disputes, power to settle ......... [6.65] judicial power only to be exercised by ................................[6.05], [6.60] Chapter III courts ......................[6.05], [6.60] definition of judicial power —​see Judicial power delegation .............................................. [6.80] exceptions ...................................[6.75]–​[6.85]

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non-​judicial power not to be exercised by ................................[6.05], [6.65] cross-​vesting scheme ........................... [6.70] due process, right to .......................... [6.165] exceptions .................................[6.90]–​[6.100] federal courts vested with State jurisdiction ...................................... [6.70] incidental powers ................................. [6.95] incompatibility doctrine ......[6.115], [6.140], [6.160] persona designata exception ........... [6.100], [6.115], [6.140] State courts vested with federal jurisdiction ...................................... [6.70] telecommunications interception warrants ......................................... [6.100] tenure of judges .............................[1.120], [6.60] Federal Executive Council���������������� [1.115], [5.10] Federalism Australia ...................................................... [1.55] Canada ......................................................... [1.55] decentralisation of power ......................... [1.55] protection of minority rights ...................................................... [1.55] Senate, role of ............................................ [1.100] Federation catalyst ......................................................... [1.80] constitutional provisions at .................... [14.20] trade-​related reasons ......................[1.80], [9.05] Finance constitutional provisions ......................... [1.125] Financial corporations —​see also Corporations power (s 51(xx)) definition ..................................................... [3.30] formation of ................................................ [3.70] regulation .................................................... [3.70] scope of corporations power .........[3.30], [3.45] Financial transaction reporting���������������������[2.45] Fiscal balance centralisation in Commonwealth .......... [10.05] fiscal power ............................................... [10.15] between Commonwealth/​ States .............................................. [10.05] vertical fiscal imbalance ..............[9.75], [10.05], [10.20] Fisheries power (s 51(x)) confiscation of boat under ...................... [12.40] just terms not required ............................ [12.40]

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Index Foreign corporations —​see also Corporations power (s 51(xx)) definition ..................................................... [3.20] regulation .................................................... [3.70] scope of corporations power .........[3.45]–​[3.50] Foreign nations High Court jurisdiction re representatives ...................................... [6.50] relations with, external affairs power ..... [4.15] Franchise fees excise, whether ................................[9.55]–​[9.60] Freedom of association bikies ................................. [1.55], [6.110], [13.55] limits .................................................... [13.55] Indigenous peoples .................................. [13.55] overview .................................................... [13.55] Freedom of interstate trade, commerce and intercourse (s 92) “absolutely free” ........................... [9.05], [11.25], [11.35], [11.80] ambiguity of s 92 .......................................[11.05] Betfair v Western Australia decision ................................... [11.55]–​[11.70] betting exchange .......................................[11.60] breach, test for ...........................................[11.75] Cole v Whitfield decision .............. [11.35]–​[11.75] content of s 92 ............................................[11.05] discrimination ..............................[11.35]–​[11.45], [14.40]–​[14.55] advantaged and disadvantaged parties .............................................[11.65] against who or what ...........................[11.65] export restrictions .....................................[11.50] federation, aim of ............................[1.80], [9.05] “free trade” theory ...................... [11.20], [11.35] history of s 92 ............................... [11.10]–​[11.25] individual rights ........................................[11.25] internet commerce .....................................[11.60] interpretation of s 92 ..... [11.15]–​[11.25], [12.05] criterion of operation ..........................[11.25] early decisions .....................................[11.20] “free trade” theory ................ [11.20], [11.35] “individual rights” approach ............[11.25] proportionality ................................... [14.60] re-​examination in 1987 .......................[11.30] interstate intercourse .................. [11.75]–​[11.80] non-​protectionist objective ......................[11.55] proportionate regulation exception ........[11.55] protectionism ............................... [11.35]–​[11.70] protectionist laws ........................ [11.35]–​[11.55] consequences of ...................................[11.45] purpose of s 92 .............................[11.10], [14.55] Territories ...................................................[11.80]

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631

tobacco licence fees ...................................[11.45] trade and commerce, definition ..............[11.15] Freedom of movement, association and participation freedom of political communication, derived from ..........................[13.55], [13.75] implied right ................................[13.05], [13.55] recognition of ............................................ [13.55] Stolen Generation case ...................[13.55], [14.35] Territories, application to ........................ [13.55] voting privacy ........................................... [13.55] Freedom of political communication —​see also Voting breach of reasonably appropriate .......... [13.35] case law ........................... [13.15]–​[13.20], [13.75] common law defences distinguished .........................[13.45], [13.50] constitutional guarantee, limits to ......... [14.80] constitutional interpretation ................... [13.20] defamation defence .....................[13.15]–​[13.60] freedom of association derived from .........................................[13.55], [13.75] implied constitutional right ......[1.180], [12.05], [13.05], [13.15]–​[13.20], [13.75] individuals, rights conferred on ............ [13.50] insulting words ......................................... [13.35] Lange test for breach ...... [13.25]–​[13.35], [13.55] limit on governmental power, as .................................[13.45]–​[13.50] limits .............................................[13.35], [13.50] nature of ..................................................... [13.50] non-​federal matters .................................. [13.30] non-​verbal communications ................... [13.30] objective of restrictions ............................ [13.35] operation of ............................................... [13.50] political communication, meaning ........ [13.30] politics of High Court decisions ............ [1.180] proportionality ......................................... [13.35] protected communications ..................... [13.30] “reasonably appropriate and adapted” .............................................. [13.35] second stage of Lange, revisiting ............ [13.40] scope ........................................................... [13.25] source ......................................................... [13.20] Territories, application to ........................ [13.55] test for breach ..............................[13.25]–​[13.35] Freedom of religion (s 116) content of s 116 ......................................... [12.70] establishment of a religion ........ [10.35], [12.70], [12.80] express right .............................................. [12.05] grants to religious institutions ................................[10.35], [12.80] interpretation of s 116 .................[12.05], [12.75]

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632

Federal Constitutional Law: A Contemporary View

Freedom of religion (s 116) — cont laws prohibited by s 116 ..........................[12.70], [12.80]–​[12.85] prohibition ...................... [10.35], [12.70], [12.80] proportionality test .....................[12.85], [14.80] purpose test ............................................... [12.85] religion, meaning ..................................... [12.75] religious test for office ................[12.70], [12.90] Stolen Generation case ...................[12.85], [14.35]

G Genocide����������������������������������������������������������[14.35] Goods and services tax (GST) GST revenue grants .....................[10.20], [10.40] Intergovernmental Agreement ............... [10.20] s 96 grants, effect on ......................[9.75], [10.20] States’ revenue raising capacities ............ [9.75] Governor-​General appointment ................................................ [5.10] assent to legislation .................................... [1.90] Cabinet, to act on advice of ....................... [5.10] Commander-​in-​Chief of Commonwealth armed forces ............ [5.10] delegation of powers ............................... [1.140] disallowing legislation .............................. [1.25] dismissal of Ministers ................................ [5.10] dismissal of Prime Minister ......................[1.25], [1.45], [5.15] dissolution of lower House ............[1.25], [1.90] double dissolution, calling ...........[1.105], [5.15] executive power vested in ...........[1.115], [5.10] Federal Executive Council ........................ [5.10] Governor-​General in Council ................... [5.10] High Court justices, appointment of ................................................[1.180], [5.30] parliamentary role ...................................... [1.90] power vested in ............................ [1.25], [1.115], [5.10]–​[5.15],  [5.25] Prime Minister ......... [1.25], [1.45], [5.10]–​[5.15] Queen’s representative ....... [1.25], [1.90], [5.10] regulation-​making power ......................... [5.25] reserve powers ............................................ [5.15] Grants power (s 96) appropriations power (s 81) compared ............................................. [10.50] background ............................................... [10.15] conditional grants .......................[10.30]–​[10.35] constitutional limitations, avoiding ...... [10.40] content of s 96 ........................................... [10.10] evading prohibitions on Commonwealth power ..................... [10.35]

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Federal Roads case ...................................... [10.25] financial assistance, what constitutes ........................................... [10.25] general revenue grants ............................ [10.20] GST revenue grants .....................[10.20], [10.40] influencing State activity by use of ........ [10.15] Intergovernmental Agreement ............... [10.20] interpretation .............................................. [1.55] land acquisition, avoiding s 51(xxxi) requirements ....................................... [10.35] legislative authority ................................... [1.55] limits .......................................................... [10.35] non-​government schools, grants to ..................................[10.25], [10.35] purpose ...................................................... [10.15] refusal of grant by State .......................... [10.45] religious institutions, grants to ..................................[10.35], [12.80] scope ..............................................[10.15], [10.25] section 96 grants ..........................[10.20]–​[10.35] special assistance grants .......................... [10.20] specific purpose grants ............................ [10.20] types of grants .......................................... [10.20] Uniform Tax cases ....................................... [10.30] wheat industry assistance scheme ......... [10.35]

H Heads of power acquisition of property, authorising ...... [12.50] characterisation of laws —​see Commonwealth laws Commonwealth .......................... [1.155], [1.165], [1.200], [1.230], [2.05] industrial relations ................................... [1.195] High Court of Australia appellate jurisdiction ..................[1.120], [1.200] appointment of justices ................[1.180], [5.30] character of ................................................ [1.180] constitutional interpretation —​see Constitutional interpretation corporations power, scope of .........[3.05], [3.55] independence .................................[1.180], [6.60] judicial power exercised by ....................[1.120], [6.50], [6.60] judicial review by ..................................... [1.175] original jurisdiction .......................[1.120], [6.50] political ramifications of decisions ........ [1.180] proportionality in ..................................... [14.70] rights, change in approach to ................. [12.05] tenure of judges .......................................... [6.60] Hindmarsh Island case non-​judicial role of judge ........................ [6.100] race power, scope of ................................. [14.30]

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Index House of Commons (UK) bicameral system ........................................ [1.30] election to .................................................... [1.35] House of Lords (UK) abolition of hereditary peers .................... [1.30] bicameral system ........................................ [1.30] lack of power .............................................. [1.30] House of Representatives bicameral system ........................................ [1.30] Commonwealth legislature, part of ......... [1.90] constitutional provisions ........................... [1.95] deadlock between Houses ...................... [1.105] duration ....................................................... [1.95] election of Members ........................[1.30], [1.95] Governor-​General’s dissolution power ..........................................[1.25], [1.90] majority in ................................................... [1.40] Members (MHRs) ....................................... [1.95] money bills must originate in ................. [1.105] “people’s house” ........................................ [1.95] preferential voting system ........................ [1.35] qualifications of electors ............................ [1.95] relative powers ......................................... [1.105] representative government ....................... [1.35] responsible government doctrine ...................................... [1.40], [1.95] right to vote ................................[12.105], [13.70] Huddart Parker case —​see Corporations power (s 51(xx)); Judicial power Human rights bills of rights —​see Bills of rights Chapter III as source of individual rights .......................................[6.135]–​[6.170] constitutional interpretation ................... [1.180] detention, right to challenge legality of ...[6.135] discrimination prohibitions .................... [14.55] express constitutional rights ..................[12.110] failure of Constitution to protect ........... [14.35] Human Rights Act 2004 (ACT) ...............[12.110] Human Rights Charter ...........................[12.110] implied rights and freedoms .................... [6.05] international law norms ...............[4.30], [14.95] legislation in breach of .............................. [1.15] parliamentary sovereignty and ................ [1.15] politics of High Court decisions ............ [1.180] separation of powers ............................... [6.135] treaty implementation ....................[4.30], [4.75] Victorian Charter .............................[6.25], [6.35] Human Rights and Equal Opportunity Commission (HREOC) enforceability of decisions ... [6.15]–​[6.20],  [6.60] Federal Court ...................................[6.15]–​[6.20]

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633

I Immigration clearance fee as tax ..................................... [9.10] designated persons .................................. [6.150] detention of asylum seekers ................... [6.150] powers to detain ....................................... [6.150] Immigration power (s 51(xxvi)) purposive element ..................................... [2.50] Immunity common law ..................................[5.90], [5.100] Commonwealth, of, from State laws ........................................................ [8.65] “affected by” doctrine ..............[8.70], [8.85] agents ..................................................... [8.80] extent ...................................................... [8.85] law affecting capacities/​exercise of capacities ......................................... [8.85] Residential Tenancies Tribunal case .................................................... [8.85] Crown ...............................................[5.90], [8.10] early law ...................................................... [8.15] Engineers case ....................................[8.05], [8.20] intergovernmental .................................... [14.50] implied ................................................... [8.15] legislative power —​see Legislative power –​Commonwealth rebuttal of presumption .................[5.90], [8.10] revocation by Judiciary Act 1903................[5.90], [5.100], [8.75] State, tests for .............................................. [8.55] Austin v Commonwealth ........................ [8.55] Implied rights Communist Party case ................................ [13.10] constitutional interpretation .................. [1.180], [12.05] High Court uncovering ........................... [12.05] legal equality —​see Legal equality political communication —​see Freedom of political communication voting  —​ see Voting Incidental power —​see also Commonwealth laws appropriateness ...............................[2.40]–​[2.45] corporations power .........................[2.40], [3.60] implied ......................................................... [2.25] judgments on .............................................. [2.40] proportionality and ........................[2.45], [2.55], [14.75] reasonableness .................................[2.40]–​[2.45] taxation ........................................................ [2.35] trade and commerce .................................. [2.30]

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634

Federal Constitutional Law: A Contemporary View

Income tax —​see Tax Incompatibility doctrine���������������� [6.100], [6.115], [6.140], [6.160] Inconsistency of State and federal laws Commonwealth laws to prevail ...............[1.55], [1.130], [7.05] conferral of rights test ................................ [7.30] constitutional provision ............................ [7.05] cover the field test ...........................[1.55], [7.35] Commonwealth intention ........[7.50]–​[7.60] express Commonwealth intention ..... [7.55] identification of field ........................... [7.40] implied Commonwealth intention .......................................... [7.60] overlapping fields ................................ [7.45] reassessment ......................................... [7.70] subject matter approach ...................... [7.45] criminal laws ............................................... [7.60] delegated legislation .................................. [7.10] direct inconsistency ............. [7.20], [7.35], [7.80] export regulations ...................................... [7.40] indirect inconsistency .....................[7.20], [7.35] industrial awards .... [7.25]–​[7.30], [7.45], [7.60] invalidity ..................................................... [7.15] law, what constitutes ................................. [7.10] minimum wages ......................................... [7.25] penalties ..........................................[6.165], [7.65] racial discrimination .......................[7.30], [7.55] reassessment of tests for ............................ [7.70] right of legal equality .............................. [6.165] sex discrimination ...........................[7.25], [7.60] simultaneous obedience test ..................... [7.25] subordinate legislation .............................. [7.10] tests for ..................... [7.20]–​[7.60], [7.70], [7.80] working hours ............................................ [7.30] Incorporation corporations power, regulation under .... [3.70] Indigenous people apology ...................................................... [14.35] census, exclusion from ....[1.140], [14.20]–​[14.25] constitution ............................................... [14.10] constitutional prohibitions on discrimination ..................................... [14.40] constitutional provisions at Federation ........................................... [14.20] constitutional recognition, lack of ........................ [1.150], [14.10]–​[14.20] detention power ....................................... [6.150] Federal Council for the Advancement of Aborigines and Torres Strait Islanders .............................................. [14.25] freedom of movement and association ..............................[13.55], [14.35]

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freedom of religion ......................[12.85], [14.35] genocide ..................................................... [14.35] Hindmarsh Island case ...................[6.100], [14.30] legal equality, right of .................[6.165], [14.35] native title —​see Native title 1967 referendum ....................................... [14.25] non-​judicial powers exercised by federal judge ....................................... [6.100] partial recognition of Indigenous law .... [14.15] property rights .......................................... [12.15] proportionality ......................................... [14.60] race power ................................................. [14.30] reconciliation ................................[14.10], [14.35] sovereignty issues .........................[1.65], [14.15] Stolen Generation case  —​ see Stolen Generation case treaty .......................................................... [14.35] voting rights .............................................. [14.20] Industrial law federal courts, power to make awards .................................................... [6.65] inconsistency of State and federal laws ..................... [7.25]–​[7.30], [7.45], [7.60] Industrial relations power (s 51(xxxv)) alleged breach of ...................................... [13.20] discriminatory Commonwealth law ....... [8.45] incidental exercise of power ..................... [2.55] proportionality in characterising law .... [14.75] scope of ........................................................ [8.45] State instrumentalities, laws binding ........................................[2.15], [8.40] territorial limits ........................................... [4.10] Intellectual property acquisition on just terms ......................... [12.40] fees paid to collecting society, whether tax ........................................... [9.10] Intergovernmental immunity Crown immunity distinguished .............. [8.10] discriminatory legislation —​see Legislative power –​Commonwealth Engineers case ....................................[8.05], [8.20] implied, doctrine of ............. [8.05], [8.15]–​[8.20] legislative power —​see Legislative power –​Commonwealth International concern, matters of external affairs power ................................ [4.65] meaning ....................................................... [4.65] treaty implementation ............................... [4.35] International Labour Organisation (ILO) case����������������������������� [4.45]–​[4.65]

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Index International law Australia’s obligations ............................... [4.30] constitutional interpretation and ........... [1.230] customary .................................................... [4.70] human rights norms .....................[4.30], [14.95] treaties  —​ see Treaties Interpretation —​ see Constitutional interpretation Interstate Commission������������������������������������[6.60] Interstate intercourse, freedom of��������������� [11.75] Interstate matters High Court jurisdiction ............................. [6.50] separation of judicial powers ................... [6.60] Interstate residence, freedom from discrimination (s 117) bar, admission to ...................................... [14.45] death duties ............................................... [14.45] direct/​indirect discrimination ...[12.95], [14.45] exceptions ................................................ [12.100] express right .................................[12.05], [12.95] interpretation of s 117 .................[12.05], [12.95] proportionality test .................................. [14.80] purpose of prohibition ............................ [14.55] “reasonable” discrimination ................... [14.50] Interstate trade freedom of —​see Freedom of interstate trade, commerce and intercourse (s 92) trade and commerce power ...................... [2.30] Invalidity consequences of .............................[1.235], [7.15] Kable v DPP (NSW) ................................... [1.235] presumption of validity .......................... [1.235] reading down a law ................................. [1.235] severance ........................................[1.235], [7.15] void ab initio ............................................. [1.235]

J Judicial decisions binding ..............................................[6.15]–​[6.20] breadth of discretion .................................. [6.30] conclusive decisions .................................. [6.20] controversy .................................................. [6.25] discretion to be exercised .......................... [6.30] enforceability ...................................[6.15], [6.45] existing rights and duties .......................... [6.35] finality .......................................................... [6.20] historical considerations ........................... [6.40]

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635

judicial decisions distinguished ....[6.25], [6.45] questions of fact and law .......................... [6.20] Judicial power —​see also Chapter III courts; Separation of judicial power breadth of discretion .................................. [6.30] Chapter III courts only to exercise ...........[6.05], [6.55]–​[6.60] Commonwealth ............... [1.120], [6.50]–​[6.100] concept ......................................................... [6.05] definition ..................................................... [6.10] delegation .................................................... [6.80] disciplinary tribunals ................................. [6.85] doctrine of separation —​see Separation of judicial power exceptions to exercising ..................[6.75]–​[6.85] fair trial, right to ....................................... [6.170] federal courts, exercise by —​see Federal courts government interference ......................... [6.100] High Court original jurisdiction ...............................[1.120], [6.50] Huddart Parker case ...................[6.10], [6.15] investiture in non-​judicial bodies at State level ........................................ [6.125] individual rights, source of ..................... [6.135] judicial decisions —​see Judicial decisions legal equality, implied right of ............... [6.165] legislative usurpation .............................. [6.145] military tribunals ........................................ [6.85] non-​judicial decisions  —​ see Non-​judicial decisions Parliament, power to punish contempt of ............................................................. [6.85] retrospective criminal laws ..................... [6.160] separation of —​see Separation of judicial power Judicial review —​see also Constitutional interpretation Acts of Parliament .................................... [1.175] Australian courts, power of .................... [1.175] Crown rights, exercise of ........................... [5.50] delegated legislative power fettered by ............................................. [5.25] High Court ................................................ [1.180] historical considerations ........................... [6.40] prerogative powers, exercise of ................ [5.45] Judiciary appointment of federal judges ................. [5.30] arm of government .........................[1.05], [6.05] constitutional law regulating ................... [1.05] constitutional provisions ........................... [6.05] federal courts —​see Federal courts function ........................................................ [1.05] impartiality ....................................[6.60], [6.110] independence ............................................ [6.180]

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636

Federal Constitutional Law: A Contemporary View

Judiciary — cont interpretation of law .................................. [1.05] non-​judicial decisions  —​ see Non-​judicial decisions separation of powers —​see Judicial power State courts —​see State courts tenure of federal judges ................[1.120], [6.60] US, power vested in ................................... [1.15] Jury trial —​see Trial by jury Just terms —​see Acquisition of property on just terms (s 51(xxxi))

K Kable principle, revival of ��������������������������� [6.112] Kerr, Governor-​General constitutional crisis .........................[1.25], [1.45] sacking of Whitlam government ..............[1.25], [1.45], [5.15] troops on stand-​by ..................................... [5.35]

L Lange test ��������������������������������������������������������[13.40] Legal equality .................................. [6.165], [14.35] implied right of ............................[6.165], [12.05] Indigenous people ......................[6.165], [14.35] sentencing .................................................. [6.165] Stolen Generation case ...................[6.165], [14.35] substantive/​procedural distinction ....... [6.165] Legislative Assembly (Tas) election by proportional representation .... [1.35] Legislative power –​Commonwealth authority to exercise ..................................[1.110] balance of power ........................................ [1.55] Commonwealth, over States .....................[8.05], [8.25]–​[8.55],  [8.90] conciliation and arbitration power .......... [8.45] Crown immunity distinguished .............. [8.10] delegated to executive ............................... [5.25] discriminatory laws ......... [6.165], [8.35]–​[8.55], [14.45] Engineers case ............ [2.15], [8.05], [8.20], [8.25] heads of power ........................................... [2.05] impairment of State’s government functions ................................................ [8.50] implied immunity doctrine ....................[1.225], [8.05]–​[8.20] incidental ..........................................[2.25]–​[2.40]

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indirect discrimination .................[8.40], [14.45] purposive powers ...................................... [2.50] rational discrimination .............................. [8.45] request and consent of States ................. [1.165] reserved powers doctrine ..............[2.10]–​[2.15] State Banking case .............................[8.30]–​[8.35] State judges, application to ....................... [8.55] vesting of ..................................................... [1.90] Legislative power –​ States abandonment of reciprocity ..................... [8.65] “affected by” doctrine ....................[8.70], [8.85] authority to exercise ..................................[1.110] Cigamatic case ...................................[8.65]–​[8.85] Commonwealth as party in civil suit ......................................[8.75], [8.85] criminal laws ............................................... [8.80] government functions ............................... [8.50] Judiciary Act 1903, s 64 ....................[8.75], [8.85] law affecting capacities/​exercise of capacities ........................................... [8.85] reciprocity .................................................... [8.60] reserved powers ..............................[2.10]–​[2.15] Residential Tenancies Tribunal case ............. [8.85] States, over Commonwealth .....................[8.05], [8.60]–​[8.90] territorial limits ........................................... [4.10] Legislature enactment of laws ...................................... [1.05] executive, blurring of distinction between .................................................. [1.50] functions ...................................................... [1.05] separation of powers ......................[1.50], [6.05] Licence fees backdating device to avoid s 90 ............................................... [9.55] excise ..................................... [9.35], [9.50]–​[9.65] freedom of interstate trade ......................[11.45] liquor licence ........................ [9.35], [9.55]–​[9.60] pipeline licence ........................................... [9.50] tobacco licence ................... [9.55]–​[9.65], [11.45] X-​rated videos ............................................. [9.60]

M Marriage dissolution, judicial power of registrars ................................................ [6.80] same-​sex marriage ..................................... [7.60] Military tribunals overview ...................................................... [6.85] usurpation of judicial power .........[6.85], [6.150]

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Index Ministers administrative departments ..........[1.40], [5.10] Crown to act on advice of ..............[1.40], [5.10] Federal Executive Council, members of . [5.10] Governor-​General’s power to sack .........................................[1.25], [5.10] public service accountability .................... [1.40] Misleading or deceptive conduct������������������[3.60] Modern approach to direct characterisation .............................. [2.20] Modern cases .........................................[9.45]–​[9.70] Money appropriation and allocation .................... [5.70] currency and coinage power .................... [2.45] nationhood power and expenditure ....... [5.70] prerogative power to coin ......................... [5.45]

N National Library nationhood power, establishment under ...................................................... [5.70] National security abuse of powers .......................................... [5.35] coercive prerogative power ...................... [5.55] Communist Party case .......................[2.50], [5.70] nationhood power ...................................... [5.70] Nationhood power (s 51(xxxix)) appropriation power and .............[5.70], [10.55] coercive laws under ................................... [5.75] Commonwealth executive, vested in ...... [5.65] Commonwealth initiatives under ............ [5.70] Commonwealth/​State co-​operation ...............................[5.75]–​[5.80] Communist Party case .....................[5.70], [13.10] development of parameters ...................... [5.85] expenditure ................................................. [5.70] federal executive powers .......................... [5.55] incidental characterisation ........................ [2.25] limits ............................................................ [5.70] matters included in .................................... [5.70] national security, matters of ...................... [5.70] Pape case ................. [5.70]–​[5.75], [5.85], [10.55] prerogatives ................................................ [5.90] proportionality in characterising law ........................................................ [14.75] purposive element ..........................[2.50], [5.75] relationship with s 61 ......................[5.60]–​[5.60]

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637

scientific and technical research ............... [5.70] scope ............................................................. [5.65] Native title European settlement .....................[1.65], [14.15] inconsistency of State and federal laws ........................................................ [7.30] international law obligations .................... [4.30] legal recognition in Mabo ............ [1.65], [1.180], [14.15] Mabo (No 2) .............[1.65], [1.180], [4.30], [7.30], [14.15] Native Title Act case ................................... [14.30] politics of High Court decisions ............ [1.180] race power ................................................. [14.30] terra nullius doctrine ....................[1.65], [14.15] Non-​judicial decisions breadth of discretion .................................. [6.30] Child Support Registrar ............................ [6.20] cross-​vesting scheme ................................. [6.70] enforceability .............................................. [6.45] exceptions .......................................[6.90]–​[6.100] existing rights and duties .......................... [6.35] federal courts not to make ........................[6.05], [6.65]–​[6.70], [6.90]–​[6.100] historical considerations ........................... [6.40] incidental powers ....................................... [6.95] incompatibility doctrine ............ [6.100], [6.115], [6.140] judicial decisions distinguished .............................[6.25], [6.45] persona designata exception .................. [6.100], [6.115], [6.140] Registrar for Trademarks, power vested in .................................... [6.35] Northern Territory —​see also Territories rejection of proposal for statehood ........ [1.135]

P Pape case�����������������������[5.70]–​[5.75], [5.85], [10.55] Parliamentary sovereignty Australian legislatures ............................... [1.15] British law ................................................... [1.15] doctrine of ................................................... [1.15] human rights ............................................... [1.15] rule of law inconsistent with ................................. [1.15]–​[1.20],  [1.75] Parole conditions .................................................. [13.35] executive function .................................... [6.155]

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638

Federal Constitutional Law: A Contemporary View

Parole — cont legal equality ............................................. [6.165] no non-​parole period ............................... [6.155] Penalties criminal, inconsistency of State and federal laws ..............................[6.165], [7.65] taxes distinguished .................................... [9.10] People smuggling mandatory minimum sentence .............. [6.155] Pharmaceutical benefits Commonwealth’s explicit power over ....................................................... [10.50] Political communication —​see Freedom of political communication Political parties balance of power in Senate ..................... [1.105] freedom of association ............................. [13.05] judiciary, independence .............. [1.15], [1.180], [6.110] Powers executive .....................................................[1.115] House of Representative ......................... [1.105] judiciary ..................................................... [1.120] Parliament ....................................[1.105]–​[1.110] Senate ........................................................... [1.15] separation .................................................... [1.50] Preamble conceptual basis of Constitution ............ [14.55] recognition of Indigenous people ................................................... [14.35] Precedent����������������������������������������������������������[1.220] Prerogative power coercive ........................................................ [5.55] Crown ...............................................[5.45], [5.90] executive ...................................................... [5.45] judicial review of exercise ......................... [5.45] proprietary .................................................. [5.45] relationship with executive power ..........................................[5.55], [5.60] Prime Minister appointment by Governor-​General ................... [5.10]–​[5.15] Constitution, not mentioned in .............................[1.115], [5.10] dismissal by Governor-​General ...............[1.25], [1.45], [5.15]

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Governor-​General to act on advice ....................................[5.10]–​[5.15] Privatisation Constitution ................................................ [5.95] constitutional limits ................................... [5.95] executive power and .................................. [5.95] Property —​ see Acquisition of property on just terms (s 51(xxxi)) Proportionality —​ see also Commonwealth laws balancing test ...............................[14.65], [14.80] characterisation of laws ................. [2.45]–​[2.60], [14.75] concept of .................................................. [14.60] constitutional guarantees ........................ [14.80] High Court, in ..............................[14.70]–​[14.85] importance in constitutional law ........................................................ [14.60] incidental power .............................[2.55]–​[2.60] judicial deference to legislature ............. [14.85] legal concept ............................................. [14.60] margin of appreciation ............................ [14.85] necessity test ............................................. [14.65] objective test of purpose, distinguished ...................................... [14.65] personal values of judge ......................... [14.90] purposive powers .......................... [2.50]–​[2.60], [5.75] reasonableness test ......................[14.65], [14.90] strict test ...................................................... [2.55] suitability test ........................................... [14.65] three levels of inquiry .................[14.65], [14.90] Proprietary prerogatives���������������������������������[5.45] Protectionist laws —​see also Freedom of interstate trade, commerce and intercourse (s 92) appropriate and adapted .........................[11.70] export restrictions .....................................[11.50] meaning of protectionism ........................[11.45] non-​protectionist objective ........ [11.55], [11.70] proportionality test ...................................[11.70] proportionate regulation ..........................[11.55] types ............................................................[11.70] Public health nationhood power ...................................... [5.70] Public service accountability ............................................. [1.40] disciplinary tribunals, judicial power ..... [6.85]

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Index Purposive powers defence power ............................................ [2.50] external affairs power .....................[2.50], [4.55] nationhood power ...........................[2.50], [5.70] overview ............................. [2.50]–​[2.60], [14.75]

Q Quarantine power (s 51(ix)) discriminatory Commonwealth law ....... [8.45]

R Race power (s 51(xxvi)) Aboriginal people .......................[14.30]–​[14.35] aliens power compared ........................... [14.30] Commonwealth’s power under ............. [14.30] Hindmarsh Island case ................................ [14.30] manifest abuse test ................................... [14.30] 1967 referendum to amend ........[14.25]–​[14.30] proportionality in characterising law ........................................................ [14.75] purposive element ..................................... [2.50] reading in light of changing times ......... [14.30] reconciliation ............................................. [14.35] scope of ...................................................... [14.30] validity of legislation under ................... [14.30] Racial discrimination constitutional interpretation ................... [1.200] constitutional provisions ............[14.20], [14.30] enforceability of HREOC decisions ......................... [6.15], [6.20], [6.60] inconsistency of State and federal laws ................................[7.30], [7.55] Indigenous Australians ..............[14.30], [14.55] matter of international concern ................ [4.65] 1967 referendum to amend ..................... [14.25] parliamentary sovereignty and oppressive statutes ............................... [1.15] race power ................................................. [14.30] “reasonable” discrimination ................... [14.50] Stolen Generation case ...................[14.30], [14.55] treaty implementation ....................[4.35], [4.55] validity of Racial Discrimination Act ....... [14.30] Regulation-​making  power�����������������������������[5.25] Relevance of proportionality in characterisation .............................. [2.45] Religion —​ see Freedom of religion (s 116) Representative government doctrine of ................................................... [1.35]

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639

freedom of political communication, source of .............................................. [13.20] lower houses of parliament ...................... [1.35] Research scientific ....................................................... [5.70] technical ....................................................... [5.70] Reserved powers doctrine Engineers case ............................................... [2.15] explosion of ................................................. [2.15] R v Barger ..................................................... [2.10] Responsible government adoption of system of ................................ [1.70] doctrine of ................................................... [1.40] duration of office of Ministers .................. [1.95] Senate not applicable ................................. [1.40] Retrospective legislation������������������������������[6.160] Revenue raising appropriations power —​see Appropriations power (s 81) centralisation of federal capacity ................................................ [10.05] customs and excise —​see Customs, excise and bounties division of fiscal power between Commonwealth/​States ..................... [10.05] grants power —​see Grants power (s 96) Parliamentary control .............................. [1.125] tax power —​see Tax power (s 51(ii)) vertical fiscal imbalance .............. [9.75], [10.05], [10.20] Royal Commissions inconsistency of State and federal laws ........................................................ [7.65] non-​judicial role of judges ...................... [6.100] Rule of law Bingham ...................................................... [1.20] clarity and accessibility ............................. [1.20] concept of .................................................... [1.20] Dicey ............................................................ [1.20] equality before the law .............................. [1.20] parliamentary sovereignty inconsistent with .......................[1.20], [1.75]

S Section 96 grants —​see Grants power (s 96) Sedition��������������������������������������������������������������[4.15]

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640

Federal Constitutional Law: A Contemporary View

Senate amendment of policies ............................ [1.105] balance of power ...................................... [1.105] bicameral system ........................................ [1.30] Commonwealth legislature, part of ..................................................... [1.90] composition ............................................... [1.100] constitutional interpretation ......[1.190]–​[1.195] constitutional provisions ......................... [1.100] deadlock between Houses ...................... [1.105] democratic legitimacy ..................[1.30], [1.100] duration of ................................................. [1.100] election to .......................................[1.30], [1.100] federalism, concession to ........................ [1.100] political make-​up ..................................... [1.105] power to veto bills ...................................... [1.30] proportional representation .................... [1.105] relative powers ......................................... [1.105] representation of Territories ................... [1.100] responsible government doctrine not applicable .............................................. [1.40] right to vote for ..........................[12.105], [13.70] States’ house, as ........................................ [1.100] supply bills, blocking ....................[1.45], [1.105] term of office of Senators ........................ [1.100] Territorial Senators case ..............................[1.100], [1.190]–​[1.195] veto power over laws .............................. [1.105] Sentencing people smuggling ..................................... [6.155] powers of ................................................... [6.155] sentencing laws .......................................... [7.65] Separation of judicial power —​see also Chapter III courts; Judicial power Bill of Attainder as breach of .................. [6.145] Builders’ Labourers’ Federation case ........... [6.145] Chapter III courts ..............[6.55]–​[6.70], [6.110], [6.120], [6.130]–​[6.140], [6.150], [6.180] Commonwealth ................. [6.05], [6.50]–​[6.100] criminal laws, retrospective .................... [6.160] delegation of judicial power ..................... [6.80] detention powers ..................................... [6.150] exceptions to the principles .........[6.75]–​[6.100] fair administration of justice ....................................................[6.110] federal courts and non-​judicial power ..........................................[6.65]–​[6.70] Hindmarsh Island case ...................[6.100], [14.30] human rights issues ....................[6.100], [6.135] incidental powers ....................................... [6.95] incompatibility doctrine ............ [6.100], [6.115], [6.140], [6.160] judicial power, exercise of ......................... [6.60]

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Kable doctrine ................. [6.105]–​[6.125], [6.145] Kable principle, revival of ......................... [6.112] legal equality, implied right of ................................................. [6.165] legislative usurpation .............................. [6.145] persona designata exception .... [6.100], [6.115], [6.140] powers to detain ....................................... [6.150] principles ..........................................[6.55]–​[6.70] safeguard of liberty .................................. [6.180] States ...............................................[6.05], [6.105] Victoria ................................................... [6.25] telecommunications interception warrants ............................................... [6.100] Territories .................................................. [6.175] Separation of powers —​see also Executive power; Legislative power –​Commonwealth doctrine of ................................................... [1.50] executive and legislative power ..................................................... [5.25] human rights ............................................. [6.135] judicial power —​see Judicial power State level .................................................. [6.130] Severance rules of ............................................[1.235], [7.15] Sex discrimination inconsistency of State and federal laws .............................................[7.25], [7.60] parliamentary sovereignty and oppressive statutes ............................... [1.15] Sexual offenders continuing detention orders ................... [6.125] discretion of information ........................ [6.120] sentencing, State judicial power ....................................................[6.110] Shelf companies�����������������������������������������������[3.35] Social welfare nationhood power ...................................... [5.70] Stare decisis�����������������������������������������������������[1.220] State constitutions constraints on State parliaments by ............................................................ [1.15] drafting by Colonial parliaments ............. [1.70] entrenched sections of ............................. [1.145] flexibility .................................................... [1.145] High Court jurisdiction ............................. [6.60] separation of judicial power ......[6.105], [6.110]

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Index State courts cross-​vesting scheme ................................. [6.70] exercise of judicial power ........................ [1.120] federal jurisdiction vested in .................... [6.70] independence from political control ...................................................[6.110] judges, application of federal legislation to .......................................... [8.55] non-​judicial power ....................................[6.110] public confidence ......................................[6.110] required characteristics ........................... [6.120] sentencing laws .........................................[6.110] separation of judicial power ....... [6.05], [6.105], [6.110], [6.155] Supreme Court —​see Supreme Court State Crowns�����������������������������������������������������[5.45] State governments bicameral system ........................................ [1.30] Commonwealth laws impairing function .................................................. [8.50] constitutional constraints .......................... [1.15] corruption in ............................................... [1.55] demarcation of Commonwealth/ State power ........................................... [1.55] judicial power .................. [6.05], [6.105], [6.155] Kable principle ............................. [6.105]–​[6.125], [6.145]–​[6.150] residual powers .......................................... [1.55] separation of powers ................................. [1.55] States Australia Acts ........................................... [1.165] authority to exercise powers ...................[1.110] coining money, ban on ............................. [1.130] Commonwealth laws, immunity from —​see Intergovernmental immunity concurrent powers with Commonwealth .................................... [1.55] debts, Commonwealth taking over ....... [1.125] extraterritorial power ................................ [4.10] fiscal power ............................................... [10.05] freedom of trade between —​see Freedom of interstate trade, commerce and intercourse (s 92) grants to —​see Grants power (s 96) GST payable to ........................................... [9.75] immunity, tests for ..................................... [8.55] Imperial control, freedom from ....[1.155]–​[1.170] income taxes not to be imposed by .............................................[10.15], [10.30] inconsistency  —​ see Inconsistency of State and federal laws investiture of judicial power in non-​judicial bodies ............................. [6.125]

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641

legislative power —​see Legislative power –​ States new, constitutional provisions ............... [1.135] Senate representing interests of ............. [1.100] separation of powers ............................... [6.130] judicial power ..........................[6.05], [6.105] Statute of Westminster ............................... [1.160] taxes, power to impose ................ [9.75], [10.15], [10.30] transformation of Colonies into ............. [1.130] Statute of Westminster����������������������������������[1.160] Stolen Generation case detention power of non-​judicial body ..................................................... [6.150] freedom from arbitrary detention .......... [14.35] freedom from genocide ........................... [14.35] freedom of movement and association ..............................[13.55], [14.35] freedom of religion ......................[12.85], [14.35] racial discrimination ...................[14.30], [14.55] right of legal equality .................[6.165], [14.35] Supply constitutional conventions ........................ [1.25] House of Commons’ control ..................... [1.45] parliamentary control ................................ [1.45] upper houses blocking .................[1.45], [1.105] Supreme Courts considerations, historical and practical ............................................... [6.120] discretion ................................................... [6.120] Forge case ................................................... [6.120] independence and impartiality .............. [6.120] institutional integrity ............................... [6.120] jurisdiction ................................................ [6.120] jurisdictional error ................................... [6.120] Kable case ......................................[6.120]–​[6.125] open court principle ................................. [6.120] procedural fairness .................................. [6.120] provision of reasons for decisions ......... [6.120] required characteristics ........................... [6.120] tenure of judges ........................................ [6.120]

T Tampa incident�������������������������������������������������[5.60] Tasmanian Dam case acquisition of property on just terms .... [12.25] corporations power ............ [3.25], [3.45]–​[3.50], [3.60]

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642

Federal Constitutional Law: A Contemporary View

Tasmanian Dam case — cont nationhood power ...................................... [5.75] race power ................................................. [14.30] treaty implementation ................... [4.35], [4.45], [4.55]–​[4.75] Tax compulsory acquisition distinguished ...................................... [12.40] consumption taxes ..................................... [9.40] definition ..................................................... [9.10] division of power between Commonwealth/​States ........[10.05], [10.30] excise as —​see Customs, excise and bounties fee for service, distinguished .................... [9.10] goods and services tax ............................... [9.75] incidental power ........................................ [2.35] States’ power to impose .............. [9.75], [10.15], [10.30] wartime arrangements ............................ [10.30] what constitutes ......................................... [9.10] Tax power (s 51(ii)) characterisation of laws ..................[2.05]–​[2.20] Commonwealth power ................[1.55], [10.05] customs and excise power derived from ......................................... [9.05] discrimination prohibition ...................... [14.40] exclusive power .......................................... [7.60] incidental power and ................................. [2.35] proportionality ........................................... [2.45] Uniform Tax cases ................ [2.20], [2.35], [10.30] Telecommunications interception warrants, power to issue ......................... [6.100] Terra nullius doctrine������������������������ [1.65], [14.15] legal rejection in Mabo’s case ....... [1.65], [1.180], [14.15] Territorial limits of powers����������������������������[4.10] Territories acquisition of property on just terms .... [12.55] constitutional statehood .......................... [1.135] freedom of association, application to ...................................... [13.55] freedom of political communication, application to ...................................... [13.55] plenary power of Commonwealth .......................[1.55], [1.135] Senate representation .............................. [1.100] separation of judicial power ................... [6.175] trial by jury, right to ................................. [12.65] voting rights .............................................. [13.70]

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Terrorism —​ see also Control orders; Defence power (s 51(vi)) anti-​terrorism measures ............................ [4.50] Criminal Code amendments ..................... [13.10] powers in relation to ................................ [13.10] terrorist acts, definition ............................. [4.15] UN Security Council Resolution .............. [4.50] Tobacco consumption tax, whether excise ............. [9.40] excise, whether .................... [9.55], [9.60]–​[9.65] freedom of interstate trade ......................[11.45] interstate trade, discrimination in ..........[11.45] licence fees and backdating to avoid s 90 ............................................... [9.55] Trade and commerce —​see also Freedom of interstate trade, commerce and intercourse (s 92) constitutional provisions ......................... [1.125] excise  —​ see Customs, excise and bounties federation, reason for ......................[1.80], [9.05] incidental power ........................................ [2.30] interstate  —​ see Freedom of interstate trade, commerce and intercourse (s 92) Trade and commerce power (s 51(i)) characterisation of laws ..................[2.05]–​[2.20] corporations, creation of ........................... [3.70] exclusive power over public places ......... [7.60] export ........................................................... [2.30] incidental power and ................................. [2.30] interstate and international trade ............ [2.30] intrastate trade ............................................ [2.30] licensing aircraft .......................................[2.30], [12.40] slaughter of meat for export ............... [2.30] slaughter of poultry for export ........... [2.30] prohibition of exports ................................ [2.20] statutory liens over aircraft ..................... [12.40] Trading corporations —​see also Corporations power (s 51(xx)) definition ..................................................... [3.25] formation of ................................................ [3.70] regulation .................................................... [3.70] scope of corporations power .........[3.45]–​[3.80] Treaties —​ see also External affairs power (s 51(xxix)) bona fide entry into .................................... [4.40] conformity principle .................................. [4.55] customary international law ..................... [4.70] documents other than treaties .................. [4.60] effect on Australian law ............................ [4.30] environmental protection ..............[4.35], [4.75]

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Index Treaties — cont High Court jurisdiction re matters under ....................................... [6.50] ILO case .............................................[4.45]–​[4.65] implementation ...............................[4.05], [4.20] incorporation into domestic law ...............................................[4.35], [4.60] Indigenous Australians ........................... [14.35] matters of international concern ........................................[4.35], [4.65] political controversies ................................ [4.75] prerogative power to execute ................... [5.45] proportionality in characterising law ........................................................ [14.75] ratification ............................ [4.25]–​[4.30],  [4.40] reforms to treaty-​making process ................................................... [4.25] specificity principle .................................... [4.50] treaty “obligation”, need for ..........[4.45]–​[4.50] Trial due process, right to ................................ [6.170] fair, right to ................................................ [6.170] Trial by jury application of s 80 .................................... [12.65] indictable Commonwealth offences ................................................ [12.65] indictable State offences .......................... [12.65] interpretation of s 80 .................. [1.135], [1.200], [12.05], [12.65] jury reduction ........................................... [12.65] jury vetting ................................................ [12.65] right to (s 80) ................................[12.05], [12.65] Territories, offences in ............................. [12.65] unanimous verdict ................................... [12.65] waiver of right .......................................... [12.65]

U Uniform Tax cases������������������� [2.20], [2.35], [10.30] United Kingdom —​see also Parliamentary sovereignty Australia becoming free of control by ................................[1.155]–​[1.165] bicameralism ............................................... [1.30] House of Commons ................................... [1.30] House of Lords ........................................... [1.30] Unitarian State ............................................ [1.55] Westminster Parliament ............................ [1.55] United States Bill of Rights ...................................[1.15], [1.150] Constitution ...................................[1.150], [5.25]

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distribution of power ................................. [1.55] judiciary, power vested in ......................... [1.15] Senate ..............................................[1.55], [1.100] Supreme Court ........................................... [1.15] territorial representation ......................... [1.205]

V Victoria Charter .............................. [6.25], [6.35], [12.110] human rights ............................................... [6.25] presumption of innocence ........................ [6.25] separation of judicial power ..................... [6.25] Voting —​ see also Freedom of political communication compulsory to register when eligible .................................................. [13.70] Constitutional guarantee ........................ [13.70] universal adult suffrage .................... [13.70] equality ...................................................... [13.65] House of Representatives, for ..........................................[12.105], [13.70] implied constitutional right ........................... [13.20], [13.60]–​[13.75] implied right to vote ..................[1.150], [13.05], [13.70] interpretation of s 41 .............................. [12.105] minimum franchise .................................. [13.70] no express right .........................[12.05], [12.105] “one vote one value” principle .............. [13.65] privacy, right of ........................................ [13.55] protection of constitutional right (s 41) ................................................... [12.105] qualitative/​quantitative equality .......... [13.65] race, disqualification on grounds of ........................................... [14.20] right to vote ................................[12.105], [13.70] Roach v Electoral Commissioner ................[13.60], [13.70]–​[13.75] Senate, for ...................................[12.105], [13.70] Territories .................................................. [13.70] women’s rights ..........................[1.150], [12.105]

W War Bill of Attainder ........................................ [6.145] control orders —​see Control orders crimes ......................................................... [6.160] defence power —​see Defence power (s 51(vi)) prerogative power to declare ................... [5.45] tax arrangements ...................................... [10.30]

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644

Federal Constitutional Law: A Contemporary View

Warrants telecommunications interception ........... [6.100] Welfare benefits Commonwealth power over .................. [10.50] Westminster system bicameralism ............................................... [1.30] Commonwealth parliament ................... [1.160] Statute of Westminster ............................... [1.160] United Kingdom ........................................ [1.55] Whitlam government constitutional crisis .................................... [1.45] sacking of .............................. [1.25], [1.45], [5.15] troops on stand-​by ..................................... [5.35] Women exclusion from Convention debates ...... [1.150] voting rights ...............................[1.150], [12.105] Words and phrases acquisition of property ............................ [12.20] bicameral system ........................................ [1.30] Bill of Attainder ........................................ [6.145] bounties on goods ...................................... [9.05] chose in action .......................................... [12.30] constitutional corporations ....................... [3.15] constitutional law ....................................... [1.05] customs duties ............................................ [9.05] direct discrimination ................................ [14.45] discrimination ..............................[11.40], [14.40] due process ................................................ [6.165] equality before the law .............................. [1.20] establishment of a religion ...................... [12.80]

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excise duties .....................................[9.05], [9.15] executive prerogatives ............................... [5.45] Federal Executive Council ........................ [5.10] financial corporation .................................. [3.30] foreign corporation .................................... [3.20] Governor-​General in Council ................... [5.10] GST revenue grants .................................. [10.20] indirect discrimination ............................ [14.45] interstate intercourse ................................[11.75] invalidity ..................................................... [7.15] judicial power ............................................. [6.10] just terms ................................................... [12.45] law ................................................................ [7.10] market value ............................................. [12.45] matters of international concern .............. [4.65] political communication ......................... [13.30] prerogative immunities and preferences ............................................ [5.45] prerogative power ...................................... [5.45] property ..................................................... [12.15] proportionality ......................................... [14.60] protectionism .............................................[11.45] purposes of the Commonwealth ............ [12.50] reading down a law ................................. [1.235] religion ....................................................... [12.75] representative government ....................... [1.35] reserve powers ................................ [2.10]–​[2.15], [5.15] responsible government ............................ [1.40] secondary boycott ...................................... [3.50] separation of powers ................................. [1.50] tax ................................................................. [9.10] terrorist acts ................................................ [4.15] trading corporation .................................... [3.25] vertical fiscal imbalance .......................... [10.05] void ab initio ............................................. [1.235]

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